<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 29, 1996.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE O'GARA COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Ohio
(STATE OR OTHER JURISDICTION OF
INCORPORATION)
3711
(PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER)
31-1470817
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
9113 LeSaint Drive
Fairfield, Ohio 45014
(513) 874-2112
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
WILFRED T. O'GARA
CHIEF EXECUTIVE OFFICER
THE O'GARA COMPANY
9113 LESAINT DRIVE
FAIRFIELD, OHIO 45014
(513) 874-2112
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
TIMOTHY E. HOBERG, ESQ.
TAFT, STETTINIUS & HOLLISTER
1800 STAR BANK CENTER
425 WALNUT STREET
CINCINNATI, OHIO 45202-3957
(513) 381-2838
JONATHAN I. MARK, ESQ.
CAHILL GORDON & REINDEL
80 PINE STREET
NEW YORK, NEW YORK 10005-1702
(212) 701-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE
PUBLIC: As soon as practicable after this Registration Statement becomes
effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) REGISTRATION FEE
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Common Stock, $.01 par value... 3,220,000 Shares $14.00 $45,080,000 $15,545
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</TABLE>
(1) Includes 420,000 shares which are being registered in connection with an
over-allotment option granted to the Underwriters.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE> 2
THE O'GARA COMPANY
FROM A WORLD LEADER IN VEHICLE ARMORING . . .
[Picture of the XM1114 Up-Armored HMMWV]
FOR THE MILITARY MARKET
XM1114 UP-ARMORED HMMWV: The Company is the primary provider of fully
integrated ballistic and blast protected armoring systems and armoring kits for
HMMWVs used by the U.S. Military and other military customers worldwide.
[Drawings of components of armoring for the XM1114 Up-Armored HMMWV.
Drawings of the following components are shown surrounding a drawing of an
XM1114 Up-Armored HMMWV: Weapon Station Armor, Slant Back Cargo Shell, Rear
Partition with Access Door, Armor Doors and Glass, Mine Protection Kit,
Windshield Armor, Full Working Turret and Fully Armored Roof.]
[Picture of Chevrolet Suburban.]
FOR THE COMMERCIAL MARKET
CHEVROLET SUBURBAN: The Company designs and installs fully integrated
ballistic and blast protected armoring systems for the popular Chevrolet
Suburban and other commercial vehicles, which are sold worldwide to governments,
business executives, and other VIPs who are concerned about safety and security.
[Drawings of components of armoring for the Chevrolet Suburban. Drawings of
the following components are shown surrounding a drawing of a Chevrolet
Suburban: Cargo Door Armor, Transparent Armor, Perimeter Armor, Floor Armor,
Transparent Armor, and Roof Armor.]
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK OF
THE COMPANY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NASDAQ NATIONAL MARKET OR
OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
O'GARA-HESS & EISENHARDT(TM) AND COMPACT-M(TM) ARE TRADEMARKS OF THE COMPANY.
GENERAL MOTORS(TM), CHEVROLET(R), CADILLAC(), GMC(TM), SUBURBAN(R) AND OMEGA(TM)
ARE TRADEMARKS OF GENERAL MOTORS CORPORATION. JEEP CHEROKEE(TM) IS A TRADEMARK
OF CHRYSLER CORPORATION AND JETTA(R) IS A REGISTERED TRADEMARK OF VOLKSWAGENWERK
A.G. MERCEDES BENZ(R) IS A REGISTERED TRADEMARK OF MERCEDES-BENZ A.G. AND SL(R)
AND DAIMLER-BENZ(R) ARE REGISTERED TRADEMARKS OF DAIMLER-BENZ. AMSC(R) IS A
REGISTERED TRADEMARK OF AMERICAN MOBILE SATELLITE CORPORATION. BRINK'S(R) IS A
REGISTERED TRADEMARK OF BRINK'S INCORPORATED. ALL OTHER TRADEMARKS APPEARING IN
THIS PROSPECTUS ARE THE PROPERTY OF THEIR RESPECTIVE OWNERS.
<PAGE> 3
THE O'GARA COMPANY
. . . TO A FULLY INTEGRATED GLOBAL SECURITY COMPANY
SECURITY HARDWARE PRODUCTS GROUP
MILITARY PRODUCTS: In addition to the Up-Armored HMMWV and the HMMWV kits,
the Company also armors other tactical wheeled vehicles, missile systems,
military containers and aircraft.
[Picture of XM1114 Up-Armored HMMWV.]
[Picture of Multiple Launch Rocket System firing.]
[Picture of 12 XM1114 Up-Armored HMMWVs lined up in front of the Company's
Fairfield, Ohio corporate headquarters.]
SECURITY SYSTEMS INTEGRATION GROUP
The Company offers fully integrated satellite communications systems and
site-specific security systems. Satellite products incorporate portable
terminals, mobile antennas, and proprietary smart card billing software, all on
the Inmarsat network. The Company's site protection services include
comprehensive planning, design and hardware and software integration services
currently offered to customers in Russia. The Company intends to expand these
services into other markets in the near future.
[Picture of gentleman in the field using the Company's portable satellite
communications equipment.]
[Picture of woman in control room operating security systems computer
equipment.]
PROTECTING U.S. PRESIDENTS FOR 50 YEARS
In the 1940s the Company was commissioned by the U.S. Secret Service to
design and assemble the first armored presidential limousine, which was used by
President Harry S. Truman. Since that time, the Company's fully-armored
presidential limousines have protected every U.S. President, more than 60
international heads of state and countless diplomats around the globe.
[Picture of armored presidential limousine.]
1948 -- Designed for Franklin Roosevelt and used until 1950, the "Sunshine
Special" was flown to Germany and used by President Truman at the historic
Potsdam debates.
[Picture of armored presidential limousine.]
1956 -- First used by President Dwight Eisenhower, the armored Cadillac's
size and weight (21 feet, 7,000 pounds) led to its being christened "The Queen
Mary II" after the famed British ocean liner.
[Picture of armored presidential limousine.]
1964 -- A group of experts including O'Gara representatives was assembled
to design a new presidential vehicle. The resulting limousine could resist
pistol and rifle attacks as well as grenades and small bombs.
[Picture of armored presidential limousine.]
1982 -- President Ronald Reagan loved seeing and being seen by crowds. His
1982 armored stretch Cadillac featured a raised roof and oversized windows for
maximum visibility.
<PAGE> 4
COMMERCIAL PRODUCTS: The Company designs and integrates armoring systems
for limousines, sedans, and sport utility vehicles for heads of state, business
executives, VIPs and their families worldwide. Presidential limousines built by
the Company have been used by every U.S. President since 1948.
[Picture of armored Mercedes S600 sedan.]
[Picture of armored Jeep Grand Cherokee.]
[Picture of armored Volkswagen Jetta.]
[Picture of armored Presidential Parade Car.]
[Picture of armored stretch limousine.]
SECURITY SERVICES GROUP
This group has been organized recently to offer businesses and individuals
security services such as background checks, business intelligence, country risk
assessments, airport/aircraft security support, and training for private
security agents and drivers. The Company intends to offer these services in
locations and to customers currently served by the Security Hardware Products
Group. The Company has appointed to its board of directors and senior management
team former FBI and CIA officials who will assist in the start-up of the
Security Services Group.
[Picture of airport security guards and detection equipment.]
[Picture of four U.S. Secret Service personnel walking alongside an armored
Presidential limousine.]
<PAGE> 5
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read
in conjunction with, the more detailed information and the Combined Financial
Statements of the Company, including the Notes thereto, appearing elsewhere in
this Prospectus. Unless otherwise indicated, (i) the financial statements of the
Company included in this Prospectus assume the completion of a reorganization
(the "Reorganization") of the Company and present the results of operations and
financial condition of the Company as though the Reorganization had been
completed at the dates, or at the beginning of the periods, presented; (ii) all
information presented in this Prospectus assumes no exercise of the
Underwriters' over-allotment option and has been adjusted to reflect the
completion of the Reorganization; and (iii) references in this Prospectus to the
"Company" refer to The O'Gara Company and its subsidiaries on a combined basis,
giving effect to the completion of the Reorganization, and to the Company and
its predecessors in a historical sense. See "Corporate Reorganization."
THE COMPANY
The O'Gara Company is a leading provider of fully integrated ballistic and
blast protected vehicle armoring systems for military, commercial and
governmental clients worldwide. Through O'Gara-Hess & Eisenhardt Armoring
Company ("OHE"), the Company currently is the primary provider of armoring
systems for High Mobility Multi-Purpose Wheeled Vehicles ("HMMWVs") used by the
U.S. Military and other armed forces worldwide. OHE also provides armored
commercial vehicles for heads of state, business executives and VIPs worldwide,
including presidential limousines used by every U.S. President since 1948.
Through O'Gara Satellite Networks Limited ("OSN"), the Company provides vital
communications systems for its clients by integrating proprietary hardware and
smart card billing software that operate on the International Maritime Satellite
("Inmarsat") network. In addition, the Company offers customized turn-key site
security systems to international customers.
Originally founded in 1876 as Sayers & Scovil, a manufacturer of
horse-drawn carriages, the Company evolved into a producer of specialized motor
vehicles. By the early 1900s, the Company changed its ownership and name to Hess
& Eisenhardt and focused on the development and construction of a broad range of
specialized consumer and commercial vehicles such as ambulances and hearses. In
the 1940s, the Company was commissioned by the U.S. Secret Service to design and
assemble the first armored presidential limousine, which was used by President
Harry S. Truman. In 1982, this business was acquired by certain members of the
O'Gara family, was subsequently renamed, and has focused on producing armored
vehicles for commercial and governmental clients around the world. In 1993, the
Company was awarded its first contract to up-armor the HMMWV for the U.S.
Military.
The Company's business today is increasingly being driven by the needs of
(i) worldwide military organizations to field a more versatile armored vehicle,
such as the HMMWV; (ii) governments to protect heads of state and diplomats from
terrorist attacks; (iii) multinational corporations to protect executives,
corporate assets and information in high risk countries; (iv) wealthy
individuals to secure themselves and their families from the growing threat of
kidnappings worldwide; (v) individuals to insulate themselves and their property
from planned criminal activity and random acts of violence; and (vi)
individuals, corporations and governments to obtain secure, remote or
independent telecommunications services.
To capitalize on these trends, the Company has realigned its activities
along three business lines: security hardware products, security systems
integration and security services. The Security Hardware Products Group
currently markets all of the Company's armoring products, including fully
integrated ballistic and blast protected armoring systems for military and
commercial vehicles, aircraft and missile container armor, and field installed
armoring systems. The Security Systems Integration Group offers planning,
design, and hardware and software integration services which are customized to
meet specific satellite communications or site protection needs of customers.
The Security Services Group intends to offer security-related services such as
security background clearances, business intelligence, country risk assessments,
airport/aircraft security support, and private security agent and driver
training. The Company believes that its strong name recognition, reputation and
experience, combined with its design, engineering and production expertise, as
well as its
3
<PAGE> 6
network of affiliations in the security industry, will enable it to market
successfully a broader array of security products and services worldwide.
BUSINESS STRATEGY
The principal elements of the Company's business strategy are as follows:
Expand armored commercial vehicle sales in foreign markets. The Company
intends to expand its foreign market position as a leading provider of armored
commercial vehicles by leveraging its well recognized name, high quality
reputation and global network of customer relationships. To support this effort,
the Company has established manufacturing operations in Mexico, Brazil and
Russia, has increased its sales and marketing personnel from four at October
1995 to 17 at present and has increased its annual marketing budget from $0.7
million in 1995 to $1.8 million in 1996. The Company believes that these
efforts, coupled with the strong demand in these countries for armored
commercial vehicles, will enable it to penetrate effectively these markets. In
the future, the Company intends to establish manufacturing operations in
additional countries as it deems appropriate.
Expand foreign military sales. As the nature of armed conflicts changes
and worldwide military budgets are cut, the Company believes that expensive
heavily armored tracked vehicles will continue to be replaced by more versatile
and less expensive tactical wheeled vehicles ("TWVs"), such as the HMMWV. The
Company markets both factory assembled, fully armored ("Up-Armored") HMMWVs and
armor kits which may be added in the field to certain existing HMMWVs. There
currently exists an installed base of 130,000 HMMWVs, including 18,400 owned by
31 foreign countries. The Company estimates that approximately 12,000 of the
HMMWVs in use worldwide are suitable for its armor kits and believes a
significant opportunity exists to market aggressively these kits,
internationally as well as domestically. The Company also believes that those
countries currently utilizing HMMWVs are candidates for future sales of the
Up-Armored HMMWV. For example, the Company recently entered into contracts to
provide Up-Armored HMMWVs to two foreign countries, Luxembourg and Qatar.
Grow non-armoring security-related businesses. The Company's Security
Systems Integration Group intends to build upon its rapidly growing satellite
communications business and the physical site protection services it currently
offers in Russia by offering a broader array of products and services to
existing hardware customers and to buyers in new geographic markets. In
addition, the Company's Security Services Group intends to offer, either
directly or through subcontractors, additional security-related services such as
security background clearances, business intelligence, country risk assessments,
airport/aircraft security support, and private security agent and driver
training. The Company is adding Mr. William S. Sessions, the former Director of
the Federal Bureau of Investigation, as a director, and Mr. Hugh E. Price, the
former Deputy Director for Operations of the Central Intelligence Agency, as
President, Security Services Group and as a director. The Company believes the
addition of these individuals to its management team, along with their
reputation, experience and network of relationships, will enhance the Company's
ability to market these services worldwide.
Standardize production to improve efficiencies and reduce throughput
time. Since 1994, the Company has committed approximately $3.1 million to
engineering, tooling, and training to standardize its product design, armoring
components, and assembly line operations. Through the application of these
techniques, the number of employee work hours needed to produce the Up-Armored
HMMWV has been reduced from 465 to 265, and the number of components involved
from 800 to 550. These techniques are now being applied by the Company to the
production of certain commercial products, the first being the armored
GMC/Chevrolet Standard Suburban ("Standard Suburban"). Employee work hours
required to armor the Standard Suburban have been reduced from 1,200 to 650, and
the number of components involved from 350 to 200. The Company is currently
working to standardize its process of armoring a passenger sedan. As a result of
these efficiencies, the Company believes it will be better able to provide
immediate delivery of its armored commercial vehicles, which will increase
substantially their attractiveness and marketability in the U.S. as well as
abroad.
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<PAGE> 7
Pursue strategic acquisition opportunities. The fragmented nature of the
global security industry provides ample opportunities for strategic
acquisitions. The Company believes it is positioned to consolidate companies in
the armoring, systems integration, security services, engineering and secured
satellite communications sectors of the industry. On August 15, 1996, the
Company entered into an agreement in principle to acquire Palmer Associates,
S.C., a provider of security services, such as driver training, background
investigation and due diligence reports, in Mexico City, Mexico, for cash
consideration of approximately $1.0 million, payable over two years. The Company
continues to review additional acquisition opportunities in each of these
sectors.
Pursue related growth opportunities. The Company believes it will have
additional opportunities for growth by providing safety component products to
the automotive market and by capitalizing on the increasing demand for
heightened security features in the private automobile market in the United
States.
RESULTS OF OPERATIONS
In 1995, the Company's net sales were $1.1 million lower than the prior
year due to a six-month delay in the delivery of HMMWV chassis from a supplier
that led to the production of 116 fewer Up-Armored HMMWVs than originally
planned. During this period, it was necessary to maintain manufacturing and
engineering support personnel to ensure production deadlines would be met once
the chassis were delivered. These support costs of approximately $0.6 million
occurred without a corresponding increase in net sales. Also, 1995 operating
expenses included $0.4 million in new selling and marketing expenses relating to
the start-up of the Company's satellite communication business. All these items
contributed to the Company's loss of $1.1 million for 1995.
For the six months ended June 30, 1996, net sales improved to $41.5
million, compared to $12.2 million for the six months ended June 30, 1995. The
primary reason for this growth was a U.S. Military request to accelerate the
production of Up-Armored HMMWVs. U.S. Military net sales for the six months
ended June 30, 1996 were $30.0 million, armored commercial vehicle net sales
were $7.6 million, and net sales of the Company's satellite communications
business (representing the bulk of the Security Systems Integration Group's net
sales) were $3.8 million, compared to $3.5 million, $8.1 million and $0.6
million, respectively, for the corresponding 1995 period. Income before income
taxes for the six months ended June 30, 1996 increased to $4.0 million compared
to a loss of $1.0 million for the six months ended June 30, 1995. In view of the
increased net sales from its acceleration of HMMWV production during the six
months ended June 30, 1996, the Company expects U.S. Military net sales for the
second half of 1996 to be lower than those for the first half. The Company
believes its commercial vehicle armoring and satellite communications businesses
will generate a greater percentage of the Company's future net sales. Increased
net sales are also expected to come from the Security Systems Integration Group
and Security Services Group.
The Company is incorporated in the State of Ohio and its principal
executive offices are located at 9113 LeSaint Drive, Fairfield, Ohio 45014. The
Company's telephone number is (513) 874-2112.
5
<PAGE> 8
THE OFFERING
<TABLE>
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Common Stock offered by the Company.............. 2,400,000 shares
Common Stock offered by the Selling
Shareholders................................... 400,000 shares
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2,800,000 shares
Total Common Stock offered.................. ================
Common Stock to be outstanding after the 7,011,846 shares(1)
Offering.......................................
To repay certain indebtedness of the
Use of proceeds by the Company................... Company, to finance certain distributions
to existing shareholders, to acquire the
Company's leased Mexico City
manufacturing facility, to pay initial
installments for the acquisition of
Palmer Associates, S.C. and for general
corporate purposes, including potential
acquisitions and working capital. See
"Use of Proceeds."
OGAR
Proposed Nasdaq National Market symbol...........
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(1) Excludes 180,000 shares issuable upon exercise of stock options to be
granted at the initial public offering price on the effective date of the
Registration Statement for the Offering to employees of the Company under
the Company's 1996 Stock Option Plan. See "Management -- Stock Options."
RISK FACTORS
Any investment in the shares of Common Stock offered hereby involves a high
degree of risk. For a discussion of certain risks of an investment in the shares
of Common Stock offered hereby, see "Risk Factors" on pages 8 to 14.
6
<PAGE> 9
SUMMARY COMBINED FINANCIAL DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
------------------------------------------ -------------------------------
PRO FORMA PRO FORMA
1993 1994 1995 1995(1) 1995 1996 1996(1)
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STATEMENT OF OPERATIONS DATA:
Net sales............................... $21,054 $33,912 $32,817 $32,817 $12,162 $41,521 $41,521
Cost of sales........................... 14,640 24,505 25,237 25,237 9,308 31,383 31,383
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Gross profit.......................... 6,414 9,407 7,580 7,580 2,854 10,138 10,138
Operating expenses...................... 5,101 7,176 7,757 7,757 3,432 5,445 5,445
------- ------- ------- ------- ------- ------- -------
Operating income (loss)............... 1,312 2,231 (177) (177) (579) 4,693 4,693
Interest (expense)...................... (269) (410) (842) (185) (366) (613) (94)
Other income (expense), net............. (81) 60 (103) (103) (47) (78) (78)
------- ------- ------- ------- ------- ------- -------
Net income (loss)....................... $ 962 $ 1,880 $(1,122) $ (991) $ 4,002
======= ======= ======= ======= =======
PRO FORMA DATA:
Income (loss) before income taxes....... (465) 4,521
(186)
Provision (benefit) for income taxes.... 1,808
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$ (279) $
2,713
Net income (loss)....................... ======= =======
$ (0.05) $
Net income (loss) per share of 0.41
common stock.......................... ======= =======
Weighted average shares of common stock
outstanding........................... 6,071,751 6,574,833
</TABLE>
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<CAPTION>
JUNE 30, 1996
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PRO FORMA AS
ACTUAL PRO FORMA(2) ADJUSTED(3)
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BALANCE SHEET DATA:
Working capital (deficit).............................................. $ (616) $ 321 $ 17,388
Net property, plant and equipment...................................... 3,669 3,660 4,860
Total assets........................................................... 36,265 36,848 41,949
Total debt............................................................. 15,808 24,808 1,893
Shareholders' equity (deficit)......................................... 4,016 (4,055) 23,961
</TABLE>
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(1) The pro forma information reflects the repayment of indebtedness
(approximately $10.2 million at December 31, 1995 and $13.6 million at June
30, 1996) from the proceeds of the Offering and the elimination of related
interest expense (net of income taxes). In addition, prior to the Offering,
the Company's business has been conducted by a group of corporations (the
"Related Corporations") affiliated by substantially common management and
control. The most significant of the Related Corporations has elected to be
treated as an S Corporation for federal and state income tax purposes, and
such Related Corporation's income has been allocable to its shareholders for
income tax purposes, rather than being taxed at the corporate level. After
the Reorganization and the termination of the S Corporation status of this
Related Corporation, the Company will be subject to corporate income
taxation and will file a consolidated tax return. The pro forma net income
information reflects the application of corporate income taxes to the
Company's consolidated income before income taxes at an effective tax rate
of approximately 40%, which represents the estimated combined federal and
state income tax rates. The pro forma information is presented as if such
changes had been effected on January 1 of the periods indicated. The
weighted average number of shares used in the calculation of pro forma net
income per share information reflects the issuance of such number of shares
of Common Stock offered hereby which would be necessary to generate net
proceeds sufficient to fund the repayment of indebtedness and the
distribution of undistributed S Corporation earnings through the time of the
Offering. See "Prior S Corporation Status," "Corporate Reorganization,"
"Selected Unaudited Condensed Pro Forma Financial Data," and Notes 1, 2, 14
and 15 to the Company's Combined Financial Statements.
(2) The pro forma combined balance sheet data gives effect to the distribution
of AAA Notes to existing shareholders from the AAA account in the amount of
$9.0 million, the recognition of a net-deferred tax asset of $0.9 million
resulting from the termination of one of the Related Corporation's S
Corporation status and the elimination of certain net liabilities of Limited
not being acquired as part of the Reorganization. For further information
and definitions, see "Prior S Corporation Status," "Selected Unaudited
Condensed Pro Forma Financial Data," and Notes 2, 14 and 15 to the Combined
Financial Statements.
(3) Adjusted to reflect the Offering (assuming an initial public offering price
of $13.00 per share) and the use of the net proceeds therefrom after
deducting estimated underwriting discounts and expenses payable by the
Company in connection with the Offering. See "Use of Proceeds."
7
<PAGE> 10
RISK FACTORS
Any investment in the shares of Common Stock offered hereby involves a high
degree of risk. Prospective investors should consider carefully the following
factors in evaluating an investment in the shares of Common Stock.
SUBSTANTIAL DEPENDENCE ON U.S. MILITARY CONTRACTS AND EXCLUSIVE ARMORING
CONTRACT
Since August 1993, U.S. Military contracts have accounted for an increasing
portion of the Company's business, representing 28.5%, 50.1%, 45.6% and 72.4% of
net sales for 1993, 1994, 1995 and the six months ended June 30, 1996,
respectively. Prior to August 1993, the Company's business did not include
armoring military vehicles. The Company's U.S. Military contracts are funded in
annual increments and require subsequent authorization and appropriation which
may not occur or which may provide less than the total amount of the contract
due to budgetary or other considerations. The Company's current contracts for
504 HMMWVs (of which 320 had been shipped as of August 31, 1996) are scheduled
to be completed in early 1997. There can be no assurance that future contracts
will be received or as to the size of any contracts that are received.
Fluctuations in spending by the U.S. Government for national defense could
adversely affect the Company's ability to receive future contracts. Moreover, a
variety of international and/or domestic political factors or decisions could
result in the cancellation of the HMMWV armoring project or a curtailing of its
scope. The loss of, or a significant reduction in, this business would have a
material adverse effect on the Company's financial condition, results of
operations and cash flows. See "Business -- U.S. Government Contracts."
AM General Corporation ("AM General") is the exclusive designer and
manufacturer of HMMWVs for the U.S. Military. Under an agreement which expires
in November 1998, the Company serves as the primary designer and integrator for
all of AM General's ballistic systems and as its primary armoring integrator on
all other programs. This agreement also establishes the Company as AM General's
primary subcontractor for providing armoring kits and parts, and requires AM
General to involve the Company in the design, development or procurement of any
other armoring systems. The Company's relationship with AM General has had, and
the Company believes will continue to have, a favorable impact on its business.
There can be no assurance that future contracts will be entered into with AM
General or as to the size of any such contracts. A substantial reduction in, or
termination of, the Company's business with AM General could have a material
adverse effect on the Company's financial condition, results of operations and
cash flows.
RISK OF U.S. GOVERNMENT SHUT DOWN
On several occasions during the U.S. Government's 1996 fiscal year, certain
operations essentially were "shut down" because of budget impasses between the
U.S. Congress and the White House. During these periods, payments to the Company
under its U.S. Military contracts were delayed. Future U.S. Government shut
downs, if sufficiently prolonged, could have a material adverse effect on the
Company's financial condition, results of operations and cash flows.
SINGLE AND PRIMARY SOURCE SUPPLIERS
The Up-Armored HMMWVs armored by the Company are manufactured under U.S.
Military contracts by AM General. Should AM General for any reason be unable to
deliver HMMWVs to the Company, as occurred during 1995, or should the U.S.
Military elect or be obligated to select a new HMMWV supplier, there could be a
material adverse effect on the Company's financial condition, results of
operations and cash flows.
The majority of the glass used by the Company in armoring its vehicles
currently is obtained from Pilkington Aerospace Limited. Should the Company at
some time find it necessary to select one or more additional or substitute
suppliers, delays could be encountered in obtaining product which meets the
Company's specifications.
A majority of the Company's cost of armoring HMMWVs consists of components
which are purchased from various vendors and suppliers. Component prices are
generally negotiated based on, among other things,
8
<PAGE> 11
the Company's expected manufacturing volume. There can be no assurance that the
Company will be able to predict accurately the anticipated manufacturing volume.
As a result, the Company may be subject to future cost increases which could
have a material adverse effect on the Company's financial condition, results of
operations and cash flows.
The transportable satellite telecommunications terminals marketed for the
Company by Magellan Systems Corporation, a wholly owned subsidiary of Orbital
Sciences Corp., under the microCOM-M name and marketed directly by the Company
under the Compact-M brand name are manufactured to Company specifications by a
single third party manufacturer, Glocom, Inc. ("Glocom"). If Glocom at some time
is unable to fulfill the Company's needs for such satellite terminals, the
Company may be unable to fill customer orders. Such an occurrence could have a
material adverse effect on the Company's financial condition, results of
operations and cash flows.
FLUCTUATIONS IN OPERATING RESULTS
Approximately 72.4% of the Company's net sales for the six months ended
June 30, 1996 were derived from U.S. Military contracts and an additional 6.2%
were derived from commercial contracts with U.S. governmental agencies or
foreign governments. These contracts generally are awarded on a periodic or
sporadic basis. The Company frequently receives substantial orders, and begins
to incur related expenses, in one quarter, the revenues from which will not be
received until one or more subsequent quarters. As a result, the Company
generally has significant fluctuations from time to time in its business.
Historically, these fluctuations have not been seasonal. Period-to-period
comparisons within a given year or between years may not be meaningful or
indicative of operating results over a full fiscal year. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations --
General."
RISKS ASSOCIATED WITH FIXED PRICE CONTRACTS
A substantial portion of the Company's projects are currently performed on
a fixed-price basis. The Company attempts to cover anticipated increases in
labor, material and service costs of long-term fixed-price contracts through an
estimation of such increases which is reflected in the original price. Despite
these attempts, however, the revenue, cost and gross profit realized on a
fixed-price contract will often vary from the estimated amounts due to
unforeseen conditions or changes in job conditions and variations in
productivity over the term of the contract. These variations and the risks
generally inherent in fixed-price contracts may result in the gross profits
realized by the Company being different from those originally estimated and may
result in the Company's experiencing reduced profitability or losses on
projects. Depending on the size of a contract, these variations from estimated
contract performance could have a material adverse effect on the Company's
results of operations for any quarter or year.
RISKS ASSOCIATED WITH PERCENTAGE-OF-COMPLETION ACCOUNTING
The Company's net sales from government contracts and most commercial
contracts are recognized using the percentage-of-completion method. Under this
method, estimated contract revenues are accrued based generally on the
percentage that costs to date bear to total estimated costs. Estimated contract
losses are recognized in full when determined. Accordingly, contract revenues
and total cost estimates are reviewed and revised periodically as the work
progresses and as change orders are approved, and adjustments based upon the
percentage of completion are reflected in contract revenues in the period when
such estimates are revised. To the extent that these adjustments result in an
increase, a reduction or an elimination of previously reported contract
revenues, the Company would recognize a credit or a charge against current
earnings, which could be material. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations -- Impact on Operations."
RISKS ASSOCIATED WITH BUSINESS STRATEGY
The Company's strategy is to become a fully integrated global security
company. Part of this strategy requires the establishment of new lines of
business by expanding the Company's Security Systems Integration Group and
developing the Security Services Group. Historically, the Company has not
generated revenues
9
<PAGE> 12
from these new lines of business. The Company's primary business and experience
historically has been in vehicle armoring. There can be no assurance that the
Company will be able to build or manage profitably these businesses without
substantial costs, delays or other problems, which could have a material adverse
effect upon the Company's financial condition, results of operations and cash
flows.
As the Company's business develops and expands, the Company will need to
implement enhanced operational and financial systems and will require additional
employees, management and operational and financial resources. There can be no
assurance that the Company will successfully implement and maintain such
operational and financial systems or successfully obtain, integrate or utilize
the employees, management and operational and financial resources required to
manage a developing and expanding business. Failure to implement such systems
successfully and use such resources effectively could have a material adverse
effect on the Company's financial condition, results of operations and cash
flows.
The Company's business strategy requires substantial capital. In addition,
the expansion of the Company's business into related products and services may
require additional capital. Such capital may be obtained by borrowings under the
Company's credit facilities, through the issuance of long-term or short-term
indebtedness or through the issuance of equity securities in private or public
transactions. This could result in increased interest expense and/or dilution of
existing equity positions. There can be no assurance that acceptable capital
financing for future growth can be obtained on suitable terms, if at all. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
RISKS ASSOCIATED WITH ACQUISITION STRATEGY
A further part of the Company's strategy is to grow through the acquisition
of companies that will complement its existing operations or provide it with an
entry into markets it does not currently serve. Growth through acquisitions
involves substantial risks, including the risk of improper valuation of the
acquired business and the risk of inadequate integration. There can be no
assurance that suitable acquisition candidates will be available, that the
Company will be able to acquire or manage profitably such additional companies
or that future acquisitions will produce returns that justify the Company's
investments therein. In addition, the Company may compete for acquisition and
expansion opportunities with companies that have significantly greater resources
than the Company.
The Company may finance future acquisitions with cash from operations or
additional debt or equity financings. There can be no assurance that the Company
will be able to generate internal cash or obtain financing from external sources
or that, if available, such financing will be on terms acceptable to the
Company. The issuance of additional Common Stock to finance acquisitions may
result in substantial dilution to the purchasers of the Common Stock offered
hereby. Any debt financing may significantly increase the Company's leverage and
may involve restrictive covenants which limit the Company's operations. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
If the Company is successful in acquiring additional businesses, the
Company may experience a period of rapid growth which could place significant
additional demands on the Company's management, resources and management
information systems. The Company's failure to manage any such rapid growth
effectively could have a material adverse effect on the Company's financial
condition, results of operations and cash flows.
COMPETITION
The markets in which the Company does or intends to do business are highly
competitive. There are a large number of companies, both public and private,
involved in one or more aspects of security hardware, security systems
integration and security services, as well as satellite telecommunications
services. Furthermore, the Company may encounter additional competition from
future industry entrants. Certain of the Company's current competitors have, and
new competitors may have, substantially greater financial and other resources
than the Company. There can be no assurance that the Company will continue to
develop and market products or services that will be accepted in the marketplace
or that it will be able to compete
10
<PAGE> 13
effectively in the future, either of which could have a material adverse effect
on the Company's financial condition, results of operations and cash flows. See
"Business -- Competition."
POLITICAL AND ECONOMIC RISKS
The Company has operations and assets in Brazil, Italy, Mexico and Russia.
In addition, the Company sells its products and services in other foreign
countries and is seeking to increase its level of international business
activity. Accordingly, the Company is subject to various risks, including U.S.
imposed embargoes of sales to specific countries, foreign currency restrictions,
exchange rate fluctuations, expropriation of assets, war, civil uprisings and
riots, government instability and legal systems of decrees, laws, regulations,
interpretations and court decisions which are not always fully developed and
which may be retroactively applied. The Company's operations in foreign
countries may be adversely affected in that certain governmental agencies in
such countries may interpret laws, regulations or court decisions in a manner
which might be considered inconsistent or inequitable in other countries. The
Company may be subject to unanticipated income taxes, excise duties, import
taxes, export taxes or other governmental assessments. There can be no assurance
that such risks will not result in a loss of business or other unexpected costs
which could have a material adverse effect on the Company's financial condition,
results of operations and cash flows. See "Business."
GOVERNMENT REGULATION
As a contractor with agencies of the U.S. Government, the Company is
obligated to comply with a variety of regulations governing certain aspects of
its operations and the workplace. Additionally, the Company's contracts give the
contracting agency the right to conduct audits of the Company's facilities and
operations, and such audits occur routinely. An audit involves a U.S.
Governmental agency's review of the Company's compliance with the prescribed
procedures established in connection with the government contract. The Company
also may be subject to investigations as a result of an audit or other causes.
Adverse findings in an audit or other investigation, including violations of
environmental or labor laws, could result in fines or other penalties, up to and
including disqualification as a U.S. Government contractor. In addition, U.S.
Government contracts may contain cost or performance incentives based on stated
targets or other criteria. Failure to meet these stated targets or criteria
could result in penalties or lost profits to the Company. Any or all of these
matters could have a material adverse effect on the Company's financial
condition, results of operations and cash flows.
The Company is subject to federal licensing requirements with respect to
the sale in foreign countries of certain of its hardware products. Regulations
promulgated by the U.S. Commerce Department require the Company to obtain a
general destination license in connection with the sale of certain commercial
products in foreign countries, and certain U.S. State Department regulations
require the Company to file an export license in connection with sales of
military equipment in foreign countries. Furthermore, the U.S. State Department
prohibits all sales of military equipment to certain countries, including Cuba,
Iran, Iraq, Libya and China. There can be no assurance that such regulations
will not become more restrictive in the future, which could limit the Company's
ability to market its products internationally. See "Business -- U.S. Government
Regulation."
MANAGEMENT OF LABOR FORCE
Due to the nature of the Company's contracts, which are awarded
periodically and are not assured for future periods, the Company may need to
hire, lay-off and rehire workers. As a result, the Company may spend substantial
time and effort training and supervising new, essentially unskilled, personnel
hired to supplement its existing trained work force. There can be no assurance
that sufficient workers will be available at any time, or can be trained in
time, so as not to interfere with the Company's ability to accept large new
orders or to meet contractual delivery deadlines. Alternatively, if the Company
were to experience production delays, as occurred with respect to the Company's
HMMWV production in 1995, it may be necessary to maintain manufacturing and
engineering support personnel in order to meet contract deadlines once
11
<PAGE> 14
production resumes. These matters could have a material adverse effect on the
Company's financial condition, results of operations and cash flows.
DEPENDENCE ON KEY PERSONNEL
The Company's operations are dependent on the continued efforts of its
executive officers and on its senior management, particularly Mr. Thomas M.
O'Gara, its Chairman of the Board, and Mr. Wilfred T. O'Gara, its Chief
Executive Officer. If the executive officers of the Company become unable or
decide not to continue in their present positions, or if a number of senior
managers fail to continue with the Company and the Company is unable to attract
and retain replacements, the Company's business could be adversely affected. See
"Management."
CONTROL BY MANAGEMENT
After the Offering, the Company's officers and directors will control
approximately 57% of the Company's outstanding Common Stock and will be able to
control most matters requiring approval by shareholders, including the election
of directors. In addition, the Board of Directors has the authority to issue
100,000 shares of undesignated preferred stock and to determine the rights,
preferences, privileges and restrictions of such shares without further action
by shareholders. Ohio law contains provisions that may discourage takeover bids
for the Company that have not been negotiated with the Board of Directors. Each
of these factors could have the effect of delaying or preventing a change in
control of the Company and, accordingly, could limit the price that investors
might be willing to pay for the Common Stock. See "Principal and Selling
Shareholders" and "Description of Capital Stock."
PRODUCT LIABILITY
Although the Company has never had a product liability claim made against
it, there can be no assurance that the Company will not be subject to claims of
liability in the future. The Company carries liability insurance in the amount
of $10.0 million; however, a successful claim could result in liability in
excess of coverage limits and have a material adverse effect on the Company's
financial condition, results of operations and cash flows.
NO PRIOR PUBLIC MARKET; DETERMINATION OF INITIAL OFFERING PRICE
Prior to the Offering, there has been no public market for the Common
Stock. The initial public offering price of the Common Stock was determined by
negotiation among the Company, the Selling Shareholders and the Managing
Underwriters and may not be indicative of the market price for shares of the
Common Stock after the Offering.
Although application has been made for quotation and trading of the Common
Stock on the Nasdaq National Market, no assurance can be given that an active
market for the Common Stock will develop or, if developed, will continue. If no
active market develops, it may be difficult for purchasers to resell their
Common Stock. The Managing Underwriters have advised the Company that they
intend to make a market for the Common Stock, although they are under no
obligation to do so. Were such market making to be discontinued, investors would
encounter difficulty effecting purchase or sale transactions in the absence of
alternative market makers. See "Underwriting."
POSSIBLE VOLATILITY OF STOCK
The market price for the Common Stock may be highly volatile. The Company
believes that a variety of factors, including announcements by the Company or
its competitors, quarterly variations in financial results, trading volume,
general market trends and other factors, could cause the market price of the
Common Stock to fluctuate substantially. In addition, the stock market has
experienced extreme price and volume fluctuations that are often unrelated to
the operating performance of particular companies. These market fluctuations may
adversely affect the price of the Common Stock.
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<PAGE> 15
SHARES ELIGIBLE FOR FUTURE SALE
Sales of a substantial number of shares of Common Stock, or the perception
that such sales could occur, could adversely affect prevailing market prices for
the Common Stock and may make it more difficult for the Company to sell shares
of Common Stock in the future at times and for prices that it deems appropriate.
Upon completion of the Offering, the Company will have 7,011,846 shares of
Common Stock outstanding (assuming no exercise of the Underwriters'
over-allotment option and no exercise of outstanding stock options). The
2,800,000 shares of Common Stock offered hereby will be freely tradeable without
restriction under the Securities Act of 1933, as amended (the "Securities Act").
The remaining 4,211,846 shares of outstanding Common Stock may not be resold
unless they are registered under the Securities Act or sold pursuant to an
applicable exemption from registration, including Rule 144 under the Securities
Act. All of the outstanding shares not offered hereby are subject to "lock-up"
agreements with the Underwriters expiring 180 days after the date of this
Prospectus and may be sold during that period only with the prior written
consent of Dillon, Read & Co. Inc. Dillon, Read & Co. Inc., in its sole
discretion, and at any time without prior notice, may release all or any portion
of the Common Stock subject to the lock-up agreements described herein. When
such lock-up restrictions lapse, the Common Stock may be sold in the public
market or otherwise disposed of in compliance with the Securities Act. See
"Shares Eligible for Future Sale."
IMMEDIATE AND SUBSTANTIAL DILUTION
Purchasers of the Common Stock offered hereby will experience immediate and
substantial dilution of $9.61 per share in the net tangible book value from the
initial public offering price per share (assuming an initial offering price of
$13.00 per share). See "Dilution."
ABSENCE OF DIVIDENDS
The Company does not anticipate paying any dividends on its Common Stock in
the foreseeable future. See "Dividend Policy."
POTENTIAL ANTI-TAKEOVER EFFECT AND POTENTIAL ADVERSE IMPACT ON MARKET PRICE OF
CERTAIN CHARTER AND CODE OF REGULATIONS PROVISIONS AND THE OHIO GENERAL
CORPORATION LAW
Certain provisions of the Company's Restated Articles of Incorporation and
Code of Regulations and of the Ohio Revised Code (the "Ohio GCL"), together or
separately, could discourage potential acquisition proposals, delay or prevent a
change in control of the Company and limit the price that certain investors
might be willing to pay in the future for the Common Stock.
Pursuant to the Company's Restated Articles of Incorporation, upon the
closing of the Offering, the Board of Directors of the Company will have
authority to issue up to 100,000 preferred shares without further shareholder
approval. Such preferred shares could have dividend, liquidation, conversion,
voting and other rights and privileges that are superior or senior to the Common
Stock. Issuance of preferred shares could result in the dilution of the voting
power of the Common Stock, adversely affect holders of the Common Stock in the
event of liquidation of the Company or delay, defer or prevent a change in
control of the Company.
In addition, Sections 1701.01 and 1701.831 of the Ohio GCL contains
provisions that require shareholder approval of any proposed "control share
acquisition" of any Ohio corporation at any of three ownership thresholds: 20%,
33 1/3% and 50%; and Chapter 1704 of the Ohio GCL contains provisions that
restrict certain business combinations and other transactions between an Ohio
corporation and interested shareholders. See "Description of Capital
Stock -- Provisions Affecting Business Combinations and Changes in Control."
BENEFITS OF THE OFFERING TO CURRENT SHAREHOLDERS
The Company intends to use approximately $9.0 million of the net proceeds
of the Offering to pay to the existing shareholders of OHE the principal of the
AAA Notes (as defined under "Prior S Corporation Status"). The principal amount
of the AAA Notes will be approximately equal to the accumulated earnings of OHE
on which taxes either have been paid or are payable by the existing
shareholders. In addition, the Selling Shareholders will receive directly a
portion of the proceeds of the Offering, the Offering will provide the
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<PAGE> 16
existing shareholders with liquidity through the creation of a public market and
certain of the existing shareholders will be released from guarantees of Company
indebtedness. See "Prior S Corporation Status," "Use of Proceeds" and "Shares
Eligible for Future Sale."
PRIOR S CORPORATION STATUS
Prior to the Offering, the Company's business has been conducted by a group
of companies affiliated by substantially common ownership and control (the
"Related Corporations"). The Company's armoring business has been carried out
primarily by O'Gara-Hess & Eisenhardt Armoring Company, a Delaware corporation
("OHE"). Certain foreign armoring operations, and foreign sales for OHE, have
been carried out by O'Gara-Hess & Eisenhardt Armoring Company Limited, an Irish
corporation ("Limited"), and its subsidiaries. Satellite communications
operations have been carried out by O'Gara Satellite Networks Limited, an Irish
corporation ("OSN"), and its subsidiaries. Certain of these companies and their
businesses will be reorganized and combined with the Company (the
"Reorganization") prior to the completion of the Offering. See "Corporate
Reorganization."
Since December 19, 1988, the inception date of its first taxable year, OHE
has elected to be treated as an S Corporation under the Internal Revenue Code of
1986, as amended (the "Code"). In general, an S Corporation is not treated as a
separate taxable entity, and an S Corporation's gains, income, losses and
separately stated tax items are taxed to its shareholders on a pro rata basis.
Since 1989, OHE has made periodic distributions to its shareholders. The balance
of taxed or taxable accumulated earnings which have not been distributed is
reflected in an "accumulated adjustments account" (the "AAA account"). In
connection with the Reorganization, OHE's S Corporation status will terminate,
and the Company will make a distribution to the existing shareholders of OHE of
promissory notes (the "AAA Notes") in an aggregate principal amount estimated to
be $9.0 million at the time of the Offering. The aggregate principal amount of
the AAA Notes will be approximately equal to the undistributed earnings in the
AAA account on which the shareholders either have paid or will be required to
pay income taxes. The amount of the AAA Notes includes an estimate of taxable
income through the anticipated effective date of the Offering. A portion of the
proceeds of the Offering will be used to repay the AAA Notes. See "Use of
Proceeds." Following the Reorganization, the Company will be subject to federal
and state income taxes.
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<PAGE> 17
CORPORATE REORGANIZATION
Pursuant to various agreements among the Company, OHE, Limited and the
equity holders of OHE, Limited and OSN, the operations of these corporations
will be reorganized and combined immediately prior to the effective date of the
Registration Statement of which this Prospectus is a part. After the
Reorganization, OHE and OSN will operate as wholly owned subsidiaries of the
Company, and OHE will succeed to the business formerly carried out by Limited
either directly or through subsidiary corporations.
Equity interests in OHE and OSN, respectively, have been held beneficially
by the following individuals in the indicated percentages: Thomas M. O'Gara,
88.0% and 86.0%; Wilfred T. O'Gara, 5.8% and 5.0%; Thomas M. Letter, 3.7% and
3.4%; Charles A. Williams, 0.6% and 0%; Nicholas P. Carpinello, 1.3% and 0.6%;
Richard L. Curotto, 0.6% and 0%; and Neil P. Saldin, 0% and 5%. One hundred
percent of the equity interest in Limited has been held by an Individual
Retirement Account (the "IRA") for the benefit of Thomas M. Letter. However, OHE
holds an option to purchase 71% of Limited from the IRA for the amount of
$7,600, and Longline Leasing, Inc. (a Delaware corporation, established in
December 1993 and owned by Thomas M. O'Gara, Wilfred T. O'Gara, Thomas M.
Letter, Charles A. Williams and Nicholas P. Carpinello ("Longline")) holds a
similar option to purchase 24% of Limited for the amount of $1,900.
Pursuant to various agreements dated August 23, 1996 among OHE, Limited and
the equity holders of OHE, Limited and OSN, the operations of these corporations
will be reorganized and combined immediately prior to the effective date of the
Registration Statement of which this Prospectus is a part. The equity holders of
OHE will transfer their ownership interests in OHE to the Company in exchange
for Common Stock of the Company. The equity holders of OSN will then transfer
their ownership interests in OSN to the Company in exchange for shares of Common
Stock. Following these transactions, the beneficial ownership of Common Stock of
the Company immediately prior to the Offering will be as follows: Thomas M.
O'Gara, 87.4%; Wilfred T. O'Gara, 5.6%; Thomas M. Letter, 3.7%; Neil P. Saldin,
1.0%; Nicholas P. Carpinello, 1.2%; Richard L. Curotto, 0.5%; and Charles A.
Williams, 0.6%. See "Principal and Selling Shareholders." In addition, OHE will
acquire certain selected assets and assume certain selected liabilities of
Limited for consideration (including OHE's interest in O'Gara Overseas Services,
S.A. -- see "Certain Relationships and Related Party
Transactions -- Intercompany Notes and Accounts Payable/Receivable") which the
Board of Directors of the Company believes represents the fair value of such
assets and liabilities. Following these transactions, Limited will have an
estimated book value of approximately $540,000. The option to purchase 71% of
Limited from the IRA will be transferred as a dividend, on a pro rata basis, to
the current shareholders of OHE.
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<PAGE> 18
USE OF PROCEEDS
The net proceeds from the sale of the 2,400,000 shares of Common Stock
offered by the Company hereby (at an assumed initial public offering price of
$13.00 per share), after deducting estimated underwriting discounts and expenses
payable by the Company in connection with the Offering, are estimated to be
approximately $28.0 million ($33.1 million if the Underwriters' over-allotment
option is exercised in full). The Company will not receive any proceeds from the
shares of Common Stock sold by the Selling Shareholders. See "Principal and
Selling Shareholders."
The net proceeds to be received by the Company will be used as follows: (i)
to repay existing indebtedness (including indebtedness to certain directors and
officers) approximating $13.9 million at June 30, 1996; (ii) approximately $9.0
million to pay the principal amount of the AAA Notes dividended to the existing
shareholders of OHE in connection with the termination of the S Corporation
status of OHE; (iii) approximately $1.2 million to exercise an option to
purchase the Company's leased Mexico City manufacturing facility (which is now
leased from an unrelated third party); (iv) approximately $0.8 million to pay
the initial installments for the acquisition of Palmer Associates, S.C.; and (v)
the remaining $3.1 million for general corporate purposes, including potential
acquisitions and working capital. There can be no assurance that such
allocations will not be changed to respond to changes in the Company's business
or future conditions. The amounts actually expended for such purposes may vary
significantly and are subject to change at the Company's discretion, depending
upon certain factors, including economic conditions, the competitive environment
and strategic opportunities that may arise. See "Business -- Business Strategy."
Pending such uses, the Company intends to invest the net proceeds from the
Offering in short-term investment grade instruments. The debt to be repaid
includes amounts outstanding ($13.6 million at June 30, 1996 and $15.1 million
at August 27, 1996) under a credit line with a commercial bank expiring November
1, 1996 bearing interest at the prime rate on the first $12.5 million of
borrowings and 1% in excess of the prime rate on borrowings in excess of $12.5
million and amounts payable to certain of the Company's directors, officers and
shareholders. A portion of the credit line is guaranteed by certain of the
Company's shareholders. See "Certain Relationships and Related Party
Transactions."
Following the closing of the Offering and of an anticipated $ million
new credit agreement, the Company anticipates that it will have approximately
$1.9 million of outstanding indebtedness and approximately $ million in
additional funds available under such new credit agreement, which funds may be
used for general corporate purposes, including the financing of acquisitions of
companies that will complement the Company's existing operations or provide it
with an entry into new markets. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations -- Liquidity and Capital
Resources" and "Business -- Business Strategy."
DIVIDEND POLICY
The Company anticipates that, after distribution of the AAA Notes to OHE's
shareholders and the termination of OHE's S Corporation status in connection
with the Offering, any future earnings will be retained to finance the Company's
operations and for the growth and development of its business. See "Prior S
Corporation Status." Accordingly, the Company currently does not anticipate
paying cash dividends on its shares of Common Stock in the foreseeable future.
The payment of any future dividends will be subject to the discretion of the
Board of Directors of the Company and will depend on the Company's results of
operations, financial position and capital requirements, general business
conditions, restrictions imposed by financing arrangements, if any, legal
restrictions on the payment of dividends and other factors the Board of
Directors deems relevant.
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CAPITALIZATION
The following table sets forth the short-term debt and capitalization of
the Company as of June 30, 1996 on an actual basis, pro forma as of such date to
reflect the transactions set forth in Note (1) hereto and pro forma as adjusted
as of such date to reflect the transactions set forth in Note (1) hereto and as
adjusted for the sale by the Company of 2,400,000 of the shares of Common Stock
offered hereby (assuming an initial offering price of $13.00 per share) and the
application of the net proceeds therefrom, after deducting estimated
underwriting discounts and expenses payable by the Company in connection with
the Offering. See "Use of Proceeds." The table should be read in conjunction
with the Company's Combined Financial Statements, including the Notes thereto,
contained elsewhere in this Prospectus.
<TABLE>
<CAPTION>
JUNE 30, 1996
----------------------------------------
PRO FORMA
ACTUAL PRO FORMA(1) AS ADJUSTED
------- ------------ -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Short-term debt:
Line of credit...................................... $13,646 $ 13,646 $ --
Current portion of long-term debt................... 1,623 1,623 1,623
Notes payable -- shareholders....................... 269 269 --
------- -------- -------
Total short-term debt.......................... $15,538 $ 15,538 $ 1,623
======= ======== =======
Long-term debt........................................... $ 270 $ 9,270 $ 270
Shareholders' equity (deficit):
Preferred Stock, $.01 par value, 100,000 shares
authorized, no shares issued or outstanding....... -- -- --
Common Stock, $.01 par value; 25,000,000 shares
authorized, 4,611,846 shares outstanding;
7,011,846 shares outstanding, as adjusted(2)...... 15 14 70
Additional paid-in capital.......................... 2,731 261 28,221
Retained earnings (deficit)......................... 1,263 (4,336) (4,336)
Cumulative foreign currency translation
adjustment........................................ 6 6 6
------- -------- -------
Total shareholders' equity (deficit)........... 4,016 (4,055) 23,961
------- -------- -------
Total capitalization......................... $ 4,286 $ 5,215 $24,231
======= ======== =======
</TABLE>
- ---------------
(1) Assumes the following transactions occurred as of June 30, 1996: (i)
distributions to existing shareholders from the AAA account in the amount of
$9.0 million in AAA Notes; (ii) the recognition of a net deferred tax asset
of $0.9 million resulting from the termination of OHE's S Corporation
status; (iii) the elimination of certain net liabilities of Limited not
being acquired as part of the Reorganization; and (iv) the reclassification
of a portion of the remaining retained deficit of OHE prior to OHE becoming
a C Corporation from retained deficit to additional paid in capital to the
extent available ($2.5 million). See "Prior S Corporation Status,"
"Corporate Reorganization" and "Use of Proceeds."
(2) Excludes 180,000 shares of Common Stock issuable upon exercise of options
under the Company's 1996 Stock Option Plan which will be granted at the time
of the closing of the Offering at the initial public offering price.
17
<PAGE> 20
DILUTION
The pro forma net tangible book value of the Company as of June 30, 1996,
giving effect to the Reorganization, related accounting adjustments and the
dividend of the $9.0 million principal amount of the AAA Notes to the Company's
existing shareholders (see "Prior S Corporation Status" and "Corporate
Reorganization"), was approximately $(4.3) million, or $(.93) per share of
Common Stock. Net tangible book value per share represents the Company's total
tangible assets less total liabilities, divided by the total number of shares of
Common Stock outstanding. After giving effect to the sale of the 2,400,000
shares of Common Stock offered by the Company hereby at an assumed initial
public offering price of $13.00 per share (and deducting underwriting discounts
and estimated offering expenses payable by the Company), the pro forma as
adjusted net tangible book value of the Company as of June 30, 1996 would have
been approximately $23.7 million, or $3.39 per share. This represents an
immediate increase in net tangible book value of approximately $4.32 per share
to existing shareholders and an immediate dilution of $9.61 per share to new
investors purchasing shares in the Offering. See "Use of Proceeds." The
following table illustrates this per share dilution in net tangible book value
per share to new investors as of June 30, 1996:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share.............................. $13.00
Net tangible book value per share as of June 30, 1996................... $ 0.82
Decrease in net tangible book value per share attributable to the
Reorganization, related accounting adjustments and the dividend of the
AAA Notes.............................................................. (1.75)
------
Pro forma net tangible book value per share............................. (0.93)
------
Increase in net tangible book value per share attributable to new
investors.............................................................. 4.32
Pro forma as adjusted net tangible book value per share after the Offering... 3.39
Dilution per share to new investors.......................................... $ 9.61
</TABLE>
The following table summarizes, on a pro forma basis as of June 30, 1996,
the number of shares of Common Stock purchased from the Company, the total
consideration paid to the Company for those shares and the average price per
share paid by the existing shareholders and by new investors purchasing shares
of Common Stock in the Offering (at an assumed initial offering price of $13.00
per share and without giving effect to estimated underwriting discounts and
commissions and estimated offering expenses payable by the Company):
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION
--------------------- ----------------------- AVERAGE PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
--------- ------- ----------- ------- -------------
<S> <C> <C> <C> <C> <C>
Existing shareholders(1)(2)........ 4,611,846 65.8% $ 2,500,000 7.4% $ 0.54
New investors(2)................... 2,400,000 34.2 31,200,000 92.6 13.00
--------- ---- ---------- ---- -----
Total......................... 7,011,846 100.0% $33,700,000 100.0%
========= ===== ========== =====
</TABLE>
- ---------------
(1) Excludes 180,000 shares of Common Stock issuable upon exercise of options
granted as of the closing of the Offering at the initial offering price
under the Company's 1996 Stock Option Plan. See "Management -- Stock
Options."
(2) Sales by the Selling Shareholders in the Offering will reduce the number of
shares of Common Stock held by existing shareholders to 4,211,846 shares or
60.1% (56.7% if the Underwriters' over-allotment option is exercised in
full) of the total number of shares of Common Stock outstanding after the
Offering, and will increase the number of shares of Common Stock held by new
investors after the Offering to 2,800,000 shares or 39.9% (43.3% if the
Underwriters' over-allotment option is exercised in full) of the total
number of shares of Common Stock outstanding after the Offering. See
"Principal and Selling Shareholders."
18
<PAGE> 21
SELECTED COMBINED FINANCIAL DATA
The selected historical combined financial data presented below as of
December 31, 1994 and 1995 and for each of the three years in the period ended
December 31, 1995 have been derived from the combined financial statements of
the Company which have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report included elsewhere herein. The
combined financial data as of December 31, 1991, 1992 and 1993 and as of June
30, 1996 and for the years ended December 31, 1991 and 1992 and for the six
month periods ended June 30, 1995 and 1996, are derived from the Company's
unaudited combined financial statements. In the opinion of management, the
six-month financial data reflect all adjustments, consisting only of normal
recurring adjustments, necessary for a fair statement of such data and are not
necessarily indicative of results to be expected for the full year. The selected
combined financial data should be read in conjunction with the Combined
Financial Statements and Notes thereto and "Management's Discussion and Analysis
of Financial Condition and Results of Operations."
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
--------------------------------------------------- ------------------
1991 1992 1993 1994 1995 1995 1996
------- ------- ------- ------- ------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net sales.......................... $17,562 $16,860 $21,054 $33,912 $32,817 $12,162 $41,521
Cost of sales...................... 12,926 11,511 14,640 24,505 25,237 9,308 31,383
------- ------- ------- ------- ------- ------- -------
Gross profit.................... 4,636 5,349 6,414 9,407 7,580 2,854 10,138
Selling and marketing expenses..... 2,398 2,432 1,932 2,736 3,628 1,353 2,159
General and administrative
expenses........................ 1,334 1,464 3,169 4,441 4,129 2,080 3,286
------- ------- ------- ------- ------- ------- -------
Operating income (loss)......... 904 1,453 1,312 2,231 (177) (579) 4,693
Interest (expense)................. (395) (481) (269) (410) (842) (366) (613)
Other income (expense), net........ (319) 92 (81) 60 (103) (47) (78)
------- ------- ------- ------- ------- ------- -------
Net income (loss)(1)............... $ 190 $ 1,064 $ 962 $ 1,880 $(1,122) $ (991) $ 4,002
======= ======= ======= ======= ======= ======= =======
</TABLE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31, AS OF JUNE 30,
--------------------------------------------------- ------------------
1991 1992 1993 1994 1995 1995 1996
------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital (deficit).......... $(3,710) $(4,468) $(2,238) $(1,999) $(3,231) $(2,876) $ (616)
Net property, plant and
equipment....................... 2,398 2,236 2,622 2,945 3,171 2,785 3,669
Total assets....................... 9,914 10,504 11,372 19,243 27,817 17,844 36,265
Total debt......................... 6,439 4,715 4,752 7,900 12,372 8,592 15,808
Shareholders' equity (deficit)..... (2,705) (1,713) (1,023) 1,273 239 368 4,016
</TABLE>
- ---------------
(1) Prior to the Offering, the Company's business has been conducted by a group
of corporations (the "Related Corporations") affiliated by substantially
common management and control. See "Corporate Reorganization." The most
significant of the Related Corporations has elected to be treated as an S
Corporation for federal and state income tax purposes, and such Related
Corporation's income has been allocable to its shareholders for income tax
purposes, rather than being taxed at the corporate level. Accordingly, the
Selected Combined Financial Data do not contain a provision for income
taxes. See "Prior S Corporation Status," the Combined Statements of
Operations and Notes 2, 14 and 15 to the Company's Combined Financial
Statements.
19
<PAGE> 22
SELECTED UNAUDITED CONDENSED PRO FORMA FINANCIAL DATA
The selected unaudited condensed pro forma financial data have been derived
from the combined financial statements of the Company. The unaudited pro forma
income statement data for the fiscal year ended December 31, 1995 and the six
months ended June 30, 1996, give effect to (i) the Reorganization and OHE's C
Corporation election, (ii) the Company's filing a consolidated U.S. Federal tax
return and (iii) reduction in interest expense related to the repayment of
certain existing debt from the proceeds of the Offering. The unaudited condensed
pro forma balance sheet data give effect to such transactions and to the
Offering and the use of the net proceeds therefrom after deducting underwriting
discounts and estimated expenses payable by the Company as if such transactions
had occurred on June 30, 1996. See "Prior S Corporation Status," "Corporate
Reorganization" and "Use of Proceeds."
The selected unaudited condensed pro forma financial data and accompanying
notes should be read in conjunction with the Combined Financial Statements of
the Company and the Notes thereto appearing elsewhere herein. The unaudited pro
forma financial data are provided for informational purposes only and do not
purport to represent what the Company's financial position or results of
operations actually would have been had the transactions described therein been
completed as of the date or at the beginning of the periods indicated, or to
project the Company's financial position or results of operations at any future
date or for any future period.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1995 SIX MONTHS ENDED JUNE 30, 1996
------------------------------------ ------------------------------------
HISTORICAL ADJUSTMENTS PRO FORMA HISTORICAL ADJUSTMENTS PRO FORMA
---------- ----------- --------- ---------- ----------- ---------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:(1)
Net sales.......................... $ 32,817 $32,817 $ 41,521 $41,521
Cost of sales...................... 25,237 25,237 31,383 31,383
------- ------- ------- -------
Gross profit..................... 7,580 7,580 10,138 10,138
Operating expenses................. 7,757 7,757 5,445 5,445
------- ------- ------- -------
Operating income (loss).......... (177) (177) 4,693 4,693
Interest (expense)................. (842) $(657)(2) (185) (613) $(519)(2) (94)
Other income (expense), net........ (103) -- (103) (78) -- (78)
------- ----- ------- ------- ----- -------
Income (loss) before income
taxes.......................... $ (1,122) $(657) (465) $ 4,002 $(519) 4,521
======= ===== ======= =====
Pro forma provision (benefit) for
income taxes(3).................. (186) 1,808
------- -------
Pro forma net income (loss)........ $ (279) $ 2,713
======= =======
Pro forma net income (loss) per
common share..................... $ (0.05) $ 0.41
======= =======
Pro forma weighted average
common shares outstanding(4)..... 6,071,751 6,574,833
</TABLE>
- ---------------
(1) The unaudited pro forma statement of operations data do not reflect certain
non-recurring items which will be incurred at the time of the Offering
including a non-cash expense, with a corresponding increase in additional
paid-in capital, of approximately $37,000 for certain sales of shares. In
addition, the Company will record a net deferred tax credit of $883,000 as a
result of the termination of OHE's S Corporation status. See "Prior S
Corporation Status," "Corporate Reorganization" and "Certain Relationships
and Related Party Transactions -- Exercise of Stock Options and Sale of
Shares."
(2) Adjustments reflect the reduction in interest expense related to the
repayment of certain existing debt from the proceeds of the Offering. See
"Use of Proceeds."
(3) Adjustments reflect the recording of federal and state income taxes at an
effective rate of 40% as if OHE had been a C Corporation and as if the
Company had filed a consolidated U.S. federal tax return during each such
period. See "Prior S Corporation Status" and "Corporate Reorganization."
(4) The pro forma weighted average common shares outstanding is based on the
weighted average common shares outstanding, using the treasury stock method,
for the applicable period, as adjusted for the number of Common Shares
required to be issued by the Company in the Offering to generate sufficient
net proceeds to repay debt and to fund planned distributions of the AAA
Notes to the existing shareholders of OHE.
20
<PAGE> 23
<TABLE>
<CAPTION>
JUNE 30, 1996
------------------------------------------------------------------
PRO FORMA OFFERING PRO FORMA
HISTORICAL ADJUSTMENTS PRO FORMA ADJUSTMENTS AS ADJUSTED
---------- ----------- --------- ----------- -----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Assets:
Cash...................................... $ 1,088 $ (27)(1) $ 1,061 $ 3,953 (2) $ 5,014
Advances to shareholders.................. 383 -- 383 (252)(2) 131
Notes receivable --
shareholder and affiliate............... 550 -- 550 (550)(2) --
Deferred tax asset........................ -- 883(3) 883 -- 883
Other current assets...................... 29,342 (264)(1) 29,078 -- 29,078
--------- ------- ------- --------- ---------
Total current assets.................... 31,363 592 31,955 3,151 35,106
Property, plant and equipment, net........ 3,669 (9)(1) 3,660 1,200 (2) 4,860
Other assets.............................. 1,233 -- 1,233 750 (2) 1,983
--------- ------- ------- --------- ---------
Total assets............................ $ 36,265 $ 583 $36,848 $ 5,101 $ 41,949
======== ======= ======= ========= =========
Liabilities and shareholders' equity
(deficit):
Revolving lines of credit................. $ 13,646 $ -- $13,646 $ (13,646)(2) $ --
Notes payable -- shareholders............. 269 -- 269 (269)(2) --
Current portion of long-term debt......... 1,623 -- 1,623 -- 1,623
Other current liabilities................. 16,441 (346)(1) 16,095 -- 16,095
--------- ------- ------- --------- ---------
Total current liabilities............... 31,979 (346) 31,633 (13,915) 17,718
Notes payable -- shareholders............. -- 9,000(4) 9,000 (9,000)(2) --
Long-term debt............................ 270 -- 270 -- 270
Shareholders' equity (deficit)............ 4,016 (8,071)(5) (4,055) 28,016 (2) 23,961
--------- ------- ------- --------- ---------
Total liabilities and shareholders'
equity............................... $ 36,265 $ 583 $36,848 $ 5,101 $ 41,949
======== ======= ======= ========= =========
</TABLE>
- ---------------
(1) Adjustments reflect the elimination of certain selected assets and
liabilities of Limited not being acquired as part of the Reorganization. See
"Corporate Reorganization" and "Use of Proceeds."
(2) Adjustments reflect the Offering and the use of the net proceeds therefrom
after deducting underwriting discounts and estimated expenses payable by the
Company in connection with the Offering. See "Use of Proceeds."
(3) Adjustments reflect the recognition of a net deferred tax asset resulting
from the termination of OHE's S Corporation Status. See "Prior S Corporation
Status."
(4) Adjustments reflect the distribution of the AAA Notes to the existing
shareholders of OHE. The amount of the AAA Notes includes an estimate of
taxable income through the anticipated effective date of the Offering. A
June 30, 1996 effective date would have resulted in AAA Notes of
approximately $7.6 million. See "Prior S Corporation Status."
(5) Reflects adjustments to shareholders equity as follows (in thousands):
<TABLE>
<S> <C> <C>
Elimination of certain net liabilities of
Limited................................... $ 46
OHE AAA account distributions............... (9,000)
Recognition of net deferred tax asset....... 883
-------
$(8,071)
=======
</TABLE>
21
<PAGE> 24
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion of results of operations and financial condition
is based upon and should be read in conjunction with the Company's Combined
Financial Statements and Notes thereto, the selected combined financial data and
other financial data appearing elsewhere in this Prospectus.
GENERAL
The Company is a leading provider of security hardware products and
integrated satellite communication systems to commercial and governmental
clients worldwide and is currently pursuing additional opportunities in the
security services area. The Company's primary products include the armoring of
commercial and military vehicles and the integration of satellite communications
hardware and software. In 1996, the Company began offering integrated site
protection security systems and plans to offer security services including
training, guard services, site surveys and security engineering documentation
systems.
In 1995, the Company's net sales were $1.1 million lower than the prior
year due to a six-month delay in the delivery of HMMWV chassis from a supplier
that led to the production of 116 fewer Up-Armored HMMWVs than originally
planned. During this period, it was necessary to maintain manufacturing and
engineering support personnel to ensure production deadlines would be met once
the chassis were delivered. These support costs of approximately $0.6 million
occurred without a corresponding increase in net sales. Also, 1995 operating
expenses included $0.4 million in new selling and marketing expenses relating to
the start-up of the Company's satellite communication business. All these items
contributed to the Company's loss of $1.1 million for 1995.
For the six months ended June 30, 1996, net sales improved to $41.5
million, compared to $12.2 million for the six months ended June 30, 1995. The
primary reason for this growth was a U.S. Military request to accelerate the
production of Up-Armored HMMWVs. U.S. Military net sales for the six months
ended June 30, 1996 were $30.0 million, armored commercial vehicle net sales
were $7.6 million, and net sales of the Company's satellite communications
business (representing the bulk of the Security Systems Integration Group's net
sales) were $3.8 million, compared to $3.5 million, $8.1 million and $0.6
million, respectively, for the corresponding 1995 period. Income before income
taxes for the six months ended June 30, 1996 increased to $4.0 million compared
to a loss of $1.0 million for the six months ended June 30, 1995. In view of the
increased net sales from its acceleration of HMMWV production during the six
months ended June 30, 1996, the Company expects U.S. Military net sales for the
second half of 1996 to be lower than those for the first half. The Company
believes its commercial vehicle armoring and satellite communications businesses
will generate a greater percentage of the Company's future net sales. Increased
net sales are also expected to come from the Security Systems Integration Group
and Security Services Group.
IMPACT ON OPERATIONS
The Company's Combined Financial Statements have been or will be affected
by several factors, including: (i) revenue recognition, (ii) S Corporation
distributions and (iii) taxes on income in connection with the termination of
OHE's S Corporation status.
Revenue recognition. The Company's net sales from government contracts and
most commercial contracts are recognized using the percentage-of-completion
method calculated utilizing the cost-to-cost approach. Under this method,
estimated contract revenues are accrued based generally on the percentage that
costs to date bear to total estimated costs. Estimated contract losses are
recognized in full when determined. Accordingly, contract revenues and total
cost estimates are reviewed and revised periodically as the work progresses and
as change orders are approved, and adjustments based upon the percentage of
completion are reflected in contract revenues in the period when such estimates
are revised. To the extent that these adjustments result in an increase, a
reduction or an elimination of previously reported contract revenues, the
Company would recognize a credit or a charge against current earnings, which
could be material. Contract
22
<PAGE> 25
costs include all direct material and labor costs, along with certain overhead
costs allocated to contract production.
Provisions for any estimated total contract losses on uncompleted contracts
are recorded in the period in which it is concluded that such losses will occur.
Changes in estimated total contract costs will result in revisions to contract
revenue. The revisions are recognized when determined.
Revenue related to telecommunications equipment and services is recognized
as equipment is shipped or as services are provided. Revenue and related direct
costs of brokered satellite time are recorded when payments are received from
customers.
S Corporation distributions. Since OHE elected S Corporation status in
1988, it has made distributions from time to time to its shareholders for the
purpose of funding their income tax payments on the income generated by OHE,
which income is taxable to the shareholders whether or not distributed. In
connection with the Reorganization, OHE is distributing to its shareholders a
dividend of approximately $9.0 million in AAA Notes, which approximates the
value of OHE's AAA account at the time of the Offering. See "Prior S Corporation
Status."
Taxes on income. In 1988, OHE elected to be treated as an S Corporation
under Subchapter S of the Code and comparable provisions of certain state tax
laws, and since then has paid no federal income tax. Prior to the
Reorganization, OHE will terminate its S Corporation status and thereafter the
Company will be responsible for federal and state income taxes.
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, the items noted
as a percentage of net sales for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------ -------------------
1993 1994 1995 1995 1996
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Security hardware products:
Military............................... 28.5% 50.1% 45.6% 28.8% 72.4%
Commercial............................. 67.2 48.6 48.2 66.3 18.4
Security systems integration............. 4.3 1.3 6.2 4.9 9.2
Security services........................ -- -- -- -- --
----- ----- ----- ----- -----
Total net sales........................ 100.0% 100.0% 100.0% 100.0% 100.0%
Cost of sales............................ 69.5 72.3 76.9 76.5 75.6
----- ----- ----- ----- -----
Gross profit........................... 30.5% 27.7% 23.1% 23.5% 24.4%
Operating expenses:
Selling and marketing.................. 9.2 8.1 11.0 11.1 5.2
General and administrative............. 15.1 13.1 12.6 17.1 7.9
----- ----- ----- ----- -----
Operating income (loss).................. 6.2 6.5 (0.5) (4.7) 11.3
Other expense (income):
Interest expense....................... 1.2 1.2 2.6 3.0 1.5
Other, net............................. 0.4 (0.2) 0.3 0.4 0.2
----- ----- ----- ----- -----
Net income (loss)........................ 4.6% 5.5% (3.4)% (8.1)% 9.6%
===== ===== ===== ===== =====
</TABLE>
Six Months Ended June 30, 1996 Compared to Six Months Ended June 30, 1995
Net sales. Net sales for the six months ended June 30, 1996 were $41.5
million, an increase of $29.4 million or 241.4% compared to $12.2 million for
the six months ended June 30, 1995. The increase in net sales was primarily due
to an increase in costs incurred related to vehicles under the Up-Armored HMMWV
program. Net sales of military armoring products for the six months ended June
30, 1996 were $30.0 million,
23
<PAGE> 26
an increase of $26.5 million or 757.3%, compared to $3.5 million for the six
months ended June 30, 1995. Net sales of commercial armoring products for the
six months ended June 30, 1996 were $7.6 million, a decrease of $0.4 million or
5.3%, compared to $8.1 million for the six months ended June 30, 1995. Net sales
of the satellite communications business for the six months ended June 30, 1996
were $3.8 million, an increase of $3.2 million or 548.5%, compared to $0.6
million for the six months ended June 30, 1995.
Cost of sales. Cost of sales for the six months ended June 30, 1996 was
$31.4 million, an increase of $22.1 million or 237.2% compared to $9.3 million
for the six months ended June 30, 1995. The increase in cost of sales was due to
the increase in production levels.
Selling and marketing. Selling and marketing expenses for the six months
ended June 30, 1996 were $2.2 million, an increase of $0.8 million or 59.6%,
compared to $1.4 million for the six months ended June 30, 1995. This increase
was primarily attributable to expenses associated with increases in personnel
and advertising to implement the Company's business strategy.
General and administrative. General and administrative expenses for the
six months ended June 30, 1996 were $3.3 million, an increase of $1.2 million or
58.1%, compared to $2.1 million for the six months ended June 30, 1995. This
increase in administrative expenses was due to the addition of professional
employees to support the increased level of business activity.
Interest expense. Interest expense for the six months ended June 30, 1996
was $0.6 million, an increase of $0.2 million or 67.5%, compared to $0.4 million
for the six months ended June 30, 1995. This increase in interest expense was
due to increased borrowings to finance increased production levels.
1995 Compared to 1994
Net sales. Net sales were $32.8 million for 1995, a decrease of $1.1
million or 3.2%, compared to $33.9 million for 1994. The decrease in net sales
was primarily due to the late delivery of HMMWV chassis by a supplier which
resulted in a six-month delay in the armoring of HMMWVs for the Department of
Defense. Such delay was principally responsible for a decrease in net sales of
military armoring products to $15.0 million for 1995, a decrease of $2.0 million
or 12.0%, compared to $17.0 million for 1994. Net sales of commercial armoring
products were $15.8 million for 1995, a decrease of $0.7 million or 4.0%,
compared to $16.5 million for 1994. Net sales of the satellite communications
business were $2.0 million, an increase of $1.6 million or 358.3%, compared to
$0.4 million for 1994.
Cost of sales. Cost of sales was $25.2 million for 1995, an increase of
$0.7 million or 3.0%, compared to $24.5 million for 1994. The increase in cost
of sales was primarily due to the absorption of manufacturing and material
overhead associated with the six-month delay in the armoring of the HMMWVs for
the Department of Defense. Since production was expected to return to
anticipated levels once the delay period ended, the Company retained its
manufacturing personnel and did not temporarily reduce its head count. As a
result of this delay and the increased percentage of sales associated with
military sales, which have a lower gross profit margin than commercial sales,
cost of sales as a percentage of net sales increased to 76.9% for 1995 from
72.3% for 1994. In addition, engineering expenses for OHE increased
approximately $0.5 million to $1.1 million as a result of the additional
engineering requirements for the HMMWV contract.
Selling and marketing. Selling and marketing expenses were $3.6 million
for 1995, an increase of $0.9 million or 32.6%, compared to $2.7 million for
1994. This increase was primarily attributable to increased sales personnel and
travel expenses that were incurred to support OSN's growth.
General and administrative. General and administrative expenses were $4.1
million for 1995, a decrease of $0.3 million or 7.0%, compared to $4.4 million
for 1994. Increases in personnel costs were offset by lower travel and insurance
costs.
24
<PAGE> 27
Interest expense. Interest expense was $0.8 million for 1995, an increase
of $0.4 million or 105.4%, compared to $0.4 million for 1994. This increase in
interest expense was due to additional borrowings to finance working capital
growth and the HMMWV contract.
1994 Compared to 1993
Net sales. Net sales were $33.9 million for 1994, an increase of $12.9
million or 61.1%, compared to $21.1 million for 1993. The increase in net sales
was due to costs incurred relating to additional HMMWV production. Net sales of
military armoring products were $17.0 million for 1994, an increase of $11.0
million or 183.7%, compared to $6.0 million for 1993. Net sales of commercial
armoring products were $16.5 million for 1994, an increase of $2.3 million or
16.4%, compared to $14.2 million for 1993. Net sales of the satellite
communications business were $0.4 million for 1994, a decrease of $0.5 million
or 51.2%, compared to $0.9 million for 1993.
Cost of sales. Cost of sales was $24.5 million for 1994, an increase of
$9.9 million or 67.4%, compared to $14.6 million for 1993. This increase was due
to costs incurred relating to additional HMMWV production. Cost of sales as a
percentage of net sales increased to 72.3% for 1994 from 69.5% for 1993 due to
the increased percentage of sales associated with military sales, which have a
lower gross profit margin than commercial sales.
Selling and marketing. Selling and marketing expenses were $2.7 million
for 1994, an increase of $0.8 million or 41.6%, compared to $1.9 million for
1993. This increase was primarily attributable to increased personnel and travel
and promotion expenses.
General and administrative. General and administrative expenses were $4.4
million for 1994, an increase of $1.2 million or 40.1%, compared to $3.2 million
for 1993. This increase in general and administrative expenses was primarily due
to additional personnel to support the higher level of business activity and
increased travel related leasing expenses.
Interest expense. Interest expense was $0.4 million for 1994, an increase
of $0.1 million or 52.4%, compared to $0.3 million for 1993. This increase
resulted from the increase in interest rates for 1994 over 1993.
LIQUIDITY AND CAPITAL RESOURCES
General. The Company's principal sources of liquidity are internally
generated funds and credit arrangements. The Company plans to repay a
significant portion of its existing bank debt with proceeds from the Offering.
Existing credit agreements. The Company is party to various credit
arrangements aggregating $16.5 million principally with The Fifth Third Bank.
The Company currently has a $12.0 million revolving credit loan that matures
November 1, 1996 and a $4.0 million facility that matures on February 14, 1997.
Outstanding borrowings under these credit arrangements were approximately $13.6
million as of June 30, 1996 and $15.1 million as of August 27, 1996. These
credit arrangements bear interest at the prime rate, which was 8.25% at June 30,
1996, on the first $12.5 million in borrowings and 1% in excess of the prime
rate on borrowings in excess of $12.5 million. The remaining $0.5 million credit
arrangement is with a Brazilian bank to support the Company's Brazilian
subsidiary.
New credit agreement. The Company expects to enter into a new credit
agreement to replace the existing credit arrangements with The Fifth Third Bank.
The new credit agreement will provide the Company with a $ million,
year, unsecured revolving credit facility together with an $ million letter
of credit facility that will provide the Company with significantly more
favorable terms and conditions than the existing credit arrangements. The new
credit agreement will contain certain financial covenants. The new credit
agreement will not be guaranteed by any of the Company's shareholders. The
Company expects that the
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<PAGE> 28
net proceeds of the Offering, together with the new credit agreement, will be
sufficient to fund the Company's operations (without giving effect to additional
acquisitions) for at least the next 12 months.
Cash flows from operating activities. Net cash used in operating
activities was $2.3 million and $4.0 million for the years ended December 31,
1994 and 1995, respectively, and $0.9 million and $1.2 million for the six
months ended June 30, 1995 and 1996, respectively. In each period, except for
the six months ended June 30, 1995, the Company experienced a significant
aggregate net increase in receivables, vendor advances, costs in excess of
billings and inventories. These working capital requirements related to
increased production and sales in 1994 and for the first six months of 1996 and,
in 1995, a $3.4 million increase in advances to vendors.
Capital expenditures. Historically, the Company has limited its capital
expenditure requirements by leasing facilities and equipment from affiliated
entities. See "Certain Relationships and Related Party Transactions." Capital
expenditures totaled $0.8 million in the six months ended June 30, 1996, $0.6
million in 1995, $0.7 million in 1994 and $0.6 million in 1993. The Company
anticipates capital expenditures will total approximately $2.7 million in 1996,
including $1.2 million to purchase its leased Mexico City manufacturing
facility.
Cash flows from financing activities. Net cash provided by financing
activities of $3.6 million and $4.6 million for the years ended December 31,
1995 and 1996, respectively, and $0.8 million and $3.1 million for the six
months ended June 30, 1995 and 1996, respectively, was primarily from net
increases in borrowings under the Company's revolving lines of credit.
S Corporation distributions. OHE elected S Corporation status in 1988 and
has made distributions to its shareholders for the purpose of paying taxes on
income generated by OHE which is taxable to the shareholders. Upon the
Reorganization, OHE will terminate its S Corporation status and distribute to
its shareholders a dividend of approximately $9.0 million in AAA Notes, which
approximates the balance of OHE's AAA account. These AAA Notes will be paid with
a portion of the proceeds of this Offering. See "Prior S Corporation Status."
Foreign operations. The Company attempts to mitigate the risks of doing
business in developing countries by separately incorporating its operations in
certain such countries; having local partners in certain countries; entering
into contracts providing for payment in U.S. dollars instead of the local
currency where possible; maintaining reserves for credit losses; and maintaining
insurance on equipment to protect against losses related to political risks and
terrorism.
Backlog. The Company's backlog at December 31, 1995 and June 30, 1996 was
approximately $42.0 million and $39.0 million, respectively. Backlog consists of
net sales value for firm orders not previously included in net sales on the
basis of percentage of completion accounting. Because many factors affect the
conclusion of definitive agreements for contracts awarded and the production and
delivery of the Company's products, no assurance can be given as to whether or
when net sales will be recognized from the Company's backlog. Year-to-year
comparisons of backlog are not necessarily indicative of future operating
results.
Quarterly fluctuations. The Company's operations are not seasonal, but may
fluctuate on a quarterly basis as a result of the timing of contract costs. The
incurrence of contract costs and related production scheduling must be
responsive to specific customer delivery requirements which may involve the
acceleration of deliveries under a contract at a customer's request due to the
customer's urgent needs, such as occurred with the HMMWV contract in 1996. The
Company's liquidity may be affected by the payment terms of its U.S. Military
and certain foreign government contracts.
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<PAGE> 29
INDUSTRY OVERVIEW
The Company's products and services are offered in two distinct areas of
the global security industry: (i) the market for add-on ("applique") armoring
systems for military vehicles and (ii) the commercial security market.
MILITARY MARKET OVERVIEW
The military market for vehicle armoring systems historically has focused
on providing opaque and transparent armor for heavy tracked vehicles such as
tanks and armored personnel carriers and for other weaponry such as helicopters
and missile systems. Recently, the market for ballistic and blast protected
armoring systems has experienced significant growth largely due to the changing
nature of military conflicts and shrinking military budgets. These changes have
led to an increased threat to wheeled vehicles used in their traditional roles
and the broadening of the use of wheeled vehicles into traditional combat roles.
The expanded use of more versatile tactical wheeled vehicles ("TWVs"), such as
the HMMWV, the Heavy Expanded Multipurpose Tactical Truck ("HEMTT") and the
Palletized Loading System ("PLS"), in the late 1980s and 1990s, have provided
the basis of a fleet of TWVs which will require significantly greater add-on
armoring protection.
Military conflicts increasingly require rapidly deployable forces and
equipment which are light, highly mobile and protected. For example, over the
past few years the U.S. Military and the United Nations have dispatched
peacekeeping forces to troubled situations in Bosnia, Somalia and Haiti. In
these conflicts, there are no defined "front lines," and engagements can arise
from all sides at any time. In addition, the nature of these conflicts, and in
particular the indiscriminate use of landmines of both the antipersonnel and
antitank type, have emphasized the risk from blast effects in addition to
ballistic weapons. Thus, the use of TWVs, which had historically operated behind
friendly lines with little need for armored protection, now requires integrated
armoring systems which protect against ballistic and blast effects to limit the
risks to their occupants. Armored TWVs, such as the Up-Armored HMMWV, have
played a crucial role in limiting risks to personnel and to limiting casualties
during such high risk military operations. Also, in these conflicts, the United
Nations traditionally has desired not to be perceived as an aggressor force and,
accordingly, has asked participating armed forces not to utilize heavy armored
vehicles. This has required highly protected "non-aggressive" vehicles for
peacekeeping operations worldwide. As a result of these developments, the market
for armoring systems for TWVs is increasing worldwide.
Growth in the use of armored TWVs has also been driven by worldwide cuts in
military budgets. For example, the U.S. Military is focusing its efforts on
reducing the use of expensive, fully armored tracked vehicles, such as the M1A1
tank and the Bradley armored personnel carrier, in favor of less expensive
(lower initial and operational cost), light armored wheeled vehicles. The
Tactical Vehicle Modernization Plan prepared last year by the U.S. Army's
Program Executive Officer for Tactical Wheeled Vehicles for the Army Acquisition
Executive presented several scenarios for procurement of TWVs. The report
concluded that to maintain modernization of the fleet will require an investment
of $650 million annually. Up-Armored HMMWVs and kits for HMMWVs and other TWVs
are an integral part of this strategy. The continuing commitment to armor TWVs
is represented in the formal requirements document currently at DoD for
approval. This document establishes the performance requirements and guidelines
for application for the armor kits for TWVs.
Because of growing cooperation and standardization between U.S. and other
international armed forces, the Company expects international demand for
armoring systems for U.S. models of TWVs to rise and for foreign armed forces to
constitute a growing sector of the military market. There are currently over
130,000 HMMWVs operating with armies around the world and, therefore, a
significant natural market for both new up-armored TWVs and retrofit armored
kits is in place. Mexico, Saudi Arabia, Kuwait, the United Arab Emirates, Taiwan
and Thailand all currently rely upon the HMMWV as a primary light TWV. These
nations, and others with less reliance on the HMMWV, are facing the same trends
and share many of the same needs as the U.S. Military. As documented by the
number of vehicles and level of interest demonstrated at the
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<PAGE> 30
EuroSatory land defense exhibition in Paris, armored light TWVs are growing in
importance for modern armies charged with peacekeeping and urban operations.
The market for medium and heavy TWVs with armoring systems is currently
less well developed. However, because modern militaries desire to operate heavy
TWVs independent of armored escort, U.S. and foreign militaries are currently
developing programs to acquire armored medium and heavy TWVs. Some contracts
call for retrofitting existing fleets with armor and blast protection packages,
while others require all new vehicle designs and armoring systems.
Other U.S. Military weapons systems, such as the Multiple Launch Rocket
System ("MLRS"), rely on armoring systems to protect vulnerable high technology
equipment. DoD expects the MLRS system to be deployed in the field until the
year 2025. Advanced armoring systems will be required to protect more highly
evolved and expensive systems. The success of the MLRS in Desert Storm has
increased interest in that system from friendly armed forces. Military armoring
systems are also required to protect aircraft and helicopters.
COMMERCIAL MARKET OVERVIEW
The private security industry, broadly defined, is comprised of thousands
of companies providing a broad variety of products and services, locally,
regionally, nationally, and in some cases worldwide. These products and services
are offered by private investigators, security guard companies, home alarm
monitoring companies, and armored commercial vehicle manufacturers, among many
other security related businesses (see table below). The Freedonia Group, Inc.,
an independent research organization, estimates that the U.S. private security
market had revenues of approximately $24.8 billion in 1994, and expects this
number to increase to $39.0 billion by the year 2000. Internationally, the
market for security equipment alone is estimated at $25.9 billion and is
expected to grow to $43.9 billion by the year 2000. To date, the Company has
concentrated its efforts in the vehicle armoring area of the private security
industry. No statistical data is available with regard to the size of this area
due to its highly fragmented nature and the lack of any relevant industry trade
groups.
SELECTED SECURITY PRODUCTS AND SERVICES
---------------------------------------
<TABLE>
<S> <C> <C>
Airport/Aircraft Security Support Driver Training Locksmiths
Armored Vehicles Drug Testing Private Investigators
Alarms Hardware/Monitoring Eavesdropping Detection Publishing/Market Research
Background Checks Executive/VIP Protection Security Storage
Consultants/Security Engineers Guard Dogs Security Agent Training
Contract Guards Hostage Negotiations Truth/Honesty Verification
Couriers (Security) Identification Badges Uniform Rentals
</TABLE>
Over the past 20 years, the proliferation of advanced weaponry, related
technologies and information has empowered the criminal element with the ability
to penetrate, steal, damage or destroy previously protected assets and
individuals. In the United States, for example, bombings have now replaced
murders as the fastest growing category of violent crime. Internationally, crime
rates have risen dramatically as greater affluence and social tensions in
developing nations have ignited violent criminal activity. For example,
according to Penn Associates, a leading security intelligence firm, murders have
doubled in Sao Paulo, Brazil to over 7,500 per year, and in the former Soviet
Union, several newly independent states have experienced crime rates which have
risen over 300% in the last three years. Worldwide, governments, organizations,
businesses and individuals are concerned about rapidly growing threats from (i)
terrorism, (ii) kidnapping, (iii) random acts of violence, (iv) urban
unrest/crime, and (v) crimes against business.
Terrorism. According to statistics compiled by the U.S. State Department,
individual acts of international terrorism grew 37% from 322 separate violent
incidents in 1994 to 440 in 1995. These acts included armed attacks, arson,
bombings, chemical attacks, firebombings, kidnapping and vandalism. Of these
terrorist attacks, 62% occurred in Europe, 21% in Latin America, and 10% in the
Middle East. Terrorist acts against businesses represented 332 or 75% of these
incidents in 1995, up from 127 or 39% in 1994, underscoring the
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<PAGE> 31
need for multinational businesses to protect themselves and their employees from
these calculated assaults. Governments and organizations worldwide have also
increased security focus at public buildings during major sporting and cultural
events and at train stations and airports. Demand is increasing for
sophisticated event security and integrated building/complex security systems
comprised of people, technology, and hardware products to combat the threat of
terrorism.
Kidnapping. Kidnappings for ransom have been on the rise over the past few
years and, increasingly, the targets are local and foreign business executives.
According to Kroll Associates, Inc., an independent security research firm,
Latin America continues to report the highest number of these abductions per
year with approximately 6,500 incidents reported in 1995, including 3,600
incidents in Colombia and 1,450 in Mexico, while the Middle East/Africa, Asia
Pacific, Europe, and North America/Puerto Rico reported 375, 235, 160, and 50
kidnapping incidents, respectively in 1995. In many countries, traditional
patterns of weak, inefficient and corrupt law enforcement and a significant
disparity in wealth distribution have motivated a surge in abductions as well as
underscoring the need for private security.
Random acts of violence, urban unrest and crime. Individuals are
increasingly seeking cost effective ways to insulate themselves from violent
threats while inside and away from their homes. These threats have been
heightened by the proliferation of firearms (for example, 30 U.S. states now
permit the carrying of concealed weapons) that has increased the presence of and
access to weaponry in public places. In addition, bombings in the U.S. have
increased dramatically. For example, non-incendiary bombings in the U.S. grew
55% from 1,573 in 1990 to 2,438 in 1994, according to the U.S. Bureau of
Alcohol, Tobacco and Firearms. Also, urban crime and gang activities have
increased the number of drive-by shootings, carjackings, bombings and
drug-related violence. Worldwide, political, economic, and social changes
resulting in the disenfranchisement of lower socio-economic groups and
organizations have led organized crime groups and criminal enterprises to expand
their numbers and ranges of activities.
Crimes against business. An increasing spectrum of risks for corporations
has emerged such as breaking and entering, theft, unauthorized computer access,
computer fraud, illegal wiretaps, telecommunications monitoring, hostage-taking,
money laundering, industrial espionage, vandalism and terrorism. These risks
have created new challenges for corporate security managers worldwide. As
multinational corporations establish offices and manufacturing facilities in
foreign and developing countries, this diversity of threats not previously
experienced requires corporate security managers to evaluate comprehensive
security programs for both their physical plants and corporate executives.
To respond to these threats, the number of security related firms has grown
and the range of advanced and highly engineered security products and support
services offered has increased as well. The technological sophistication of
security equipment has improved by utilizing advanced materials,
state-of-the-art technologies, engineering design techniques and better
production methods. Security companies have been able to develop stronger,
smaller and lighter protective products that can be sold separately or
integrated into commercial products commonly available today (such as
bulletproof vests, protective glass and home and auto security systems). In
addition, the prices for many hardware products have declined making certain
products more accessible to the broader commercial and public sectors. On the
service side, in addition to the major guard and other special security service
companies, a growing network of security professionals formerly affiliated with
government security forces have formed their own private companies advising
heads of state, corporations, organizations, and individuals on integrated
security hardware and service offerings. Overall, these products and services
will continue to be demanded by governments, organizations, corporations and
individuals seeking to protect their assets from the growing threats posed
worldwide.
29
<PAGE> 32
BUSINESS
The Company is a leading provider of fully integrated ballistic and blast
protected vehicle armoring systems for military, commercial and governmental
clients worldwide. Through OHE, the Company currently is the primary provider of
armoring systems for HMMWVs used by the U.S. Military and other armed forces
worldwide. OHE also provides armored commercial vehicles for heads of state,
business executives and VIPs worldwide, including presidential limousines used
by every U.S. President since 1948. Through OSN, the Company provides vital
communications systems for its clients by integrating proprietary hardware and
smart card billing software that operate on the Inmarsat network. In addition,
the Company offers customized turn-key site security systems to international
customers.
Originally founded in 1876 as Sayers & Scovil, a manufacturer of
horse-drawn carriages, the Company evolved into a producer of specialized motor
vehicles. By the early 1900s, the Company changed its ownership and name to Hess
& Eisenhardt and focused on the development and construction of a broad range of
specialized consumer and commercial vehicles such as ambulances and hearses. In
the 1940s, the Company was commissioned by the U.S. Secret Service to design and
assemble the first armored presidential limousine, which was used by President
Harry S. Truman. In 1982, this business was acquired by certain members of the
O'Gara family, was subsequently renamed, and has focused on producing armored
vehicles for commercial and governmental clients around the world. In 1993, the
Company was awarded its first contract to up-armor the HMMWV for the U.S.
Military.
The Company's business today is increasingly being driven by the needs of
(i) worldwide military organizations to field a more versatile armored vehicle,
such as the HMMWV; (ii) governments to protect heads of state and diplomats from
terrorist attacks; (iii) multinational corporations to protect executives,
corporate assets and information in high risk countries; (iv) wealthy
individuals to secure themselves and their families from the growing threat of
kidnappings worldwide; (v) individuals to insulate themselves and their property
from planned criminal activity and random acts of violence; and (vi)
individuals, corporations and governments to obtain secure, remote or
independent telecommunications services.
To capitalize on these trends, the Company has realigned its activities
along three business lines: security hardware products, security systems
integration and security services. The Security Hardware Products Group
currently markets all of the Company's armoring products, including fully
integrated ballistic and blast protected armored military and commercial
vehicles, aircraft and missile container armor, and field installed armoring
systems. The Security Systems Integration Group offers planning, design, and
hardware and software integration services which are customized to meet specific
satellite communications or site protection needs of customers. The Security
Services Group intends to offer security-related services such as security
background clearances, business intelligence, country risk assessments,
airport/aircraft security support, and private security agent and driver
training. The Company believes that its strong name recognition, reputation and
experience, combined with its design, engineering and production expertise, as
well as its network of affiliations in the security industry will enable it to
market successfully a broader array of security products and services worldwide.
SECURITY METHODOLOGY
In essence, security involves the protection of an asset. That asset may be
human or material, tangible or intangible. The Company's strategy for business
growth is based upon a methodology for asset protection,
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<PAGE> 33
known as the "Concentric Circles of Protection." This methodology integrates
intelligence, access control and protective hardware, as shown in the following
diagram:
CONCENTRIC CIRCLES OF PROTECTION
[GRAPHIC]
Intelligence seeks to obtain prior warning of a possible attack to the
protected asset. Access Control seeks to limit the ability of an attacker to
strike. Protective Hardware seeks to defeat an attack once made. Communications
coordinates each of these elements. Thus, the Company's business groups are
organized to address each circle of protection, by providing the requisite
product and services necessary to meet the needs of the Concentric Circles of
Protection methodology.
BUSINESS STRATEGY
The principal elements of the Company's operating and growth strategy are
as follows:
Expand armored commercial vehicle sales in foreign markets. The Company
intends to expand its foreign market position as a leading provider of armored
commercial vehicles by leveraging its well recognized name, high quality
reputation and global network of customer relationships. To support this effort,
the Company has established manufacturing operations in Mexico, Brazil and
Russia, has increased its sales and marketing personnel from four at October
1985 to 17 at present and has increased its annual marketing budget from $0.7
million in 1995 to $1.8 million in 1996. The Company believes that these
efforts, coupled with the strong demand in these countries for armored
commercial vehicles, will enable it to penetrate effectively these markets. In
the future, the Company intends to establish manufacturing operations in
additional countries as it deems appropriate.
Expand foreign military sales. As the nature of armed conflicts changes and
worldwide military budgets are cut, the Company believes that expensive heavily
armored tracked vehicles will continue to be replaced by more versatile and less
expensive tactical wheeled vehicles ("TWVs"), such as the HMMWV. The Company
markets both factory assembled, fully armored ("Up-Armored") HMMWVs and armor
kits which may be added in the field to certain existing HMMWVs. There currently
exists an installed base of 130,000 HMMWVs, including 18,400 owned by 31 foreign
countries. The Company estimates that approximately 12,000 of the HMMWVs in use
worldwide are suitable for its armor kits and believes a significant opportunity
exists to market aggressively these kits, internationally as well as
domestically. The Company also believes that those countries currently utilizing
HMMWVs are candidates for future sales of the Up-Armored HMMWV. For example, the
Company recently entered into contracts to provide Up-Armored HMMWVs to two
foreign countries, Luxembourg and Qatar.
Grow non-armoring security-related businesses. The Company's Security
Systems Integration Group intends to build upon its rapidly growing satellite
communications business and the physical site protection services it currently
offers in Russia by offering a broader array of products and services to
existing hardware customers and to buyers in new geographic markets. In
addition, the Company's Security Services Group intends to offer, either
directly or through subcontractors, additional security-related services such as
security
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<PAGE> 34
background clearances, business intelligence, country risk assessments,
airport/aircraft security support, and private security agent and driver
training. The Company is adding Mr. William S. Sessions, the former Director of
the Federal Bureau of Investigation, as a director, and Mr. Hugh E. Price, the
former Deputy Director for Operations of the Central Intelligence Agency, as
President, Security Services Group and as a director. The Company believes the
addition of these individuals to its management team, along with their
reputation, experience and network of relationships, will enhance the Company's
ability to market these services worldwide.
Standardize production to improve efficiencies and reduce throughput
time. Since 1994 the Company has committed approximately $3.1 million to
engineering, tooling, and training to standardize its product design, armoring
components, and assembly line operations. Through the application of these
techniques, the number of employee work hours needed to produce the Up-Armored
HMMWV has been reduced from 465 to 265, and the number of components involved
from 800 to 550. These techniques are now being applied by the Company to the
production of certain commercial products, the first being the Standard
Suburban. Employee work hours required to armor the Standard Suburban have been
reduced from 1,200 to 650, and the number of components involved from 350 to
200. The Company is currently working to standardize its process of armoring a
passenger sedan. As a result of these efficiencies, the Company believes it will
be better able to provide immediate delivery of its armored commercial vehicles,
which will increase substantially their attractiveness and marketability in the
U.S. as well as abroad.
Pursue strategic acquisition opportunities. The fragmented nature of the
global security industry provides ample opportunities for strategic
acquisitions. The Company believes it is positioned to consolidate companies in
the armoring, systems integration, security services, engineering and secured
satellite communications sectors of the industry. On August 15, 1996, the
Company entered into an agreement in principle to acquire Palmer Associates,
S.C., a provider of security services, such as driver training, background
investigation and due diligence reports, in Mexico City, Mexico, for cash
consideration of approximately $1.0 million, payable over two years. The Company
continues to review additional acquisition opportunities in each of these
sectors.
RELATED GROWTH OPPORTUNITIES
Longer term, the Company believes that substantial opportunities for
additional growth exist in the following areas:
Automotive consumer safety market. The Company has the rights of
representation in the United States, Canada, Mexico and Brazil for International
Electronics Engineering ("IEE"), a Luxembourg company which produces Passenger
Presence Detection sensors for the automotive industry. These sensors prevent
automotive airbags from inflating when an infant is in the front seat. The U.S.
National Highway Traffic Safety Administration has proposed new rules requiring
automakers to install airbag on/off switches and warning labels on car
dashboards until a "smart" system is installed which can disengage automatically
the airbag mechanism. The Company believes that IEE has the only such sensor
system which is currently in commercial production. The Company plans to enter
the U.S. automotive consumer safety market with this product in the near future
and subsequently pursue other markets for that and related products. The Company
also intends to evaluate the cost effectiveness of potential market
opportunities for introducing other consumer-oriented automotive safety
products.
U.S. protected private passenger vehicle market. To date, the Company has
not targeted the private protected passenger vehicle market in the United
States. The Company believes that the level of violence, particularly random
bombings, drive-by shootings and carjackings, within the United States will lead
to greater demand for commercially available protected automobiles. The Company
feels that it is well suited to capitalize on this demand by offering a locally
installed protection package or kit, which may consist of anti-intrusion glass
or transparent armor, run flat tires, inside/outside intercoms or special door
lock devices. To penetrate this market, the Company will need to develop an
extensive sales, marketing, distribution and dealer installation network which
will permit it to generate volumes sufficient to allow the offering of its
products at prices attractive to potential customers.
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PRODUCTS AND SERVICES
The following table presents the net sales of the Company's principal
products and services for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------- -------------------
1993 1994 1995 1995 1996
------- ------- ------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Security Hardware Products Group......... $20,141 $33,466 $30,773 $11,570 $37,682
Security Systems Integration Group....... 913 446 2,044 592 3,839
Security Services Group.................. -- -- -- -- --
------- ------- ------- ------- -------
Total.......................... $21,054 $33,912 $32,817 $12,162 $41,521
======= ======= ======= ======= =======
</TABLE>
The Company's products and services are, or will be, focused on three
primary areas of global security. The Security Hardware Products Group markets
all the Company's armoring products, including fully integrated ballistic and
blast protected armoring systems for military vehicles, aircraft and missile
armor, field-installed armoring systems, and armored commercial vehicles. The
Security Systems Integration Group offers satellite communications systems and
site specific security systems in which hardware and software are integrated to
meet a customer's specific requirements. The Security Services Group, which is a
start-up operation, is designed to offer security-related services such as
security background clearances, business intelligence, country risk assessments,
airport/aircraft security support, and private security agent and driver
training. On August 15, 1996 the Company entered into an agreement in principle
to acquire Palmer Associates, S.C., a provider of security services, such as
driver training, background investigations and due diligence reports, in Mexico
City, Mexico. The acquisition is expected to close before the end of 1996.
Security Hardware Products Group
The following table provides net sales information about the products and
services of the Company's Security Hardware Products Group:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------- -------------------
1993 1994 1995 1995 1996
------- ------- ------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
MILITARY PRODUCTS:
Up-Armored HMMWVs...................... $ 2,803 $15,222 $13,275 $ 2,961 $23,544
HMMWV Armor Kits....................... -- -- -- -- 5,599
Other Armor Systems.................... 3,188 1,772 1,680 544 905
------- ------- ------- ------- -------
5,991 16,994 14,955 3,505 30,048
ARMORED COMMERCIAL PRODUCTS:
Fully Armored Vehicles................. 11,572 11,265 11,024 5,598 4,842
Light Armored Vehicles 1,441 2,953 2,213 1,339 2,253
Other.................................. 1,137 2,254 2,581 1,128 539
------- ------- ------- ------- -------
14,150 16,472 15,818 8,065 7,634
------- ------- ------- ------- -------
Total.......................... $20,141 $33,466 $30,773 $11,570 $37,682
======= ======= ======= ======= =======
</TABLE>
Military Products
Up-Armored HMMWVs. The Company is the prime contractor to the U.S.
Military for the supply of Up-Armored HMMWVs. The basic four door HMMWV chassis
are produced by AM General and shipped directly to the Company's facility where
perimeter armor and blast protection components are added. These Up-Armored
HMMWVs provide perimeter protection against 7.62 mm armor-piercing ammunition
(such as that fired by the AK-47 military assault rifle), overhead airburst
protection against a 155 mm shell, front underbody blast protection against a 12
lb. anti-tank mine, and rear underbody blast protection against a 4 lb.
anti-personnel mine. In addition, the Company installs other features designed
to enhance crew safety,
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<PAGE> 36
comfort and performance, such as air conditioning, weapon turrets and mounts,
door locks and shock-absorbing seats. The customers for this product are the
U.S. Military as well as defense and peacekeeping forces around the world. The
Company charges its customers $85,000 to $100,000 for these ballistic and blast
protective systems, which is in addition to the cost of the vehicle. In addition
to the products described above, the Company supplies engineering design and
prototype services to the U.S. Army Tank Automotive Command primarily in support
of the Up-Armored HMMWV Program. The Company also supplies spare parts and
logistics support for all of its military programs.
HMMWV armor kits. The Company supplies field-installable armoring kits to
the U.S. Military. These kits are installable on HMMWVs which are currently in
the U.S. Military inventory as well as new HMMWV chassis that are delivered to
the Company's manufacturing facilities. Two kits are available. The two door
armor kit provides perimeter protection against 7.62 mm ball ammunition and
underbody blast protection against a 12 lb. anti-tank mine. The four door armor
kit provides the same perimeter and front underbody protection but adds rear
underbody blast protection against a 4 lb. antipersonnel mine. Potential
customers for this product are current owners of non-armored HMMWVs, which
include the U.S. Military as well as defense and peacekeeping forces around the
world. At present, over 130,000 HMMWVs have been sold worldwide, and the Company
estimates that approximately 12,000 of these HMMWVs may be suitable for kit
installation. These kits sell for $18,000 to $30,000, without installation.
Other armor systems. The Company markets armor sub-systems for certain
U.S. Military tracked vehicles, such as the M9ACE earth mover, and other TWVs
such as 2.5 ton and 5.0 ton trucks, for which the defined threat is from small
arms rounds, typically defined as 12.7 mm and less. The Company also produces
various armor systems as a subcontractor to larger defense contractors, such as
Lockheed Martin Corporation ("Lockheed Martin") and The Boeing Company. These
products include armor for containers for fuels and missile launchers, and for
pilot protection, and typically involve the use of materials or methods which
are unique to the Company.
Commercial Products
Fully armored vehicles (FAVs). The base vehicle that is converted into a
FAV may be a limousine, a large size sedan (such as a Cadillac or Mercedes Benz
S600), or a sport utility vehicle (such as the Standard Suburban) which is
purchased new from a dealership or directly from the factory. The armoring
process begins with disassembly of the new vehicle at the Company's production
facilities. This typically involves the removal of the interior trim, the seats,
the doors and all windows. The passenger compartment is then armored with both
opaque armor (metallic, fibrous and ceramic materials) and transparent armor
(glass/plastic laminate) and other features, such as run flat tires, are added.
Finally, the vehicle is reassembled as close to its original appearance as
possible. The designation of FAV normally connotes the ability of the completed
vehicle to protect against attacks from military assault rifles such as AK-47s
and M16s and from certain underbody explosives. Certain FAVs also are blast
protected. A blast-protected vehicle normally incorporates the ballistic and
underbody protection of an FAV but with proprietary materials and installation
methods that enable the vehicle occupants to survive a defined blast threat.
Typical types of protection defend against pipe bombs attached to the exterior
of the vehicle and non-directional charges of 20 kg of TNT detonated
approximately five meters from the vehicle. FAV armoring normally sells for
$50,000 to $200,000 in addition to the cost of the vehicle.
The FAV class of vehicle includes the Parade Car, a formal limousine used
predominately for high level, official functions by a president or other head of
state. This vehicle is usually of customized design based upon a commercially
available chassis which the Company essentially rebuilds from the ground up.
Since the threat of organized assassination attempts is greater for heads of
state, these vehicles normally incorporate more advanced armor and sophisticated
protection systems. In addition to the more protective opaque and transparent
armor systems, special features may include supplemental oxygen systems, air
purification systems to protect against chemical or biological contamination,
underbody fire suppressant systems, tear gas launchers, anti-explosive
self-sealing fuel tanks, electric deadbolt door locks, gun ports and
remote-starters with bomb scanning capability. Parade Cars normally sell for
$300,000 to in excess of $1.0 million, which includes the cost of the base
vehicle.
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Light armored vehicles (LAVs). The armoring process for an LAV is similar
in all respects to that for an FAV except that the base vehicle is typically a
sedan or sport utility vehicle and substantially less total weight of armoring
is added. Typical base vehicles include the Volkswagon Jetta, the General Motors
Omega, the Mercedes Benz S600 and the Jeep Cherokee. The designation of LAV
connotes the ability of the completed vehicle to protect against attacks from
handguns, such as a 9 mm or .357 Magnum. The price of LAV armoring ranges from
$5,000 to $60,000 in addition to the cost of the vehicle.
Other. Other commercial products include specialty vehicles which are
custom built for a specific mission. Vehicle types that fall into this category
are Escort Cars (usually a convertible) and Chase Cars (usually a closed-top
vehicle) in which security personnel ride while in a head of state motorcade.
Also included in this business line are armor kits, normally designed for a
specific vehicle to be installed at a location outside of the Company's main
production facilities in Fairfield, Ohio or Torino, Italy. These armor kits
usually provide LAV levels of protection. The Company also provides technical
support, training and spare parts for all of its manufactured products. The
Company can service a customer's vehicle in any of the Company's facilities. In
certain instances, the Company will fly its technicians to the customer's
location.
Security Systems Integration Group
Satellite communication integration. The Company offers comprehensive
design and hardware and software integration services customized to meet
specific satellite communication requirements of its customers. This involves
the integration of portable satellite terminals, mobile antennas and
software-based air time. Usually these systems are designed for remote or
security intensive operations.
The portable satellite terminals, which are manufactured by third party
suppliers to Company specifications, allow the user to make voice and data
transmissions via satellite link anywhere in the world. Most terminal sales
consist of the Company's latest product manufactured by Glocom, which are
marketed for the Company by Magellan Systems Corporation under the microCOM-M
name and marketed by the Company directly under the Compact-M brand name. This
new terminal is the smallest product model currently available commercially and
is approximately the size of a lap top computer, weighing approximately five
pounds. The terminal operates on the Inmarsat-M network. The Company offers an
Inmarsat approved mobile "M" antenna system called the Voyager (developed
through a strategic alliance with Nera AS, a Norwegian company, and marketed by
the Company and Nera AS under a cooperative marketing agreement) that allows
vehicle occupants to make voice and data transmissions via satellite link while
the vehicle is in motion. The Company has developed a similar product that will
operate on the Inmarsat-B network and also will provide high speed data and
video capacity. The Company currently offers air time primarily through joint
ventures and block time agreements utilizing an internally developed and
proprietary "smart card" billing application. The "smart card" is a convenient
prepaid telephone calling card which a customer purchases from the Company and
which can be used only on the Company's systems. Most air time sales are made in
conjunction with the microCOM-M and Compact-M terminals.
Site protection systems integration. The Company is now offering
comprehensive planning, design and hardware and software integration services
customized to meet the requirements of customers for physical site protection.
Primarily intended for perimeter security around business facilities and plant
operations, the Company also offers its services to embassies, VIPs' homes and
public facilities. Generally, such a systems integration project begins with a
site survey, which identifies areas of vulnerability and recommends methods for
securing the entire area surveyed. Specific pieces of hardware are ordered and
installed, processes and procedures are outlined, engineering documentation are
provided and control centers are established. Although each job is unique, the
methodology used to develop the system is similar in most cases.
Standardized subsystem products. Currently, the Company does not offer
standardized subsystems. The Company intends to offer such "off the shelf"
products in the future in order to capitalize on time-sensitive requests from
customers. Examples of standardized subsystems are closed circuit television
monitoring systems, access control systems and pre-packaged intrusion and fire
detection systems. The Company may
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<PAGE> 38
develop these subsystems itself or through joint ventures, or may purchase or
otherwise acquire the rights to market such subsystems directly to the Company's
customers.
Security Services Group
The Company intends to leverage its reputation in the armored vehicle
industry and its customer base to market an expanded range of security services
such as security background clearances, business intelligence, country risk
assessments, airport/aircraft security support, and private security agent and
driver training. The Company plans to offer such services first in countries in
which it is currently selling hardware products or providing security systems
integration and then expand into other geographic areas in which there is a
demonstrated need for such services, such as the Philippines and the Middle
East. At present, the Company is not generating meaningful revenues from the
services to be provided by the Security Services Group. However, on August 15,
1996, the Company entered into an agreement in principle to acquire Palmer
Associates, S.C., a provider of security services, such as driver training,
background investigation and due diligence reports, in Mexico City, Mexico, for
cash consideration of approximately $1.0 million, payable over two years.
CUSTOMERS
Security Hardware Products Group
Military. The Company's market for military hardware products is worldwide
in scope, including the U.S. Military and foreign defense forces. The Company's
major contracts for delivery of Up-Armored HMMWVs and armoring kits are with the
U.S. Army Tank Automotive Command ("TACOM"). Additionally, the Company provides
protected container systems, typically used to protect missile systems from
small arms fire, to the U.S. Missile Command ("MICOM") under a subcontract with
Lockheed Martin. The ability to obtain future U.S. military business will be
affected by future levels of defense spending and TACOM's budget. The Company
has sold Up-Armored HMMWVs to Qatar and Luxembourg, either directly or through
the Foreign Military Sales ("FMS") Program. In the future, the Company plans to
leverage the reputation earned by its Up-Armored HMMWVs in Bosnia, Somalia and
Haiti to expand its sales to foreign defense forces. See "-- U.S. Government
Contracts."
Commercial. The Company's armored commercial vehicle customers include
governmental and private buyers. U.S. and foreign governmental buyers purchase
both FAVs and LAVs. Governmental buyers also comprise the market for Parade
Cars. Typically, governmental buyers consist of ministries of foreign affairs,
defense and internal affairs and offices of presidential security. Such
customers are not constrained in their purchasing decisions by considerations
such as import duties and taxes. They are, therefore, free to search globally
for the best product. The procurement cycles of governmental buyers can range
from relatively rapid, when the vehicles are for the use of the head of state or
in a crisis mode, to prolonged bureaucratic bids and evaluations where the
procurement is for normally budgeted items. Over the past five years, the
Company has sold 31 Parade Cars to various governments and has sold FAVs and
LAVs to the governments or agencies of 33 foreign countries, and to 14
departments or agencies of the U.S. Government (including the Department of
State, the Drug Enforcement Agency, the Agency for International Development and
the General Services Administration).
The Company's private customers for armored commercial vehicles include
corporations and individuals. Private buyers are much more sensitive to cost (of
which import duties and taxes may be a substantial part) and, therefore, often
will buy a locally produced product if one exists. Local servicing of the
vehicle is also a critical concern to private buyers. Over the past five years,
the Company has sold FAVs or LAVs to more than 125 private customers, including
20 Fortune 500 companies.
Security Systems Integration Group
Satellite communication integration. Principal customers for satellite
communications services include private corporations and individuals,
governmental agencies, peacekeeping forces and disaster relief organizations
which operate in under-developed countries that lack a telecommunications
infrastructure, in rural areas
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of developed countries or in disaster scenarios in which the traditional forms
of telecommunications are rendered inoperable. To date most of the Company's
systems integration services customers have not been purchasers of the Company's
security hardware products. However, the Company is actively marketing these
services to security hardware purchasers and site protection services customers.
Increasingly, customers are demanding that the satellite communication channels
provided be secure. Depending on the level of security desired, satellite
communication systems can be implemented using a variety of encryption methods
up to and including fully secure U.S. Government STU-III telephones. Most of the
Company's satellite communication customers are located outside of the United
States because the U.S. Federal Communications Commission does not permit
private corporations or individuals to use in the United States terminals which
do not utilize the American Mobile Satellite Corp. ("AMSC") satellite network.
The terminals marketed by the Company access the Inmarsat network rather than
the AMSC network.
Site protection systems integration. As of June 30, 1996, the Company had
secured three commercial contracts to provide integrated site protection
systems, all to customers in Russia. Currently the Company is marketing these
services to both governmental and commercial entities primarily in Russia.
Corporate and governmental buyers of integrated security systems normally
purchase through their corporate security officer, a governmental department
responsible for the particular facility's security, a facility manager or a
construction project manager. Purchases generally are made on project-specific
proposals and include the cost of the hardware, transportation costs to the
site, engineering integration and documentation.
Security Services Group
Although the Company currently has no contracts for its security services,
it plans to begin marketing these services to both businesses and governments in
the near future. Corporate or governmental buyers of security services usually
contract for such services through their security officers. Corporate security
officers, who are normally former members of a government agency themselves,
tend to purchase services based upon industry reputation for quality and
expertise, trust in the firm or individual they are buying the services from,
price and availability. Security services are charged out by the hour, day, week
or based upon a retainer schedule. In some cases, a project may be bid in its
entirety.
MARKETING AND SALES
Military marketing. The Company continues to position itself in the
marketplace as a commercial company with a military production capability and to
emphasize its ability to develop new products, or product adaptations, quickly
and more cost-effectively than traditional defense contractors. In marketing its
products to the military, the Company also places strong emphasis on its
superior anti-tank and anti-personnel mine protection for the occupants of TWVs.
The Company markets its military products through a combination of trade show
exhibitions, print advertising in military-related periodicals and direct
customer visits. The Company emphasizes the cross-marketing of military and
commercial products, which it believes strengthens the image of each product
group. The Company also has entered into a joint marketing agreement with AM
General, the manufacturer of the basic HMMWV, for sales in the military and
commercial arenas. This agreement allows the Company to benefit from the AM
General distribution network and save on certain costs, such as exhibitions
where AM General and the Company otherwise would both show products.
Military sales. The Company's military sales activities are directed
toward identifying contract bid opportunities with various U.S. Government
agencies, private enterprises acting as prime contractors on government
contracts, sales through the FMS Program, and military sales directly to foreign
military organizations. The Company has one full-time business development
manager who is responsible for this activity and also has contractual
arrangements with several outside consultants who assist the business
development manager in his activities. The Company is in the process of adding
another full-time business development manager. Proposal preparation and
presentation for government projects is done by a proposal team which normally
consists of program managers who have specific project responsibilities, a
contracting officer, a cost accountant and various manufacturing and engineering
personnel.
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Commercial marketing. The Company believes that, as a result of its long
history of successfully armoring vehicles, it enjoys excellent name recognition
and a strong reputation in its sector of the security industry. The central
element of the Company's commercial marketing strategy is to leverage its name
recognition and reputation by positioning the Company as a global provider of
one-stop security services and products. The Company believes that by
positioning itself in this manner it can capitalize on its existing customer
base, maximize the benefits of its long history of supplying security-related
products around the world, and leverage its leadership niche in the armored
commercial vehicle market. When entering a foreign market, the Company normally
seeks to penetrate the market with its strongest product offering, which in most
cases is armored vehicles. The Company tailors its marketing strategy to each
geographic area of the world and will often tailor its product offering by
country. There is strong cross-marketing of military and commercial products
which the Company believes strengthens the image of each product group. This is
accomplished through consistency of product literature, image and style; the
featuring of both product groups in advertising and exhibitions; and full
briefings to customers and potential customers that encompass the Company's
entire product line.
Commercial sales. On a worldwide basis, the Company employs 17 direct
salespersons who operate out of Fairfield, Ohio; Washington, D.C.; Deer Park,
New York; Los Angeles, California; Moscow, Russia; Mexico City, Mexico; Sao
Paulo, Brazil; and Geneva, Switzerland. All sales personnel have a geographic
and/or product-specific responsibility. In most cases, sales personnel also
maintain and recruit sales agents or distributors for the Company's principal
product groups. The agents or distributors have a geographic and
product-specific agreement, and compensation in most cases is based upon a
commission arrangement. In some instances, particularly when commercial products
are sold to governments, the Company's salespersons will handle sales directly
with the ultimate customer without any involvement from an agent or distributor.
Sales personnel use a consultative approach when offering solutions to the
customer's security problems. Sales cycles for commercial products can range
from several months to a matter of days, depending upon the product and the
urgency associated with the security problem being addressed. Security products
which are readily available, such as the full armored Standard Suburban, allow
the Company to assist customers who have developed, or feel they have developed,
an immediate threat.
ENGINEERING AND DEVELOPMENT
The Company emphasizes engineering excellence and has an extensive
engineering staff. Design engineers use state-of-the-art two-dimensional and
three-dimensional computer aided design and engineering (CAD/CAE) systems in
conjunction with coordinate measuring machines to develop electronic models
which are generally converted to solid models or prototypes. Manufacturing
engineers concentrate on the ability of the Company to manufacture a product
design, on improvements in the production process and overall cost reductions
from better methods, fewer components and less expensive materials with equal or
superior quality and on materials handling issues. Applying these techniques, in
the last several years the Company has been able to produce savings in the time
and cost necessary to produce its armored vehicles. For example, the Company was
able to reduce the number of employee work hours needed to produce the Up-
Armored HMMWV from 465 to 265 and the number of components involved from 800 to
550. Employee work hours required to armor the Standard Suburban have been
reduced from 1,200 to 650, and the number of components involved from 350 to
200.
Quality engineering is responsible for assuring that manufacturing and
design plans are consistent with a reliable, quality product that meets the
specifications of the customer. Quality engineers are also responsible for
identifying in-process quality inspection points in the work orders. The
Company's ballistic engineers, in conjunction with its design and manufacturing
engineers, develop new ballistic and blast protection systems that meet
ever-changing threats. Ballistic engineers are also responsible for the
ballistic testing required by customers, the assignment of ballistic
specifications to final products and the issuance of ballistic specifications
for internal quality control. Advanced engineering is responsible for new
product development in conjunction with design engineering, manufacturing
engineering and ballistic engineering. The Company's electrical engineers,
resident in the Deer Park, New York facility, are responsible for design
specifications for all satellite and secure communications products.
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U.S. GOVERNMENT CONTRACTS
The Company serves as the U.S. Military's primary provider of armoring for
its HMMWV fleet. Under the initial contract in August 1993, TACOM engaged the
Company to armor fully 59 HMMWVs. A contract to armor an additional 100 vehicles
was executed in May 1994. See "-- Customers." As of March 1995 all of these 159
HMMWVs had been shipped.
In 1995, the HMMWV was redesigned to include a more powerful engine and
greater cargo space. In March 1995, TACOM engaged the Company to armor 309 of
the redesigned HMMWVs. This agreement included options for the armoring of up to
an additional 155 vehicles. In February 1996, TACOM requested an acceleration of
the production of Up-Armored HMMWVs previously ordered and subsequently
exercised options for the armoring by the Company of an additional 126 of the
155 vehicles under option. Of these vehicles, 16 will be sold to Luxembourg
under the FMS program. The FMS Program is part of the U.S. Government's security
assistance program which provides equipment and services to more than 100
nations and international organizations. The U.S. Government markets, procures
and delivers military equipment and services to such foreign entities. Funding
is provided either directly by the purchaser or with U.S.-granted foreign aid
credits or loans. As of August 31, 1996, the Company will have shipped 390 of
these 435 HMMWVs.
Under a July 1996 contract, TACOM engaged the Company to armor 72
additional HMMWVs. The contract includes options for the armoring of up to 218
additional vehicles. None of these vehicles has yet been shipped.
Since July 1996, a contract with TACOM for an additional 124 Up-Armored
HMMWVs has been pending, subject to the receipt of certain governmental
approvals. No assurance can be given that this contract will be received.
The Company also manufactures armoring kits that can be shipped to
customers and installed in HMMWVs on location. The Company installed 166 of such
kits for TACOM in its Fairfield facility during the first seven months of 1996
and has shipped 14 kits to the U.S. Army in Germany for purposes of providing
instruction to Army personnel concerning the installation process.
The U.S. Government budget for fiscal year 1997, which has been submitted
to Congress for approval, includes funding for the purchase of 360 additional
Up-Armored HMMWVs. Although there can be no assurance of Congressional approval,
or that the Company will be engaged to armor such vehicles, the Company believes
that it is well positioned to benefit from any additional appropriations made by
Congress for Up-Armored HMMWVs.
The Company has provided to MICOM, as a subcontractor to Lockheed Martin,
armoring for certain missile weapons systems. The Company was first engaged in
September 1993 by Lockheed Martin to armor fuel systems of missiles. The Company
was last engaged by Lockheed Martin in June 1996 and believes that it is well
positioned for future engagements.
COMPETITION
The markets for the Company's present and contemplated products and
services are highly competitive. However, in the vehicle armoring systems
business, the Company believes that its design, engineering and production
expertise in providing fully integrated ballistic and blast protected vehicles
gives it a competitive advantage over those competitors who provide protection
against only selected ballistic threats. In the market for military armoring
systems there are a large number of companies, such as Simula, Inc., that
provide specific armoring packages for TWVs (other than the HMMWV), helicopters
and selected other military applications. The Company believes that as the size
of the Up-Armored HMMWV requirement continues to grow, competition from major
defense contractors may increase. The principal competitive factors are price,
quality of engineering and design, production capability and capacity, ability
to meet delivery schedules and reputation in the industry.
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The largest competitor on a worldwide basis in the production of armored
commercial vehicles is Mercedes-Benz Aktiengesellschaft ("MBZ") of Germany. MBZ
produces its own armored passenger vehicles based upon the S600 chassis, the new
Pullman Limousine and the S300 chassis. MBZ sells its product through its
worldwide dealer distribution system. In addition to MBZ, there are a number of
other vehicle armorers focused on their local foreign markets in Europe, the
Middle East and Latin America, armoring primarily locally manufactured
automobiles. U.S. based protected passenger automobile armorers include the
Pittston Company (owner of Brinks armored vehicles), Moloney Coachbuilders,
Inc., Safe Car, Inc., Rausch Enterprises, Inc. and Armet Armored Vehicles, Inc.
These and other companies compete for U.S. Department of State and Treasury
Department Secret Service contracts. Currently, the U.S. Department of State FAV
and LAV contracts are split among three companies, of which the Company is one.
The principal competitive factors are price, quality of engineering and design,
production capability and capacity, ability to delivery and reputation in the
industry.
With respect to satellite communication systems integration services, the
Company competes with many companies, including STN Atlas Elektronik GmbH,
Thrane & Thrane AS and Nera AS in both the portable terminal market and sales of
air time. The Company believes that the competitive factors in this portion of
its business include product reliability, the incorporation of advanced
technological features, price, ease of installation, availability and service.
With respect to secure custom communications systems integration services, the
Company competes with small and large communications systems integrators.
In the site protection systems integration and security services
businesses, the Company competes primarily with numerous local integrators and
also large suppliers of security-related equipment such as Westinghouse Electric
Corporation, The Wackenhut Corporation, Borg-Warner Security Corporation,
Pittway Corporation and ADT Inc. The principal competitive factors are the best
approach to solving the security problem, availability and the company or
individual reputation. Finally, the Company expects that its Security Services
Group will compete with major companies such as Pinkerton's, Inc., Kroll
Associates, Inc., ICTS International, N.V. and The Wackenhut Corporation and
numerous small consultant-type businesses. The principal competitive factors are
industry reputation for quality, expertise, trust in the individual firm, price
and availability.
OPERATIONS, PROPERTIES AND FACILITIES
The Company's properties and facilities as of July 31, 1996 are as follows:
<TABLE>
<CAPTION>
NUMBER OF DATE SQUARE
LOCATION EMPLOYEES OPENED FOOTAGE STATUS
---------------------------------------- ------------- --------- -------- --------------
<S> <C> <C> <C> <C>
Fairfield, Ohio
9113 LeSaint Drive.................... 229(1) Dec. 86 130,000 owned
4175 Mulhauser Road................... 151(2) Mar. 96 70,000 leased
Deer Park, New York..................... 12 Feb. 95 4,000 leased
Mexico City, Mexico..................... 18 June 96 20,000 leased
Sao Paulo, Brazil....................... 16 Apr. 96 28,000 leased
Moscow, Russia.......................... 15 Jan. 96 2,700 leased
Torino, Italy........................... 16(3) Nov. 90 15,000 subcontractor
</TABLE>
- ---------------
(1) Including 25 full time temporary employees.
(2) Including 117 full time temporary employees.
(3) Subcontractor employees.
Fairfield, Ohio. The LeSaint Drive facility is the Company's headquarters
and houses senior management, accounting and sales offices, as well as providing
full production and assembly facilities for armored commercial vehicles, parts,
fabrication, painting and prototyping operations. This facility is financed
through tax-exempt debt and is pledged to secure the repayment of such debt. The
Mulhauser Road facility focuses primarily on the manufacturing and distribution
of Up-Armored HMMWVs and HMMWV armoring kits.
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This facility is currently leased for a term expiring in March 1997. The Company
has the right to renew the lease on terms to be agreed upon by the parties. For
accounting purposes, this lease has been treated as an operating lease, and the
Company has the option to purchase the property at any time during the term of
the lease at fair market value as defined in the lease. See "Certain
Relationships and Related Party Transactions -- 4175 Mulhauser Road," In its
Fairfield facilities, the Company has a complete fabrication and machine shop
equipped with a computer controlled plasma cutter, a computer controlled press
break, mills, automated grinders, a robotic welder and two coordinate measuring
machines, paint booths and ancillary equipment for both military and commercial
painting. The manufacture of the Company's products follows these basic stages:
receipt of raw materials and usually a base vehicle which was originally
manufactured by someone other than the Company, the fabrication of
subcomponents, installation of the subcomponents and modification of the
original vehicle as necessary to accept the sub-assemblies, reinstallation of
interior trim, paint and final road test. Products manufactured for government
programs must meet specific and rigorous quality standards for workmanship,
process and process control, raw materials, procedures and testing. A U.S.
Government quality assurance inspector is resident in the Fairfield facility and
monitors the Company's adherence to government-mandated quality standards on a
daily basis.
Deer Park, New York. This facility is used for administration, engineering
and sales for the Company's integrated portable and mobile satellite
communication systems and is currently leased for a term expiring in February
1997. For accounting purposes, this lease has been treated as an operating
lease.
Mexico City, Mexico. This facility is used for manufacturing and sales of
armored commercial vehicles and is currently leased under an agreement for a
term expiring in June 1997. For accounting purposes, this lease is treated as an
operating lease. The Company has an option to purchase this facility at a price
of approximately $1.2 million. The Company expects to exercise this option and
purchase the facility using a portion of the proceeds from the Offering. The
facilities in Mexico City, Mexico and Sao Paulo, Brazil are currently assembling
kits which have been engineered in the Fairfield facility. The Company expects
these facilities to have the capability to build a complete product line once
they have fully trained their production work forces.
Sao Paulo, Brazil. This facility is used for manufacturing and sales of
armored commercial vehicles and is currently leased for a term expiring in March
2000. For accounting purposes, this lease is treated as an operating lease.
Moscow, Russia. This facility is used for design and sales services by the
Company's security systems integration business. It is leased under an agreement
for a term expiring in December 1996. For accounting purposes, the lease is
treated as an operating lease.
Torino, Italy. This facility is owned by a subcontractor, but is
supervised by the Company's personnel and performs all aspects of manufacturing
specialty armored and unarmored commercial vehicles, from component fabrication
through final assembly. On occasion, the Torino subcontractor will act as a
vendor to the LeSaint Drive facility.
The Company's manufacturing capabilities include fully integrated
manufacturing programs which link production control, materials control, quality
control and accounting, thus allowing the Company to issue work orders, update
and track inventories, insert quality assurance procedures, schedule and track
production and report, on a daily basis, costs accumulated to a job. The Company
believes that its facilities are adequate for its present needs and that its
properties, including machinery and equipment, are generally in good condition,
well maintained and suitable for their intended current and foreseeable uses.
EMPLOYEES
As of July 31, 1996, the Company had 441 employees (including 164 temporary
employees), comprised of 43 in marketing and sales, 317 (including 161 temporary
employees) in manufacturing, 34 (including three temporary employees) in
engineering and 47 in general and administrative. The Company's employees are
not represented by any union and are not covered by any collective bargaining
agreements. The Company has not experienced any work stoppages or employee
related slowdowns and believes that its relationship with its employees is good.
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U.S. GOVERNMENT REGULATION
As a contractor with agencies of the U.S. Government, the Company is
obligated to comply with a variety of regulations governing certain aspects of
its operations and the workplace. Additionally, the Company's contracts give the
contracting agency the right to conduct audits of the Company's facilities and
operations, and such audits occur routinely. An audit involves a governmental
agency's review of the Company's compliance with the prescribed procedures
established in connection with the government contract. The Company also may be
subject to investigations as a result of an audit or other causes. Adverse
findings in an audit or other investigation, including a violation of
environmental or labor laws, could result in fines or other penalties, up to and
including disqualification as a government contractor. In addition, government
contracts generally contain cost or performance incentives based on stated
targets or other criteria. Failure to meet these stated targets or criteria
could result in penalties or lost profits to the Company.
The Company is subject to federal licensing requirements with respect to
the sale in foreign countries of certain of its hardware products. Regulations
promulgated by the U.S. Commerce Department require the Company to obtain a
general destination license in connection with the sale of certain commercial
products in foreign countries, and certain U.S. State Department regulations
require the Company to file an export license in connection with sales of
military equipment in foreign countries. Furthermore, the U.S. State Department
prohibits all sales of militaryequipment to certain countries, including Cuba,
Iran, Iraq, Libya and China. There can be no assurance that such regulations
will not become more restrictive in the future, which could limit the Company's
ability to market its products internationally.
ENVIRONMENTAL MATTERS
The Company and its operations are subject to a number of federal, state
and local environmental laws, regulations and ordinances that govern activities
or operations that may have adverse environmental effects, such as discharges to
air and water, as well as handling, storage and disposal practices regarding
solid and hazardous materials, and impose liability for the cost of remediating,
and certain damages resulting from, sites of past releases of hazardous
materials. Environmental laws continue to change rapidly, and it is likely that
the Company will be subject to increasingly stringent environmental standards in
the future. The Company believes that it currently conducts its activities and
operations in substantial compliance with applicable environmental laws. The
Company is implementing recommendations of an environmental consulting company
designed to address certain air pollution, hazardous waste, underground storage
tank and hazard communication matters. No notices of violation have been issued
to the Company by any regulatory agency with respect to environmental matters
which remain uncorrected. The Company believes that its potential liability
under the environmental laws, if any, would not have a material adverse effect,
individually or in the aggregate, on its results of operations or financial
condition. There can be no assurance in this regard, however, nor can there be
any assurance that environmental laws will not become more stringent in the
future or that the Company will not incur significant costs in the future to
comply with such environmental laws.
LEGAL PROCEEDINGS
The Company is not involved in any material litigation or legal proceedings
at this time and is not aware of any material litigation or proceeding
threatened against it.
PATENTS, TRADEMARKS AND COPYRIGHTS
The Company currently has three issued U.S. patents and one pending patent
application relating to its armoring business. The Company currently has no
registered trademarks or copyrights. Although the Company does not believe that
its ability to compete in any of its product markets is dependent on its
patents, the Company does believe that the protection afforded by its recently
issued "Armoring Assembly" patent and its pending "Vehicle Mine Protection
Structure" patent application, both of which relate to vehicle underbody blast
protection, provides the Company with important technological advantages over
its competitors. Although the Company has protected its technologies to the
extent that it believes appropriate, there can be no assurance that the
Company's measures to protect its proprietary rights will deter or prevent
unauthorized use of the Company's technologies. In other countries, the
Company's proprietary rights may not be protected to the same extent as in the
United States.
42
<PAGE> 45
MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth certain information as of , 1996
concerning each of the Company's executive officers, directors and nominees for
director of the Company:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ------------------------------ ------------- -----------------------------------
<S> <C> <C>
Thomas M. O'Gara.............. 46 Chairman of the Board
Wilfred T. O'Gara............. 39 Chief Executive Officer and
Director
Gary W. Allen................. 42 Vice President -- Operations,
O'Gara-Hess & Eisenhardt Armoring
Company
Nicholas P. Carpinello........ 46 Executive Vice President, Secretary
and Treasurer
Richard L. Curotto............ 57 Vice President -- Worldwide Product
Development, O'Gara-Hess &
Eisenhardt Armoring Company
Michael J. Lennon............. 40 President, O'Gara-Hess & Eisenhardt
Armoring Company
Hugh E. Price*................ 59 President, Security Services Group,
Nominee for Director
Neil P. Saldin................ 49 President, O'Gara Satellite
Networks Limited
Raymond E. Mabus*............. 47 Nominee for Director
William S. Sessions*.......... 66 Nominee for Director
</TABLE>
- ---------------
* Upon the consummation of the Offering, these Nominees are expected to be
appointed to the Company's Board of Directors.
Thomas M. O'Gara is Chairman of the Board of the Company. Mr. O'Gara has
been Chairman of the Board of OHE since 1990 and was OHE's Chief Executive
Officer from 1990 until 1995. He has been a director of the Company since August
1996 and a director of OHE since 1988. Mr. O'Gara has been an executive of the
Company and its predecessors since 1975. From 1984 until 1986, Mr. O'Gara also
was Honorary Consul General for the Sultanate of Oman. Thomas M. O'Gara and
Wilfred T. O'Gara are brothers.
Wilfred T. O'Gara is Chief Executive Officer of the Company. He has been
associated with the Company and its predecessors since 1983. He has been Chief
Executive Officer of OHE since January 1996, was President and Chief Operating
Officer of OHE from 1991 through 1995 and was Vice President -- Sales and
Marketing from 1988 until 1991. He also has been Vice Chairman of O'Gara
Satellite Networks, Inc., a Delaware corporation and a wholly owned subsidiary
of OSN ("OSN, Inc."), since October 1995, having served as President of OSN,
Inc. from January 1995 through September 1995. Mr. O'Gara has been a director of
the Company since August 1996, a director of OHE since 1991 and a director of
OSN, Inc. since 1995.
Gary W. Allen is Vice President -- Operations of OHE, a position in which
he has served since 1994. From 1989 until 1994 Mr. Allen was Manager of Shop
Operations for the G.E. Aircraft Engines business of General Electric Company.
Mr. Allen held several other management positions in operations and
manufacturing with G.E. Aircraft Engines between 1984, when he joined that
business, and 1989.
Nicholas P. Carpinello is the Company's Executive Vice President, Chief
Financial Officer, Secretary and Treasurer. He has held these same positions
with OHE since 1993 and also has been Treasurer of OSN, Inc. since 1995. Mr.
Carpinello has been associated with the Company and its predecessors since 1984.
From
43
<PAGE> 46
1975 until 1984, he was employed by Arthur Andersen LLP where he served as a
manager in the audit and small business consulting divisions.
Richard L. Curotto is Vice President -- Worldwide Product Development of
OHE, a position which he has held since 1992. Mr. Curotto joined OHE in
September 1990 as Vice-President -- Engineering. Prior to joining OHE Mr.
Curotto was an engineer, manager and executive with Stutz Motor Cars of America,
Inc., a company he cofounded in 1968.
Michael J. Lennon is President and Chief Operating Officer of OHE,
positions he has held since January 1996. Mr. Lennon joined OHE in February 1994
as Manager of Commercial and Military Programs; he became Vice President for
Sales, Marketing and Program Management in October 1994 and served OHE in that
capacity through 1995. Prior to joining OHE, Mr. Lennon had 15 years' experience
in manufacturing, quality control and marketing with General Electric Company,
which he joined in 1988. From 1990 to 1994, he was Manager of Advanced
Technology Marketing for their G.E. Aircraft Engines business.
Hugh E. Price is President, Security Services Group of the Company. During
1995 and 1996, prior to joining the Company, he was a consultant to various
businesses and organizations. Until his retirement in 1995, Mr. Price had been
employed by the Central Intelligence Agency since 1964. His positions with the
Agency included Deputy and Associate Deputy Director for Operations (1991-1995),
Chief and Deputy Chief for Counterintelligence (1988-1990) and Director of
Personnel (1986-1988).
Neil P. Saldin is President of OSN, a position he has held since 1995.
Since 1995 he also has been President of OGM Communications Limited, an Irish
corporation which is 49% owned by OSN. Prior to joining the Company in 1994, Mr.
Saldin had served since 1988 in a variety of executive capacities with Magnavox
Electronic Systems Company, most recently as Vice President, Commercial SatCom.
Mr. Saldin is an electrical engineer whose experience prior to 1988 includes a
number of management positions with companies in the communications software and
engineering businesses.
Raymond E. Mabus is currently Chairman of the Board of Mercatus, LLC, an
Austin, Texas venture capital and business consulting company and also manages a
family timber business. He served as the United States' Ambassador to the
Kingdom of Saudi Arabia from 1994 until 1996, as a consultant to Mobil
Telecommunications Technology from 1992 until 1994 and as Governor of the State
of Mississippi from 1988 until 1992.
William S. Sessions is a partner in the law firm of Sessions & Sessions,
L.C. and is a consultant to various public and private businesses. From 1987
until 1993, Mr. Sessions was Director of the Federal Bureau of Investigation. He
served as a United States District Judge for the Western District of Texas from
1974 until 1987. Mr Sessions is a director of Zenith National Insurance Company.
Directors of the Company are elected annually. Officers of the Company are
elected annually and serve at the discretion of the Board of Directors.
COMMITTEES OF THE BOARD OF DIRECTORS
Upon completion of the Offering, the Board will establish Audit and
Compensation Committees. The Audit Committee, which will consist of Messrs.
Mabus and Sessions, will review the services provided by the Company's
independent auditors, consult with such auditors on audits and proposed audits
and review the need for internal auditing procedures and the adequacy of
internal controls. The Compensation Committee, which will consist also of
Messrs. Mabus and Sessions, will establish, review and approve compensation
programs of the Company generally and will set salaries and bonuses for officers
and certain other salaried employees of the Company. No Compensation Committee
member will be an employee or officer of the Company.
DIRECTORS' COMPENSATION
Directors who are not employees of the Company will receive $10,000 plus
options to purchase 1,000 shares of Common Stock per year for serving as
directors and members of committees, plus $500 for each
44
<PAGE> 47
Board of Directors meeting attended (including Board meetings held by
telephone). Committee members will receive $500 per meeting attended, unless the
meeting occurs on the same day as a Board meeting, in which case no separate fee
will be paid. Employee directors will not be separately compensated for their
services as directors.
EXECUTIVE COMPENSATION
The following table sets forth certain information regarding the
compensation paid by the Company during fiscal year 1995, for services in all
capacities, to the Company's Chief Executive Officer and to each of the
Company's other four most highly compensated executive officers (collectively,
the "named executive officers"). The Company did not grant any stock options or
restricted stock awards to any of the named executive officers in fiscal year
1995.
1995 SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL COMPENSATION
----------------------------------------
OTHER ANNUAL ALL OTHER
NAME AND PRINCIPAL POSITION SALARY(1) BONUS COMPENSATION(2) COMPENSATION(3)
- -------------------------------- -------- ------- --------------- ---------------
<S> <C> <C> <C> <C>
Thomas M. O'Gara $409,417 -- -- $ 601
Chairman of the Board
Wilfred T. O'Gara 140,083 -- -- 329
Chief Executive Officer
Nicholas P. Carpinello 96,208 $18,000 $15,501 406
Executive Vice President
Richard L. Curotto 96,208 17,000 -- 990
Vice President
Michael J. Lennon 82,483 20,000 -- 233
Vice President
</TABLE>
- ---------------
(1) Subsequent to the Offering, Messrs. Thomas M. O'Gara, Wilfred T. O'Gara,
Nicholas P. Carpinello, Richard L. Curotto and Michael J. Lennon will
receive annual salaries of $250,000, $230,000, $120,000, $110,000 and
$145,000, respectively (see "--Employment Agreements").
(2) For Nicholas P. Carpinello, represents compensation related to a
Company-provided car. Otherwise none, other than perquisites which did not
exceed 10% of salary and bonus for any named executive officer.
(3) Represents profit-sharing contributions to the Company's Retirement and
(401(k)) Thrift Savings Plan.
STOCK OPTIONS
The Company's 1996 Stock Option Plan (the "1996 Plan") will provide for the
grant, to employees and directors of the Company and its subsidiaries, of
options to purchase up to 400,000 shares of Common Stock and will be
administered either by the Board of Directors or by the Compensation Committee.
The 1996 Plan will provide that all exercise prices must equal at least 85% of
market value of the Common Stock on the date of grant and that options will
expire no later than ten years after grant. The 1996 Plan will provide for the
grant of both incentive stock options and nonqualified stock options. The
Company will grant options to purchase approximately 180,000 shares at the
public offering price to certain employees, including options for approximately
91,000 shares to certain executive officers, including options for the following
shares: Mr. Wilfred T. O'Gara, 17,000 shares; Mr. Nicholas P. Carpinello, 15,000
shares; Mr. Richard L. Curotto, 15,000 shares and Mr. Michael J. Lennon, 17,000
shares; plus options for 1,000 shares each to the Company's nonemployee
directors.
45
<PAGE> 48
EMPLOYMENT AGREEMENTS
The Company (or OHE) has entered into employment agreements, for a term
commencing on September 1, 1996 and expiring on August 31, 1998, with Messrs.
Thomas M. O'Gara, Wilfred T. O'Gara, Nicholas P. Carpinello, Richard L. Curotto
and Michael J. Lennon, providing for annual compensation of $250,000, $230,000,
$120,000, $110,000 and $145,000, respectively, as well as with certain other
officers and employees. Each named executive officer also will be entitled to
participate in an annual bonus plan to be established by the Compensation
Committee and to receive 50% of such bonus in shares of Common Stock. Each of
the employment agreements restricts the named executive from competing with the
Company during the term of the agreement and for two years thereafter.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Company has never had a Compensation Committee or other committee of
the Board of Directors performing similar functions. Decisions concerning
compensation of executive officers of the Company were made by the Company's
Board of Directors. Following the Offering, the Company will establish a
Compensation Committee composed of Messrs. Mabus and Sessions.
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
The Board of Directors of the Company has adopted a policy requiring that
after the Offering any transactions, including loans, between the Company and
its officers, directors, principal shareholders and their affiliates be on terms
no less favorable to the Company than could be obtained from unrelated third
parties and that any such transactions be approved by a majority of the
disinterested members of the Company's Board of Directors.
CORPORATE REORGANIZATION
Pursuant to various agreements among the Company, OHE, Limited and the
equityholders of OHE, Limited and OSN, the operations of these corporations will
be reorganized and combined immediately prior to the effective date of the
Registration Statement of which this Prospectus is a part. See "Corporate
Reorganization."
LONGLINE LEASING/EXCEL ARMOR
General. Excel Armor Products, Inc. ("Excel Armor" and, together with
Longline, "Longline/Excel") is a Delaware corporation established in November
1993. All of the outstanding capital stock of each of Longline and Excel Armor
is owned by Messrs. Thomas M. O'Gara, (approximately 92%), Thomas M. Letter
(approximately 5%), Wilfred T. O'Gara, Charles A. Williams and Nicholas P.
Carpinello (approximately 1% each).
Lease agreements. OHE has a Master Equipment Lease with Longline, entered
into in July 1995, pursuant to which OHE leases various items of equipment from
Longline. As of June 30, 1996, OHE had approximately $1,250,000 of equipment
under lease for 12 and 36-month terms, beginning on various dates between July
1995 and April 1996, having aggregate minimum lease payments over the terms of
such leases of $1,014,924.
Supplier arrangements. Since 1995, OHE has purchased the dual-hard steel
required for certain aspects of its vehicle armoring from Excel Armor, which
distributes the steel for Allegheny Ludlum Corporation, an unrelated third
party. Purchases by OHE from Excel Armor were $520,700 and $623,318 during 1995
and the first six months of 1996, respectively, and accounted for 90% and 98% of
Excel Armor's sales revenues for the same periods. In connection with these
purchases, OHE advanced $160,390 and $111,956 to Excel Armor during 1995 and the
first six months of 1996, respectively, to fund Excel Armor's initial purchase
commitments and guaranteed a $150,000 letter of credit furnished by Excel Armor
to the third party. The shareholders of Excel Armor will repay OHE's advances
prior to December 31, 1996. Currently, OHE is purchasing its dual-hard steel
directly from the third party. In August 1995, Excel Armor and OHE entered into
an agreement under which OHE manufactures certain parts needed by Excel Armor in
connection with a contract with a third party. The total contract price is
$129,000, of which OHE will receive $113,000.
46
<PAGE> 49
Corporate aircraft. During 1993, OHE made payments aggregating $79,372 to
The August Group, a partnership in which Mr. Thomas M. O'Gara had a 25%
interest, for operating and other costs relating to a Learjet owned by The
August Group. In return, OHE was to have long-term use of the Learjet at
favorable flight rates. During the same period, OHE incurred $214,930 in flight
and pilot charges for use of the aircraft. During 1993, $42,746 of the operating
charge payments to The August Group, due to be refunded to OHE, was written off
on OHE's books. Mr. O'Gara sold his interest in the partnership in late 1993.
Effective January 1, 1994, OHE entered into a five year lease for a Hawker
jet owned by Longline. Financing for the jet had been provided to Longline by
means of a $1,100,000 loan from Cessna Finance Corporation to Mr. Thomas M.
O'Gara. OHE's agreement with Longline provided for deposit and rental payments
aggregating $1,634,000 over the term of the lease. This lease was cancelled
effective January 30, 1995.
In February 1995, OHE entered into a lease for a Gulfstream G-II aircraft
owned by Longline and Excel Armor as tenants in common. The Gulfstream aircraft
was purchased by Longline/Excel for a price of $4,060,000 (represented by an
exchange of the Hawker jet and new financing). In connection with the
cancellation of the Hawker lease, $440,493, representing the unamortized portion
of OHE's $504,000 deposit on that lease, was transferred as the deposit on the
Gulfstream lease. The Gulfstream lease had a non-cancelable ten year term and
initially provided for rental payments of $53,000 per month. Nonetheless the
Company paid rentals based on actual usage. In August 1996, the Gulfstream lease
was amended to provide for minimum lease payments of $35,200 per month.
In February 1995, OHE also entered into a supplemental agreement with
Longline/Excel pursuant to which Longline/Excel agreed to provide all aircraft
management (including insurance) for the Gulfstream aircraft and to charter it
to others when not in use by OHE. Pursuant to this arrangement, and in lieu of
the $53,000 per month rental payments then required by the lease, OHE paid
Longline/Excel $30,000 per month, plus $1,800 per hour of monthly use in excess
of 16.7 hours, and Longline/Excel was entitled to retain all revenues from the
charter operations. In connection with the August 1996 amendment to the
Gulfstream lease, this agreement was amended to allow OHE 23 hours of usage per
month and to provide for charges of $1,500 per hour thereafter. Longline/Excel
continues to retain all revenues from charter operations. During 1995 and for
the first six months of 1996, OHE expensed $414,160 and $200,033 (including
amortization of the deposit on the lease), respectively, to Longline/Excel in
connection with the agreements for Gulfstream aircraft.
INTERCOMPANY NOTES AND ACCOUNTS PAYABLE/RECEIVABLE
At June 30, 1996, in addition to intercompany balances in the normal course
of business, OHE was indebted to O'Gara Overseas Services, S.A. ("OOS"), for
money borrowed, in the amount of $90,015, representing principal of $88,685 and
accrued interest of $1,330 on a demand note bearing interest at 3.0% per annum.
OOS is a Swiss corporation owed 49% by O'Gara Overseas Services Trust ("OOS
Trust") and 51% by Limited. OOS Trust is an irrevocable trust, the income and
assets of which OHE is the sole beneficiary. This note will be repaid by the
Company from the proceeds of the Offering.
OOS holds a promissory note in the principal amount of $250,000 from Mr.
Thomas M. O'Gara, for money borrowed, which bears interest at the rate of 3.0%
per annum and is due on demand. At June 30, 1996, $274,315 in principal and
accrued interest was outstanding under this note.
OHE holds promissory notes, for money borrowed, in the principal amounts of
$100,000 and $130,000 from Mr. Thomas M. O'Gara. Each note bears interest at the
rate of 8.75% per annum and is due on December 31, 1996. At June 30, 1996,
$239,961 in principal and accrued interest was outstanding under these notes. In
addition, Mr. Thomas M. O'Gara is indebted, for money borrowed, to OHE for
$242,242 principal amount, which is not represented by a promissory note. Mr.
Thomas M. O'Gara will repay this indebtedness upon consummation of the Offering.
OSN holds a promissory note, for money borrowed, from Excel Metal Products,
Inc. ("Excel Metal"), a corporation wholly owned by Mr. Thomas M. O'Gara, in the
principal amount of $310,000, which bears
47
<PAGE> 50
interest at the rate of 8.5% and is due on February 11, 1997. At June 30, 1996,
$320,172 in principal and accrued interest was outstanding pursuant to this
note. Mr. Thomas M. O'Gara will cause Excel Metal to repay this indebtedness
upon consummation of the Offering.
In December 1993, the Company offset a long-term note in the amount of
$700,000 payable to Mr. Thomas M. O'Gara against a note receivable in the same
amount from Silver Springs Land and Cattle Company ("SSLCC"), a Nevada
corporation of which Thomas M. O'Gara is the President and sole shareholder. In
December 1993, $59,500 in accrued interest due from SSLCC was written off on the
books of OHE. In 1993, 1994 and 1995, OHE paid SSLCC $6,050, $55,203 and
$11,082, respectively, for the use of its facilities for corporate meetings. No
payments were made in the first six months of 1996, and the use of these
facilities by the Company has been discontinued.
Prior to August 1994, OHE was indebted to Letter International Limited
Irrevocable Trust in the amount of $1,260,000. Letter International Limited
Irrevocable Trust was a trust of which OHE was the sole beneficiary. At the same
time, the Trust was indebted in an equal amount to Mr. Thomas M. O'Gara. Mr.
Thomas M. O'Gara received from the Trust an assignment of the OHE's obligation
in satisfaction of the Trust's indebtedness to him. Mr. Thomas M. O'Gara then
agreed to the cancellation of this indebtedness of OHE in exchange for shares of
common stock of OHE equal to 21.5% of the shares of OHE outstanding, giving
effect to such transaction.
Through the services of Thomas M. Letter, OOS provides sales and marketing
services for OHE and OSN. During 1993, 1994, 1995 and the first six months of
1996, $247,744, $362,761, $377,144 and $155,772, respectively, were paid to OOS
for these services.
OPS has received, since its incorporation in 1988, certain medical and
general liability insurance coverage under OHE's insurance policies. These
insurance programs are paid for by OPS through monthly and annual premiums
established by OHE's insurance provider. These arrangements will be terminated
upon the consummation of the Offering.
4175 MULHAUSER ROAD
Building lease. OLG, Limited, an Ohio limited liability company owned by
Messrs. Thomas M. O'Gara, Wilfred T. O'Gara, Gary W. Allen, Richard Curotto,
Nicholas P. Carpinello and Michael J. Lennon, was formed in March 1996 for the
purpose of acquiring and leasing to OHE the manufacturing facility located at
4175 Mulhauser Road, Fairfield, Ohio. The building was purchased for
approximately $1.8 million and is leased to OHE for $468,000 (plus taxes,
insurance and maintenance costs) for a one-year period. OHE has an option to
renew the lease, with the annual base rent and renewal term to be negotiated
between the parties at the time the option is exercised. OHE also has an option
to purchase the building for its fair market value. See "Business -- Operations,
Properties and Facilities."
CONSULTING AGREEMENTS
Excel Metal. Excel Metal Products, Inc. ("Excel Metal") is a Delaware
corporation owned by Mr. Thomas M. O'Gara. OSN, Inc. has a consulting agreement
with Excel Metal pursuant to which Excel Metal has provided management
consulting services to OSN, Inc. during calendar year 1996 for a fee of $6,000
per month plus reimbursement of expenses. The arrangement will terminate upon
consummation of the Offering.
William S. Sessions. Mr. William S. Sessions was a consultant to OHE from
January 1994 through April 1995 and received compensation of $5,000 per month,
plus reimbursement of expenses, for his services. Subsequent to the Offering,
Mr. Sessions will become a director of the Company.
Neil P. Saldin. Prior to becoming an officer of the Company, Mr. Saldin was
a consultant to OSN from November 1994 until October 1995 and received
compensation of $137,600 for his services.
Edward F. O'Gara. In 1993 OHE paid $120,000 to Mr. Edward F. O'Gara for
consulting services. Mr. Edward F. O'Gara is the brother of Messrs. Thomas M.
O'Gara and Wilfred T. O'Gara. In 1994, 1995
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<PAGE> 51
and 1996, OHE guaranteed certain consulting agreements between Longline or Excel
Armor and Cirrus Systems, Inc., a Delaware corporation owned by Mr. Edward F.
O'Gara. Such agreements are for one year terms for a total of $120,000 per year.
Mr. Thomas M. O'Gara has agreed to indemnify OHE for any claims made under such
guarantees.
EXERCISE OF STOCK OPTIONS AND SALE OF SHARES
On August 23, 1996, Messrs. Thomas M. O'Gara, Wilfred T. O'Gara, Nicholas
P. Carpinello and Richard L. Curotto exercised options previously granted on
December 31, 1993 to purchase 138, 131, 91 and 85 shares of the Common Stock of
OHE, respectively, at a price of $1.00 per share. Giving effect to the
Reorganization, the corresponding numbers of shares of Common Stock of the
Company would be 37,667, 35,756, 24,838 and 23,201, respectively, at a price of
$0.0037 per share.
On August 23, 1996, Mr. Thomas M. O'Gara sold 10 shares of the Common Stock
of OHE to each of Messrs. Nicholas P. Carpinello and Charles A. Williams for a
price of $468.00 per share (equivalent to 2,730 shares each of Common Stock of
the Company for a price of $1.71 per share). The Company will incur a non-
recurring, non-cash expense of approximately $37,000 in the fiscal quarter in
which the Offering is closed relating to such sales. This expense will result in
a corresponding increase in additional paid-in capital, and no change in total
shareholders' equity. This expense is not tax deductible and represents the
difference between the net offering price and the net sales price of these
shares as if issued directly by the Company.
49
<PAGE> 52
PRINCIPAL AND SELLING SHAREHOLDERS
The following table, which gives effect to the Reorganization (see "Certain
Relationships and Related Party Transactions -- Corporate Reorganization"), sets
forth certain information regarding the beneficial ownership of the Company's
Common Stock on , 1996 (on an actual basis and as adjusted to
reflect the sale of shares offered hereby) by (i) each Selling Shareholder, (ii)
each beneficial owner of more than five percent of the Common Stock immediately
prior to the Offering, (iii) each director, nominee for director and named
executive officer and (iv) all directors, nominees and executive officers of the
Company as a group. Unless otherwise indicated, all shares are owned directly
and the indicated owner has sole voting and dispositive power with respect
thereto.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED OWNED
PRIOR TO OFFERING(1) AFTER OFFERING(1)
--------------------- SHARES TO BE ---------------------
NAME NUMBER PERCENT SOLD IN OFFERING NUMBER PERCENT
- ----------------------------------- --------- ------- ---------------- --------- -------
<S> <C> <C> <C> <C> <C>
Thomas M. O'Gara(2)................ 4,030,838(3) 87.4% 373,524(4) 3,657,314(5) 52.2%
Wilfred T. O'Gara(2)............... 260,266 5.6 -- 260,266 3.7
Nicholas P. Carpinello............. 56,866 1.2 -- 56,866 *
Richard L. Curotto................. 23,201 0.5 -- 23,201 *
Charles A. Williams................ 26,476 0.6 26,476 -- --
Michael J. Lennon.................. -- -- -- -- --
Raymond E. Mabus................... -- -- -- -- --
Hugh E. Price...................... -- -- -- -- --
William S. Sessions................ -- -- -- -- --
All directors, nominees and 4,417,171 95.8 373,524 4,043,647 57.7
executive officers as a group (10
persons).........................
</TABLE>
- ---------------
* Less than 1% of the outstanding Common Stock.
(1) Pursuant to the regulations of the Commission, shares are deemed to be
"beneficially owned" by a person if such person directly or indirectly has
or shares the power to vote or dispose of such shares, whether or not such
person has any pecuniary interest in such shares, or has or shares the right
to acquire the power to vote or dispose of such shares within 60 days,
including through the exercise of any option, warrant or right.
(2) The address of Messrs. Thomas M. and Wilfred T. O'Gara is 9113 LeSaint
Drive, Fairfield, Ohio 45014.
(3) Includes 793,095 shares held by MeesPierson Management (Guernsey) Ltd. and
373,524 shares held by Union Federal Corporation over which Thomas M. O'Gara
has indirect voting control and 2,864,219 shares held by a family trust.
(4) All 373,524 shares are to be sold by Union Federal Corporation.
(5) Includes 793,095 shares held by MeesPierson Management (Guernsey) Ltd. and
2,864,219 shares held by a family trust.
50
<PAGE> 53
DESCRIPTION OF CAPITAL STOCK
Upon the Reorganization and immediately prior to the issuance of Common
Stock in the Offering, the Company's authorized capital stock will consist of
25,000,000 shares of Common Stock, $.01 par value per share, and 100,000 shares
of undesignated preferred stock, $.01 par value per share. The following
description of certain matters relating to the capital stock of the Company is a
summary and is qualified in its entirety by the provision of the Company's
Restated Articles of Incorporation and Code of Regulations and by the provisions
of the Ohio General Corporation Law.
COMMON STOCK
Holders of Common Stock are entitled to one vote for each share held of
record on all matters submitted to a vote of shareholders. Shareholders do not
have the right to cumulate their votes in the election of directors.
Subject to preferences which have been and may be granted to holders of
preferred stock, holders of Common Stock are entitled to share in such dividends
as the Board of Directors, in its discretion, may validly declare from funds
legally available. In the event of liquidation, each outstanding share of Common
Stock entitles its holder to participate ratably in the assets remaining after
payment of liabilities and any preferred stock liquidation preferences.
Shareholders have no preemptive or other rights to subscribe for or
purchase additional shares of any class of stock or any other securities of the
Company. There are no redemption or sinking fund provisions with regard to the
Common Stock. All outstanding shares of Common Stock are fully paid, validly
issued and nonassessable.
The vote of holders of a majority of all outstanding shares of Common Stock
is required to amend the Restated Articles of Incorporation and to approve
mergers, reorganizations, and similar transactions.
PREFERRED STOCK
Up to 100,000 authorized shares of preferred stock may be issued from time
to time in series having such designations, preferences and rights,
qualifications and limitations as the Board of Directors may determine without
any approval of shareholders. Preferred stock could be given rights which would
adversely affect the equity of holders of Common Stock and could have preference
to Common Stock with respect to dividend and liquidation rights. Issuance of
preferred stock could have the effect of acting as an anti-takeover device to
prevent a change of control of the Company.
PROVISIONS AFFECTING BUSINESS COMBINATIONS AND CHANGES IN CONTROL
Ohio law governs the rights of shareholders of the Company. Chapter 1704 of
the Ohio Revised Code may be viewed as having an anti-takeover effect. This
statute, in general, prohibits an "issuing public corporation" (the definition
of which would include the Company) from entering into a "Chapter 1704
Transaction" with the beneficial owner (or affiliates of such beneficial owner)
of 10% or more of the outstanding shares of the corporation (an "interested
shareholder") for at least three years following the date on which the
interested shareholder attains such 10% ownership, unless the board of directors
of the corporation approves, prior to such person becoming an interested
shareholder, either the transaction or the acquisition of shares resulting in a
10% ownership position. A "Chapter 1704 Transaction" is broadly defined to
include, among other things, a merger or consolidation with, a sale of
substantial assets to, or the receipt of a loan, guaranty or other financial
benefit (which is not proportionately received by all shareholders) from the
interested shareholder. Following the expiration of such three-year period, a
Chapter 1704 Transaction with the interested shareholder is permitted only if
either (i) the transaction is approved by the holders of at least two-thirds of
the voting power of the corporation (or such different proportion as is set
forth in the corporation's articles of incorporation), including a majority of
the outstanding shares excluding those owned by the interested shareholder, or
(ii) the business combination results in the shareholders other than the
interested shareholder receiving a prescribed "fair price" for their shares. One
significant effect of Chap-
51
<PAGE> 54
ter 1704 is to encourage a person to negotiate with the board of directors of a
corporation prior to becoming an interested shareholder.
In addition, Section 1707.043 of the Ohio Revised Code requires a person or
entity that makes a proposal to acquire the control of a corporation to repay to
that corporation any profits made from trades in the corporation's stock within
18 months after making the control proposal.
Section 1701.831 of the Ohio GCL (the "Control Share Acquisition Statute")
requires shareholder approval of any proposed "control share acquisition" of an
Ohio corporation. A "control share acquisition" is the acquisition, directly or
indirectly, by any person (including any individual, partnership, corporation,
limited liability company, society, association or two or more persons who have
a joint or common interest) of shares of a corporation that, when added to all
other shares of the corporation that may be voted, directly or indirectly, by
the acquiring person, would entitle such person to exercise or direct the
exercise of 20% or more (but less than 33 1/3%) of the voting power of the
corporation in the election of directors or 33 1/3% or more (but less than a
majority) of such voting power or a majority or more of such voting power. Under
the Control Share Acquisition Statute, the control share acquisition must be
approved in advance by the holders of a majority of the outstanding voting
shares represented at a meeting at which a quorum is present and by the holders
of a majority of the portion of the outstanding voting shares represented at
such a meeting excluding the voting shares owned by the acquiring shareholder
and certain "interested shares," including shares owned by officers elected or
appointed by the directors of the corporation and by directors of the
corporation who are also employees of the corporation.
The purpose of the Control Share Acquisition Statute is to give
shareholders of Ohio corporations a reasonable opportunity to express their
views on a proposed shift in control, thereby reducing the coercion inherent in
an unfriendly takeover. The provisions of the Control Share Acquisition Statute
grant to the shareholders of the Company the assurance that they will have
adequate time to evaluate the proposal of the acquiring person, that they will
be permitted to vote on the issue of authorizing the acquiring person's purchase
program to go forward in the same manner and with the same proxy information
that would be available to them if a proposed merger of the Company were before
them and, most importantly, that the interests of all shareholders will be taken
into account in connection with such vote and the probability will be increased
that they will be treated equally regarding the price to be offered for their
common shares if the implementation of the proposal is approved.
The Control Share Acquisition Statute applies not only to traditional
offers but also to open market purchases, privately negotiated transactions and
original issuances by an Ohio corporation, whether friendly or unfriendly. The
procedural requirements of the Control Share Acquisition Statute could render
approval of any control share acquisition difficult in that the transaction must
be authorized at a special meeting of shareholders, at which a quorum is
present, by the affirmative vote of the majority of the voting power represented
and by a majority of the portion of such voting power excluding "interested
shares." It is recognized that any corporate defense against persons seeking to
acquire control may have the effect of discouraging or preventing offers which
some shareholders might find financially attractive. On the other hand, the need
on the part of the acquiring person to convince the shareholders of the Company
of the value and validity of his offer may cause such offer to be more
financially attractive in order to gain shareholder approval.
While the Company believes that these provisions are in its best interests,
potential shareholders should be aware that such provisions could be
disadvantageous to them because the overall effect of these statutes may be to
render more difficult or discourage the removal of incumbent management or the
assumption of effective control by other persons.
TRANSFER AGENT AND REGISTRAR
The registrar and transfer agent for the Company's Common Stock is The
Fifth Third Bank, Cincinnati, Ohio.
52
<PAGE> 55
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of the Offering, the Company will have outstanding
7,011,846 shares of Common Stock. The 2,800,000 shares sold in the Offering and
any of the up to 420,000 shares sold upon exercise of the Underwriters'
over-allotment option, will be freely tradeable by persons other than
"affiliates" of the Company, as that term is defined in Rule 144 under the
Securities Act of 1933, as amended (the "Act"), without restriction or
registration under that Act. The remaining 4,211,846 shares (the "Restricted
Shares") will be held by the Company's current shareholders. The Restricted
Shares may not be sold unless they are registered under the Act or sold pursuant
to an applicable exemption from registration, including an exemption pursuant to
Rule 144. The Company and its current shareholders have agreed not to offer,
sell or otherwise dispose of any shares of Common Stock, including the
Restricted Shares, for a period of 180 days from the date of this Prospectus,
without the prior written consent of Dillon, Read & Co. Inc.
Rule 144 governs the public sale in ordinary trading transactions of
"restricted securities" and of securities owned by "affiliates." Restricted
securities are securities acquired directly or indirectly from an issuer in a
transaction not involving a public offering. In general, under Rule 144, if a
holding period of at least two years has elapsed since the date the restricted
securities were acquired from the Company, then the holder of such restricted
securities (including an affiliate of the Company) is entitled, subject to
certain conditions, to sell within any three-month period a number of shares
which does not exceed the greater of (i) 1% of the Company's then outstanding
shares of Common Stock or (ii) the shares' average weekly trading volume during
the four calendar weeks preceding such sale. Sales under Rule 144 are also
subject to certain manner-of-sale provisions and requirements as to notice and
the availability of current public information about the Company. The Company
anticipates that essentially all of the Restricted Shares will be eligible for
sale 90 days after the Offering pursuant to Rule 144.
The Company has reserved up to 400,000 shares of its Common Stock for
issuance under its 1996 Stock Option Plan (the "Plan"). Upon the completion of
the Offering there will be options for 180,000 shares of Common Stock
outstanding under the Plan. The Company currently intends to register the shares
of Common Stock reserved for issuance under the Plan. Subject to the expiration
of the 180-day lock-up period, and subject to compliance with Rule 144 by
affiliates of the Company and to Section 16 of the Securities Exchange Act of
1934 by directors, officers and 10% beneficial owners, any shares issued upon
exercise of options granted under the Plan will become freely tradeable at the
effective date of the registration statement for the Plan shares.
Prior to the Offering, there has been no public market for the Common
Stock, and no prediction can be made as to the effect, if any, that market sales
of shares or the availability of shares for sale will have on the market price
prevailing from time to time. Nevertheless, sales of substantial amounts of
Common Stock in the public market could adversely affect prevailing market
prices and the Company's ability to raise capital at favorable prices.
Application has been made for listing of Common Stock for quotation on the
Nasdaq National Market under the symbol "OGAR." There can be no assurance,
however, that, if approved, the Company will be able to maintain its Nasdaq
listing.
53
<PAGE> 56
THE O'GARA COMPANY (NOTE 1)
INDEX TO COMBINED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Report of Independent Public Accountants.............................................. F-2
Combined Balance Sheets as of December 31, 1994 and 1995 and June 30, 1996
(unaudited)......................................................................... F-3
Combined Statements of Operations for the Years Ended December 31, 1993, 1994 and 1995
and the Six Months Ended June 30, 1995 and 1996 (unaudited)......................... F-5
Combined Statements of Shareholders' Equity for the Years Ended December 31, 1993,
1994 and 1995 and the Six Months Ended June 30, 1996 (unaudited).................... F-6
Combined Statements of Cash Flows for the Years Ended December 31, 1993, 1994 and 1995
and the Six Months Ended June 30, 1995 and 1996 (unaudited)......................... F-7
Notes to Combined Financial Statements................................................ F-8
</TABLE>
F-1
<PAGE> 57
After the reorganization transaction discussed in Note 1 to The O'Gara
Company's combined financial statements is effected, we expect to be in a
position to render the following audit report.
Cincinnati, Ohio, ARTHUR ANDERSEN LLP
July 10, 1996,
except for Notes 14 and 15
as to which the date is August 29, 1996
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Shareholders of
The O'Gara Company:
We have audited the accompanying combined balance sheets of THE O'GARA
COMPANY (Note 1) as of December 31, 1994 and 1995 and the related combined
statements of operations, shareholders' equity and cash flows for each of the
three years in the period ended December 31, 1995. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of The O'Gara Company (Note 1)
as of December 31, 1994 and 1995 and the results of its operations and cash
flows for each of the three years in the period ended December 31, 1995, in
conformity with generally accepted accounting principles.
F-2
<PAGE> 58
THE O'GARA COMPANY
COMBINED BALANCE SHEETS
ASSETS (NOTE 5)
<TABLE>
<CAPTION>
PRO FORMA
JUNE 30,
DECEMBER 31, DECEMBER 31, JUNE 30, 1996
1994 1995 1996 (NOTE 15)
------------ ------------ ----------- -----------
<S> <C> <C> <C> <C>
(UNAUDITED) (UNAUDITED)
CURRENT ASSETS:
Cash............................................... $ 633,653 $ 323,851 $ 1,087,765 $ 1,061,258
Trade accounts receivable, net of allowance for
doubtful accounts of $100,373, $109,283 and
$159,631 in 1994, 1995 and 1996, respectively
(Note 2)........................................ 7,857,678 7,094,894 6,231,733 5,966,733
Other receivables (Note 4) --
Advances to shareholders........................ 69,094 204,698 382,577 382,577
Affiliates...................................... 3,914 128,222 196,858 196,858
Advances to vendors (Notes 2 and 10)............... -- 3,360,136 3,203,498 3,203,498
Notes receivable -- shareholder (Note 4)........... -- 233,253 239,961 239,961
Note receivable -- affiliate (Note 4).............. -- -- 310,000 310,000
Costs and estimated earnings in excess of billings
on uncompleted contracts (Note 2)............... 3,742,788 7,700,075 12,152,367 12,152,367
Inventories (Note 2)............................... 3,337,129 4,927,499 7,272,362 7,272,362
Prepaid expenses................................... 98,930 149,250 286,042 286,042
Deferred tax asset (Note 2)........................ -- -- -- 883,000
----------- ----------- ----------- -----------
Total current assets....................... 15,743,186 24,121,878 31,363,163 31,954,656
----------- ----------- ----------- -----------
PROPERTY, PLANT AND EQUIPMENT,
at cost (Note 6):
Land............................................ 372,039 372,039 372,039 372,039
Buildings and improvements...................... 2,743,557 2,762,905 2,932,906 2,932,906
Furniture and fixtures.......................... 1,124,775 1,286,421 1,481,593 1,473,469
Machinery and equipment......................... 1,802,990 2,260,005 2,681,838 2,681,838
----------- ----------- ----------- -----------
6,043,361 6,681,370 7,468,376 7,460,252
Less accumulated depreciation................... (3,098,732) (3,510,702) (3,799,781) (3,799,781)
----------- ----------- ----------- -----------
2,944,629 3,170,668 3,668,595 3,660,471
----------- ----------- ----------- -----------
OTHER ASSETS (Note 2)................................ 555,388 524,440 1,233,349 1,233,349
----------- ----------- ----------- -----------
$ 19,243,203 $ 27,816,986 $36,265,107 $36,848,476
=========== =========== =========== ===========
</TABLE>
The accompanying notes to combined financial statements
are an integral part of these combined balance sheets.
F-3
<PAGE> 59
THE O'GARA COMPANY
COMBINED BALANCE SHEETS
LIABILITIES AND SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
PRO FORMA
JUNE 30,
DECEMBER 31, DECEMBER 31, JUNE 30, 1996
1994 1995 1996 (NOTE 15)
------------ ------------ ----------- -----------
<S> <C> <C> <C> <C>
(UNAUDITED) (UNAUDITED)
CURRENT LIABILITIES:
Revolving lines of credit (Note 5)................. $ 5,637,740 $ 10,188,765 $13,645,975 $13,645,975
Current portion of long-term debt (Note 6)......... 1,725,620 1,649,018 1,623,327 1,623,327
Notes payable -- shareholders (Note 4)............. 308,630 308,630 268,630 268,630
Accounts payable --
Trade........................................... 4,376,214 10,075,075 10,087,349 10,087,349
Affiliates (Note 4)............................. 127,645 499,730 716,971 371,082
Billings in excess of costs and estimated earnings
on uncompleted contracts (Note 2)............... 1,749,192 1,706,042 469,935 469,935
Accrued liabilities................................ 2,179,729 1,677,307 2,062,642 2,062,642
Customer deposits.................................. 1,637,622 1,248,197 3,104,267 3,104,267
----------- ----------- ----------- -----------
Total current liabilities.................. 17,742,392 27,352,764 31,979,096 31,633,207
----------- ----------- ----------- -----------
SUBORDINATED NOTES PAYABLE - SHAREHOLDERS............ -- -- -- 9,000,000
----------- ----------- ----------- -----------
LONG-TERM DEBT, net of current portion (Note 6)...... 228,088 225,429 270,497 270,497
----------- ----------- ----------- -----------
COMMITMENTS AND CONTINGENCIES
(Notes 7 and 10)
SHAREHOLDERS' EQUITY (DEFICIT) (Notes 1 and 14):
Preferred stock, $.01 par value, 100,000 shares
authorized; none issued......................... -- -- -- --
Common stock, $.01 par value, 25,000,000 shares
authorized, 3,568,008, 4,490,383 and 4,490,383
shares issued and outstanding in 1994, 1995 and
1996, respectively, and 4,611,846 shares pro
forma........................................... 14,072 15,235 15,235 14,235
Additional paid-in-capital......................... 2,482,140 2,730,977 2,730,977 260,512
Retained earnings (deficit)........................ (1,223,982) (2,508,834) 1,262,843 (4,336,434)
Cumulative foreign currency translation adjustment
(Note 2)........................................ 493 1,415 6,459 6,459
----------- ----------- ----------- -----------
Total shareholders' equity (deficit)....... 1,272,723 238,793 4,015,514 (4,055,228)
----------- ----------- ----------- -----------
$ 19,243,203 $ 27,816,986 $36,265,107 $36,848,476
=========== =========== =========== ===========
</TABLE>
The accompanying notes to combined financial statements
are an integral part of these combined balance sheets.
F-4
<PAGE> 60
THE O'GARA COMPANY
COMBINED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
----------------------------------------- --------------------------
1993 1994 1995 1995 1996
----------- ----------- ----------- ----------- -----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
NET SALES................... $21,054,044 $33,912,279 $32,816,996 $12,161,513 $41,520,784
COST OF SALES............... 14,640,361 24,505,236 25,237,159 9,307,793 31,382,806
----------- ----------- ----------- ----------- -----------
Gross profit........... 6,413,683 9,407,043 7,579,837 2,853,720 10,137,978
OPERATING EXPENSES:
Selling and marketing..... 1,932,055 2,735,940 3,628,312 1,352,759 2,158,603
General and
administrative......... 3,169,343 4,440,552 4,129,017 2,079,618 3,286,492
----------- ----------- ----------- ----------- -----------
Operating income
(loss)............... 1,312,285 2,230,551 (177,492) (578,657) 4,692,883
OTHER INCOME (EXPENSES):
Interest expense.......... (269,463) (410,325) (841,972) (365,632) (613,293)
Interest income........... 6,891 54,099 23,010 10,985 --
Other..................... (88,033) 6,151 (100,813) (57,927) (85,576)
Equity in income (loss) of
joint venture (Note
2)..................... -- -- (24,785) -- 7,663
----------- ----------- ----------- ----------- -----------
Net income (loss)...... $ 961,680 $ 1,880,476 $(1,122,052) $ (991,231) $ 4,001,677
=========== =========== =========== =========== ===========
UNAUDITED PRO FORMA
INFORMATION (Note 15):
Operating income (loss)... $ (177,492) $ 4,692,883
Interest expense.......... (185,000) (94,000)
Interest income........... 23,010 --
Other..................... (100,813) (85,576)
Equity in income (loss) of
joint venture.......... (24,785) 7,663
----------- -----------
Income (loss) before
provision (benefit)
for income taxes..... (465,080) 4,520,970
Provision (benefit) for
income taxes........... (186,000) 1,808,000
----------- -----------
Net income (loss)...... $ (279,080) $ 2,712,970
=========== ===========
Earnings (loss) per
share.................. $ (0.05) $ 0.41
=========== ===========
Weighted average shares
outstanding............ 6,071,751 6,574,833
=========== ===========
</TABLE>
The accompanying notes to combined financial statements
are an integral part of these combined statements.
F-5
<PAGE> 61
THE O'GARA COMPANY
COMBINED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
FOREIGN
CURRENCY
ADDITIONAL RETAINED TRANSLATION
COMMON PAID-IN EARNINGS ADJUSTMENT
STOCK CAPITAL (DEFICIT) (NOTE 2) TOTAL
------- ---------- ----------- ---------- -----------
<S> <C> <C> <C> <C> <C>
BALANCE, January 1, 1993.............. $ 9,826 $ 914,661 $(2,636,988) $ -- $(1,712,501)
Net income............................ -- -- 961,680 -- 961,680
Accrual of stock option compensation
(Note 9)............................ -- 207,335 -- -- 207,335
Distributions to shareholders......... -- -- (480,000) -- (480,000)
------- ---------- ----------- ------ -----------
BALANCE, December 31, 1993............ 9,826 1,121,996 (2,155,308) -- (1,023,486)
Net income............................ -- -- 1,880,476 -- 1,880,476
Aggregate translation adjustment...... -- -- -- 493 493
Issuance of OHE stock (Note 13)....... 3,246 1,356,144 -- -- 1,359,390
Incorporation of Limited.............. 1,000 4,000 -- -- 5,000
Distributions to shareholders......... -- -- (949,150) -- (949,150)
------- ---------- ----------- ------ -----------
BALANCE, December 31, 1994............ 14,072 2,482,140 (1,223,982) 493 1,272,723
Net loss.............................. -- -- (1,122,052) -- (1,122,052)
Aggregate translation adjustment...... -- -- -- 922 922
Incorporation of OSN.................. 1,163 248,837 -- -- 250,000
Distributions to shareholders......... -- -- (162,800) -- (162,800)
------- ---------- ----------- ------ -----------
BALANCE, December 31, 1995............ 15,235 2,730,977 (2,508,834) 1,415 238,793
Net income (unaudited)................ -- -- 4,001,677 -- 4,001,677
Aggregate translation adjustment
(unaudited)......................... -- -- -- 5,044 5,044
Distributions to shareholders
(unaudited)......................... -- -- (230,000) -- (230,000)
------- ---------- ----------- ------ -----------
BALANCE, June 30, 1996 (unaudited).... $15,235 $2,730,977 $ 1,262,843 $6,459 $ 4,015,514
======= ========== =========== ====== ===========
</TABLE>
The accompanying notes to combined financial statements
are an integral part of these combined statements.
F-6
<PAGE> 62
THE O'GARA COMPANY
COMBINED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
--------------------------------------- -------------------------
1993 1994 1995 1995 1996
----------- ----------- ----------- ----------- -----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss)....................................... $ 961,680 $ 1,880,476 $(1,122,052) $ (991,231) $ 4,001,677
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities --
Depreciation and amortization......................... 266,243 469,889 476,868 345,521 316,615
Stock option compensation............................. 207,335 -- -- -- --
Decrease (increase) in receivables.................... 1,574,339 (4,887,854) 502,872 2,968,992 601,646
Decrease (increase) in advances to vendors............ -- -- (3,360,136) -- 156,638
Decrease (increase) in costs and estimated earnings in
excess of billings on uncompleted contracts......... (2,134,330) (1,608,458) (3,957,287) 401,006 (4,452,292)
Decrease (increase) in inventories.................... 463,585 (444,879) (1,590,370) (2,339,933) (2,344,863)
Decrease (increase) in prepaid expenses............... (80,670) 47,839 (50,320) (17,014) (136,792)
Increase in other assets.............................. (312,958) (146,882) (33,950) (58,646) (621,491)
Increase (decrease) in accounts payable............... 898,891 106,655 6,070,946 (113,510) 229,515
Increase (decrease) in billings in excess of costs and
estimated earnings on uncompleted contracts......... 1,321,542 427,650 (43,150) (1,061,957) (1,236,107)
Increase (decrease) in accrued liabilities............ (851,621) 1,021,620 (502,422) (151,453) 385,335
Increase (decrease) in customer deposits.............. (1,506,793) 871,021 (389,425) 139,888 1,856,070
----------- ----------- ----------- ----------- -----------
Net cash provided by (used in) operating
activities..................................... 807,243 (2,262,923) (3,998,426) (878,337) (1,244,049)
----------- ----------- ----------- ----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property, plant and equipment.............. (636,687) (683,319) (638,009) (153,022) (786,960)
Investment in shareholder and affiliate notes........... -- -- (233,253) -- (316,708)
----------- ----------- ----------- ----------- -----------
Net cash used in investing activities............ (636,687) (683,319) (871,262) (153,022) (1,103,668)
----------- ----------- ----------- ----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net borrowings under revolving lines of credit.......... 246,386 4,676,630 4,551,025 761,216 3,457,210
Proceeds from long-term debt............................ 257,705 30,958 41,608 -- --
Payments of long-term debt.............................. (12,105) (109,351) (120,869) (69,007) (80,623)
Repayment of shareholder notes.......................... (175,000) (190,000) -- -- (40,000)
Proceeds from issuance of common stock.................. -- 104,390 250,000 250,000 --
Foreign currency translation............................ -- 493 922 (64) 5,044
Distributions to shareholders........................... (480,000) (949,150) (162,800) (162,800) (230,000)
----------- ----------- ----------- ----------- -----------
Net cash provided by (used in) financing
activities..................................... (163,014) 3,563,970 4,559,886 779,345 3,111,631
----------- ----------- ----------- ----------- -----------
NET INCREASE (DECREASE) IN CASH........................... 7,542 617,728 (309,802) (252,014) 763,914
----------- ----------- ----------- ----------- -----------
CASH, beginning of year................................... 8,383 15,925 633,653 633,653 323,851
----------- ----------- ----------- ----------- -----------
CASH, end of year......................................... $ 15,925 $ 633,653 $ 323,851 $ 381,639 $ 1,087,765
=========== =========== =========== =========== ===========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for interest.................................. $ 671,000 $ 361,000 $ 796,000 $ 402,000 $ 565,000
=========== =========== =========== =========== ===========
SUPPLEMENTAL DISCLOSURE OF NON-CASH ACTIVITIES:
Conversion of note payable to the majority shareholder
to common stock (Note 13)............................. $ -- $ 1,260,000 $ -- $ -- $ --
=========== =========== =========== =========== ===========
Note payable obligation incurred and receivable forgiven
in connection with non-compete agreement (Notes 1 and
2).................................................... $ -- $ -- $ -- $ -- $ 115,000
=========== =========== =========== =========== ===========
</TABLE>
The accompanying notes to combined financial statements
are an integral part of these combined statements.
F-7
<PAGE> 63
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS
(FOR THE YEARS ENDED DECEMBER 31, 1993, 1994 AND 1995 AND
UNAUDITED FOR THE SIX MONTHS ENDED JUNE 30, 1995 AND 1996)
(1) BASIS OF PRESENTATION
The accompanying combined financial statements consist of the following
entities, all of which are owned or controlled by substantially the same
shareholders, with one such shareholder owning or controlling approximately 86%
to 88% of each entity:
COMBINING ENTITIES --
O'Gara-Hess & Eisenhardt Armoring Company (OHE) -- OHE is a Delaware S
Corporation whose principal business is the armoring of commercial and military
vehicles for the U.S. Government, foreign governments, large foreign and
domestic corporations and individuals.
O'Gara Satellite Networks Limited (Satellite Ltd.), and its wholly owned
subsidiary, O'Gara Satellite Networks, Inc. (Satellite Inc.) (collectively
"OSN") -- OSN is engaged in the business of providing satellite communication
equipment and services primarily to European and Middle Eastern customers.
O'Gara-Hess & Eisenhardt Armoring Company Limited (Limited) -- Limited is
an Irish corporation that is engaged in the armoring of commercial vehicles
primarily for Middle Eastern governments, large foreign corporations and
individuals.
O'Gara-Hess & Eisenhardt de Mexico S.A. de C.V. (OHEM) -- OHEM, a 100%
owned Mexican subsidiary of Limited, was formed in 1995 for the purpose of
producing light armored commercial vehicles primarily for customers in Mexico.
In June 1996, Limited acquired the 49% minority interest in OHEM not previously
owned. In conjunction with this acquisition, Limited entered into a two year
employment agreement, a five year non-competition agreement and a commission
agreement with the former shareholder. Under the terms of these agreements,
Limited forgave a $15,000 receivable from the former shareholder and is required
to pay the former shareholder $100,000 prior to October 1, 1997 (see Notes 2 and
6).
O'Gara-Hess & Eisenhardt do Brasil (OHEB) -- OHEB, a 75% owned Brazilian
subsidiary of Limited, was formed in 1996 for the purpose of producing armored
commercial vehicles primarily for customers in South America (see Note 14).
O'Gara Security International, Inc. (OSI) -- OSI, a Delaware corporation
and a 100% owned subsidiary of Limited, was formed in 1996 for the purpose of
providing security products and services in the former Soviet Union.
O'Gara-Hess & Eisenhardt, S.r.1. (Italy) -- Italy, a 90% owned Italian
subsidiary of Limited was formed in 1992 for the purpose of facilitating
contract manufacturing of armored commercial vehicles by an unrelated
manufacturer, FGP, S.r.1.
REORGANIZATION --
In contemplation of a public equity offering (see Notes 14 and 15), the
above combining entities and respective shareholders have entered into a
reorganization plan which will result in the following:
(1) The shareholders of OHE will transfer their ownership interests in
OHE to The O'Gara Company (the Company), an Ohio corporation which prior to
the proposed public equity offering had nominal assets and no operations,
in exchange for common stock of the Company. The ratio of exchange was
272.95 shares of Company common stock for each share of OHE stock.
(2) The Company will then acquire all of the equity ownership of OSN
from the shareholders of OSN in exchange for shares of Company common
stock. The ratio of exchange was 793.1 shares of Company common stock for
each share of OSN stocks.
F-8
<PAGE> 64
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(3) OHE will acquire substantially all of the net assets and
operations of Limited.
This reorganization will occur immediately prior to the effective date of
the Registration Statement filed in connection with the Company's anticipated
sale of common stock to the public. Accordingly, the accompanying combined
financial statements present, as a combination of entities under common control
as if using the pooling method of accounting, the financial position and related
results of operations of the Company on a combined basis for all periods
presented. All significant balances and transactions between the combined
entities have been eliminated in these combined statements.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Business -- The Company operates in one segment, providing security
products and services worldwide. The Company's primary products include the
armoring of commercial and military vehicles. The Company also sells and
integrates telecommunications equipment and sells satellite and other
telecommunications services. The following summarizes the Company's foreign and
domestic sales (in 000's):
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEARS ENDED DECEMBER 31, JUNE 30,
--------------------------- -----------------
1993 1994 1995 1995 1996
------- ------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Sales to unaffiliated customers:
U.S. Government........................ $ 3,881 $15,332 $11,514 $ 1,899 $28,714
Other United States.................... 4,670 2,711 7,356 4,208 3,595
Middle East............................ 7,252 7,795 8,582 4,038 3,278
Central & South America................ 972 4,093 1,050 929 1,875
Other foreign.......................... 4,279 3,981 4,315 1,088 4,059
------- ------- ------- ------- -------
$21,054 $33,912 $32,817 $12,162 $41,521
======= ======= ======= ======= =======
</TABLE>
The Company is subject to audit and investigation by various agencies which
oversee contract performance in connection with the Company's contracts with the
U.S. Government. Management believes that potential claims from such audits and
investigations will not have a material adverse effect on the combined financial
statements. In addition, contracts with the U.S. Government generally contain
cost or performance incentives or both based on stated targets or other
criteria. Cost or performance incentives are recorded at the time there is
sufficient information to relate actual performance to targets or other
criteria.
(b) Revenue Recognition -- Revenue related to government contracts and most
commercial contracts results principally from long-term fixed price contracts
and is recognized on the percentage-of-completion method calculated utilizing
the cost-to-cost approach. The percent deemed to be complete is calculated by
comparing the costs incurred to date to estimated total costs for each contract.
This method is used because management considers costs incurred to be the best
available measure of progress on these contracts. However, adjustments to this
measurement are made when management believes that costs incurred materially
exceed effort expended. Contract costs include all direct material and labor
costs, along with certain direct overhead costs related to contract production.
Provisions for any estimated total contract losses on uncompleted contracts
are recorded in the period in which it becomes known that such losses will
occur. Changes in estimated total contract costs will result in revisions to
contract revenue. These revisions are recognized when determined.
Revenue related to telecommunications equipment and services is recognized
as equipment is shipped or as services are provided. Revenue and related direct
costs of brokered satellite time are recorded when payments are received from
customers.
F-9
<PAGE> 65
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(c) Trade Accounts Receivable and Costs and Estimated Earnings in Excess of
Billings on Uncompleted Contracts -- The following summarizes the components of
trade accounts receivable and costs and estimated earnings in excess of billings
on uncompleted contracts:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------- JUNE 30,
1994 1995 1996
---------- ---------- -----------
(UNAUDITED)
<S> <C> <C> <C>
United States Military:
Billed receivables...................................... $3,149,957 $2,322,553 $ 2,736,705
Costs and estimated earnings in excess of billings on
uncompleted contracts................................ 3,236,830 6,201,466 9,471,860
---------- ---------- -----------
Total United States Military......................... $6,386,787 $8,524,019 $12,208,565
========== ========== ===========
Other contracts:
Billed receivables...................................... $4,707,721 $4,772,341 $ 3,495,028
Costs and estimated earnings in excess of billings on
uncompleted contracts................................ 505,958 1,498,609 2,680,507
---------- ---------- -----------
Total other contracts................................ $5,213,679 $6,270,950 $ 6,175,535
========== ========== ===========
Total trade accounts receivable........................... $7,857,678 $7,094,894 $ 6,231,733
========== ========== ===========
Total costs and estimated earnings in excess of billings
on uncompleted contracts................................ $3,742,788 $7,700,075 $12,152,367
========== ========== ===========
</TABLE>
Costs and estimated earnings in excess of billings on uncompleted
contracts are net of $13,331,608 and $20,385,270 of progress billings to the
United States Military at December 31, 1994 and 1995, respectively, and
$46,401,061 at June 30, 1996.
Costs and estimated earnings in excess of billings on uncompleted
contracts represent revenue recognized on long-term contracts in excess of
billings because amounts were not billable at the balance sheet date. It is
anticipated such unbilled amounts attributable to the United States Military
will generally be billed over the next 90 days as the contract is substantially
completed. Amounts receivable on other contracts are generally billed as
shipments are made. It is estimated that substantially all of such amounts will
be billed within one year, although contract extensions may delay certain
collections beyond one year.
(d) Advances to Vendors -- OHE and OSN periodically make advances to
vendors. Such advances are non-interest bearing and are generally applied to
vendor billings for shipments of inventory (Note 5).
(e) Inventories -- Inventories are stated at the lower of cost or market
using the first-in, first-out (FIFO) method and include the following:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------- JUNE 30,
1994 1995 1996
---------- ---------- ----------
(UNAUDITED)
<S> <C> <C> <C>
Raw materials.............................................. $1,603,816 $2,306,176 $3,670,031
Vehicle costs and work-in-process.......................... 1,733,313 2,621,323 3,602,331
---------- ---------- ----------
$3,337,129 $4,927,499 $7,272,362
========== ========== ==========
</TABLE>
F-10
<PAGE> 66
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(f) Property, Plant and Equipment -- Property, plant and equipment are
stated at cost. Depreciation is computed on the straight-line method over the
estimated useful lives of the related assets as follows:
<TABLE>
<S> <C>
Buildings and improvements..................................... 19-40 years
Furniture and fixtures......................................... 5-7 years
Machinery and equipment........................................ 5-7 years
</TABLE>
(g) Other Assets -- Other assets are stated at cost less accumulated
amortization and are being amortized on a straight line basis over their
estimated useful lives. Other assets consist of the following:
<TABLE>
<CAPTION>
JUNE 30,
USEFUL DECEMBER 31, 1996
LIFE --------------------- ----------
DESCRIPTION (YEARS) 1994 1995
- ----------------------------------------------------- ------ --------- --------- (UNAUDITED)
<S> <C> <C> <C> <C>
Non-refundable deposit on an equipment lease with a
related party (see Notes 4 and 7).................. 10 $ 503,858 $ 503,858 $ 503,058
Prepaid offering costs............................... -- -- -- 545,413
Non-compete agreement with a former OHEM
shareholder........................................ 5 -- -- 115,000
Loan origination costs............................... 30 152,940 152,940 152,940
Patents, trademarks, tradenames and distributor
agreements......................................... 5-10 50,000 50,000 50,000
Investment in OGM (see Note 2(n)).................... -- -- 25,215 57,378
Deposit on building (see Note 10).................... -- -- -- 29,000
Deferred bid costs and other......................... -- 14,726 23,461 39,176
--------- --------- ----------
721,524 755,474 1,491,965
Less-accumulated amortization........................ (166,136) (231,034) (258,616)
--------- --------- ----------
$ 555,388 $ 524,440 $1,233,349
========= ========= =========
</TABLE>
Costs applicable to bids in process are deferred when management believes
it is probable that future contracts will be obtained. These costs are
transferred to contract costs when contracts are awarded or are expensed when
the contract award is no longer considered probable.
(h) Income Taxes -- OHE is an S Corporation for federal and state income
tax purposes. As an S Corporation, OHE generally is not responsible for income
taxes. Instead, OHE's taxable income or loss is included in the applicable
shareholders' individual federal and state income tax returns.
As described in Notes 1, 14 and 15, the Company has pending an initial
public offering for the sale of common stock. Prior to the consummation of the
offering, OHE's status as an S Corporation will be terminated and, accordingly,
OHE will be subject to federal and state income taxes after the sale of the
common stock of the Company. In addition, OHE will be required to recognize a
deferred tax asset for cumulative temporary differences between financial
reporting and tax reporting, which include primarily accruals and reserves not
currently deductible for tax purposes. Such deferred tax asset will be based on
the cumulative temporary difference at the date of termination of the S
Corporation status. If the termination of the S Corporation status had occurred
at December 31, 1995 or June 30, 1996, the deferred tax asset would have been
approximately $730,000 or $883,000, respectively.
The income tax provisions (benefits) of OSN, Limited, OHEM, OHEB, OSI and
Italy are not material to the accompanying combined statements of operations.
(i) Foreign Currency Translation -- Assets and liabilities of foreign
operations are translated using year-end exchange rates and revenues and
expenses are translated using exchange rates prevailing during the year,
F-11
<PAGE> 67
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
with gains or losses resulting from translation included in a separate component
of shareholders' equity. Gains and losses resulting from transactions in foreign
currencies were immaterial.
(j) Use of Estimates -- The preparation of financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
(k) Interim Information -- The accompanying interim combined financial
statements have been prepared in accordance with generally accepted accounting
principles for interim financial information. Accordingly, they do not include
all of the information and notes required by generally accepted accounting
principles for complete financial statements. In the opinion of management, all
adjustments and reclassifications considered necessary for a fair and comparable
presentation have been included and are of a normal recurring nature. Operating
results for the six months ended June 30, 1996 are not necessarily indicative of
the results that may be expected for the year ending December 31, 1996.
(l) Research and Development -- Research and development costs are expensed
as incurred. The Company incurred approximately $19,000, $69,000 and $91,000 for
the years ended December 31, 1993, 1994 and 1995, respectively, and $36,000 and
$41,000 for the six months ended June 30, 1995 and 1996, respectively, for
research and development. These costs are included in general and administrative
expenses in the accompanying combined statements of operations.
(m) Advertising -- Advertising costs, while not material, are expensed as
incurred.
(n) Investments -- In May 1995, OSN entered into a joint venture, OGM
Communications, Ltd. (OGM), with Morsviazsputnik (MVS), the Russian signatory to
Inmarsat and a marketer of Inmarsat mobile services. OSN owns a 49% interest in
OGM. The investment in OGM was recorded at the cost of the initial capital
contribution of $50,000 in May 1995 and is accounted for on the equity method.
The Company's proportionate share of OGM's income (loss) was $(24,785) for the
year ended December 31, 1995 and $7,663 for the six months ended June 30, 1996.
(o) New Accounting Pronouncements -- In March 1995, the Financial
Accounting Standards Board issued Statement No. 121 (SFAS No. 121), "Accounting
for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
of," which requires impairment losses to be recorded on long-lived assets used
in operations when indicators of impairment are present and the undiscounted
cash flows estimated to be generated by those assets are less than the assets'
carrying amount. This statement also addresses the accounting for long-lived
assets that are expected to be disposed of in the future. The Company adopted
SFAS No. 121 in the first quarter of fiscal 1996 with no material impact.
In October 1995, the Financial Accounting Standards Board issued Statement
No. 123 (SFAS No. 123), "Accounting for Stock-Based Compensation," which
encourages companies to recognize expense for stock-based awards based on their
fair value on the date of grant. At a minimum, SFAS No. 123 will require pro
forma disclosures in the Company's fiscal 1996 financial statements. The Company
has determined not to adopt the expense recognition provisions of SFAS No. 123.
(3) AFFILIATED ENTITIES
Affiliated entities are not included in the accompanying combined financial
statements, and include the following:
O'Gara Overseas Services, SA (OOS) -- OOS is a Swiss corporation that,
subsequent to the reorganization, will be indirectly owned by the current
shareholders of OHE. OOS performs sales functions, primarily in the Middle East,
Africa and Europe.
F-12
<PAGE> 68
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
Excel Armor Products, Inc. (Excel) -- Excel is a Delaware S Corporation
that purchases and distributes dual-hard opaque armor material and armoring
products. It has substantially the same shareholders as OHE. Excel had an
exclusive purchasing arrangement with a dual-hard steel producer through
December 31, 1995.
Longline Leasing, Inc. (Longline) -- Longline is a Delaware S Corporation
that leases equipment to OHE. It has substantially the same shareholders as OHE.
OHE leases certain manufacturing and production equipment from Longline.
Longline and Excel have a 50/50 joint venture in a corporate aircraft. OHE has a
minimum monthly usage agreement with the joint venture (see Notes 4 and 7).
O'Gara Protective Services, Inc. (OPS) -- OPS is a Delaware corporation
that provides protective training and services, primarily to foreign
governments. The shareholders of OHE own approximately 47% of OPS.
OLG, Limited (OLG) -- OLG is an Ohio limited liability corporation
organized in March 1996. It has substantially the same shareholders as OHE. In
1996, OLG acquired a building for approximately $1.8 million and leased the
building to OHE for a one year period for $468,000 (see Notes 4 and 7).
The August Group (August) -- August is a partnership in which the majority
shareholder of OHE had a 25% interest prior to December 31, 1993. August
provided certain services to OHE relative to the use of a corporate aircraft in
1993.
Excel Metal Products, Inc. (Excel Metal) -- Excel Metal is a wholly owned
corporation of the majority shareholder. Excel Metal provides management
consulting services to Satellite Inc.
Silver Springs Land and Cattle Company (Silver) -- Silver is a wholly owned
corporation of the majority shareholder that provided facilities for certain
corporate meetings of OHE.
(4) RELATED PARTY TRANSACTIONS
(a) Notes Receivable - Shareholder -- Notes receivable, shareholder,
consist of two unsecured promissory notes in the principal amounts of $100,000
and $130,000, respectively. These notes bear interest at the rate of 8.75% per
annum and are due on December 31, 1996. Accrued interest amounted to $3,253 and
$9,961 at December 31, 1995 and June 30, 1996, respectively.
(b) Advances to Shareholders -- OHE periodically makes advances to
shareholders. Such advances are due on demand and are non-interest bearing.
Advances to OHE's majority shareholder were $65,684 and $189,698 at December 31,
1994 and 1995, respectively, and $242,242 at June 30, 1996. At June 30, 1996,
Limited also had an advance to the minority shareholder of OHEB in the amount of
$117,809.
(c) Note Receivable - Affiliate -- Note receivable, affiliate, consists of
an unsecured promissory note from Excel Metal in the principal amount of
$310,000. This note bears interest at the rate of 8.5% per annum and is due on
February 11, 1997.
(d) Notes Payable - Shareholders -- OHE has the following notes payable to
shareholders at:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------- JUNE 30,
1994 1995 1996
-------- -------- -----------
(UNAUDITED)
<S> <C> <C> <C>
Note payable to minority shareholder, interest at 10%,
payable on demand, unsecured........................ $243,630 $243,630 $ 203,630
Notes payable to minority shareholders of OHE,
interest at 7.5% through December 31, 1995, 10%
thereafter, payable on demand, unsecured............ 65,000 65,000 65,000
-------- -------- --------
$308,630 $308,630 $ 268,630
======== ======== ========
</TABLE>
F-13
<PAGE> 69
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
Interest cost associated with the above obligations expensed by OHE
approximated $92,000, $38,000 and $33,000 for the years ended 1993, 1994 and
1995, respectively, and $17,000 and $20,000 for the six months ended 1995 and
1996, respectively.
(e) Sales - Affiliated Entities -- In 1995, OHE entered into a contract
with Excel to provide certain manufacturing services. Total revenue recognized
under this contract approximated $27,000 in 1995 and $44,000 for the six months
ended June 30, 1996.
Beginning in 1995, OSN entered into certain sales contracts with MVS for
the sale of portable satellite terminals. Total revenue recognized approximated
$66,000 in 1995 and $45,000 and $99,000 for the six months ended June 30, 1995
and 1996, respectively.
(f) Purchases - Affiliated Entities -- OHE purchases dual-hard steel used
in the vehicle armoring process from Excel. Purchases were approximately
$521,000 in 1995 and $47,000 and $623,000 for the six months ended June 30, 1995
and 1996, respectively. Additionally, OHE has provided a guarantee of a $150,000
letter of credit furnished by Excel to its third party dual-hard steel supplier.
OSN offers satellite air time to customers through an agreement with MVS.
Total purchases under this agreement were approximately $36,000 in 1995 and
$194,000 for the six months ended June 30, 1996.
(g) Building and Equipment Leases -- OHE currently is leasing a corporate
aircraft from Longline/Excel under a non-cancelable ten year lease agreement
which began in February 1995. The lease stipulates minimum monthly payments of
$35,200, with additional charges accruing for usage in excess of established
base limits. In 1994, OHE leased a corporate aircraft from Longline under a five
year agreement. This original lease was canceled upon the execution of the lease
with Longline/Excel. The terms of the original lease and the newly executed
lease required a non-refundable deposit. The original deposit of approximately
$504,000 is being amortized as rental expense over the existing lease period.
Rental expense, including amortization recognized, approximated $365,000 and
$414,000 in 1994 and 1995, respectively, and $159,000 and $200,000 for the six
months ended June 30, 1995 and 1996, respectively.
In 1993, OHE incurred charges relating to the use of an aircraft owned by
August. Total expense recognized amounted to approximately $294,000.
OHE is also currently leasing equipment from Longline under various
non-cancelable three year lease agreements which began in July 1995. Rental
expense approximated $17,000 in 1995 and $172,000 for the six months ended June
30, 1996.
OHE leases a manufacturing facility from OLG under a non-cancelable one
year lease agreement which began in March 1996. The lease stipulates monthly
payments of $39,000. Rental expense recognized approximated $142,000 for the six
months ended June 30, 1996.
(h) Consulting Services -- OOS and a minority shareholder provide certain
sales and marketing services for OHE and OSN. OHE recognized expense of
approximately $377,000, $490,000 and $506,000 in 1993, 1994 and 1995,
respectively, and $245,000 and $223,000 for the six months ended June 30, 1995
and 1996, respectively, for such services.
In 1993, OHE entered into a one year consulting agreement with a former
shareholder which stipulated monthly payments of $10,000 for services to be
provided relating to certain U.S. Government contracts. OHE recognized $120,000
in expense in 1993 for these services. In May 1994, the agreement was renewed
and the payment obligation was assumed by Excel under a new consulting agreement
with similar terms. In conjunction with this renewal, OHE provided a payment
guarantee to the former shareholder. In 1995, OHE incurred $20,000 in expense
relating to payments made under this guarantee. OHE currently has provided a
payment guarantee under an agreement which extends through December 31, 1996.
F-14
<PAGE> 70
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
In 1996, OSN entered into a management consulting agreement with Excel
Metal which stipulates monthly payments of $6,000. OSN has recognized
approximately $36,000 in expense for the six months ended June 30, 1996 under
this agreement.
In 1995, prior to joining the Company, a minority shareholder of OSN was
paid $137,600 in conjunction with a consulting agreement. These payments were
recognized in selling and marketing expenses in the accompanying 1995 combined
statement of operations.
(i) Other -- In 1994 and 1995, OHE recognized approximately $55,000 and
$11,000, respectively, in expense relating to payments made to Silver for use of
its facilities for corporate meetings.
(j) Summary of Related Party Transactions -- The following summarizes
transactions with related parties:
<TABLE>
<CAPTION>
YEARS ENDED SIX MONTHS ENDED
DECEMBER 31, JUNE 30,
---------------------------------- ---------------------
1993 1994 1995 1995 1996
-------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Sales
to Excel.......................... $ -- $ -- $ 27,000 $ -- $ 44,000
to MVS............................ -- -- 66,000 45,000 99,000
Purchases
from Excel........................ -- -- 521,000 47,000 623,000
from MVS.......................... -- -- 36,000 -- 194,000
Lease expense
to Longline....................... -- 365,000 17,000 -- 172,000
to Longline/Excel................. -- -- 414,000 159,000 200,000
to OLG............................ -- -- -- -- 142,000
to August......................... 294,000 -- -- -- --
Consulting services
provided by OOS................... 248,000 361,000 377,000 180,500 158,500
provided by minority
shareholder.................... 129,000 129,000 129,000 64,500 64,500
provided by minority
shareholder.................... -- -- 137,600 90,000 --
provided by Excel Metal........... -- -- -- -- 36,000
provided by former shareholder.... 120,000 -- 20,000 20,000 --
Facility service fees paid to
Silver............................ -- 55,000 11,000 -- --
</TABLE>
(k) Other Receivables - Affiliates -- Other receivables - affiliates
consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------- JUNE 30,
1994 1995 1996
------ -------- -----------
(UNAUDITED)
<S> <C> <C> <C>
Excel....................................... $ -- $ 53,057 $ 152,133
OPS......................................... 3,914 9,657 44,725
OGM......................................... -- 38,669 --
Longline.................................... -- 26,839 --
------ -------- --------
$3,914 $128,222 $ 196,858
====== ======== ========
</TABLE>
F-15
<PAGE> 71
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(l) Accounts Payable - Affiliates -- Accounts payable - affiliates consist
of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------- JUNE 30,
1994 1995 1996
-------- -------- -----------
(UNAUDITED)
<S> <C> <C> <C>
OOS....................................... $127,645 $348,535 $ 339,763
MVS....................................... -- 29,195 128,604
OOST...................................... -- 122,000 122,000
OLG....................................... -- -- 78,102
Longline.................................. -- -- 27,036
OGM....................................... -- -- 15,466
Excel Metal............................... -- -- 6,000
-------- -------- --------
$127,645 $499,730 $ 716,971
======== ======== ========
</TABLE>
(5) REVOLVING LINES OF CREDIT
OHE had a $8,500,000 revolving line of credit with a bank at December 31,
1995 with interest at the bank's prime rate. In May 1996, OHE obtained an
additional $3.5 million revolving line of credit with interest at the bank's
prime rate plus 1%. These lines of credit mature on November 1, 1996 and are
secured by substantially all of the assets of OHE. In addition, the $3.5 million
revolving line of credit is secured by the personal guarantees of OHE's
shareholders. The lines of credit contain certain covenants, which among other
restrictions, require the maintenance of a minimum net worth and certain defined
financial ratios. OHE was not in compliance with certain covenants at December
31, 1995. All such violations were subsequently waived or amended by the lender.
Borrowings under these and prior lines of credit were $5,637,740 and $7,601,686
at December 31, 1994 and 1995, respectively, and $9,809,896 at June 30, 1996.
OSN has a bank credit facility consisting of (i) a $1,000,000 six-month
revolving loan, of which $1,000,000 was outstanding at December 31, 1995 and
June 30, 1996, and (ii) an available $3,000,000 six-month letter of credit of
which $1,587,079 and $2,836,079 was outstanding at December 31, 1995 and June
30, 1996, respectively. The letter of credit was established in the name of a
prime supplier with which OSN has a firm purchase commitment (see Note 10). The
letter of credit is provided for the reimbursement of costs incurred by the
supplier relating to the production of inventory (Note 10) to be sold to OSN. At
December 31, 1995, and June 30, 1996, OSN had advances to this vendor of
$1,607,597 and $2,624,788, respectively, related to such inventories. The
facility was originally payable on February 14, 1996 and was subsequently
refinanced through February 14, 1997. The facility is secured by OSN's currently
owned and future acquired inventory and accounts receivable.
Interest on borrowings outstanding at December 31, 1995 accrues at the
bank's prime rate (8.5% at December 31, 1995) and is payable monthly.
In June 1996, OHEB obtained a $500,000 line of credit with interest at
market rates. This line of credit matures on May 31, 1997 and is supported by a
standby letter of credit issued by OHE's primary lender with a similar maturity.
As of June 30, 1996, there were no borrowings under this line of credit.
F-16
<PAGE> 72
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(6) LONG-TERM DEBT
The components of long-term debt are as follows at:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------- JUNE 30,
1994 1995 1996
----------- ----------- -----------
(UNAUDITED)
<S> <C> <C> <C>
Development Bonds, variable interest rate
approximating 85% of the bond equivalent yield of
13 week U.S. Treasury bills (not to exceed 12%),
payable in scheduled installments through
September 2016, subject to optional prepayment by
the bondholders, secured by the property, plant
and equipment of OHE, the guaranty of OHE's
majority shareholder and a bank letter of credit
(Note 10)......................................... $ 1,681,250 $ 1,606,250 $ 1,544,986
Mortgage note to bank, interest at 8.68%, payable in
monthly installments of $2,349, including
interest, through April 2003, secured by real
estate and the guaranty of OHE's majority
shareholder....................................... 217,628 208,274 202,501
Note payable to former shareholder of OHEM, interest
imputed at 9%, due October 1, 1997................ -- -- 100,000
Other notes payable, interest at 6.84% to 15.7%,
payable in scheduled installments through July
2000, secured by equipment........................ 54,830 59,923 46,337
----------- ----------- -----------
Total long-term debt...................... 1,953,708 1,874,447 1,893,824
Less - current portion.................... (1,725,620) (1,649,018) (1,623,327)
----------- ----------- -----------
$ 228,088 $ 225,429 $ 270,497
=========== =========== ===========
</TABLE>
Scheduled maturities of long-term debt at December 31, 1995 are as follows:
<TABLE>
<S> <C>
1996, including $1,606,250 of Development Bonds subject to prepayment
by the bondholders................................................... $1,649,018
1997................................................................... 22,282
1998................................................................... 21,892
1999................................................................... 23,748
2000................................................................... 19,574
Thereafter............................................................. 137,933
----------
$1,874,447
==========
</TABLE>
F-17
<PAGE> 73
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(7) OPERATING LEASES
The Company leases certain equipment under agreements with terms from one
to ten years. The following is a schedule, by year, of approximate future
minimum rental or usage payments required under operating leases that have
initial or non-cancelable lease terms in excess of one year as of December 31,
1995:
<TABLE>
<CAPTION>
AFFILIATED
COMPANIES OTHER
---------- ----------
<S> <C> <C>
1996......................................................... $1,086,958 $ 429,359
1997......................................................... 902,309 286,034
1998......................................................... 694,765 201,028
1999......................................................... 435,351 164,436
2000......................................................... 422,400 40,081
Thereafter................................................... 2,112,000 --
---------- ----------
$5,653,783 $1,120,938
========== ==========
</TABLE>
Rental expense charged against current operations amounted to approximately
$375,000, $500,000 and $670,000 for the years ended December 31, 1993, 1994 and
1995, respectively, and $253,000 and $755,000 for the six months ended 1995 and
1996, respectively.
(8) RETIREMENT PLANS
During 1991, OHE established a non-contributory profit sharing/401(k) plan
covering substantially all employees. Contributions are discretionary and are
determined annually by OHE's Board of Directors. Plan contribution expense
charged against current operations amounted to approximately $50,000, $75,000
and $25,000 for the years ended December 31, 1993, 1994 and 1995, respectively,
and $12,500 and $63,000 for the six months ended June 30, 1995 and 1996,
respectively.
The Company does not maintain any other postretirement or postemployment
benefit plans.
(9) EXECUTIVE BONUS PLAN
During 1993, OHE adopted an executive bonus plan, which covered four
individuals. The plan awarded a bonus based on the attainment of goals
stipulated in the five year business plan, ranging from 50 to 120 percent of the
executives' base compensation. The bonus amounts were distributed 50% in cash
and 50% in non-qualified stock options to purchase stock of OHE. Subject to the
executives' ability to elect a decrease in the percentage of cash payments and
to increase the percentage of stock options, 50 percent of the bonus amount was
payable in cash, and the remainder in stock options. All options are exercisable
at $1 per share, will be forfeited should the executives terminate employment,
and are exercisable at the earliest of (i) the rejection of a bonafide offer to
purchase OHE, (ii) death or disability, or (iii) December 31, 1997. Stock
received upon exercise is subject to the same buyback agreements as OHE's common
stock (see Notes 10 and 14).
OHE issued 445 options in 1994 based on 1993's operating results and
recorded compensation expense of approximately $207,000 in fiscal 1993. No
options were issued in 1994 or 1995.
(10) COMMITMENTS AND CONTINGENCIES
(a) Letters of Credit -- Under the terms of the Economic Development
Revenue Bonds Agreement, OHE is required to maintain a letter of credit
supporting the debt. OHE's lender is committed to providing this letter of
credit to September 2, 1996. As of December 31, 1995, OHE had an outstanding
letter of credit in the amount of $1,912,500.
F-18
<PAGE> 74
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
At December 31, 1995, OHE had standby and purchase letters of credit,
issued by its primary lender, in the aggregate amount of $2,794,543.
(b) Supply and Purchase Agreements -- In June 1995, OSN entered into an
irrevocable supply agreement with Magellan Systems Corporation ("Magellan")
whereby Magellan will purchase 4,000 Compact-M portable satellite
telecommunication units for delivery within two years of the first shipment at a
predetermined price for a total contract value of approximately $16,000,000. In
the agreement, OSN granted worldwide distribution to Magellan except for certain
limited markets retained by OSN.
In June 1995, in connection with the above-mentioned supply agreement, OSN
entered into a firm purchase agreement with Glocom, Inc. ("Glocom"). The
agreement provides for an irrevocable purchase order for the purchase of 4,000
units of the Compact-M for approximately $12,000,000. In accordance with the
agreement, OSN delivered to Glocom a letter-of-credit in the amount of
$3,000,000 that expired in February 1996 and was extended through November 1996
for the funding of the related production costs incurred (see Note 5).
In 1996, OHEB committed to purchase 100 glass kits, valued at approximately
$675,000, for delivery at various dates prior to June 1997.
In 1996, OHEM entered into an irrevocable call option agreement whereby
OHEM was granted the option of purchasing its leased Mexico City manufacturing
facility for approximately $1,200,000. The option was acquired at a cost of
$29,000 and it expires on October 1, 1996.
(c) Stock Buyback Agreements -- OHE's common stock is subject to a right of
first refusal prior to any sales and buy-back provisions based on estimated fair
market value (see Note 14).
(d) Legal Matters -- The Company is party to various legal proceedings
arising from its combined operations. Management of the Company believes that
the outcome of these proceedings, individually and in the aggregate, will have
no material adverse effect on the Company's combined financial position or
results of operations.
(11) FAIR VALUE OF FINANCIAL INSTRUMENTS
The fair values of current assets, current liabilities and long-term debt
approximate their respective historical carrying amounts.
(12) MAJOR CUSTOMERS
During 1993, 1994 and 1995 and for the six months ended June 30, 1995 and
1996, sales to four customers and their affiliated entities approximated 55%,
69% and 57%, respectively, and 35% and 78%, respectively, of the Company's net
sales, individually presented as follows:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------ -------------------
1993 1994 1995 1995 1996
-------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
U.S. Government.......................... 18% 45% 35% 16% 69%
Foreign Government A..................... 13% 9% 14% 9% 7%
Customer A............................... 13% 5% 5% 4% 2%
Foreign Government B..................... 11% 10% 3% 6% --
----- ----- ----- ----- -----
55% 69% 57% 35% 78%
===== ===== ===== ===== =====
</TABLE>
The year end accounts receivable balances of these customers approximated
71%, 63%, and 62% of the Company's total trade receivable balance in 1993, 1994
and 1995, and 59% for the six months ended June 30,
F-19
<PAGE> 75
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
1996. In addition, two other customers not included above had year end accounts
receivable balances which approximated 16% in 1994 and 14% for the six months
ended June 30, 1996 of total trade accounts receivable.
(13) ISSUANCE OF OHE STOCK
Prior to August 1994, OHE was indebted to Letter International Limited
Irrevocable Trust (Trust), a trust for which OHE was the sole beneficiary, in
the amount of $1,260,000. At the same time, the Trust was indebted in an equal
amount to OHE's majority shareholder. In August 1994, the majority shareholder
received from the Trust an assignment of OHE's obligation. The majority
shareholder then agreed to the cancellation of this indebtedness of OHE in
exchange for 2,692 shares of common stock of OHE (734,781 shares of the Company,
giving effect to the reorganization).
(14) SUBSEQUENT EVENTS (UNAUDITED)
(a) Registration of Common Stock -- The Company has filed with the
Securities and Exchange Commission a Form S-1 Registration Statement for the
sale of 2,800,000 shares of common stock (excluding the underwriters'
over-allotment option to purchase an additional 420,000 shares of common stock),
which will represent approximately 40% of the ownership of the Company. The
proceeds from the 2,400,000 shares to be sold by the Company in the offering
will be used for retirement of bank debt, payment of the AAA Notes (see (b)
below), purchase of the leased Mexico City manufacturing facility, the
acquisition in (g) below, transaction costs associated with the offering,
funding for acquisition activities and the balance for working capital. The
Registration Statement contains various risk factors that include, among others,
substantial dependence on U.S. Military contracts, single and primary source
suppliers, fluctuations in operating results, fixed price contracts, percentage
of completion accounting, competition and business and acquisition strategies
(See "Risk Factors" in the accompanying Registration Statement).
Existing buyback arrangements for OHE's common stock and the OHE Executive
Bonus Plan will be terminated upon the effective date of the Company's planned
registration of common stock.
(b) Dividend to Shareholders -- Prior to the effective date of the
Registration Statement, OHE will distribute to its shareholders a dividend of
approximately $9,000,000 in the form of long-term notes (the "AAA Notes") which
represent the undistributed previously taxed income of OHE as an S Corporation
through the effective date of the registration.
(c) Stock Option Plans -- In August 1996, 445 options in the OHE Executive
Bonus Plan were exercised for 445 shares of OHE common stock in contemplation of
the planned public offering of common stock at their $1 per share stated value
(121,463 shares of the Company, giving effect to the reorganization).
In 1996, the Company adopted a stock option plan for employees and
directors. Options granted under the plan are generally granted at fair market
value at date of grant and are exercisable over periods not exceeding ten years.
Shares reserved for grant pursuant to this plan may not exceed 400,000 shares
and options to purchase 180,000 common shares at the initial public offering
price will be awarded at the effective date of the registration.
(d) Preferred Stock -- In August 1996, the Company authorized the issuance
of up to 100,000 preferred shares, $.01 par value.
(e) Option to Purchase OHEB Minority Interest -- In August 1996, the
Company entered into an option agreement to acquire the minority interest in
OHEB on or prior to December 31, 1997. Under terms of the agreement, if the
Company exercises its option, it will be obligated to transfer to the former
shareholder, over a period of three years, common shares of the Company valued
at $1,200,000. The number of shares transferred is dependent on the market value
of the stock at the time of transfer. The exercise price for the purchase option
increases by $100,000 for each year after 1997 through 1999.
In conjunction with this purchase, the Company also entered into a two year
employment agreement with the former shareholder.
F-20
<PAGE> 76
THE O'GARA COMPANY
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(f) Employment Agreements -- In August 1996, the Company entered into
employment agreements with key officers and employees with 2 year terms.
(g) Palmer Associates, S.C. Acquisition -- In August 1996, the Company
agreed to a letter of intent to purchase certain assets and certain liabilities
of Palmer Associates, S.C. ("Palmer") for $1,000,000 in cash, payable $500,000
at the closing of the planned registration of common stock and $250,000 each on
December 31, 1997 and 1998. The former owner also will receive a $200,000
covenant not to compete, payable over four years, and a two year employment
agreement.
(15) PRO FORMA INFORMATION (UNAUDITED)
(a) Pro Forma Combined Balance Sheet Information -- The pro forma combined
balance sheet at June 30, 1996 reflects the following pro forma adjustments:
(i) Payment of a $9,000,000 dividend in the form of long-term AAA
shareholder notes due in 5 years, with interest at prime, with no
prepayment penalties.
(ii) Elimination of certain net liabilities of Limited (approximately
$46,000) not acquired by OHE in the reorganization.
(iii) Recognition of a $883,000 net deferred tax asset resulting from
the termination of OHE's S Corporation status.
(iv) The reclassification of a portion of the remaining retained deficit
of OHE prior to OHE becoming a C Corporation, from retained deficit
to additional paid-in capital to the extent available (approximately
$2.5 million).
(b) Pro Forma Combined Statements of Operations Adjustments -- The pro
forma combined statements of operations information presents the pro forma
effects on the historical combined financial information reflecting certain
transactions as if they occurred on January 1, 1995 and 1996. The following
adjustments have been reflected in the pro forma combined statements of
operations information:
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS
DECEMBER 31, ENDED
1995 JUNE 30, 1996
------------ -------------
<S> <C> <C>
The elimination of interest expense relating to the debt intended
to be repaid..................................................... $657,000 $ 519,000
The benefit (provision) for income taxes at an effective rate of
40% as if OHE had been a C Corporation and as if the Company had
filed a consolidated U.S. Federal tax return..................... 186,000 (1,808,000)
------- -----------
Total.................................................... $843,000 $ (1,289,000)
======= ===========
</TABLE>
(c) Pro Forma Net Income (Loss) Per Share -- Pro forma net income (loss)
per common share is based on the weighted average number of shares of common
stock of the Company outstanding during the period (assuming the reorganization
had occurred and using the treasury stock method), plus the estimated number of
shares required to fund the planned distribution to shareholders and the
estimated number of shares to be issued to repay existing debt.
Supplemental pro forma income (loss) per share considering only the
repayment of existing debt would have been $(.05) for the year ended December
31, 1995 and $.47 for the six months ended June 30, 1996, based on the weighted
average number of shares of common stock outstanding during the period, plus the
estimated number of shares to be issued to repay existing debt.
F-21
<PAGE> 77
THE O'GARA COMPANY
THE O'GARA TEAM
As a service organization, the Company strives to hire, retain, and
motivate the highest level of quality personnel available who are focused on a
set of core values designed to promote teamwork, fairness, honesty and
leadership.
ENGINEERS The Company's veteran engineering staff is comprised of armor and
security experts with considerable experience in developing prototype solutions
for both military and commercial customers utilizing advanced CAD/CAE equipment.
[Picture of man operating CAD/CAE computer equipment]
SECURITY ADVISORS
The Company's senior management team is comprised of individuals with broad
experience in dealing with the defense, intelligence, special forces, and
anti-crime divisions of the U.S. and foreign governments.
[Picture of several persons meeting in a conference room]
WORLDWIDE NETWORK
The Company has manufacturing and sales facilities in the U.S., Mexico,
Brazil, and Italy, in addition to sales offices in Moscow and Geneva.
[Picture of world map with O'Gara locations]
CRAFTSMANSHIP AND MATERIALS
In applying their craft, the Company's highly skilled tradespeople utilize
only the highest quality protective materials that must pass the Company's
strenuous ballistic testing.
[Picture of technician at work on a vehicle]
[Picture of technician at work on a vehicle]
[Picture of woman working on the upholstery of a seat]
<PAGE> 78
- -------------------------------------------------------------
- -------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED HEREIN, AND IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, SHARES OF
COMMON STOCK IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS NOT LAWFUL TO MAKE
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION OR IN WHICH THE PERSON MAKING
SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF.
---------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary..........................
Risk Factors................................
Prior S Corporation Status..................
Corporate Reorganization....................
Use of Proceeds.............................
Dividend Policy.............................
Capitalization..............................
Dilution....................................
Selected Combined Financial Data............
Selected Unaudited Condensed Pro Forma
Financial Data............................
Management's Discussion and Analysis of
Financial Condition and Results of
Operations................................
Industry Overview...........................
Business....................................
Management..................................
Certain Relationships and Related
Party Transactions........................
Principal and Selling Shareholders..........
Description of Capital Stock................
Shares Eligible for Future Sale.............
Underwriting................................
Legal Matters...............................
Experts.....................................
Additional Information......................
Index to Combined Financial Statements......
</TABLE>
---------------------------
UNTIL , 1996 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL
DEALERS EFFECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
LOGO
THE O'GARA COMPANY
---------------------------
2,800,000 SHARES
COMMON STOCK
PROSPECTUS
, 1996
---------------------------
DILLON, READ & CO. INC.
FURMAN SELZ
EQUITABLE SECURITIES CORPORATION
- -------------------------------------------------------------
- -------------------------------------------------------------
<PAGE> 79
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a list of anticipated expenses in connection with the
issuance and distribution of the shares of Common Stock being registered, all of
which will be paid by the Company and all of which (other than the SEC, NASD and
Nasdaq fees) are estimated:
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee........................... $ 15,545
NASD fee....................................... 5,008
Nasdaq National Market listing fee.............
Printing costs.................................
Legal fees.....................................
Accounting fees................................
Transfer agent fees............................
Blue sky fees and expenses.....................
Miscellaneous..................................
----------
$1,000,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1701.13(E) of the Ohio General Corporation Law allows
indemnification by the Registrant to any person made or threatened to be made a
party to any proceedings, other than a proceeding by or in the right of the
Registrant, by reason of the fact that he is or was a director, officer,
employee or agent of the Registrant, against expenses, including judgments and
fines, if he acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the Registrant and, with respect to
criminal actions, in which he had no reasonable cause to believe that his
conduct was unlawful. Similar provisions apply to actions brought by or in the
right of the Registrant, except that no indemnification shall be made in such
cases when the person shall have been adjudged to be liable for negligence or
misconduct to the Registrant unless determined by the court. The right to
indemnification is mandatory in the case of a director or officer who is
successful on the merits or otherwise in defense of any action, suit or
proceeding or any claim, issue or matter therein. Permissive indemnification is
to be made by a court of competent jurisdiction, the majority vote of a quorum
of disinterested directors, the written opinion of independent counsel or by the
shareholders.
The Registrant's Code of Regulations provides that the Registrant shall
indemnify such persons to the fullest extent permitted by law.
The Registrant intends to maintain director and officer liability insurance
which provides coverage against certain liabilities.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since August 1993, the Registrant has made or will make the following sales
of unregistered securities:
Pursuant to the Reorganization, the Registrant will issue 3,689,476 shares
of its Common Stock, in exchange for all of the outstanding common stock of OHE,
as follows: Thomas M. O'Gara, as Trustee of the Thomas M. O'Gara Family Trust,
dated July 8, 1992 -- 3,237,743 shares; Wilfred T. O'Gara -- 214,266 shares;
Thomas M. Letter -- 136,475 shares; Nicholas P. Carpinello -- 51,315 shares;
Charles A. Williams -- 26,476 shares; and Richard L. Curotto -- 23,201 shares.
II-1
<PAGE> 80
In connection with the Reorganization, following the acquisition of the
common stock of OHE by the Company and immediately prior to the effective date
of the Registration Statement, the Registrant will issue 922,370 shares of
Common Stock, in exchange for all of the outstanding common stock of OSN, as
follows: MeesPierson Management (Guernsey) Ltd., for the beneficial interest of
Gentry Corporation Limited, of which Thomas M. O'Gara has indirect voting
control -- 793,095 shares; Wilfred T. O'Gara -- 45,999 shares; Thomas M.
Letter -- 31,724 shares; Nicholas P. Carpinello -- 5,552 shares; and Neil P.
Saldin -- 46,000 shares.
On August 23, 1996 OHE issued shares of its common stock, all upon the
exercise of options granted as bonus compensation on December 31, 1993 at a
price of $1.00 per share, as follows: Thomas M. O'Gara -- 138 shares; Wilfred T.
O'Gara -- 131 shares; Nicholas P. Carpinello -- 91 shares; and Richard L.
Curotto -- 85 shares.
On July 31, 1996 the Registrant issued 10 shares of its Common Stock to
Nicholas P. Carpinello for $10.00 in connection with the Registrant's
incorporation.
On December 29, 1995, OSN issued 55 shares of its common stock for $1,375
to MeesPierson Management (Guernsey) Ltd. for the beneficial interest of Gentry
Corporation Limited, of which Thomas M. O'Gara has indirect voting control, and
58 shares to Neil P. Saldin for $1,450.
On December 2, 1994, OSN issued 1,050 shares of its common stock for
$27,700 to MeesPierson Management (Guernsey) Ltd. for the beneficial interest of
each of the following: Gentry Corporation Limited, of which Thomas M. O'Gara has
indirect voting control -- 945 shares; Wilfred T. O'Gara -- 58 shares; Thomas M.
Letter -- 40 shares; and Nicholas P. Carpinello -- 7 shares.
On August 31, 1994 OHE issued 554 shares of its common stock to Wilfred T.
O'Gara as consideration for services rendered.
On August 1, 1994 OHE issued 2,692 shares of its common stock to Thomas M.
O'Gara, Trustee of the Thomas M. O'Gara Family Trust, dated July 8, 1982 as
consideration for the extinguishment of indebtedness of OHE in the amount of
$1,260,000.
All of the securities described above were issued without registration
under the Securities Act of 1933 in reliance upon the exemptions provided by
Sections 3(a)(9), 4(1) and 4(2) of that Act. No underwriting commissions were
paid on any such issuances.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits. The list of exhibits is set forth beginning on page II-5 of
this Registration Statement and is incorporated herein by reference.
(b) Financial Statement Schedules. See Index to Financial Statement
Schedules on page S-1 for the list of financial statement schedules filed with
this Registration Statement.
ITEM 17. UNDERTAKINGS.
*(f) The undersigned Registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreements certificates
in such denominations and registered in such names as required by the
underwriter to permit prompt delivery to each purchaser.
*(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been
II-2
<PAGE> 81
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
*(i) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
- ---------------
*Paragraph references correspond to those of Regulation S-K, Item 512.
II-3
<PAGE> 82
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF CINCINNATI, STATE OF
OHIO, AS OF THE 29TH DAY OF AUGUST, 1996.
THE O'GARA COMPANY
By: /s/ WILFRED T. O'GARA
------------------------------------
Wilfred T. O'Gara
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AS OF THE 29TH DAY OF AUGUST, 1996. THE PERSONS WHOSE NAMES
ARE MARKED WITH AN ASTERISK (*) BELOW HEREBY DESIGNATE WILFRED T. O'GARA OR
NICHOLAS P. CARPINELLO AS THEIR ATTORNEY-IN-FACT TO SIGN ANY AMENDMENT,
INCLUDING ANY POST-EFFECTIVE AMENDMENT, TO THIS REGISTRATION STATEMENT.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------- -------------------------------------
<S> <C>
*/s/ THOMAS M. O'GARA Chairman of the Board
- -------------------------------------
Thomas M. O'Gara
*/s/ WILFRED T. O'GARA Chief Executive Officer and Director
- ------------------------------------- (Principal Executive Officer)
Wilfred T. O'Gara
/s/ NICHOLAS P. CARPINELLO Chief Financial Officer (Principal
- ------------------------------------- Financial and Accounting Officer)
Nicholas P. Carpinello
</TABLE>
II-4
<PAGE> 83
LIST OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- -------
<C> <S>
1 Form of Underwriting Agreement
3.1 Form of Restated Articles of Incorporation of the Registrant
3.2 Form of Code of Regulations of the Registrant
5 Opinion of Taft, Stettinius & Hollister.*
10.1 Revolving Credit and Security Agreement between the Registrant and The Fifth Third
Bank dated , 1996*
10.2 Agreement to armor HMMWVs between the Registrant and the United States Army Tank
Automotive Command, dated May 12, 1994, as amended
10.3 Lease of Mulhauser Road facility between O'Gara-Hess & Eisenhardt Armoring Company
and OLG, Limited, dated March 12, 1996, as amended
10.4 Aircraft Lease between O'Gara-Hess & Eisenhardt Armoring Company and Longline
Leasing, Inc. and Excel Armor Products, Inc., dated February 13, 1995, as amended
10.5 Terms of Lease (English Translation) of Sao Paulo, Brazil facility between
O'Gara-Hess & Eisenhardt Armoring Company do Brazil and Piero Balducci and Elvira
Miriam Colo Balducci, dated March 8, 1996
10.6 Option to purchase facility in Mexico City, Mexico between O'Gara-Hess & Eisenhardt
Armoring Company de Mexico S.C. and Mexinvest, SA de C.V.
10.7 1996 Stock Option Plan
10.8 Employment Agreement between O'Gara-Hess & Eisenhardt Armoring Company and Richard
L. Curotto, dated August 23, 1996
10.9 Employment Agreement between the Registrant and Thomas M. O'Gara, dated August 23,
1996
10.10 Employment Agreement between the Registrant and Wilfred T. O'Gara, dated August 23,
1996
10.11 Employment Agreement between the Registrant and Nicholas P. Carpinello, dated
August 23, 1996
10.12 Employment Agreement between O'Gara Satellite Networks Limited and Neil P. Saldin,
dated August 23, 1996
10.13 Employment Agreement between O'Gara-Hess & Eisenhardt Armoring Company and Gary W.
Allen, dated August 23, 1996
10.14 Employment Agreement between O'Gara-Hess & Eisenhardt Armoring Company and Michael
J. Lennon, dated August 23, 1996
10.15 Form of Accumulated Adjustments Account ("AAA") promissory notes to existing
shareholders
10.16 Trust Indenture, Economic Development Revenue Bonds, Series 1986
10.17 Loan Agreement, Economic Development Revenue Bonds, Series 1986
10.18 Supply agreement between O'Gara Satellite Networks Limited and Glocom, Inc.
10.19 Marketing agreement between O'Gara Satellite Networks Limited and Magellan Systems
Corporation
10.20 Letter of Intent between the Registrant and Palmer Associates, S.C., dated August
15, 1996
10.21 License agreement between O'Gara Satellite Networks Limited and Morsviasputnik,
dated March 21, 1995
</TABLE>
II-5
<PAGE> 84
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- -------
<S> <C>
21 Subsidiaries of the Registrant
23.1 Consent of Taft, Stettinius & Hollister (contained in Exhibit 5) *
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (contained in Signature Page)
99.1 Consent of Hugh E. Price, Nominee for Director*
99.2 Consent of William S. Sessions, Nominee for Director
99.3 Consent of Raymond E. Mabus, Nominee for Director
</TABLE>
- ---------------
* To be filed by amendment.
II-6
<PAGE> 85
THE O'GARA COMPANY
FINANCIAL STATEMENT SCHEDULES
INDEX
Report of Independent Public Accountants S-2
Schedule II -- Valuation and Qualifying Accounts S-3
All other financial statement schedules are omitted due to the absence of
conditions under which they are required or because the information is shown in
the combined financial statements or notes thereto.
S-1
<PAGE> 86
After the reorganization transaction discussed in Note 1 to The O'Gara
Company's combined financial statements is effected, we expect to be in a
position to render the following audit report.
Cincinnati, Ohio, ARTHUR ANDERSEN LLP
July 10, 1996,
except for Notes 11 and 15
as to which the date is August 29, 1996
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Shareholders of The O'Gara Company:
We have audited, in accordance with generally accepted auditing standards,
the combined financial statements of THE O'GARA COMPANY included in this
registration statement and have issued our report thereon dated July 10, 1996,
except for Notes 14 and 15 as to which the date is August 29, 1996. Our audit
was made for the purpose of forming an opinion on the basic combined financial
statements taken as a whole. The schedule listed in the accompanying index is
the responsibility of the Company's management and is presented for purposes of
complying with the Securities and Exchange Commission's rules and is not part of
the basic combined financial statements. This schedule has been subjected to the
auditing procedures applied in the audit of the basic combined financial
statements and, in our opinion, fairly states, in all material respects, the
financial data required to be set forth therein in relation to the basic
combined financial statements taken as a whole.
S-2
<PAGE> 87
THE O'GARA COMPANY
VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1993, 1994 AND 1995
<TABLE>
<CAPTION>
BALANCE
AT ADDITIONS DEDUCTIONS BALANCE
BEGINNING CHARGED FROM AT END
DESCRIPTION OF YEAR TO INCOME RESERVE OF YEAR
- ----------- --------- --------- ---------- --------
<S> <C> <C> <C> <C>
Year ended December 31, 1993
Allowance for doubtful receivables......... $ 131,903 $18,000 $ 4,913 $144,990
Year ended December 31, 1994
Allowance for doubtful receivables......... $ 144,990 $45,197 $ 89,814 $100,373
Year ended December 31, 1995
Allowance for doubtful receivables......... $ 100,373 $52,350 $ 43,440 $109,283
</TABLE>
S-3
<PAGE> 1
THE O'GARA COMPANY
2,800,000 SHARES
COMMON STOCK
($0.01 PAR VALUE)
UNDERWRITING AGREEMENT
, 1996
<PAGE> 2
UNDERWRITING AGREEMENT
, 1996
DILLON, READ & CO. INC.
FURMAN SELZ LLC
EQUITABLE SECURITIES CORPORATION
as Managing Underwriters
c/o Dillon Read & Co. Inc.
535 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Pursuant to the terms of this Underwriting Agreement (the
"Agreement"), The O'Gara Company, an Ohio corporation (the "Company"), proposes
to issue and sell, and the persons named in Schedule B annexed hereto (the
"Selling Shareholders") propose to sell, to the underwriters named in Schedule A
annexed hereto (the "Underwriters") an aggregate of shares (the "Firm Shares")
of Common Stock, $0.01 par value (the "Common Stock"), of the Company, of which
shares are to be issued and sold by the Company and an aggregate of shares are
to be sold by the Selling Shareholders in the respective amounts set forth
opposite their names in Schedule B annexed hereto.
In addition, solely for the purpose of covering over allotments, the
Company proposes to issue and sell to the Underwriters, at the Underwriters'
option, up to an additional shares of Common Stock (the "Additional
Shares"). The Firm Shares and the Additional Shares are hereinafter collectively
sometimes referred to as the "Shares." The Shares are described in the
Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (333- ), including a
prospectus, relating to the Shares. The Company has furnished to you, for use by
the Underwriters and by dealers, copies of one or more preliminary prospectuses
(each thereof being herein called a "Preliminary Prospectus") relating to the
Shares. Except where the context otherwise requires, the registration statement
as in effect at the time of execution of this Agreement or, if the registration
statement is not yet effective, as amended when it becomes effective, including
all documents
<PAGE> 3
-2-
filed as a part thereof, and including any registration statement filed pursuant
to Rule 462(b) under the Act increasing the size of the offering registered
under the Act and including any information contained in a prospectus
subsequently filed with the Commission pursuant to Rule 424(b) under the Act and
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Act, is herein called the "Registration
Statement," and the prospectus, in the form filed by the Company with the
Commission pursuant to Rule 424(b) under the Act or, if no such filing is
required, in the form of final prospectus included in the Registration Statement
at the time it became effective, is herein called the "Prospectus."
The Company, the Selling Shareholders and the Underwriters agree as
follows:
1. Sale and Purchase. On the basis of the representations and
warranties and the other terms and conditions herein set forth, the Company and
each of the Selling Shareholders, severally and not jointly, agrees to sell to
the respective Underwriters and each of the Underwriters, severally and not
jointly, agrees to purchase from the Company and each Selling Shareholder the
respective number of Firm Shares (subject to such adjustment as you may
determine to avoid fractional shares) which bears the same proportion to the
number of Firm Shares to be sold by the Company or by such Selling Shareholder,
as the case may be, as the number of Firm Shares set forth opposite the name of
such Underwriter on Schedule A annexed hereto bears to the total number of Firm
Shares to be sold by the Company and the Selling Shareholders, in each case at a
purchase price of $ per Share. You may release the Firm Shares for public
sale promptly after this Agreement becomes effective. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine.
In addition, on the basis of the representations and warranties and
the other terms and conditions herein set forth, the Company hereby grants to
the several Underwriters the option to purchase, and the Underwriters shall have
the right to purchase, severally and not jointly, from the Company all or a
portion of the Additional Shares as may be necessary to cover over-allotments
made in connection with the offering of the Firm Shares, at the same purchase
price per share to be paid by the Underwriters to the Company and the Selling
Shareholders for the Firm Shares. This option may be exercised in whole or
<PAGE> 4
-3-
in part from time to time on or before the thirtieth day following the date
hereof, by written notice from Dillon Read & Co. Inc. ("Dillon Read") to the
Company. Any such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (any such date and time being herein
referred to as an "additional time of purchase"); provided, however, that no
additional time of purchase shall occur earlier than the time of purchase (as
defined below) nor earlier than the second business day(1) after the date on
which the option shall have been exercised nor later than the eighth business
day after the date on which the option shall have been exercised. The number of
Additional Shares to be sold to each Underwriter at an additional time of
purchase shall be the number which bears the same proportion to the aggregate
number of Additional Shares being purchased at such additional time of purchase
as the number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A annexed hereto bears to the total number of Firm Shares (subject, in
each case, to such adjustment as you may determine to avoid fractional shares).
Pursuant to a combined Custody Agreement and Powers of Attorney
dated ____________, 1996 (the "Custody Agreement/Power of Attorney"), among the
Selling Shareholders, ___________________ (as "Custodian") and
___________________ and _____________________ (the "Representatives of the
Selling Shareholders"), which shall be satisfactory to counsel for the
Underwriters, each of the Representatives of the Selling Shareholders is
authorized, on behalf of each Selling Shareholder, to execute any documents
necessary or desirable in connection with the sale of the Shares to be sold
hereunder by each Selling Shareholder (including this Agreement), to make
delivery of the certificates for such Shares, to receive the proceeds of the
sale of such Shares, to give receipts for such proceeds, to pay therefrom the
expenses to be borne by each Selling Shareholder in connection with the sale and
public offering of the Shares, to distribute the balance of such proceeds to
each Selling Shareholder in proportion to the number of Shares sold by each
Selling Shareholder, to receive notices on behalf of each Selling Shareholder
and to take such other action as may be necessary or desirable in connection
with the transactions contemplated by this Agreement.
_________________________
1 As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
<PAGE> 5
-4-
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company and the Representatives of the Selling
Shareholders on behalf of the Selling Shareholders by wire transfer in
immediately available funds to accounts designated in writing by the Company and
each Selling Shareholder, as the case may be, against delivery of the
certificates for the Firm Shares to you for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on , 1996 (unless another time shall be agreed to by you,
the Company and the Representatives of the Selling Shareholders or unless
postponed in accordance with the provisions of Section 10 hereof). The time at
which such payment and delivery are actually made is hereinafter sometimes
called the "time of purchase." Certificates for the Firm Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify on the second business day preceding the time of purchase.
For the purpose of expediting the checking of the certificates for the Firm
Shares by you, the Company and the Selling Shareholders agree to make such
certificates available to you for such purpose at least one full business day
preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be
made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the
additional time of purchase. For the purpose of expediting the checking of the
certificates for the Additional Shares by you, the Company agrees to make such
certificates available to you for such purpose at least one full business day
preceding the additional time of purchase.
The Selling Shareholders will pay all applicable state transfer
taxes, if any, involved in the transfer to the several Underwriters of the
Shares to be purchased by them from the Selling Shareholders.
3. Representations and Warranties of the Company and the Selling
Shareholders. The Company and for purposes of inducing the Underwriters to enter
into this Agreement and purchase the Shares, Thomas M. O'Gara ("O'Gara"),
jointly and severally, represent and warrant to each of the Underwriters that:
<PAGE> 6
-5-
(a) each Preliminary Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act complied when so filed in all
material respects with the Act, and at the time the Registration Statement
becomes or became effective, including at the time of effectiveness of any
post-effective amendment, and at all times subsequent thereto up to the
latest of the time of purchase, the additional time of purchase and the
termination of the offering of the Shares, (i) the Registration Statement
and the Prospectus and any amendments or supplements thereto complied and
will comply in all material respects with the provisions of the Act, (ii)
the Registration Statement at all such times did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (iii) the Prospectus at all such times did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company and such
Selling Shareholders make no warranty or representation with respect to
any statement contained in the Registration Statement or the Prospectus in
reliance upon and in conformity with information concerning the
Underwriters and furnished in writing by or on behalf of any Underwriter
through you to the Company expressly for use in the Registration Statement
or the Prospectus and set forth in the section of the Registration
Statement and the Prospectus entitled "Underwriting";
(b) as of the date of this Agreement, the Company has an authorized
capitalization as set forth under the heading entitled "June 30, 1996 Pro
Forma" in the section of the Registration Statement and the Prospectus
entitled "Capitalization" and, as of the time of purchase and the
additional time of purchase, as the case may be, the Company shall have an
authorized capitalization as set forth under the heading entitled "June
30, 1996 Pro Forma, As Adjusted" in the section of the Registration
Statement and the Prospectus entitled "Capitalization"; all of the issued
and outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable and are
free of statutory and contractual preemptive rights;
<PAGE> 7
-6-
(c) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Ohio,
with full power and authority to own its properties and conduct its
business as described in the Registration Statement and the Prospectus, to
execute and deliver this Agreement and to issue, sell and deliver the
Shares as herein contemplated;
(d) all of the issued and outstanding shares of the capital stock of
each of the Company's subsidiaries (whether a subsidiary as of the date
hereof or as of the time of purchase) having assets individually of at
least [$50,000], all of which are listed on Exhibit A to this Agreement
(the "Subsidiaries"), have been duly and validly authorized and issued and
are fully paid and nonassessable and, except as set forth in the
Registration Statement, are owned by the Company free and clear of any
pledge, lien, encumbrance, security interest, preemptive rights or other
claim; there are no outstanding rights, subscriptions, warrants, calls,
preemptive rights, options or other agreements of any kind with respect to
the capital stock of the Company or of the Subsidiaries; the Company does
not own, directly or indirectly, shares of capital stock of or other
equity interest in any corporation or other entity other than the
Subsidiaries;
(e) each of the Subsidiaries has been duly organized and is validly
existing as a corporation in good standing, to the extent that the concept
of good standing is recognized under the jurisdiction under which such
Subsidiary is organized, under the laws of its respective jurisdiction of
incorporation with full corporate power and authority to own its
respective properties and conduct its respective businesses;
(f) each of the Company and each of its Subsidiaries is duly
qualified or licensed by and is in good standing, to the extent that the
concept of good standing is recognized under the jurisdiction under which
such Subsidiary is organized, in each jurisdiction in which it owns or
leases property or conducts its businesses and in each other jurisdiction
in which the failure to be so qualified or licensed is reasonably likely
to have a material adverse effect on the properties, assets, operations,
liabilities, prospects, results of operations, business or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a
whole (a "Material Adverse
<PAGE> 8
-7-
Effect"); each of the Company and each of its Subsidiaries are in
compliance in all material respects with the laws, orders, rules,
regulations and directives issued or administered by each such
jurisdiction, except where the failure to be in compliance would not have
a Material Adverse Effect;
(g) neither the Company nor any of its Subsidiaries is in breach of,
or in default under (nor has any event occurred that with notice, lapse of
time, or both would constitute a breach of, or default under), its
respective charter or by-laws or in the performance or observance of any
obligation, agreement, covenant or condition contained in any license,
indenture, mortgage, deed of trust, bank loan or credit agreement,
material supply agreement or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which any of them or
their respective properties are bound or affected, where the breach in
default would have a Material Adverse Effect, and the execution, delivery
and performance of this Agreement, the issuance of the Shares to be sold
by the Company and the consummation of the transactions contemplated
hereby will not conflict with, or result in any breach of or constitute a
default under (nor constitute any event that with notice, lapse of time,
or both would constitute a breach of, or default under), any provision of
the charter or by-laws of the Company or any of its Subsidiaries or under
any provision of any license, indenture, mortgage, deed of trust, bank
loan or credit agreement, material supply agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or
by which any of them or their respective properties may be bound or
affected, or under any federal, state, local or foreign law, regulation or
rule or any decree, judgment or order applicable to the Company or any of
its Subsidiaries;
(h) neither the Company nor any of its Subsidiaries is a party to
any litigation, and there is no such litigation pending or (to the best
knowledge of the Company or any of its Subsidiaries), threatened or
contemplated, which seeks to enjoin or restrain the execution, delivery
and performance of this Agreement, the incurrence of the obligations set
forth herein or the consummation of the transactions contemplated hereby;
<PAGE> 9
-8-
(i) this Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms; the Board of Directors of the
Company or a committee thereof duly authorized by the Board of Directors
of the Company has duly adopted resolutions authorizing the issuance and
sale of the Shares by the Company; the Firm Shares and the Additional
Shares to be sold by the Company, when issued and delivered to and paid
for by the Underwriters as contemplated hereby, will be duly and validly
authorized and issued and fully paid and nonassessable, and free and clear
of any pledge, lien, charge, encumbrance, security interest, preemptive
right or other claim;
(j) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus and the certificates for the
Shares are in due and proper form and the holders of the Shares, after
making payment therefor, will not be subject to personal liability by
reason of being such holders;
(k) no approval, authorization, consent or order of or filing with
any federal, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and
sale of the Shares as contemplated hereby other than registration of the
Shares under the Act, clearance of the offering of such Shares with the
National Association of Securities Dealers, Inc. (the "NASD") and any
necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters;
(l) no person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, any shares of
capital stock of the Company upon the issue and sale of the Shares to the
Underwriters hereunder; no person has any preemptive rights, rights of
first refusal or other rights to purchase any of the Shares; no person has
any right to have securities included in or registered pursuant to the
Registration Statement;
(m) Arthur Andersen, LLP, whose reports on the combined
financial statements of the Company and its
<PAGE> 10
-9-
Subsidiaries are filed with the Commission as part of the Registration
Statement and the Prospectus, are independent certified public accountants
as required by the Act;
(n) each of the Company and its Subsidiaries has such permits,
licenses, franchises, authorizations, consents and approvals ("permits")
and has made all necessary filings required under any federal, state,
local or foreign law, regulation or rule, including, without limitation,
under any Environmental Laws (as defined below), and has obtained all
necessary authorizations, consents and approvals from other persons as are
necessary to own, lease and operate its respective properties and to
conduct its respective business, except where the lack of such permits,
the failure to make such filings and the failure to obtain such
authorization, consents and approvals would not have a Material Adverse
Effect; neither the Company nor any of its Subsidiaries is in violation
of, or in default under, any such permit or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of its Subsidiaries, which violation or
default, singly or in the aggregate with all other such violations and
defaults, would be reasonably likely to have a Material Adverse Effect,
and no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination of any such permit or results in
any other material impairment of the rights of the holder of any such
permit which would be reasonably likely to result in a Material Adverse
Effect; and, except as described in the Registration Statement and the
Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or any of the Subsidiaries;
(o) all legal or governmental proceedings, contracts or documents of
a character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement have
been so described or filed as required;
(p) there is no action, suit or proceeding pending or, to the
Company's knowledge, threatened against the Company or any of its
Subsidiaries or any of their respective properties or affiliates, at law
or in equity, or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency
that, singly or in the aggregate with all other
<PAGE> 11
-10-
such actions, suits and proceedings, would be reasonably likely to result
in a judgment or judgments having a Material Adverse Effect;
(q) the audited and unaudited financial statements included in the
Registration Statement and the Prospectus present fairly the combined
financial position of the Company and its Subsidiaries as of the dates
indicated and the combined results of operations and cash flows of the
Company and its Subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved; [additional representation to be inserted re: pro formas, if
required]
(r) neither the Company nor its Subsidiaries, nor any director,
officer, agent, employee, or other person, while associated with, or
authorized to act on behalf of, the Company or the Subsidiaries has,
directly or indirectly: (i) unlawfully and corruptly used any corporate
funds for contributions, gifts, entertainment, or other unlawful expenses
relating to political activity; (ii) made unlawfully and corruptly
payments to government officials or employees or to political parties or
campaigns from corporate funds; (iii) violated any applicable provision of
the U.S. Foreign Corrupt Practices Act of 1977, as amended (the "FCPA");
(iv) violated any applicable U.S. "fraud and abuse legislation" or U.S.
"anti-kickback law"; or (v) made any other payment in the nature of a
bribe, rebate, kickback, payoff or influence payment which was unlawful
under applicable law at the relevant time;
(s) the Company's internal accounting controls and procedures are
sufficient to provide reasonable assurance that the Company's transactions
are executed and recorded in accordance with the requirements of the FCPA;
(t) subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as may be
otherwise stated in or contemplated by the Registration Statement or
Prospectus, there has not been (A) any material adverse change, financial
or otherwise, in the business, properties, assets, operations, prospects,
regulatory environment, results of operations or condition (financial or
otherwise), present
<PAGE> 12
-11-
or prospective, of the Company and its Subsidiaries taken as a whole, (B)
any transaction, which is material to the business, properties, assets,
operations, prospects, regulatory environment, results of operations or
condition (financial or otherwise), present or prospective, of the Company
and its Subsidiaries taken as a whole, contemplated or entered into by the
Company or any of its Subsidiaries or (C) any obligation, contingent or
otherwise, directly or indirectly incurred by the Company or any of its
Subsidiaries which is material to the business, properties, assets,
operations, prospects, regulatory environment, results of operations or
condition (financial or otherwise), present or prospective, of the Company
and its Subsidiaries taken as a whole;
(u) neither the Company nor any of its Subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), nor any federal or state law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable federal or state
wages and hours laws, nor any provisions of the Employee Retirement Income
Security Act or the rules and regulations promulgated thereunder, which in
each case is reasonably likely to result in any Material Adverse Effect;
(v) in the ordinary course of its business, the Company conducts
reviews of the effect of Environmental Laws on the business, operations
and properties of the Company and its Subsidiaries, in the course of which
it identifies and evaluates associated costs and liabilities (including
without limitation any capital expenditure required for clean-up, closure
or properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties); on the basis of such review, the
Company reasonably has concluded that such associated costs and
liabilities, singly or in the aggregate, would not have a Material Adverse
Effect;
(w) neither the Company nor any of its Subsidiaries, nor any
employee of the Company or any of its Subsidiaries, has made any payment
of funds of the Company or any of its Subsidiaries prohibited by law, and
no funds of the Company or any of its Subsidiaries have been set aside to
<PAGE> 13
-12-
be used for any payment prohibited by law where such payment is
reasonably likely to result in a Material Adverse Effect;
(x) the Company is not an "enemy" or an "ally of the enemy" within
the meaning of Section 2 of the U.S. Trading with the Enemy Act, as
amended; and the Company is not in violation of, and the Company's use of
the proceeds from the sale of the Shares as contemplated hereby will not
violate, the U.S. Trading with the Enemy Act, as amended, or any executive
orders, proclamations or regulations issued pursuant thereto, including,
without limitation, regulations administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury (31 C.F.R., Subtitle
B, Chapter V as amended);
(y) neither the Company nor any of its Subsidiaries does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075 of the Florida Statutes;
(z) the Company and its Subsidiaries have good title to all
properties and assets owned or leased by them, in each case, except as set
forth in the Registration Statement and the Prospectus, free and clear of
all pledges, liens, encumbrances, security interests, charges, mortgages
and defects except where failure of good title or the existence of a lien,
encumbrance, security, interest, charge, mortgage or deficit would not
have a Material Adverse Effect;
(aa) each issuance of securities referred to in Item 15 of the
Registration Statement (i) was effected in reliance upon a valid exemption
from the registration requirements of the Act and (ii) was effected in
compliance with the securities or blue sky laws of each jurisdiction in
which such securities were offered or sold;
(bb) the Company and each of its Subsidiaries have filed all federal
or state income and franchise tax returns required to be filed and have
paid all taxes shown thereon as due, and there is no material tax
deficiency which has been or might be asserted against the Company or any
of its Subsidiaries; all material tax liabilities of the Company and its
Subsidiaries are adequately provided for on the books of the Company and
its Subsidiaries;
<PAGE> 14
-13-
(cc) neither the Company nor any of its affiliates has incurred any
liability for any finder's fees or similar payments in connection with the
transactions herein contemplated;
(dd) the Company and its Subsidiaries have good title to all
properties and assets owned or leased by them, in each case free and clear
of all liens, security interests, pledges, charges, encumbrances,
mortgages and defects (except such as are described or referred to in the
Prospectus and the financial statements and the notes thereto contained
therein or such as do not interfere with the use made and proposed to be
made of such property by the Company and its Subsidiaries);
(ee) the Company has obtained the agreement of each of its
directors, officers and stockholders (other than, with respect to Shares
to be sold hereunder, the Selling Shareholders) not to sell, transfer,
contract to sell, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable for Common Stock or warrants or other
rights to purchase Common Stock for a period of 180 days after the date of
the Prospectus without the prior written consent of Dillon Read; and
(ff) none of the Company or its Subsidiaries is, or after
application of the proceeds as described under the caption "Use of
Proceeds" in the Registration Statement and the Prospectus, will be an
"investment company" or an affiliated person of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended, and the rules
and regulations thereunder, or is subject to regulation under such Act.
4. Further Representations and Warranties of the Selling
Shareholders. Each Selling Shareholder, severally and not jointly, further
represents and warrants to each Underwriter that:
(a) such Selling Shareholder now is, and at the time of delivery of
such Shares will be, the lawful owner of the number of Shares to be sold
by such Selling Shareholder pursuant to this Agreement and has and, at the
time of delivery thereof, will have valid and marketable title to such
Shares, and upon delivery of and payment for such
<PAGE> 15
-14-
Shares, the Underwriters will acquire valid and marketable title to such
Shares free and clear of any claim, lien, encumbrance, security interest,
community property right, restriction on transfer or other defect in
title;
(b) such Selling Shareholder has and at the time of delivery of such
Shares will have full legal right, power and capacity, and any approval
required by law (other than those imposed by the Act and the securities or
blue sky laws of the various jurisdictions in which the Shares are to be
offered by the Underwriters), to sell, assign, transfer and deliver such
Shares in the manner provided in this Agreement;
(c) this Agreement and the Custody Agreement/Powers of Attorney have
been duly executed and delivered by such Selling Shareholder and each is a
legal, valid and binding agreement of such Selling Shareholder enforceable
in accordance with its terms;
(d) each Preliminary Prospectus filed as a part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act, and when the Registration
Statement becomes or became effective and at all times subsequent thereto
through the latest of the time of purchase, additional time of purchase
and the termination of the offering of the Shares, the Registration
Statement and the Prospectus, and any supplements or amendments thereto,
as they relate to such Selling Shareholder did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(e) such Selling Shareholder has duly and irrevocably authorized the
Representatives of the Selling Shareholders, on behalf of such Selling
Shareholder, to execute and deliver this Agreement and any other document
necessary or desirable in connection with the transactions contemplated
hereby and to deliver the Shares to be sold by such Selling Shareholder
and receive payment therefor pursuant hereto;
(f) the sale of such Selling Shareholder's Shares pursuant to
this Agreement is not prompted by any
<PAGE> 16
-15-
information concerning the Company which is not set forth in the
Prospectus; and
(g) the consummation of the transactions contemplated hereby and by
the Custody Agreement/Powers of Attorney and the fulfillment of the terms
hereof and thereof will not constitute a breach or violation of or default
under any trust, indenture, agreement or other instrument to which any
such Selling Shareholder is a party or by which any such Selling
Shareholder is bound.
5. Certain Covenants of the Company. The Company hereby
agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such jurisdictions as you may designate and
to maintain such qualifications in effect so long as required for the
distribution of the Shares, provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the service
of process under the laws of any such jurisdictions in which it is not now
subject to service of process (except service of process with respect to
the offering and sale of the Shares); and to promptly advise you of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to make
every reasonable effort to obtain the withdrawal of any order or
suspension as soon as practicable;
(b) to make available to you in New York City, as soon as
practicable after the Registration Statement becomes effective (but in any
event not later than 1:00 P.M. on the business day immediately following
the date hereof), and thereafter, from time to time for so long as a
prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, to furnish to the Underwriters and dealers,
without charge, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may reasonably request;
<PAGE> 17
-16-
(c) to advise you promptly and (if requested by you) to confirm such
advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes effective
and (ii) if Rule 430A under the Act is used, when the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner under such Rule);
(d) to advise you promptly (and to confirm such advice in writing)
of the receipt of any comments from the Commission or any request by the
Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information with respect thereto, or, to
the extent the Company has received notice thereof, the issuance by the
Commission of a stop order suspending the effectiveness of the
Registration Statement or the threatening or initiation of any proceedings
for that purpose or the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or the threatening or initiation of
any proceeding for that purpose; to make every reasonable effort to
prevent the issuance of any stop order or any order preventing or
suspending the use of any Preliminary Prospectus or suspending such
qualification and, if any stop order or any order suspending the use of
any Preliminary Prospectus or suspending such qualification is issued, to
make every reasonable effort to obtain the lifting or removal thereof as
soon as possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement or Prospectus and to file no such
amendment or supplement to which you shall object in writing;
(e) to furnish to you and, upon request to each of the other
Underwriters, for a period of five years from the date of this Agreement
(i) copies of all reports or other communications that the Company shall
send to its shareholders or from time to time shall publish or publicly
disseminate; (ii) copies of all annual, quarterly and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar form as may be designated by the Commission, and any other
document filed by the Company pursuant to Section 12, 13, 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
(iii) such other information as you may reasonably request regarding the
Company or its Subsidiaries;
<PAGE> 18
-17-
(f) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of 12 months
beginning after the effective date of the Registration Statement but not
later than 15 months after the date of the Registration Statement, as soon
as is reasonably practicable after the termination of such twelve-month
period;
(g) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a prospectus
relating to the Shares is required to be delivered under the Act which, in
the judgment of the Company, would require the making of any change in the
Prospectus then being used so that the Prospectus would not contain an
untrue statement of material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and, during such
time, to prepare and furnish, at the Company's expense, to the
Underwriters promptly such amendments or supplements to such Prospectus as
may be necessary to reflect any such change and to furnish you a copy of
such proposed amendment or supplement before filing any such amendment or
supplement with the Commission;
(h) to furnish to you four (4) signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto) and sufficient conformed copies
of the foregoing (other than exhibits) for distribution of a copy to each
of the Underwriters;
(i) to furnish to you as early as practicable prior to the time of
purchase and the additional time of purchase, as the case may be, but not
later than two business days prior thereto, a copy of the latest available
unaudited interim consolidated financial statements, if any, of the
Company and its Subsidiaries which have been read by the Company's
independent certified public accountants, as stated in their letter to be
furnished pursuant to Section 8(c) of this Agreement;
(j) to apply the net proceeds from the sale of the Shares sold by
the Company in the manner set forth under the caption "Use of Proceeds" in
the Prospectus and to file such reports with the Commission with respect
to the
<PAGE> 19
-18-
sale of the Shares and the application of the proceeds therefrom as
may be required in accordance with Rule 463 under the Act;
(k) to furnish to you, before filing with the Commission subsequent
to the effective date of the Registration Statement and during the period
referred to in paragraph (g) above, a copy of any document proposed to be
filed pursuant to Sections 13, 14 or 15(d) of the Exchange Act;
(l) not to sell, contract to sell, grant any option to sell,
transfer or otherwise dispose of, directly or indirectly, any shares of
Common Stock or securities convertible into or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock or permit the
registration under the Act of any shares of Common Stock, except for the
registration of the Shares and the sales to the Underwriters pursuant to
this Agreement and except for issuances of Common Stock upon the exercise
of outstanding options, warrants and debentures, for a period of 180 days
after the date hereof, without the prior written consent of Dillon Read,
and except for grants of options under the Company's 1996 Stock Option
Plan (which options are not exercisable before the end of such 180 day
period);
(m) to use its best efforts to cause the Shares to be listed
on the Nasdaq National Market;
(n) to refrain from investing the proceeds from the sale of the
Shares in a manner to cause the Company or any of its Subsidiaries to
become an "investment company" within the meaning of the Investment
Company Act of 1940, as amended;
(o) not to take, directly or indirectly, any action designed to
cause or to result in, or that might constitute the stabilization or
manipulation of the Common Stock to facilitate the sale or resale of the
Shares; and
(p) whether or not the transactions contemplated hereby are
consummated or this Agreement otherwise becomes effective or is
terminated, to pay all expenses, fees and taxes (other than any transfer
taxes and fees and disbursements of counsel for the Underwriters except as
set forth under Section 7 hereof or (iii) and (iv) below) in connection
with (i) the preparation and filing of the
<PAGE> 20
-19-
Registration Statement, each Preliminary Prospectus, the Prospectus, and
any amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs
of mailing and shipment), (ii) the issuance, sale and delivery of the
Shares by the Company and the Selling Shareholders, (iii) the word
processing and/or printing of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Statements of Information and
Powers of Attorney and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs
of mailing and shipment), (iv) the qualification of the Shares for
offering and sale under state or blue sky laws of the various
jurisdictions in which the Shares are offered by the Underwriters
(including the legal fees and filing fees and other disbursements of
counsel to the Underwriters, not to exceed $_______________) and the
printing and furnishing of copies of any blue sky surveys to the
Underwriters and to dealers, (v) any listing of the Shares on any
securities exchange or qualification of the Shares for quotation on the
Nasdaq National Market and any registration thereof under the Exchange
Act, (vi) the filing fees relating to the review of the public offering of
the Shares by the NASD and (vii) the performance of the Company's and the
Selling Shareholders' other obligations hereunder.
6. Certain Covenants of the Selling Shareholders. Each Selling
Shareholder agrees with each Underwriter that, for a period of 180 days after
the date hereof, such Selling Shareholder will not sell, contract to sell, grant
any option to sell, transfer or otherwise dispose of, directly or indirectly,
any shares of Common Stock or securities convertible into or exchangeable for
Common Stock or warrants or other rights to purchase Common Stock without the
prior written consent of Dillon Read.
7. Reimbursement of Underwriters' Expenses. If the Firm Shares or
the Additional Shares are not delivered for any reason, other than the failure
of the Underwriters to purchase the Firm Shares or the Additional Shares as
provided herein (unless such failure is permitted under the provisions of
Section 8 of this Agreement), the Company will reimburse the Underwriters for
all of their out-of-pocket expenses, including the fees and disbursements of
their counsel.
<PAGE> 21
-20-
8. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Shareholders on the
date hereof and at the time of purchase (and, to the extent noted below, the
several obligations of the Underwriters at any additional time of purchase are
subject to the accuracy of the representations and warranties on the part of the
Company and the Selling Shareholders on the date hereof and at the time of
purchase (unless previously waived) and at such additional time of purchase, as
the case may be), the performance by the Company and the Selling Shareholders of
their obligations hereunder and to the following conditions:
(a) The Company shall furnish to you at the time of purchase and at
such additional time of purchase, as the case may be, an opinion of Taft,
Stettinius & Hollister, counsel for the Company, addressed to the
Underwriters and dated the time of purchase or additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to Cahill Gordon & Reindel, counsel
for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Ohio, with full corporate power and authority to own its
properties and conduct its business as described in the Registration
Statement and the Prospectus, to execute and deliver this Agreement
and to issue, sell and deliver the Shares as herein contemplated;
(ii) each of the Subsidiaries has been duly incorporated and is
validly existing as a corporation and each domestic Subsidiary is in
good standing under the laws of its respective jurisdiction of
incorporation, and each domestic Subsidiary has full corporate power
and authority to own its respective properties and to conduct its
respective business as described in the Registration Statement and
the Prospectus;
(iii) each of the Company and its Subsidiaries is duly qualified
or licensed to do business and is in good standing as a foreign
corporation in each jurisdiction in which it owns or leases property
or
<PAGE> 22
-21-
conducts its business except where the failure to be so
qualified or licensed would not have a Material Adverse Effect;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company and O'Gara; the Board of Directors of the
Company or a committee thereof duly authorized by the Board of
Directors of the Company has duly adopted resolutions authorizing
the issuance and sale of the Shares by the Company;
(v) the Company has an authorized capitalization as set forth
in the Registration Statement and the Prospectus; the outstanding
shares of capital stock of the Company (including the Shares to be
sold by the Selling Shareholders) have been duly authorized and
validly issued, and are fully paid, non-assessable and free of
statutory and contractual preemptive rights;
(vi) all of the issued and outstanding shares of the capital
stock of each of the Company's Subsidiaries have been duly and
validly authorized and issued and are fully paid and nonassessable
and except [as set forth in Exhibit A to this Agreement and] subject
to governmental filings and recordation of documents of transfer in
the jurisdictions in which the foreign Subsidiaries are
incorporated, are owned, directly or indirectly, by the Company free
and clear of any pledge, lien, encumbrance, security interest,
preemptive rights or other claim known to such counsel; to the best
of such counsel's knowledge, except as described in the Registration
Statement and the Prospectus or on Exhibit A to this Agreement there
are no outstanding rights subscriptions, warrants, calls, options or
other agreements of any kind with respect to the capital stock of
the Company or its Subsidiaries; to the best of such counsel's
knowledge, [subject to any governmental filings and recordation of
documents of transfer with respect to O'Gara Overseas Services, S.A.
in Switzerland,] the Company does not own, directly or indirectly,
shares of capital stock of or equity interest in any corporation or
other entity other than its Subsidiaries or other direct or indirect
subsidiaries of the Company whose assets individually are less than
$100,000;
<PAGE> 23
-22-
(vii) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof
contained in the Registration Statement and Prospectus;
(viii) the Shares to be sold by the Company have been duly
authorized and, upon payment and delivery in accordance with this
Agreement, will be validly issued, fully paid and nonassessable; the
holders of the Shares will not be subject to personal liability by
reason of being such holders;
(ix) the Registration Statement and the Prospectus (except as
to the financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein, as
to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act;
(x) the Registration Statement has become effective under the
Act and, to the best of such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under the
Act;
(xi) no approval, authorization, consent or order of or filing
with any federal, state or local governmental or regulatory
commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares as contemplated
hereby other than registration of the Shares under the Act and the
clearance of the offering of such Shares with the NASD (except such
counsel need express no opinion as to any necessary qualification
under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriters);
(xii) the execution, delivery and performance of this Agreement
by the Company, the issuance of the shares to be sold by the Company
and the consummation by the Company of the transactions contemplated
hereby do not and will not conflict with, or result in any breach
of, or constitute a default under (nor constitute any event which
with notice, lapse of time, or both, would constitute a breach of or
<PAGE> 24
-23-
default under), any provisions of the charter or by-laws of the
Company or under any provision of any license, indenture, mortgage,
deed of trust, bank loan or credit agreement, material supply
agreement or other agreement or instrument known to such counsel to
which the Company or any of its Subsidiaries is a party or by which
any of them or their respective properties may be bound or affected,
or to the knowledge of such counsel under any federal, state or
local or foreign law, regulation or rule or any decree, judgment or
order applicable to the Company or any of its Subsidiaries;
(xiii) to the best of such counsel's knowledge, neither the
Company, any of its Subsidiaries nor O'Gara is a party to any
litigation, and there is no such litigation pending or threatened,
which seeks to enjoin or restrain the execution, delivery and
performance of this Agreement, the incurrence of the obligations set
forth herein or the consummation of the transactions contemplated
hereby;
(xiv) to the best of such counsel's knowledge, neither the
Company nor any of its Subsidiaries is in breach of, or in default
under (nor has any event occurred which with notice, lapse of time,
or both would constitute a breach of, or default under), any
license, indenture, mortgage, deed of trust, bank loan or credit
agreement, material supply agreement or any other agreement or
instrument to which the Company or any of its Subsidiaries is a
party or by which any of them or their respective properties may be
bound or affected or under any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to
the Company or any of its Subsidiaries where the breach, default or
violation could have a Material Adverse Effect;
(xv) to the best of such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a character
which are required to be filed as exhibits to the Registration
Statement or to be summarized or described in the Prospectus which
have not been so filed, summarized or described;
(xvi) to the best of such counsel's knowledge, there are
no actions, suits or proceedings pending or
<PAGE> 25
-24-
threatened against the Company or any of its Subsidiaries or any of
their respective properties, at law or in equity or before or by any
commission, board, body, authority or agency which are required to
be described in the Prospectus but are not so described;
(xvii) except as described in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings of which such
counsel has knowledge pending or threatened against the Company or
any of its Subsidiaries, or any of their respective properties, at
law or in equity, or before or by any federal, state, local or
foreign governmental or regulatory commission, board, body,
authority or agency that individually or in the aggregate could
result in a judgment, decree or order having a Material Adverse
Effect;
(xviii) to the best of such counsel's knowledge, no person has the
right, contractual or otherwise, to cause the Company to issue to
it, or register pursuant to the Act, any securities of the Company
in consequence of the issue and sale of the Shares to the
Underwriters hereunder;
(xix) each issuance of securities in the Reorganization referred
to in Item 15 of the Registration Statement (i) was effected in
reliance upon a valid exemption from the registration requirements
of the Act and (ii) was effected in compliance with the securities
or blue sky laws of each jurisdiction in which such securities were
offered and sold;
(xx) none of the Company or its Subsidiaries is, or after
application of the proceeds as described under the caption "Use of
Proceeds" in the Registration Statement and the Prospectus, will be
an "investment company" or an affiliated person of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder;
(xxi) the statements in the Registration Statement and the
Prospectus under the captions "Business-Regulation," "Description
of Capital Stock" and "Shares Eligible for Future Sale," insofar as
such
<PAGE> 26
-25-
statements constitute summaries of legal matters, documents or
proceedings referred to therein, have been reviewed by such counsel,
are accurate in all material respects and fairly present the
information called for with respect to such legal matters, documents
or proceedings; and
(xxii) such counsel have participated in conferences with
officers and other representatives of the Company, representatives
of the independent public accountants of the Company,
representatives of the Selling Shareholders and representatives of
the Underwriters at which the contents of the Registration Statement
and Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or Prospectus (except as and to the extent
stated in subparagraphs (v), (vii) and (xix) above), on the basis of
the foregoing (relying as to materiality to a large extent upon the
opinions of officers and other representatives of the Company)
nothing has come to the attention of such counsel that causes them
to believe that the Registration Statement or any amendment thereto
at the time such Registration Statement or amendment became
effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus or any supplement thereto at the date of such Prospectus
or such supplement, and at all times up to and including the time of
purchase or additional time of purchase, as the case may be,
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such
counsel need express no opinion with respect to the financial
statements and schedules and other financial and statistical data
included in the Registration Statement or Prospectus).
In rendering such opinions, such counsel may rely, as to matters
governed by the laws of jurisdictions other than the United States, upon
the opinions of foreign
<PAGE> 27
-26-
counsel to the Company and its Subsidiaries, which counsel shall be
reasonably acceptable to the Underwriters. Such counsel may also rely as
to matters of fact on certificates of officers of the Company and of
governmental officials, in which case their opinion is to state that they
are so doing and that the Underwriters are justified in relying on such
certificates. Such counsel's opinion may state that where a matter is
noted as being "to the best of such counsel's knowledge," or equivalent
words, that such knowledge is limited to the conscious awareness of
relevant information by those lawyers in such counsel's organization who
have been actively involved in the matters contemplated by this Agreement
or in the Reorganization as defined in the Prospectus.
(b) The Selling Shareholders shall furnish to you at the time of
purchase and at the additional time of purchase, as the case may be, an
opinion of counsel for the Selling Shareholders, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters, and in form and substance satisfactory to Cahill Gordon &
Reindel, counsel for the Underwriters, stating that:
(i) this Agreement and the Custody Agreement/Powers of
Attorney have been duly executed and delivered by or on behalf of
each of the Selling Shareholders; the Custody Agreement/Powers of
Attorney is the legal, valid and binding agreement of each of the
Selling Shareholders enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and general principles of equity;
(ii) to the best of such counsel's knowledge, each Selling
Shareholder has full legal right and power, and has obtained any
authorization or approval required by law (other than those imposed
by the Act and the securities or blue sky laws of certain
jurisdictions), to sell, assign, transfer and deliver the Shares to
be sold by such Selling Shareholder in the manner provided in this
Agreement;
<PAGE> 28
-27-
(iii) to the best of such counsel's knowledge, delivery of
certificates for the Shares by each Selling Shareholder pursuant
hereto will pass to each Underwriter that is a "bona fide purchaser"
(as defined in Section 1308.17 of the Ohio Revised Code) all of the
rights of the Selling Shareholder in such shares free and clear of
any adverse claim;
(iv) each of the Representatives of the Selling Shareholders
has been duly authorized by each Selling Shareholder to execute and
deliver on behalf of such Selling Shareholder this Agreement and any
other document necessary or desirable in connection with the
transactions contemplated hereby and to deliver the Shares to be
sold by such Selling Shareholder and receive payment therefor
pursuant hereto;
(v) to the best of such counsel's knowledge, the consummation
of the transactions contemplated hereby and by the Power of Attorney
and the Custody Agreement and the fulfillment of the terms hereof
and thereof will not constitute a breach or violation of or default
under any trust, indenture, agreement or other instrument to which
any of the Selling Shareholders is a party or by which any of the
Selling Shareholders is bound;
(vi) to the best of such counsel's knowledge, no approval,
authorization, consent or order of or filing with any federal, state
or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the sale of the
Shares to be sold by the Selling Shareholders as contemplated hereby
other than registration of the Shares under the Act (except such
counsel need express no opinion as to any necessary qualification
under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriters); and
(vii) to the best of such counsel's knowledge, the statements in
the Prospectus under the caption "Principal and Selling
Shareholders" insofar as such statements constitute a summary of
legal matters, documents or proceedings referred to therein present
fairly the information called for with respect to such matters.
<PAGE> 29
-28-
In rendering such opinion, such counsel may rely, as to matters of fact,
on certificates of the Selling Shareholders, in which case their opinion
is to state that they are so doing, and that the Underwriters are
justified in relying on such certificates. Such counsel's opinion may
state that where a matter is noted as being "to the best of such counsel's
knowledge," or equivalent words, that such knowledge is limited to the
conscious awareness of relevant information by those lawyers in such
counsel's organization who have been actively involved in the matters
contemplated by this Agreement or in the Reorganization as defined in the
Prospectus.
(c) You shall have received from Arthur Andersen, LLP, letters
dated, respectively, the date of this Agreement and the time of purchase
and additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in the
forms heretofore approved by the Managing Underwriters.
(d) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion of
Cahill Gordon & Reindel, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, in form
and substance satisfactory to you.
(e) No amendment or supplement to the Registration Statement or
Prospectus shall be filed prior to the time the Registration Statement
becomes effective to which you object.
(f) The Registration Statement shall become effective at or before
5:00 P.M., New York City time, on the date of this Agreement, and if Rule
430A under the Act is used, the Prospectus shall have been filed with the
Commission in accordance with Rule 424(b) under the Act; provided,
however, that the Company, the Representatives of the Selling Shareholders
and you or any group of Underwriters, including you, who have agreed
hereunder to purchase in the aggregate at least 50% of the Firm Shares may
from time to time agree on a later time for the effectiveness of the
Registration Statement.
(g) Prior to the time of purchase and the additional time of
purchase, as the case may be, (i) no stop order
<PAGE> 30
-29-
with respect to the effectiveness of the Registration Statement shall have
been issued under the Act or proceedings initiated under Section 8(d) or
8(e) of the Act; (ii) the Registration Statement and all amendments
thereto, or modifications thereof, if any, shall not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and (iii) the Prospectus and all amendments or supplements
thereto, or modifications thereof, if any, shall not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
(h) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, there has
not been (i) any material and adverse change, present or prospective,
financial or otherwise (other than as referred to in or contemplated by
the Registration Statement and Prospectus), in the business, properties,
assets, operations, liabilities, results of operations, business,
condition (financial or otherwise) or prospects of the Company and its
Subsidiaries taken as a whole; (ii) any transaction that is material to
the Company and the Subsidiaries taken as a whole contemplated or entered
into by the Company or any of the Subsidiaries, other than as described in
or contemplated by the Registration Statement and the Prospectus; or (iii)
any obligation, contingent or otherwise, directly or indirectly, incurred
by the Company or any of the Subsidiaries that is material to the Company
and the Subsidiaries taken as a whole, other than as described in or
contemplated by the Registration Statement and the Prospectus.
(i) The Company will, at the time of purchase or additional time of
purchase, as the case may be, deliver to you a certificate of its chief
executive officer and chief financial officer to the effect that the
representations and warranties of the Company as set forth in this
Agreement and the conditions set forth in paragraphs (g) and (h) of this
Section 8 have been met and that they are true and correct in all material
respects as of each such date (it being understood that, in the absence of
bad
<PAGE> 31
-30-
faith, such individuals shall have no personal liability for the accuracy
of such certificate).
(j) You shall have received signed letters from each of the Selling
Shareholders and each of the directors, officers and stockholders of the
Company to the effect that such persons will not sell, contract to sell,
grant any option to sell, transfer or otherwise dispose of, directly or
indirectly, any shares of Common Stock of the Company or securities
convertible into or exchangeable for Common Stock or warrants or other
rights to purchase Common Stock for a period of 180 days after the date of
the Prospectus without the prior written consent of Dillon Read.
(k) The Shares shall have been approved for listing on the Nasdaq
National Market, subject only to notice of issuance at or prior to the
time of purchase.
(l) Each Selling Shareholder shall have delivered to you, at the
time of purchase a certificate of the Representatives of the Selling
Shareholders to the effect that the representations and the warranties of
such Selling Shareholder as set forth in this Agreement are true and
correct as of each such date.
(m) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Shares, and
the Prospectus, and all other legal matters relating to this Agreement,
the Shares, and the transactions contemplated hereby and thereby shall be
satisfactory in all reasonable respects to Cahill Gordon & Reindel, and
such counsel shall have been furnished with such documents and opinions,
in addition to those set forth above, as they may reasonably require for
the purpose of enabling them to review or pass upon the matters referred
to in this Section 8, in order to evidence the accuracy, completeness and
satisfaction in all material respects of any of the representations,
warranties or conditions herein contained and to render the opinion
referred to in Section 8(d).
(n) The Company and the Selling Shareholders shall have furnished to
you such other documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement and the
Prospectus as of the
<PAGE> 32
-31-
time of purchase and the additional time of purchase, as the case may
be, as you may reasonably request.
(o) The Company and the Selling Shareholders shall have performed
such of their respective obligations under this Agreement as are to be
performed by the terms hereof at or before the time of purchase and at or
before the additional time of purchase, as the case may be.
(p) The Company shall furnish to you at the time of purchase and at
such additional time of purchase, as the case may be, opinions of counsel
in Brazil, Ireland, Italy, Mexico and Russia in the forms heretofore
previously approved by you and satisfactory to Cahill Gordon & Reindel,
counsel for the Underwriters.
9. Effective Date of Agreement; Termination. (a) This Agreement
shall become effective (x) if Rule 430A under the Act is not used, when you
shall have received notification of the effectiveness of the Registration
Statement, or (y) if Rule 430A under the Act is used, when the parties hereto
have executed and delivered this Agreement.
(b) The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or in the absolute
discretion of Dillon Read, acting on your behalf, or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, at any time prior to the time of purchase or, with
respect to the purchase of any Additional Shares, the additional time of
purchase, as the case may be, (i) trading in securities on the New York Stock
Exchange shall have been suspended or minimum prices shall have been established
on the New York Stock Exchange, (ii) a banking moratorium shall have been
declared either by the United States or New York State authorities, or (iii) the
United States shall have declared war in accordance with its constitutional
processes or there shall have occurred any material outbreak or escalation of
hostilities or other national or international calamity or crisis of such
magnitude in its effect on the financial markets of the United States as, in
your judgment or in the judgment of Dillon Read, acting on your behalf, or in
the judgment of such group of Underwriters, to make it impracticable or
inadvisable to market the Shares. If you or Dillon Read, acting on your behalf,
or any such group of Underwriters elects to terminate this Agreement as provided
in this Section 9, the Company, the Representatives of the Selling Shareholders
<PAGE> 33
-32-
and each other Underwriter shall be notified promptly in accordance with
Section 12 hereof.
(c) If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company or the Selling Shareholders, as the case may be, shall be unable to
comply with any of the terms of this Agreement, the Company or the Selling
Shareholders, as the case may be, shall not be under any obligation or liability
under this Agreement (except to the extent provided in Sections 5(p), 7 and 11
hereof), and the Underwriters shall be under no obligation or liability to the
Company and the Selling Shareholders under this Agreement (except to the extent
provided in Section 11 hereof) or to one another hereunder.
10. Increase in Underwriters' Commitments. If any Underwriter shall
default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate principal amount of Firm
Shares they are obligated to purchase pursuant to Section 1 hereof) the number
of Firm Shares agreed to be purchased by all such defaulting Underwriters, as
hereinafter provided. Such Shares shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set opposite the names of such non-defaulting Underwriters in
Schedule A.
If any Underwriter shall default in its obligation to take up and
pay for the Firm Shares to be purchased by it hereunder and if the number of
Firm Shares which all Underwriters so defaulting shall have agreed but failed to
take up and pay for exceeds 10% of the total number of Firm Shares, and
arrangements satisfactory to you and the Company are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter.
<PAGE> 34
-33-
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company and the Selling Shareholders agree with the
non-defaulting Underwriters that they will not sell any Firm Shares hereunder
unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term Underwriter as used in this agreement shall refer to and
include any Underwriter substituted under this Section 10 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
11. Indemnity by the Company, the Selling Shareholders, O'Gara and
the Underwriters. (a) The Company, the Selling Shareholders and O'Gara, jointly
and severally, agree to indemnify, defend and hold harmless each Underwriter and
any person who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and their respective agents,
representatives, employees, officers, partners and directors (collectively, the
"Underwriter indemnified parties"), from and against any loss, expense, damage,
judgment, liability or claim (including the costs of investigating, defending or
settling such matters and fees and expenses of counsel in connection therewith)
as they are incurred (and regardless of whether the Underwriter indemnified
party is a party to the litigation, if any) which, jointly or severally, any
such Underwriter indemnified party may incur under the Act, the Exchange Act or
otherwise insofar as such loss, expense, damage, judgment, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus (the term Prospectus for the purpose of this Section
11 being deemed to include any Preliminary Prospectus, the Prospectus and the
Prospectus as amended or supplemented by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact required to
be stated in either such
<PAGE> 35
-34-
Registration Statement or Prospectus or necessary to make the statements made
therein, not misleading, except insofar as any such loss, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with information
furnished in writing by any Underwriter through you to the Company expressly for
use in such Registration Statement or such Prospectus or arises out of or is
based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in either such
Registration Statement or Prospectus or necessary to make such information not
misleading; provided, however, that no Selling Shareholder or O'Gara shall be
liable under this Section 11 (or as a result of any breach of this Agreement
other than as a result of bad faith) in an amount exceeding the total price at
which the Shares sold by such Selling Shareholder were offered to the public or
an amount exceeding the proceeds of the Offering received by O'Gara
respectively. This indemnity agreement will be in addition to any liability the
Company or the Selling Shareholders otherwise may have.
If any action or proceeding (including any governmental or
regulatory investigation or proceeding) is brought or asserted against any
Underwriter indemnified party in respect of which indemnity may be sought
against the Company or any Selling Shareholder pursuant to the foregoing
paragraph, such Underwriter indemnified party shall promptly notify the Company
and the Representatives of the Selling Shareholders in writing of the
institution of such action and the Company or such Selling Shareholder, as the
case may be, shall assume the defense of such action or proceeding, including
the employment of counsel satisfactory to the Underwriter indemnified party and
payment of all fees and expenses; provided that the omission to so notify the
Company or any Selling Shareholder shall not in any way relieve the Company from
any liability it may have to an Underwriter indemnified party except to the
extent that the Company shall have been materially and adversely prejudiced by
such failure to give notice. An Underwriter indemnified party shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter indemnified
party or of such controlling person unless the employment of such counsel shall
have been authorized in writing by the Company or such Selling Shareholder in
connection with the defense of such action or the Company or such Selling
Shareholder shall not have employed counsel to have charge of the defense of
such action within a reasonable period of time or such Underwriter indemnified
party
<PAGE> 36
-35-
or parties shall have reasonably concluded that there may be one or more
defenses available to it or them which are different from or additional to those
available to the Company or such Selling Shareholder (in which case the Company
or such Selling Shareholder shall not have the right to direct the defense of
such action on behalf of the Underwriter indemnified party or parties), in any
of which events such fees and expenses shall be borne by the Company or such
Selling Shareholder, as the case may be, and paid as incurred (it being
understood, however, that the Company or such Selling Shareholder shall not be
liable for the expenses of more than one separate counsel in any one action or
series of related actions in the same jurisdiction representing the Underwriter
indemnified parties who are parties to such action, which counsel shall be
designated by Dillon Read). Anything in this paragraph to the contrary
notwithstanding, the Company or such Selling Shareholder shall not be liable for
any settlement of any such claim or action effected without its written consent
(which consent shall not be unreasonably withheld or delayed) unless the Company
or the Selling Shareholder, as the case may be, shall be in breach of its
obligations to pay fees and expenses pursuant to this Agreement, but if settled
with the written consent of the Company or the Selling Shareholder, as the case
may be, or if there is a final judgment with respect thereto, the Company and
each Selling Shareholder jointly and severally agree to indemnify and hold
harmless each Underwriter indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, each Selling Shareholder and
any person who controls the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act from and against any loss, expense, damage,
judgment, liability or claim (including the costs of investigating, defending or
settling such matters and fees and expenses of counsel in connection therewith)
which, jointly or severally, the Company, any Selling Shareholder or any such
person may incur under the Act, the Exchange Act or otherwise, insofar as such
loss, expense, damage, judgment, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use with
reference to such Underwriter in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a
<PAGE> 37
-36-
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be
stated either in such Registration Statement or Prospectus or necessary to make
such information not misleading.
If any action or proceeding is brought or asserted against the
Company, any Selling Shareholder or any such person in respect of which
indemnity may be sought against any Underwriter pursuant to the foregoing
paragraph, the Company, such Selling Shareholder or such person shall promptly
notify such Underwriter in writing of the institution of such action and such
Underwriter shall assume the defense of such action, including the employment of
counsel satisfactory to the Company, such Selling Shareholder or such person and
payment of expenses provided that the omission to so notify the Underwriter
shall not in any way relieve the Underwriter from any liability they may have to
the Company, such Selling Shareholder or such person, except to the extent that
such Underwriter shall have been materially and adversely prejudiced by such
failure to give notice. The Company, such Selling Shareholder or such person
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of the Company, such
Selling Shareholder or such person unless the employment of such counsel shall
have been authorized in writing by such Underwriter in connection with the
defense of such action or such Underwriter shall not have employed counsel to
have charge of the defense of such action or such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or
them which are different from or additional to those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by such Underwriter
and paid as incurred (it being understood, however, that such Underwriter shall
not be liable for the expenses of more than one separate counsel in any one
action or series of related actions in the same jurisdiction representing the
indemnified parties who are parties to such action). Anything in this paragraph
to the contrary notwithstanding, no Underwriter shall be liable for any
settlement of any such claim or action effected without the written consent of
such Underwriter (which consent shall not be unreasonably withheld or delayed)
unless the Company or the Selling Shareholder, as the case may be, shall be in
breach of its obligations to pay fees and expenses pursuant to this Agreement,
but if settled
<PAGE> 38
-37-
with the written consent of the Company or the Selling Shareholder, as the case
may be, or if there is a final judgment with respect thereto, the Company and
each Selling Shareholder (subject to the limitation set forth _____ in this
Agreement) jointly and severally agree to indemnify and hold harmless each
Underwriter indemnified party from and against any loss or liability by reason
of such settlement or judgment.
(c) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 11 in respect of any losses, expenses, damages, judgments, liabilities
or claims referred to therein, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Selling Shareholders and O'Gara
on the one hand and the Underwriters on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, the Selling Shareholders and O'Gara on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, expenses, damages, judgments, liabilities or claims, as
well as any other relevant equitable considerations. The relative benefits
received by the Company, the Selling Shareholders and O'Gara on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and O'Gara
the Selling Shareholders and O'Gara bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault of the Company, the
Selling Shareholders and O'Gara on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company, by the Selling
Shareholders, by O'Gara or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, expenses, damages, judgments, liabilities and claims referred to above
shall be deemed to include any legal or other fees or
<PAGE> 39
-38-
expenses reasonably incurred by such party in connection with investigating or
defending any claim or action.
(d) The Company, the Selling Shareholders, O'Gara and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 11 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in subsection (c) above. Notwithstanding the provisions of this
Section 11 (or as a result of any breach of this Agreement other than as a
result of bad faith), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue statement or alleged
untrue statement or omission or alleged omission. No Selling Shareholder or
O'Gara shall be liable under this Section 11 (or as a result of any breach of
this Agreement other than as a result of bad faith) in an amount exceeding the
total price at which the Shares sold by such Selling Shareholder were offered to
the public or an amount exceeding the proceeds of the Offering received by
O'Gara, respectively. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriter's obligations to contribute pursuant to this Section 11 are several
in proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 11 and the covenants, warranties and representations of the Company, the
Selling Shareholders and O'Gara contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter indemnified party, or by or on behalf of the Company, its directors
and officers, any Selling Shareholder, O'Gara or any person who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and shall survive any termination of this Agreement or the
issuance and delivery of the Shares. Subject to its limitation on amounts to be
paid by Selling Shareholders as set forth in Sections 11(a) and 11(d), the
indemnity and contribution agreements contained in this Section 11 are in
addition to any other remedies that the parties hereto may have in equity or at
law.
<PAGE> 40
-39-
The Company, each Selling Shareholder, O'Gara and each Underwriter agree
promptly to notify the others of the commencement of any litigation or
proceeding against it and, in the case of the Company, against any of the
Company's officers and directors in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement or Prospectus.
12. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by
facsimile and, if to the Underwriters, shall be sufficient in all respects
if delivered or sent to Dillon, Read & Co. Inc., 535 Madison Avenue, New
York, N.Y. 10022, Attention: Syndicate Department, if to the Company, the
Selling Shareholders or O'Gara, shall be sufficient in all respects if
delivered or sent to the Company or the Selling Shareholders at the offices
of the Company at 9113 Le Saint Drive, Fairfield, OH 45014, Attention:
[ ] and, if to any of the Selling Shareholders, shall be
sufficient in all respects if delivered or sent to the Representatives of
the Selling Shareholders at ______________, Attention: [ ].
13. CONSTRUCTION. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS
AGREEMENT HAVE BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND
ARE NOT A PART OF THIS AGREEMENT.
14. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters and the Company and the
Underwriter indemnified parties and the Company, the Selling Shareholder, O'Gara
and such other person referred to in Section 11 hereof, and their respective
successors, assigns, executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
15. Counterparts. This Agreement may be signed by the
parties in counterparts which together shall constitute one and the same
agreement among the parties.
<PAGE> 41
If the foregoing correctly sets forth the understanding among the
Company, the Selling Shareholders, O'Gara and the Underwriters, please so
indicate in the space provided below for the purpose, whereupon this letter and
your acceptance shall constitute a binding agreement among the Company, the
Selling Shareholders and the Underwriters, severally.
Very truly yours,
THE O'GARA COMPANY
By: __________________________________
Name:
Title:
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE B ATTACHED HERETO
By: __________________________________
Name:
Title: Attorney-in-Fact
By:__________________________________
Thomas M. O'Gara
Title:
Accepted and agreed to as of the date first above written, on behalf of
themselves and the other several Underwriters named in Schedule A
DILLON, READ & CO. INC.
FURMAN SELZ LLC
EQUITABLE SECURITIES CORPORATION
By: DILLON, READ & CO. INC.
By: ______________________
Name:
Title:
<PAGE> 42
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriter Firm Shares
- ----------- -----------
<S> <C>
Dillon, Read & Co. Inc........................................
Furman Selz LLC...............................................
Equitable Securities Corporation..............................
-----------
Total...................................................... 2,800,000
===========
</TABLE>
<PAGE> 43
SCHEDULE B
<TABLE>
<CAPTION>
Number of
Selling Shareholders Firm Shares
- -------------------- -----------
<S> <C>
Union Federal Corporation 373,524
-------
Charles A. Williams 26,476
-------
Total. . . . . 400,000
=======
</TABLE>
<PAGE> 1
Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
THE O'GARA COMPANY
FIRST. The name of the corporation is THE O'GARA COMPANY (the
"Corporation").
SECOND. The place in the State of Ohio where the Corporation's
principal office is to be located is the City of Fairfield in Butler County,
Ohio.
THIRD. The purpose for which the Corporation is organized shall be to
engage in any lawful act or activity for which corporations may be formed under
the Ohio General Corporation Law, Ohio Revised Code Sections 1701.01 et seq.
FOURTH. The aggregate number of shares of stock which the Corporation
shall have authority to issue is Twenty-Five Million One Hundred Thousand
(25,100,000) shares, which shall be divided into two classes, consisting of:
(a) Twenty-Five Million (25,000,000) shares of common stock ("Common
Stock") with a par value of $.01 per share.
(b) One Hundred Thousand (100,000) shares of preferred stock
("Preferred Stock") with a par value of $.01 per share; and,
PART ONE: COMMON STOCK
The shares of Common Stock may be issued at any time or from time to
time for such amount of lawful consideration as may be fixed by the Board of
Directors. Each holder of Common Stock shall be entitled to one (1) vote for
each share of Common Stock held by such holder.
PART TWO: PREFERRED STOCK
Clause 1. Except as otherwise provided by this Article Fourth or by the
amendment or amendments adopted by the Board of Directors providing for the
issue of any series of Preferred Stock, the Preferred Stock may be issued at any
time or from time to time in any amount, not exceeding in the aggregate,
including all shares of any and all series thereof theretofore issued, the One
Hundred Thousand (100,000) shares of Preferred Stock hereinabove authorized, as
Preferred Stock of one or more series, as hereinafter provided, and for such
lawful consideration as shall be fixed from time to time by the Board of
Directors.
<PAGE> 2
Clause 2. Authority is hereby expressly granted to the Board of
Directors from time to time to adopt amendments to these Articles of
Incorporation providing for the issue in one or more series of any unissued or
treasury shares of the Preferred Stock, and providing, to the fullest extent now
or hereafter permitted by the laws of the State of Ohio and notwithstanding the
provisions of any other Article of these Articles of Incorporation of the
Corporation, in respect of the matters set forth in the following subdivisions
(i) to (ix), inclusive, as well as any other rights or matters pertaining to
such series:
(i) The designation and number of shares of such series;
(ii) Voting rights (to the fullest extent now or hereafter permitted by
the laws of the State of Ohio);
(iii) The dividend rate or rates of such series (which may be a
variable rate and which may be cumulative);
(iv) The dividend payment date or dates of such series;
(v) Redemption rights (to the fullest extent now or hereafter permitted
by the laws of the State of Ohio), including the price or prices at which shares
of such series may be redeemed;
(vi) The amount of the sinking fund, if any, to be applied to the
purchase or redemption of shares of such series and the manner of its
application;
(vii) The liquidation price or prices of such series;
(viii) Whether or not the shares of such series shall be made
convertible into, or exchangeable for, shares of any other class or classes or
of any other series of the same class of stock of the Corporation or any other
property, and if made so convertible or exchangeable, the conversion price or
prices, or the rates of exchange at which such conversion or exchange may be
made and the adjustments thereto, if any; and,
(ix) Whether or not the issue of any additional shares of such series
or any future series in addition to such series shall be subject to any
restrictions and, if so, the nature of such restrictions.
Any of the voting rights, dividend rate or rates, dividend payment date or
dates, redemption rights and price or prices, sinking fund requirements,
liquidation price or prices, conversion or exchange rights and restrictions on
issuance of shares of any such series of Preferred Stock may, to the fullest
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<PAGE> 3
extent now or hereafter permitted by the laws of the State of Ohio, be made
dependent upon facts ascertainable outside these Articles of Incorporation or
outside the amendment or amendments providing for the issue of such Preferred
Stock adopted by the Board of Directors pursuant to authority expressly vested
in it by this Article Fourth. If the then-applicable laws of the State of Ohio
do not permit the Board of Directors to fix, by the amendment creating a series
of Preferred Stock, the voting rights of shares of such series, each holder of a
share of such series of Preferred Stock shall, except as may be otherwise
provided by law, be entitled to one (1) vote for each share of Preferred Stock
of such series held by such holder.
Clause 3. Before any dividends shall be declared or paid upon or set
apart for, or distribution made on, the Common Stock and before any sum shall be
paid or set apart for the purchase or redemption of Preferred Stock of any
series or for the purchase of the Common Stock, the holders of Preferred Stock
of each series shall be entitled to receive accrued dividends declared by the
Board of Directors, payable at the rate or rates fixed for such series in
accordance with the provisions of this Article Fourth, and no more, from the
dividend payment date thereof, or preceding dividend payment date or dates fixed
from time to time by the Board of Directors.
Clause 4. If upon any dissolution, liquidation or winding up of the
Corporation or reduction of its capital stock, the assets so to be distributed
among the holders of the Preferred Stock pursuant to the provisions of this
Article Fourth or of the amendment or amendments providing for the issue of such
Preferred Stock adopted by the Board of Directors pursuant to authority
expressly vested in it by this Article Fourth shall be insufficient to permit
the payment to such holders of the full preferential amounts aforesaid, then the
entire assets of the Corporation shall be distributed ratably among the holders
of the Preferred Stock in proportion to the full preferential amounts to which
they are respectively entitled as aforesaid.
Clause 5. The term "accrued dividends", whenever used herein with
respect to the Preferred Stock of any series, shall be deemed to mean that
amount which would have been paid as dividends declared on the Preferred Stock
of such series to date had full dividends been paid thereon at the rate fixed
for such series in accordance with the provisions of this Article Fourth, less
in each case the amount of all dividends declared paid upon the shares of such
series.
FIFTH. The Corporation shall have the right to amend, alter, change or
repeal any provision contained in these Articles of Incorporation or any
provision that may be added or inserted in these Articles of Incorporation,
provided that:
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<PAGE> 4
(a) Such amendment, alteration, change, repeal, addition or insertion
is consistent with law and is accomplished in the manner now or hereafter
prescribed by statute or these Articles; and
(b) Any provision of these Articles of Incorporation which requires, or
the change of which requires, the vote or consent of all or a specific number or
percentage of the holders of shares of any class or series shall not be amended,
altered, changed or repealed by any lesser amount, number or percentage of votes
or consents of such class or series.
Any rights at any time conferred upon the shareholders of the Corporation are
granted subject to the provisions of this Article.
SIXTH. Subject to the provisions of Article Fifth hereof, the
affirmative vote of shareholders entitled to exercise a majority of the voting
power of the Corporation shall be required to amend these Articles of
Incorporation, approve mergers and to take any other action which by law must be
approved by a specified percentage of the voting power of the Corporation or of
all outstanding shares entitled to vote.
SEVENTH. No holder of any shares of the Corporation shall have any
preemptive rights to subscribe for or to purchase any shares of the Corporation
of any class, whether such shares or such class be now or hereafter authorized,
or to purchase or subscribe for any security convertible into, or exchangeable
for, shares of any class or to which shall be attached or appertained any
warrants or rights entitling the holder thereof to purchase or subscribe for
shares of any class.
EIGHTH. Subject to the provisions of Article Fourth hereof, the
Corporation, through its Board of Directors, shall have the right and power to
purchase any of its outstanding shares at such price and upon such terms as may
be agreed upon between the Corporation and any selling shareholder.
NINTH. No shareholder shall have the right to vote cumulatively in the
election of directors.
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<PAGE> 1
Exhibit 3.2
CODE OF REGULATIONS
-------------------
OF
--
THE O'GARA COMPANY
------------------
ARTICLE I
Shareholders
------------
Section 1. Annual Meetings.
---------------
The Annual Meeting of the shareholders of this Corporation, for the
election of the Board of Directors and the transaction of such other business as
may properly be brought before such meeting, shall be held at the time, date and
place designated by the Board of Directors or, if it shall so determine, by the
Chairman of the Board or the President. If the Annual Meeting is not held or if
Directors are not elected thereat, a Special Meeting may be called and held for
that purpose.
Section 2. Special Meetings.
----------------
Special meetings of the shareholders may be held on any business day
when called by the Chairman of the Board, the President, a majority of Directors
or persons holding fifty percent of all voting power of the Corporation and
entitled to vote at such meeting.
Section 3. Place of Meetings.
-----------------
Any meeting of shareholders may be held at such place within or without
the State of Ohio as may be designated in the Notice of said meeting.
Section 4. Notice of Meeting and Waiver of Notice
--------------------------------------
4.1 NOTICE. Written notice of the time, place and purposes of
any meeting of shareholders shall be given to each shareholder entitled
thereto not less than seven (7) days nor more than sixty (60) days
before the date fixed for the meeting and as prescribed by law. Such
notice shall be given either by personal delivery or mail to the
shareholders at their respective addresses as they appear on the
records of the Corporation. Notice shall be deemed to have been given
on the day mailed. If any meeting is adjourned to another time or
place, no notice as to such adjourned meeting need be given other than
by announcement at the meeting at which such an adjournment is taken.
No business shall be transacted at any such adjourned meeting except as
might have been lawfully transacted at the meeting at which such
adjournment was taken.
<PAGE> 2
4.2 NOTICE TO JOINT OWNERS. All notices with respect to any
shares to which persons are entitled by joint or common ownership may
be given to that one of such persons who is named first upon the books
of this Corporation, and notice so given shall be sufficient notice to
all the holders of such shares.
4.3 WAIVER. Notice of any meeting may be waived in writing by
any shareholder either before or after any meeting, or by attendance at
such meeting without protest to its commencement.
Section 5. Shareholders Entitled to Notice and to Vote.
-------------------------------------------
If a record date shall not be fixed, the record date for the
determination of shareholders entitled to notice of or to vote at any meeting of
shareholders shall be the date next preceding the day on which notice is given,
or the date next preceding the day on which the meeting is held, as the case may
be.
Section 6. Quorum and Voting.
-----------------
The holders of shares entitling them to exercise a majority of the
voting power of the Corporation, present in person or by proxy, shall constitute
a quorum for any meeting. The shareholders present in person or by proxy,
whether or not a quorum be present, may adjourn the meeting from time to time
without notice other than by announcement at the meeting.
In any other matter brought before any meeting of shareholders, the
affirmative vote of the holders of shares representing a majority of the votes
actually cast shall be the act of the shareholders provided, however, that no
action required by law, the Articles, or these Regulations to be authorized or
taken by the holders of a designated proportion of the shares of the Corporation
may be authorized or taken by a lesser proportion.
Section 7. Organization of Meetings.
------------------------
7.1 PRESIDING OFFICER. The Chairman of the Board, or in the
Chairman of the Board's absence the President, or the person designated
by the Board of Directors, shall call all meetings of the shareholders
to order and shall act as Chairman thereof; if all are absent, the
shareholders shall elect a Chairman.
7.2 MINUTES. The Secretary of the Corporation, or in the
Secretary's absence, an Assistant Secretary, or, in the absence of
both, a person appointed by the Chairman of the meeting, shall act as
Secretary of the meeting and shall keep and make a record of the
proceedings thereat.
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<PAGE> 3
Section 8. Voting.
------
Except as provided by statute or in the Articles, every shareholder
entitled to vote shall be entitled to cast one vote on each proposal submitted
to the meeting for each share held of record on the record date for the
determination of the shareholders entitled to vote at the meeting.
Section 9. Proxies.
-------
A person who is entitled to attend a shareholders' meeting, to vote
thereat or to execute consents, waivers and releases, may be represented at such
meeting or vote thereat, and execute consents, waivers and releases and exercise
any of the person's rights, by proxy or proxies appointed by a writing signed by
such person, or by his duly authorized attorney which may be transmitted
physically or by facsimile.
Section 10. List of Shareholders.
--------------------
At any meeting of shareholders a list of shareholders, alphabetically
arranged, showing the number and classes of shares held by each on the record
date applicable to such meeting, shall be produced upon the request of any
shareholder.
ARTICLE II
Directors
---------
Section 1. General Powers.
--------------
The authority of this Corporation shall be exercised by or under the
direction of the Board of Directors, except where the law, the Articles or these
Regulations require action to be authorized or taken by the shareholders.
Section 2. Election, Number and Qualification of Directors.
-----------------------------------------------
2.1 ELECTION. The Directors shall be elected at the Annual
Meeting of the shareholders, or if not so elected, at a special meeting
of shareholders. The only candidates who shall be eligible for election
at such meeting shall be those who have been nominated by or at the
direction of the Board of Directors (which nominations shall be either
made at such meeting or disclosed in a proxy statement, or supplement
thereto, distributed to shareholders for such meeting) and those who
have been nominated at such meeting by a shareholder who has complied
with the procedures set forth in this Section 2. A shareholder may make
a nomination for the office of director only if such shareholder has
first delivered or sent by certified mail, return receipt requested, to
the Secretary of the
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<PAGE> 4
Corporation notice in writing at least five and no more than thirty
days prior to such meeting of shareholders, which notice shall set
forth or be accompanied by (a) the name and residence of such
shareholder; (b) a representation that such shareholder is a holder of
record of voting stock of the Corporation and intends to appear in
person or by proxy at such meeting to nominate the person or persons
specified in the notice; (c) the name and residence of each such
nominee; and (d) the consent of such nominee to serve as director if so
elected. The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine,
he shall so declare to the meeting and the defective nomination shall
be disregarded.
2.2 NUMBER. The number of Directors, which shall not be less
than the lesser of three or the number of shareholders of record, may
be fixed or changed at a meeting of the shareholders called for the
purpose of electing Directors at which a quorum is present, by the
affirmative vote of the holders of a majority of the shares represented
at the meeting and entitled to vote on such proposal. In addition, the
number of Directors may be fixed or changed by action of the Directors
at any meeting of Directors at which a quorum is present by a majority
vote of the Directors present at the meeting. The Directors then in
office may fill any Director's office that is created by an increase in
the number of Directors. The number of Directors elected shall be
deemed to be the number of Directors fixed unless otherwise fixed by
resolution adopted at the meeting at which such Directors are elected.
2.3 QUALIFICATIONS. Directors need not be shareholders
of the Corporation.
Section 3. Term of Office of Directors.
---------------------------
3.1 TERM. Each Director shall hold office until the next
Annual Meeting of the shareholders and until a Director's successor has
been elected or until a Director's earlier resignation, removal from
office or death. Directors shall be subject to removal as provided by
statute or by other lawful procedures and nothing herein shall be
construed to prevent the removal of any or all Directors in accordance
therewith.
3.2 RESIGNATION. A resignation from the Board of Directors
shall be deemed to take effect immediately upon its being received by
any incumbent corporate officer other than an officer who is also the
resigning Director, unless some other time is specified therein.
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<PAGE> 5
3.3 VACANCY. In the event of any vacancy in the Board of
Directors for any reason, the remaining Directors, though less than a
majority of the whole Board, may fill any such vacancy for the
unexpired term.
Section 4. Meetings of Directors.
---------------------
4.1 REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held immediately following the adjournment of the
meeting of shareholders at which Directors are elected. The holding of
such shareholders' meeting shall constitute notice of such Directors'
meeting and such meeting shall be held without further notice. Other
regular meetings of the Board of Directors shall be held at such times
and places as may be fixed by the Directors.
4.2 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be held at any time upon call of the Chairman
of the Board, the President or any two Directors.
4.3 PLACE OF MEETING. Any meeting of Directors may be held at
such place within or without the State of Ohio as may be designated in
the notice of said meeting.
4.4 NOTICE OF MEETING AND WAIVER OF NOTICE. Notice of the time
and place of any regular or special meeting of the Board of Directors
shall be given to each Director by personal delivery, telephone,
facsimile transmission or mail at least forty-eight hours before the
meeting, which notice need not specify the purpose of the meeting.
Section 5. Quorum and Voting.
-----------------
At any meeting of Directors, not less than one-half of the whole
authorized number of Directors is necessary to constitute a quorum for such
meeting, except that a majority of the remaining Directors in office shall
constitute a quorum for filling a vacancy in the Board. At any meeting at which
a quorum is present, all acts, questions and business which may come before the
meeting shall be determined by a majority of votes cast by the Directors present
at such meeting, unless the vote of a greater number is required by the Articles
or Regulations.
Section 6. Committees.
----------
6.1 APPOINTMENT. The Board of Directors may from time to time
appoint certain of its members to act as a committee or committees in
the intervals between meetings of the Board and may delegate to such
committee or committees power to be exercised under the control and
direction of the Board. Each committee shall be composed of at least
three directors unless a lesser number is allowed by law. Each such
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<PAGE> 6
committee and each member thereof shall serve at the
pleasure of the Board.
6.2 EXECUTIVE COMMITTEE. In particular, the Board of Directors
may create from its membership and define the powers and duties of an
Executive Committee. During the intervals between meetings of the Board
of Directors, the Executive Committee shall possess and may exercise
all of the powers of the Board of Directors in the management and
control and the business of the Corporation to the extent permitted by
law. All action taken by the Executive Committee shall be reported to
the Board of Directors at its first meeting thereafter.
6.3 COMMITTEE ACTION. Unless otherwise provided by the Board
of Directors, a majority of the members of any committee appointed by
the Board of Directors pursuant to this Section shall constitute a
quorum at any meeting thereof and the act of a majority of the members
present at a meeting at which a quorum is present shall be the act of
such committee. Any such committee shall prescribe its own rules for
calling and holding meetings and its method of procedure, subject to
any rules prescribed by the Board of Directors, and shall keep a
written record of all action taken by it.
Section 7. Action of Directors Without a Meeting.
-------------------------------------
Any action which may be taken at a meeting of Directors or any
committee thereof may be taken without a meeting if authorized by a writing or
writings signed by all the Directors or all of the members of the particular
committee, which writing or writings shall be filed or entered upon the records
of the Corporation.
Section 8. Compensation of Directors.
-------------------------
The Board of Directors may allow compensation to directors for
performance of their duties and for attendance at meetings or for any special
services, may allow compensation to members of any committee, and may reimburse
any Director for the Director's expenses in connection with attending any Board
or committee meeting.
Section 9. Relationship with Corporation.
-----------------------------
Directors shall not be barred from providing professional or other
services to the Corporation. No contract, action or transaction shall be void or
voidable with respect to the Corporation for the reason that it is between or
affects the Corporation and one or more of its Directors, or between or affects
the Corporation and any other person in which one or more of its Directors are
directors, trustees or officers or have a
- 6 -
<PAGE> 7
financial or personal interest, or for the reason that one or more interested
Directors participate in or vote at the meeting of the Directors or committee
thereof that authorizes such contract, action or transaction, if in any such
case any of the following apply:
(i) the material facts as to the Director's relationship or
interest and as to the contract, action or transaction are disclosed or
are known to the Directors or the committee and the Directors or
committee, in good faith, reasonably justified by such facts, authorize
the contract, action or transaction by the affirmative vote of a
majority of the disinterested Directors, even though the disinterested
Directors constitute less than a quorum;
(ii) the material facts as to the Director's relationship or
interest and as to the contract, action or transaction are disclosed or
are known to the shareholders entitled to vote thereon and the
contract, action or transaction is specifically approved at a meeting
of the shareholders held for such purpose by the affirmative vote of
the holders of shares entitling them to exercise a majority of the
voting power of the Corporation held by persons not interested in the
contract, action or transaction; or
(iii) the contract, action or transaction is fair as to the
Corporation as of the time it is authorized or approved by the
Directors, a committee thereof or the shareholders.
ARTICLE III
Officers
--------
Section 1. General Provisions.
------------------
The Board of Directors shall elect a Chairman of the Board, a
President, a Secretary, a Treasurer, one or more Vice Presidents, and such other
officers and assistant officers as the Board may from time-to-time deem
necessary. The Chairman of the Board, if any, shall be a Director, but none of
the other officers needs to be a Director. Any two or more offices may be held
by the same person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity if such instrument is required to be
executed, acknowledged or verified by two or more officers.
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<PAGE> 8
Section 2. Powers and Duties.
-----------------
All officers, as between themselves and the Corporation, shall
respectively have such authority and perform such duties as are customarily
incident to their respective offices, and as may be specified from time to time
by the Board of Directors regardless of whether such authority and duties are
customarily incident to such office. In the absence of any officer of the
Corporation, or for any other reason the Board of Directors may deem sufficient,
any or all of the powers or duties of such officer may be delegated to any other
officer or to any Director. The Board of Directors may from time to time
delegate to any officer authority to appoint and remove subordinate officers and
to prescribe their authority and duties.
Section 3. Term of Office and Removal.
--------------------------
3.1 TERM. Each officer of the Corporation shall hold office at
the pleasure of the Board of Directors and, unless sooner removed by
the Board of Directors, until the meeting of the Board of Directors
following the date of election of Directors and until his or her
successor is elected and qualified.
3.2 REMOVAL. The Board of Directors may remove any officer at
any time with or without cause by the affirmative vote of a majority of
Directors in office.
Section 4. Compensation of Officers.
------------------------
The Directors shall establish the compensation of officers and
employees or may, to the extent not prohibited by law, delegate such authority
to one or more officers or Directors as they determine.
ARTICLE IV
Indemnification
---------------
Section 1. Right to Indemnification.
------------------------
Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved (including, without limitation, as a witness)
in any actual or threatened action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (hereinafter a "proceeding"), by
reason of the fact that such person is or was a director or officer of the
Corporation or that, being or having been such a director or officer of the
Corporation, such person is or was serving at the request of an executive
officer of the Corporation as a director, officer, partner, employee, or agent
of another corporation or of a partnership, joint venture, trust, limited
liability company,
- 8 -
<PAGE> 9
or other enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as such a director, officer, partner, employee,
or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by the General Corporation Law of Ohio, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), or by other applicable law
as then in effect, against all expense, liability, and loss (including, without
limitation, attorneys' fees, costs of investigation, judgments, fines, excise
taxes or penalties arising under the Employee Retirement Income Security Act of
1974 ("ERISA") or other federal or state acts) actually incurred or suffered by
such indemnitee in connection therewith and such indemnification shall continue
as to an indemnitee who has ceased to be a director, officer, employee, or agent
and shall inure to the benefit of the indemnitee's heirs, executors, and
administrators. Except as provided in Section 2 with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
any such indemnitee in connection with a proceeding (or part thereof) initiated
by such indemnitee only if such proceeding (or part thereof) was authorized or
ratified by the Board of Directors of the Corporation.
The right to indemnification conferred in this Section 1 shall be a
contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"). An advancement of
expenses incurred by an indemnitee in such person's capacity as a director,
officer or employee (and not in any other capacity in which service was or is
rendered by such indemnitee including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such indemnitee to repay all amounts so advanced
if it is proved by clear and convincing evidence in a court of competent
jurisdiction that such indemnitee's omission or failure to act involved an act
or omission undertaken with deliberate intent to cause injury to the Corporation
or undertaken with reckless disregard for the best interests of the Corporation.
An advancement of expenses shall not be made if the Corporation's Board of
Directors makes a good faith determination that such payment would violate
applicable law or public policy.
Section 2. Right of Indemnitee to Bring Suit.
---------------------------------
If a claim under Section 1 is not paid in full by the Corporation
within sixty days after a written claim has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty days, the indemnitee may at any time
thereafter
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<PAGE> 10
bring suit against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall also be entitled to be paid the expense of
prosecuting or defending such suit. The indemnitee shall be presumed to be
entitled to indemnification under this Article IV upon submission of a written
claim (and, in an action brought to enforce a claim for an advancement of
expenses, where the required undertaking has been tendered to the Corporation),
and thereafter the Corporation shall have the burden of proof to overcome the
presumption that the indemnitee is not so entitled. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances, nor
an actual determination by the Corporation (including its Board of Directors,
independent legal counsel or its shareholders) that the indemnitee is not
entitled to indemnification shall be a defense to the suit or create a
presumption that the indemnitee is not so entitled.
Section 3. Nonexclusivity and Survival of Rights.
-------------------------------------
The rights to indemnification and to the advancement of expenses
conferred in this Article IV shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provisions of the
Articles of Incorporation, Code of Regulations, agreement, vote of shareholders
or disinterested directors, or otherwise.
Notwithstanding any amendment to or repeal of this Article IV, or of
any of the procedures established by the Board of Directors pursuant to Section
7, any indemnitee shall be entitled to indemnification in accordance with the
provisions hereof and thereof with respect to any acts or omissions of such
indemnitee occurring prior to such amendment or repeal.
Without limiting the generality of the foregoing paragraph, the rights
to indemnification and to the advancement of expenses conferred in this Article
IV shall, notwithstanding any amendment to or repeal of this Article IV, inure
to the benefit of any person who otherwise may be entitled to be indemnified
pursuant to this Article IV (or the estate or personal representative of such
person) for a period of six years after the date such person's service to or in
behalf of the Corporation shall have terminated or for such longer period as may
be required in the event of a lengthening in the applicable statute of
limitations.
- 10 -
<PAGE> 11
Section 4. Insurance, Contracts, and Funding.
---------------------------------
The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee, or agent of the Corporation or
another corporation, partnership, joint venture, trust, or other enterprise
against any expense, liability, or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability, or loss
under the General Corporation Law of Ohio. The Corporation may enter into
contracts with any indemnitee in furtherance of the provisions of this Article
IV and may create a trust fund, grant a security interest, or use other means
(including, without limitation, a letter of credit) to ensure the payment of
such amounts as may be necessary to effect indemnification as provided in this
Article IV.
Section 5. Persons Serving Other Entities.
------------------------------
Any person who is or was a director, officer, or employee of the
Corporation who is or was serving (i) as a director or officer of another
corporation of which a majority of the shares entitled to vote in the election
of its directors is held by the Corporation or a wholly-owned subsidiary of the
Corporation, or (ii) in an executive or management capacity in a partnership
joint venture, trust, limited liability company or other enterprise of which the
Corporation or a wholly-owned subsidiary of the Corporation is a general partner
or member or has a majority ownership shall be deemed to be so serving at the
request of an executive officer of the Corporation and entitled to
indemnification and advancement of expenses under Section 1.
Section 6. Indemnification of Employees and Agents of the Corporation.
----------------------------------------------------------
The Corporation may, by action of its Board of Directors, authorize one
or more executive officers to grant rights to advancement of expenses to
employees or agents of the Corporation on such terms and conditions no less
stringent than provided in Section 1 hereof as such officer or officers deem
appropriate under the circumstances. The Corporation may, by action of its Board
of Directors, grant rights to indemnification and advancement of expenses to
employees or agents or groups of employees or agents of the Corporation with the
same scope and effect as the provisions of this Article IV with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation; PROVIDED, HOWEVER, that an undertaking shall be made by an employee
or agent only if required by the Board of Directors.
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<PAGE> 12
Section 7. Procedures for the Submission of Claims.
---------------------------------------
The Board of Directors may establish reasonable procedures for the
submission of claims for indemnification pursuant to this Article IV,
determination of the entitlement of any person thereto, and review of any such
determination. Such procedure, shall be set forth in an appendix to these Code
of Regulations and shall be deemed for all purposes to be a part hereof.
ARTICLE V
Amendments
----------
This Code of Regulations may be amended by the affirmative vote or the
written consent of the shareholders entitled to exercise a majority of the
voting power on such proposal. If an amendment is adopted by written consent the
Secretary shall mail a copy of such amendment to each shareholder who would be
entitled to vote thereon and did not participate in the adoption thereof. This
Code of Regulations may also be amended by the affirmative vote of a majority of
the Directors to the extent permitted by Ohio law at the time of such amendment.
- 12 -
<PAGE> 1
EXHIBIT 10.2
DEPARTMENT OF THE ARMY
UNITED STATES ARMY TANK-AUTOMOTIVE COMMAND
WARREN, MICHIGAN 48397-5000
12 MAY 1994
AMSTA-IWCA
SUBJECT: Letter Contract DAAE07-94-C-0406, Up-Armor for M1097A1 High Mobility
Multi-Purpose Wheeled Vehicle, (HMMWV)
Mr. Michael J. Lennon
Manager, Military & Commercial Programs
O'Gara-Hess & Eisenhardt Armoring Company
9113 LeSaint Road
Fairfield, Ohio 45014
Dear Mr. Lennon:
This letter constitutes a contract on the terms set forth herein and
signifies the intention of the Department of the Army to execute a formal
fixed-price contract with you for the delivery of the supplies and the
performance of the services set forth in the Statement of Work.
You are directed in accordance with the clause entitled "Execution and
Commencement of Work" to proceed immediately to commence performance of the
work, and to pursue such work with all diligence to the end that the supplies
may be delivered or services performed within the time specified in Section F.
In accordance with the clause entitled "Contract Definitization", you
shall submit a firm proposal for the articles and services covered by this
letter. Your proposal shall be supported by a cost breakdown reflecting the
price factors outlined in the suggest format enclosed and any other information
specified herein. A Certificate of Current Cost or Pricing Data (FAR 15.804-4)
shall be submitted upon agreement of contract price.
Please indicate your acceptance of the foregoing by signing this letter
and returning it with all supporting documentation to this office.
Sincerely,
/s/ Sharon C. Thomas
--------------------------
SHARON C. THOMAS
Contracting Officer
Executed, as of the date shown below:
/s/ Michael J. Lennon
- ---------------------------------------
Michael J. Lennon
BY: /s/ Mgr. Military and Commercial Programs
-----------------------------------------
(Type above, name and position of Date 5/12/94
officer executing this acceptance)
<PAGE> 2
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 1 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
-NOTICE-
EXCEPT FOR NOTES
AND GENERAL INFORMATION RELATING
TO THE SCHEDULE,
SECTIONS B, C, D, E
& F ARE CONSTRUCTED
AT CONTRACT LINE ITEM
LEVEL.
THE FOLLOWING SECTIONS, B
THROUGH F, BRIEFLY STATE
OUR REQUIREMENTS. MORE
DETAILED INFORMATION
ABOUT EACH SECTION MAY
FOLLOW THESE CLIN PAGES AS
"SUPPLEMENTAL INFORMATION".
(End of Narrative A001)
SECTION B - Supplies or Services
and Prices/Costs
0001 NSN: 9999-99-999-9999
NOUN: HMMWV UP ARMOR
FSCM: 00000
PART NR: 9999999999
SECURITY CLASS: UNCLASSIFIED
THE CONTRACTOR SHALL PROVIDE
ARMOR TO GFM M1097
VEHICLES IN ACCORDANCE WITH
SECTION C.
THE NOT-TO-EXCEED CEILING
PRICE IS $9,970,000.00,
FUNDED AT 50%.
(End of narrative B001)
0001AA PRODUCTION QUANTITY 100 EA $UNDEFINITIZED $4,985,000.00
PRON: JZ22P086JZ ACRN: AA
AMS CD: 51103446
SECTION D - Packaging and Marking
BEST COMMERCIAL
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW4096S101 Y00000 M 3
PROJ CD BRK BLK PT
IJ8
DEL REL CD QUANTITY DEL DATE
001 100 94NOV15
</TABLE>
<PAGE> 3
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 2 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE SCHEDULED
DELIVERY DATE FOR ITEMS REQUIRED
UNDER THIS REQUISITION.
</TABLE>
<PAGE> 4
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 3 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
B-1 APPLICABILITY OF FEDERAL RETAILERS EXCISE TAX
TACOM (OCT 1993)
Federal Retailers Excise Tax (FRET) does not apply to the items
we're buying under this solicitation. DO NOT include FRET in your proposed
price.
***
<PAGE> 5
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 4 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
SECTION C - DESCRIPTION/SPECIFICATIONS/WORK STATEMENT
C-1 ACQUISITION OF MANUFACTURER'S PART NUMBER
TACOM (SEP 1978)
This acquisition is restricted to the item description set forth in
the Schedule which specifies a manufacturer's part number. Since complete
Government data for the item are not available, it is understood and agreed that
references to specifications and drawings herein shall be deemed to include all
changes or revisions thereto which the contractor has made effective as of the
date of delivery of any of the items provided for in this contract; provided,
that no such change or revision which affects the interchangeability of the item
(ability to be interchanged with previous parts or to connect with all mating
parts when assembled) shall be effected without the approval of the Principal
Contracting Officer. The contractor agrees that he will furnish to the
Administrative Contracting Officer or Government Inspector, for the purpose of
making inspection under any resulting contract, copies of the applicable
specifications and drawings indicating all changes or revisions.
***
C-2 SUBCONTRACTOR'S DRAWINGS AND SPECIFICATIONS
TACOM (SEP 1978)
It shall be the responsibility of the prime Contractor to furnish
the requisite drawings, specifications, and pertinent information to its
subcontractors.
***
<PAGE> 6
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 5 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
C.3 STATEMENT OF WORK - M1109 UP ARMORED HEAVY HMMWV
C.3.1 The Contractor shall provide 100 each Up-Armored Heavy High Mobility
Multipurpose Wheeled Vehicles (UAHHV) for the U.S. Army. The UAHHV shall be
comprised of the M1097A1 vehicle with an armor package. The vehicle model will
be designated as the M1109 and will be referred to by that model number
hereafter. The M1097A1 base vehicles shall be provided by the Government as
Government Furnished Material (GFM) to the Contractor at least sixty (60) days
prior to required delivery of completed M1109s.
C.3.2 The Government shall furnish (GFE) the parts listed in paragraph
C.3.5 required to fabricate the M1109. Complete sets of these parts shall be
delivered to the Contractor at least sixty (60) days prior to delivery of
completed M1109s.
C.3.3 TECHNICAL REQUIREMENTS
C.3.3.1 The Contractor shall use as a base vehicle the M1097A1 HMMWV,
configuring the M1097A1 base vehicle with the level of armor protection
described in the classified Enhanced Armor HMMWV Performance Specification dated
31 January 1994, O'Gara-Hess & Eisenhardt Armoring Company's drawing Number
OAS4668001, to produce the new M1109 vehicle. The classified performance
specification is under separate cover from this Statement of Work.
C.3.3.1.1 The Contractor shall weld in accordance with commercial procedures.
C.3.3.2 The performance of the M1109 vehicles shall not create an unsafe
condition for the crew by application of the armor package beyond that of a
standard M1097A1 at gross vehicle weight (GVW) of 10,000 pounds. Any performance
or reliability degradation of the M1109 vehicle which can be attributed solely
to the addition of the armor package shall be acceptable to the Government.
C.3.3.3 The weight of the total armor package and turret assembly, including
the weight of air conditioning, shall not exceed 3,200 pounds.
C.3.3.4 The M1109 vehicle shall be painted with a three-color camouflage
pattern in accordance with O'Gara-Hess & Eisenhardt Armoring Company drawing No.
4668002, Pattern, Camouflage Paint, EA-HMMWV.
C.3.3.5 The 4-man crew compartment shall end just behind the rear of the rear
seats. There shall be a full height sliding divider separating the crew
compartment from the environment. This divider shall have a positive latch in
both the open and closed positions. This divider shall provide the level of
protection as described in the classified Enhanced Armor Performance
Specification dated 31 January 1994.
C.3.3.6 Each M1109 shall also be furnished with a rigid, removable
environmental cover, O'Gara-Hess & Eisenhardt Armoring Company P/N 4668912-001.
This environmental cover shall protect the area from the rear of the crew
compartment divider to the rear of the vehicle. The cover shall not have
ballistic protection and shall not exceed the overall vehicle width or height.
The environmental cover shall have a positive lock on the rear, with a means of
opening from the crew compartment. The environmental cover shall be mounted to
the back ballistic door in such a manner so as to prevent water from leaking
into the crew compartment.
C.3.3.7 In the event that modifications must be made to the M1109, the
contractor shall notify the Government COR. Any modifications shall be reviewed
with final approval by the Procuring Contracting Officer prior to
implementation.
C.3.4 ADDITIONAL REQUIREMENTS
C.3.4.1 Air Conditioning: The Contractor shall provide and install OH&E
P/N 4668201-000, air conditioner assembly, on each M1109 Up-Armor vehicle.
C.3.4.2 Operable Side Glass: The Contractor shall provide operable ballistic
glass in all of the M1109 doors. The glass shall allow access when open to allow
an M16 rifle to be fired. The level of protection shall be as described in the
classified performance specification dated 31 January 1994.
C.3.4.3 RESERVED.
<PAGE> 7
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 6 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
C.3.4.4 Suspension: The Contractor shall replace all Front suspension
springs, AM General P/N 12338316-1, with AM General P/N 12338316-2 suspension
springs.
C.3.4.5 RESERVED.
C.3.5 Government Furnished Equipment Parts List
<TABLE>
<CAPTION>
Qty/Veh Part Number Description
- ------- ----------- -----------
<S> <C> <C>
1 12338083 Resilient Bushing Assembly
2 4668907-004 Paint Mask, Tail Light
2 4668907-005 Paint Mask, Front Turn Signal
2 4668907-001 Paint Mask, Headlight
4 4668907-002 Paint Mask, Side Marker
6 4668907-003 Paint Mask, Reflector
2 4558921-001 Gasket, Windshield
2 12338316-2 Springs
2 12339385 Front Door Striker
2 12339386 Rear Door Striker
2 12342624 DECAL, "TP42" & "TP36"
2 5590178 DECAL, "(A STAR)"
6 12339057 DECAL, "SLING"
4 12339059 DECAL, "TIE DOWN"
4 12339060 DECAL "24 V"
2 12340157 Bracket Mounting Clamp for
M16
2 12340142 Bracket Support Rifle
Mounting
2 12340051 Frame Seat Vehicular Rear
Seat
10 5591507 Washer, Slotted Support
Assembly
12 3541 Mount Resilient, Frt Support
Mtg Clevis
1 MS 51943-35 Nut, Self-Locking
2 5584294 Latch
2 5584299 Spacer Plate
4 5584891 Mount, Resilient
2 5589067 Bolt
2 5591507 Washer, Slotted
14 5592032 Washer, Flat
20 5592926 Washer, Flat
6 5592927 Washer, Lock
8 5593241 Washer, Flat
8 5593269 Washer, Flat
4 5993090 Catch
4 9415477 Screw
8 9419454 Nut
4 9422534 Washer
2 12338667 Bracket
2 12338693 Support
2 12338833 Bracket
1 12339019 Insulation
2 12339020 Insulation
</TABLE>
<PAGE> 8
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 7 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
Continued,
<TABLE>
<CAPTION>
Qty/Veh Part Number Description
- ------- ----------- -----------
<S> <C> <C>
1 12339023 Insulation
1 12339039 Insulation
1 12339087 Plate Instruction
1 12339513 Frame Window
8 12339559 Stud, Plain
10 12339561 Plate, Snubber
8 12339571 Mount
2 12340116 Frame
1 12340881 Bracket
2 12342067 Seat Cushion
2 12342068 Seat Cushion
2 12342912 Rear Support
1 12338186-52 Spacer
1 12339047-1 Top, Assembly
1 12339047-2 Top, Assembly
1 12339377-1 Hook Rear
1 12339377-2 Hook Rear
1 12340813-1 Rear Seat Base
1 12340813-2 Rear Seat Base
2 9-300-U-L Latch, Door
2 9-300-U-R Lock, Door
2 12342377-2 Safety Belt - Rear
1 12446706 Extinguisher Plate
4 12343055 Spacers
1 12340910 DECALS (Fire Extinguisher)
</TABLE>
<PAGE> 9
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 8 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
SECTION D - PACKAGING AND MARKING
D-1 MARKING REQUIREMENTS FOR EXPORT SHIPMENTS
TACOM (JAN 1991)
Notwithstanding other requirements in this contract with respect to
marking of shipments, all shipments moving through air or water terminals to
destinations outside the U.S.A. will be marked in accordance with the
requirements of DOD 4500.32-R, Military Standard Transportation and Movement
Procedures (MILSTAMP), and MIL-STD-129M, Military Standard Marking for Shipment
and Storage. The Contractor agrees to use Government-supplied DD Forms 1387
(Military Shipment Labels) or DD Forms 1387-1 (Military Shipping Tags) for such
shipments, as appropriate per the guidance in MIL- STD-129M, and agrees to
comply with shipping and marking instructions issued by the Administrative
Contracting Officer (ACO). The proper marking of export shipments as discussed
herein must be accomplished in conjunction with the requirements of FAR
52.247-52, CLEARANCE AND DOCUMENTATION REQUIREMENTS--SHIPMENTS TO DOD AIR AND
WATER TERMINAL TRANSSHIPMENT POINTS, which is referenced in Section F of this
contract.
***
<PAGE> 10
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 9 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
SECTION E - INSPECTION AND ACCEPTANCE
1. INSPECTION OF SUPPLIES--FIXED-PRICE . . 52.246-2 . . . . . . . . (JUL 1985)
2. RESPONSIBILITY FOR SUPPLIES . . . . . . 52.246-16 . . . . . . . . (APR 1984)
E-2 CERTIFICATE OF CONFORMANCE
52.246-15 (APR 1984)
(a) When authorized in writing by the cognizant Contract Administration
Office (CAO), the Contractor shall ship with a Certificate of Conformance any
supplies for which the contract would otherwise require inspection at source. In
no case shall the Government's right to inspect supplies under the inspection
provisions of this contract be prejudiced. Shipments of such supplies will not
be made under this contract until use of the Certificate of Conformance has been
authorized in writing by the CAO, or inspection or inspection and acceptance
have occurred.
(b) The Contractor's signed certificate shall be attached to or
included on the top copy of the inspection or receiving report distributed to
the payment office or attached to the CAO copy when contract administration
(Block 10 of the DD Form 250) is performed by the Defense Contract
Administration Services. In addition, a copy of the signed certificate shall
also be attached to or entered on copies of the inspection or receiving report
accompanying the shipment.
(c) The Government has the right to reject defective supplies or
services within a reasonable time after delivery by written notification to the
Contractor. The Contractor shall in such event promptly replace, correct, or
repair the rejected supplies or services at the Contractor's expense.
(d) The certificate shall read as follows:
I certify that on (date), the (insert Contractor's name)
furnished the supplies or services called for by Contract
number _________ via (Carrier) on (Identify the bill of lading
or shipping document) in accordance with all applicable
requirements. I further certify that the supplies or services
are of the quantity specified and conform in all respects with
the contract requirements, including specifications, drawings,
preservation, packaging, packing, marking requirements, and
physical item identification (part number), and are in the
quantity shown on this or on the attached acceptance document.
Date of Execution: __________________
Signature: __________________________
Title: ______________________________
(End of clause)
E-3 INSPECTION POINT: ORIGIN
TACOM (FEB 1994)
Inspection Point: ORIGIN
We will inspect the supplies as described elsewhere in this
solicitation/contract and before acceptance. Fill-in the location, contractor's
or subcontractor's plant, where origin inspection will occur.
CONTRACTOR'S PLANT: ____________________________________________________________
(Address) (City) (County) (State) (Zip)
<PAGE> 11
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 10 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
SUBCONTRACTOR'S PLANT: _________________________________________________________
(Name)
_________________________________________________________
(Address) (City) (County) (State) (Zip)
(End of Clause)
E-4 ACCEPTANCE POINT: ORIGIN
TACOM (APR 1984)
Acceptance Point: ORIGIN
Acceptance of the supplies tendered under this contract shall be made
at the address or addresses designated in this Section, in the clause entitled
INSPECTION POINT. Acceptance of title at origin by the Government when delivery
is F.O.B. Destination permits payment to the contractor provided that the
invoice is supported by appropriate evidence of shipment. (See FAR 52.246-16,
RESPONSIBILITY FOR SUPPLIES.)
***
E-5 SPECIAL TESTING REQUIREMENTS FOR CHEMICAL AGENT RESISTANT COATINGS
(CARC) ON METALLIC SURFACES
TACOM (MAY 1989)
a) Application: MIL-C-46168
MIL-C-53039
(b) End-Item Paint Inspection: After the complete paint finish has been
applied and cured* (See *Note, below), the Contractor shall test and inspect two
units per lot for (i) workmanship, (ii) total paint film thickness, and (iii)
paint adhesion. Unless otherwise agreed to between the Contractor and the
cognizant Government quality assurance representative, a lot shall be defined as
all units submitted for final Government acceptance at one time. The use of test
panels in lieu of actual production units is prohibited. At final inspection,
the cumulative total paint film thickness of pretreatment, primer, and topcoat
shall at a minimum conform to the sum of the minimum thicknesses for individual
elements of the paint finish as specified in Table I herein. Sufficient
locations shall be spot-checked to ensure proper workmanship and paint thickness
uniformity. The size and configuration of the unit as well as the number of
vendors responsible for the paint finish of component parts shall be taken into
consideration in determining the number of locations to be checked. The specific
number of test locations shall be agreed to by the cognizant Government quality
assurance representative in advance. In addition, two locations on each sample
unit shall be selected to conduct the scribe tape test. The test locations shall
be routinely varied among the following:
1. Directly adjacent to a weld
2. On or directly adjacent to a machine cut or sheared
edge.
3. On any mechanically formed surface when
lubricants/drawing compounds were used.
4. On paint touch-up areas.
(c) The precise location for each scribe tape test shall be in an
inconspicuous location that has been accepted by the cognizant Government
quality assurance representative before the test is conducted.
(d) Upon completion of the scribe tape test, the scribe marks shall be
feathered into the adjacent area and touched up with the required top coat so
that the tested area again conforms to the applicable minimum specified in Table
I herein.
*Note: The complete paint finish is defined as the pretreatment, primer, and
topcoat applied to the substrate. Curing of the complete paint finish is
dependent upon temperature, humidity, and paint film thickness. The time
necessary to achieve sufficient adhesion to pass the scribe tape test must be
determined by each facility. For purposes of this test, curing at ambient
temperature will take from 24 to 168 hours.
<PAGE> 12
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 11 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
(e) Test Methods:
1. Film Thickness. Film thickness shall be verified with a
nondestructive film gage. The gage shall be suitable for measurements over the
applicable substrate material and shall have sufficient accuracy to ensure
compliance to the thickness limitations. The gage shall be capable of being
calibrated. If no other calibration specification or requirement is identified
elsewhere in this contract, then the gage shall be calibrated in accordance with
MIL-STD-45662.
2. Scribe Tape Test. The following test procedure shall be
followed. The test surface shall be sufficiently warm and dry to ensure adhesion
of the tape. All dimensions cited in this Scribe Tape Test description are
approximate:
(a) Scribe four one-inch lines completely through the paint
finish to the substrate, one sixteenth to three thirty-seconds of an inch apart.
(b) Scribe four additional one-inch lines, completely
through the paint finish, one sixteenth to three thirty-seconds of an inch
apart, rotated 90 degrees with respect to the first set of lines. The resulting
pattern shall contain nine squares.
(c) Press a length of A-A-1830, A-A-884, or any
commercially available tape with a minimum adhesion rating of 45 oz. per inch of
width firmly over the scribed pattern, rubbing out all air pockets.
(d) Wait 10 seconds, minimum. Grasp a free end of the tape
and at a rapid speed strip it from the paint surface by pulling the tape back
upon itself at 180 degrees.
(f) Interpretation of Test Results
1. Film Thickness. All applicable surfaces shall have complete
paint coverage. A minimum of 75% of the applicable surfaces of each test unit
shall meet the minimum, cumulative dry film thickness requirements. Failure of
either test unit shall result in rejection of the production lot that it
represents.
2. Scribe Tape Test (Adhesion). The removal of two or more
complete squares of top coat, or top coat-primer-pretreatment coating, from
either test unit constitutes test failure and the production lot from which it
comes is rejected. Removal of overspray does not constitute test failure.
COATING THICKNESS
<TABLE>
<CAPTION>
SPECIFICATION DRY FILM THICKNESS (Mils)
<S> <C>
MIL-P-15328 0.3 - 0.5
MIL-P-23377 1.0 - 1.5
MIL-P-52192 1.0 - 1.5
MIL-P-53022 1.0 - 1.5
MIL-P-53030 1.0 - 1.5
MIL-C-46168 1.8 minimum
MIL-C-53039 1.8 minimum.
</TABLE>
Notice: The scribe tape test is designed to detect any deficiency in the paint
application process that would affect the durability of the CARC finish. Typical
causes of failure are:
(1) Inadequate cleaning of the substrate.
<PAGE> 13
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 12 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
(2) Contamination of the surface between coatings.
(3) Excessive paint film thickness in a single coating
application.
(4) Application of a coating over a previous coating which has
not been adequately cured.
It is strongly recommended that the Contractor implement rigid in-process
controls in conjunction with the best industrial painting practices to ensure
that the performance requirements specified in this clause are met.
***
E-6 ADDITIONAL REQUIREMENT FOR CERTIFICATE OF CONFORMANCE
TACOM (MAR 1984)
The Certificate of Conformance shall be executed by an official
authorized to sign the contract.
b. In addition to the required distribution of the Certificate(s) as
set forth in FAR 52.246-15, the Contractor shall distribute an additional copy
of each Certificate to the Procuring Contracting Officer.
***
E-7 SUPPLEMENTAL STATEMENT OF WORK: FASTENER QUALITY ASSURANCE REQUIREMENTS
TACOM (SEP 1992)
a. This clause establishes quality assurance requirements for all
threaded steel fasteners of Grade 5 and higher (as defined by SAE-J429) and
metric fasteners with strength designations of 8.8 and higher (as defined by
J-1199) that are to be used in items procured from either a Government or
contractor owned Technical Data Package. It applies to fasteners received (i)
from fastener manufacturers, (ii) from distributors, or (iii) as part of a
subassembly for use in both new and repair items.
b. The contractor shall implement and maintain a fastener quality
assurance program which:
(i) Assures the homogeneity of fastener lots. A homogeneous fastener
lot is defined as one in which all of the fasteners are of the same size, type,
grade, plating and manufacturer.
(ii) Ensures that individual fasteners are identified by a fastener
manufacturer symbol (logo). The manufacturer's symbol (logo) shall be listed in
MIL-HDBK 57, dated 29 Sep 89.
(iii) Provides objective quality evidence that the fasteners to be
furnished under this contract meet all technical requirements.
c. To determine the conformance of the fastener lots with the
homogeneity and identification requirements, a sample from each lot of fasteners
will be taken in accordance with MIL-STD-105, dated 10 May 89, Inspection Level
II, AQL 1.0, or equivalent, except that lots shall be accepted with zero (0)
defects (C=0) and rejected with one (1) or more defects. Each sample shall be
examined for the following:
(i) The grade and manufacturer symbol (logo) for each bolt in the
lot sample shall be the same.
(ii) Threads shall be examined to assure conformity to requirements.
(iii) Plating (when specified) shall be examined to assure complete
coverage.
d. Objective quality evidence that fasteners meet all technical
requirements shall consist of either:
<PAGE> 14
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 13 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
(i) Favorable chemical, core hardness, plating and tensile test data
provided by the manufacturer or supplier of a fastener lot which is directly
traceable to that lot. Chemical tests shall include, as a minimum, percent by
weight of the following elements: carbon, manganese, phosphorus and sulfur;
or
(ii) Favorable results of chemical and core hardness tests performed
by the contractor or a subcontractor on sample(s) taken from the lot. Sampling
for chemical, plating and core hardness testing shall be in accordance with
MIL-STD-105, Level S-2, AQL 1.0 or equivalent. Chemical tests shall include, as
a minimum, percent by weight of the following elements: carbon, manganese,
phosphorus and sulfur.
e. For item(s) procured using a Government Technical Data Package,
Grade 8.1 or 8.2 fasteners are not an acceptable substitute for Grade 8
fasteners.
f. Commercial items, defined as an end item or component of an end item
whose sales volume to the general public is greater than 50% of the items
produced, will be deemed to meet the requirements of this clause if the
contractor has a current vendor control policy with regard to fasteners.
Note: During maintenance or repair, the Government will use Grade 8, zinc plated
bolts from Government stocks as replacements for any Grade 5 or Grade 8.2 bolt
used in commercial items.
(End of clause)
E-8 DRAWINGS FOR INSPECTION
TACOM (QR1004) (NOV 1982)
The Contractor shall make available to the Government Inspector, at the
time of production inspection, legible drawings and printed specifications to
which the product was manufactured. These drawings and specifications shall be
annotated as to the latest revision incorporated therein. Upon completion of
product inspection and acceptance by the Government Inspector, all drawings and
specifications will be returned to the Contractor.
***
<PAGE> 15
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 14 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
E.9 CONTRACT QUALITY REQUIREMENTS
E.9.1 The Contractor shall have an established commercial quality plan in
effoce on the contract effective date, which is hereby incorporated into this
contract.
E.10 INSPECTION RECORDS
E.10.1 Inspection records of the examinations and tests (either in-process
or end item) performed by the Contractor shall be kept complete and available to
the Government for a period of four (4) years following completion of the
contract.
E.10.2 The Contractor shall develop a Final Inspection Record (FIR), to
include inspection criteria for all kits or special equipment that may be
installed in each vehicle and road test. This FIR shall be updated as required
to reflect all configuration changes. The Contractor shall perform a 100% Final
Inspection of each vehicle in accordance with the Contractor's developed FIR.
The Contractor shall perform a ten (10) mile road test on each vehicle at the
Contractor's facility. During this road test the vehicle shall be tested for
component malfunction and checked for any leaks. The Government reserves the
right to witness/participate in this inspection.
E.11 IN-PROCESS INSPECTION
E.11.1 During the assembly of the production vehicles, an in-process
inspection may be conducted by the Government representative to evaluate
conformance to requirements. This inspection will consist of a physical
inspection of subassemblies, examination of processing, manufacturing and
inspection procedures and review of the Contractor's commercial quality plan and
inspection records. The in-process inspection shall be conducted at the
Contractor's facility.
E.11.2 The Government reserves the right to inspect all welds to assure
conformance to established commercial procedures.
<PAGE> 16
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 15 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
RESERVED
<PAGE> 17
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 16 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
SECTION F - DELIVERIES OR PERFORMANCE
1. STOP-WORK ORDER.......................52.212-13............(AUG 1989)
2. GOVERNMENT DELAY OF WORK..............52.212-15............(APR 1984)
3. F.O.B. ORIGIN.........................52.247-29............(JUN 1988)
4. CLEARANCE AND DOCUMENTATION
REQUIREMENTS--SHIPMENTS TO DOD
AIR OR WATER TERMINAL TRANSSHIPMENT
POINTS................................52.247-52............(APR 1984)
5. F.O.B. POINT FOR DELIVERY OF
GOVERNMENT-FURNISHED PROPERTY.........52.247-55............(APR 1984)
6. F.O.B. ORIGIN--CARLOAD AND TRUCKLOAD
SHIPMENTS.............................52.247-59............(APR 1984)
F-2 SHIPMENT OF SUPPLIES
TACOM (NOV 1983)
The supplies to be delivered as specified in the Delivery Schedule
shall be shipped in accordance with the instructions of the Contracting Officer
or his duly authorized representative, whether in full load or less than load
lots, or as a result of consolidating lots under the same or different
contracts, in the following order of priority:
(1) on Government Bill(s) of Lading or by means of the US Postal
Services;
(2) on Commercial Bill(s) of Lading to be converted to Government
Bill(s) of Lading at destination;
(3) on prepaid Commercial Bill(s) of Lading with transportation
charges to be entered as a separate item on the invoice; or
(4) as otherwise instructed when contract terms of sale preclude
the use of Government funds for transportation costs.
***
F-3 DETENTION OF CARRIER'S EQUIPMENT
TACOM (SEP 1978)
The Contractor and subcontractor(s) shall allow the prompt and
convenient access of carrier's equipment to loading docks or platforms where the
supplies to be shipped will be placed for loading. Any charges for detention of
carrier's equipment shall be for the account of the Contractor, except when the
detention is required or caused by the Government.
***
F-4 METHODS OF SHIPMENT
TACOM (SEP 1978)
The Contractor will request:
(i) Government Bills of Lading and
(ii) routing and other instructions, including MILSTAMP (Military
Standard Transportation and Movement Procedure), as to the methods of shipment
to be followed by the Contractor, or
(iii) authorization to ship on Commercial Bills of Lading to be
converted to Government Bills of Lading at destination
from the transportation office, administering DCASMA, ten days in advance of the
date on which materiel is ready for shipment. Appropriate forms for said
requests shall be furnished to the Contractor by the cognizant DCASMA. The
Contractor shall prepare and address said forms as directed by the
Administrative Contracting Officer (ACO) or his duly authorized representative.
***
<PAGE> 18
DAAE07-94-C-0406
REQUIRED DELIVERY SCHEDULE Page 17 of 37
MONTHS AFTER AWARD
<TABLE>
<CAPTION>
CLLIN SERVICE MODEL NOMEN QTY (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12)
MAY 94 JUN 94 JUL 94 AUG 94 SEP 94 OCT 94 NOV 94 DEC 94 JAN 95 FEB 95 MAR 95 APR 95
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
0001AA ARMY M1109 UP ARMOR
HMMWV 100 0 0 10 22 25 25 18 *
0
0
0
0
0
0
0
0
0
CUMULATIVE PAGE TOTAL: 100 0 0 10 22 25 25 18 0 0 0 0 0 *
* REMARKS
</TABLE>
<PAGE> 19
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 18 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
LINE PRON/ OBLG ACCOUNTING OBLIGATED
ITEM AMS CD ACRN STAT ACCOUNTING CLASSIFICATION STATION AMOUNT
- ---- ------ ---- ---- ------------------------- ------- ------
<C> <C> <C> <C> <C> <C> <C>
0001AA JZ22PO86JZ AA 1 21 22035 25J5J01P5110 25CZ S2011322PO86 W56HZV $4,985,000.00
51103446
-------------
TOTAL $4,985,000.00
TOTAL BY ACRN / ACCOUNTING CLASSIFICATION ACCOUNTING OBLIGATED
----- -- ---- ---------- ------------- STATION AMOUNT
------- ------
AA 21 22035 25J5J01P5110 25CZ S2011322P086 W56HZV $4,985,000.00
-------------
TOTAL $4,985,000.00
</TABLE>
G-1 CONTRACTING OFFICER'S REPRESENTATIVE (DEC 1991)
252.201-7000
(a) Definition.
Contracting Officer's Representative means an individual
designated in accordance with subsection 201.602-2 of the Defense Federal
Acquisition Regulation Supplement and authorized in writing by the contracting
officer to perform specific technical or administrative functions.
(b) If the Contracting Officer designates a contracting officer's
representative (COR), the Contractor will receive a copy of the written
designation. It will specify the extent of the COR's authority to act on behalf
of the contracting officer. The COR is not authorized to make any commitments or
changes that will affect price, quality, quantity, delivery, or any other term
or condition of the contract.
(End of clause)
G-2 COMMUNICATIONS
TACOM (FEB 1985)
Communications on technical matters pertaining to the contract shall be
direct between the contractor and the Technical Representative. Communications
for the Technical Representative shall be addressed to:
Commander
U.S. Army Tank-Automotive Command
ATTN: TBD
Warren, MI 48397-5000
<PAGE> 20
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 19 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
SECTION H - SPECIAL CONTRACT REQUIREMENTS
<TABLE>
<S> <C>
1. STATUTORY PROHIBITIONS ON COMPENSATION TO FORMER DEPARTMENT
OF DEFENSE EMPLOYEES 252.203-7000............(DEC 1991)
2. DISPLAY OF DOD HOTLINE POSTER 252.203-7002............(DEC 1991)
3. PROHIBITION AGAINST RETALIATORY PERSONNEL
ACTIONS 252.203-7003............(APR 1992)
4. DISCLOSURE OF INFORMATION 252.204-7000............(DEC 1991)
5. PROVISION OF INFORMATION TO COOPERATIVE AGREEMENT
HOLDERS 252.205-7000............(DEC 1991)
6. BUY AMERICAN ACT AND BALANCE OF PAYMENTS
PROGRAM 252.225-7001............(JAN 1994)
7. QUALIFYING COUNTRY SOURCES AS
SUBCONTRACTORS 252.225-7002............(DEC 1991)
8. DUTY-FREE-ENTRY--QUALIFYING COUNTRY END PRODUCTS AND
SUPPLIES 252.225-7009............(DEC 1991)
9. DUTY-FREE ENTRY--ADDITIONAL PROVISIONS 252.225-7010............(DEC 1991)
10. SUPPLEMENTAL COST PRINCIPLES 252.231-7000............(DEC 1991)
11. DOD PROGRESS PAYMENT RATES 252.232-7004............(NOV 1993)
12. CERTIFICATION OF INDIRECT COSTS 252.242-7001............(DEC 1991)
13. MATERIAL MANAGEMENT AND ACCOUNTING
SYSTEM 252.242-7004............(DEC 1991)
14. MATERIAL INSPECTION AND RECEIVING
REPORT 252.246-7000............(DEC 1991)
15. RESTRICTIONS ON SUBCONTRACTOR SALES TO THE
GOVERNMENT 52.203-6................(JUL 1985)
16. DUTY-FREE ENTRY 52.225-10...............(APR 1984)
17. PROGRESS PAYMENTS 52.232-16...............(JUL 1991)
18. PROGRESS PAYMENTS (ALTERNATE I) 52.232-16...............(JUL 1991)
19. PROGRESS PAYMENTS (ALTERNATE II (APR 1984)) 52.232-16...............(JUL 1991)
Fill-in for No. 19: $3,988,000.00
H-2 PRICE CEILING
252.217-7027 (DEC 1991)
</TABLE>
The definitive contract resulting from this undefinitized action shall
not exceed $9,970,000.00.
(end of clause)
H-3 SUPPLIES TO BE ACCORDED DUTY-FREE ENTRY
252.225-7008 (DEC 1991)
In accordance with paragraph (a) of the DUTY-FREE ENTRY clause and/or
paragraph (b) of the DUTY-FREE ENTRY-- QUALIFYING COUNTRY END PRODUCTS AND
SUPPLIES clause of this contract, the following supplies are accorded duty-free
entry:
-1-
-2-
-3-
(End of clause)
H-4 EXECUTION AND COMMENCEMENT OF WORK
52.216-23 (APR 1984)
The Contractor shall indicate acceptance of this letter contract by
signing three copies of the contract and returning them to the Contracting
Officer not later than 2 May 94. Upon acceptance by both parties, the Contractor
shall proceed with performance of the work, including purchase of necessary
materials.
(End of clause)
<PAGE> 21
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 20 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
H--5 LIMITATION OF GOVERNMENT LIABILITY
52.216-24 (APR 1984)
(a) In performing this contract, the Contractor is not authorized to
make expenditures or incur obligations exceeding $4,985,000.00 dollars.
(b) The maximum amount for which the Government shall be liable if this
contract is terminated is $4,985,000.00 dollars.
(End of clause)
H--6 CONTRACT DEFINITIZATION
52.216-25 (APR 1984)
(a) A Firm Fixed Price definitive contract is contemplated. The
Contractor agrees to begin promptly negotiating with the Contracting Officer the
terms of a definitive contract that will include (1) all clauses required by the
Federal Acquisition Regulation (FAR) on the date of execution of the letter
contract, (2) all clauses required by law on the date of execution of the
definitive contract, and (3) any other mutually agreeable clauses, terms and
conditions. The Contractor agrees to submit a FFP proposal and cost or pricing
data supporting its proposal.
(b) The schedule for definitizing this contract is:
Contractor submission of proposal 20 May 94
Submission of make-or-buy plan N/A
Submission of subcontracting plan N/A
Commencement of negotiations 1 Aug 94
Definitization of contract 9 Sep 94
(c) If agreement on a definitive contract to supersede this letter
contract is not reached by the target date in paragraph (b) above, or within any
extension of it granted by the Contracting Officer, the Contracting Officer may,
with the approval of the head of the contracting activity, determine a
reasonable price or fee in accordance with Subpart 15.8 and Part 31 of the FAR,
subject to Contractor appeal as provided in the DISPUTES clause. In any event,
the Contractor shall proceed with completion of the contract, subject only to
the LIMITATION OF GOVERNMENT LIABILITY clause.
(1) After the Contracting Officer's determination of price or
fee, the contract shall be governed by --
(i) All clauses required by the FAR on the date of
execution of this letter contract for either fixed-price or cost-reimbursement
contracts, as determined by the Contracting Officer under this paragraph (c);
(ii) All clauses required by law as of the date of
the Contracting Officer's determination; and
(iii) Any other clauses, terms, and conditions
mutually agreed upon.
(2) To the extent consistent with subparagraph (c)(l) above,
all clauses, terms, and conditions included in this letter contract shall
continue in effect, except those that by their nature apply only to a letter
contract.
(End of Clause)
<PAGE> 22
CONTINUATION SHEET Reference No. of Document Being Continued Page
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
H-7 IDENTIFICATION OF SOURCES OF SUPPLY
252.217-7026 (DEC 1991)
(a) The Government is required under 10 U.S.C. 2384 to obtain certain
information on the actual manufacturer or sources of supplies it acquires.
(b) The apparently successful Offeror agrees to complete and submit the
following table before award:
<TABLE>
<CAPTION>
TABLE
National Commercial Source of Supply
Line Stock Item ------ -- ------ Actual
Items Number (Y or N) Company Address Part No. Mfg.?
- ----- ------ -- -- -- ------- ------- ---- --- -----
<C> <C> <C> <C> <C> <C> <C>
(1) (2) (3) (4) (4) (5) (6)
</TABLE>
(1) List each item of supply and item of technical data.
(2) If there is no national stock number, list none.
(3) Use Y if the item is a commercial item sold in substantial quantities to the
general public and was priced in the offer using established catalog or market
price; otherwise, use N. If Y is listed, the Offeror need not complete the
remaining columns in the table.
(4) For items of supply, list all sources. For technical data, list the source.
(5) For items of supply, list each source's part number for the item.
(6) Use Y if the source or supply is the actual manufacturer; N if it is not;
and U if unknown.
(End of clause)
H-8 NOTIFICATION OF PROPOSED PROGRAM TERMINATION OR REDUCTION
252.249-7002 (AUG 1993)
(a) Within two weeks after the Government notifies the Contractor
that this contract may be adversely affected by a program termination or
reduction, the Contractor shall provide notice of such proposed termination or
reduction to -
(1) Each representative of the Contractor's
employees whose work is directly related to the contract; or
(2) If there is no such representative at that
time, each such employee;
(3) The state dislocated worker unit or office
described in section 311(b)(2) of the Job Training
Partnership Act (29 U.S.C. 1661(b)(2)) and the chief elected official of the
unit of general local government within which the adverse effect may occur; and
<PAGE> 23
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 22 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
(4) Each affected subcontractor.
(b) If the proposed program termination or reduction is likely to
result in plant closure or mass layoff, the notice provided an employee under
paragraph (a) of this clause shall have the same effect as a notice of
termination to the employee for the purpose of determining whether such employee
is eligible for training, adjustment assistance, and employee services under
section 325 or 325A of the Job Training Partnership Act. If the Contractor has
specified that the proposed program termination or reduction is not likely to
result in plant closure or mass layoff, the employee shall only be eligible to
receive services under section 314(b) and paragraphs (1) through (14), (16), and
(18) of section 314(c) of the Job Training Partnership Act.
(c) If the Government subsequently withdraws a notice issued in
accordance with paragraph (a) of this clause, the Contractor, within two weeks
after receipt of the withdrawal notice shall provide notice of the withdrawal
to--
(1) The representatives, employees, offices,
officials, and subcontractors specified in paragraph (a) of this clause; and
(2) Each grantee under section 325(a) or 325A(a)
of the Job Training Partnership Act, as the case may be, providing training,
adjustment assistance, and employment services to each employee described in
this paragraph.
(d) An employee who receives notice of withdrawal shall not be
eligible for training, adjustment assistance, and employment services under
section 325 of the Job Training Partnership Act, or section 325A of such Act, as
the case may be, beginning on the date the employee receives such notice.
(e) The Contractor shall insert the substance of this clause in
all subcontracts of $500,000 or more.
end of clause
H-9 INTEGRITY OF UNIT PRICES -- ALTERNATE I (1991 APR) --
the Contractor shall submit the information required by paragraph
(c) of this clause as part of its proposal in response to the Government's
solicitation.
52.215-26 (APR 1991)
(a) Any proposal submitted for the negotiation of prices for items
of supplies shall distribute costs within contracts on a basis that ensures that
unit prices are in proportion to the items' base cost (e.g., manufacturing or
acquisition costs). Any method of distributing costs to line items that distorts
unit prices shall not be used. For example, distributing costs equally among
line items is not acceptable except when there is little or no variation in base
cost. Nothing in this paragraph requires submission of cost or pricing data not
otherwise required by law or regulation.
(b) The requirement in paragraph (a) of this clause does not apply
to any Department of Defense (DoD) and National Aeronautics and Space
Administration (NASA) contract or subcontract item of supply for which the unit
price is, or is based on, an established catalog or market price for a
commercial item sold in substantial quantities to the general public. A price is
based on a catalog or market price only if the item being purchased is
sufficiently similar to the catalog or market price commercial item to ensure
that any difference in price can be identified and justified without resort to
cost analysis.
(c) The Offeror/Contractor shall also identify those supplies
which it will not manufacture or to which it will not contribute significant
value. This information is not required for commercial item s sold in
substantial quantities to the general public when the price is, or is based on,
established catalog or market prices.
(d) The Contractor shall insert the substance of this clause, less
paragraph (c), in all subcontracts.
(End of clause)
H-10 LOCAL ADDRESS FOR DD FORM 250
<PAGE> 24
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
TACOM (SEP 1992)
(A) The contractor must send two copies of the material inspection
and receiving report (DD 250) to the following address:
US ARMY Tank Automotive Command
Acquisition Center - ATTN: AMSTA-IC
Warren, MI 48397-5000.
(B) These two copies will fulfill the requirements for the
Purchasing Office copy and the Army Inventory Control Manager copy listed in
tables 1 and 2 of DFARS Appendix F.
(end of clause)
<PAGE> 25
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 24 of 37
Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
H.11 EXCESS M1O97A1 PARTS
H.11.1 In order to produce the M1109 vehicle, the Government and the Contractor
recognize that a number of parts will have to be removed from GFE M1097A1s. Some
of these parts will be damaged by removal beyond reclamation. Others will be
able to be reused.
H.11.2 The Contractor shall store, maintain and inventory all parts removed from
any GFE vehicle in accordance with FAR 52.245-2 GOVERNMENT PROPERTY.
H.11.3 Title to said excess parts shall transfer to Contract DAAE07-93-D-J002
upon removal and completion of inventory. The records of inventory shall be
provided to the Government Property Administrator, who shall determine packaging
and/or disposal of the items.
H.11.4 Anticipated Excess M1097A1 Parts are:
<TABLE>
<CAPTION>
CONTRACTOR
REF NUMBER ARMY P/N NOMENCLATURE EST.QTY
- ---------- -------- ------------ -------
<C> <C> <C> <C>
249 12340040 HANDLE, DOOR 200
3177315 12338829 CAP, PLUG, W/S 200
5584294 12339385 LATCH, DOOR STRK 200
5584711 12339728-3 NUT, SELF LOCK 800
5585153 12338841-1 HINGE, W/S UPPR 100
5593241 G-9423534 WASHER, FLAT, LOCK 800
5596172 12338807-5 SEAL, W/S FRAME, LOWER 200
5596642 12340099-2 SPACER PLATE, 0.030 200
5596643 12340099-3 SPACER PLATE, 0.060 200
5596644 12340099-4 SPACER PLATE, 0.090 200
5596645 12340099-5 SPACER PLATE, 0.190 200
9415477 G-9415477 SCREW 400
12338813 12338813 PIN STRAIGHT, W/S 300
12338833 12338833 BRKT, W/S HINGE 200
12338835 12338835 LEAF BUTT HINGE, W/S 100
12339727 12339727 SPACER PLATE, DOOR 100
12340164 12340164 BRKT. MTG, LOWER 100
12340301 12340301 CLEAT, STOW CABLE 100
12340870 12340870 INSULATION BOARD 100
12340873 12340873 INSULATION BOARD 100
12341822 12341822 SCREW, INTERIOR TUNNEL 1000
12342382 12342382 REINFORCEMENT ASSY 200
12342912 12342912 REAR SUPPORT 200
12342913 12342913 RT. HAND SUPPORT 100
12342914 12342914 LT. HAND SUPPORT 100
12338822-1 12338822-1 HINGE, W/S LWR/CTR 200
12338822-2 12338822-2 HINGE, W/S LWR.R.H. 100
N/A N/A SEAT BASE, DRIVERS 100
N/A N/A FLOOR INSULATION, VARIOUS UNK
12339612 12339612 PILLAR ASSY 100
12342381 12342381 BRKT, MTG., FRT. SEAT BELT 200
N/A 30250 HEATER, VEH, CO 100
12339014-2 12339014-2 RR.LWR RETAINER 100
12339047-1 12339047-1 TOP ASSY, REAR STOW, LH 100
12339047-2 12339047-2 TOP ASSY, REAR STOW, RH 100
12339377-1 12339377-1 HOOK, REAR LATCH LOCK, RH 100
</TABLE>
<PAGE> 26
CONTINUATION SHEET Reference No. of Document Being Continued Page
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
EXCESS PARTS, CONTINUED
<TABLE>
<CAPTION>
CONTRACTOR
REF NUMBER ARMY P/N NOMENCLATURE EST.QTY
- ---------- -------- ------------ -------
<C> <C> <C> <C>
12339377-2 12339377-2 HOOK, REAR LATCH LOCK, LH 100
12339378-1 12339378-1 HOOK, LATCH, VEH, RH 100
12339378-2 12339378-2 HOOK, LATCH, VEH, LH 100
12339551-1 12339551-1 C-PILLAR, INNER 100
12339551-2 12339551-2 C-PILLAR, INNER 100
12339552-1 12339552-1 BRKT, C-PILLAR MTG 100
12339552-2 12339552-1 BRKT, C-PILLAR MTG 100
12339653-1 12339653-1 MOUNT, ROOF, REAR 100
12339653-2 12339653-2 MOUNT, ROOF, REAR 100
12340099-1 12340099-1 SPACER PLATE, 0.125 200
12340342-5 12340342-5 TUBE ASSY, TURRET SUPP 100
12340342-6 12340342-6 TUBE ASSY, TURRET SUPP 100
207-320401-00 12339661 BUTTON, PLUG, W/S 2000
MS35206-247 MS35206-247 SCREW, CIR. BRKR 200
MS35206-248 MS35206-248 SCREW, LOCK PADDLE 800
MS90728-7 MS90728-7 SCREW, HEX 800
12339196-1 12339196-1 B-PILLAR W/FASTENERS 100
5584799 5584799 LT. REAR DOOR (BLANK) 100
5584800 5584800 RT. REAR DOOR (BLANK) 100
12338503-1 12338503-1 DRIVERS SEAT 100
12339512 12339512 W/S FRAME 100
12339514 12339514 W/S GLASS (NOTE: GLASS
INSTALLED ON ALREADY
FRAMES IN MOST CASES). 100
12338316-1 12338316-1 SPRINGS 200
</TABLE>
<PAGE> 27
CONTINUATION SHEET Reference No. of Document Being Continued Page
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
RESERVED
<PAGE> 28
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
PART II - CONTRACT CLAUSES
SECTION I - CONTRACT CLAUSES
This contract incorporates one or more clauses by reference, with the same force
and effect as if they were given in full text. Upon request, the Contracting
Officer will make their full text available.
<TABLE>
<CAPTION>
CLAUSE TITLE REFERENCE DATE
<C> <C> <C> <C>
1. SPECIAL PROHIBITION ON EMPLOYMENT 252.203-7001 (APR 1993)
2. CONTROL OF GOVERNMENT PERSONNEL
WORK PRODUCT 252.204-7003 (APR 1992)
3. ACQUISITION FROM SUBCONTRACTORS
SUBJECT TO ON-SITE INSPECTION
UNDER THE INTERMEDIATE-RANGE
NUCLEAR FORCES (INF) TREATY 252.209-7000 (DEC 1991)
4. PRICING ADJUSTMENTS 252.215-7000 (DEC 1991)
5. AVAILABILITY OF CONTRACTOR RECORDS 252.215-7001 (DEC 1991)
6. COST ESTIMATING SYSTEM
REQUIREMENTS 252.215-7002 (DEC 1991)
7. SMALL AND SMALL DISADVANTAGED
SUBCONTRACTING PLAN - DOD
CONTRACTS 252.219-7003 (APR 1993)
8. DRUG-FREE WORK FORCE (PER AL 92-7) 252.223-7004 (SEP 1988)
9. PREFERENCE FOR CERTAIN
DOMESTIC COMMODITIES 252.225-7012 (DEC 1991)
10. PREFERENCE FOR DOMESTIC
SPECIALTY METALS 252.225-7014 (DEC 1991)
11. RESTRICTION ON ACQUISITION
OF ANTIFRICTION BEARINGS 252.225-7016 (APR 1993)
12. REPORTING OF CONTRACT PERFORMANCE
OUTSIDE THE UNITED STATES 252.225-7026 (APR 1993)
13. SECONDARY ARAB BOYCOTT OF
ISRAEL 252.225-7031 (JUN 1992)
14. DEFERRED ORDERING OF TECHNICAL
DATA OR COMPUTER SOFTWARE 252.227-7027 (APR 1988)
15. DATA REQUIREMENTS 252.227-7031 (OCT 1988)
16. REDUCTION OR SUSPENSION OF
CONTRACT PAYMENTS UPON FINDING
OF FRAUD 252.232-7006 (AUG 1992)
17. CERTIFICATION OF CLAIMS AND
REQUESTS FOR ADJUSTMENT OR
RELIEF 252.233-7000 (APR 1993)
18. POSTAWARD CONFERENCE 252.242-7000 (DEC 1991)
19. APPLICATION FOR U.S. GOVERNMENT
SHIPPING DOCUMENTATION/
INSTRUCTIONS 252.242-7003 (DEC 1991)
20. PRICING OF ADJUSTMENTS 252.243-7001 (APR 1984)
21. PRICING OF CONTRACT MODIFICATIONS 252.243-7001 (DEC 1991)
22. DEFINITIONS 52.202-1 (SEP 1991)
23. OFFICIALS NOT TO BENEFIT 52.203-1 (APR 1984)
24. GRATUITIES 52.203-3 (APR 1984)
25. COVENANT AGAINST CONTINGENT FEES 52.203-5 (APR 1984)
26. ANTI-KICKBACK PROCEDURES 52.203-7 (OCT 1988)
27. PRICE OR FEE ADJUSTMENT FOR ILLEGAL
OR IMPROPER ACTIVITY 52.203-10 (SEP 1990)
28. LIMITATION ON PAYMENTS TO
INFLUENCE CERTAIN FEDERAL
TRANSACTIONS 52.203-12 (JAN 1990)
29. SECURITY REQUIREMENTS 52.204-2 (APR 1984)
30. PROTECTING THE GOVERNMENT'S
INTERESTS WHEN SUBCONTRACTING
WITH CONTRACTORS DEBARRED,
SUSPENDED, OR PROPOSED
FOR DEBARMENT 52.209-6 (NOV 1992)
31. DEFENSE PRIORITY AND ALLOCATION
REQUIREMENTS 52.212-8 (SEP 1990)
32. EXAMINATION OF RECORDS BY
COMPTROLLER GENERAL 52.215-1 (FEB 1993)
33. AUDIT--NEGOTIATION 52.215-2 (FEB 1993)
34. PRICE REDUCTION FOR DEFECTIVE
COST OR PRICING DATA 52.215-22 (JAN 1991)
</TABLE>
<PAGE> 29
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
<TABLE>
<C> <C> <C>
35. SUBCONTRACTOR COST OR PRICING DATA 52.215.-24 (DEC 1991)
36. TERMINATION OF DEFINED BENEFIT
PENSION PLANS 52.215-27 (SEP 1989)
37. ORDER OF PRECEDENCE 52.215-33 (JAN 1986)
38. REVERSION OR ADJUSTMENT OF PLANS
FOR POSTRETIREMENT BENEFITS
OTHER THAN PENSIONS(PRB) 52.215-39 (JUL 1991)
39. UTILIZATION OF SMALL BUSINESS
CONCERNS AND SMALL DISADVANTAGED
BUSINESS CONCERNS 52.219-8 (FEB 1990)
40. UTILIZATION OF WOMEN-OWNED SMALL
BUSINESSES 52.219-13 (AUG 1986)
41. LIQUIDATED DAMAGES-- SMALL
BUSINESS SUBCONTRACTING PLAN 52.219-16 (AUG 1989)
42. UTILIZATION OF LABOR SURPLUS
AREA CONCERNS 52.220-3 (APR 1984)
43. LABOR SURPLUS AREA SUBCONTRACTING
PROGRAM 52.220-4 (APR 1984)
44. NOTICE TO THE GOVERNMENT OF
LABOR DISPUTES 52.222-1 (APR 1984)
45. WALSH--HEALEY PUBLIC CONTRACTS
ACT 52.222-20 (APR 1984)
46. EQUAL OPPORTUNITY 52.222-26 (APR 1984)
47. EQUAL OPPORTUNITY
PREAWARD CLEARANCE OF SUBCONTRACTS 52.222-28 (APR 1984)
48. AFFIRMATIVE ACTION FOR SPECIAL
DISABLED AND VIETNAM ERA
VETERANS 52.222-35 (APR 1984)
49. AFFIRMATIVE ACTION FOR HANDICAPPED
WORKERS 52.222-36 (APR 1984)
50. EMPLOYMENT REPORTS ON SPECIAL
DISABLED VETERANS AND
VETERANS OF THE VIETNAM ERA 52.222-37 (JAN 1988)
51. CLEAN AIR AND WATER 52.223-2 (APR 1984)
52. DRUG FREE WORKPLACE 52.223-6 (JUL 1990)
53. RESTRICTIONS ON CERTAIN FOREIGN
PURCHASES 52.225-11 (MAY 1992)
54. UTILIZATION OF INDIAN ORGANIZATIONS
AND INDIAN--OWNED ECONOMIC
ENTERPRISES 52.226-1 (AUG 1991)
55. AUTHORIZATION AND CONSENT 52.227-1 (APR 1984)
56. NOTICE AND ASSISTANCE REGARDING
PATENT AND COPYRIGHT
INFRINGEMENT 52.227-2 (APR 1984)
57. FEDERAL, STATE, AND LOCAL TAXES
(NONCOMPETITIVE CONTRACT) 52.229-4 (JAN 1991)
58. TAXES--CONTRACTS PERFORMED IN U.S.
POSSESSIONS OR PUERTO RICO 52.229-5 (APR 1984)
59. DISCLOSURE AND CONSISTENCY
OF COST ACCOUNTING PRACTICES
this clause applies only when the
Contractor has been determined
eligible. See Section K 52.230-3 (AUG 1992)
60. PAYMENTS 52.232-1 (APR 1984)
61. DISCOUNTS FOR PROMPT PAYMENT 52.232-8 (APR 1989)
62. EXTRAS 52.232-11 (APR 1984)
63. INTEREST 52.232-17 (JAN 1991)
64. ASSIGNMENT OF CLAIMS -- ALTERNATE I
(APR 1984) 52.232-23 (JAN 1986)
65. PROMPT PAYMENT
note that if this contract contains
a PROGRESS PAYMENTS clause, such
progress payments shall be made
on the seventh day after receipt of
a proper contract finance request,
as outlined in paragraph (b)(2) of
this clause 52.232-25 (SEP 1992)
66. ELECTRONIC FUNDS TRANSFER
PAYMENT METHODS 52.232-28 (APR 1989)
67. DISPUTES 52.233-1 (DEC 1991)
68. PROTEST AFTER AWARD 52.233-3 (AUG 1989)
69. F.O.B. ORIGIN--GOVERNMENT BILLS
OF LADING OR PREPAID POSTAGE 52.242-10 (APR 1984)
70. REPORT OF SHIPMENT (REPSHIP) 52.242-12 (DEC 1989)
71. BANKRUPTCY 52.242-13 (APR 1991)
72. CHANGES--FIXED--PRICE 52.243-1 (AUG 1987)
73. NOTIFICATION OF CHANGES 52.243-7 (APR 1984)
74. SUBCONTRACTS (FIXED--PRICE
CONTRACTS) 52.244-1 (APR 1991)
75. COMPETITION IN SUBCONTRACTING 52.244-5 (APR 1984)
</TABLE>
<PAGE> 30
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C>
76. GOVERNMENT PROPERTY (FIXED-PRICE CONTRACTS)
(ALTERNATE I (Apr 1984))
(91-DEV-44) 52.245-2 (DEC 1989)
77. LIMITATION OF LIABILITY--
HIGH-VALUE ITEMS 52.246-24 (APR 1984)
78. COMMERCIAL BILL OF LADING NOTATIONS
the notation set forth in paragraph
(a) of the clause applies in this
contract. The agency name in
line one of the notation shall read:
US ARMY TANK-AUTOMOTIVE COMMAND 52.247-1 (APR 1984)
79. PREFERENCE FOR U.S.-FLAG
AIR CARRIERS 52.247-63 (APR 1984)
80. VALUE ENGINEERING
the Contractor shall submit an
original and NINE copies of each
VE proposal submitted in
response to this clause 52.248-1 (MAR 1989)
81. TERMINATION FOR CONVENIENCE OF THE
GOVERNMENT (FIXED-PRICE) 52.249-2 (APR 1984)
82. DEFAULT (FIXED-PRICE SUPPLY
AND SERVICE) 52.249-8 (APR 1984)
83. COMPUTER GENERATED FORMS 52.253-1 (JAN 1991)
</TABLE>
I-2 PILOT MENTOR-PROTEGE PROGRAM
252.219-7008 (OCT 1992)
(a) In accordance with section 831 of the National Defense Authorization Act for
Fiscal Year 1991, the Pilot Mentor-Protege Program provides incentives for
Department of Defense (DoD) contractors to assist small disadvantaged
businesses, or qualified organizations employing the severely disabled, to
enhance their capabilities and increase the participation of such firms in
Government and commercial contracts.
(b) The pilot program consists of:
(1) Mentor firms, which are prime contractors with at least one
active subcontracting plan negotiated under Subpart 19.7 of the Federal
Acquisition Regulation (FAR).
(2) Protege firms, which are small disadvantaged business (SDB)
concerns, or qualified organizations employing the severely disabled (as defined
in section 8064A of Pub. I. 10z-172), eligible for receipt of Federal contracts
and selected by the mentor firm.
(3) Mentor-protege agreements, approved by the Office of Small and
Disadvantaged Business Utilization, Office of the Under Secretary of Defense for
Acquisition, which establish developmental assistance programs for protege
firms.
(4) Incentives, which may be provided to mentor firms by the DoD,
including:
(i) Reimbursement for developmental assistance costs
through a separate contract, or a separately priced contract line item on a DoD
contract, or inclusion of program costs in indirect expense pools; or
(ii) Credit toward SDB subcontracting goals, established
under a subcontracting plan negotiated under FAR subpart 19.7, for developmental
assistance costs which are either reimbursed through indirect expense pools or
are not reimbursed; or
(iii) A combination of reimbursement and credit.
(c) Contractors interested in participating in the pilot program
are encouraged to contact the Office of Small and Disadvantaged Business
Utilization, Office of the Under Secretary of Defense for Acquisition, OUSD (&)
SADBU, room 2A940, The Pentagon, Washington, DC. 20301-3061, (703) 697-1688, for
information regarding application and acceptance to the program, approval of
mentor-protege agreements, incentives, reporting requirements, and program
reviews.
(End of clause)
<PAGE> 31
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
I-3 FOREIGN SOURCE RESTRICTION
252.225-7025 (APR 1993)
(a) Definitions.
(1) Domestic manufacture means--
(i) For forging items, manufactured in the
United States or Canada if the Canadian firm--
(A) Normally produces similar items or
is currently producing the item in support of DoD contracts (as prime or
subcontractor); and
(B) Agrees to become (upon receiving a
contract/order) a planned producer under DoD's Industrial Preparedness Program
(IPP), if it is not already a planned producer for the item.
(ii) For high carbon ferrochrome (HCF),
manufactured in the United States regardless of source of the chrome ore.
(iii) For high-purity silicon, manufactured in the
United States or Canada. When an item or subassembly containing high-purity
silicon is involved, all such high-purity silicon incorporated in the item or
subassembly must also have been manufactured in the United States or Canada.
(iv) For miniature and instrument ball bearings,
manufactured in the United States or Canada and, when a ball bearing assembly is
involved, all components of the bearing must also have been manufactured in the
United States or Canada; and
(v) For precision components for mechanical time
devices, manufacture in the United States or Canada, and, when a mechanical
timing assembly is involved, all precision components of the assembly must also
have been manufactured in the United States or Canada.
(2) Forging items means--
<TABLE>
<CAPTION>
ITEMS CATEGORIES
<S> <C>
Shipboard forged anchor chain All
Ship propulsion shafts Excludes service and landing craft shafts
Periscope tubes All
Ring forgings for bull gears All greater than 120 inches in diameter
Large caliber, thick-walled Preform, gun tube, muzzle brake, and
cannon (105mm through breach ring forgings
8-inch forgings)
60mm and 81mm mortar forgings Bipod, base plate, and body yoke forgings
Small caliber weapons Barrel extensions, bolts, receivers,
forgings sights/handles, etc.
Tank and automotive
forgings Turret rings, road arms, final drive
gears, shafts, track shoes, axle shafts,
flywheels, connecting rods,
crankshafts, roadwheels, spindles,
torsion bars
</TABLE>
(3) High carbon ferrochrome (HCF) means ferrochromium
alloy that contains three percent or more carbon and 50 percent or more
chromium.
(4) High-purity silicon means N or P type with a
resistivity greater than 3000 ohm-centimeter.
(5) Miniature and instrument ball bearings means all
rolling contact ball bearings with a basic outside diameter (exclusive of flange
diameters) of 30 millimeters or less, irrespective of material, tolerance,
performance, or quality characteristics.
<PAGE> 32
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
(6) Precision components for mechanical time devices are
parts which closely relate so that precise control and selection of working
production tolerances can be maintained to accomplish the desired function and
reliability. In terms of accuracy, such precision components have total
tolerances under 0.003 inches, eccentricities less than 0.0015 inches, and
surface finishes better than 65 rms. Examples of such precision components
include: gears, pinions, posts, and plates.
(b) The Contractor agrees that end items and their components
delivered under this contract shall contain forging items, high carbon
ferrochrome, high-purity silicon, miniature and instrument ball bearings, and
precision components for mechanical time devices that are of domestic
manufacture only.
(c) The restrictions in paragraph (b) of this clause may be waived
upon request from the contractor in accordance with the provisions of section
225.7104 of the DFARS. If the restriction is waived for miniature and instrument
ball bearings or precision components for mechanical time devices, the
Contractor agrees to acquire a like quantity and type of domestic manufacture
for nongovernment use.
(d) The restrictions in paragraph (b) do not include forgings
incorporated in commercial vehicles, such as commercial cars and trucks, or
noncombat support military vehicles.
(e) The Contractor agrees to retain records showing compliance with
these restrictions until three years after final payment and to make records
available upon request of the Contracting Officer.
(f) The Contractor agrees to insert this clause including this
paragraph f, in every subcontract and purchase order issued in performance of
this contract, unless items purchased contain none of the restricted items.
(TACOM) Items Subject to Domestic Forging Restriction (1990 Jul)
(a) The following clarifications applies to the clause FOREIGN
SOURCE RESTRICTIONS (DFARS 252.225-7025) in section H of this contract.
(b) Paragraph (a) of the Foreign Source Restrictions Clause exempts
commercial vehicles and noncombat military support vehicles from the domestic
forging restrictions established elsewhere in the clause.
(c) However, for the purposes of this contract, the Government has
determined that the exemption for commercial and noncombat military support
vehicles does not apply. If you want to get a waiver from the requirements of
this paragraph, follow the procedures outlined in paragraph (d) of the Items
Subject to Domestic Forging Restriction's clause.
(End of clause)
I-4 TRANSPORTATION OF SUPPLIES BY SEA
252.247-7023 (DEC 1991)
(a) Definitions.
As used in this clause--
(1) Components means articles, materials, and supplies
incorporated directly into end products at any level of manufacture,
fabrication, or assembly by the Contractor or any subcontractor.
(2) Department of Defense (DoD) means the Army, Navy, Air
Force, Marine Corps, and defense agencies.
(3) Foreign flag vessel means any vessel that is not a
U.S.-flag vessel.
(4) Ocean transportation means any transportation aboard
a ship, vessel, boat, barge, or ferry through international waters.
<PAGE> 33
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
(5) Subcontractor means a supplier, materialman,
distributor, or vendor at any level below the prime contractor whose contractual
obligation to perform results from, or is conditioned upon, award of the prime
contract and who is performing any part of the work or other requirement of the
prime contract.
(6) Supplies means all property, except land and
interests in land, that is clearly identifiable for eventual use by or owned by
the DoD at the time of transportation by sea.
(i) An item is clearly identifiable for eventual
use by the DoD if, for example, the contract documentation contains a reference
to a DoD contract number or a military destination.
(ii) Supplies includes (but is not limited to)
public works; buildings and facilities; ships; floating equipment and vessels of
every character, type, and description, with parts, subassemblies, accessories,
and equipment; machine tools; material; equipment; stores of all kinds; end
items; construction materials; and components of the foregoing.
(7) U.S.-flag vessel means a vessel of the United States
or belonging to the United States, including any vessel registered or having
national status under the laws of the United States.
(b) The Contractor shall employ U.S.-flag vessels in the
transportation by sea of any supplies to be furnished in the performance of this
contract. The Contractor and its subcontractors may request that the Contracting
Officer authorize shipment in foreign-flag vessels, or designate available
U.S.-flag vessels, if the Contractor or a subcontractor believes that--
(1) U.S.-flag vessels are not available for timely
shipment;
(2) The freight charges are not inordinately excessive or
unreasonable; or
(3) Freight charges are higher than charges to private
persons for transportation of like goods.
(c) The Contractor must submit any request for use of other than
U.S.-flag vessels in writing to the Contracting Officer at least 45 days prior
to the sailing date necessary to meet its delivery schedules. The Contracting
Officer will process requests submitted after such date(s) as expeditiously as
possible, but the Contracting Officer's failure to grant approvals to meet the
shipper's sailing date will not of itself constitute a compensable delay under
this or any other clause of this contract. Requests shall contain at a minimum--
(1) Type, weight, and cube of cargo;
(2) Required shipping date;
(3) Special handling and discharge requirements;
(4) Loading and discharge points;
(5) Name of shipper and consignee;
(6) Prime contract number; and
(7) A documented description of efforts made to secure
U.S.-flag vessels, including points of contact (with names and telephone
numbers) with at least two U.S.-flag carriers contacted. Copies of telephone
notes, telegraphic and facsimile message or letters will be sufficient for this
purpose.
(d) The Contractor shall, within 30 days after each shipment
covered by this clause, provide the Contracting Officer and the Division of
National Cargo, Office of Market Development, Maritime Administration, U.S.
Department of Transportation, Washington, DC 20590, one copy of the rated on
board vessel operating carrier's ocean bill of lading, which shall contain the
following information--
(1) Prime contract number;
<PAGE> 34
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
(2) Name of vessel;
(3) Vessel flag of registry;
(4) Date of loading;
(5) Port of loading;
(6) Port of final discharge;
(7) Description of commodity;
(8) Gross weight in pounds and cubic feet if available;
(9) Total ocean freight in U.S. dollars; and
(10) Name of the steamship company.
(e) The Contractor agrees to provide with its final invoice under
this contract a representation that to the best of its knowledge and belief--
(1) No ocean transportation was used in the performance
of this contract;
(2) Ocean transportation was used and only U.S.-flag
vessels were used for all ocean shipments under the contract;
(3) Ocean transportation was used, and the Contractor had
the written consent of the Contracting Officer for all non-U.S.- flag ocean
transportation; or
(4) Ocean transportation was used and some or all of the
shipments were made on non-U.S.-flag vessels without the written consent of the
Contracting Officer. The Contractor shall describe these shipments in the
following format:
ITEM CONTRACT
DESCRIPTION LINE ITEMS QUANTITY
TOTAL
(f) If the final invoice does not include the required
representation, the Government will reject and return it to the Contractor as an
improper invoice for the purposes of the Prompt Payment clause of this contract.
In the event there has been unauthorized use of non-U.S.-flag vessels in the
performance of this contract, the Contracting Officer is entitled to equitably
adjust the contract, based on the unauthorized use.
(g) The Contractor shall include this clause, including this
paragraph (g) in all subcontracts under this contract, which exceed the small
purchase limitation of section 13.000 of the Federal Acquisition Regulation.
(End of clause)
I-5 PREPARATION OF VALUE ENGINEERING CHANGE PROPOSALS
252.248-7000 (DEC 1991)
Prepare Value Engineering Change Proposals, for submission pursuant to
the value engineering clause of this contract, in the format prescribed by the
version of MIL-STD-480 or MIL-STD-481 (whichever is applicable) in effect on the
date of contract award.
(end of clause)
<PAGE> 35
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
I-6 REQUIREMENT FOR CERTIFICATE OF PROCUREMENT INTEGRITY-MODIFICATION
52.203-9 (NOV 1990)
(a) Definitions. The definitions set forth in FAR 3.104-4 are
hereby incorporated in this clause.
(b) The Contractor agrees that it will execute the certification
set forth in paragraph (c) of this clause when requested by the Contracting
Officer in connection with the execution of any modification of this contract.
(c) Certification. As required in paragraph (b) of this clause,
the officer or employee responsible for the modification proposal shall
execute the following certification:
CERTIFICATE OF PROCUREMENT INTEGRITY - MODIFICATION (Nov 1990)
(1) I, (name of certifier), am the officer
or employee responsible for the preparation of this modification proposal and
hereby certify that, to the best of my knowledge and belief, with the exception
of any information described in this certification, I have no information
concerning a violation or possible violation of subsection 27(a), (b), (d), or
(f) of the Office of Federal Procurement Policy Act, as amended * (41 U.S.C.
423), (hereinafter referred to as the Act), as implemented in the FAR, occurring
during the conduct of this procurement
- ----------------------------------.
(contract and modification number)
(2) As required by subsection 27(e)(1)(B) of the Act, I
further certify that to the best of my knowledge and belief, each officer,
employee, agent, representative, and consultant of (Name of
Offeror) who has participated personally and substantially in the preparation or
submission of this proposal has certified that he or she is familiar with, and
will comply with, the requirements of subsection 27(a) of the Act, as
implemented in the FAR, and will report immediately to me any information
concerning a violation or possible violation of subsections 27(a), (b), (d), or
(f) of the Act, as implemented in the FAR, pertaining to this procurement.
(3) Violations or possible violations: (Continue on
plain bond paper if necessary and label Certificate of Procurement Integrity -
Modification (Continuation Sheet), ENTER NONE IF NONE EXISTS)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Signature of the Officer or Employee Responsible for the Modification Proposal
and date)
- --------------------------------------------------------------------------------
(Typed name of the Officer or Employee Responsible for the Modification
Proposal)
*Subsections 27(a), (b), and (d) are effective on December 1, 1990. Subsection
27(f) is effective on June 1, 1991.
THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN AGENCY OF THE
UNITED STATES AND THE MAKING OF A FALSE, FICTITIOUS, OR FRAUDULENT CERTIFICATION
MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER TITLE 18, UNITED STATES CODE,
SECTION 1001.
(End of Certification)
(d) In making the certification in paragraph (2) of the
certificate, the officer or employee of the competing Contractor responsible for
the offer or bid, may rely upon a one-time certification from each individual
required to submit a certification
<PAGE> 36
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
to the competing Contractor, supplemented by periodic training. These
certifications shall be obtained at the earliest possible date after an
individual required to certify begins employment or association with the
contractor. If a contractor decides to rely on a certification executed prior to
the suspension of section 27 (i.e., prior to December 1, 1989) the contractor
shall ensure that an individual who has so certified is notified that Section 27
has been reinstated. These certifications shall be maintained by the Contractor
for a period of 6 years from the date a certifying employee's employment with
the company ends or, for an agency, representative, or consultant, 6 years from
the date such individual ceases to act on behalf of the contractor.
(e) The certification required by paragraph (c) of this clause is
a material representation of fact upon which reliance will be placed in
executing this modification.
(End of clause)
I-7 AUTHORIZED DEVIATIONS IN CLAUSES
52.252-6 (APR 1984)
(a) The use in this solicitation or contract of any Federal
Acquisition Regulation (48 CFR Chapter 1) clause with an authorized deviation is
indicated by the addition of (DEVIATION) after the date of the clause.
(b) The use in this solicitation or contract of any DoD FAR
Supplement (DFARS) (48 CFR 2) clause with an authorized deviation is indicated
by the addition of (DEVIATION) after the name of the regulation.
(End of clause)
<PAGE> 37
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Name of Offeror or Contractor O GARA-HESS AND EISENHARDT ARMORING
PART III - LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACHMENTS
SECTION J - LIST OF ATTACHMENTS
J-1 LIST OF ATTACHMENTS AND EXHIBITS
<TABLE>
<CAPTION>
Attachment/Exhibit ID Title Date Number
---------- ------- -- ----- ---- ------
<S> <C> <C> <C>
Exhibit A DD254 DEPARTMENT OF DEFENSE 1
CONTRACT SECURITY CLASSIFICATION
SPECIFICATION
</TABLE>
<PAGE> 38
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DAAE07-94-C-0406 24 of 55
Name of Offeror or Contractor
SECTION K - REPRESENTATIONS, CERTIFICATIONS AND OTHER STATEMENTS OF OFFERORS
K-1 DISCLOSURE OF OWNERSHIP OF CONTROL BY A FOREIGN GOVERNMENT THAT
SUPPORTS TERRORISM
252.209-7001 (APR 1983)
(a) Definitions.
Significant interest, as used in this provision, means --
(1) Ownership of or beneficial interest in five
percent or more of the firm's or subsidiary's securities. Beneficial interest
includes holding five percent or more of any class of the firm's securities in
nominee shares, street names, or some other method of holding securities that
does not disclose the beneficial owners;
(2) Holding a management position in the firm, such
as a director or officer;
(3) Ability to control or influence the election,
appointment, or tenure of directors or officers in the firm;
(4) Ownership of ten percent or more of the assets of
a firm such as equipment, buildings, real estate, or other tangible assets of
the firm; or
(5) Holding 50 percent or more of the indebtedness of
a firm.
(2) Government, as used in this provision, includes any agent
or instrumentality of that government.
(b) Disclosure.
The Offeror shall disclose any significant interest the government of
each of the following countries has in the Offeror or a subsidiary of the
Offeror. If the Offeror is a subsidiary, it shall also disclose any significant
interest each government has in any firm that owns or controls the subsidiary.
If none, leave blank.
Country Significant Interest
(1) Cuba _____________________________________________
(2) Iran _____________________________________________
(3) Iraq _____________________________________________
(4) Libya _____________________________________________
(5) North Korea _____________________________________________
(6) Syria _____________________________________________
(End of provision)
K-2 SMALL DISADVANTAGED BUSINESS CONCERN REPRESENTATION (DOC CONTRACTS)
252.219-7000 (DEC 1991)
(a) Definition.
Small disadvantaged business concern, as used in this provision,
means a small business concern, owned and controlled by individuals who are both
socially and economically disadvantaged, as defined by the Small Business
Administration at 13 CFR Part 124, the majority of earnings of which directly
accrue to such individuals. This term also means a small business concern
<PAGE> 39
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DAAE07-94-C-0406 25 of 55
Name of Offeror or Contractor
owned and controlled by an economically disadvantaged Indian tribe or Native
Hawaiian organization which meets the requirements of 13 CFR 124.112 or 13 CFR
124.113, respectively. In general, 13 CFR part 124 describes a small
disadvantaged business concern as a small business concern --
(1) Which is at least 51 percent unconditionally owned by one
or more socially and economically disadvantaged individuals; or
(2) In the case of any publicly owned business, at least 51
percent of the voting stock is unconditionally owned by one or more socially and
economically disadvantaged individuals; and
(3) Whose management and daily business operations are
controlled by one or more such individuals.
(b) Representations. Check the category in which your ownership falls
- --
( ) Subcontinent Asian (Asian-Indian) American (U.S. citizen with
origins from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, or Nepal)
( ) Asian-Pacific American (U.S. citizen with origins from Japan,
China, the Philippines, Vietnam, Korea, Samoa, Guam, U.S. Trust Territory of the
Pacific Islands, (Republic of Palau), the Northern Mariana Islands, Laos,
Kampuchon (Cambodia), Taiwan, Burma, Thailand, Malaysia, Indonesia, Singapore,
Brunel, Republic of the Marshall Islands, or the Federated States of
Micronesia.)
( ) Black American (U.S. citizen)
( ) Hispanic American (U.S. citizen with origins from South
America, Central America, Mexico, Cuba, the Dominican Republic, Puerto Rico,
Spain, or Portugal)
( ) Native American (American Indians, Eskimos, Aleuts, or Native
Hawaiians, including Indian tribes or Native Hawaiian organizations)
( ) Individual/concern, other than one of the preceding, currently
certified for participation in the Minority Small Business and Capital Ownership
Development Program under Section 8(a) of the Small Business Act
( ) Other
(c) Certifications. Complete the following --
(1) The offeror is ( )
is not ( ) a small disadvantaged business concern.
(2) The Small Business Administration (SBA) has ( )
has not ( )
made a determination concerning the offeror's status as a small disadvantaged
business concern. If the SBA has made a determination, the date of the
determination was
________________
and the offeror --
( ) Was found by SBA to be socially and economically disadvantaged
and no circumstances have changed to vary the determination.
( ) Was found by SBA not to be socially and economically
disadvantaged but circumstances which caused the determination have changed.
<PAGE> 40
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Name of Offeror or Contractor
(d) Notification. Notify the Contracting Officer before award if your
status as a small disadvantaged business concern changes.
(e) Penalties and Remedies. Anyone who misrepresents the status of a
concern as a small disadvantaged business for the purpose of securing a contract
or subcontract shall --
(1) Be punished by imposition of a fine, imprisonment, or both;
(2) Be subject to administrative remedies, including suspension and
debarment; and
(3) Be ineligible for participation in programs conducted under the
authority of the Small Business Act. (End of provision)
K-3 BUY AMERICAN ACT - BALANCE OF PAYMENTS PROGRAM CERTIFICATE
252.225-7000 (DEC 1992)
(a) Definitions.
Domestic end product, qualifying country, qualifying country end
product, and nonqualifying country end product have the meanings given in the
Buy American Act and Balance of Payments Program clause of this solicitation.
(b) Evaluation.
Offers will be evaluated by giving preference to domestic end products
and qualifying country end products over nonqualifying country end products.
(c) Certifications.
(1) The Offeror certifies that --
(i) Each end product, except those listed in paragraphs (c)(2)
or (3) of this clause, is a domestic end product; and
(ii) Components of unknown origin are considered to have been
mined, produced, or manufactured outside the United States or a qualifying
country.
(2) The Offeror certifies that the following end products are
qualifying country end products:
Qualifying Country End Products
Line Item Number Country of Origin
___________________________ ___________________________
(List only qualifying country end products.)
(3) The Offerer certifies that the following end products are
nonqualifying country end products:
Nonqualifying Country End Products
Line Item Number Country of Origin (If known)
___________________________ ___________________________
<PAGE> 41
CONTINUATION SHEET Reference No. of Document Being Continued Page
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Name of Offeror or Contractor
(End of provision)
K-4 INFORMATION FOR DUTY-FREE ENTRY EVALUATION
252.225-7003 (AUG 1992)
(a) Is the offer based on furnishing any supplies (i.e., and items,
components, or material) of foreign origin other than those for which duty-free
entry is to be accorded pursuant to the Duty-Free Entry--Qualifying Country End
Products and Supplies clause of this solicitation?
( ) Yes
( ) No
(b) If the answer in paragraph (a) is yes, answer the following
questions:
(1) Are such foreign supplies now in the United States?
( ) Yes
( ) No
(2) Has the duty on such foreign supplies been paid?
( ) Yes
( ) No
(3) If the answer to paragraph (b)(2) is no, what amount is
included in the offer to cover such duty?
$ _____________________
(c) If the duty has not been paid, the Government may elect to make
award on a duty-free basis. If so, the offered price will be reduced in the
contract award by the amount specified in paragraph (b)(3). The Offeror agrees
to identify, at the request of the Contracting Officer, the foreign supplies
which are subject to duty-free entry.
(d) Offers will be evaluated on a duty included basis except to the
extent that --
(1) The supplies are qualifying country end products as defined in
the Buy American Act and Balance of Payments Program clause of this
solicitation; or
(2) The duty-free price is specified for use in the evaluation
procedure.
(End of provision)
K-5 REPRESENTATION OF EXTENT OF TRANSPORTATION BY SEA
252.247-7022 (DEC 1991)
(a) The Offeror shall indicate by checking the appropriate blank in
paragraph (b) of this provision whether transportation of supplies by sea is
anticipated under the resultant contract. The term supplies is defined in the
Transportation of Supplies by Sea clause of this solicitation.
<PAGE> 42
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Name of Offeror or Contractor
(b) Representation. The Offeror represents that it --
( ) Does anticipate that supplies will be transported by sea in the
performance of any contract or subcontract resulting from this solicitation.
( ) Does not anticipate that supplies will be transported by sea in
the performance of any contract or subcontract resulting from this solicitation.
(c) Any contract resulting from this solicitation will include the
Transportation of Supplies by Sea clause. If the Offeror represents that it will
not use ocean transportation, the resulting contract will also include the
Defense FAR Supplement clause at 252.247-7024, Notification of Transportation of
Supplies by Sea.
(End of provision)
K-6 CERTIFICATE OF INDEPENDENT PRICE DETERMINATION
32.203-2 (APR 1983)
(a) The offeror certifies that --
(1) The prices in this offer have been arrived at independently,
without, for the purpose of restricting competition, any consultation,
communication, or agreement with any other offeror or competitor relating to (i)
those prices, (ii) the intention to submit an offer, or (iii) the methods or
factors used to calculate the prices offered;
(2) The prices in this offer have not been and will not be
knowingly disclosed by the offeror, directly or indirectly, to any other offeror
or competitor before bid opening (in the case of a sealed bid solicitation) or
contract award (in the case of a negotiated solicitation) unless otherwise
required by law; and
(3) No attempt has been made or will be made by the offeror to
induce any other concern to submit or not to submit an offer for the purpose of
restricting competition.
(b) Each signature on the offer is considered to be a certification by
the signatory that the signatory --
(1) Is the person in the offeror's organization responsible for
determining the prices being offered in this bid or proposal, and that the
signatory has not participated and will not participate in any action contrary
to subparagraphs (a)(1) through (a)(3) above; or
(2)(i) Has been authorized, in writing, to act as agent for the
following principals in certifying that those principals have not participated,
and will not participate, in any action contrary to subparagraphs (a)(1) through
(a)(3) above
(INSERT FULL NAME OF PERSON(S) IN THE OFFEROR'S ORGANIZATION
RESPONSIBLE FOR DETERMINING THE PRICES OFFERED IN THIS BID OR PROPOSAL, AND THE
TITLE OF HIS OR HER POSITION IN THE OFFEROR'S ORGANIZATION);
(ii) As an authorized agent, does certify that the principals
named in subdivision (b)(2)(i) above have not participated, and will not
participate, in any action contrary to subparagraphs (a)(1) through (a)(3)
above; and
(iii) As an agent, has not personally participated, and will not
participate, in any action contrary to subparagraphs (a)(1) through (a)(3)
above.
(c) If the offeror deletes or modifies subparagraph (a)(2) above, the
offeror must furnish with its offer a signed statement setting forth in detail
the circumstances of the disclosure.
(End of provision)
K-7 CONTINGENT FEE REPRESENTATION AND AGREEMENT
<PAGE> 43
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DAAE07-94-C-0406 29 of 55
Name of Offeror or Contractor
52.203-4 (APR 1984)
(a) Representation The offeror represents that, except for full-time
bona fide employees working solely for the offeror, the offeror -- (NOTE: THE
OFFEROR MUST CHECK THE APPLICABLE BOXES. For interpretation of the
representation, including the term bona fide employee, see Subpart 3.4 of the
Federal Acquisition Regulation.)
(1) ( ) has
(X) has not
employed or retained any person or company to solicit or obtain this contract;
and
(2) ( ) has
(X) has not
paid or agreed to pay to any person or company employed or retained to solicit
or obtain this contract any commission, percentage, brokerage, or other fee
contingent upon or resulting from the award of this contract.
(b) Agreement The offeror agrees to provide information relating to the
above Representation as requested by the Contracting Officer and, when
subparagraph (a)(1) or (a)(2) is answered affirmatively, to promptly submit to
the Contracting Officer --
(1) A completed Standard Form 119, Statement of Contingent or Other
Fees, (SF 119); or
(2) A signed statement indicating that the SF 119 was previously
submitted to the same contracting officer, including the date and applicable
solicitation or contract number, and representing that the prior SF 119 applies
to this offer or quotation. (End of provision)
K-6 REQUIREMENT FOR CERTIFICATE OR PROCUREMENT INTEGRITY (ALTERNATE I)
52.203-8 (SEP 1990)
(a) Definitions. The definitions at FAR 3.184-4 are hereby incorporated
in this provision.
(b) Certifications. As required in paragraph (c) of this provision, the
officer or employee responsible for this offer shall execute the following
certification:
CERTIFICATE OF PROCUREMENT INTEGRITY
(1) I, M. J. Lennon (Name of certifier), am the officer or employee
responsible for the preparation of this offer and hereby certify that, to the
best of my knowledge and belief, with the exception of any information described
in this certificate, I have no information concerning a violation or possible
violation of subsection 27(a), (b), (d), or (f) of the Office of Federal
Procurement Policy Act, as amended *(41 U.S.C. 423), (hereinafter referred to as
the Act), as implemented in the FAR, occurring during the conduct of this
procurement DAAE07-94-C-0406.
(solicitation number)
(2) As required by subsection 27(e)(1)(B) of the Act, I further
certify that, to the best of my knowledge and belief, each officer, employee,
agent, representative, and consultant of O'Gara-Hess & Eisenhardt (Name of
offeror) who has participated personally and substantially in the preparation or
submission of this offer has certified that he or she is familiar with, and will
comply with, the requirements of subsection 27(a) of the Act, as implemented in
the FAR, and will report immediately to me any information concerning a
violation or possible violation of subsections 27(a), (b), (d), or (f) of the
Act, as implemented in the FAR, pertaining to this procurement.
(3) Violations or possible violations: (Continue on plain bond
paper if necessary and label Certificate of Procurement Integrity (Continuation
Sheet), (ENTER NONE IF NONE EXISTS)
NONE
________________________________________________________________________________
________________________________________________________________________________
<PAGE> 44
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Name of Offeror or Contractor
________________________________________________________________________________
________________________________________________________________________________
(4) I agree that, if awarded a contract under this solicitation,
the certifications required by subsection 27(a)(1)(B) of the Act shall be
maintained in accordance with paragraph (f) of this provision.
/s/ M.J. Lennon 5/12/94
- --------------------------------------------------------------------------------
(Signature of the Officer or Employee Responsible for the offer and Date)
M.J. Lennon, Mgr Military and Commercial Programs
- --------------------------------------------------------------------------------
(Typed Name of the Officer or Employee Responsible for the Offer)
*Subsections 27 (a), (b), and (d) are effective on December 1, 1990. Subsection
27 (f) is effective on June 1, 1991.
THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN AGENCY OF THE
UNITED STATES AND THE MAKING OF A FALSE, FICTITIOUS, OR FRAUDULENT CERTIFICATION
MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER TITLE 18, UNITED STATES CODE,
SECTION 1001.
(End of certification)
(c) For procurements, including contract modifications, in excess of
$100,000 made using procedures other than sealed bidding, the signed
certifications shall be submitted by the successful Offeror to the Contracting
Officer within the time period specified by the Contracting Officer when
requesting the certificates except as provided in subparagraph (c)(1) through
(c)(5) of this clause. In no event shall the certificate be submitted subsequent
to award of a contract or execution of a contract modification:
(1) For letter contracts, other unpriced contracts, or unpriced
contract modifications, whether or not the unpriced contract or modification
contains a maximum or not to exceed price, the signed certifications shall be
submitted prior to the award of the letter contract, unpriced contract, or
unpriced contract modification, and prior to the definitization of the letter
contract or the establishment of the price of the unpriced contract or unpriced
contract modification. The second certification shall apply only to the period
between award of the letter contract and execution of the document definitizing
the letter contract, or award of the unpriced contract or unpriced contract
modification and execution of the document establishing the definitive price of
such unpriced contract or unpriced contract modification.
(2) For basic ordering agreements, prior to the execution of a
priced order; prior to the execution of an unpriced order, whether or not the
unpriced order contains a maximum or not to exceed price; and, prior to
establishing the price of an unpriced order. The second certificate to be
submitted for unpriced orders shall apply only to the period between award of
the unpriced order and execution of the document establishing the definitive
price for such order.
(3) A certificate is not required for indefinite delivery contracts
(see subpart 16.3) unless the total estimated value of all orders eventually to
be placed under the contract is expected to exceed $100,000.
(4) For contracts and contract modifications which include options,
a certificate is required when the aggregate value of the contract or contract
modification and all options (see 3.104-4(e)) exceeds $100,000.
(5) For purposes of contracts entered into under section 8(a) of
the SBA, the business entity with whom the SBA contracts, and not the SBA, shall
be required to comply with the certification requirements of subsection 27(e).
The SBA shall obtain the signed certificate from the business entity and forward
the certificate to the Contracting Officer prior to the award of a contract to
the SBA.
(6) Failure of an Offeror to submit the signed certificate within
the time prescribed by the Contracting Officer shall
<PAGE> 45
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Name of Offeror or Contractor
cause the offer to be rejected.
(d) Pursuant to FAR 3.104-9(d), the Offeror may be requested to execute
additional certifications at the request of the Government. Failure of an
Offeror to submit the additional certifications shall cause its offer to be
rejected.
(e) A certification containing a disclosure of a violation or possible
violation will not necessarily result in the withholding of an award under this
solicitation. However, the Government, after evaluation of the disclosure, may
cancel this procurement or take any other appropriate actions in the interests
of the Government, such as disqualification of the Offeror.
(f) In making the certification in paragraph (2) of the certificate,
the officer or employee of the competing contractor responsible for the offer
may rely upon a one-time certification from each individual required to submit a
certification to the competing contractor, supplemented by periodic training.
These certifications shall be obtained at the earliest possible date after an
individual required to certify begins employment or association with the
contractor. If a contractor decides to rely on a certification executed prior to
the suspension of Section 27 (i.e., prior to December 1, 1989), the Contractor
shall ensure that an individual who has so certified is notified that section 27
has been reinstated. These certifications shall be maintained by the Contractor
for 6 years from the date a certifying employee's employment with the company
ends or, for an agent, representative or consultant, 6 years from the date such
individual ceases to act on behalf of the Contractor.
(g) Certifications under paragraph (b) and (d) of this provision are
material representations of fact upon which reliance will be placed in awarding
a contract.
(End of provision)
K-9 CERTIFICATION AND DISCLOSURE REGARDING PAYMENTS TO INFLUENCE CERTAIN
FEDERAL TRANSACTIONS 52.203-11 (APR 1991)
(a) The definitions and prohibitions contained in the clause, at FAR
52.203-12, Limitation on Payments to Influence Certain Federal Transactions,
included in this solicitation, are hereby incorporated by reference in paragraph
(b) of this certification.
(b) The offeror, by signing its offer, hereby certifies to the best of
his or her knowledge and belief that on or after December 23, 1989 that:
(1) No Federal appropriated funds have been paid or will be
paid to any person for influencing or attempting to influence an officer or
employee of an agency, a Member of Congress an officer or employee of Congress,
or an employee of a Member of Congress on his or her behalf in connection with
the awarding of any Federal contract, the making of any Federal grant, the
making of any Federal loan, the entering into of any cooperative agreement, and
the extension, continuation, renewal, amendment or modification of any Federal
contract, grant, loan or cooperative agreement;
(2) If any funds other than Federal appropriated funds
(including profit or fee received under a covered Federal transaction) have been
paid, or will be paid to any person for influencing or attempting to influence
an officer or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress on his or her
behalf in connection with this solicitation, the offeror shall complete and
submit, with its offer, ONE standard form LLL, Disclosure of Lobbying
Activities, to the Contracting Officer; and
(3) He or she will include the language of this certification
in all subcontract awards at any time and require that all recipients of
subcontract awards in excess of $100,000 shall certify and disclose accordingly.
(c) Submission of this certification and disclosure is a prerequisite
for making or entering into this contract imposed by section 1332, title 31,
United States Code. Any person who makes an expenditure prohibited under this
provision or who fails to file or amend the disclosure form to be filed or
amended by this provision, shall be subject to a civil penalty of not less than
$10,000, and not more than $100,000, for each such failure.
(End of provision)
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Name of Offeror or Contractor
K-10 ECONOMIC PURCHASE QUANTITY -- SUPPLIES
52.207-4 (AUG 1987)
(a) Offerors are invited to state an opinion on whether the
quantity(ies) of supplies on which bids, proposals, or quotations are requested
in this solicitation is (are) economically advantageous to the Government.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(b) Each offeror who believes that acquisitions in different quantities
would be more advantageous is invited to recommend an economic purchase
quantity. If different quantities are recommended, a total and a unit price must
be quoted for applicable items. An economic purchase quantity is that quantity
at which a significant price break occurs. If there are significant price breaks
at different quantity points, this information is desired as well.
OFFEROR RECOMMENDATIONS
PRICE
ITEM QUANTITY QUOTATION TOTAL
---- -------- --------- -----
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(c) The information requested in this provision is being solicited to
avoid acquisitions in disadvantageous quantities and to assist the Government in
developing a data base for future acquisitions of these items. However, the
Government reserves the right to amend or cancel the solicitation and resolicit
with respect to any individual item in the event quotations received and the
Government's requirements indicate that different quantities should be acquired.
(End of provision)
K-11 CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND
OTHER RESPONSIBILITY MATTERS 52.209-5 (MAY 1989)
(a)(1) The Offeror certifies, to the best of its knowledge and belief,
that--
(I) The Offeror and/or any of its Principals --
(A) ( ) are
( ) are not
presently debarred, suspended, proposed for debarment, or declared ineligible
for the award of contracts by any Federal agency;
<PAGE> 47
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Name of Offeror or Contractor
(B) ( ) have
(X) have not,
within a three-year period preceding this offer, been
convicted of or had a civil judgment rendered against them for: commission of
fraud or a criminal offense in connection with obtaining, attempting to obtain,
or performing a public (Federal, state or local) contract or subcontract;
violation of federal or state antitrust statutes relating to the submission of
offers; or commission of embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, or receiving stolen property;
and
(C) ( ) are
(X) are not
presently indicted for, or otherwise criminally or
civilly charged by a governmental entity with, commission of any of the offenses
enumerated in subdivision (a)(1)(i)(B) of this provision.
(ii) The Offeror
( ) has
(X) has not,
within a three-year period preceding this offer, had
one or more contracts terminated for default by any Federal agency.
(2) Principals, for the purpose of this certification, means officers;
directors; owners; partners; and, persons having primary management or
supervisory responsibilities within a business entity (e.g., general manager;
plant manager; head of a subsidiary, division, or business segment, and similar
positions).
THIS CERTIFICATION CONCERNS A MATTER WITHIN A JURISDICTION OF AN AGENCY OF THE
UNITED STATES AND THE MAKING OF A FALSE, FICTITIOUS, OR FRAUDULENT CERTIFICATION
MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER SECTION 1001, TITLE 18, UNITED
STATES CODE.
(b) The Offeror shall provide immediate written notice to the
Contracting Officer if, at any time prior to contract award, the Offeror learns
that its certification was erroneous when submitted or has become erroneous by
reason of changed circumstances.
(c) A certification that any of the items in paragraph (a) of this
provision exists will not necessarily result in withholding of an award under
this solicitation. However, the certification will be considered in connection
with a determination of the Offeror's responsibility. Failure of the Offeror to
furnish a certification or provide such additional information as requested by
the Contracting Officer may render the Offeror nonresponsible.
(d) Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render, in good faith, the
certification required by paragraph (a) of this provision. The knowledge and
information of an Offeror is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business dealings.
(e) The certification in paragraph (a) of this provision is a material
representation of fact upon which reliance was placed when making award. If it
is later determined that the Offeror knowingly rendered an erroneous
certification, in addition to other remedies available to the Government, the
Contracting Officer may terminate the contract resulting from this solicitation
for default.
(End of provision)
K-12 TYPE OF BUSINESS ORGANIZATION
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Name of Offeror or Contractor
52.215-6 (JUL 1987)
The offeror or quoter, by checking the applicable box, represents
that--
(a) It operates as
(X) a corporation, incorporated under the laws of the State of
Delaware
( ) an individual
( ) a partnership
( ) a nonprofit organization, or
( ) a joint venture.
(b) If the offeror or quoter is a foreign entity, it
operates as
( ) an individual
( ) a partnership
( ) a nonprofit organization
( ) a joint venture, or
( ) a corporation, registered for business
in _____________.
(End of provision)
K-13 AUTHORIZED NEGOTIATORS
52.215-11 (APR 1984)
The offeror or quoter represents that the following persons are
authorized to negotiate on its behalf with the Government in connection with
this request for proposals or quotations:
PERSONS AUTHORIZED TO NEGOTIATE
NAME TITLE TELEPHONE NUMBER
M.J. Lennon Mgr. Military and Commercial Programs (513) 874-2112
- --------------------------------------------------------------------------------
N.P. Carpinello V.P. Finance (513) 874-2112
- --------------------------------------------------------------------------------
A.W. Crayden Mgr. Cost & Pricing (513) 874-2112
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(End of provision)
K-14 PLACE OF PERFORMANCE
52.215-20 (APR 1984)
(a) The offeror or quoter, in the performance of any contract resulting
from this solicitation,
( ) intends
(X) does not intend
<PAGE> 49
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Name of Offeror or Contractor
to use one or more plants or facilities located at a different address from the
address of the offeror or quoter as indicated in this proposal or quotation.
(b) If the offeror or quoter checks intends in paragraph (a) above, it
shall insert in the spaces provided below the required information:
<TABLE>
<CAPTION>
Place of Performance (Street) Name and Address of Owner
Address, City, County, State, and Operator of the Plant or
ZIP code) Facility if Other than Offeror or Quoter
<S> <C>
---------------------------------------- -------------------------------------------
---------------------------------------- -------------------------------------------
---------------------------------------- -------------------------------------------
</TABLE>
(End of provision)
K-15 SMALL BUSINESS CONCERN REPRESENTATION
52.219-1 (JAN 1991)
(a) Representation. The offeror represents and certifies as part of its
offer that it
(X) IS a small business concern,
( ) is NOT a small business concern,
and that
(X) all,
( ) NOT all
end items to be furnished will be manufactured or produced by a small business
concern in the United States, its territories or possessions, Puerto Rico, or
the Trust Territory of the Pacific Islands.
(b) Definition. Small business concern, as used in this provision,
means a concern, including its affiliates, that is independently owned and
operated, not dominant in the field of operation in which it is bidding on
Government contracts, and qualified as a small business under the criteria and
size standards in this solicitation.
(c) Notice. Under 15 U.S.C. 645(d), any person who misrepresents a
firm's status as a small business concern in order to obtain a contract to be
awarded under the preference programs established pursuant to sections 8(a),
8(d), 9, or 15 of the Small Business Act or any other provision of Federal law
that specifically references section 8(d) for a definition of program
eligibility, shall (1) be punished by imposition of a fine, imprisonment, or
both; (2) be subject to administrative remedies, including suspension and
debarment; and (3) be ineligible for participation in programs conducted under
the authority of the Act.
(End of provision)
K-16 WOMEN-OWNED SMALL BUSINESS REPRESENTATION
52.219-3 (APR 1984)
(a) Representation. The offeror represents that it
( ) IS a woman-owned small business concern
(X) IS NOT a woman-owned small business concern.
(b) Definitions.
Small business concern, as used in this provision, means a
concern, including its affiliates, that is independently owned and operated, not
dominant in the field of operation in which it is bidding on Government
contracts, and qualified as a small business under the criteria and size
standards in 15 CFR 121.
<PAGE> 50
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Name of Offeror or Contractor
Women-owned, as used in this provision, means a small business
that is at least 51 percent owned by a woman or women who are U.S. citizens and
who also control and operate the business.
(End of provision)
K-17 PREFERENCE FOR LABOR SURPLUS AREA CONCERNS
52.220-1 (APR 1984)
(a) This acquisition is not a set-aside for labor surplus area (LSA)
concerns. However, the offeror's status as such a concern may affect (1)
entitlement to award in case of the offers or (2) offer evaluation in accordance
with the BUY AMERICAN ACT provision of this solicitation. In order to determine
whether the offeror is entitled to a preference under (1) or (2) above, the
offeror must identify, below, the LSA in which the costs to be incurred on
account of manufacturing or production (by the offeror or the first-tier
subcontractors) amount to more than 50 percent of the contract price.
(Location) (Percentage of Contract Price)
- -------------------------------------- -----------------------------------
- -------------------------------------- -----------------------------------
- -------------------------------------- -----------------------------------
(b) Failure to identify the locations as specified above will preclude
consideration of the offeror as an LSA concern. If the offeror is awarded a
contract as an LSA concern and would not have otherwise qualified for award, the
offeror shall perform the contract or cause the contract to be performed in
accordance with the obligations of an LSA concern.
(End of provision)
K-18 WALSH-HEALEY PUBLIC CONTRACTS ACT REPRESENTATION
52.222-19 (APR 1984)
The offeror represents as a part of this offer that the offeror
( ) IS a regular dealer in the supplies offered
( ) IS NOT a regular dealer in the supplies offered, or
(X) IS a manufacturer of the supplies offered.
( ) IS NOT a manufacturer of the supplies offered.
(End of provision)
K-19 CERTIFICATION OF NONSEGREGATED FACILITIES
52.222-21 (APR 1984)
(a) Segregated facilities, as used in this provision, means any waiting
rooms, work areas, rest rooms and wash rooms, restaurants and other eating
areas, time clocks, locker rooms and other storage or dressing areas, parking
lots, drinking fountains, recreation or entertainment areas, transportation, and
housing facilities provided for employees, that are segregated by explicit
directive or are in fact segregated on the basis of race, color, religion, or
national origin because of habit, local custom, or otherwise.
(b) By the submission of this offer, the offeror certifies that it does
not and will not maintain or provide for its employees any segregated facilities
at any of its establishments, and that it does not and will not permit its
employees to perform their services at any location under its control where
segregated facilities are maintained. The offeror agrees that a breach of this
certification is a violation of the EQUAL OPPORTUNITY clauses in the contract.
<PAGE> 51
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 37 of 55
Name of Offeror or Contractor
(c) The offeror further agrees that (except where it has obtained
identical certifications from proposed subcontractors for specific time periods)
it will--
(1) Obtain identical certifications from proposed
subcontractors before the award of subcontracts under which the subcontractor
will be subject to the EQUAL OPPORTUNITY clause;
(2) Retain the certifications in the files; and
(3) Forward the following notice to the proposed
subcontractors (except if the proposed subcontractors have submitted identical
certifications for the specific time periods;)
NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT
FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES
"A Certification of Nonsegregated Facilities must be submitted before
the award of a subcontract, under which the subcontractor will be subject to the
EQUAL OPPORTUNITY clause. The certification may be submitted either for each
subcontract or for all subcontracts during a period (i.e., quarterly,
semiannually, or annually). NOTE: The penalty for making false statements in
offers is prescribed in 18 U.S.C. 1001.
(End of provision)
K-20 PREVIOUS CONTRACTS AND COMPLIANCE REPORTS
52.222-22 (APR 1984)
The offeror represents that--
(a) It (X) has
( ) has not
participated in a previous contract or subcontract subject either to the EQUAL
OPPORTUNITY clause of this solicitation, the clause originally contained in
Section 310 of Executive Order No. 10925, or the clause contained in Section 201
of Executive Order No. 1ZZ143
(b) It (X) has
( ) has not
filed all required compliance reports; and
(c) Representations indicating submission of required compliance
reports, signed by proposed subcontractors, will be obtained before subcontract
awards.
(End of provision)
K-21 AFFIRMATIVE ACTION COMPLIANCE
52.222-25 (APR 1984)
The offeror represents that
(a) It (X) has developed and has on file,
( ) has not developed and does not have on file,
at each establishment, affirmative action programs required by the rules and
regulations of the Secretary of Labor (41 CFR 60-1 and 60-2), or
(b) It ( ) has not previously had contracts subject to the written
affirmative action programs requirement of the rule and regulations of the
Secretary of Labor.
(End of provision)
K-22 CLEAN AIR AND WATER CERTIFICATION
52.223-1 (APR 1984)
<PAGE> 52
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 38 of 55
Name of Offeror or Contractor
The offeror certifies that--
(a) Any facility to be used in the performance of this proposed
contract
( ) is
(X) is not
listed on the Environmental Protection Agency List of Violating Facilities.
(b) The offeror will immediately notify the Contractor Officer, before
award, of the receipt of any communication from the Administrator, or a
designee, of the Environmental Protection Agency, indicating that any facility
that the Offeror proposes to use for the performance of the contract is under
consideration to be listed on the EPA List of Violating Facilities; and
(c) The offeror will include a certification substantially the same as
this certification, including this paragraph (c), in every nonexempt
subcontract.
(End of provision)
K-23 CERTIFICATION REGARDING A DRUG-FREE WORKPLACE
52.223-5 (JUL 1990)
(a) Definitions. As used in this provision
Controlled Substance means a controlled substance in Schedules I
through V of section 202 of the Controlled Substances Act (21 U.S.C. 812) and as
further defined in regulation at 21 CFR 1308.11-1308.15.
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body charged
with the responsibility to determine violations of the Federal or State criminal
drug statutes.
Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, possession or use
of any controlled substance.
Drug-free workplace means the site(s) for the performance of work
done by the Contractor in connection with a specific contract at which employees
of the Contractor are prohibited from engaging in the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance.
Employee means an employee of a Contractor directly engaged in the
performance of work under a Government contract. Directly engaged is defined to
include all direct cost employees and any other contractor employee who has
other than a minimal impact or involvement in contract performance.
Individual means an offeror/contractor that has no more than one
employee including the offeror/contractor.
(b) By submission of its offer, the offeror, if other than an
individual, who is making an offer that equals or exceeds $25,000, certifies and
agrees that, with respect to all employees of the offeror to be employed under a
contract resulting from this solicitation, it will--no later than 30 calendar
days after contract award (unless a longer period is agreed to in writing) for
contracts of 30 calendar days or more performance duration, or as soon as
possible for contracts of less than 30 calendar day performance duration; but in
any case, by a date prior to when performance is expected to be completed.
(1) Publish a statement notifying such employees that the unlawful
manufacture, distribution, dispensing, possession or use of a controlled
substance is prohibited in the Contractor's workplace and specifying the actions
that will be taken against employees for violations of such prohibition;
(2) Establish an ongoing drug-free awareness program to inform such
employees about--
(i) The dangers of drug abuse in the workplace;
(ii) The Contractor's policy of maintaining a
drug-free workplace;
<PAGE> 53
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 39 of 55
Name of Offeror or Contractor
(iii) Any available drug counseling, rehabilitation,
and employee assistance programs; and
(iv) The penalties that may be imposed
upon employees for drug abuse violations occurring in the workplace.
(3) Provide all employees engaged in performance of the
contract with a copy of the statement required by subparagraphs (b)(1) of this
provision;
(4) Notify such employees in writing in the statement required
by subparagraph (b)(1) of this provision, that as a condition of continued
employment on the contract resulting from this solicitation, the employee will--
(i) Abide by the terms of the statement; and
(ii) Notify the employer in writing of the employee's
conviction under a criminal drug statute for a violation occurring in the
workplace no later than 5 calendar days after such conviction;
(5) Notify the Contracting Officer in writing within 10
calendar days after receiving notice under subdivision (b)(4)(ii) of this
provision, from an employee or otherwise receiving actual notice of such
conviction. The notice shall include the position title of the employee; and
(6) Within 30 calendar days after receiving notice under
subdivision (b)(4)(ii) of this provision of a conviction, take one of the
following actions with respect to any employee who is convicted of a drug abuse
violation occurring in the workplace;
(i) Take appropriate personnel action against such
employee, up to and including termination; or
(ii) Require such employee to satisfactorily
participate in a drug abuse assistance or rehabilitation program approved for
such purposes by a Federal, State, or local health, law enforcement, or other
appropriate agency.
(7) Make a good faith effort to maintain a drug-free workplace
through implementation of subparagraphs (b)(1) through (b)(6) of this provision.
(c) By submission of its offer, the offeror, if an individual who is
making an offer of any dollar value, certifies and agrees that the offeror will
not engage in the unlawful manufacture, distribution, dispensing, possession, or
use of a controlled substance in the performance of the contract resulting from
this solicitation.
(d) Failure of the offeror to provide the certification required by
paragraph (b) or (c) of this provision, renders the offeror unqualified and
ineligible for award. (See FAR 9.104-1(g) and 19.602-1(a)(2)(i).)
(e) In addition to other remedies available to the Government, the
certification in paragraphs (b) and (c) of this provision concerns a matter
within the jurisdiction of an agency of the United States and the making of a
false, fictitious, or fraudulent certification may render the maker subject to
prosecution under Title 18, United States Code, Section 1001.
(End of provision)
K-24 FREIGHT CLASSIFICATION DESCRIPTION
52.247-53 (APR 1984)
Offerors are requested to indicate below the full Uniform Freight
Classification description applicable to the supplies, the same as offeror uses
for commercial shipment. This description should include the packing of the
commodity (box, crate, bundle, loose, setup, knocked down, compressed,
unwrapped, etc.), the container material (fiberboard, wooden, etc.), unusual
shipping dimensions, and other conditions affecting traffic descriptions. The
Government will use these descriptions as well as other information available to
determine the classification description most appropriate and advantageous to
the Government. Offeror understands that shipments on any F.O.B. origin contract
awarded, as a result of this solicitation, will be made in conformity with the
shipping classification description specified by the Government, which may be
different from the classification
<PAGE> 54
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 40 of 55
Name of Offeror or Contractor
description furnished below.
FOR FREIGHT CLASSIFICATION PURPOSES, OFFEROR DESCRIBES THIS COMMODITY AS:
Motor Vehicle
- ----------------------------------
- ----------------------------------
- ----------------------------------
(End of provision)
K-25 F.O.B. POINT
TACOM (SEP 1978)
Delivery on F.O.B. origin offers will be F.O.B. Carrier's equipment,
wharf, or freight station, at the Government's option, at or near:
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
(1) Contractor's Plant: Fairfield OH 45014 Butler
--------------------------------------------------------------
(City) (State) (ZIP) (County)
(2) Subcontractor's Plant: ___________________________________________________________
(City) (State) (ZIP) (County)
</TABLE>
***
K-26 IDENTIFICATION OF OFFERED PART NUMBER
TACOM (NOV 1982)
a. Offers in response to this solicitation are to be made on the
contract item as defined in the Schedule (Section B) and in the accompanying
Technical Data Package (TDP). Any offer made on an item that does not exactly
conform to the descriptions and specifications in the TDP will not be considered
for contract award. However, if the offeror manufactures or regularly sells the
contract items under a part number designation other than the one set forth in
Section B herein, that part number and revision or specification information
shall be set forth in the spaces provided below.
<TABLE>
<S> <C> <C> <C>
Contract Line Manufacturer's Drawing/Specification Date and
Item Number (CLIN) Part number Revision No.
------------------- ------------- ------------------- ------------
------------------- ------------- ------------------- ------------
------------------- ------------- ------------------- ------------
</TABLE>
b. By inserting the information requested above, offeror certifies that
the offered part number conforms in all respects to the specifications,
drawings, and requirements herein cited or incorporated by reference.
c. If no part number information is inserted above by offeror, it is
understood and agreed that offeror will supply only the part number called out
in the Schedule, and that such part has no other code or designation for purpose
of offeror's commercial sales.
***
<PAGE> 55
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 41 of 55
Name of Offeror or Contractor
K-27 CERTIFICATION OF GOVERNMENT-OWNED PROPERTY FOR POSSIBLE USE
TACOM (JAN 1991)
The offeror certifies that there: (X) is
( ) is not
Government-owned property in its plant(s), or in the plant(s) of any of its
prospective subcontractors, which, assuming authorization for its use,
(X) will
( ) will not
( ) may or may not (not finally determined as of the date of
this offer) by used in the performance of the contract resulting from this
solicitation.
NOTE: Offerors checking is AND will or may or may not above must notify
the Government representative listed in Block 7 of the SF 33 at least ten days
before the date when offers are due under the solicitation, so that the
solicitation can be amended to include the appropriate Government property
clause(s). If no such notification is given, authorization for the use of such
property in this contract may be denied.
K-28 UNIQUE PAYMENT SITE
TACOM (MAR 1984)
When offeror desires payment to be made at other than the address in
Block 15A of the Standard Form (SF) 33, indicate below:
(Payment Site:)
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
<PAGE> 56
CERTIFICATE OF PROCUREMENT INTEGRITY
(1) I, __________________ am the officer or employee responsible for the
preparation of this offer and hereby certify that, to the best of my knowledge
and belief, with the exception of any information described in this certificate,
I have no information concerning a violation or possible violation of subsection
27(a), (b), (d), or (f) of the Office of Federal Procurement Policy Act, as
amended (41 U.S.C. 423), (hereinafter referred to as "the Act"), as implemented
in the FAR, occurring during the conduct of this procurement Letter Contract
DAAE07-94-C-0406.
(2) As required by subsection 27(e)(1)(B) of the Act, I further certify
that, to the best of my knowledge and belief, each officer, employee, agent,
representative, and consultant of O'Gara-Hess & Eisenhardt Armoring Company who
has participated personally and substantially in the preparation or submission
of this offer has certified that he or she is familiar with and will comply
with, the requirements of subsection 27(a) of the Act, as implemented in the
FAR, and will report immediately to me any information concerning a violation or
possible violation of the Act, as implemented in the FAR, pertaining to this
procurement.
(3) Violations or possible violations: (Continue on plain bond paper if
necessary and label Certification of Procurement Integrity (Continuation Sheet).
ENTER NONE IF NONE EXIST)
NONE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(4) I agree that, if awarded a contract under this solicitation, the
certifications required by subsection 27(e)(1)(B) of the Act shall be maintained
in accordance with paragraph (f) of this provision.
/s/ Michael J. Lennon 5/9/96
- --------------------------------
Signature of the officer or employee responsible for the offer and date.
Michael J. Lennon
- --------------------------------
Typed name of the officer or employee responsible for the offer.
THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN AGENCY
OF THE UNITED STATES AND THE MAKING OF A FALSE, FICTITIOUS, OR FRAUDULENT
CERTIFICATION MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER TITLE 18, UNITED
STATES CODE, SECTION 1001.
<PAGE> 57
DEPARTMENT OF DEFENSE
CONTRACT SECURITY CLASSIFICATION SPECIFICATION (The requirements of the DoD
Industrial Security Manual apply to all security aspects of this effort)
1. CLEARANCE AND SAFEGUARDING
a. FACILITY CLEARANCE REQUIRED
SECRET
b. LEVEL OF SAFEGUARDING REQUIRED
SECRET
2. THIS SPECIFICATION IS FOR: (X and complete as applicable)
a. PRIME CONTRACT NUMBER
DAAE07-94-C-0406
b. SUBCONTRACT NUMBER
c. SOLICITATION OR OTHER NUMBER Due Date (YYMMDD)
3. THIS SPECIFICATION IS: (X and complete as applicable)
X a. ORIGINAL (Complete date in all cases) Date (YYMMDD)
940512
b. REVISED (Supercedes all previous specs) Revision No. Date (YYMMDD)
c. FINAL (Complete Item 5 in all cases) Date (YYMMDD)
4. IS THIS A FOLLOW-ON CONTRACT? X YES NO. If Yes, complete the following:
Classified material received or generated under DAAE07-93-C-0865
(Preceding Contract Number) is transferred to this follow-on contract.
5. IS THIS A FINAL DD FORM 254? X YES NO. If Yes, complete the following:
In response to the contractor's request dated 12/93, retention of the
identified classified material is authorized for the period of 12/95
6. CONTRACTOR (Include Commercial and Government Entity (CAGE) Code)
a. NAME, ADDRESS, AND ZIP CODE b. CAGE CODE c. COGNIZANT SECURITY OFFICE
(Name, Address, and Zip Code)
O'Gara-Hess & Eisenhardt DCMAO DAYTON
Armoring Company Gentile Stations DCMDM-GYACB-J8/
9113 LeSaint Drive 6W728 MR DI NOFA 1001 Hamilton Street
Fairfield, Ohio 45014 Dayton, Ohio 45444-5300
7. SUBCONTRACTOR
a. NAME, ADDRESS, AND ZIP CODE b. CAGE CODE c. COGNIZANT SECURITY OFFICE
(Name, Address, and Zip Code)
<PAGE> 58
8. ACTUAL PERFORMANCE
a. LOCATION b. CAGE CODE c. COGNIZANT SECURITY OFFICE (Name,
Address, and Zip Code)
O'Gara-Hess & Eisenhardt DCMAO DAYTON
Armoring Company Gentile Stations DCMDM-GYACB-J8/
9113 LeSaint Drive 6W728 MR DI NOFA 1001 Hamilton Street
Fairfield, Ohio 45014 Dayton, Ohio 45444-5300
9. GENERAL IDENTIFICATION OF THIS PROCUREMENT
BALLISTIC ARMOR FOR HMMWV
10. THIS CONTRACT WILL REQUIRE ACCESS TO: YES NO
a. COMMUNICATIONS SECURITY (COMSEC) INFORMATION X
b. RESTRICTED DATA X
c. CRITICAL NUCLEAR WEAPON DESIGN INFORMATION X
d. FORMERLY RESTRICTED DATA X
e. INTELLIGENCE INFORMATION
(1) Sensitive Compartmented Information (SCI) X
(2) Non-SCI X
f. SPECIAL ACCESS INFORMATION X
g. NATO INFORMATION X
h. FOREIGN GOVERNMENT INFORMATION X
i. LIMITED DISSEMINATION INFORMATION X
j. FOR OFFICIAL USE ONLY INFORMATION X
k. OTHER (Specify) X
11. IN PERFORMING THIS CONTRACT, THE CONTRACTOR WILL: YES NO
a. HAVE ACCESS TO CLASSIFIED INFORMATION ONLY AT X
ANOTHER CONTRACTOR'S FACILITY OR A GOVERNMENT
ACTIVITY
b. RECEIVE CLASSIFIED DOCUMENTS ONLY X
c. RECEIVE AND GENERATE CLASSIFIED MATERIAL X
d. FABRICATE, MODIFY, OR STORE CLASSIFIED HARDWARE X
e. PERFORM SERVICES ONLY X
f. HAVE ACCESS TO U.S. CLASSIFIED INFORMATION OUTSIDE X
THE U.S., PUERTO RICO, U.S. POSSESSIONS AND TRUST X
TERRITORIES X
g. BE AUTHORIZED TO USE THE SERVICES OF DEFENSE TECHNICAL X
INFORMATION CENTER (DTIC) OR OTHER SECONDARY X
DISTRIBUTION CENTER X
h. REQUIRE A COMSEC ACCOUNT X
i. HAVE TEMPEST REQUIREMENTS X
j. HAVE OPERATIONS SECURITY (OPSEC) REQUIREMENTS X
k. BE AUTHORIZED TO USE THE DEFENSE COURIER SERVICE X
l. OTHER (Specify) X
EXHIBIT A
12. PUBLIC RELEASE. Any information (classified or unclassified) pertaining to
this contract shall not be released for public examination except as provided by
the Industrial Security Manual or unless it has been approved for public release
by appropriate U.S. Government authority. Proposed public releases shall be
submitted for approval prior to release
Direct X Through (Specify):
----- -----
<PAGE> 59
Program Executive Office, Tactical Wheeled Vehicles
Project Manager, Light Tactical Vehicles
Warren, MI 48397-5000
to the Directorate for Freedom of Information and Security Review, Office of the
Assistant Secretary of Defense (Public Affairs)* for review.
*In the case of non-DoD User Agencies, requests for disclosure shall be
submitted to that agency.
13. SECURITY GUIDANCE. The security classification guidance needed for this
classified effort is identified below. If any difficulty is encountered in
applying this guidance or if any other contributing factor indicates a need for
changes in this guidance, the contractor is authorized and encouraged to provide
recommended changes; to challenge the guidance or the classification assigned to
any information or material furnished or generated under this contract; and to
submit any questions for interpretation of this guidance to the official
identified below. Pending final decision, the information involved shall be
handled and protected at the highest level of classification assigned or
recommended. (Fill in as appropriate for the classified effort. Attach, or
forward under separate correspondence, any documents/guides/extracts referenced
herein. Add additional pages as needed to provide complete guidance.)
Follow normal security procedures.
14. ADDITIONAL SECURITY REQUIREMENTS. Requirements, in addition to ISM YES X NO
requirements, are established for this contract. (If Yes, identify the pertinent
contractual clauses in the contract document itself, or provide an appropriate
statement which identifies the additional requirements. Provide a copy of the
requirements to the cognizant security office. Use Item 13 if additional space
is needed.)
15. INSPECTIONS. Elements of this contract are outside the inspection
responsibility YES X NO of the cognizant security office (If Yes, explain and
identify specific areas or elements carved out and the activity responsible for
inspections. Use Item 13 if additional space is needed.)
16. CERTIFICATION AND SIGNATURE. Security requirements stated herein are
complete and adequate for safeguarding the classified information to be released
or generated under this classified effort. All questions shall be referred to
the official named below.
a. TYPED NAME OF CERTIFYING OFFICIAL b. TITLE c. TELEPHONE (Include Area
Code)
SHARON C. THOMAS CONTRACTING OFFICER (810) 574-7251
d. ADDRESS (Include Zip Code)
U.S. ARMY TANK-AUTOMOTIVE COMMAND
ATTN: AMSTA-IWCA
WARREN, MI 48397-5000
e. SIGNATURE
/s/ Sharon C. Thomas
17. REQUIRED DISTRIBUTION
X a. CONTRACTOR
b. SUBCONTRACTOR
X c. COGNIZANT SECURITY OFFICE FOR PRIME AND SUBCONTRACTOR
d. U.S. ACTIVITY RESPONSIBLE FOR OVERSEAS SECURITY ADMINISTRATION
X e. ADMINISTRATIVE CONTRACTING OFFICER
f. OTHERS AS NECESSARY
<PAGE> 60
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 4
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00001
3. EFFECTIVE DATE
31 OCT 1994
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
JEAN SCOTT /810-574-7187
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON DPAS: DOA4
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 61
(a) By completing Items 8 and 15, and returning copies of the amendments; (b)
By acknowledging receipt of this amendment on each copy of the offer submitted;
or (c) By separate letter or telegram which includes a reference to the
solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
ACRN AA: NET INCREASE $1,963,222.00
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: THE CHANGES SET FORTH
IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X MUTUAL AGREEMENT OF THE PARTIES
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this
document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M.J. Lennon
V.P. Sales Mrkt & Programs
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
10/26/94
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
SHARON C. THOMAS
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Sharon C. Thomas
(Signature of Contracting Officer)
16C. DATE SIGNED
31 OCT 1994
<PAGE> 62
DAAE07-94-C-0406
Modification P00001
PROGRAM: Up Armor High Mobility Multipurpose Wheeled Vehicle
(HMMWV) XM1109
CONTRACT: DAAE07-94-C-0406
MODIFICATION: P00001
PREVIOUS CONTRACT AMOUNT: $4,985,000.00
AMOUNT OF THIS ACTION: $1,965,151.00
TOTAL CONTRACT AMOUNT: $6,950,151.00
1. This is a bilateral modification to incorporate corrections, clarifications,
revisions, increase funding level and revise the delivery schedule. CLIN 0001AA
was previously funded at 50% of the Not-To-Exceed Ceiling price. The funding is
increased to 75% of the qualifying proposal received, resulting in an actual
funding level of 69.7%.
2. The Government and the Contractor agree to incorporate the corrections,
clarifications and revisions shown below.
a. SECTION B - THE SCHEDULE
The Contractor may bill for completed vehicles at the billing price of
$69,501.51.
b. SECTION C - DESCRIPTION/SPECIFICATIONS/WORK STATEMENT
(1) All references to the M1109 in C.3 have been changed to
XM1109.
(2) C.3.5 GOVERNMENT FURNISHED EQUIPMENT PARTS LIST is revised,
including corrected part numbers and revised quantities of some parts. The
nomenclature of some parts is revised to reflect the source nomenclature.
c. SECTION E - INSPECTION AND ACCEPTANCE
(1) ADDITIONAL REQUIREMENT FOR CERTIFICATE OF CONFORMANCE, E-6,
is hereby deleted from the Contract.
d. SECTION F - DELIVERY SCHEDULE
(1) F.5 REQUIRED DELIVERY SCHEDULE is revised for the convenience
of the Government at no additional cost.
2
<PAGE> 63
DAAE07-94-C-0406
Modification P00001
(2) A quantity of 12 vehicles shall be maintained shipped in
place at the Contractor's facility as reserve pool ready to be transported, on a
moments' notice, to support any future contingency mission which may arise.
Shipments shall be made on a First In, First Out basis. After last shipment
under the Contract, less the reserve pool, the Government will provide
instructions for these 12 vehicles.
e. SECTION G - CONTRACT ADMINISTRATION DATA
(1) Accounting and Appropriation Data is revised to reflect the
increase in funds.
(2) G-1 CONTRACTING OFFICER'S REPRESENTATIVE is deleted from the
Contract.
(3) G-2 COMMUNICATIONS is deleted from the Contract.
f. SECTION H - SPECIAL CONTRACT REQUIREMENTS
(1) MATERIAL MANAGEMENT AND ACCOUNTING SYSTEM (DFARS
252.242-7004) (DEC 1991) (H 13.) is deleted from the Contract.
(2) H-6 CONTRACT DEFINITIZATION is revised to reflect more
realistic dates.
g. SECTION I - CONTRACT CLAUSES
I 31. DEFENSE PRIORITY AND ALLOCATION REQUIREMENTS is identified
as DOA4 for this Contract.
h. SECTION J - LIST OF ATTACHMENTS
(1) A corrected DD254 DEPARTMENT OF DEFENSE CONTRACT SECURITY
CLASSIFICATION SPECIFICATION, EXHIBIT A, is incorporated into the Contract.
3. As a result of the above agreements, the following page substitutions are
made to the Contract:
<TABLE>
<CAPTION>
SECTION DELETE ADD DESCRIPTION
<S> <C> <C> <C>
B 1-2 1-2 SUPPLIES/SERVICES
C 5-7 5-7 C.3 STATEMENT OF WORK - XM1109 UP ARMORED HEAVY HMMWV
E 12 12 E-6 ADDITIONAL REQUIREMENT
</TABLE>
3
<PAGE> 64
DAAE07-94-C-0406
Modification P00001
<TABLE>
FOR CERTIFICATE OF CONFORMANCE
<S> <C> <C> <C>
F 17 17 REQUIRED DELIVERY SCHEDULE
G 18 18 CONTRACT ADMINISTRATION DATA
H 19-20 19-20 SPECIAL CONTRACT REQUIREMENTS
I 27 27 CONTRACT CLAUSES
J 37-37a 37-37a EXHIBIT A, DD254 DEPARTMENT OF DEFENSE CONTRACT SECURITY CLASSIFICATION
SPECIFICATION
</TABLE>
4. Subject to definitization, the Contractor releases the Government from any
further equitable adjustments under this Contract for any claims related to this
Modification P00001.
5. The Government's total Limitation of Liability for the Contract is
$6,950,151.00.
6. All other terms and conditions, except as previously changed, remain the
same.
4
<PAGE> 65
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00001 1 of 37
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<C> <C> <C> <C> <C> <C>
0001AA PRODUCTION QUANTITY 100 EA $ N/A $ 6,950,151.00
----------- --------------
</TABLE>
PRON: JZ22P086JZ ACRN: AA
AMS CD: 51103446
THE FOLLOWING SECTIONS, B THROUGH F,
BRIEFLY STATE OUR REQUIREMENTS.
MORE DETAILED INFORMATION ABOUT
EACH SECTION MAY FOLLOW THESE CLIN
PAGES AS "SUPPLEMENTAL INFORMATION".
(End of narrative A001)
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2310-01-389-7558
NOUN: UP ARMOR
FSCM: 00000
PART NR: 9999999999
SECURITY CLASS: UNCLASSIFIED
THE CONTRACTOR SHALL PROVIDE ARMOR TO
GFM M1097 VEHICLES IN ACCORDANCE
WITH SECTION C.
THE NOT-TO-EXCEED CEILING PRICE IS
* $9,970,000.00. FUNDED AT 69.7%.
(End of narrative B001)
SECTION D - Packaging and Marking
BEST COMMERCIAL
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW4096S101 Y00000 M 3
PROJ CD BRK BLK PT
1J8
DEL REL CD QUANTITY DEL DATE
001 75 94NOV15
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
<PAGE> 66
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00001 1 of 37
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
ITEMS REQUIRED UNDER THIS
REQUISITION.
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
002 W80SBG4270L001 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 10 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
003 W80SBG4272L001 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 5 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
004 W80SBG4272L002 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 10 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
<PAGE> 67
CONTINUATION SHEET DAAE07-94-C-0406 Page 5 of 37
Name of Offeror or Contractor O'GARA-HESS & EISENHARDT ARMORING COMPANY
C.3 STATEMENT OF WORK - XM1109 UP ARMORED HEAVY HMMWV *
-------------------------------------------------
C.3.1 The Contractor shall provide 100 each Up-Armored Heavy High Mobility
Multipurpose Wheeled Vehicles (UA-HHV) for the * U.S. Army. The UA-HVV shall be
comprised of the M1097A1 vehicle with an armor package. The vehicle model will
be designated as the XM1109 and will be referred to by that model number
hereafter. The M1097A1 base vehicles shall be provided by the Government* as
Government Furnished Material (GFM) to the Contractor at least sixty (60) days
prior to the required delivery of completed XM1109s. *
C.3.2 The Government shall furnish (GFE) the parts listed in paragraph C.3.5
required to fabricate the XM1109. Complete sets* of these parts shall be
delivered to the Contractor at least sixty (60) days prior to the delivery of
the completed XM1109s.*
C.3.3 TECHNICAL REQUIREMENTS
C.3.3.1 The Contractor shall use a base vehicle the M1097A1 HMMWV, configuring
the M1097A1 base vehicle with the level of armor protection described in the
classified Enhanced Armor HMMWV Performance Specification dated 31 January 1994,
O'Gara-Hess & Eisenhardt Armoring Company's drawing Number OAS4668001, to
produce the new XM1109 vehicle. The classified performance * specification is
under separate cover from this Statement of Work.
C.3.3.1.1 The Contractor shall weld in accordance with commercial procedures.
C.3.3.1.2 Reserved. *
C.3.3.2 The performance of the XM1109 vehicles shall not create an unsafe
condition for the crew by application of the armor * package beyond that of a
standard M1097A1 at gross vehicle weight (GVW) of 10,000 pounds. Any performance
or reliability degradation of the XM1109 vehicle which can be attributed solely
to the addition of the armor package shall be acceptable to the * Government.
C.3.3.3 The weight of the total armor package and turret assembly, including the
weight of air conditioning, shall not exceed 3,200 pounds.
C.3.3.4 The XM1109 vehicle shall be painted with a three-color camouflage
pattern in accordance with O'Gara-Hess & Eisenhardt * Armoring Company drawing
No. 4668002, Pattern, Camouflage Paint, EA-HMMWV.
C.3.3.5 The 4-man crew compartment shall end just behind the rear of the rear
seats. There shall be a full height sliding divider separating the crew
compartment from the environment. This divider shall have a positive latch in
both the open and closed positions. This divider shall provide the level of
protection as described in the classified Enhanced Armor Performance
Specification dated 31 January 1994.
C.3.3.6 Each XM1109 shall also be furnished with a rigid, removable
environmental cover, O'Gara-Hess & Eisenhardt Armoring * Company P/N
4668912-001. This environmental cover shall protect the area from the rear of
the crew compartment divider to the rear of the vehicle. The cover shall not
have ballistic protection and shall not exceed the overall vehicle width or
height. The environmental cover shall have a positive lock on the rear, with a
means of opening from the crew compartment. The environmental cover shall be
mounted to the back ballistic door in such a manner so as to prevent water from
leaking into the crew compartment.
C.3.3.7 In the event that modifications must be made to the XM1109, the
contractor shall notify the PCO. Any modifications * shall be reviewed with
final approval by the Procuring Contracting Officer prior to implementation.
* Changed by Modification P00001.
<PAGE> 68
CONTINUATION SHEET DAAE07-94-C-0406 Page 6 of 37
Name of Offeror or Contractor O'GARA-HESS & EISENHARDT ARMORING COMPANY
C.3.4 ADDITIONAL REQUIREMENTS
C.3.4.1 Air Conditioning: The Contractor shall provide and install OH&E P/N
4668201-000, air conditioner assembly, on each XM1109 Up-Armor vehicle. *
C.3.4.2 Operable Side Glass: The Contractor shall provide operable ballistic
glass in all of the XM1109 doors. The glass * shall allow access when open to
allow an M16 rifle to be fired. The level of protection shall be as described in
the classified performance specification dated 31 January 1994.
C.3.4.3 RESERVED.
C.3.4.4 Suspension: The Contractor shall replace all Front suspension springs,
AM General P/N 12338316-1, with AM General P/N 12338316-2 suspension springs.
C.3.4.5 Reserved.
C.3.5 Government Furnished Equipment Parts List *
<TABLE>
<CAPTION>
Qty/Veh Part Number Description
- ------- ----------- -----------
<S> <C> <C> <C>
12 12338083 Resilient Bushing Assembly *
2 05743208 Paint Mask, Tail Light *
2 05743209 Paint Mask, Front Turn Signal *
2 05743205 Paint Mask, Headlight *
4 05743206 Paint Mask, Side Marker *
6 05743207 Paint Mask, Reflector *
2 05743509 Gasket, Windshield *
2 12338316-2 Springs
2 12339385 Front Door Striker
2 12339386 Rear Door Striker
2 12342624 DECAL, TP, 36PSI *
2 05590178 DECAL, STAR
6 12339057 DECAL, SLING
4 12339059 DECAL, TIE DOWN
4 12339060 DECAL, 24-VOLT
2 12340157 Bracket, Rifle Mount *
2 12340142 Support Rifle Mounting *
2 12340051 Panel, Rear Seat Back *
20 12339560 Shim, Turret *
1 MS 51943-35 Nut, Self-Locking
2 12339381 Spacer, Rotary Lock *
4 12339571 Mount, Roof *
2 12339729 Bolt *
14 G-02436162 Washer, Flat *
20 G-09414920 Washer, Flat *
</TABLE>
* Changed by Modification PZ0001.
<PAGE> 69
CONTINUATION SHEET DAAE07-94-C-0406 Page 7 of 37
Name of Offeror or Contractor O'GARA-HESS & EISENHARDT ARMORING COMPANY
<TABLE>
<S> <C> <C> <C>
6 05592927 Washer, Lock
8 05593241 Washer, Flat
8 G-02436163 Washer, Flat *
4 12339664 Latch, Tension *
4 G-09415477 Screw *
8 G-09419454 Locknut *
4 G-09422534 Washer, Flat *
2 12338667 Bracket, Angle, Rear Seat *
2 12338693 Support, Rear Seat Base *
2 12338833 Bracket, Mounting, RR *
1 12339019 Insulation
2 12339020 Insulation
1 12339023 Insulation
1 12339039 Insulation
1 12339087 Decal, Slave Receptacle
1 12339513 Frame Window *
2 12342625 DECAL, TP, 42PSI
8 12339559 Stud, Plain *
16 12339561 Plate, Snubber *
16 12339571 Mount, Roof *
2 12340116 Clevis, Front Mounting *
1 12340881 Gun Mount, Upper Front
2 12342067 Seat Cushion
2 12342068 Seat Cushion
2 12342912 Rear Support
8 12338186-52 Spacer *
1 12339047-1 Top, Assembly
1 12339047-2 Top, Assembly
1 12340813-1 Rear Seat Base
1 12340813-2 Rear Seat Base
2 12340039-1 Lock, Rotary, LH *
2 12340039-2 Lock, Rotary, RH *
2 12342377-2 Safety Belt - Rear
1 12446706 Extinguisher Plate
4 12343055 Spacer *
1 12340910 DECALS (Fire Extinguisher)
8 12339563 Plate Assembly, Roof Mount *
4 12340058 Washer, Hardened *
2 12342784 Bracket Assembly, Rifle Mount *
1 12343054 Decal, Seat Adjustment *
1 12340164 Bracket, Gun Mount *
2 12340259-3 Bolt *
2 12340259-6 Bolt *
</TABLE>
* Changed by Modification P00001.
<PAGE> 70
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 12 of 37
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
(2) Contamination of the surface between coatings.
(3) Excessive paint film thickness in a single coating
application.
(4) Application of a coating over a previous coating which has
not been adequately cured.
It is strongly recommended that the Contractor implement rigid in-process
controls in conjunction with the best industrial painting practices to ensure
that the performance requirements specified in this clause are met.
***
*E-6 ADDITIONAL REQUIREMENT FOR CERTIFICATE OF CONFORMANCE
TACOM (MAR 1984) DELETED
E-7 SUPPLEMENTAL STATEMENT OF WORK: FASTENER QUALITY ASSURANCE REQUIREMENTS
TACOM (SEP 1992)
a. This clause establishes quality assurance requirements for all
threaded steel fasteners of Grade 5 and higher (as defined by SAE-J429) and
metric fasteners with strength designations of 8.8 and higher (as defined by
J-1199) that are to be used in items procured from either a Government or
contractor owned Technical Data Package. It applies to fasteners received (i)
from fastener manufacturers, (ii) from distributors, or (iii) as part of a
subassembly for use in both new and repair items.
b. The contractor shall implement and maintain a fastener quality
assurance program which:
(i) Assures the homogeneity of fastener lots. A homogeneous
fastener lot is defined as one in which all of the fasteners are of the same
size, type, grade, plating and manufacturer.
(ii) Ensures that individual fasteners are identified by a
fastener manufacturer symbol (logo). The manufacturer's symbol (logo) shall be
listed in MIL-HDBK 57, dated 29 Sep 89.
(iii) Provides objective quality evidence that the fasteners to
be furnished under this contract meet all technical requirements.
c. To determine the conformance of the fastener lots with the
homogeneity and identification requirements, a sample from each lot of fasteners
will be taken in accordance with MIL-STD-105, dated 10 May 89, Inspection Level
II, AQL 1.0, or equivalent, except that lots shall be accepted with zero (0)
defects (C=0) and rejected with one (1) or more defects. Each sample shall be
examined for the following:
(i) The grade and manufacturer symbol (logo) for each bolt in the
lot sample shall be the same.
(ii) Threads shall be examined to assure conformity to
requirements.
(iii) Plating (when specified) shall be examined to ensure
complete coverage.
d. Objective quality evidence that fasteners meet all technical
requirements shall consist of either:
*Clause deleted by Modification P00001
<PAGE> 71
DAAE07-94-C-0406
F.5 REQUIRED DELIVERY SCHEDULE Page 17 of 37
MONTHS AFTER AWARD
<TABLE>
<CAPTION>
CLIN SERVICE MODEL NOMEN QTY (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12)
MAY 94 JUN 94 JUL 94 AUG 94 SEP 94 OCT 94 NOV 94 DEC 94 JAN 95 FEB 95 MAR 95 APR 95
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
0001AA ARMY XM1109 UP
ARMOR
HMMWV 100 0 0 0 0 5 25 20 20 15 15 *
0
0
0
0
0
0
0
0
0
0
CUMULATIVE PAGE TOTAL: 100 0 0 0 0 5 25 20 20 15 15 0 0 *
</TABLE>
* REMARKS: Page changed by Modification P00001.
<PAGE> 72
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00001 4 of 4
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
- --------- ------ ---- ---------- ------------ ------------------ ----------
<S> <C> <C> <C> <C> <C> <C> <C>
0001AA JZ22P086JZ AA 1 $ 4,985,000.00 $ 1,965,151.00 $ 6,950,151.00 **
51103446
------------------
NET CHANGE $ 1,965,151.00 **
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
- ------------- ------------------------- ---------- -----------------
<S> <C> <C> <C> <C>
AA 21 22035 25J5J01P5110 25CZ S2011322P086 W56HZV $ 1,965,151.00 **
-----------------
NET CHANGE $ 1,965,151.00 **
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
OF AWARD AMOUNT OBLIGATED AMOUNT
- --------------------- --------------- ----------------- ----------------
<S> <C> <C> <C> <C>
$ 4,985,000.00 $ 1,965,151.00 $ 6,950,151.00 **
</TABLE>
G-1 CONTRACTING OFFICER'S REPRESENTATIVE
252.201-7000 (DEC 1991) DELETED
G-2 COMMUNICATIONS
TACOM (FEB 1985) DELETED
*Deleted by Modification P00001
**Revised by Modification P00001
<PAGE> 73
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00001 19 of 37
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION H - SPECIAL CONTRACT REQUIREMENTS
<TABLE>
<S> <C> <C>
1. STATUTORY PROHIBITIONS ON COMPENSATION TO FORMER
DEPARTMENT OF DEFENSE EMPLOYEES................. 252.203-7000.......................................... (DEC 1991)
2. DISPLAY OF DOD HOTLINE POSTER................... 252.203-7002.......................................... (DEC 1991)
3. PROHIBITION AGAINST RETALIATORY PERSONNEL
ACTIONS......................................... 252.203-7003.......................................... (APR 1992)
4. DISCLOSURE OF INFORMATION....................... 252.204-7000.......................................... (DEC 1991)
5. PROVISION OF INFORMATION TO COOPERATIVE
AGREEMENT HOLDERS............................... 252.205-7000.......................................... (DEC 1991)
6. BUY AMERICAN ACT AND BALANCE OF PAYMENTS PROGRAM 252.225-7001.......................................... (JAN 1994)
7. QUALIFYING COUNTRY SOURCES AS SUBCONTRACTORS.... 252.225-7002.......................................... (DEC 1991)
8. DUTY-FREE-ENTRY--QUALIFYING COUNTRY END PRODUCTS
AND SUPPLIES.................................... 252.225-7009.......................................... (DEC 1991)
9. DUTY-FREE ENTRY--ADDITIONAL PROVISIONS.......... 252.225-7010.......................................... (DEC 1991)
10. SUPPLEMENTAL COST PRINCIPLES.................... 252.231-7000.......................................... (DEC 1991)
11. DOD PROGRESS PAYMENT RATES...................... 252.232-7004.......................................... (NOV 1993)
12. CERTIFICATION OF INDIRECT COSTS................. 252.242-7001.......................................... (DEC 1991)
*13. DELETED
14. MATERIAL INSPECTION AND RECEIVING REPORT........ 252.246-7000.......................................... (DEC 1991)
15. RESTRICTIONS ON SUBCONTRACTOR SALES TO THE
GOVERNMENT...................................... 52.203-6............................................ (JUL 1985)
16. DUTY-FREE ENTRY................................. 52.225-10........................................... (APR 1984)
17. PROGRESS PAYMENTS............................... 52.232-16........................................... (JUL 1991)
18. PROGRESS PAYMENTS (ALTERNATE I)................. 52.232-16........................................... (JUL 1991)
19. PROGRESS PAYMENTS (ALTERNATE II (APR 1984))..... 52.232-16........................................... (JUL 1991)
</TABLE>
* Fill-in for No. 19: $5,560,120.80
H-2 PRICE CEILING
252.217-7027 (DEC 1991)
The definitive contract resulting from this undefinitized action shall
not exceed $9,970,000.00
(end of clause)
H-3 SUPPLIES TO BE ACCORDED DUTY-FREE ENTRY
252.225-7008 (DEC 1991)
In accordance with paragraph (a) of the DUTY-FREE ENTRY clause and/or
paragraph (b) of the DUTY-FREE ENTRY--QUALIFYING COUNTRY END PRODUCTS AND
SUPPLIES clause of this contract, the following supplies are accorded duty-free
entry:
-1-
-2-
-3-
(End of clause)
H-4 EXECUTION AND COMMENCEMENT OF WORK
52.216-23 (APR 1984)
* Changed by Modification P00001.
<PAGE> 74
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00001 20 of 37
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
H--5 LIMITATION OF GOVERNMENT LIABILITY
52.216-24 (APR 1984)
(a) In performing this contract, the Contractor is not authorized to
make expenditures or incur obligations exceeding * $6,950,151.00 dollars.
* (b) The maximum amount for which the Government shall be liable if this
contract is terminated is $6,950,151.00 dollars.
(End of clause)
H--6 CONTRACT DEFINITIZATION
52.216-25 (APR 1984)
(a) A Firm Fixed Price definitive contract is contemplated. The
Contractor agrees to begin promptly negotiating with the Contracting Officer the
terms of a definitive contract that will include (1) all clauses required by the
Federal Acquisition Regulation (FAR) on the date of execution of the letter
contract, (2) all clauses required by law on the date of execution of the
definitive contract, and (3) any other mutually agreeable clauses, terms and
conditions. The Contractor agrees to submit a FFP proposal and cost or pricing
data supporting its proposal.
(b) The schedule for definitizing this contract is:
Contractor submission of proposal 20 May 94
Submission of make-or-buy plan N/A
Submission of subcontracting plan N/A
* Commencement of negotiations 14 Nov 94
* Definitization of contract 30 Nov 94
(c) If agreement on a definitive contract to supersede this letter
contract is not reached by the target date in paragraph (b) above, or within any
extension of it granted by the Contracting Officer, the Contracting Officer may,
with the approval of the head of the contracting activity, determine a
reasonable price or fee in accordance with Subpart 15.8 and Part 31 of the FAR,
subject to Contractor appeal as provided in the DISPUTES clause. In any event,
the Contractor shall proceed with completion of the contract, subject only to
the LIMITATION OF GOVERNMENT LIABILITY clause.
(1) After the Contracting Officer's determination of price or
fee, the contract shall be governed by --
(i) All clauses required by the FAR on the date of
execution of this letter contract for either fixed-price or cost--reimbursement
contracts, as determined by the Contracting Officer under this paragraph (c);
(ii) All clauses required by law as of the date of the
Contracting Officer's determination; and
(iii) Any other clauses, terms, and conditions mutually
agreed upon.
(2) To the extent consistent with subparagraph (c)(1) above, all
clauses, terms, and conditions included in this letter contract shall continue
in effect, except those that by their nature apply only to a letter contract.
(End of Clause)
*Revised by Modification P00001.
<PAGE> 75
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 27 of 37
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
PART II - CONTRACT CLAUSES
SECTION I - CONTRACT CLAUSES
This contract incorporates one or more clauses by reference, with the same force
and effect as if they were given in full text. Upon request, the Contracting
Officer will make their full text available.
<TABLE>
<CAPTION>
CLAUSE TITLE REFERENCE DATE
<S> <C> <C> <C>
1. SPECIAL PROHIBITION ON EMPLOYMENT.......................... 252.203-7001.............. (APR 1993)
2. CONTROL OF GOVERNMENT PERSONNEL
WORK PRODUCT............................................... 252.204-7003.............. (APR 1992)
3. ACQUISITION FROM SUBCONTRACTORS
SUBJECT TO ON-SITE INSPECTION
UNDER THE INTERMEDIATE-RANGE
NUCLEAR FORCES (INF) TREATY................................ 252.209-7000.............. (DEC 1991)
4. PRICING ADJUSTMENTS........................................ 252.215-7000.............. (DEC 1991)
5. AVAILABILITY OF CONTRACTOR RECORDS......................... 252.215-7001.............. (DEC 1991)
6. COST ESTIMATING SYSTEM
REQUIREMENTS............................................... 252.215-7002.............. (DEC 1991)
7. SMALL AND SMALL DISADVANTAGED
SUBCONTRACTING PLAN - DOD
CONTRACTS.................................................. 252.219-7003.............. (APR 1993)
8. DRUG-FREE WORK FORCE (PER AL 92-7)......................... 252.223-7004.............. (SEP 1988)
9. PREFERENCE FOR CERTAIN
DOMESTIC COMMODITIES....................................... 252.225-7012.............. (DEC 1991)
10. PREFERENCE FOR DOMESTIC
SPECIALTY METALS........................................... 252.225-7014.............. (DEC 1991)
11. RESTRICTION ON ACQUISITION
OF ANTIFRICTION BEARINGS................................... 252.225-7016.............. (APR 1993)
12. REPORTING OF CONTRACT PERFORMANCE
OUTSIDE THE UNITED STATES.................................. 252.225-7026.............. (APR 1993)
13. SECONDARY ARAB BOYCOTT OF
ISRAEL..................................................... 252.225-7031.............. (JUN 1992)
14. DEFERRED ORDERING OF TECHNICAL
DATA OR COMPUTER SOFTWARE ................................. 252.227-7027.............. (APR 1988)
15. DATA REQUIREMENTS.......................................... 252.227-7031.............. (OCT 1988)
16. REDUCTION OR SUSPENSION OF
CONTRACT PAYMENTS UPON FINDING
OF FRAUD................................................... 252.232-7006.............. (AUG 1992)
17. CERTIFICATION OF CLAIMS AND
REQUESTS FOR ADJUSTMENT OR
RELIEF..................................................... 252.233-7000.............. (APR 1993)
18. POSTAWARD CONFERENCE....................................... 252.242-7000.............. (DEC 1991)
19. APPLICATION FOR U.S. GOVERNMENT
SHIPPING DOCUMENTATION/
INSTRUCTIONS............................................... 252.242-7003.............. (DEC 1991)
20. PRICING OF ADJUSTMENTS..................................... 252.243-7001.............. (APR 1984)
21. PRICING OF CONTRACT MODIFICATIONS.......................... 252.243-7001.............. (DEC 1991)
22. DEFINITIONS................................................ 52.202-1................ (SEP 1991)
23. OFFICIALS NOT TO BENEFIT................................... 52.203-1................ (APR 1984)
24. GRATUITIES................................................. 52.203-3................ (APR 1984)
25. COVENANT AGAINST CONTINGENT FEES........................... 52.203-5................ (APR 1984)
26. ANTI-KICKBACK PROCEDURES................................... 52.203-7................ (OCT 1988)
27. PRICE OR FEE ADJUSTMENT FOR ILLEGAL
OR IMPROPER ACTIVITY....................................... 52.203-10............... (SEP 1990)
28. LIMITATION ON PAYMENTS TO
INFLUENCE CERTAIN FEDERAL
TRANSACTIONS............................................... 52.203-12............... (JAN 1990)
29. SECURITY REQUIREMENTS...................................... 52.204-2................ (APR 1984)
30. PROTECTING THE GOVERNMENT'S
INTERESTS WHEN SUBCONTRACTING
WITH CONTRACTORS DEBARRED,
SUSPENDED, OR PROPOSED
FOR DEBARMENT.............................................. 52.209-6................ (NOV 1992)
</TABLE>
<PAGE> 76
<TABLE>
<S> <C> <C> <C>
* 31. DEFENSE PRIORITY AND ALLOCATION
REQUIREMENTS............................................... 52.212-8................ (SEP 1990) : D0A4
32. EXAMINATION OF RECORDS BY
COMPTROLLER GENERAL........................................ 52.215-1................ (FEB 1993)
33. AUDIT--NEGOTIATION ........................................ 52.215-2................ (FEB 1993)
34. PRICE REDUCTION FOR DEFECTIVE
COST OR PRICING DATA ...................................... 52.215-22............... (JAN 1991)
</TABLE>
* Changed by Modification P00001.
<PAGE> 77
DEPARTMENT OF DEFENSE
CONTRACT SECURITY CLASSIFICATION SPECIFICATION (The requirements of the DoD
Industrial Security Manual apply to all security aspects of this effort)
1. CLEARANCE AND SAFEGUARDING
a. FACILITY CLEARANCE REQUIRED
SECRET
b. LEVEL OF SAFEGUARDING REQUIRED
SECRET
2. THIS SPECIFICATION IS FOR: (X and complete as applicable)
a. PRIME CONTRACT NUMBER
DAAE07-94-C-0406
b. SUBCONTRACT NUMBER
c. SOLICITATION OR OTHER NUMBER Due Date (YYMMDD)
3. THIS SPECIFICATION IS: (X and complete as applicable)
a. ORIGINAL (Complete date in all cases) Date (YYMMDD)
X b. REVISED (Supercedes all previous specs) Revision No.Date (YYMMDD)
1 941024
c. FINAL (Complete Item 5 in all cases) Date (YYMMDD)
4. IS THIS A FOLLOW-ON CONTRACT? X YES NO. If Yes, complete the following:
Classified material received or generated under DAAE07-93-C-0865
(Preceding Contract Number) is transferred to this follow-on contract.
5. IS THIS A FINAL DD FORM 254? YES X NO. If Yes, complete the following:
In response to the contractor's request dated , retention of
the identified classified material is authorized for the period of
6. CONTRACTOR (Include Commercial and Government Entity (CAGE) Code)
<TABLE>
<S> <C> <C> <C>
a. NAME, ADDRESS, AND ZIP CODE b. CAGE CODE c. COGNIZANT SECURITY OFFICE (Name,
Address, and Zip Code)
O'Gara-Hess & Eisenhardt Defense Investigative Service (DIS)
Armoring Company 6W728 Industrial Secirity Field Office
9113 LeSaint Drive Federal Office Building, Room 9110
Fairfield, Ohio 45014 550 Main Street
Cincinnati, Ohio 45202-3252
7. SUBCONTRACTOR
a. NAME, ADDRESS, AND ZIP CODE b. CAGE CODE c. COGNIZANT SECURITY OFFICE (Name,
Address, and Zip Code)
None
8. ACTUAL PERFORMANCE
a. LOCATION b. CAGE CODE c. COGNIZANT SECURITY OFFICE (Name,
Address, and Zip Code)
</TABLE>
See Block 6.a. above.
9. GENERAL IDENTIFICATION OF THIS PROCUREMENT
<PAGE> 78
BALLISTIC ARMOR FOR HMMWV
10. THIS CONTRACT WILL REQUIRE ACCESS TO: YES NO
a. COMMUNICATIONS SECURITY (COMSEC) INFORMATION X
b. RESTRICTED DATA X
c. CRITICAL NUCLEAR WEAPON DESIGN INFORMATION X
d. FORMERLY RESTRICTED DATA X
e. INTELLIGENCE INFORMATION
(1) Sensitive Compartmented Information (SCI) X
(2) Non-SCI X
f. SPECIAL ACCESS INFORMATION X
g. NATO INFORMATION X
h. FOREIGN GOVERNMENT INFORMATION X
i. LIMITED DISSEMINATION INFORMATION X
j. FOR OFFICIAL USE ONLY INFORMATION X
k. OTHER (Specify) X
11. IN PERFORMING THIS CONTRACT, THE CONTRACTOR WILL: YES NO
a. HAVE ACCESS TO CLASSIFIED INFORMATION ONLY AT X
ANOTHER CONTRACTOR'S FACILITY OR A GOVERNMENT X
ACTIVITY X
b. RECEIVE CLASSIFIED DOCUMENTS ONLY X
c. RECEIVE AND GENERATE CLASSIFIED MATERIAL X
d. FABRICATE, MODIFY, OR STORE CLASSIFIED HARDWARE X
e. PERFORM SERVICES ONLY X
f. HAVE ACCESS TO U.S. CLASSIFIED INFORMATION OUTSIDE X
THE U.S., PUERTO RICO, U.S. POSSESSIONS AND TRUST X
TERRITORIES X
g. BE AUTHORIZED TO USE THE SERVICES OF DEFENSE TECHNICAL X
INFORMATION CENTER (DTIC) OR OTHER SECONDARY X
DISTRIBUTION CENTER X
h. REQUIRE A COMSEC ACCOUNT X
i. HAVE TEMPEST REQUIREMENTS X
j. HAVE OPERATIONS SECURITY (OPSEC) REQUIREMENTS X
k. BE AUTHORIZED TO USE THE DEFENSE COURIER SYSTEM X
l. OTHER (Specify) X
EXHIBIT A
12. PUBLIC RELEASE. Any information (classified or unclassified) pertaining to
this contract shall not be released for public examination except as provided by
the Industrial Security Manual or unless it has been approved for public release
by appropriate U.S. Government authority. Proposed public releases shall be
submitted for approval prior to release
_____ Direct X Through
(Specify):
Program Executive Office, Tactical Wheeled Vehicles
Project Manager, Light Tactical Vehicles
Warren, MI 48397-5000
to the Directorate for Freedom of Information and Security Review, Office of the
Assistant Secretary of Defense (Public Affairs)* for review. *In the case of
non-DoD User Agencies, requests for disclosure shall be submitted to that
agency.
13. SECURITY GUIDANCE. The security classification guidance needed for this
classified effort is identified below. If any difficulty is encountered in
applying this guidance or if any other contributing factor indicates a need for
changes in this guidance, the contractor is authorized and encouraged to provide
recommended changes; to challenge the guidance or the classification assigned to
any information or material furnished or generated under this contract; and to
submit any questions for interpretation of this guidance to the official
identified below. Pending final decision, the information involved shall be
handled and protected at the highest level of classification assigned or
recommended. (Fill in as appropriate for the classified effort. Attach, or
forward under separate correspondence, any documents/guides/extracts referenced
herein. Add additional pages as needed to provide complete guidance.)
Follow normal security procedures.
<PAGE> 79
14. ADDITIONAL SECURITY REQUIREMENTS. Requirements, in addition to ISM
YES X NO requirements, are established for this contract. (If Yes, identify
the pertinent contractual clauses in the contract document itself, or provide an
appropriate statement which identifies the additional requirements. Provide a
copy of the requirements to the cognizant security office. Use Item 13 if
additional space is needed.)
15. INSPECTIONS. Elements of this contract are outside the inspection
responsibility YES X NO of the cognizant security office. (If
Yes, explain and identify specific areas or elements carved out and the activity
responsible for inspections. Use Item 13 if additional space is needed.)
16. CERTIFICATION AND SIGNATURE. Security requirements stated herein are
complete and adequate for safeguarding the classified information to be released
or generated under this classified effort. All questions shall be referred to
the official named below.
<TABLE>
<S> <C> <C>
a. TYPED NAME OF CERTIFYING OFFICIAL b. TITLE c. TELEPHONE (Include Area Code)
SHARON C. THOMAS CONTRACTING OFFICER (810) 574-7219
</TABLE>
d. ADDRESS (Include Zip Code)
U.S. ARMY TANK-AUTOMOTIVE & ARMAMENTS COMMAND
ATTN: AMSTA-AQ-WCA
WARREN, MI 48397-5000
e. SIGNATURE
/s/ Sharon C. Thomas
17. REQUIRED DISTRIBUTION
X a. CONTRACTOR
b. SUBCONTRACTOR
X c. COGNIZANT SECURITY OFFICE FOR PRIME AND SUBCONTRACTOR
d. U.S. ACTIVITY RESPONSIBLE FOR OVERSEAS SECURITY ADMINISTRATION
X e. ADMINISTRATIVE CONTRACTING OFFICER
f. OTHERS AS NECESSARY
<PAGE> 80
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 4
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00002
3. EFFECTIVE DATE
11 OCT 1994
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-IWCA /N5 WPN SYS: N5
JEAN SCOTT /810-574-7187
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 81
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
ACRN AA: NET INCREASE $.00
F 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
X B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor X is not, is required to sign this
document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
15B. CONTRACTOR/OFFEROR
(Signature of person authorized to sign)
15C. DATE SIGNED
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
SHARON C. THOMAS
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Sharon C Thomas
(Signature of Contracting Officer)
16C. DATE SIGNED
11 OCT 1994
<PAGE> 82
DAAE07-94-C-0406
Modification P00002
PROGRAM: Up Armor High Mobility Multipurpose Wheeled Vehicle
(HMMWV) XM1109
CONTRACT: DAAE07-94-C-0406
MODIFICATION: P00002
AMOUNT OF THIS ACTION: $0.00
1. This is a unilateral modification.
2. The purpose of this modification is to provide shipping instructions for 25
CLIN 0001AA vehicles. Twenty vehicles have been previously shipped in place by
letters dated 22 September 1994, 23 September 1994 and 30 September 1994.
3. The delivery schedule established in Section F of the Contract supersedes the
delivery schedule established in Section B of this Modification P00002. This
supersession is issued for the convenience of the Government.
4. Any vehicles subsequently produced for which shipping instructions have not
been issued, may be shipped in place pending receipt of such instructions.
5. F5 REQUIRED DELIVERY SCHEDULE, page 17 of 37, is hereby deleted from the
Contract and the attached page 17 is substituted.
6. There is no change to the contract price as a result of this modification.
<PAGE> 83
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00002 2 of 4
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
0001AA PRODUCTION QUANTITY
PRON: JZ22P086JZ ACRN: AA
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 9999-99-999-9999
NOUN: HMMWV UP ARMOR
FSCM: 00000
PART NR: 9999999999
SECURITY CLASS: UNCLASSIFIED
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW4096S101 Y00000 M 3
PROJ CD BRK BLK PT
IJ8
DEL REL CD QUANTITY DEL DATE
001 75 94NOV15
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED UNDER THIS
REQUISITION.
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
002 W80SBG4270L001 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 10 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE MARK FOR: 1st AD
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
POC: Bob Greer
Phone: 011 49-621-722-982
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
003 W80SBG4272L001 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 5 94DEC30
<PAGE> 84
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00002 3 of 4
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE MARK FOR: 1st AD
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
POC: Bob Greer
Phone: 011 49-621-722-982
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
004 W80SBG4272L002 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 10 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE MARK FOR: 3rd ID
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
POC: Bob Greer
Phone: 011 49-621-722-982
<PAGE> 85
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: PZ0002 4 of 4
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
- --------- ------ ---- ---------- ------------ ----------------- ----------
<S> <C>
NO CHANGE TO OBLIGATION DATA
</TABLE>
<PAGE> 86
DAAE07-94-C-0406
REQUIRED DELIVERY SCHEDULE Page 17 of 37
MONTHS AFTER AWARD
<TABLE>
<CAPTION>
CLIN SERVICE MODEL NOMEN QTY (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12)
MAY 94 JUN 94 JUL 94 AUG 94 SEP 94 OCT 94 NOV 94 DEC 94 JAN 95 FEB 95 MAR 95 APR 95
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
0001AA ARMY M1109 UP
ARMOR
HMMWV 100 0 0 0 0 10 22 25 25 18
0
0
0
0
0
0
0
0
0
CUMULATIVE PAGE TOTAL: 100 0 0 0 0 10 22 25 25 18 0 0 0
</TABLE>
* REMARKS: Page changed by Modification P00002.
<PAGE> 87
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 3
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00003
3. EFFECTIVE DATE
07 NOV 1994
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
JEAN SCOTT /810-574-7187
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 88
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
No change to obligation data
F 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
X B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor X is not, is required to sign this
document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
15B. CONTRACTOR/OFFEROR
(Signature of person authorized to sign)
15C. DATE SIGNED
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
SHARON C. THOMAS
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Sharon C. Thomas
(Signature of Contracting Officer)
16C. DATE SIGNED
07 NOV 1994
<PAGE> 89
DAAE07-94-C-0406
Modification P00003
Page 2 of 3
PROGRAM: Up Armor for the High Mobility Multipurpose Wheeled
Vehicle (HMMWV) XM1109
CONTRACT: DAAE07-94-C-0406
MODIFICATION: P00003
AMOUNT OF THIS ACTION: $0.00
1. The purpose of this unilateral modification is to provide shipping
instructions for 10 each CLIN 0001AA vehicles.
2. Vehicles for which shipping instructions have not been received may
continue to be shipped in place.
3. There is no change to the contract price as a result of this
modification.
<PAGE> 90
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00005 3 of 4
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
0001AA PRODUCTION QUANTITY
PRON: JZ22P086JZ ACRN: AA
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2310-01-389-7558
NOUN: UP ARMOR
FSCM: 00000
PART NR: 9999999999
SECURITY CLASS: UNCLASSIFIED
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW4096S101 Y00000 M 3
PROJ CD BRK BLK PT
1J8
DEL REL CD QUANTITY DEL DATE
001 65 94NOV15
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
005 W80SBG4304L009 W80N5V M 3
DEL REL CD QUANTITY DEL DATE
001 10 94DEC31
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
SHIP TO: XU 200th TAMMC AFP
8909 CLG and ESC
Taylor Barracks
Mannheim, Germany
POC: Bob Greer
Phone: 011 49-621-722-982
MARK For: 3rd ID (W80N5V)
(End of narrative F001)
<PAGE> 91
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 6
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
PZ0004
3. EFFECTIVE DATE
10 FEB 1995
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
JEAN SCOTT /810-574-8822
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 92
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
ACRN AA: NET INCREASE: $1,909,849.00
L 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X H-6 CONTRACT DEFINITIZATION
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this
document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M.J. Lennon
V.P. Sales, Marketing & Programs
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
2/9/95
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
SHARON C. THOMAS
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Sharon C. Thomas
(Signature of Contracting Officer)
16C. DATE SIGNED
10 FEB 1995
<PAGE> 93
Program: Up Armor HMMWV, XM1109
Contract: DAAE07-94-C-0406
Modification: PZOOO4
Previous Contract Amount: $ 6,950,151.00
Amount of this Action: $ 1,909,849.00
Total Contract Amount: $ 8,860,000.00
1. The purpose of this bilateral modification is to definitize the price of
vehicles previously awarded and funded at 69.7% of the ceiling. This
modification constitutes notice by the Contracting Officer that funds in the
amount of $1,909,849.00 are available for the award.
2. The Government and the Contractor agree:
a. The price included in this modification represents the agreement for
definitive prices for all work identified in Section C.3, as revised herein.
b. The Contractor agrees to refund to the Government any cost savings
recovered through further negotiations with Composix Company included in this
modification as described below:
<TABLE>
<CAPTION>
OH&E/P.O. CONTRACT NEGOTIATED
SUBCONTRACT ITEM QUANTITY VALUE
----------- ---- -------- ----------
<S> <C> <C> <C>
M10876 S2 Glass Set 100 $902,601.00
</TABLE>
c. To modify the Contract as follows:
SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
<TABLE>
<CAPTION>
DEFINITIZED DEFINITIZED
CLIN DESCRIPTION QTY UNIT PRICE TOTAL
---- ----------- --- ----------- -----------
<S> <C> <C> <C> <C>
0001AA HMMWV UP ARMOR, XM1109 100 $ 88,600.00 $ 8,860,000.00
</TABLE>
SECTION C - DESCRIPTION/SPECIFICATIONS/WORK STATEMENT is revised as
described below.
Section C.3 STATEMENT OF WORK - XM1109 UP ARMORED HEAVY HMMWV is hereby
deleted and replaced with the attached.
(1) Paragraph C.3.4.5 is incorporated.
(2) In Paragraph C.5 Part Number 05592927 is deleted and replaced
with updated Part Number G-09424258.
2
<PAGE> 94
DAAE07-94-C-0406
Modification PZ0004
SECTION H - SPECIAL CONTRACT REQUIREMENTS is revised as described below:
(1) H-2 PRICE CEILING (DFARS 252.217-7027) (DEC 1991) is deleted.
(2) H-4 EXECUTION AND COMMENCEMENT OF WORK (FAR 52.216-23) (APR
1984) is deleted.
(3) H-5 LIMITATION OF GOVERNMENT LIABILITY (FAR 52.216-24) (APR
1984) is deleted.
(4) H-6 CONTRACT DEFINITIZATION (FAR 52.216-25) (APR 1984) is
deleted.
3. The delivery schedule in Section F takes precedence over Section B.
4. The Contractor releases the Government from any further equitable adjustments
under this Contract for any claims related to this Modification PZ0004.
6. The Contract total is hereby increased by $1,909,849.00 from $6,950,151.00 to
$8,860,000.00.
3
<PAGE> 95
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00004 3 of 6
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<C> <C> <C> <C> <C> <C>
0001AA PRODUCTION QUANTITY 100 EA $ 88,600.00000 $ 8,860,000.00
-------------- --------------
PRON: JZ22P086JZ ACRN: AA
AMS CD: 51103446
</TABLE>
THE FOLLOWING SECTIONS, B THROUGH F,
BRIEFLY STATES OUR REQUIREMENTS.
MORE DETAILED INFORMATION ABOUT
EACH SECTION MAY FOLLOW THESE CLIN
PAGES AS "SUPPLEMENTAL INFORMATION".
(End of narrative A001)
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2310-01-389-7558
NOUN: UP ARMOR
FSCM: 00000
PART NR: 9999999999
SECURITY CLASS: UNCLASSIFIED
THE CONTRACTOR SHALL PROVIDE ARMOR TO
GFM M1097A1 VEHICLES IN ACCORDANCE
WITH SECTION C.
(End of narrative B001)
SECTION D - Packaging and Marking
BEST COMMERCIAL
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW4096S101 Y00000 M 3
PROJ CD BRK BLK PT
IJ8
DEL REL CD QUANTITY DEL DATE
001 65 94NOV15
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
ITEMS REQUIRED UNDER THIS
REQUISITION.
<PAGE> 96
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00004 4 of 6
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
002 W80SBG4270L001 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 10 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
003 W80SBG4272L001 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 5 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
004 W80SBG4272L002 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 10 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
005 W80SBG4304L009 W80N5V M 3
<PAGE> 97
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00004 5 of 6
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
DEL REL CD QUANTITY DEL DATE
001 10 94DEC31
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
SHIP TO: XU 200th TAMMC AFP
8909 CLG and ESC
Taylor Barracks
Mannheim, Germany
POC: Bob Greer
Phone: 011 49-621-722-982
MARK For: 3rd ID (W80N5V)
(End of narrative F001)
<PAGE> 98
CONTINUATION SHEET DAAE07-94-C-0406 Page 6 of 37
Name of Offeror or Contractor O'GARA-HESS & EISENHARDT ARMORING COMPANY
C.3.4 ADDITIONAL REQUIREMENTS
C.3.4.1 Air Conditioning: The Contractor shall provide and install OH&E P/N
4668201-000 air conditioner assembly, on each XM1109 Up-Armor vehicle.
C.3.4.2 Operable Side Glass: The Contractor shall provide operable ballistic
glass in all of the XM1109 doors. The glass shall allow access when open to
allow an M16 rifle to be fired. The level of protection shall be as described in
the classified performance specification dated 31 January 1994.
C.3.4.3 Reserved.
C.3.4.4 Suspension: The Contractor shall replace all Front suspension springs,
AM General P/N 12338316-1, with AM General P/N 12338316-2 suspension springs.
C.3.4.5 Data Plates: All data plates, decal and safety related markings which
the Contractor shall furnish with the vehicle, * shall be in accordance with
MIL-STD-1223 and MIL-P-514, composition C, Type I, style I for identification
plates and Type III * (style not applicable) for all others. The size of the
plates shall not exceed the surface on which they are mounted. The * Contractor
shall apply data plates relating to the XM1109 adjacent to the M1097A1 data
plates. Data plates also shall be * installed on delivered vehicles remaining at
the Contractor's facility at no additional cost to the Government. For vehicles
* already shipped, data plates shall be provided separately. The Contractor
shall contact the Government for instructions. *
C.3.5 Government Furnished Equipment Parts List
<TABLE>
<CAPTION>
Qty/Veh Part Number Description
- ------- ----------- -----------
<S> <C> <C>
12 12338083 Resilient Bushing Assembly
2 05743208 Paint Mask, Tail Light
2 05743209 Paint Mask, Front Turn Signal
2 05743205 Paint Mask, Headlight
4 05743206 Paint Mask, Side Marker
6 05743207 Paint Mask, Reflector
2 05743509 Gasket, Windshield
2 12338316-2 Springs
2 12339385 Front Door Striker
2 12339386 Rear Door Striker
2 12342624 DECAL, TP, 36PSI
2 05590178 DECAL, STAR
6 12339057 DECAL, SLING
4 12339059 DECAL, TIE DOWN
4 12339060 DECAL, 24-VOLT
2 12340157 Bracket, Rifle Mount
2 12340142 Support Rifle Mounting
2 12340051 Panel, Rear Seat Back
20 12339560 Shim, Turret
1 MS 51943-35 Nut, Self-Locking
2 12339381 Spacer, Rotary Lock
4 12339571 Mount, Roof
2 12339729 Bolt
</TABLE>
* Changed by Modification PZ0004.
<PAGE> 99
CONTINUATION SHEET DAAE07-94-C-0406 Page 7 of 37
Name of Offeror or Contractor O'GARA-HESS & EISENHARDT ARMORING COMPANY
C.3.5 Government Furnished Equipment Parts List, continued
<TABLE>
<CAPTION>
Qty/Veh Part Number Description
- ------- ----------- -----------
<S> <C> <C>
14 G-02436162 Washer, Flat
20 G-09414920 Washer, Flat
6 G-09424258 Washer, Lock
8 05593241 Washer, Flat
8 G-02436163 Washer, Flat
4 12339664 Latch, Tension
4 G-09415477 Screw
8 G-09419454 Locknut
4 G-09422534 Washer, Flat
2 12338667 Bracket, Angle, Rear Seat
2 12338693 Support, Rear Seat Base
2 12338833 Bracket, Mounting, RR
1 12339019 Insulation
2 12339020 Insulation
1 12339023 Insulation
1 12339039 Insulation
1 12339087 Decal, Slave Receptacle
1 12339513 Frame Window
2 12342625 DECAL, TP, 42PSI
8 12339559 Stud, Plain
16 12339561 Plate, Snubber
16 12339571 Mount, Roof
2 12340116 Clevis, Front Mounting
1 12340881 Gun Mount, Upper Front
2 12342067 Seat Cushion
2 12342068 Seat Cushion
2 12342912 Rear Support
8 12338186-52 Spacer
1 12339047-1 Top, Assembly
1 12339047-2 Top, Assembly
1 12340813-1 Rear Seat Base
1 12340813-2 Rear Seat Base
2 12340039-1 Lock, Rotary, LH
2 12340039-2 Lock, Rotary, RH
2 12342377-2 Safety Belt - Rear
1 12446706 Extinguisher Plate
4 12343055 Spacer
1 12340910 DECALS (Fire Extinguisher)
8 12339563 Plate Assembly, Roof Mount
4 12340058 Washer, Hardened
2 12342784 Bracket Assembly, Rifle Mount
1 12343054 Decal, Seat Adjustment
1 12340164 Bracket, Gun Mount
2 12340259-3 Bolt
2 12340259-6 Bolt
</TABLE>
* Changed by Modification PZ0004.
<PAGE> 100
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: PZ0004 6 of 6
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
- --------- ------ ---- ---------- ------------ ----------------- ----------
<S> <C> <C> <C> <C> <C> <C>
0001AA JZ22P086JZ AA 1 $6,950,151.00 $ 1,909,849.00 $8,860,000.00
51103446
-----------------
NET CHANGE $ 1,909,849.00
</TABLE>
<TABLE>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
- ---- ------------------------- ------- -----------------
<S> <C> <C> <C>
AA 21 22035 25J5J01P5110 25CZ S2011322P086 W56HZV $ 1,909,849.00
-----------------
NET CHANGE $ 1,909,849.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
- --------------------- OF AWARD AMOUNT OBLIGATED AMOUNT
------------ ----------------- ----------------
<S> <C> <C> <C>
$6,950,151.00 $ 1,909,849.00 $ 8,860,000.00
</TABLE>
<PAGE> 101
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 6
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
PZ0004
3. EFFECTIVE DATE
10 FEB 1995
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
JEAN SCOTT /810-574-8822
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 102
(a) By completing Items 8 and 15, and returning copies of the amendments; (b) By
acknowledging receipt of this amendment on each copy of the offer submitted; or
(c) By separate letter or telegram which includes a reference to the
solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
ACRN AA: NET INCREASE: $1,909,849.00
L 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X H-6 CONTRACT DEFINITIZATION
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this
document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M.J. Lennon
V.P. Sales, Marketing & Programs
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
2/9/95
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
SHARON C. THOMAS
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Sharon C. Thomas
(Signature of Contracting Officer)
16C. DATE SIGNED
10 FEB 1995
<PAGE> 103
Program: Up Armor HMMWV, XM1109
Contract: DAAE07-94-C-0406
Modification: PZOOO4
Previous Contract Amount: $ 6,950,151.00
Amount of this Action: $ 1,909,849.00
Total Contract Amount: $ 8,860,000.00
1. The purpose of this bilateral modification is to definitize the price of
vehicles previously awarded and funded at 69.7% of the ceiling. This
modification constitutes notice by the Contracting Officer that funds in the
amount of $1,909,849.00 are available for the award.
2. The Government and the Contractor agree:
a. The price included in this modification represents the agreement
for definitive prices for all work identified in Section C.3, as revised herein.
b. The Contractor agrees to refund to the Government any cost savings
recovered through further negotiations with Composix Company included in this
modification as described below:
<TABLE>
<CAPTION>
OH&E/P.O. CONTRACT NEGOTIATED
SUBCONTRACT ITEM QUANTITY VALUE
---------------- -------- ----------
<S> <C> <C> <C>
M10876 S2 Glass Set 100 $902,601.00
</TABLE>
c. To modify the Contract as follows:
SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
<TABLE>
<CAPTION>
DEFINITIZED DEFINITIZED
CLIN DESCRIPTION QTY UNIT PRICE TOTAL
---- ----------- --- ----------- -----------
<S> <C> <C> <C> <C>
0001AA HMMWV UP ARMOR, XM1109 100 $ 88,600.00 $ 8,860,000.00
</TABLE>
SECTION C - DESCRIPTION/SPECIFICATIONS/WORK STATEMENT is revised as
described below.
Section C.3 STATEMENT OF WORK - XM1109 UP ARMORED HEAVY HMMWV is hereby
deleted and replaced with the attached.
(1) Paragraph C.3.4.5 is incorporated.
(2) In Paragraph C.5 Part Number 05592927 is deleted and replaced
with updated Part Number G-09424258.
2
<PAGE> 104
DAAE07-94-C-0406
Modification PZ0004
SECTION H - SPECIAL CONTRACT REQUIREMENTS is revised as described below:
(1) H-2 PRICE CEILING (DFARS 252.217-7027) (DEC 1991) is deleted.
(2) H-4 EXECUTION AND COMMENCEMENT OF WORK (FAR 52.216-23) (APR
1984) is deleted.
(3) H-5 LIMITATION OF GOVERNMENT LIABILITY (FAR 52.216-24) (APR
1984) is deleted.
(4) H-6 CONTRACT DEFINITIZATION (FAR 52.216-25) (APR 1984) is
deleted.
3. The delivery schedule in Section F takes precedence over Section B.
4. The Contractor releases the Government from any further equitable adjustments
under this Contract for any claims related to this Modification PZ0004.
6. The Contract total is hereby increased by $1,909,849.00 from $6,950,151.00 to
$8,860,000.00.
3
<PAGE> 105
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00004 3 of 6
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<C> <C> <C> <C> <C> <C>
0001AA PRODUCTION QUANTITY 100 EA $ 88,600.00000 $ 8,860,000.00
-------------- --------------
</TABLE>
PRON: JZ22P086JZ ACRN: AA
AMS CD: 51103446
THE FOLLOWING SECTIONS, B THROUGH F,
BRIEFLY STATES OUR REQUIREMENTS.
MORE DETAILED INFORMATION ABOUT
EACH SECTION MAY FOLLOW THESE CLIN
PAGES AS "SUPPLEMENTAL INFORMATION".
(End of narrative A001)
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2310-01-389-7558
NOUN: UP ARMOR
FSCM: 00000
PART NR: 9999999999
SECURITY CLASS: UNCLASSIFIED
THE CONTRACTOR SHALL PROVIDE ARMOR TO
GFM M1097A1 VEHICLES IN ACCORDANCE
WITH SECTION C.
(End of narrative B001)
SECTION D - Packaging and Marking
BEST COMMERCIAL
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW4096S101 Y00000 M 3
PROJ CD BRK BLK PT
IJ8
DEL REL CD QUANTITY DEL DATE
001 65 94NOV15
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED UNDER THIS
REQUISITION.
<PAGE> 106
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00004 4 of 6
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
002 W80SBG4270L001 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 10 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
003 W80SBG4272L001 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 5 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
004 W80SBG4272L002 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 10 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
005 W80SBG4304L009 W80N5V M 3
<PAGE> 107
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00004 5 of 6
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
DEL REL CD QUANTITY DEL DATE
001 10 94DEC31
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
SHIP TO: XU 200th TAMMC AFP
8909 CLG and ESC
Taylor Barracks
Mannheim, Germany
POC: Bob Greer
Phone: 011 49-621-722-982
MARK For: 3rd ID (W80N5V)
(End of narrative F001)
<PAGE> 108
CONTINUATION SHEET DAAE07-94-C-0406 Page 6 of 37
Name of Offeror or Contractor O'GARA-HESS & EISENHARDT ARMORING COMPANY
C.3.4 ADDITIONAL REQUIREMENTS
C.3.4.1 Air Conditioning: The Contractor shall provide and install OH&E P/N
4668201-000 air conditioner assembly, on each XM1109 Up-Armor vehicle.
C.3.4.2 Operable Side Glass: The Contractor shall provide operable ballistic
glass in all of the XM1109 doors. The glass shall allow access when open to
allow an M16 rifle to be fired. The level of protection shall be as described in
the classified performance specification dated 31 January 1994.
C.3.4.3 Reserved.
C.3.4.4 Suspension: The Contractor shall replace all Front suspension springs,
AM General P/N 12338316-1, with AM General P/N 12338316-2 suspension springs.
C.3.4.5 Data Plates: All data plates, decal and safety related markings which
the Contractor shall furnish with the vehicle, * shall be in accordance with
MIL-STD-1223 and MIL-P-514, composition C, Type I, style I for identification
plates and Type III * (style not applicable) for all others. The size of the
plates shall not exceed the surface on which they are mounted. The * Contractor
shall apply data plates relating to the XM1109 adjacent to the M1097A1 data
plates. Data plates also shall be * installed on delivered vehicles remaining at
the Contractor's facility at no additional cost to the Government. For vehicles
* already shipped, data plates shall be provided separately. The Contractor
shall contact the Government for instructions. *
C.3.5 Government Furnished Equipment Parts List
<TABLE>
<CAPTION>
Qty/Veh Part Number Description
- ------- ----------- -----------
<S> <C> <C>
12 12338083 Resilient Bushing Assembly
2 05743208 Paint Mask, Tail Light
2 05743209 Paint Mask, Front Turn Signal
2 05743205 Paint Mask, Headlight
4 05743206 Paint Mask, Side Marker
6 05743207 Paint Mask, Reflector
2 05743509 Gasket, Windshield
2 12338316-2 Springs
2 12339385 Front Door Striker
2 12339386 Rear Door Striker
2 12342624 DECAL, TP, 36PSI
2 05590178 DECAL, STAR
6 12339057 DECAL, SLING
4 12339059 DECAL, TIE DOWN
4 12339060 DECAL, 24-VOLT
2 12340157 Bracket, Rifle Mount
2 12340142 Support Rifle Mounting
2 12340051 Panel, Rear Seat Back
20 12339560 Shim, Turret
1 MS 51943-35 Nut, Self-Locking
2 12339381 Spacer, Rotary Lock
4 12339571 Mount, Roof
2 12339729 Bolt
</TABLE>
* Changed by Modification PZ0004.
<PAGE> 109
CONTINUATION SHEET DAAE07-94-C-0406 Page 7 of 37
Name of Offeror or Contractor O'GARA-HESS & EISENHARDT ARMORING COMPANY
C.3.5 Government Furnished Equipment Parts List, continued
<TABLE>
<CAPTION>
Qty/Veh Part Number Description
- ------- ----------- -----------
<S> <C> <C>
14 G-02436162 Washer, Flat
20 G-09414920 Washer, Flat
6 G-09424258 Washer, Lock
8 05593241 Washer, Flat
8 G-02436163 Washer, Flat
4 12339664 Latch, Tension
4 G-09415477 Screw
8 G-09419454 Locknut
4 G-09422534 Washer, Flat
2 12338667 Bracket, Angle, Rear Seat
2 12338693 Support, Rear Seat Base
2 12338833 Bracket, Mounting, RR
1 12339019 Insulation
2 12339020 Insulation
1 12339023 Insulation
1 12339039 Insulation
1 12339087 Decal, Slave Receptacle
1 12339513 Frame Window
2 12342625 DECAL, TP, 42PSI
8 12339559 Stud, Plain
16 12339561 Plate, Snubber
16 12339571 Mount, Roof
2 12340116 Clevis, Front Mounting
1 12340881 Gun Mount, Upper Front
2 12342067 Seat Cushion
2 12342068 Seat Cushion
2 12342912 Rear Support
8 12338186-52 Spacer
1 12339047-1 Top, Assembly
1 12339047-2 Top, Assembly
1 12340813-1 Rear Seat Base
1 12340813-2 Rear Seat Base
2 12340039-1 Lock, Rotary, LH
2 12340039-2 Lock, Rotary, RH
2 12342377-2 Safety Belt - Rear
1 12446706 Extinguisher Plate
4 12343055 Spacer
1 12340910 DECALS (Fire Extinguisher)
8 12339563 Plate Assembly, Roof Mount
4 12340058 Washer, Hardened
2 12342784 Bracket Assembly, Rifle Mount
1 12343054 Decal, Seat Adjustment
1 12340164 Bracket, Gun Mount
2 12340259-3 Bolt
2 12340259-6 Bolt
</TABLE>
* Changed by Modification PZ0004.
<PAGE> 110
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: PZ0004 6 of 6
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
- --------- ------ ---- ---------- ------------ ------------------ ----------
<S> <C> <C> <C> <C> <C> <C>
0001AA JZ22P086JZ AA 1 $6,950,151.00 $ 1,909,849.00 $8,860,000.00
51103446
------------------
NET CHANGE $ 1,909,849.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
- ---- ------------------------- ------- -----------------
<S> <C> <C> <C>
AA 21 22035 25J5J01P5110 25CZ S2011322P086 W56HZV $ 1,909,849.00
-----------------
NET CHANGE $ 1,909,849.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
- --------------------- OF AWARD AMOUNT OBLIGATED AMOUNT
------------ ----------------- ----------------
<S> <C> <C> <C>
$6,950,151.00 $ 1,909,849.00 $ 8,860,000.00
</TABLE>
<PAGE> 111
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 4
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00005
3. EFFECTIVE DATE
21 FEB 1995
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
JEAN SCOTT /810-574-8822
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 112
(a) By completing Items 8 and 15, and returning copies of the amendments; (b) By
acknowledging receipt of this amendment on each copy of the offer submitted; or
(c) By separate letter or telegram which includes a reference to the
solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
ACRN AA: NET INCREASE $.00
B 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: THE CHANGES SET FORTH IN
ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
X B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor X is not, is required to sign this document
and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings,
including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
15B. CONTRACTOR/OFFEROR
(Signature of person authorized to sign)
15C. DATE SIGNED
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
SHARON C. THOMAS
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Sharon C. Thomas\
--------------------------------
(Signature of Contracting Officer)
16C. DATE SIGNED
21 FEB 1995
<PAGE> 113
DAAE07-94-C-0406
Modification P00005
Page 2 of 3
PROGRAM: Up Armor for the High Mobility Multipurpose Wheeled
Vehicle (HMMWV) XM1109
CONTRACT: DAAE07-94-C-0406
MODIFICATION: P00005
AMOUNT OF THIS ACTION: $0.00
1. The purpose of this unilateral modification is to provide contractual
shipping instructions to follow up letter instructions for 18 each CLIN 0001AA
vehicles. DO NOT DUPLICATE SHIPMENT.
2. Vehicles for which shipping instructions have not been received may continue
to be shipped in place.
3. There is no change to the contract price as a result of this modification.
<PAGE> 114
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00005 3 of 4
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0001AA PRODUCTION QUANTITY 100 EA $ N/A $ 6,950,151.00
PRON: JZ22P086JZ ACRN: AA
AMS CD: 51103446
</TABLE>
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2310-01-389-7558
NOUN: UP ARMOR
FSCM: 00000
PART NR: 9999999999
SECURITY CLASS: UNCLASSIFIED
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW4096S101 Y00000 M 3
PROJ CD BRK BLK PT
1J8
DEL REL CD QUANTITY
001 47
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
006 W80SBG5003L003 W42CW1 M 1
DEL REL CD QUANTITY DEL DATE
001 18 95JAN06
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W42CW1) SR CONSOLIDATED PROPERTY ACTPO
BLDG 4640 CENTRAL RECEIVING
FT POLK, LA 71459-7070
This is a duplicate instruction, DO NOT duplicate shipment.
SHIP TO:
Central Receiving Point
Bldg 4640
Ft. Polk, LA 71459
POC: Mr. Ted Chaney
Phone: (318)531-5730/5382
Mark For: 2D ACR (W42CW1)
(End of narrative F002)
<PAGE> 115
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00006
3. EFFECTIVE DATE
13 MAR 1995
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
JEAN SCOTT /810-574-8822
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 116
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: THE CHANGES SET FORTH IN
ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X FAR 6.302-1(a) and MUTUAL AGREEMENT OF THE PARTIES
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this document
and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings,
including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M.J. Lennon, VP Sales, Mrkt's Programs
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
-----------------------------------
(Signature of person authorized to sign)
15C. DATE SIGNED
3/10/95
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
SHARON C. THOMAS
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Sharon C. Thomas
----------------------------------------
(Signature of Contracting Officer)
16C. DATE SIGNED
13 MAR 1995
<PAGE> 117
PROGRAM: Up Armor Expanded Capacity Vehicle (UA-ECV), High
Mobility Multipurpose Wheeled Vehicle (HMMWV), XM1114
CONTRACT: POOOO6
PREVIOUS CONTRACT AMOUNT: $ 8,860,000.00
AMOUNT OF THIS ACTION: $15,445,361.91
TOTAL CONTRACT AMOUNT: $24,305,361.91
1. This is a bilateral letter contract modification to incorporate 309 each
UA-ECVs, XM1114, obligated at 50% of the Ceiling Price, plus an option of 50% of
the quantity to be exercised during the production of the 309. The Not-To-Exceed
Ceiling Unit Price is $99,969.98, total Ceiling Amount is $30,890,723.82. The
obligated unit price (50%) is $49,984.99.
2. The Government and the Contractor agree to modify Contract DAAE07-94-C-0406
as described below.
a. SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
SECTION B is modified to add additional vehicles as follows:
<TABLE>
<CAPTION>
Obligated Obligated
CLIN DESCRIPTION QTY UNIT PRICE AMOUNT
<S> <C> <C> <C> <C>
0002AA Up-Armored Expanded
Capacity HMMWV (UA-ECV) 53 $ 49,984.99 $2,649,204.47
0003AA Up-Armored Expanded
Capacity HMMWV (UA-ECV) 152 $ 49,984.99 $7,597,718.48
0004AA Up-Armored Expanded
Capacity HMMWV (UA-ECV) 104 $ 49,984.99 $5,198,438.96
--------------
TOTAL $15,445,361.91
</TABLE>
b. SECTION C - DESCRIPTION/SPECIFICATIONS/WORK STATEMENT
C.4 UP-ARMORED ECV HMMWV STATEMENT OF WORK (7 March 1995) is
incorporated into the Contract applicable to CLINs 0002AA, 0003AA and 0004AA.
c. SECTION F - REQUIRED DELIVERY SCHEDULE
F.5 REQUIRED DELIVERY SCHEDULE is revised to reflect the addition of
the above vehicles.
2
<PAGE> 118
DAAE07-94-C-0406
Modification P00006
d. SECTION G - CONTRACT ADMINISTRATION DATA
The Contract Administration Data applicable to CLINs 0002AA, 0003AA and
0004AA are incorporated into the Contract.
e. SECTION H - SPECIAL CONTRACT PROVISIONS
(1) Letter Contract Provisions are reincorporated into the
contract, applying to this modification P00006 only, as detailed below.
(a) The fill-in for H-1 No. 19, PROGRESS PAYMENTS (ALT
II), (FAR 52.232-16) (JUL 1991) is $12,356,289.53.
(b) H-2 PRICE CEILING (DFARS 252.217-7027) (DEC 1991) is
incorporated. The fill-in for H-2 is $30,890,723.82.
(c) H-4 EXECUTION AND COMMENCEMENT OF WORK (FAR 52.216-23)
(APR 1984) is incorporated. The date at the end of the first sentence,
applicable to this provision is 13 March 1995.
(d) H-5 LIMITATION OF GOVERNMENT LIABILITY (FAR 52.216-24)
(APR 1984) is incorporated. The fill-in for both (a) and (b) shall be
$15,445,361.91.
(e) H-6 CONTRACT DEFINITIZATION (FAR 52.216-25) (APR 1984)
is incorporated. The following applies:
Contractor submission of proposal: 15 Mar 95
Submission of make-or-buy plan: N/A
Submission of subcontracting plan: N/A
Commencement of negotiations: 01 Jun 95
Definitization of contract: 30 Jun 95
(2) Special Provision H-12 OPTION TO INCREASE VEHICLE
QUANTITIES is incorporated into the contract at 50% of the XM1114 quantity, or
155 vehicles.
3. As a result of the above agreements, the following page
substitutions/additions are accomplished:
3
<PAGE> 119
DAAE07-94-C-0406
Modification P00006
<TABLE>
<CAPTION>
SECTION DELETE PAGES ADD PAGES DESCRIPTION
<S> <C> <C>
B 1a, 1b, 1c SUPPLIES OR SERVICES AND
PRICES/COSTS
C 7a, 7b DESCRIPTION/SPECIFICATIONS/
WORK STATEMENT
F 17a DELIVERY SCHEDULE
G 18a CONTRACT ADMINISTRATION DATA,
Part 1
G 18b CONTRACT ADMINISTRATION DATA,
Part 2
H 26 of 37 26 of 37 SPECIAL CONTRACT PROVISIONS
</TABLE>
4. Subject to definitization, the Contractor releases the Government from any
further equitable adjustments under this Contract for any claims related to this
contract.
5. All other terms and conditions, except as previously changed, remain
unchanged and in full force and effect.
4
<PAGE> 120
CONTINUATION SHEET PAGE 1a of 37
NAME OF OFFEROR OR CONTRACTOR DAAE07-94-C-0406
MODIFICATION P00006
O'GARA-HESS & EISENHARDT ARMORING COMPANY
<TABLE>
<CAPTION>
ITEM SUPPLIES/SERVICES QTY. UNIT UNIT PRICE AMOUNT
NO.
<S> <C> <C> <C> <C> <C>
0002AA NSN: 9999-99-999-9999
FSCM: MPN
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
PRODUCTION QUANTITY 53 EA $49,984.99 $2,649,204.47
PRON: JZ-3-2P879-JZ ACRN: AB
ACMS CODE: 51105J3446
</TABLE>
SECTION C - DESCRIPTION/SPECS./WORK STATEMENT
NOUN: UP ARMOR EXPANDED CAPACITY VEHICLE
(UA-ECV) HMMWV, XM1114, AS FURTHER
DESCRIBED IN SECTION C.4
THE CEILING UNIT PRICE FOR THE VEHICLE IS
$99,969.98, FUNDED AT 50%. THE GOVERNMENT'S
LIMITATION OF LIABILITY FOR THESE VEHICLES
IS $2,649,204.47.
* Page added by Modification P00006.
<PAGE> 121
CONTINUATION SHEET PAGE 1b of 37
NAME OF OFFEROR OR CONTRACTOR DAAE07-94-C-0406
MODIFICATION P00006
O'GARA-HESS & EISENHARDT ARMORING COMPANY
<TABLE>
<CAPTION>
ITEM SUPPLIES/SERVICES QTY. UNIT UNIT PRICE AMOUNT
NO.
<S> <C> <C> <C> <C>
0003AA NSN: 9999-99-999-9999
FSCM: MPN
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
PRODUCTION QUANTITY 152 EA $49,984.99 $7,597,718.48
PRON: JZ-4-2P880-JZ ACRN: AC
ACMS CODE: 51105J3446
</TABLE>
SECTION C - DESCRIPTION/SPECS./WORK STATEMENT
NOUN: UP ARMOR EXPANDED CAPACITY VEHICLE
(UA-ECV) HMMWV, XM1114, AS FURTHER
DESCRIBED IN SECTION C.4
THE CEILING UNIT PRICE FOR THE VEHICLE IS
$99,969.98, FUNDED AT 50%. THE GOVERNMENT'S
LIMITATION OF LIABILITY FOR THESE VEHICLES
IS $7,597,718.48.
* Page added by Modification P00006.
<PAGE> 122
CONTINUATION SHEET PAGE 1c of 37
NAME OF OFFEROR OR CONTRACTOR DAAE07-94-C-0406
MODIFICATION P00006
O'GARA-HESS & EISENHARDT ARMORING COMPANY
<TABLE>
<CAPTION>
ITEM SUPPLIES/SERVICES QTY. UNIT UNIT PRICE AMOUNT
NO.
<S> <C> <C> <C> <C>
0004AA NSN: 9999-99-999-9999
FSCM: MPN
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
PRODUCTION QUANTITY 104 EA $49,984.99 $5,198,438.96
PRON: FF-4-2P881-FF ACRN: AD
ACMS CODE: 51105J3446
</TABLE>
SECTION C - DESCRIPTION/SPECS./WORK STATEMENT
NOUN: UP ARMOR EXPANDED CAPACITY VEHICLE
(UA-ECV) HMMWV, XM1114, AS FURTHER
DESCRIBED IN SECTION C.4
THE CEILING UNIT PRICE FOR THE VEHICLE IS
$99,969.98, FUNDED AT 50%. THE GOVERNMENT'S
LIMITATION OF LIABILITY FOR THESE VEHICLES
IS $5,198,438.96.
* Page added by Modification P00006.
<PAGE> 123
DAAE07-94-C-0406
Modification P00006
Page 7a of 37
C.4 UP-ARMORED ECV HMMWV STATEMENT OF WORK (7 March 1995)
(Ref. No. 4660000 - Basic)
C.4.1 The Contractor shall modify as required the existing XM1109 Up-Armored
HMMWV (reference O'Gara-Hess & Eisenhardt PN 4660000) for the Up-Armored
configuration installed on a GFE ECV chassis. The Up-Armored configuration shall
meet the following requirements.
C.4.2 The ballistic requirements shall be as defined in the classified
Protection Specification for the Up-Armored Enhanced Capacity (ECV) HMMWV
(XM1114), reference O'Gara-Hess & Eisenhardt specification number 4660001 dated
March 7th 1995.
C.4.3 The turret shall incorporate hatch doors that can be closed without
removing weapons and night sights from the armament mount. The armament mount
shall provide mounting interface/provisions for the external pedestal assembly,
MPN 12339679-1, and pedestal adapter, MPN 12340310. The armament mount shall
accomodate either the M-2 (50 CAL), MK-19 (40 MM), or M-60 (7.62MM) weapons with
the night sight mounted.
C.4.4 The vehicle shall be equipped with mounting provisions for the internal
pedestal assembly, MPN 12339679-2. The pedestal assembly must be located so that
the gunner can access the night sight assembly from the weapon station position.
C.4.5 The vehicle shall be equipped with storage provisions for securing either
three M548 (40mm) or five M2A1 (50 Cal or 7.62mm) ammunition boxes. The storage
provisions must be located so that the gunner can access the ammunition from the
weapon station position.
C.4.6 The vehicle shall allow for routing of power, control, and antenna cables
for SINCGARS or VRC 12 series radios (dual net), GPS PLGR, VIC-1 (intercom), and
NVD/VPC (night sight) equipment. The cable routing shall facilitate
replacement/installation of any cable within one man hour as a maintenance
action performed at the unit level.
C.4.7 All four seating locations shall be equipped with type II seat belts which
satisfy the requirements of MIL-STD-1180, requirement 208.
C.4.8 For the scout application, the vehicle must be capable of transporting a
three man crew including all "Table of Organization and Equipment." (TOE) and
"Common Tables of Allowances" (CTA) items.
C.4.9 The vehicle shall be equipped with stowage brackets for the M-16 rifles at
each crew member seat position.
C.4.10 The weight of the armor package shall not exceed 3200 lbs.
C.4.11 The vehicle shall be equipped with air conditioned climate
<PAGE> 124
DAAE07-94-C-0406
Modification P00006
Page 7b of 37
control. The air conditioning systems must be compatible with a 24 volt
electrical system. It is desired that the system be capable of reducing an
outside ambient air temperature of 90 degrees F by 20 degrees F.
C.4.12 The vehicle side elevation signature will be similar to that of the M1025
slant back. The crew compartment shall be protected from the rear by a fixed
armor cargo barrier with one upper sliding door, and armor panels extending from
the top of the fender wells to the underside of the cargo cover or roof. The
upper sliding door shall be positively latched in the open and closed positions.
The sliding door shall have a manually released, automatic positive stop at a
position 3 to 6 inches from the closed position.
C.4.13 The vehicle design shall provide improvements over the XM1109
configuration on the following hardware items:
C.4.13.1 Door locks and latches-sequence lockout, improved mechanism
reliability.
C.4.13.2 Windshield defrost improvement.
C.4.13.3 Automotive component access and maintainability.
C.4.14 All ballistic glass on the vehicle shall be "white" glass. This glass
shall allow for the unobstructed use of night vision goggles by the crew.
C.4.15 The XM1114 vehicle shall be painted with a three-color camouflage pattern
in accordance with O'Gara-Hess & Eisenhardt armoring Company drawing No.
4668002, Pattern, Camouflage Paint, EA-HMMWV, unless otherwise directed by the
PCO.
C.4.16 The Contractor shall host a start of work meeting to discuss the
requirements of the Up-Armored ECV HMMWV and shall host four 1 day meetings for
the status of work being performed under this delivery order.
<PAGE> 125
DAAE07-94-C-0406
F.5 REQUIRED DELIVERY SCHEDULE Page 17a of 37
<TABLE>
<CAPTION>
MONTHS AFTER AWARD
CLIN SERVICE MODEL NOMEN QTY (13) (14) (15) (16) (17) (18) (19) (20)
MAY 95 JUN 95 JUL 95 AUG 95 SEP 95 OCT 95 NOV 95 DEC 95
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
0002AA ARMY XM1114 UP ARMOR 10 23 20
ECV HMMWV 53
0003AA ARMY XM1114 UP ARMOR 3 23
ECV HMMWV 152
0004AA ARMY XM1114 UP ARMOR
ECV HMMWV 104
0
0
0
0
0
0
0
0
CUMULATIVE PAGE TOTAL 309 0 0 0 0 10 23 23 23
<CAPTION>
MONTHS AFTER AWARD
CLIN SERVICE MODEL NOMEN QTY (21) (22) (23) (24) (25) (26) (27) (28)
JAN 96 FEB 96 MAR 96 APR 96 MAY 96 JUN 96 JUL 96 AUG 96
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
0002AA ARMY XM1114 UP ARMOR
ECV HMMWV 53 23 23 23 23 23 11
0003AA ARMY XM1114 UP ARMOR
ECV HMMWV 152 12 23 23
0004AA ARMY XM1114 UP ARMOR
ECV HMMWV 104
0
0
0
0
0
0
0
0 23 23 23 23 23 23 23 23
CUMULATIVE PAGE TOTAL 309
<CAPTION>
CLIN SERVICE MODEL NOMEN QTY (29) (30) (31) (32)
SEP 96 OCT 96 NOV 96 DEC 96
<S> <C> <C> <C> <C> <C> <C> <C> <C>
*
0002AA ARMY XM1114 UP ARMOR
ECV HMMWV 53 *
0003AA ARMY XM1114 UP ARMOR
ECV HMMWV 152 23 23 *
0004AA ARMY XM1114 UP ARMOR
ECV HMMWV 104
0
0
0
0
0
0
0
CUMULATIVE PAGE TOTAL 309 0 23 23 0 0 *
</TABLE>
REMARKS: * Page added by Modification P00006.
<PAGE> 126
SECTION G - CONTRACT ADMINISTRATION DATA PIIN:DAAE07-94-C-0406 Page 18a of 37
PART 1 - ACCOUNTING CLASSIFICATION (CONT)
MODIFICATION NO.: PZ0006
<TABLE>
<CAPTION>
OBLIGATED AMOUNT THIS ACTION
ACR ACCOUNTING CLASSIFICATION ACCOUNTING
STATION CONTRACT OBLIG CHANGE ORDER OB NET OBLIG
<S> <C> <C> <C>
AA 21 22035 25J5J01P5110 25CZ S2011322P086 W56HZV $ .00
*AB 21 3 2035 35J5J01 P5110 31E9 S20113 W56HZV $2,649,204.47
*AC 21 4 2035 45J5J01 P5110 31E9 S20113 W56HZV $7,597,718.48
*AD 21 4 2035 45J5J04 P5110 31E1 S20113 W56HZV $5,198,438.96
$ .00
$ .00
$ .00
$ .00
$ .00
$ .00
$ .00
$ .00
</TABLE>
REMARKS: * Page changed by Modification P00006; previously changed by
Modification PZ0004.
<PAGE> 127
SECTION G - CONTRACT ADMINISTRATION DATA PIIN: DAAE07-94-C-0406 Page 18b of 37
PART 2 - PROGRAM BREAKDOWN (CONT)
MODIFICATION NO.: P00006
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
CHANGE XXXXXXXXXXX CONTRACT OBLIG CHANGE ORDER CONTINGENCY RESERVE DECOMMIT
ACR: AA TOTAL THIS
CLIN: 0001AA QTY ACTION PRIOR AMT $8,860,000.00
NOMEN: Up Armor XM1109 100
DRCMS: 51103446 THIS ACTION $ .00
MIPR:
CUSTOMER ORDER NO: A1-2-P50042TJZ TOTAL $8,860,000.00
PRON: JZ-2-2P086-JZ-EH
PRON VALUE: TDO XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX
CHANGE XXXXXXXXXXX CONTRACT OBLIG CHANGE ORDER CONTINGENCY RESERVE DECOMMIT
*ACR: AB TOTAL THIS
CLIN: 0002AA QTY ACTION PRIOR AMT $ .00
NOMEN: UA-ECV XM1114 53 53
DRCMS: 51105J3446 THIS ACTION $2,649,204.47
MIPR:
CUSTOMER ORDER NO: A13P50042TJZ TOTAL $2,649,204.47
PRON: JZ-3-2P879-JZ
PRON VALUE: TDO XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX
CHANGE XXXXXXXXXXX CONTRACT OBLIG CHANGE ORDER CONTINGENCY RESERVE DECOMMIT
*ACR: AC TOTAL THIS
CLIN: 0003AA QTY ACTION PRIOR AMT $.00
NOMEN: UA-ECV XM1114 152 152
DRCMS: 51105J3446 THIS ACTION $7,597,718.48
MIPR:
CUSTOMER ORDER NO: A14P50042TJZ TOTAL $7,597,718.48
PRON: JZ-4-2P880-JZ
PRON VALUE: TDO XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX
CHANGE XXXXXXXXXXX CONTRACT OBLIG CHANGE ORDER CONTINGENCY RESERVE DECOMMIT
*ACR: AD TOTAL THIS
CLIN: 0004AA QTY ACTION PRIOR AMT $.00
NOMEN: UA-ECV XM1114 104 104
DRCMS: 51105J8992 THIS ACTION $5,198,438.96
MIPR:
CUSTOMER ORDER NO: A14P50102TFF TOTAL $5,198,438.96
PRON: FF-4-2P881-FF
PRON VALUE: TDO XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX
</TABLE>
REMARKS: * Page changed by Modification P00006; previously changed by
Modification PZ0004.
<PAGE> 128
DAAE07-94-C-0406
Modification P00006
Page 26 of 37
H.12 OPTION TO INCREASE VEHICLE QUANTITIES
H.12.1 Option Quantities. The Government reserves the right to increase the base
quantity of XM1114 UA-ECV vehicles by an additional quantity not to exceed 50%
of the total base quantity of XM1114 UA-ECV vehicles, or 155. The option
vehicles may be any single model or combination of models, XM1114, XM1115,
and/or XM1116.
H.12.2 Option Period. The Contracting Officer may exercise an option for an
additional quantity of vehicles at any time in one or more increments, but the
right to do so shall expire 180 days prior to the delivery of the last scheduled
production vehicle as shown in Section F of this contract. The Contractor shall
provide notice to the Contracting Officer 30 days before expiration of the
Option Period, or 210 days before the last scheduled delivery.
H.12.3 Unit Prices. The unit price to be paid for vehicles added by exercise of
option shall be the option unit price specified in Section B for XM1114, except
that XM1115 or XM1116 shall be incorporated with a negotiated delta from the
XM1114 option price. In the event that the Government intends to exercise an
option increasing the rate of production, the Government reserves the right to
require the submission of complete cost and pricing data and consideration in
the form of a reduced unit price for the option vehicles due to the economies
and efficiencies associated with increased production rate.
H.12.4 Delivery. The basic contract quantities are scheduled at a constant rate
of production through December 1996. The Government reserves the right to insert
option quantities into the existing delivery schedule and extend the delivery of
contract quantities if a customer requires earlier delivery than can be
accomodated by adding the customer quantities at the end of the existing
contract schedule. It is mutually agreed that the parties intent is to minimize
production rate/delivery rate fluctuations whenever possible. Therefore, the
parties agree to coordinate production and delivery schedules to ensure the best
opportunity to minimize said rate changes.
H.12.5 The U.S. Government may exercise the option under this clause to fulfill
Foreign Military Sales (FMS) commitments undertaken by the U.S. Government on
behalf of a foreign country. At the date of exercise of this option, the U.S.
Government will identify the foreign country for the purpose of negotiation and
equitable price adjustment for any additional cost or profit consideration
attributable to Foreign Military Sales pursuant to and included in DFARS
225.7304 and FAR 15.905-2. Failure to agree to such an equitable adjustment
shall be treated as a dispute within the meaning of the clause of this contract
entitled "DISPUTES".
* Page added by Modification P00006.
<PAGE> 129
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00007
3. EFFECTIVE DATE
24 MAR 1995
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
JEAN SCOTT /810-574-8822
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State
and ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 130
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
No change to obligation data
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS. IT
MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: THE CHANGES SET FORTH IN
ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X MUTUAL AGREEMENT OF THE PARTIES
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this document and return
copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings,
including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
Wilfred T. O'Gara - President
15B. CONTRACTOR/OFFEROR
/s/ Wilfred T. O'Gara
----------------------------------
(Signature of person authorized to sign)
15C. DATE SIGNED
3/23/95
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
SHARON C. THOMAS
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Sharon C. Thomas
-----------------------------------
(Signature of Contracting Officer)
16C. DATE SIGNED
24 MAR 1995
<PAGE> 131
DAAE07-94-C-0406
Modification P00007
PROGRAM: Up Armor for the High Mobility Multipurpose Wheeled
Vehicle (HMMWV) XM1109
CONTRACT: DAAE07-94-C-0406
MODIFICATION: P00007
AMOUNT OF THIS ACTION: $0.00
1. The purpose of this Modification P00007 is to incorporate into the contract,
Request for Waiver #W20 000, dated 21 December 1994 and to extend the contract
delivery schedule by thirty (30) days as set forth below:
a. Request for Waiver #W20 000, titled "M1109 HMMWV Roof Cracks P/N
4668000", with its vehicle repair/rework and field repair procedures, is
attached hereto and added to the contract at Section C, paragraph C.5. The
waiver addresses the presence of the cracks near the isolator mounts located on
the underside of the roof but they do not pose a vehicle safety or structural
hazard. It covers Vehicle No.'s 010 through 087 and repair on vehicles located
at the contractor's facility has been successfully completed. Page 7b of 37 of
the contract is therefore deleted and the attached new page 7b of 37 is
substituted in lieu thereof.
b. The contract delivery schedule is extended for thirty (30) days,
from February/95 through March/95. Paragraph F5, titled "Required Delivery
Schedule", page 17 of 37, is hereby deleted from the contract and the attached
new page 17 is substituted in lieu thereof.
2. As a result of the foregoing, the contract price is neither increased or
decreased and all other terms and conditions, except as previously changed,
remain unchanged and are in full force and effect.
<PAGE> 132
DAAE07-94-C-0406
Modification P00007
Page 7b of 37
control. The air conditioning systems must be compatible with a 24 volt
electrical system. It is desired that the system be capable of reducing an
outside ambient air temperature of 90 degrees F by 20 degrees F.
C.4.12 The vehicle side elevation signature will be similar to that of the M1025
slant back. The crew compartment shall be protected from the rear by a fixed
armor cargo barrier with one upper sliding door, and armor panels extending from
the top of the fender wells to the underside of the cargo cover or roof. The
upper sliding door shall be positively latched in the open and closed positions.
The sliding door shall have a manually released, automatic positive stop at a
position 3 to 6 inches from the closed position.
C.4.13 The vehicle design shall provide improvements over the XM1109
configuration on the following hardware items:
C.4.13.1 Door locks and latches-sequence lockout, improved mechanism
reliability.
C.4.13.2 Windshield defrost improvement.
C.4.13.3 Automotive component access and maintainability.
C.4.14 All ballistic glass on the vehicle shall be "white" glass. This glass
shall allow for the unobstructed use of night vision goggles by the crew.
C.4.15 The XM1114 vehicle shall be painted with a three-color camouflage pattern
in accordance with O'Gara-Hess & Eisenhardt armoring Company drawing No.
4668002, Pattern, Camouflage Paint, EA-HMMWV, unless otherwise directed by the
PCO.
C.4.16 The Contractor shall host a start of work meeting to discuss the
requirements of the Up-Armored ECV HMMWV and shall host four 1 day meetings for
the status of work being performed under this delivery order.
C.5 WAIVER*
The following waiver is incorporated into the contract:
WAIVER # TITLE DATE
W20 000 M1109 HMMWV Roof Cracks P/N 4668000 21 DEC 94
*Added by Modification P00007
<PAGE> 133
<TABLE>
<CAPTION>
DAAE07-94-C-0406
REQUIRED DELIVERY SCHEDULE Page 17 of 37
MONTHS AFTER AWARD
CLIN SERVICE MODEL NOMEN QTY (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12)
MAY 94 JUN 94 JUL 94 AUG 94 SEP 94 OCT 94 NOV 94 DEC 94 JAN 95 FEB 95 MAR 95 APR 95
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
0001AA ARMY XM1109 UP ARMOR
HMMWV 100 0 0 0 0 5 25 9 0 15 36 10
0
0
0
0
0
0
0
0
0
CUMULATIVE PAGE TOTAL: 100 0 0 0 0 5 25 9 0 15 36 10 0
* REMARKS: Page changed by Modification P00007; previously changed by Modification P00001.
</TABLE>
<PAGE> 134
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 4
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00008
3. EFFECTIVE DATE
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
MAJOR MARK NEUMANN /810-574-7083
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not
extended. Offers must acknowledge receipt of this amendment prior to the hour
and date specified in the solicitation or as amended by one of the following
methods:
<PAGE> 135
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
No change to obligation data
B 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE
CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office,
appropriation data, etc.) SET FORTH IN ITEM 14, PURSUANT TO
THE AUTHORITY OF FAR 43.103(b).
X C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO
AUTHORITY OF:
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this
document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where
feasible.)
See second page for description.
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
Brian Quinn
Manager Military Programs
15B. CONTRACTOR/OFFEROR
/s/ Brian Quinn
(Signature of person authorized to sign)
15C. DATE SIGNED
7/11/95
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
16B. UNITED STATES OF AMERICA
BY
(Signature of Contracting Officer)
16C. DATE SIGNED
<PAGE> 136
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00008 2 of 4
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION A - SUPPLEMENTAL INFORMATION
A-1
PROGRAM: Up Armor High Mobility Multipurpose Wheeled Vehicle
(HMMWV) XM1109
CONTRACT: DAAE07-94-C-0406
MODIFICATION: P00008
AMOUNT OF THIS ACTION: $0.00
1. The purpose of this unilateral modification is to provide contractual
shipping instructions for 18 each CLIN 0001AA vehicles.
2. Vehicles for which shipping instructions have not been received may continue
to be shipped in place.
3. CLIN 0001AA, Section B, reference MILSTRIP - W805BG4272L001, has been changed
from 5 to 9. Shipment has already been made. This change in quantity has been
made to make records match actual shipment. DO NOT RESHIP
4. Reference Modification P00006 page 3, para. 2.e. (1)(e), the definitization
contract date has been extended to 31 Oct 95.
5. There is no change to the contract price as a result of this modification.
(End of narrative A004)
<PAGE> 137
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00008 3 of 4
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0001AA PRODUCTION QUANTITY
PRON: JZ22P086JZ ACRN: AA
AMS CD: 51103446
</TABLE>
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2310-01-389-7558
NOUN: UP ARMOR
FSCM: 00000
PART NR: 9999999999
SECURITY CLASS: UNCLASSIFIED
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ ------- ---- ------ -------- -----
001 W56HZW4096S101 Y00000 M 3
PROJ CD BRK BLK PT
------- ----------
IJ8
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
001 25 94NOV15
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: PARCEL POST ADDRESS
-------------------
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED UNDER
THIS REQUISITION.
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
003 W80SBG4272L001 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
001 9 94DEC30
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
---------------
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
007 W80SBG5145L005 280NSV M 1
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<PAGE> 138
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00008 4 of 4
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C> <C> <C>
001 18 95AUG30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
---------------
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
<PAGE> 139
<TABLE>
<CAPTION>
PADDS ERRATA SHEET PCN P10CEH9124R
REG REF SIIN/P DAAE0794C0406 AMD/MOD P00008 PAGE 1
ACTION CODE REGULATION REFERENCE TITLE
<S> <C> <C> <C>
</TABLE>
**************************************
* NO CHANGES TO TERMS AND CONDITIONS *
**************************************
******END OF ERRATA SHEET******
<PAGE> 140
PROGRAM: Up Armor Expanded Capacity Vehicle (UA-ECV),
High Mobility Multipurpose Wheeled Vehicle
(HMMWV), XM1114
CONTRACT: POOOO6
PREVIOUS CONTRACT AMOUNT: $ 8,860,000.00
AMOUNT OF THIS ACTION: $15,445,361.91
TOTAL CONTRACT AMOUNT: $24,305,361.91 5
1. This is a bilateral letter contract modification to incorporate 309 each
UA-ECVs, XM1114, obligated at 50% of the Ceiling Price, plus an option of 50% of
the quantity to be exercised during the production of the 309. The Not-To-Exceed
Ceiling Unit Price is $99,969.98, total Ceiling Amount is $30,890,723.82. The
obligated unit price (50%) is $49,984.99.
2. The Government and the Contractor agree to modify Contract
DAAE07-94-C-0406 as described below.
a. SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
SECTION B is modified to add additional vehicles as follows:
<TABLE>
<CAPTION>
Obligated Obligated
CLIN DESCRIPTION QTY UNIT PRICE AMOUNT
<S> <C> <C> <C> <C>
0002AA Up-Armored Expanded
Capacity HMMWV (UA-ECV) 53 $ 49,984.99 $ 2,649,204.47
0003AA Up-Armored Expanded
Capacity HMMWV (UA-ECV) 152 $ 49,984.99 $ 7,597,718.48
0004AA Up-Armored Expanded
Capacity HMMWV (UA-ECV) 104 $ 49,984.99 $ 5,198,438.96
TOTAL $15,445,361.91
</TABLE>
b. SECTION C - DESCRIPTION/SPECIFICATIONS/WORK STATEMENT
C.4 UP-ARMORED ECV HMMWV STATEMENT OF WORK (7 March 1995) is
incorporated into the Contract applicable to CLINs 0002AA,
0003AA and 0004AA.
c. SECTION F - REQUIRED DELIVERY SCHEDULE
F.5 REQUIRED DELIVERY SCHEDULE is revised to reflect the addition
of the above vehicles.
2
<PAGE> 141
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 3
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00009
3. EFFECTIVE DATE
19 SEP 1995
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
MAJOR MARK NEUMANN /810-574-7083
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not
extended. Offers must acknowledge receipt of this amendment prior to the hour
and date specified in the solicitation or as amended by one of the following
methods:
<PAGE> 142
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
No change to obligation data
F 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
X B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO
AUTHORITY OF:
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor X is not, is required to sign this
document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
See second page for description.
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
15B. CONTRACTOR/OFFEROR
(Signature of person authorized to sign)
15C. DATE SIGNED
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
KENNETH BOUSQUET
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Kenneth Bousquet
(Signature of Contracting Officer)
16C. DATE SIGNED
19 SEP 1995
<PAGE> 143
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00009 2 of 3
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION A - SUPPLEMENTAL INFORMATION
A-1
PROGRAM: Up Armor High Mobility Multipurpose Wheeled Vehicle
(HMMWV) XM1109
CONTRACT: DAAE07-94-C-0406
MODIFICATION: P00009
AMOUNT OF THIS ACTION: $0.00
1. The purpose of this unilateral modification is to provide contractual
shipping instructions for 4 each CLIN 0001AA vehicles.
DO NOT DUPLICATE SHIPMENT.
2. Vehicles for which shipping instructions have not been received may continue
to be shipped in place.
3. There is no change to the contract price as a result of this modification.
(End of narrative A005)
<PAGE> 144
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00009 3 of 3
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C>
0001AA PRODUCTION QUANTITY
PRON: JZ22P086JZ ACRN: AA
AMS CD: 51103446
</TABLE>
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2310-01-389-7558
NOUN: UP ARMOR
FSCM: 00000
PART NR: 9999999999
SECURITY CLASS: UNCLASSIFIED
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW4096S101 Y00000 M 3
PROJ CD BRK BLK PT
IJ8
DEL REL CD QUANTITY DEL DATE
001 21 94NOV15
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED UNDER
THIS REQUISITION.
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
008 W80SBG5257L001 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 4 950CT31
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
<PAGE> 145
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 3
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00010
3. EFFECTIVE DATE
20 OCT 1995
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
MAJOR MARK NEUMANN /810-574-7083
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not
extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 146
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
No change to obligation data
F 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
X B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO
AUTHORITY OF:
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor X is not, is required to sign this
document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
See second page for description.
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
15B. CONTRACTOR/OFFEROR
(Signature of person authorized to sign)
15C. DATE SIGNED
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
MARK NEUMANN
MAJ F.A.
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Mark R Newman
(Signature of Contracting Officer)
16C. DATE SIGNED
20 OCT 1995
<PAGE> 147
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00010 2 of 3
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION A - SUPPLEMENTAL INFORMATION
A-1
PROGRAM: Up Armor High Mobility Multipurpose Wheeled Vehicle
(HMMWV) XM1109
CONTRACT: DAAE07-94-C-0406
MODIFICATION: P00009
AMOUNT OF THIS ACTION: $0.00
1. This is to formalize PCO letter dated 13 Oct 95.
2. The purpose of this unilateral modification is to provide contractual
shipping instructions for 21 each CLIN 0001AA vehicles.
DO NOT DUPLICATE STATEMENT.
3. This should close out entire quantity of 100 trucks.
4. There is no change to the contract price as a result of this
modification.
(End of narrative A006)
<PAGE> 148
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00010 3 of 3
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C>
0001AA PRODUCTION QUANTITY
PRON: JZ22P086JZ ACRN: AA
AMS CD: 51103446
</TABLE>
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2310-01-389-7558
NOUN: UP ARMOR
FSCM: 00000
PART NR: 9999999999
SECURITY CLASS: UNCLASSIFIED
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW4096S101 M 3
DEL REL CD QUANTITY
001 DELETED
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED UNDER
THIS REQUISITION.
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
009 W80SBG5284L001 W80N5V M 2
DEL REL CD QUANTITY DEL DATE
001 21 950CT24
FOB POINT: ORIGIN
*** CLIN 0001AA ***
SHIP TO: FREIGHT ADDRESS
(W80N5V) XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC
TAYLOR BARRACKS
MANNHEIM GE
<PAGE> 149
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00011
3. EFFECTIVE DATE
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
STEVE SABBAGH /810-574-8823
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended,
is not extended.
Offers must acknowledge receipt of this amendment prior
to the hour and date specified in the solicitation or as amended by one of the
following methods:
<PAGE> 150
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
See continuation sheet
L 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO
AUTHORITY OF:
X H-4 CONTRACT DEFINITIZATION
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this
document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
See second page for description.
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M.J. Lennon, VP Sales, Mrkt's, Programs
15B. CONTRACTOR/OFFEROR
M J Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
12/18/95
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
MARK R NEUMANN
MAJ F.A.
CONTRACTING OFFICER
16B. UNITED STATES OF AMERICA
BY /s/ Mark R Neumann
(Signature of Contracting Officer)
16C. DATE SIGNED
19 DEC 95
<PAGE> 151
CONTRACT: DAAE07-94-C-0406 PZ00011, UA HMMWV, XM1114
PREVIOUS CONTRACT AMOUNT: $24,305,361.91
AMOUNT OF THIS ACTION: 11,406,738.09
TOTAL CONTRACT AMOUNT: $35,712,100
1. This is a bilateral modification to definitize the price of the XM1114
previously awarded under modification P00006 and funded at 50% of ceiling. This
modification constitutes notice by the Contracting Officer that funds in the
amount of $11,406,738.09 is available for award.
2. The Government and the contractor agree to modify this contract
DAAE07-94-C-0406 as described below:
a. SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
SECTION B is modified to add the definitized price. Pages 1a,1b,1c hereby
deleted and attached revised pages 1a,1b,1c is substituted in lieu thereof to
reflect vehicle base and option prices. CLIN 0005AA, page 1d is added to reflect
the option price.
b. SECTION C - DESCRIPTION/SPECIFICATIONS/STATEMENT OF WORK
NO CHANGE
c. SECTION F - REQUIRED DELIVERY
Page 17a is hereby deleted and attached revised page 17a is substituted in lieu
thereof to reflect the new delivery schedule.
d. SECTION G - CONTRACT ADMINISTRATION DATA
Page 18b is hereby deleted and attached the revised page 18b is substituted in
lieu thereof to reflect the increase funding as part of this Definitization.
Page 18c are hereby added to reflect the increase funding as part of this
Definitization.
e. SECTION H - SPECIAL CONTRACT PROVISIONS
Page 20 is hereby deleted to reflect the deletion of H.5 and H.6, this
page number is left in reserve.
Page 26 is hereby deleted and the attached revised page 26 is
substituted in lieu thereof to reflect the change in delivery date and includes
the price of the option.
<PAGE> 152
CONTRACT: DAAE07-94-C-0406 PZ00011, UA HMMWV , XM1114
(Continuation)
3. The contract amount is hereby increased by $11,406,738.09 from
$24,305,361.91for a current total of $35,712,100
4. All other terms and conditions remain unchanged.
<PAGE> 153
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00011
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0002AA PRODUCTION QUANTITY 53 EA $86,900.00000 $ 4,605,700.00
------------- --------------
</TABLE>
PRON: JZ32P879JZ ACRN: AB
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 9999-99-999-9999
NOUN: XM1114 UP ARMORED - HMMWV
SECURITY CLASS: UNCLASSIFIED
Up Armor Expanded Capacity Vehicle
(UA-ECV) HMMWV, XM1114, as further
described in Section C.4
(End of narrative B001)
SECTION D - Packaging and Marking
Best Commercial Packing
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C> <C>
001 W56HZW5067S101 Y00000 M 3
</TABLE>
<TABLE>
<CAPTION>
PROJ CD BRK BLK PT
------- ----------
<S> <C> <C>
IJ8
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C> <C>
001 53 96MAY30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0002AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED UNDER
THIS REQUISITION.
<PAGE> 154
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00011
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0003AA PRODUCTION QUANTITY 152 EA $86,900.00000 $13,208,800.00
------------- --------------
</TABLE>
PRON: JZ42P880JZ ACRN: AC
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 9999-99-999-9999
SECURITY CLASS: UNCLASSIFIED
NOUN: Up Armor Expanded Capacity
Vehicle (UA-ECV) HMMWV, XM1114, as
further described in Section C.4
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
The Ceiling Unit Price for the Vehicle
is $99,969.98, funded at 50%. The
Government's Limitation of Liability
for these vehicles is $7,597,718.48.
(End of narrative C001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C> <C>
001 W56HZW5067S102 Y00000 M 3
</TABLE>
<TABLE>
<CAPTION>
PROJ CD BRK BLK PT
------- ----------
<S> <C>
IJ8
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 152 96OCT30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0003AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
ITEMS REQUIRED UNDER THIS
REQUISITION.
<PAGE> 155
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00011
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0004AA PRODUCTION QUANTITY 104 EA $86,900.00000 $ 9,037,600.00
------------- --------------
</TABLE>
PRON: FF42P881FF ACRN: AD
AMS CD: 51108992
SECTION B - Supplies or Services and
Prices/Costs
NSN: 9999-99-999-9999
PART NR: 0000000
SECURITY CLASS: UNCLASSIFIED
NOUN: Up Armor Expanded Capacity
Vehicle (UA-ECV) HMMWV, XM1114, as
further described in Section C.4
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
The Ceiling Unit Price for the Vehicle
is $99,969.98, funded at 50%. The
Government's Limitation of Liability
for these vehicles is $5,198,438.96.
(End of narrative C001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C> <C>
001 W56HZW5067S103 Y00000 M 3
</TABLE>
<TABLE>
<CAPTION>
PROJ CD BRK BLK PT
------- ----------
<S> <C>
IBB
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 104 97FEB28
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0004AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
ITEMS REQUIRED UNDER THIS
REQUISITION.
<PAGE> 156
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00011
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0005AA OPTION QUANTITY EA $ 86,900.00000 $86,900.00
-------------- ----------
</TABLE>
SECTION B - Supplies or Services and
Prices/Costs
NOUN: UP ARMOR ECV XM1114
SECURITY CLASS: UNCLASSIFIED
OPTION QUANTITY, PURSUANT TO SECTION
H CLAUSE ENTITLED OPTION FOR INCREASED
QUANTITY -- SEPARATELY PRICED LINE ITEM
THE QUANTITY STATED FOR THE OPTION
CLIN DOES NOT FORM A PART OF THE BASIC
CONTRACTUAL QUANTITY. PART OR ALL OF
IT MAY, HOWEVER, BE ADDED TO THE
CONTRACT BY EXERCISE OF THE OPTION
CLAUSE, AT THE DISCRETION OF THE
GOVERNMENT.
THE FAILURE OF THE OFFEROR TO INSERT
A UNIT PRICE APPLICABLE TO THE
OPTION QUANTITY SHALL BE DEEMED TO
MEAN THAT THE OFFEROR WILL SUPPLY
ALL OR ANY PART OF THE OPTION,
IF EXERCISED BY THE GOVERNMENT, AT
THE BASIC CONTRACT UNIT PRICE, AND
THE OFFER WILL BE EVALUATED FOR
AWARD ACCORDINGLY.
(End of narrative B001)
SECTION D - Packaging and Marking
BEST COMMERCIAL PACK
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 96SEP30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0005AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
ITEMS REQUIRED UNDER THIS
REQUISITION.
<PAGE> 157
DAAE07-94-C-0406 REQUIRED DELIVERY SCHEDULE
<TABLE>
<CAPTION>
A A B C D E F G H I J K L M N
1 SEP 95 OCT 95 NOV 95 DEC 95 JAN 96 FEB 96 MAR 96 APR 96 MAY 96 JUN 96 JUL 96 AUG 96 SEP 96
2 QTY
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3 XM1114 UA HMMWV
4
5
6 CLIN TOTAL QTY
7
8 0002AA 53 19 23 11
9
10 0003AA 152 12 23 23 23 23 23 23
11
12 0004AA 104
13
14
15
16 TOTAL 309
17
18
19
20
</TABLE>
<TABLE>
<CAPTION>
A A O P Q R S
1 OCT 96 NOV 96 DEC 96 JAN 97 FEB 97
2
<S> <C> <C> <C> <C> <C>
3 XM1114 UA HMMWV
4
5
6 CLIN TOTAL QTY
7
8 0002AA 53
9
10 0003AA 152 2
11
12 0004AA 104 21 23 23 23 14
13
14
15
16 TOTAL 309
17
18
19
20
</TABLE>
SECTION F PAGE 17a
<PAGE> 158
SECTION G - CONTRACT ADMINISTRATION DATA PIIN: DAAE07-94-C-0406 Page 18b of 37
PART 2 - PROGRAM BREAKDOWN (CONT)
MODIFICATION NO.: PZ0011
<TABLE>
<CAPTION>
CHANGE CONTRACT OBLIG CHANGE ORDER CONTINGENCY RESERVE DECOMMIT
ACR: AA TOTAL THIS
CLIN: 0001AA QTY ACTION PRIOR AMT $8,860,000.00
<S> <C> <C> <C> <C> <C> <C> <C>
NOMEN: Up Armor XM1109 100
DRCMS: 51103446 THIS ACTION $0.00
MIPR:
CUSTOMER ORDER NO.: A1-2-P50042TJZ TOTAL $8,860,000.00
PRON: JZ-2-2P086-JZ-EH
PRON VALUE: TDO
<CAPTION>
CHANGE CONTRACT OBLIG CHANGE ORDER CONTINGENCY RESERVE DECOMMIT
*ACR: AB TOTAL THIS
CLIN: 0002AA QTY ACTION PRIOR AMT $2,649,204.47
NOMEN: UA-ECV XM1114 53
DRCMS: 51105J3446 THIS ACTION $1,956,495.53
MIPR:
CUSTOMER ORDER NO.: A13P50042TJZ TOTAL $4,605,700.00
PRON: JZ-3-2P879-JZ
PRON VALUE: TDO
<CAPTION>
CHANGE CONTRACT OBLIG CHANGE ORDER CONTINGENCY RESERVE DECOMMIT
*ACR: AC TOTAL THIS
CLIN: 0003AA QTY ACTION PRIOR AMT $7,597,718.48
NOMEN: UA-ECV XM1114 152
DRCMS: 51105J3446 THIS ACTION $5,611,081.52
MIPR:
CUSTOMER ORDER NO.: A14P50042TJZ TOTAL $13,208,800.00
PRON: JZ-4-2P880-JZ
PRON VALUE: TDO
<CAPTION>
CHANGE CONTRACT OBLIG CHANGE ORDER CONTINGENCY RESERVE DECOMMIT
*ACR: AD TOTAL THIS
CLIN: 0004AA QTY ACTION PRIOR AMT $5,198,438.96
NOMEN: UA-ECV XM1114 104
DRCMS: 51105J8992 THIS ACTION $3,839,161.04
MIPR:
CUSTOMER ORDER NO.: A14P50102TFF TOTAL $9,037,600.00
PRON: FF-4-2P881-FF
PRON VALUE: TDO
</TABLE>
REMARKS: * Page changed by Modification PZ0011; previously changed by
Modification P00006.
STA FORM 1263-2
<PAGE> 159
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00011 18c
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT
- ---- ---- --- -- ---- --- --- -- ----- ------ -----------------
AMOUNT
------
<S> <C> <C> <C> <C> <C> <C>
0002AA JZ32P879JZ AB 2 $ 2,649,204.47 $1,956,495.53 $ 4,605,700.00
51103446
0003AA JZ42P880JZ AC 2 $ 7,597,718.48 $5,611,081.52 $13,208,800.00
51103446
0004AA FF42P881FF AD 2 $ 5,198,438.96 $3,839,161.04 $ 9,037,600.00
51108992
NET CHANGE $11,406,738.09
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
- ---- ---------- -------------- ------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
AB 21 32035 35J5J01P5110 31E9 S2011332P879 W56HZV $1,956,495.53
AC 21 42035 45J5J01P5110 31E9 S2011342P880 W56HZV $5,611,081.52
AD 21 42035 45J5J04P5110 31E1 S2011342P881 W56HZV $3,839,161.04
NET CHANGE $11,406,738.09
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
- --- ------ --- ----- OF AWARD AMOUNT OBLIGATED AMOUNT
------------ ----------------- --------- ------
<S> <C> <C>
$24,305,361.91 $11,406,738.09 $35,712,100.00
</TABLE>
<PAGE> 160
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00011 18c
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
RESERVED
<PAGE> 161
DAAE07-94-C-0406
Modification PZ00011
Page 26 of 37
H.12 OPTION TO INCREASE VEHICLE QUANTITIES
H.12.1 Option Quantities. The Government reserves the right to increase the base
quantity of XM1114 UA-ECV vehicles by an additional quantity not to exceed 50%
of the total base quantity of XM1114 UA-ECV vehicles, or 155. The option
vehicles may be any single model or combination of models, XM1114, XM1115,
and/or XM1116.
H.12.2 Option Period. The Contracting Officer may exercise an option for an
additional quantity of vehicles at any time in one or more increments, but the
right to do so shall expire 240 days prior to the delivery of the last scheduled
production vehicle as shown in Section F of this contract. The Contractor shall
provide notice to the Contracting Officer 30 days before expiration of the
Option Period, or 270 days before the last scheduled delivery or unless
otherwise agreed to by both parties.
H.12.3 Unit Prices. The unit price to be paid for vehicles added by exercise of
option shall be the option unit price specified in Section B for XM1114, except
that XM1115 or XM1116 shall be incorporated with a negotiated delta from the
XM1114 option price. The option price shall be $86,900 per unit. Failure to
reach agreement on a equitable adjustment for the difference in unit prices for
the MX1115 and XM1116 shall be treated as a dispute within the meaning of the
clause of this contract entitled "DISUTES"
H.12.4 Delivery. The basic contract quantities are scheduled at a constant rate
of production through February 1997. The Government reserves the right to insert
option quantities into the existing delivery schedule and extend the delivery of
contract quantities if a customer requires earlier delivery than can be
accommodated by adding the customer quantities at the end of the existing
contract schedule. It is mutually agreed that the parties intent is to minimize
production rate/delivery rate fluctuations whenever possible. Therefore, the
parties agree to coordinate production and delivery schedules to ensure the best
opportunity to minimize said rate changes.
H.12.5 The U.S. Government may exercise the option under this clause to fulfill
Foreign Military Sales (FMS) commitments undertaken by the U.S. Government on
behalf of a foreign country at the unit price of $86,900 for the XM1114 model
vehicles and at the unit price negotiated for the XM1115 and XM1116 pursuant to
H.12.3 above.
* page substitution by Modification PZ00011.
<PAGE> 162
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00012
3. EFFECTIVE DATE
7 FEB 1996
4. REQUISITION/PURCHASE REQ. NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
STEVE SABBAGH /810-574-8823
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO.
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in
Item 14. The hour and date specified for receipt of Offers
is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 163
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
ACRN AE: NET INCREASE $7,038,900.00
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: THE CHANGES SET FORTH
IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO
AUTHORITY OF:
X Clause H.12, H.12.4
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this
document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
W.T. O'GARA - CEO
15B. CONTRACTOR/OFFEROR
/s/ W T O'Gara
(Signature of person authorized to sign)
15C. DATE SIGNED
2/6/96
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
Mark R Neumann
MAJ F.A.
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Mark R Neumann
(Signature of Contracting Officer)
16C. DATE SIGNED
7 FEB 96
<PAGE> 164
CONTRACT: DAAE07-94-C-0406, P00012, UA HMMWV, XM1114
PREVIOUS CONTRACT AMOUNT: $35,712,100
AMOUNT OF THIS ACTION: $ 7,038,900
TOTAL CONTRACT AMOUNT: $42,751,000
1. This is a bilateral modification to exercise an options per clause H.12
for 81 trucks.
2. The Government and the contractor agree to modify this contract
DAAE07-94-C-0406 as described below:
a. SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
SECTION B is modified to add the funds and quantities to CLIN 0005AA. Pages 1a,
1b, 1c, 1d hereby deleted and attached revised pages 2a, 2b, 2c, 2d is
substituted in lieu thereof to reflect the addition of 81 ea option and to
correct an administrative page number error from MOD PZ00011.
b. SECTION C - DESCRIPTIONS/SPECIFICATIONS/STATEMENT OF WORK
NO CHANGE
c. SECTION F - REQUIRED DELIVERY
Page 17a is hereby deleted and attached revised page 17a is substituted in lieu
thereof to reflect the new delivery schedule.
d. SECTION G - CONTRACT ADMINISTRATION DATA
Page 18 d are hereby added to reflect the increase funding as part of this
exercise of option.
e. SECTION H - SPECIAL CONTRACT PROVISIONS
NO CHANGE
3. The contract amount is hereby increased by $7,038,900 from $35,712,100
for a current total of $42,751,000
4. All other terms and conditions remain unchanged.
<PAGE> 165
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00012 2a
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0002AA PRODUCTION QUANTITY 53 EA $86,900.00000 $ 4,605,700.00
------------- --------------
PRON: JZ32P879JZ ACRN: AB
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 9999-99-999-9999
NOUN: XM1114 UP ARMORED - HMMWV
SECURITY CLASS: UNCLASSIFIED
Up Armor Expanded Capacity Vehicle
(UA-ECV) HMMWV, XM1114, as further
described in Section C.4.
(End of narrative B001)
SECTION D - Packaging and Marking
Best Commercial Packing
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C>
001 W56HZW5067S101 Y00000 M 3
</TABLE>
<TABLE>
<CAPTION>
PROJ CD BRK BLK PT
------- ----------
<S> <C>
IJ8
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 53 96MAY30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0002AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
ITEMS REQUIRED UNDER THIS
REQUISITION.
<PAGE> 166
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00012 2b
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0003AA PRODUCTION QUANTITY 152 EA $86,900.00000 $13,208,800.00
------------- --------------
</TABLE>
PRON: JZ42P880JZ ACRN: AC
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 9999-99-999-9999
SECURITY CLASS: UNCLASSIFIED
NOUN: Up Armor Expanded Capacity
Vehicle (UA-ECV) HMMWV, XM1114, as
further described in Section C.4
(End of narrative B001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C> <C>
001 W56HZW5067S102 Y00000 M 3
</TABLE>
<TABLE>
<CAPTION>
PROJ CD BRK BLK PT
------- ----------
<S> <C>
IJ8
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 152 96OCT30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0003AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
ITEMS REQUIRED UNDER THIS
REQUISITION.
<PAGE> 167
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00012 2c
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C>
0004AA PRODUCTION QUANTITY 104 EA $86,900.00000 $9,037,600.00
------------- -------------
</TABLE>
PRON: FF42P881FF ACRN: AD
AMS CD: 51108992
SECTION B - Supplies or Services and
Prices/Costs
NSN: 9999-99-999-9999
FSCM: 99999
PART NR: 0000000
SECURITY CLASS: UNCLASSIFIED
NOUN: Up Armor Expanded Capacity
Vehicle (UA-ECV) HMMWV, XM1114, as
further described in Section C.4
(End of narrative B001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C>
001 W56HZW5067S103 Y00000 M 3
</TABLE>
<TABLE>
<CAPTION>
PROJ CD BRK BLK PT
------- ----------
<S> <C>
IBB
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 104 97FEB28
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0004AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
ITEMS REQUIRED UNDER THIS
REQUISITION.
<PAGE> 168
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00012 2d
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0005AA PRODUCTION QUANTITY 81 EA $86,900.00000 $7,038,900.00
------------- -------------
</TABLE>
PRON: JZ62F559JZ ACRN: AE
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
SECURITY CLASS: UNCLASSIFIED
Up Armor Expanded Capacity Vehicle
(UA-ECV) HMMWV, XM1114, as described
in Section C.4
(End of narrative B001)
SECTION D - Packaging and Marking
BEST COMMERCIAL PACK
(End of narrative D001)
Best Commercial Pack
(End of narrative D002)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C> <C>
001 W56HZW6022S101A Y00000 M 3
</TABLE>
<TABLE>
<CAPTION>
PROJ CD BRK BLK PT
------- ----------
<S> <C>
IBB
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 81 97FEB28
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0005AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
ITEMS REQUIRED UNDER THIS
REQUISITION.
<PAGE> 169
DAAE07-94-C-0406 DELIVERY SCHEDULE FOR 390 (BASE & OPTION) SECTION F PAGE 17a
<TABLE>
<CAPTION>
A A
1
A A B C D E F G H I J K L M N
1 JAN 96 FEB 96 MAR 96 APR 96 MAY 96 JUN 96 JUL 96 AUG 96 SEP 96 OCT 9 NOV 96 DEC 9 JAN 97
2
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3 XM1114 UA HMMWV
4
5 CURRENT DELIVERY 19 23 23 23 23 23 23 23 23 23 23 23 23
6
7
8 CLIN 0005AA
</TABLE>
<TABLE>
<CAPTION>
A A
1
A A O P Q R S
1 FEB 9 MAR 97 APR 97 MAY 97 JUN 97
2
<S> <C> <C> <C> <C> <C>
3 XM1114 UA HMMWV
4
5 CURRENT DELIVERY 14
6
7
8 CLIN 0005AA 9 23 23 23 3
</TABLE>
<PAGE> 170
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00012
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
- ---- ---- --- -- ---- --- --- -- ----- ------ ----------------- ----------
<S> <C> <C> <C> <C> <C> <C>
0005AA JZ62F559JZ AE 1 $ 0.00 $7,038,900.00 $7,038,900.00
51103446
-------------
NET CHANGE $7,038,900.00
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
- ---- ---------- -------------- ------- -----------------
<S> <C> <C> <C> <C> <C>
AE 21 62035 65J5J01P5110 25CZ S2011362F559 W56HZV $7,038,900.00
-------------
NET CHANGE $7,038,900.00
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
- --- ------ --- ----- OF AWARD AMOUNT OBLIGATED AMOUNT
-------------- ----------------- --------- ------
<S> <C> <C> <C>
$35,712,100.00 $7,038,900.00 $42,751,000.00
</TABLE>
<PAGE> 171
CERTIFICATE OF PROCUREMENT INTEGRITY - MODIFICATION (NOV 1990)
(1) I, Brian Quinn, am the officer or employee responsible for
the preparation of this modification proposal and hereby certify that, to the
best of my knowledge and belief, with the exception of any information described
in this certification, I have no information concerning a violation or possible
violation of subsection 27(a), (b), (d), or (f) of the Office of Federal
Procurement Policy Act, as amended * (41 U.S.C. 423), (hereinafter referred to
as "the Act"), as implemented in the FAR, occurring during the conduct of this
procurement DAAE07-94-C-0406. P00012.
(contract and modification number)
(2) As required by subsection 27(e)(1)(B) of the Act, I
further certify that to the best of my knowledge and belief, each officer,
employee, agent, representative, and consultant of O'Gara-Hess & Eisenhardt
Armoring Co. [Name of Offeror] who has participated personally and substantially
in the preparation or submission of this proposal has certified that he or she
is familiar with, and will comply with, the requirements of subsection 27(a) of
the Act, as implemented in the FAR, and will report immediately to me any
information concerning a violation or possible violation of subsections 27(a),
(b), (d), or (f) of the Act, as implemented in the FAR, pertaining to this
procurement.
(3) Violations or possible violations: (Continue on plain
bond paper if necessary and label Certificate of Procurement Integrity -
Modification (Continuation Sheet), ENTER "NONE" IF NONE EXISTS) NONE
-----------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[Signature of the officer or employee responsible for the modification proposal
and date]
/s/ Brian G. Quinn 2/6/96
- --------------------------------------------------------------------------------
[Typed name of the officer or employee responsible for the modification
proposal]
Brian G. Quinn Manager Military Programs
- --------------------------------------------------------------------------------
* Subsections 27(a), (b), and (d) are effective on December 1, 1990. Subsection
27(f) is effective on June 1, 1991.
THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN AGENCY OF THE
UNTED STATES AND THE MAKING OF A FALSE, FICTITIOUS, OR FRAUDULENT CERTIFICATION
MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER TITLE 18, UNITED STATES CODE,
SECTION 1001.
(End of certification)
<PAGE> 172
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00013
3. EFFECTIVE DATE
4. REQUISITION/PURCHASE REQ. NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
MAJOR MARK NEUMANN /810-574-7083
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO.
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended,
is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 173
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
ACRN AF: NET INCREASE $3,974,247.86
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: THE CHANGES SET FORTH
IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO
AUTHORITY OF:
X FAR 43.103(a)
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this
document and return 1 copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
See second page for description.
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M.J. Lennon, President
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
2/12/96
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
MARK R NEUMANN
MAJ F.A.
CONTRACTING OFFICER
16B. UNITED STATES OF AMERICA
BY /s/ Mark R Neumann
(Signature of Contracting Officer)
16C. DATE SIGNED
13 FEB 96
<PAGE> 174
CONTRACT: DAAE07-94-C-0406 P00013, UA HMMWV, XM1114
PREVIOUS CONTRACT AMOUNT: $42,751,000
AMOUNT OF THIS ACTION: $ 3,974,247.86
TOTAL CONTRACT AMOUNT: $46,725,247.86
1. Per the Changes Clause FAR 52.243-1, this is a bilateral ceiling priced
modification to accelerate deliveries of 210 vehicles. The ceiling unit price is
37,849.97, and the total ceiling amount for this modification is $7,948,495.72.
2. The Government and the contractor agree to modify this contract
DAAE07-94-C-0406 as described below:
a. SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
SECTION B is modified to add the funds and CLIN 1001 AA is created. Page 2e is
added to reflect funding for accelerated deliveries.
b. SECTION F - REQUIRED DELIVERY
Page 17a is hereby deleted and attached revised page 17a is substituted in lieu
thereof to reflect the new delivery schedule.
c. SECTION G - CONTRACT ADMINISTRATION DATA
Page 18e are hereby added to reflect the increase funding as part of this
accelerated delivery.
d. SECTION H - SPECIAL CONTRACT PROVISIONS
Page 19 is hereby deleted and attached page 19 is substituted in lieu
thereof to reflect changes created by this modification.
Page 20 is hereby added to reflect changes created by this
modification.
Page 20a is added to establish the clause related to this accelerated
delivery.
Page 26 is hereby deleted and attached page 26 is substituted in lieu
thereof to reflect changes created by this modification.
3. All other terms and conditions remain unchanged.
<PAGE> 175
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00013 2e
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
1001AA SERVICES LINE ITEM 210 EA $ $3,974,247.86
---------- -------------
</TABLE>
PRON: JZ62F637JZ ACRN: AF
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NOUN: XM1114 DELIVERY ACCELERATION
SECURITY CLASS: UNCLASSIFIED
THE NOT-TO-EXCEED CEILING PRICE OF
$7,948,495.72.
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
FOR ALL OF CONTRACTED VEHICLES TO BE
DELIVERED NO LATER THAN 30 AUG 96
THE GOVERNMENT LIMITATION OF LIABILITY
FOR THESE VEHICLES IS $3,974,247.86.
(End of narrative C001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DLVR SCH PERF COMPL
REL CD DT QUANTITY
-------- ---------- --------
<S> <C> <C>
001 95AUG31 210
$3974247.86
</TABLE>
<PAGE> 176
ACCELERATED DELIVERY SCHEDULE FOR 390 XM 1114 UNDER CONTRACT DAAE07-94-C-0406
PAGE 17a
<TABLE>
<CAPTION>
A A B C D E F G H I
1 31 JAN 96 28 FEB 96 31 MAR 96 30 APR 96 31 MAY 96 30 JUN 96 31 JUL 96 31 AUG 96
2
<S> <C> <C> <C> <C> <C> <C> <C> <C>
3 XM1114 UA HMMWV
4
5
6
7 TOTAL monthly DEL 19 23 28 45 65 70 70 70
8
9
10 TOTAL DEL MOD 13 19 42 70 115 180 250 320 390
11
</TABLE>
<TABLE>
<CAPTION>
A A J K L M N O P Q R S
1
2
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3
4
5
6
7
8
9
10
11
</TABLE>
SECTION F PAGE 17a
<PAGE> 177
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00013 18e
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
- ---- ---- --- -- ---- --- --- -- ----- ------ ----------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
1001AA JZ62F637JZ AF 1 $ 0.00 $ 3,974,247.86 $ 3,974,247.86
51103446
-----------------
NET CHANGE $ 3,974,247.86
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
- ---- ---------- -------------- ------- -----------------
<S> <C> <C> <C> <C> <C> <C>
AF 21 62035 65J5J01P5110 25CZ S2011362F637 W56HZV $ 3,974,247.86
-----------------
NET CHANGE $ 3,974,247.86
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
- --- ------ --- ----- OF AWARD AMOUNT OBLIGATED AMOUNT
-------------- ----------------- ----------------
<S> <C> <C> <C>
$42,751,000.00 $ 3,974,247.86 $ 46,725,247.86
</TABLE>
<PAGE> 178
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00013 19
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION H - SPECIAL CONTRACT REQUIREMENTS
<TABLE>
<S> <C>
1. STATUTORY PROHIBITIONS ON COMPENSATION TO FORMER
DEPARTMENT OF DEFENSE EMPLOYEES.............................252.203-7000.........................(DEC 1991)
2. DISPLAY OF DOD HOTLINE POSTER...............................252.203-7002.........................(DEC 1991)
3. PROHIBITION AGAINST RETALIATORY PERSONNEL
ACTIONS.....................................................252.203-7003.........................(APR 1992)
4. DISCLOSURE OF INFORMATION...................................252.204-7000.........................(DEC 1991)
5. PROVISION OF INFORMATION TO COOPERATIVE
AGREEMENT HOLDERS...........................................252.205-7000.........................(DEC 1991)
6. BUY AMERICAN ACT AND BALANCE OF PAYMENTS PROGRAM............252.225-7001.........................(JAN 1994)
7. QUALIFYING COUNTRY SOURCES AS SUBCONTRACTORS................252.225-7002.........................(DEC 1991)
8. DUTY-FREE-ENTRY--QUALIFYING COUNTRY END PRODUCTS
AND SUPPLIES................................................252.225-7009.........................(DEC 1991)
9. DUTY-FREE ENTRY--ADDITIONAL PROVISIONS......................252.225-7010.........................(DEC 1991)
10. SUPPLEMENTAL COST PRINCIPLES................................252.231-7000.........................(DEC 1991)
11. DOD PROGRESS PAYMENT RATES..................................252.232-7004.........................(NOV 1993)
12. CERTIFICATION OF INDIRECT COSTS.............................252.242-7001.........................(DEC 1991)
13. MATERIAL MANAGEMENT AND ACCOUNTING SYSTEM...................252.242-7004...................(DEC 1991) ADDED
14. MATERIAL INSPECTION AND RECEIVING REPORT....................252.246-7000.........................(DEC 1991)
15. RESTRICTIONS ON SUBCONTRACTOR SALES TO THE
GOVERNMENT....................................................52.203-6...........................(JUL 1995)
16. DUTY-FREE ENTRY...............................................52.225-10..........................(APR 1984)
17. PROGRESS PAYMENTS.............................................52.232-16..........................(JUL 1991)
18. PROGRESS PAYMENTS (ALTERNATE I)...............................52.232-16..........................(JUL 1991)
19. PROGRESS PAYMENTS (ALTERNATE II (APR 1984))...................52.232-16..........................(JUL 1991)
</TABLE>
H-2 PRICE CEILING
252.217-7027 (DEC 1991) ADD/CHG
The definitive contract resulting from this undefinitized action (Mod
13) shall not exceed $7,948,495.73.
(end of clause)
H-3 LIMITATION OF GOVERNMENT LIABILITY
52.216-24 (APR 1984) CHANGED
(a) In performing this contract, the Contractor is not authorized to
make expenditures or incur obligations exceeding $3,974,247.86 dollars.
(b) The maximum amount for which the Government shall be liable if
this contract is terminated is $3,974,247.86 dollars for Mod 13.
(End of clause)
H-4 CONTRACT DEFINITIZATION
52.216-25 (APR 1984) DELETED
<PAGE> 179
DAAE07-94-C-0406 page 20
H.13 The Government has recognized $7,948,495.72 in the contract ceiling
price adjustment, Modification P00013, for material labor, overheads/other
direct charges and lease of all equipment and facilities, not to exceed one
year. This cost was incurred to meet the necessary acceleration of deliveries
reflected in the stated modification. The price adjustment includes the full
lease cost for the facility and equipment for work to be performed under this
contract.
H.13.1 Should the contractor secure additional work at the leased facility,
outside of performing work to meet the needs of the Government under this
acceleration and any other related contracting requirements, a downward
equitable adjustment shall be negotiated to this contract. The contractor shall
provide prompt notification (within 3 working days) to the contracting officer
that additional work is being assigned to that facility. In order to determine
this adjustment, a fully supported proposal, addressing the price reduction due
to this additional work, shall be provided to the Contracting Officer within 30
days of the notification.
H.14 Liquidate Damages Supplies, Service or Research and Development (Apr
1984) FAR 52.211-11
(a) If the Contractor fails to deliver the supplies or perform the
services with the time specified in this contract, or any extension, the
Contractor shall, in place of actual damages, pay the Government as fixed,
agreed, and liquidate damages, for each day of delay the sum of $250.
(b) Alternatively, if delivery or performance is so delayed, the
Government may terminate this contract in whole or in part under the
Default-Fixed-Price Supply and Service clause in this contract and in that
event, the Contractor shall be liable for fixed, agreed, and liquidated damages
accruing until the time the Government may reasonably obtain delivery or
performance of similar supplies or services. The liquidated damages shall be in
addition to excess costs under the Termination clause.
(c) The contractor shall not be charged with liquidated damages when
the delay in delivery or performance arises out of causes beyond the control and
without the fault or negligence of the Contractor as defined in the
Default-Fixed-Price Supply and Service clause in this contract.
<PAGE> 180
H.15 DEFINITIZATION SCHEDULE page 20a
(a) A Firm Fix Price definitive contract modification is
contemplated. The Contractor agrees to submit a FFP proposal and cost or pricing
data supporting its proposal.
(b) The schedule for definitizing the modification is:
Contractor submission of proposal - 12 MAR 96
Commencement of Negotiations - 30 MAY 96
Definitization of contract - 21 JUN 96
(c) If agreement on a definitive contract modification to supersede
this ceiling priced modification is not reached by the target date in the
paragraph (b) above, or within any extension of it granted by the Contracting
officer, the Contracting officer may, with the approval of the head of the
contracting activity, determine a reasonable price of fee in accordance with
Subpart 15.8 and Part 31 of the FAR, subject to Contractor appeal as provided in
the Disputes Clause. In any event, the Contractor shall proceed with completion
of the contract, subject to the LIMITATION OF GOVERNMENT LIABILITY Clause.
<PAGE> 181
DAAE07-94-C-0406
Modification P00013
Page 26 of 37
H.12 OPTION TO INCREASE VEHICLE QUANTITIES
H.12.1 Option Quantities. The Government reserves the right to increase the
base quantity of XM1114 UA-ECV vehicles by an additional quantity not to exceed
50% of the total base quantity of XM1114 UA-ECV vehicles, or 155. The option
vehicles may be any single model or combination of models, XM1114, XM1115 and/or
XM1116.
H.12.2 Option Period. The Contracting Officer may exercise an option for an
additional quantity of vehicles at any time in one or more increments, but the
right to do so shall expire 120 days prior to the delivery of the * last
scheduled production vehicle as shown in Section F of this contract. The
Contractor shall provide notice to the Contracting Officer 30 days before
expiration of the Option Period, or 150 days before the last scheduled *
delivery or unless otherwise agreed to by both parties.
H.12.3 Unit Prices. The unit price to be paid for vehicles added by exercise
of option shall be the option unit price specified in Section B for XM1114,
except that XM1115 or XM1116 shall be incorporated with a negotiated delta from
the XM1114 option price. The option price shall be $86,900 per unit. Failure to
reach agreement on a equitable adjustment for the difference in unit prices for
the MX1115 and XM1116 shall be treated as a dispute within the meaning of the
clause of this contract entitled "DISUTES"
H.12.4 Delivery. The basic contract quantities are scheduled at a constant
rate of production through February 1997. The Government reserves the right to
insert option quantities into the existing delivery schedule and extend the
delivery of contract quantities if a customer requires earlier delivery than can
be accomodated by adding the customer quantities at the end of the existing
contract schedule. It is mutually agreed that the parties intent is to minimize
production rate/delivery rate fluctuations whenever possible. Therefore, the
parties agree to coordinate production and delivery schedules to ensure the best
opportunity to minimize said rate changes.
H.12.5 The U.S. Government may exercise the option under this clause to
fulfill Foreign Military Sales (FMS) commitments undertaken by the U.S.
Government on behalf of a foreign country at the unit price of $86,900 for the
XM1114 model vehicles and at the unit price negotiated for the XM1115 and XM1116
pursuant to H.12.3 above.
* page substitution by Modification P00013.
<PAGE> 182
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00014
3. EFFECTIVE DATE
9 FEB 1996
4. REQUISITION/PURCHASE REQ. NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
STEVE SABBAGH /810-574-8823
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO.
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not
extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 183
(a) By completing Items 8 and 15, and returning copies of the amendments; (b) By
acknowledging receipt of this amendment on each copy of the offer submitted; or
(c) By separate letter or telegram which includes a reference to the
solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
No change to obligation data
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: THE CHANGES SET FORTH
IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
X B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO
AUTHORITY OF:
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor X is not, is required to sign this
document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
See second page for description.
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M. J. Lennon, President
15B. CONTRACTOR/OFFEROR
/s/ M. J. Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
2/8/96
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
Mark R. Neumann
MAJ. F.A.
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Mark R. Neumann
(Signature of Contracting Officer)
16C. DATE SIGNED
4 FEB 96
<PAGE> 184
Contract DAAE07-94-C-0406
Modification P00014
PROGRAM: XM1114 Up Armor High Mobility Multipurpose Wheeled Vehicle (HMMWV)
CONTRACT: DAAE07-94-C-0406
MODIFICATION: P00014
1. The purpose of this unilateral modification is to issue shipping
instructions for CLINs 0002AA, 0003AA and 0004AA.
2. Section B, page 2a, 2b, and 2c(1) are hereby deleted and revised pages
2a, 2a(1), 2b, 2b(1), 2c and 2c(1) are substituted in their place.
3. There is no change in contact price as a result of this modification.
2
<PAGE> 185
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00014 2a
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0002AA PRODUCTION QUANTITY 53 EA $86,900.00000 $4,605,700.00
------------- -------------
</TABLE>
PRON: JZ32P879JZ ACRN: AB
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: XM1114 UP ARMORED - HMMWV
FSCM: 19207
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
Up Armor Expanded Capacity Vehicle
(UA-ECV) HMMWV, XM1114, as further
described in Section C.4.
(End of narrative B001)
SECTION D - Packaging and Marking
Best Commercial Packing
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C>
001 W56HZW5067S101 M 3
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY
---------- --------
<S> <C>
001 DELETED
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0002AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
ITEMS REQUIRED UNDER THIS
REQUISITION.
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C>
002 W80SBG6030L001 W813M8 M 1
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 53 96MAR30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0002AA ***
SHIP TO: FREIGHT ADDRESS
<PAGE> 186
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00014 2a(1)
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
(W813M8) XR USAMC EUROPE
GERMERSHEIM ARMY DEPOT
BUILDING 7543
76716 GERMERSHEIM GE
MARK FOR: TVFT-E, ATTN: BOB GREER
</TABLE>
<PAGE> 187
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00014 2b
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0003AA PRODUCTION QUANTITY 152 EA $86,900.00000 $13,208,800.00
------------- --------------
</TABLE>
PRON: JZ42P880JZ ACRN: AC
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: XM1114 UP ARMORED - HMMWV
FSCM: 19207
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
NOUN: Up Armor Expanded Capacity
Vehicle (UA-ECV) HMMWV, XM1114,
as further described in Section C.4.
(End of narrative B001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C>
001 W56HZW5067S102 M 3
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY
---------- --------
<S> <C>
001 DELETED
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0003AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
ITEMS REQUIRED UNDER THIS
REQUISITION.
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C>
002 W80SBG6030L002 W813M8 M 1
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 152 96APR30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0003AA ***
<PAGE> 188
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00014 2b(i)
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
SHIP TO: FREIGHT ADDRESS
(W813M8) XR USAMC EUROPE
GERMERSHEIM ARMY DEPOT
BUILDING 7543
76716 GERMERSHEIM GE
MARK FOR: TVFT-E, ATTN: BOB GREER
</TABLE>
<PAGE> 189
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00014 2c
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0004AA PRODUCTION QUANTITY 104 EA $86,900.00000 $9,037,600.00
------------- -------------
</TABLE>
PRON: FF42P881FF ACRN: AD
AMS CD: 51108992
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: XM1114 UP ARMORED - HMMWV
FSCM: 19207
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
NOUN: Up Armor Expanded Capacity
Vehicle (UA-ECV) HMMWV, XM1114,
as further described in Section C.4.
(End of narrative B001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C>
001 W56HZW5067S103 M 3
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY
---------- --------
<S> <C>
001 DELETED
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0004AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE
FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR
ITEMS REQUIRED UNDER THIS
REQUISITION.
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C>
002 W80SBG6030L003 W813M8 M 1
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 104 96JUN30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0004AA ***
<PAGE> 190
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00014 2c(i)
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
SHIP TO: FREIGHT ADDRESS
(W813M8) XR USAMC EUROPE
GERMERSHEIM ARMY DEPOT
BUILDING 7543
76716 GERMERSHEIM GE
MARK FOR: TVFT-E, ATTN: BOB GREER
</TABLE>
<PAGE> 191
PADDS DISTRIBUTION LIST PCN: PIOCEH9114R
PAGE 01
PRINT DATE: 02/09/96
PIIN DAAE0794C0406 MOD NO P00014
SUBMITTED BY PWCAS BUYER NAME STEVE SABBAGH
DOLLAR VALUE $.00 DD350 INCLUDED ( )
<TABLE>
<CAPTION>
NUMBER DATE NUMBER DATE
COPIES STAMP COPIES
<S> <C> <C> <C> <C> <C>
STAMP
OFFICE OF PCO (ORIGINAL CONTRACT/MOD) 1 PROCURING ELEMENT AMSTA-AQ-WCA 1
FINANCIAL ELEMENT ____ (CONTRACT/MOD) 1 REQUIRING ELEMENT ____ (CONTRACT/MOD) 1
CONTRACTOR CONTRACT ADMIN OFFICE
DUP/ORIG CONTRACT/MOD 1 CONTRACT/MOD 6
PROCUREMENT DOCUMENTATION 1 PROCUREMENT DOCUMENTATION 1
DISTRIBUTION LIST 1
O GARA-HESS & EISENHARDT ARMORING DCMAO DAYTON
CO GENTILE STATION
9113 LE SAINT RD 1001 HAMILTON STREET
FAIRFIELD OH 45014 DAYTON, OH 45444-5300
PAYING OFFICE CONTRACT ADMIN ADP POINT
CONTRACT/MOD 1 CONTRACT/MOD 1
DFAS-COLUMBUS CENTER DFAS COLUMBUS CENTER
DFAS-CO-JNF/NEW DOMINION DFAS-CO-MC/ERIE DIVISION
PO BOX 182041 P.O. BOX 182041
COLUMBUS OH 43218-2041 COLUMBUS, OH 43218-2041
FACILITY SECURITY OFFICE
CONTRACT/MOD DD254
NO FACILITY NO SECURITY OFFICE
SBA OFFICE CONSIGNEE W42CW1 1
CONTRACT/MOD CONTRACT/MOD
SR CONSOLIDATED PROPERTY ACTPO
NOT APPLICABLE BLDG 4640 CENTRAL RECEIVING
FT POLK, LA 71459-7070
</TABLE>
<PAGE> 192
PADDS DISTRIBUTION LIST PCN: PIOCEH9114R
PAGE 02
PRINT DATE: 02/09/96
PIIN DAAE0794C0406 MOD NO P00014
SUBMITTED BY PWCAS BUYER NAME STEVE SABBAGH
DOLLAR VALUE $.00 DD350 INCLUDED ( )
<TABLE>
<CAPTION>
NUMBER DATE NUMBER DATE
COPIES STAMP COPIES
<S> <C> <C> <C> <C> <C>
STAMP
CONSIGNEE W80N5V CONSIGNEE W80N5V
CONTRACT/MOD 1 CONTRACT/MOD 1
XU 200TH TAMMC STORAGE SITE XU 200TH TAMMC ABF STORAGE SITE
8909 CLG AND ESC 8909 CLG AND ESC
APO AE 09086 TAYLOR BARRACKS
MANNHEIM GE
CONSIGNEE W81318
CONTRACT/MOD 1
XR USAMC EUROPE
GERMERSHEIM ARMY DEPOT
BUILDING 7543
76716 GERMERSHEIM GE
</TABLE>
******END OF DISTRIBUTION LIST******
<PAGE> 193
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00015
3. EFFECTIVE DATE
21 FEB 1996
4. REQUISITION/PURCHASE REQ. NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
STEVE SABBAGH /810-574-8823
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO.
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not
extended. Offers must acknowledge receipt of this amendment prior to the hour
and date specified in the solicitation or as amended by one of the following
methods:
<PAGE> 194
(a) By completing Items 8 and 15, and returning copies of the
amendments; (b) By acknowledging receipt of this amendment on each copy of the
offer submitted; or (c) By separate letter or telegram which includes a
reference to the solicitation and amendment numbers. FAILURE OF YOUR
ACKNOWLEDGEMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS
PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If
by virtue of this amendment you desire to change an offer already submitted,
such change may be made by telegram or letter, provided each telegram or letter
makes reference to the solicitation and this amendment, and is received prior to
the opening hour and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
No change to obligation data
F 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: THE CHANGES SET FORTH
IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
X B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO
AUTHORITY OF:
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor X is not, is required to sign this document
and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
See second page for description.
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
15B. CONTRACTOR/OFFEROR
(Signature of person authorized to sign)
15C. DATE SIGNED
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
MARK R NEUMANN
MAJ F.A.
CONTRACTING OFFICER
16B. UNITED STATES OF AMERICA
BY /s/ Mark R Neumann
(Signature of Contracting Officer)
16C. DATE SIGNED
21 FEB 96
<PAGE> 195
Contract DAAE07-94-C-0406
Modification P00015
PROGRAM: XM1114 Up Armor High Mobility Multipurpose Wheeled Vehicle (HMMWV)
CONTRACT: DAAE07-94-C-0406
MODIFICATION: P00015
1. The purpose of this unilateral modification is to add Project Code 9EV
to CLINs 0002AA, 0003AA and 0004AA.
2. Section B, page 2a, 2a(1), 2b, 2b(1), 2c and 2c(1) are hereby deleted
and revised pages 2a, 2b, and 2c are substituted in their place.
3. There is no change in contact price as a result of this modification.
2
<PAGE> 196
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00015 2a**
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0002AA PRODUCTION QUANTITY 53 EA $86,900.00000 $4,605,700.00
------------- -------------
</TABLE>
PRON: JZ32P879JZ ACRN: AB
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: XM1114 UP ARMORED - HMMWV
FSCM: 19207
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
Up Armor Expanded Capacity Vehicle
(UA-ECV) HMMWV, XM1114, as further
described in Section C.4.
(End of narrative B001)
SECTION D - Packaging and Marking
Best Commercial Packing
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C>
002 W80SBG6030L001 W813M8 M 1
</TABLE>
<TABLE>
<CAPTION>
* PROJ CD BRK BLK PT
------- ----------
<S> <C>
* 9EV
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 53 96MAR30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0002AA ***
SHIP TO: FREIGHT ADDRESS
(W813M8) XR USAMC EUROPE
GERMERSHEIM ARMY DEPOT
BUILDING 7543
76716 GERMERSHEIM GE
MARK FOR: TVFT-E, ATTN: BOB GREER
*Added by Modification P00015
**Page revised by Modification P00015
<PAGE> 197
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00015 2b*
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0003AA PRODUCTION QUANTITY 152 EA $86,900.00000 $13,208,800.00
------------- --------------
</TABLE>
PRON: JZ42P880JZ ACRN: AC
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: XM1114 UP ARMORED - HMMWV
FSCM: 19207
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
NOUN: Up Armor Expanded Capacity
Vehicle (UA-ECV) HMMWV, XM1114,
as further described in Section C.4.
(End of narrative B001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C>
002 W80SBG6030L002 W813M8 M 1
</TABLE>
<TABLE>
<CAPTION>
** PROJ CD BRK BLK PT
------- ----------
<S> <C>
** 9EV
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 152 96APR30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0003AA ***
SHIP TO: FREIGHT ADDRESS
(W813M8) XR USAMC EUROPE
GERMERSHEIM ARMY DEPOT
BUILDING 7543
76716 GERMERSHEIM GE
MARK FOR: TVFT-E, ATTN: BOB GREER
*Page revised by Modification P00015
**Added by Modification P00015
<PAGE> 198
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00015 2c*
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0004AA PRODUCTION QUANTITY 104 EA $86,900.00000 $9,037,600.00
------------- -------------
</TABLE>
PRON: FF42P881FF ACRN: AD
AMS CD: 51108992
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: XM1114 UP ARMORED - HMMWV
FSCM: 19207
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
NOUN: Up Armor Expanded Capacity
Vehicle (UA-ECV) HMMWV, XM1114,
as further described in Section C.4.
(End of narrative B001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
<TABLE>
<CAPTION>
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
<S> <C> <C> <C> <C> <C>
002 W80SBG6030L003 W813M8 M 1
</TABLE>
<TABLE>
<CAPTION>
** PROJ CD BRK BLK PT
------- ----------
<S> <C>
** 9EV
</TABLE>
<TABLE>
<CAPTION>
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
<S> <C> <C>
001 104 96JUN30
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0004AA ***
SHIP TO: FREIGHT ADDRESS
(W813M8) XR USAMC EUROPE
GERMERSHEIM ARMY DEPOT
BUILDING 7543
76716 GERMERSHEIM GE
MARK FOR: TVFT-E, ATTN: BOB GREER
*Page revised by Modification P00015
**Added by Modification P00015
<PAGE> 199
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 3
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00016
3. EFFECTIVE DATE
See Blk. 16c.
4. REQUISITION/PURCHASE REQ. NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
PAUL MUELLER /810-574-8822
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO.
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 200
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
ACRN AG: NET INCREASE $599,741.75
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: THE CHANGES SET FORTH
IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation data,
etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO
AUTHORITY OF:
X Changes-Fixed Price, FAR 52.243-1
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this
document and return 1 copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
QA COPY
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M. J. Lennon, President
O'Gara Hess & Eisenhardt
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
2/27/96
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
JOHN CASH
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ John Cash
(Signature of Contracting Officer)
16C. DATE SIGNED
27 FEB 1996
<PAGE> 201
DAAE07-94-C-0406
P00016
Page 2
CONTRACT: DAAE07-94-C-0406, P00016, UA HMMWV, XM1114
PREVIOUS CONTRACT AMOUNT: $46,725,247.86
AMOUNT OF THIS ACTION: 599,741.75
TOTAL CONTRACT AMOUNT: $47,324,989.61
1. Per the Changes Clause FAR 52.243-1, this is a bilateral change order
modification to apply an improved air conditioning system to 262 XM1114
accelerated delivered trucks. The total ceiling price amount is $1,199,483,50.
The amount obligated by this change order is 50% of the ceiling price or
$599,741.75
2. The Government and the contractor agree to modify this contract
DAAE07-94-C-0406 as described below:
a. SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
SECTION B is modified to add the funds and CLIN 1002AA is created. Page 2f is
added to reflect the addition of CLIN 1002AA.
b. SECTION C - DESCRIPTION/SPECIFICATONS/STATEMENT OF WORK
262 each High Capacity Environmental Control System, O'Gara Hess part number
4660003-000, for integration into 262 each XM1114 vehicles. Page 7b is changed
to reflect the revised scope of work.
c. SECTION F - REQUIRED DELIVERY
Deliveries will be concurrent with acceleration of vehicles under Modification
P00013.
d. SECTION G - CONTRACT ADMINISTRATION DATA
Page 18f is added to reflect the accounting and appropriation data for the
funding for accelerated delivery of 262 each XM1114 vehicles with the High
Capacity Environmental Control System.
3. The parties agree that the Contractor will submit a firm priced
proposal with cost and pricing data for the 262 ea. High Capacity Environmental
Control System, O'Gara Hess part number 4660003-000, as incorporated by this
modification, within 30 days from the date of signature and that prices will be
definitized by 21 JUN 96.
<PAGE> 202
DAAE07-94-C-0406
P00016
Page 3
4. The contract amount is hereby increased by $599,741.75 from
$46,725,247.86 to a current total of $47,324,989.61.
5. All other terms and conditions remain unchanged.
<PAGE> 203
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00016 2f
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
1002AA SERVICES LINE ITEM 262 EA $ $ 599,741.75
------------ -------------
</TABLE>
PRON: JZ42F670JZ ACRN: AG
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
SECURITY CLASS: UNCLASSIFIED
NOUN: XM1114 Delivery Acceleration
of High Capacity Environmental Control
System.
The Not-To-Exceed Ceiling Price of
$1,199,483.50.
Funded at 50%
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
The Government Limitation of Liability for
these High Capacity Environmental Control
Systems is $599,741.75.
(End of narrative C001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DLVR SCH PERF COMPL
REL CD DT QUANTITY
-------- ---------- --------
001 96 AUG31 262
$ 599741.75
Page added by P00016.
<PAGE> 204
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00018 18g
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
<S> <C> <C> <C> <C> <C> <C>
1002AA JZ42F670JZ AG 1 $0.00 $599,741.75 $ 599,741.75
51103446
-----------
NET CHANGE $599,741.75
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
<S> <C> <C> <C> <C> <C> <C> <C>
AG 21 42035 45J5J01P5110 25CZ S2011342F670 W56HZV $599,741.75
-----------
NET CHANGE $599,741.75
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
OF AWARD AMOUNT OBLIGATED AMOUNT
<S> <C> <C> <C>
$46,725,247.86 $599,741.75 $47,324,989.61
</TABLE>
Page added by P00016.
<PAGE> 205
DAEE07-94-C-0406
Page 7b of 37
control. The air conditioning system must be compatible with a 24 volt
electrical system. It is desired that the system be capable of reducing an
outside ambient air temperature of 90 degrees F by 20 degrees F. The system *
provided shall be the High Capacity Environmental Control System, O'Gara Hess* &
Eisenhardt Armoring Co. PN 4660003-000. *
C.4.12 The vehicle side elevation signature will be similar to that of the M1025
slant back. The crew compartment shall be protected from the rear by a fixed
armor cargo barrier with one upper sliding door, and armor panels extending from
the top of the fender wells to the underside of the cargo cover or roof. The
upper sliding door shall be positively latched in the open and closed positions.
The sliding door shall have a manually released, automatic positive stop at a
position 3 to 6 inches from the closed position.
C.4.13. The vehicle design shall provide improvements over the XM1109
configuration on the following hardware items:
C.4.13.1 Door locks and latches-sequence lockout, improved mechanism
reliability.
C.4.13.2 Windshield defrost improvement.
C.4.13.3 Automotive component access and maintainability.
C.4.14 All ballistic glass on the vehicle shall be "white glass". This glass
shall allow for the unobstructed use of night vision goggles by the crew.
C.4.15 The XM1114 vehicle shall be painted with a three-color camouflage pattern
in accordance with O'Gara Hess & Eisenhardt Armoring Co. Drawing No. 4668002,
Pattern, Camouflage Paint, EA-HMMWV, unless otherwise directed by the PCO.
C.4.16 The Contractor shall host a start of work meeting to discusss the
requirements of the Up-Armored ECV HMMWV and shall host four 1 day meetings for
the status of work being performed under this delivery order.
* Previous change by P00006.
<PAGE> 206
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00017
3. EFFECTIVE DATE
04 MAR 1996
4. REQUISITION/PURCHASE REQ. NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
STEVE SABBAGH /810-574-8823
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO.
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 207
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
No change to obligation data
F 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE
CONTRACT/ORDER NO. IN ITEM 10A.
X B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office,
appropriation data, etc.) SET FORTH IN ITEM 14, PURSUANT TO
THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO
AUTHORITY OF:
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor X is not, is required to sign
this document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where
feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
15B. CONTRACTOR/OFFEROR
(Signature of person authorized to sign)
15C. DATE SIGNED
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
MARK R. NEUMANN
MAJ F.A.
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Mark R Newman
(Signature of Contracting Officer)
16C. DATE SIGNED
4 MAR 96
<PAGE> 208
Contract DAAE07-94-C-0406
Modification P00017
PROGRAM: XM1114 Up Armor High Mobility Multipurpose Wheeled
Vehicle (HMMWV)
CONTRACT: DAAE07-94-C-0406
MODIFICATION: P00017
1. The purpose of this unilateral modification is to issue shipping instructions
for CLIN 0005AA.
2. Section B, page 2d is hereby deleted and revised pages 2d and 2d(1) are
substituted in its place.
3. There is no change in contract price as a result of this modification.
2
<PAGE> 209
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00017 2d*
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0005AA PRODUCTION QUANTITY 81 EA $ 86,900.00000 $ 7,038,900.00
------------- -------------
PRON: JZ62F559JZ ACRN: AE
AMS CD: 51103446
</TABLE>
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
SECURITY CLASS: UNCLASSIFIED
Up Armor Expanded Capacity Vehicle
(UA-ECV) HMMWV, XM1114, as described
in Section C.4
(End of narrative B001)
SECTION D - Packaging and Marking
BEST COMMERCIAL PACK
(End of narrative D001)
Best Commercial Pack
(End of narrative D002)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW6022S101A M 3
DEL REL CD QUANTITY
001 DELETED
FOB POINT: ORIGIN
*** CLIN 0005AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED UNDER
THIS REQUISITION.
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
002 W80SBG6054L002 W813M8 M 1
PROJ CD BRK BLK PT
9EV
DEL REL CD QUANTITY DEL DATE
001 81 96APR30
FOB POINT: ORIGIN
*** CLIN 0005AA ***
*Revised by Modification P00017.
<PAGE> 210
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00017 2d(1)*
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C>
SHIP TO: FREIGHT ADDRESS
(W813M8) XR USAMC EUROPE
GERMERSHEIM ARMY DEPOT
BUILDING 7543
76716 GERMERSHEIM GE
</TABLE>
MARK FOR: Bosnia Proj Cd 9EV
ATTN: TVFT-E (Mr. Bob Greer)
(End of narrative F001)
*Added by Modification P00017.
<PAGE> 211
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00018
3. EFFECTIVE DATE
25 MAR 1996
4. REQUISITION/PURCHASE REQ. NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
PAUL MUELLER /810-574-8822
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO.
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 212
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
See continuation sheet
F 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE
CONTRACT/ORDER NO. IN ITEM 10A.
X B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office,
appropriation data, etc.) SET FORTH IN ITEM 14, PURSUANT TO
THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO
AUTHORITY OF:
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor X is not, is required to sign
this document and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where
feasible.)
See second page for description.
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
15B. CONTRACTOR/OFFEROR
(Signature of person authorized to sign)
15C. DATE SIGNED
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
Kenneth Bousquet
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Kenneth Bousquet
(Signature of Contracting Officer)
16C. DATE SIGNED
25 MAR 1996
<PAGE> 213
DAAE07-94-C-0406
P00018
Page 2
PROGRAM: UP ARMOR HMMWV ECV XM1114
CONTRACT: DAAE07-94-C-0406
MODIFICATION: POOO18
PREVIOUS CONTRACT AMOUNT: $47,324,989.61
AMOUNT OF THIS ACTION: .00
TOTAL CONTRACT AMOUNT: $47,324,989.61
1. This Modificiation P00018 is an administrative action to replace the FY96
accounting and appropriation data on CLIN 0005AA with FY95 accounting and
appropriation data under new CLIN 0006AA.
2. The contract is modified as described below:
a. SECTION B
Existing CLIN 0005AA in the amount of $7,038,900.00 and for the
quantity of 81 each Up Armor HMMWV XM1114 is deleted in its entirety and
replaced with new CLIN 0006AA in the amount of $7,038,900.00 for the quantity of
81 each.
Shipping instructions are provided for the 81 each Up Armor HMMWV ECV
XM1114 under new CLIN 0006AA.
b. SECTION G
Accounting and appropriation data is revised to reflect the decrease on
PRON JZ-6-2F559-JZ under CLIN 0005AA from $7,038,900.00 to $0.00 and the
addition of PRON JZ-5-2F559-JZ under CLIN 0006AA in the amount of $7,038,900.00.
3. The contract is modified by replacing or adding the following pages:
a. Pages 2d and 2d(1) are deleted. Page 2d is replaced with the
attached, revised page 2d.
b. New contract page 18g is added to the contract.
4. As a result of this Modification P00018, the contract amount remains
unchanged at $47,324,989.61.
5. All other terms and conditions remain unchanged.
<PAGE> 214
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00018 2d
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0005AA PRODUCTION QUANTITY 81 EA $86,900.00000 $7,038,900.00
PRON: JZ52F559JZ ACRN: AH
AMS CD: 51103446
</TABLE>
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: HMMWV - XM1114 UP ARMORED
FSCM: 19207
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
UP Armor Expanded Capacity Vehicle
(UA-ECV) HMMWV, XM1114, as described
in Section C.4
(End of narrative B001)
SECTION D - Packaging and Marking
BEST COMMERCIAL PACK
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
002 W80SBG6054L002A W813M8 M 1
PROJ CD BRK BLK PT
9EV
DEL REL CD QUANTITY DEL DATE
001 81 96AUG30
FOB POINT: ORIGIN
*** CLIN 0006AA ***
SHIP TO: FREIGHT ADDRESS
(W813M8) XR USAMC EUROPE
GERMERSHEIM ARMY DEPOT
BUILDING 7543
76716 GERMERSHEIM GE
MARK FOR: Bosnia Proj Cd 9EV
ATTN: TVFT-E (Mr. Bob Greer)
(End of narrative F001)
Changed by P00018. Previous change by P00017.
<PAGE> 215
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00018 18g
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
<S> <C> <C> <C> <C> <C> <C>
0005AA JZ62F559JZ AE 1 $7,038,900.00 $7,038,900.00- $ 0.00
51103446
0006AA JZ52F559JZ AH 1 $ 0.00 $7,038,900.00 $7,038,900.00
51103446
-------------
NET CHANGE $ 0.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
<S> <C> <C> <C> <C> <C>
AE 21 62035 65J5J01P5110 25CZ S2011362F559 W56HZV $7,038,900.00-
AH 21 52035 55J5J01P5110 25CZ S2011352F559 W56HZV $7,038,900.00
-------------
NET CHANGE $ 0.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
OF AWARD AMOUNT OBLIGATED AMOUNT
<S> <C> <C> <C>
$47,324,989.61 $0.00 $ 47,324,989.61
</TABLE>
Page added by P00018.
<PAGE> 216
April 19, 1996
AMSTA-AQ-WCA
SUBJECT: Contract DAAE07-94-C-0406, Letter Contract Modification P00019.
Mr. Tony Crayden
O'Gara-Hess & Eisenhardt Armoring Company
9113 Le Saint Drive
Fairfield, OH 45014
Dear Mr. Crayden:
This letter constitutes a contract on the terms set forth in the
enclosed Modification P00019 to Contract DAAE07-94-C-0406 and signifies the
intention of the Government to definitize this Modification P00019 for the
delivery of the supplies set forth in the schedule of Supplies/Services under a
firm fixed price type of contract.
You are directed in accordance with Clause H.16, Execution and
Commencement of Work (For Modification P00019) FAR 52.216-23 (APR 1984), to
proceed immediately to commence performance of the work and to pursue such work
with all diligence to the end that the supplies may be delivered as necessary
under the specifically funded requirements. These requirements are subject to
the limitations set forth in Clause H.18, Limitation of Government Liability
(For Modification P00019) FAR 52.216-24 (APR 1984).
In accordance with Clause H.19, Contract Definitization (For
Modification P00019) FAR 52.216-25 (APR 1984), the parties agree that
Modification P00019 will be definitized by August 30, 1996.
You shall submit a firm priced proposal for the Supplies/Services
covered by Modification P00019 by May 17, 1996.
Please indicate your acceptance of the foregoing by signing the
Standard Form 30, Modification P00019 and returning it with a completed
Certificate of Procurement Integrity, Clause I-6, Requirement for Certificate of
Procurement Integrity-Modification, FAR 52.203-9 (SEP 1995).
<PAGE> 217
Upon receipt of your signed documents, Modification P00019 will be
signed by the Contracting Officer to complete the action.
If you have any questions on this matter, please contact Mr. Paul
Mueller, (810) 574-8822.
Sincerely,
Kenneth Bousquet
Contracting Officer
Enclosure
-2-
<PAGE> 218
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00019
3. EFFECTIVE DATE
APR 19 1996
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
PAUL MUELLER /810-574-7227
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 219
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
See continuation sheet
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS. IT
MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X)
A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: THE CHANGES SET FORTH IN
ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office,
appropriation date, etc). SET FORTH IN ITEM 14, PURSUANT TO THE
AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X FAR 6.302-2; far 16.503-3;
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, is required to sign this
document and return 1 copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where
feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M J Lennon
President
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
4/19/96
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
Kenneth Bousquet
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Kenneth Bousquet
(Signature of Contracting Officer)
16C. DATE SIGNED
APR 19 1996
<PAGE> 220
DAAE07-94-C-0406
P00019
Page 2
PROGRAM: UP ARMOR HMMWV ECV XM1114
CONTRACT: DAAE07-94-C-0406
MODIFICATION: POOO19
PREVIOUS CONTRACT AMOUNT: $47,324,989.61
AMOUNT OF THIS ACTION: 3,560,904.00
TOTAL CONTRACT AMOUNT: $50,885,893.61
1. This Modification P00019 is a bilateral letter contract modification to
acquire 72 each XM1114 vehicles with High Capacity Environmental Control System
(ECS) installed, to be delivered at an accelerated rate in September 1996 with
an option to acquire an additional quantity of vehicles not to exceed 303% of
the basic quantity or 218 each.
a. The total Not-To-Exceed Ceiling Price amount for the basic quantity
of 72 XM1114 vehicles with High Capacity ECS is $6,504,408.00 and is based on
Not-To-Exceed Ceiling Unit Prices of $86,771.00 for the basic vehicle and
$3568.00 for the High Capacity ECS.
b. The total Not-To-Exceed Ceiling Price amount under CLIN 1001AB for
acceleration of delivery of the basic quantity of 72 XM1114 vehicles with High
Capacity ECS is $617,400.00, and is based on a Not-To-Exceed Ceiling Unit Price
of $8575.00.
c. The Not-To-Exceed Ceiling Unit Prices for the option quantity of
XM1114 vehicles with High Capacity ECS and accelerated delivery of option
vehicles are the same as those unit prices for the basic quantity of 72
vehicles.
2. The Government and the Contractor agree to modify the contract as described
below:
a. SECTION B
CLINS 1001AB and 0007AA are established.
<TABLE>
<CAPTION>
OBLIGATED
CLIN DESCRIPTION QTY AMOUNT
<S> <C> <C> <C>
1001AB XM1114 Delivery 72 $ 308,700.00
Acceleration
0007AA XM1114 with High 72 $3,252,204.00
Capacity ECS
</TABLE>
<PAGE> 221
DAAE07-94-C-0406
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b. SECTION F
The Accelerated Delivery Schedule is revised to reflect delivery of the
basic quantity of 72 each XM1114 vehicles.
c. SECTION G
The Accounting and Appropriation Data applicable to new CLINs 1001AB
and 0007AA is incorporated into the contract.
d. SECTION H
The Government and the Contractor agree that Clause H.14, Liquidated
Damages-Supplies, Services or Research and Development FAR 52.211-11 (APR 1984),
applies to the accelerated delivery of the 72 vehicles under CLIN 0007AA.
3. The following contract clause additions and deletions apply to Modification
P00019:
a. SECTION E
Delete E-4, ACCEPTANCE POINT: ORIGIN, TACOM (APR 1984) and replace with
E-4, ACCEPTANCE POINT: ORIGIN, TACOM (AUG 1994). Text as follows:
Acceptance Point: Origin
We'll accept these supplies at the address or addresses designated in
Section E clause entitled INSPECTION POINT: ORIGIN. When F.O.B. is destination
and once we accept title to the supplies, we'll allow payment as long as you
supply the proper evidence of shipment with the invoice. (See the Section F
clause, FAR 52.247-48 - F.O.B. Destination - Evidence of Shipment and the
Section E clause, FAR 52.246-16 - Responsibility for Supplies.)
b. SECTION F
Delete F-2, SHIPMENT OF SUPPLIES, TACOM, (NOV 1983) and F-3, DETENTION
OF CARRIERS EQUIPMENT, TACOM (SEP 1978) and replace with F-2, SHIPMENT OF
SUPPLIES AND DETENTION OF CARRIERS EQUIPMENT, TACOM (OCT 1994). Text as follows:
a. Unless otherwise directed, ship items under this contract
in the following order of priority:
<PAGE> 222
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(1) Government Bill(s) of Lading or US Postal
Services;
(2) Commercial Bill(s) of Lading converted to
Government Bill(s) of Lading at destination;
(3) Prepaid Commercial Bill(s) of Lading with
transportation charges entered as a separate item on the invoice; or
(4) As otherwise instructed when the contract
prohibits use of Government funds for transportation costs.
b. The Contractor will request:
(1) Government Bill(s) of Lading and
(2) Routing and other instructions, including
MILSTAMP (Military Standard Transportation and Movement Procedure), as to the
methods of shipment to be followed by the Contractor; or
(3) Authorization to ship Commercial Bill(s) of
Lading to be converted to Government Bill(s) of Lading from the transportation
office, administering DCMAO, ten days before the materiel is ready for shipment.
The Contractor must prepare and address the forms as directed by the
Administrative Contracting Officer (ACO) or
c. The Contractor and subcontractor(s) must
allow prompt and convenient access of carrier's equipment to loading docks or
platforms where the contract items/supplies will be loaded. Any charges for
detention of carrier's equipment shall be for the Contractor's account, except
when the detention is required or caused by the Government.
(End of Clause)
c. SECTION H
(1) Under Section H - Special Contract Requirements, delete
No. 9, DUTY-FREE QUALIFYING COUNTRY END PRODUCTS AND SUPPLIES, 252.225-7010 (DEC
1991) and replace with DUTY-FREE ENTRY--QUALIFYING COUNTRY END PRODUCTS AND
SUPPLIES, 252.225-7010 (DEC 1992).
(2) Delete H-8, NOTIFICATION OF PROPOSED PROGRAM TERMINATION
OR REDUCTION, 252.249-7002 (AUG 1993) and replace with NOTIFICATION OF PROPOSED
PROGRAM TERMINATION OR REDUCTION, 252.249-7002 (MAY 1995).
(3) Add H.16, Execution and Commencement of Work (For
Modification P00019) FAR 52.216-23 (1984 APR)
(4) Add H.17, Price Ceiling (For Modification P00019) DFARS
252.217-7027 (DEC 1991)
<PAGE> 223
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(5) Add H.18, Limitation of Government Liability (For
Modification P00019) FAR 52.216-24 (APR 1984)
(6) Add H.19, Contract Definitization (For Modification
P00019) FAR 52.216-24 (APR 1984)
(7) Add H.20, Option to Increase Vehicle Quantities (For
Modification P00019)
(8) Add Clause H-21, NOTIFICATION OF SUBSTANTIAL IMPACT ON
EMPLOYMENT, 252.249-7001 (DEC 1991).
d. SECTION I
(1) Under Section I - Contract Clauses (clauses incorporated
by reference):
(a) Delete No. 7, SMALL AND SMALL DISADVANTAGED
BUSINESS SUBCONTRACTING PLAN - DOD CONTRACTS, 252.219-7003 (APR 1993) and
replace with SMALL AND SMALL DISADVANTAGED BUSINESS SUBCONTRACTING PLAN - DOD
CONTRACTS, 252.219-7003 (MAY 1994).
(b) Delete No. 8, DRUG-FREE WORK FORCE (PER AL 92-7),
252.223-7004 (SEP 1988).
(c) Delete No. 9, PREFERENCE FOR CERTAIN DOMESTIC
COMMODITIES, 252.225-7004 (SEP 1988) and replace with PREFERENCE FOR CERTAIN
DOMESTIC COMMODITIES, 252.225-7004 (MAY 1994).
(d) Delete No. 12, REPORTING OF CONTRACT PERFORMANCE
OUTSIDE THE UNITED STATES, 252.225-7026 (APR 1993) and replace with REPORTING OF
CONTRACT PERFORMANCE OUTSIDE THE UNITED STATES, 252.225-7026 (MAY 1995).
(e) Delete No. 15, DATA REQUIREMENTS, 252.227-7031
(OCT 1988).
(f) Delete No. 17, CERTIFICATION OF CLAIMS AND
REQUESTS FOR ADJUSTMENT OR RELIEF 252.233-7000 (APR 1993) and replace with
CERTIFICATION OF CLAIMS AND REQUESTS FOR ADJUSTMENT OR RELIEF 252.233-7000 (MAY
1994).
(g) Delete No. 20, PRICING OF ADJUSTMENTS
252.243-7001 (APR 1984).
(h) Delete No. 22, DEFINITIONS, 52.202-1 (SEP 1991)
and replace with DEFINITIONS, 52.202-1 (OCT 1995).
(i) Delete No. 23, OFFICIALS NOT TO BENEFIT, 52.203-1
<PAGE> 224
DAAE07-94-C-0406
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(APR 1984).
(j) Delete No. 26, ANTI-KICKBACK PROCEDURES, 52.203-7
(OCT 1988) and replace with ANTI-KICKBACK PROCEDURES, 52.203-7 (JUL 1995).
(k) Delete No. 30, PROTECTING THE GOVERNMENT'S
INTEREST WHEN SUBCONTRACTING WITH CONTRACTOR'S DEBARRED, SUSPENDED, OR PROPOSED
FOR DEBARMENT, 52.209-6 (NOV 1992) and replace with PROTECTING THE GOVERNMENT'S
INTEREST WHEN SUBCONTRACTING WITH CONTRACTOR'S DEBARRED, SUSPENDED, OR PROPOSED
FOR DEBARMENT, 52.209-6 (JUL 1995).
(l) Delete No. 31, DEFENSE PRIORITY AND ALLOCATION
REQUIREMENTS, 52.212-8 (SEP 1990).
(m) Delete No. 32, EXAMINATION OF RECORDS BY
COMPTROLLER, 52.215-1 (FEB 1993).
(n) Delete No. 33, AUDIT-NEGOTIATION, 52.215-2 (FEB
1993) and replace with AUDIT-NEGOTIATION, 52.215-2 (OCT 1995).
(o) Delete No. 34, PRICE REDUCTION FOR DEFECTIVE COST
OR PRICING DATA, 52.215-22 (JAN 1991) and replace with PRICE REDUCTION FOR
DEFECTIVE COST OR PRICING DATA, 52.215-22 (OCT 1995).
(p) Delete No. 35, SUBCONTRACTOR COST OR PRICING
DATA, 52.215-24 (DEC 1991) and replace with SUBCONTRACTOR COST OR PRICING DATA,
52.215-24 (OCT 1995).
(q) Delete No. 38, REVERSION OR ADJUSTMENT OF PLANS
FOR POSTRETIREMENT BENEFITS OTHER THAN PENSIONS (PRB), 52.215-39 (JUL 1991) and
replace with REVERSION OR ADJUSTMENT OF PLANS FOR POSTRETIREMENT BENEFITS OTHER
THAN PENSIONS (PRB), 52.215- 39 (FEB 1995).
(r) Delete No. 39, UTILIZATION OF SMALL BUSINESS
CONCERNS AND SMALL DISADVANTAGED BUSINESS CONCERNS, 52.219-8 (FEB 1990) and
replace with UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL DISADVANTAGED
BUSINESS CONCERNS, 52.219-8 (OCT 1995).
(s) Delete No. 40, UTILIZATION OF WOMEN-OWNED SMALL
BUSINESSES, 52.219-13 (AUG 1986).
(t) Delete No. 41, LIQUIDATED DAMAGES - SMALL
BUSINESS SUBCONTRACTING PLAN, 52.219-16 (AUG 1989) and replace with LIQUIDATED
DAMAGES - SMALL BUSINESS SUBCONTRACTING PLAN, 52.219-16 (OCT 1995).
<PAGE> 225
DAAE07-94-C-0406
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(u) Delete No. 42, UTILIZATION OF LABOR SURPLUS AREA
CONCERNS, 52.220-3 (APR 1984).
(v) Delete No. 43, LABOR SURPLUS AREA SUBCONTRACTING
PROGRAM, 52.220-4 (APR 1984).
(w) Delete No. 55, AUTHORIZATION AND CONSENT,
52.227-1 (APR 1984) and replace with AUTHORIZATION AND CONSENT, 52.227-1 (JUL
1995).
(x) Delete No. 59, DISCLOSURE AND CONSISTENCY OF COST
ACCOUNTING PRACTICES, 52.230-3 (AUG 1992) This clause applies only when the
Contractor has been determined eligible. See Section K, and replace with
DISCLOSURE AND CONSISTENCY OF COST AND ACCOUNTING PRACTICES, 52.230-3 (NOV 1993)
This clause applies only when the Contractor has been determined eligible.
(y) Delete No. 65, PROMPT PAYMENT, 52.232-25 (SEP
1992) Note that if this contract contains a PROGRESS PAYMENTS clause, such
progress payments shall be made on the seventh day after receipt of a proper
contract finance request, as outlined in paragraph (b)(2) of this clause, and
replace with PROMPT PAYMENT, 52.232-25 (MAR 1994) Note that if this contract
contains a PROGRESS PAYMENTS clause, such progress payments shall be made on the
seventh day after receipt of a proper contract finance request, as outlined in
paragraph (b)(2) of this clause.
(z) Delete No. 67, DISPUTES, 52.233-1 (DEC 1991) and
replace with DISPUTES, 52.233-1 (OCT 1995).
(aa) Delete No. 68, PROTEST AFTER AWARD, 52.233-3
(AUG 1989) and replace with PROTEST AFTER AWARD, 52.233-3 (OCT 1995).
(ab) Delete No. 70, REPORT OF SHIPMENT (RESHIP),
52.242-12 (DEC 1989) and replace with REPORT OF SHIPMENT (RESHIP), 52.242-12
(JUL 1995).
(ac) Delete No. 71, BANKRUPTCY, 52.242-13 (APR 1991)
and replace with BANKRUPTCY, 52.242-13 (JUL 1995).
(ad) Delete No. 74, SUBCONTRACTS (FIXED-PRICE
CONTRACTS),52.244-1 (APR 1991) and replace with SUBCONTRACTS (FIXED-PRICE
CONTRACTS),52.244-1 (FEB 1995).
(2) Delete I-2, PILOT MENTOR-PROTEGE PROGRAM, 252.219-7008
(OCT 1992).
(3) Delete I-5, PREPARATION OF VALUE ENGINEERING CHANGE
PROPOSALS, 252.248-7000 (DEC 1991) and replace with PREPARATION OF VALUE
ENGINEERING CHANGE PROPOSALS, 252.248-7000 (MAY 1994).
<PAGE> 226
DAAE07-94-C-0406
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Page 8
(4) Delete I-6, REQUIREMENT FOR CERTIFICATE OF PROCUREMENT
INTEGRITY-MODIFICATION, 52.203-9 (NOV 1990) and replace with REQUIREMENT FOR
CERTIFICATE OF PROCUREMENT INTEGRITY-MODIFICATION, 52.203-9 (SEP 1995). See
attached full text to be incorporated at end of Section I, Pages 35a and 35b.
(5) Add I-8, NOTIFICATION OF OWNERSHIP CHANGES, 52.215-40 (FEB
1995).
(6) Add I-9, SUBCONTRACTS (COST REIMBURSEMENT AND LETTER
CONTRACTS), 52.244-2 (FEB 1995).
(7) Add I-10, NEW MATERIAL, 52.211-5 (MAY 1995).
(8) Add I-11, RIGHTS IN TECHNICAL DATA-NONCOMMERCIAL ITEMS
252.227-7013 (JUN 1995).
e. All other contract clauses remain unchanged and apply to
Modification P00019.
4. The contract is modified by replacing or adding the following pages:
a. Page 17a is deleted and replaced with the attached, revised page
17a.
b. New contract pages 2e(1), 2g, 2h, 18h, 26a, 26b, 26c, 35a, and 35b
are added to the contract.
5. As a result of this Modification P00019, the contract amount is increased by
$3,560,904.00 from $47,324,989.61 to $50,885,893.61.
6. All other terms and conditions remain unchanged.
<PAGE> 227
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00019 2e(1)
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
1001AB SERVICES LINE ITEM 72 EA $ $308,700.00
PRON: JZ62F813JZ ACRN: AJ
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NOUN: XM1114 DELIVERY ACCELERATION
SECURITY CLASS: UNCLASSIFIED
Bosnia Project Code 9EV. The total not to exceed
ceiling price for acceleration of delivery of
72 vehicles under CLIN 0007AA is $617,400.00
which is based on the accelerated delivery
ceiling unit price of $8,575.00 (funded at 50%
or $4,287.50). Accelerated delivery funded
at 50% $308,700.
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
72 vehicles under CLIN 0007AA to be
delivered no later than 30
Sep 96.
(End of narrative C001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DLVR SCH PERF COMPL
REL CD DT QUANTITY
-------- ---------- --------
001 96SEP30 72
$308700.00
</TABLE>
<PAGE> 228
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00019
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0007AA PRODUCTION QUANTITY 72 EA $ N/A $3,252,204.00
PRON: JZ62F599JZ ACRN: AK
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: XM1114 UPARMORED-BOSNIA HMMWV
SECURITY CLASS: UNCLASSIFIED
Bosnia Project Code 9EV. The total not to exceed
ceiling price for the quantity of 72 each is
$6,247,512.00 which is composed of vehicle
ceiling unit price of $86,771.00 (funded at 50% or
$43,385.50) and the High Capacity Environmental
Control System (ECS) ceiling unit price of
$3,568.00 (funded at 50% or $1,784.00).
Vehicle Amount funded at
50% $3,123,756.00
High Capacity ECS amount
funded at 50% $ 128,448
-------------
Total $3,252,204
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
Up Armor Expanded Capacity Vehicle (UA-ECV) HMMWV,
with High Capacity ECS as further described in
Section C.4.
(End of narrative C001)
SECTION D - Packaging and Marking
Best Commercial Packing
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------- -------- ------ ------ -------- -----
001 W56HZW6026S105 Y00000 M 3
PROJ CD BRK BLK PT
------- ---------
IBB
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
001 72 96SEP30
FOB POINT: ORIGIN
*** CLIN 0007AA ***
</TABLE>
<PAGE> 229
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00019 2h
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
(Y00000) SHIPPING INSTRUCTIONS FOR CONSIGNEE
(SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED
UNDER THIS REQUISITION.
</TABLE>
Page added by P00019.
<PAGE> 230
DAAE07-94-C-0406
Page 17a
ACCELERATED DELIVERY SCHEDULE *
<TABLE>
<CAPTION>
31 JAN 96 29 FEB 96 31 MAR 96 30 APR 96 31 MAY 96 30 JUN 96 31 JUL 96 31 AUG 96 30 SEP 96 *
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
XM1114 UA HMMWV
Total Monthly Deliveries 19 23 28 45 65 70 70 70 72 *
Total Deliveries P00019 19 42 70 115 180 250 320 390 462 *
</TABLE>
* Page changed by P00019. Previous change by P00013.
<PAGE> 231
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00019 18f
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
- --------- ------ ---- ---------- ------------ ------------------ ----------
<C> <C> <C> <C> <C> <C> <C>
0007AA JZ62F599JZ AK 1 $ 0.00 $ 3,252,204.00 $3,252,204.00
51103446
1001AB JZ62F813JZ AJ 1 $ 0.00 $ 308,700.00 $ 308,700.00
51103446
------------------
NET CHANGE $ 3,560,904.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
- ---- ------------------------- ------- -----------------
<S> <C> <C> <C>
AJ 21 62035 65J5J01P5110 25CZ S2011362F813 W56HZV $ 308,700.00
AK 21 62035 65J5J01P5110 25CZ S2011362F599 W56HZV $ 3,252,204.00
-----------------
NET CHANGE $ 3,560,904.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
- --------------------- OF AWARD AMOUNT OBLIGATED AMOUNT
------------ ----------------- ----------------
<S> <C> <C> <C>
$ 47,324,989.61 $ 3,560,904.00 $ 50,885,893.61
</TABLE>
Page added by P00019.
<PAGE> 232
DAAE07-94-C-0406
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H.16 EXECUTION AND COMMENCEMENT OF WORK (FOR MODIFICATION P00019) FAR
52.216-23 (1984 APR)
The contractor shall indicate acceptance of this letter contract by
signing three copies of the contract and returning them to the Contracting
Officer not later than 19 April 1996. Upon acceptance by both parties, the
contractor shall proceed with performance of the work, including purchase of
necessary materials.
(End of Clause)
H.17 PRICE CEILING (FOR MODIFICATION P00019) DFARS 252.217-7027 (DEC 1991)
The definitive contract resulting from this undefinitized action shall
not exceed $7,121,808.
(End of Clause)
H.18 LIMITATION OF GOVERNMENT LIABILITY (FOR MODIFICATION P00019) FAR
52.216-24 (APR 1984)
a. In performing this contract, the contractor is not authorized to
make expenditures or incur obligations exceeding $3,560,904.
b. The maximum amount for which the Government shall be liable if
this contract is terminated is $3,560,904.
(End of Clause)
H.19 CONTRACT DEFINITIZATION (FOR MODIFICATION P00019) FAR 52.216-24 (APR
1984)
a. A fixed price definitive contract is contemplated. The contractor
agrees to begin promptly negotiating with the Contracting Officer the terms of a
definitive contract that will include (1) all clauses required by the Ferdral
Acquisition Regulation (FAR) on the date of execution of the letter contract,
(2) all clauses required by law on the date of execution of the definitive
contract, and (3) any other mutually agreeable clauses, terms and conditions.
The contractor agrees to submit a fixed price proposal and cost or pricing data
supporting its proposal.
Page added by P00019.
<PAGE> 233
DAAE07-94-C-0406
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b. The schedule for definitizing this contract is:
Contractor submission of proposal: 17 May 96
Submission of Make or Buy Plan: NA
Submission of Subcontracting Plan: NA
Commencement of negotiations: 17 Jul 96
Definitization of Modification P00019 30 Aug 96
c. If agreement on a definitive contract to supersede this letter
contract is not reached by the target date in paragraph (b) above, or within any
extension of it granted by the Contracting Officer, the Contracting Officer may,
with the approval of the Head of the Contracting Activity, determine a
reasonable price or fee in accordance with Subpart 15.8 and Part 31 of the FAR,
subject to contractor appeal as provided in the DISPUTES clause. In any event,
the contractor shall proceed with completion of the contract, subject only to
the LIMITATION OF GOVERNMENT LIABILITY clause.
(1) After the Contracting Officer's determination of price or
fee, the contract shall be governed by:
(i) All clauses required by FAR on the date of execution of
this letter contract for either fixed price or cost reimbursement contracts, as
determined by the Contracting Officer under this paragraph (c);
(ii) All clauses required by law as of the date of the
Contracting Officer's determination; and,
(iii) Any other clauses, terms, and conditions mutually
agreed upon.
(2) To the extent consistent with subparagraph (c)(1) above, all
clauses, terms, and conditions included in this letter contract shall continue
in effect, except those that by their nature apply only to a letter contract.
(End of Clause)
H.20 OPTION TO INCREASE VEHICLE QUANTITIES (FOR MODIFICATION P00019)
a. Option quantity. The Government reserves the right to increase the
basic quantity of XM1114 vehicles under P00019 by an additional quantity of
XM1114 vehicles not to exceed 303% of the total basic quantity of XM1114s under
P00019, or 218.
Page added by P00019.
<PAGE> 234
DAAE07-94-C-0406
Page 26c
b. Option period. The Contracting Officer may exercise the option for an
additional quantity of vehicles at any time in one or more increments, but the
right to do so shall expire 120 days prior to delivery of the last scheduled
production vehicle as shown in Section F Clause, ACCELERATED DELIVERY SCHEDULE.
The contractor shall provide notice to the Contracting Officer 30 days before
the expiration of the option period, or 150 days before the last scheduled
delivery or unless otherwise agreed to by the parties.
c. Option unit prices. The unit price to be paid for the vehicles added
by exercise of option, prior to definitization of P00019, shall be the unit
ceiling price of $86,771 for the basic vehicle; $3568 for the High Capacity
Environmental Control System (ECS); and $8575 for accelerated delivery. The unit
price to be paid for the vehicles added by exercise of option after
definitization of P00019, shall be the firm fixed prices for the basic vehicle,
High Capacity ECS, and accelerated delivery agreed upon by the parties or the
price(s) determined by the Contracting Officer in accordance with Clause H.19,
CONTRACT DEFINITIZATION (FOR MODIFICATION P00019).
d. Delivery. Delivery of vehicles added by exercise of option shall
immediately follow delivery of the last scheduled production vehicle as shown in
Section F Clause, ACCELERATED DELIVERY SCHEDULE, unless otherwise agreed to by
the parties.
Page added by P00019.
<PAGE> 235
I-6 REQUIREMENT FOR CERTIFICATE OF PROCUREMENT INTEGRITY--MODIFICATION
52.203-9 (SEP 1995)
(a) Definitions. The definitions set forth in FAR 3.104-4 are hereby
incorporated in this clause.
(b) The Contractor agrees that it will execute the certification set
forth in paragraph (c) of this clause when requested by the Contracting Officer
in connection with the execution of any modification of this contract.
(c) Certification. As required in paragraph (b) of this clause, the
officer or employee responsible for the modification proposal shall execute the
following certification. The certification in paragraph (c)(2) of this clause is
not required for a modification which procures commercial items.
CERTIFICATE OF PROCUREMENT INTEGRITY - MODIFICATION (Nov 1990)
(1) I, Michael J Lennon (name of certifier), am the officer or
employee responsible for the preparation of this modification proposal and
hereby certify that, to the best of my knowledge and belief, with the exception
of any information described in this certification, I have no information
concerning a violation or possible violation of subsection 27(a), (b), (d), or
(f) of the Office of Federal Procurement Policy Act, as amended * (41 U.S.C.
423), (hereinafter referred to as the Act), as implemented in the FAR, occurring
during the contract of this procurement DAAE07-94-C-0406 Mod P00019
(contract and modification number)
(2) As required by subsection 27(a)(1)(B) of the Act, I further
certify that to the best of my knowledge and belief, each officer, employee,
agent, representative, and consultant of O'Gara-Hess & Eisenhardt Armoring Co.
(Name of Offeror) who has participated personally and substantially in the
preparation or submission of this proposal has certified that he or she is
familiar with, and will comply with, the requirements of subsection 27(a) of the
Act, as implemented in the FAR, and will report immediately to me any
information concerning a violation or possible violation of subsections 27(a),
(b), (d), or (f) of the Act, as implemented in the FAR, pertaining to this
procurement.
(3) Violations or possible violations: (Continue on plain bond
paper if necessary and label Certificate of Procurement Integrity - Modification
(Continuation Sheet), ENTER NONE IF NONE EXISTS)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/s/ Michael J Lennon 4/19/96
- --------------------------------------------------------------------------------
(Signature of the Officer or Employee Responsible for the Modification Proposal
and date)
Michael J Lennon President
- --------------------------------------------------------------------------------
(Typed name of the Officer or Employee Responsible for the Modification
Proposal)
Subsections 27 (a), (b), and (d) are effective on December 1, 1990. Subsection
27 (f) is effective on June 1, 1991.
THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN AGENCY OF THE
UNITED STATES AND THE MAKING OF A FALSE, FICTITIOUS OR FRAUDULENT CERTIFICATION
MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER TITLE 18, UNITED STATES CODE,
SECTION 1001.
(End of Certification)
(d) In making the certification in paragraph (2) of the certificate, the
officer or employee of the competing Contractor responsible for the offer or
bid, may rely upon a one-time certification from each individual required to
submit a certification to the competing Contractor, supplemented by periodic
training. These certifications shall be obtained at the earliest possible
Page added by P00019.
<PAGE> 236
date after an individual required to certify begins employment or association
with the contractor. If a contractor decides to rely on a certification executed
prior to the suspension of section 27 (i.e., prior to December 1, 1989) the
contractor shall ensure that an individual who has so certified is notified that
Section 27 has been reinstated. These certifications shall be maintained by the
Contractor for a period of 6 years from the date a certifying employee's
employment with the company ends or for an agency, representive, or consultant,
6 years from the date such individual ceases to act on behalf of the contractor.
(a) The certification required by paragraph (c) of this clause is a
material representation of fact upon which reliance be placed in executing this
modification.
(End of clause)
Page added by P00019.
<PAGE> 237
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00020
3. EFFECTIVE DATE
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
PAUL MUELLER /810-574-7227
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 238
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
See continuation sheet
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation date,
etc). SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X H.12, Option to Increase Vehicle quantities and I.72, Changes -
Fixed Price
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this document
and return 1 copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M J Lennon
President
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
4/30/96
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
16B. UNITED STATES OF AMERICA
BY
(Signature of Contracting Officer)
16C. DATE SIGNED
<PAGE> 239
DAAE07-94-C-0406
P00020
Page 2
PROGRAM: UP ARMOR HMMWV ECV XM1114
CONTRACT: DAAE07-94-C-0406
MODIFICATION: POOO20
PREVIOUS CONTRACT AMOUNT: $50,885,893.61
AMOUNT OF THIS ACTION: 2,305,784.00
TOTAL CONTRACT AMOUNT: $53,191,677.61
1. The purpose of this Supplemental Agreement Modification P00020 is to
partially exercise the option per Clause H.12, Option to Increase Vehicle
Quantities, for an additional quantity of 26 each XM1114 vehicles with High
Capacity Environmental Control System (ECS) installed, to be delivered at the
normal rate of delivery in October 1996 and November 1996. Upon authorization by
the Government and pursuant to the Changes-Fixed Price Clause of this contract,
these XM1114 vehicles will be modified to the XM1116 vehicle configuration at a
later date.
a. The XM1114 vehicles are added to the contract at the option unit
price of $86,900.00, obligated at 100%.
b. Pursuant the Changes-Fixed Price Clause of this contract and in
accordance with the description at C.4.11 of the contract, the High Capacity ECS
shall be incorporated into the option quantity of 26 each XM1114 vehicles at the
Not-To-Exceed Ceiling Unit Price of $3568.00, obligated at 50%
2. The Government and the Contractor agree to modify the contract as
described below:
a. SECTION B
CLINS 0008AA and 0008AB are established.
<TABLE>
<CAPTION>
OBLIGATED
CLIN DESCRIPTION OTY AMOUNT
---- ----------- --- ----------
<S> <C> <C> <C>
0008AA XM1114 with High 9 $ 798,156.00
Capacity ECS
0008AB XM1114 with High 17 $1,507,628.00
Capacity ECS
</TABLE>
<PAGE> 240
DAAE07-94-C-0406
P00020
Page 3
b. SECTION F
The Accelerated Delivery Schedule remains unchanged. The option quantity
of 26 each XM1114 vehicles is added to the schedule at the normal rate of
delivery.
c. SECTION G
The Accounting and Appropriation Data applicable to new CLINs 0008AA and
0008AB is incorporated into the contract.
3. The contract is modified by replacing or adding the following pages:
a. Page 17a is deleted and replaced with the attached, revised page
17a.
b. New contract pages 2i, 2j, 2k, 2l and 18i are added to the
contract.
4. As a result of this Modification P00020, the contract amount is
increased by $2,305,784.00 from $50,885,893.61 to $53,191,677.61.
5. All other terms and conditions remain unchanged.
<PAGE> 241
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00020 2i
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<C> <C>
0008AA PRODUCTION QUANTITY 9 EA $88,684.00000 $798,156.00
------------- -----------
</TABLE>
PRON: U152F454JZ ACRN: AL
AMS CD: 51103446
CUSTOMER ORDER NUMBER: FD20609570166
SECTION B - Supplies or Services and
Prices/Costs
NSN: 9999-99-999-9999
NOUN: HMMWV-XM1114 UP-ARMOR
FSCM: 00000
PART NR: 99999999
SECURITY CLASS: UNCLASSIFIED
The total price for the quantity of 9 each is $814,212.00
which is composed of vehicle firm fixed price of $86,900.00
(funded at 100%) and the High Capacity Environmental Control
System (ECS) ceiling unit price of $3,568.00 (funded at 50% or
$1,784.00).
Vehicle Amount funded at
100% $782,100.00
High Capacity ECS amount
funded at 50% $ 16,056.00
Total $798,156.00
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
Up Armor Expanded Capacity Vehicle (UA-ECV) HMMWV, with High
Capacity ECS as further described in Section C.4.
(End of narrative C001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ----- ------ -------- -----
001 W56HZW5355S103 Y00000 M 3
PROJ CD BRK BLK PT
------- ----------
IBB
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
001 9 96OCT31
FOB POINT: ORIGIN
Page added by P00020.
<PAGE> 242
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00020 2j
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
*** CLIN 0008AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED UNDER THIS
REQUISITION.
Page added by P00020.
<PAGE> 243
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00020 2k
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<C> <C> <C> <C> <C> <C>
0008AB PRODUCTION QUANTITY 17 EA $88,684.00000 $1,507,628.00
------------- -------------
</TABLE>
PRON: U162F809JZ ACRN: AM
AMS CD: 51105J3446
CUSTOMER ORDER NUMBER: FD20609670088
SECTION B - Supplies or Services and
Prices/Costs
NSN: 9999-99-999-9999
NOUN: HMMWV XM1114 UP ARMOR
FSCM: 99999
PART NR: 0000000000
SECURITY CLASS: UNCLASSIFIED
The total price for the quantity of 17 each is $1,537,956.00
which is composed of vehicle firm fixed price of $86,900.00
(funded at 100%) and the High Capacity Environmental Control
System (ECS) ceiling unit price of $3,568.00 (funded at 50% or
$1,784.00).
Vehicle Amount funded at
100% $1,477,300.00
High Capacity ECS amount
funded at 50% $ 30,328.00
Total $1,507,628.00
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
Up Armor Expanded Capacity Vehicle (UA-ECV) HMMWV, with High
Capacity ECS as further described in Section C.4.
(End of narrative C001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ------ ------ -------- -----
001 FE448460670001 FD2060 D 3
PROJ CD BRK BLK PT
------- ----------
IBB
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
001 5 96OCT31
Page added by P00020.
<PAGE> 244
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00020 2l
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0008AB ***
SHIP TO: FREIGHT ADDRESS
(FE4484) 438 SUPS - LGS
3101 VANDENBERG AVENUE
MCGUIRE AFB NJ 08641-5103
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ----- ------ -------- -----
002 FE485260670002 FD2060 D 3
PROJ CD BRK BLK PT
------- ----------
IBB
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
001 6 96OCT31
FOB POINT: ORIGIN
*** CLIN 0008AB ***
SHIP TO: FREIGHT ADDRESS
(FE4852) 57 SUPS
6155 MCGOUGH PARKWAY
NELLIS AFB, NV 89191-7254
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ----- ------ -------- -----
003 FE529460670003 FD2060 D 3
PROJ CD BRK BLK PT
IBB
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
001 3 96OCT31
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
002 3 96NOV30
FOB POINT: ORIGIN
*** CLIN 0008AB ***
SHIP TO: FREIGHT ADDRESS
(FE5294) 51 WG - LGS
UNIT 2064 BUILDING 819
OSAN AB
SONG TAN CITY ROK 96278-2064
Page added by P00020.
<PAGE> 245
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00020 18i
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
- --------- ------ ---- ---------- ------------ ------------------ ----------
<C> <C> <C> <C> <C> <C>
0008AA U152F454JZ AL 1 $ 0.00 $ 798,156.00 $ 798,156.00
51103446
0008AB U162F809JZ AM 1 $ 0.00 $ 1,507,628.00 $1,507,628.00
51105J3446
------------------
NET CHANGE $ 2,305,784.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
- ---- ------------------------- ---------- -----------------
<S> <C> <C> <C>
AL 57 5 308017547E882299600000000000 F0030L $ 798,156.00
AM 57 6 3080 17647E8823201 503300 F0030L $ 1,507,628.00
-----------------
NET CHANGE $ 2,305,784.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
- --------------------- OF AWARD AMOUNT OBLIGATED AMOUNT
------------ ----------------- ----------------
<S> <C> <C> <C>
$50,885,893.61 $ 2,305,784.00 $ 53,191,677.61
</TABLE>
Page added by P00020.
<PAGE> 246
DAAE07-94-C-0406
Page 17a
ACCELERATED DELIVERY SCHEDULE
<TABLE>
<CAPTION>
31 JAN 96 29 FEB 96 31 MAR 96 30 APR 96 31 MAY 96 30 JUN 96 31 JUL 96 31 AUG 96 30 SEP 96 31 OCT 96 30 NOV 96*
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
XM1114 UA HMMWV
Total Monthly Deliveries 19 23 28 45 65 70 70 70 72
Total Deliveries P00020 19 42 70 115 180 250 320 390 462
NORMAL DELIVERY SCHEDULE *
XM1114 UA HMMWV *
Total Monthly Deliveries 23 3 *
Total Deliveries P00020 23 26 *
</TABLE>
* Page changed by P00020. Previous change by P00019.
<PAGE> 247
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1 3
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00021
3. EFFECTIVE DATE
30 MAY 1996
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
PAUL MUELLER /810-574-7227
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 248
(a) By completing Items 8 and 15, and returning copies of the amendments; (b)
By acknowledging receipt of this amendment on each copy of the offer submitted;
or (c) By separate letter or telegram which includes a reference to the
solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
ACRN AM: NET INCREASE $1,000.00
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation date,
etc). SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this document
and return 1 copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M J Lennon
President
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
JOHN CASH
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ John Cash
(Signature of Contracting Officer)
16C. DATE SIGNED
30 MAY 1996
<PAGE> 249
DAAE07-94-C-0406
P00021
Page 2
PROGRAM: UP ARMOR HMMWV ECV XM1114
CONTRACT: DAAE07-94-C-0406
MODIFICATION: POOO21
PREVIOUS CONTRACT AMOUNT: $53,191,677.61
AMOUNT OF THIS ACTION: 1,000.00
TOTAL CONTRACT AMOUNT: $53,192,677.61
1. The purpose of this Supplemental Agreement Modification P00021 is to
authorize the contractor to use one XM1114 production vehicle, Serial No.
169941, USA Registration No. NG4NEO, with High Capacity Environmental Control
System installed (previously accepted by the Government under CLIN 0003AA) for
display at the 1996 Armor Conference, Fort Knox, Kentucky. The contractor shall
perform the scope of work as further described in Clause C.5, Armor Conference
Display Vehicle. In consideration, the contract price is increased $1000.00.
The XM1114 vehicle for display at the Armor Conference is Government
Furnished Property and is subject to Clause No. I76, GOVERNMENT PROPERTY
(FIXED-PRICE CONTRACTS) (ALTERNATE I) (APR 1984) (91-DEV-44). The contractor is
responsible for this vehicle from the time the contractor takes custody at its
plant in Fairfield, Ohio until the vehicle is returned to its plant from the
Armor Conference.
2. The Government and the Contractor agree to modify the contract as
described below:
a. SECTION B
CLIN 0009AA is established.
<TABLE>
<CAPTION>
OBLIGATED
CLIN DESCRIPTION QTY AMOUNT
---- ----------- --- ---------
<C> <C> <C> <C>
0009AA XM1114, 1996 Armor - $1,000.00
Conference Display
</TABLE>
b. SECTION C
Clause C.5, Armor Conference Display Vehicle is added to the contract.
<PAGE> 250
DAAE07-94-C-0406
P00021
Page 3
c. SECTION G
The Accounting and Appropriation Data applicable to new CLIN 0009AA is
incorporated into the contract.
3. The contract is modified by replacing or adding the following pages:
a. New contract pages 2m, 7c, and 18j are added to the contract.
4. As a result of this Modification P00021, the contract amount is
increased by $1,000.00 from $53,191,677.61 to $53,192,677.61.
5. All other terms and conditions remain unchanged.
<PAGE> 251
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00021 2m
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<C> <C> <C> <C>
0009AA SERVICES LINE ITEM $ $1,000.00
---------- ---------
</TABLE>
PRON: EH62J169EH ACRN: AN
AMS CD: 42101015
SECTION B - Supplies or Services and
Prices/Costs
SECURITY CLASS: UNCLASSIFIED
XM1114, 1996 Armor Conference Display
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
Scope of work described in Clause C.5,
Armor Conference Display Vehicle.
(End of narrative C001)
SECTION E - Inspection and Acceptance
INSPECTION: DESTINATION ACCEPTANCE: DESTINATION
SECTION F - Deliveries or Performance
DLVR SCH PERF COMPL
REL CD DT QUANTITY
-------- ---------- --------
001 96JUN07 0
$ 1000.00
Page added by P00021.
<PAGE> 252
DAAE07-94-C-0406
Page 7c
C.5 Armor Conference Display Vehicle
C.5.1 The contractor shall present an XM1114 vehicle, Serial No. 169941, USA
Registration No. NG4NEO, with High Capacity Environmental System installed for
display at the 1996 Armor Conference, Fort Knox, Kentucky.
C.5.1.1 After a joint inspection of the XM1114 is performed by the contractor
and the Government Quality Assurance Representative (QAR), it shall be
transported from the contractor's plant, Fairfield, Ohio to the exhibition
complex, Skidgel Hall, Fort Knox, Kentucky for outdoor display. The XM1114
display must be set up and operational by 3:00 p.m., June 2, 1996 to be ready
for the walk-through inspection by Armor Conference officials.
C.5.1.2 The display shall be manned daily from 8:00 a.m. to 5:00 p.m. on June 3,
1996 through June 5, 1996 and from 8:00 a.m. to 12:00 p.m. (noon) on June 6,
1996. The XM114 display may be torn down after 12:00 p.m. on June 6, 1996 and
the tear down must be completed by midnight on June 6, 1996.
C.5.1.3 The XM1114 shall be transported from Fort Knox, Kentucky back to the
contractor's plant, Fairfield, Ohio for arrival no later than June 7, 1996. Upon
arrival of the XM1114 at the contractor's plant, it will undergo a joint
inspection by the contractor and the Government QAR.
C.5.2 The XM1114 vehicle used for display at the Armor Conference is Government
Furnished Property and is subject to Clause I76, Government Property
(Fixed-Price Contracts) (Alternate I) (APR 1984) (91-DEV-44). The contractor is
responsible for this vehicle from the time the contractor takes custody at its
plant in Fairfield, Ohio until the vehicle is returned to its plant from the
Armor Conference.
Page added by P00021.
<PAGE> 253
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00021 18j
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
- --------- ------ ---- ---------- ------------ ------------------ ----------
<C> <C> <C> <C> <C> <C> <C>
0009AA EH62J169EH AN 2 $ 0.00 $ 1,000.00 $ 1,000.00
42101015 6TWSDT
------------------
NET CHANGE $ 1,000.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
- ---- ------------------------- ------- -----------------
<S> <C> <C> <C>
AN 21 4 2020 5J5J00421010125CZ S2011362J169 W56HZV $ 1,000.00
-----------------
NET CHANGE $ 1,000.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
- --------------------- OF AWARD AMOUNT OBLIGATED AMOUNT
------------ ----------------- ----------------
<S> <C> <C> <C>
$ 53,191,677.61 $ 1,000.00 $ 53,192,677.61
</TABLE>
Page added by P00021.
<PAGE> 254
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00022
3. EFFECTIVE DATE
03 JUL 1996
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
PAUL MUELLER /810-574-7227
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 255
(a) By completing Items 8 and 15, and returning copies of the amendments;
(b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (c) By separate letter or telegram which includes a reference to
the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
ACRN AP: NET INCREASE $1,430,144.00
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation date,
etc). SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X H.12, Option to Increase Vehicle and I.72, Changes - Fixed Price
PM 3 JUL 96
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this document
and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
Gary Allen V.P. Operations for
M.L. Lennon, President
15B. CONTRACTOR/OFFEROR
/s/ G W Allen FOR M.L. LENNON
(Signature of person authorized to sign)
15C. DATE SIGNED
7/2/96
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
Kenneth Bousquet
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Kenneth Bousquet
(Signature of Contracting Officer)
16C. DATE SIGNED
03 JUL 1996
<PAGE> 256
DAAE07-94-C-0406
P00022
Page 2
PROGRAM: UP ARMOR HMMWV ECV XM1114
CONTRACT: DAAE07-94-C-0406
MODIFICATION: POOO22
PREVIOUS CONTRACT AMOUNT: $53,192,677.61
AMOUNT OF THIS ACTION: 1,430,144.00
TOTAL CONTRACT AMOUNT: $54,622,821.61
1. The purpose of this Supplemental Agreement Modification P00022 is to
partially exercise the option per Clause H.12, Option to Increase Vehicle
Quantities, for an additional quantity of 16 each XM1114 vehicles with High
Capacity Environmental Control System (ECS) installed, to be delivered in
September 1996; and to revise the delivery schedule in Clause F.5, Required
Delivery Schedule.
a. The 16 each XM1114 vehicles are added to the contract at the option
unit price of $86,900.00, obligated at 100%. The vehicles will be delivered in
September 1996 at no additional cost to the Government.
b. Pursuant to the Changes-Fixed Price Clause of this contract and in
accordance with the description at C.4.11 of the contract, the High Capacity ECS
shall be incorporated into the option quantity of 16 each XM1114 vehicles at the
Not-To-Exceed Total Ceiling Price of $52,992.00. The Not-To-Exceed Total Ceiling
Price of $52,992.00 is based on the estimated unit price of $3312.00, obligated
at 75% or $2484.00.
c. In conjunction with the Notice of Partial Termination that pertained
to accelerated delivery of 52 vehicles under SUBCLIN 1001AB, the delivery
schedule is revised to reflect delivery at the normal rate.
d. Shipping instructions for 20 vehicles are provided under SUBCLIN
0007AA.
2. The Government and the Contractor agree to modify the contract as
described below:
<PAGE> 257
DAAE07-94-C-0406
P00022
Page 3
a. SECTION B.
CLIN 0010AA is established:
<TABLE>
<CAPTION>
OBLIGATED
CLIN DESCRIPTION QTY AMOUNT
---- ----------- --- ---------
<C> <C> <C> <C>
0010AA XM1114 with High Capacity ECS 16 $1,430,144.00
</TABLE>
b. SECTION F
The Required Delivery Schedule is revised by adding delivery of the
option quantity of 16 each XM1114 vehicles in September 1996, and rescheduling
delivery of 52 vehicles from September 1996 to October and November 1996.
c. SECTION G
The Accounting and Appropriation Data applicable to new CLIN 0010AA is
incorporated into the contract.
3. The contract is modified by replacing or adding the following pages:
a. Pages 2g, 2h, 2i, 2j, 2k, 2l and 17a, are deleted and replaced
with the attached, revised pages 2g, 2h, 2i, 2j, 2k, 2l and 17a.
b. New contract pages 2n, 2o and 18k are added to the contract.
4. As a result of this Modification P00022, the contract amount is
increased by $1,430,144 from $53,192,677.61 to $54,622,821.61.
5. All other terms and conditions remain unchanged.
<PAGE> 258
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00022 2g
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<C> <C> <C> <C> <C> <C>
0007AA PRODUCTION QUANTITY 72 EA $ N/A $3,252,204.00
---------- -------------
</TABLE>
PRON: JZ62F599JZ ACRN: AK
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: XM1114 UPARMORED-BOSNIA HMMWV
SECURITY CLASS: UNCLASSIFIED
Bosnia Project Code 9EV. The total not to exceed ceiling price
for the quantity of 72 each is $6,247,512.00 which is composed
of the vehicle ceiling unit price of $86,771.00 (funded at 50%
or $43,385.50) and the High Capacity Environmental Control
System (ECS) ceiling unit price of $3,568.00 (funded at 50% or
$1,784.00).
<TABLE>
<S> <C>
Vehicle Amount funded at
50% $3,123,756
High Capacity ECS amount
funded at 50% $ 128,448
----------
Total $3,252,204
</TABLE>
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
Up Armor Expanded Capacity Vehicle (UA-ECV) HMMWV, with High
Capacity ECS as further described in Section C.4.
(End of narrative C001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
001 W56HZW6026S105 Y00000 M 3
PROJ CD BRK BLK PT
------- ----------
IBB
DEL REL CD QUANTITY
---------- --------
001 DELETED
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
002 31 96OCT31
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
003 21 96NOV30
FOB POINT: ORIGIN
Changed by P00022. Previously added by P00019.
<PAGE> 259
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00022 2h
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
*** CLIN 0007AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED UNDER THIS
REQUISITION.
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ----- ------ -------- -----
002 W80SBG6165L002 W813M8 M 1
PROJ CD BRK BLK PT
------- ----------
9EV
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
001 20 96SEP30
FOB POINT: ORIGIN
*** CLIN 0007AA ***
SHIP TO: FREIGHT ADDRESS
(W813M8) XR USAMC EUROPE
GERMERSHEIM ARMY DEPOT
BUILDING 7543
76716 GERMERSHEIM GE
MARK FOR: Bosnia Proj Cd 9EV
ATTN: TVFT-E (Mr. Bob Greer)
(End of narrative F001)
*Changed by P00022. Previously added by P00019.
<PAGE> 260
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00022 2i
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<C> <C> <C> <C> <C> <C>
0008AA PRODUCTION QUANTITY 9 EA $88,684.00000 $798,156.00
------------- -----------
</TABLE>
PRON: U152F454JZ ACRN: AL
AMS CD: 51103446
CUSTOMER ORDER NUMBER: FD20609570166
SECTION B - Supplies or Services and
Prices/Costs
NSN: 9999-99-999-9999
NOUN: HMMWV-XM1114 UP-ARMOR W/CHNGS
FSCM: 00000
PART NR: 99999999
SECURITY CLASS: UNCLASSIFIED
The total price for the quantity of 9 each is $838,512.00
which is composed of vehicle firm fixed price of $86,900.00
(funded at 100%) and the High Capacity Environmental Control
System (ECS) ceiling unit price of $3,568.00 (funded at 50% or
$1,784.00).
Vehicle Amount funded at
100% $782,100.00
High Capacity ECS amount
funded at 50% $ 16,056.00
Total $798,156.00
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
Up Armor Expanded Capacity Vehicle (UA-ECV) HMMWV, with High
Capacity ECS as further described in Section C.4. To be
initially delivered in the XM1114 configuration and, upon
authorization by the Government, modified to the XM1116
configuration.
(End of narrative C001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ---- ------ -------- -----
001 W56HZW5355S103 Y00000 M 3
PROJ CD BRK BLK PT
------- ----------
IBB
DEL REL CD QUANTITY
---------- --------
001 DELETED
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
Changed by P00022. Previously added by P00020.
<PAGE> 261
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00022 2j
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
002 3 96NOV30
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
003 6 96DEC31
FOB POINT: ORIGIN
*** CLIN 0008AA ***
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED UNDER THIS
REQUISITION.
Changed by P00022. Previously added by P00020.
<PAGE> 262
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00022 2k
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<C> <C> <C> <C> <C> <C>
0008AB PRODUCTION QUANTITY 17 EA $88,684.00000 $1,507,628.00
------------- -------------
</TABLE>
PRON: U162F809JZ ACRN: AM
AMS CD: 51105J3446
CUSTOMER ORDER NUMBER: FD20609670088
SECTION B - Supplies or Services and
Prices/Costs
NSN: 9999-99-999-9999
NOUN: HMMWV-M1116 UP ARMOR
FSCM: 99999
PART NR: 0000000000
SECURITY CLASS: UNCLASSIFIED
The total price for the quantity of 72 each is $1,537,956.00
which is composed of vehicle firm fixed price of $86,900.00
(funded at 100%) and the High Capacity Environmental Control
System (ECS) ceiling unit price of $3,568.00 (funded at 50% or
$1,784.00).
Vehicle Amount funded at
100% $1,477,300.00
High Capacity ECS amount
funded at 50% $ 30,328.00
Total $1,507,628.00
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
Up Armor Expanded Capacity Vehicle (UA-ECV) HMMWV, with High
Capacity ECS as further described in Section C.4. To be
initially delivered in the XM1114 configuration and, upon
authorization by the Government, modified to the XM1116
configuration.
(End of narrative C001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ----- ------ -------- -----
001 FE448460670001 FD2060 D 3
PROJ CD BRK BLK PT
------- ----------
IBB
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
001 5 96DEC31
Changed by P00022. Previously added by P00020.
<PAGE> 263
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00022 2l
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C>
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0008AB ***
SHIP TO: FREIGHT ADDRESS
(FE4484) 438 SUPS - LGS
3101 VANDENBERG AVENUE
MCGUIRE AFB NJ 08641-5103
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
002 FE485260670002 FD2060 D 3
PROJ CD BRK BLK PT
IBB
DEL REL CD QUANTITY DEL DATE
001 6 96DEC31
FOB POINT: ORIGIN
*** CLIN 0008AB ***
SHIP TO: FREIGHT ADDRESS
(FE4852) 57 SUPS
6155 MCGOUGH PARKWAY
NELLIS AFB, NV 89191-7254
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
003 FE529460670003 FD2060 D 3
PROJ CD BRK BLK PT
IBB
DEL REL CD QUANTITY
001 DELETED
DEL REL CD QUANTITY
002 DELETED
DEL REL CD QUANTITY DEL DATE
003 6 96DEC31
FOB POINT: ORIGIN
*** CLIN 0008AB ***
SHIP TO: FREIGHT ADDRESS
(FE5294) 51 WG - LGS
UNIT 2064 BUILDING 819
OSAN AB
SONG TAN CITY ROK 96278-2064
Changed by P00022. Previously added by P00020.
<PAGE> 264
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00022 2n
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<C> <C> <C> <C> <C> <C>
0010AA PRODUCTION QUANTITY 16 EA $89,384.00000 $1,430,144.00
------------- -------------
</TABLE>
PRON: J562M013JZ ACRN: AP
AMS CD: 43000000
FMS CASE IDENTIFIER
LX UDH
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: HMMWV-XM1114 UP ARMORED
FSCM: 19207
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
The total price for the quantity of 16 each is $1,443,392.00
which is composed of vehicle firm fixed price of $86,900.00
(funded at 100%) and the High Capacity Environmental Control
System (ECS) estimated unit price of $3,312.00 (funded at 75%
or $2,484.00).
Vehicle Amount funded at
100% $1,390,400.00
High Capacity ECS amount
funded at 75% $ 39,744.00
Total $1,430,144.00
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
Up Armor Expanded Capacity Vehicle (UA-ECV) HMMWV, with High
Capacity ECS as further described in Section C.4.
(End of narrative C001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 BXWUDH6176T001 BXWUDH L 3
PROJ CD BRK BLK PT
000 BXWU00
DEL REL CD QUANTITY DEL DATE
Page added by P00022.
<PAGE> 265
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00022 2o
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0010AA ***
SHIP TO: Contractor to contact
DCMAO for shipping
instructions prior to
shipment
Page added by P00022.
<PAGE> 266
F.5 REQUIRED DELIVERY SCHEDULE DAAE07-94-C-0406
Page 17a
ACCELERATED DELIVERY SCHEDULE
<TABLE>
<CAPTION>
31 JAN 96 29 FEB 96 31 MAR 96 30 APR 96 31 MAY 96 30 JUN 96 31 JUL 96 31 AUG 96 30 SEP 96
XM1114 UA HMMWV
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Monthly Deliveries 19 23 28 45 65 70 70 70 36 *
Total Deliveries 19 42 70 115 180 250 320 390 426 *
</TABLE>
NORMAL DELIVERY SCHEDULE
XM1114 UA HMMWV
<TABLE>
<CAPTION>
31 OCT 96 30 NOV 96 31 DEC 96 31 JAN 97 *
<S> <C> <C> <C> <C>
Monthly Deliveries 31 24 23 *
Total Deliveries 31 55 78 *
</TABLE>
* Page changed by P00022. Previous change by P00020.
<PAGE> 267
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00022 18k
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT
- --------- AMOUNT ---- ---------- ------------ ----------------- ----------
------
<C> <C> <C> <C> <C> <C> <C>
0010AA J562M013JZ AP 1 $ 0.00 $ 1,430,144.00 $1,430,144.00
43000000
-----------------
NET CHANGE $ 1,430,144.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
- ---- ------------------------- ------- ------
<S> <C> <C> <C> <C>
AP 9711 X8242LX01X6D1000UDH 00131E1LXS20113 W56HZV $1,430,144.00
------------------
NET CHANGE $ 1,430,144.00
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
OF AWARD AMOUNT OBLIGATED AMOUNT
-------- ------ ----------------
<S> <C> <C> <C>
$53,192,677.61 $1,430,144.00 $ 54,622,821.61
</TABLE>
<PAGE> 268
Page added by P00022.
<PAGE> 269
10 Jul 96
O'Gara-Hess & Eisenhardt Armoring Co.
Attn: Tony Crayden
Subject: P00023, 94-C-0406
1. P00023 provides shipping instructions for 3 trucks to AM General, Livonia,
MI. You are currently holding 2 trucks, SNs 170568 and 170202 for Livonia.
Please ship the 2 trucks as soon as possible.
2. The third truck, SN 170177, that will ultimately be shipped to AM General,
Livonia is currently at SCS/Friggete, Ft. Worth, TX undergoing AC tests.
/s/ Paul Mueller
Paul Mueller
AMSTA-AQ-WCA
<PAGE> 270
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00023
3. EFFECTIVE DATE
10 JUL 1996
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
PAUL MUELLER /810-574-7227
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 271
(a) By completing Items 8 and 15, and returning copies of the amendments; (b)
By acknowledging receipt of this amendment on each copy of the offer submitted;
or (c) By separate letter or telegram which includes a reference to the
solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
No change to obligation data
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
X THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER
NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation date,
etc). SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor X is not, is required to sign this document
and return 1 copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
See second page for description.
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
15B. CONTRACTOR/OFFEROR
(Signature of person authorized to sign)
15C. DATE SIGNED
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
Kenneth Bousquet
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Kenneth Bousquet
(Signature of Contracting Officer)
16C. DATE SIGNED
10 JUL 1996
<PAGE> 272
DAAE07-94-C-0406
P00023
Page 2
PROGRAM: UP ARMOR HMMWV ECV XM1114
CONTRACT: DAAE07-94-C-0406
MODIFICATION: POOO23
PREVIOUS CONTRACT AMOUNT: $54,622,821.61
AMOUNT OF THIS ACTION: .00
TOTAL CONTRACT AMOUNT: $54,622,821.61
1. The purpose of this unilateral Modification P00023 is to revise shipping
instructions under SUBCLIN 0003AA.
2. The contract is modified as follows:
SECTION B
Shipment of three XM1114 vehicles is diverted from Germersheim Army
Depot to AM General Corp., Livonia, MI.
3. The contract is modified by replacing or adding the following pages:
a. Page 2b is deleted and replaced with the attached, revised page
2b.
b. New contract page 2b(1) is added to the contract.
4. As a result of this Modification P00023, the contract amount remains
unchanged at $54,622,821.61.
5. All other terms and conditions remain unchanged.
<PAGE> 273
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00023 2b
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<C> <C> <C> <C> <C> <C>
0003AA PRODUCTION QUANTITY 152 EA $86,900.00000 $13,208,800.00
------------- --------------
</TABLE>
PRON: JZ42P880JZ ACRN: AC
AMS CD: 51103446
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: XM1114 UP ARMORED - HMMWV
FSCM: 19207
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
NOUN: Up Armor Expanded Capacity Vehicle
(UA-ECV) HMMWV, XM1114, as further
described in Section C.4
(End of narrative B001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ----- ------ -------- -----
002 W80SBG6030L002 W813M8 M 1
PROJ CD BRK BLK PT
9EV
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
001 149 96APR30
FOB POINT: ORIGIN
*** CLIN 0003AA ***
SHIP TO: FREIGHT ADDRESS
(W813M8) XR USAMC EUROPE
GERMERSHEIM ARMY DEPOT
BUILDING 7543
76716 GERMERSHEIM GE
MARK FOR: TVFT-E, ATTN: BOB GREER
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
------ -------- ----- ------ -------- -----
003 W80SBG6172L007 CK0LXT M 1
PROJ CD BRK BLK PT
------- ----------
9EV
DEL REL CD QUANTITY DEL DATE
---------- -------- --------
001 3 96APR30
*Changed by P00023. Previously added by P00015.
<PAGE> 274
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00023 2b(1)
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<S> <C> <C> <C> <C> <C>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
</TABLE>
FOB POINT: ORIGIN
*** CLIN 0003AA ***
SHIP TO: FREIGHT ADDRESS
(CK0LXT) XR AM GENERAL CORP.
31744 ENTERPRISE DRIVE
LIVONIA, MI 48151-3330
*Page added by P00023.
<PAGE> 275
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00024
3. EFFECTIVE DATE
01 AUG 1996
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
PAUL MUELLER /810-574-7227
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 276
(a) By completing Items 8 and 15, and returning copies of the amendments; (b)
By acknowledging receipt of this amendment on each copy of the offer submitted;
or (c) By separate letter or telegram which includes a reference to the
solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
See continuation sheet
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER
NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation date,
etc). SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X H.12, Option to Increase Vehicle Quantities and I.72, Changes -
Fixed Price.
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this document
and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M J Lennon
President
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
7/29/96
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
KENNETH BOUSQUET
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Kenneth Bousquet
(Signature of Contracting Officer)
16C. DATE SIGNED
01 AUG 1996
<PAGE> 277
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00024
3. EFFECTIVE DATE
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
PAUL MUELLER /810-574-7227
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and ZIP
Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 278
(a) By completing Items 8 and 15, and returning copies of the amendments; (b)
By acknowledging receipt of this amendment on each copy of the offer submitted;
or (c) By separate letter or telegram which includes a reference to the
solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
See continuation sheet
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO:
THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT/ORDER
NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation date,
etc). SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X H.12, Option to Increase Vehicle Quantities and I.72, Changes -
Fixed Price.
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this document
and return copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section
headings, including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M J Lennon
President
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
(Signature of person authorized to sign)
15C. DATE SIGNED
7/29/96
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
16B. UNITED STATES OF AMERICA
BY
(Signature of Contracting Officer)
16C. DATE SIGNED
<PAGE> 279
DAAE07-94-C-0406
P00024
Page 2
PROGRAM: UP ARMOR HMMWV ECV XM1114
CONTRACT: DAAE07-94-C-0406
MODIFICATION: POOO24
PREVIOUS CONTRACT AMOUNT: $54,622,821.61
AMOUNT OF THIS ACTION: 268,152.00
TOTAL CONTRACT AMOUNT: $54,890,973.61
1. The purpose of this Supplemental Agreement Modification P00024 is to
partially exercise the option per Clause H.12, Option to Increase Vehicle
Quantities, for an additional quantity of 3 each XM1114 vehicles with High
Capacity Environmental Control System (ECS) installed, to be delivered in
January 1997.
a. The 3 each XM1114 vehicles are added to the contract at the
option unit price of $86,900.00, obligated at 100%.
b. Pursuant to the Changes-Fixed Price Clause of this contract and in
accordance with the description at C.4.11 of the contract, the High Capacity ECS
shall be incorporated into the option quantity of 3 each XM1114 vehicles at the
Not-To-Exceed Total Ceiling Price of $9,936.00. The Not-To-Exceed Total Ceiling
Price of $9,936.00 is based on the estimated unit price of $3,312.00, obligated
at 75% or $2,484.00.
2. The Government and the Contractor agree to modify the contract as
described below:
a. SECTION B
CLINs 0011AA and 0011AB are established:
<TABLE>
<CAPTION>
OBLIGATED
CLIN DESCRIPTION QTY AMOUNT
---- ----------- --- ---------
<S> <C> <C> <C>
0011AA XM1114 with High Capacity ECS 2 $178,768.00
0011AB XM1114 with High Capacity ECS 1 $ 89,384.00
</TABLE>
b. SECTION F
The Required Delivery Schedule is revised by adding delivery of the
option quantity of 3 each XM1114 vehicles in January 1997.
<PAGE> 280
DAAE07-94-C-0406
P00024
Page 3
c. SECTION G
The Accounting and Appropriation Data applicable to new CLINs 0011AA
and 0011AB is incorporated into the contract.
3. The contract is modified by replacing or adding the following pages:
a. Pages 17a is deleted and replaced with the attached, revised page
17a.
b. New contract pages 2p, 2q, 2r, 2s and 18l are added to the contract.
4. As a result of this Modification P00024, the contract amount is increased by
$268,152.00 from $54,622,821.61 to $54,890,973.61.
5. All other terms and conditions remain unchanged.
<PAGE> 281
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00024 2p
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0011AA PRODUCTION QUANTITY 2 EA $89,384.00000 $178,768.00
PRON: JZ42M025JZ ACRN: AQ
AMS CD: 51103446
</TABLE>
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: HMMWV - XM1114 UP ARMORED
FSCM: 19207
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
The total price for the quantity of 2 each is $180,424.00
which is composed of vehicle firm fixed price of $86,900.00
(funded at 100%) and the High Capacity Environmental
Control System (ECS) estimated unit price of $3,312.00
(funded at 75% or $2,484.00).
Vehicle Amount funded at
100% $173,800.00
High Capacity ECS amount
funded at 75% $ 4,968.00
Total $178,768.00
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
Up Armor Expanded Capacity Vehicle (UA-ECV) HMMWV, with
High Capacity ECS as further described in Section C.4.
(End of narrative C001)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW6183S101 Y00000 M 3
PROJ CD BRK BLK PT
IJB
DEL REL CD QUANTITY DEL DATE
001 2 97JAN31
FOB POINT: ORIGIN
*** CLIN 0011AA ***
SHIP TO: PARCEL POST ADDRESS
Page added by P00024.
<PAGE> 282
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00024 2q
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C>
(Y00000) SHIPPING INSTRUCTIONS FOR CONSIGNEE (SHIP-TO) WILL
BE FURNISHED PRIOR TO THE SCHEDULED DELIVERY DATE
FOR ITEMS REQUIRED UNDER THIS REQUISITION.
</TABLE>
Page added by P00024.
<PAGE> 283
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00024 2r
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0011AB PRODUCTION QUANTITY 1 EA $89,384.00000 $89,394.00
PRON: JZ42F848JZ ACRN: AR
AMS CD: 51103446
</TABLE>
SECTION B - Supplies or Services and
Prices/Costs
NSN: 2320-01-413-3739
NOUN: HMMWV - XM1114
FSCM: 19207
PART NR: 87T0015
SECURITY CLASS: UNCLASSIFIED
SECTION C - Description/Specs./Work Statement
The total price for the quantity of 1 each is $90,212.00
which is composed of vehicle firm fixed price of $86,900.00
(funded at 100%) and the High Capacity Environmental
Control System (ECS) estimated unit price of $3,312.00
(funded at 75% or $2,484.00).
Vehicle Amount funded at
100% $ 86,900.00
High Capacity ECS amount
funded at 75% $ 2,484.00
Total $ 89,384.00
(End of narrative C001)
Up Armor Expanded Capacity Vehicle (UA-ECV) HMMWV, with
High Capacity ECS as further described in Section C.4.
(End of narrative C002)
SECTION D - Packaging and Marking
Best Commercial Packaging
(End of narrative D001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DOC SUPPL
REL CD MILSTRIP ADDR SIG CD MARK FOR TP CD
001 W56HZW6183S101 Y00000 M 3
PROJ CD BRK BLK PT
IJB
DEL REL CD QUANTITY DEL DATE
001 1 97JAN31
FOB POINT: ORIGIN
*** CLIN 0011AB ***
Page added by P00024.
<PAGE> 284
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00024 2s
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C>
SHIP TO: PARCEL POST ADDRESS
(Y00000) SHIPPING INSTRUCTIONS FOR
CONSIGNEE (SHIP-TO) WILL BE FURNISHED PRIOR TO THE
SCHEDULED DELIVERY DATE FOR ITEMS REQUIRED UNDER
THIS REQUISITION.
</TABLE>
Page added by P00024.
<PAGE> 285
F.5 REQUIRED DELIVERY SCHEDULE
ACCELERATED DELIVERY SCHEDULE
<TABLE>
<CAPTION>
31 JAN 96 29 FEB 96 31 MAR 96 30 APR 96 31 MAY 96 30 JUN 96 31 JUL 96 31 AUG 96 30 SEP 96
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
XM1114 UA HMMWV
Monthly Deliveries 19 23 28 45 65 70 70 70 36
Total Deliveries 19 42 70 115 180 250 320 390 426
NORMAL DELIVERY SCHEDULE
XM1114 UA HMMWV
Monthly Deliveries
Total Deliveries
</TABLE>
ACCELERATED DELIVERY SCHEDULE
<TABLE>
<CAPTION>
31 OCT 96 30 NOV 96 31 DEC 96 31 JAN 97
<S> <C> <C> <C> <C>
XM1114 UA HMMWV
Monthly Deliveries
Total Deliveries
NORMAL DELIVERY SCHEDULE
XM1114 UA HMMWV
Monthly Deliveries 31 24 23 3 *
Total Deliveries 31 55 78 81 *
</TABLE>
* Page changed by P00024. Previous change by P00022.
<PAGE> 286
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00024 18l
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT
AMOUNT
<S> <C> <C> <C> <C> <C> <C>
1001AA JZ42M025JZ AQ 1 $0.00 $178,768.00 $178,768.00
51103446
1001AB JZ42F848JZ AR 1 $0.00 $ 89,384.00 $ 89,384.00
51103446
</TABLE>
NET CHANGE $ 268,152.00
<TABLE>
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
<S> <C> <C> <C> <C> <C> <C> <C> <C>
AQ 21 42035 45J5J01P5110 25CZ S2011342M025 W56HZV $178,768.00
AR 21 42035 45J5J01P5110 25CZ S2011342F848 W56HZV $ 89,384.00
</TABLE>
NET CHANGE $ 268,152.00
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
OF AWARD AMOUNT OBLIGATED AMOUNT
<S> <C> <C> <C>
$54,622,821.61 $268,152.00 $54,890,973.61
</TABLE>
Page added by P00024.
<PAGE> 287
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
PAGE OF PAGES
1
1. CONTRACT ID CODE
J
2. AMENDMENT/MODIFICATION NO.
P00025
3. EFFECTIVE DATE
07 AUG 1996
4. REQUISITION/PURCHASE REQ NO.
See Schedule
5. PROJECT NO. (If applicable)
ACN
6. ISSUED BY CODE W56HZV
TACOM
AMSTA-AQ-WCA /N5 WPN SYS: N5
PAUL MUELLER /810-574-7227
WARREN, MICHIGAN 48397-5000
7. ADMINISTERED BY (If other than Item 6) CODE S3605A
DCMAO DAYTON
GENTILE STATION
1001 HAMILTON STREET
DAYTON, OH 45444-5300
SCD A PAS NONE ADP PT SC1010
8. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State and
ZIP Code)
O GARA-HESS & EISENHARDT ARMORING
CO J
9113 LE SAINT RD
FAIRFIELD OH 45014
CODE 6W728 FACILITY CODE
(X) 9A. AMENDMENT OF SOLICITATION NO.
9B. DATED (SEE ITEM 11)
10A. MODIFICATION OF CONTRACT/ORDER NO
X DAAE0794C0406
10B. DATED (SEE ITEM 13)
94MAY13
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour
and date specified for receipt of Offers is extended, is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended by one of the following methods:
<PAGE> 288
(a) By completing Items 8 and 15, and returning copies of the amendments; (b)
By acknowledging receipt of this amendment on each copy of the offer submitted;
or (c) By separate letter or telegram which includes a reference to the
solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
ACRN AF: NET INCREASE $2.14
C 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS. IT
MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: THE CHANGES SET FORTH IN
ITEM 14 ARE MADE IN THE CONTRACT/ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in paying office,
appropriation date, etc). SET FORTH IN ITEM 14, PURSUANT TO THE
AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY
OF:
X Mutual Agreement of the Parties
D. OTHER (Specify type of modification and authority)
E. IMPORTANT: Contractor is not, X is required to sign this document and return
1 copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings,
including solicitation/contract subject matter where feasible.)
Except as provided herein, all terms and conditions of the document referenced
in Item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
M J Lennon
President
15B. CONTRACTOR/OFFEROR
/s/ M J Lennon
------------------------
(Signature of person authorized to sign)
15C. DATE SIGNED
8/6/96
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
SHARLENE M. INNES
Contracting Officer
16B. UNITED STATES OF AMERICA
BY /s/ Sharlene M. Innes
---------------------------
(Signature of Contracting Officer)
16C. DATE SIGNED
07 AUG 1996
<PAGE> 289
DAAE07-94-C-0406
P00025
Page 2
PROGRAM: UP ARMOR HMMWV ECV XM1114
CONTRACT: DAAE07-94-C-0406
MODIFICATION: POOO25
PREVIOUS CONTRACT AMOUNT: $54,890,973.61
AMOUNT OF THIS ACTION: 2.14
TOTAL CONTRACT AMOUNT: $54,890,975.75
1. The purpose of this Supplemental Agreement Modification P00025 is to
establish unit prices under SUBCLINs 0009AA and 1001AA in order to facilitate
payment.
2. The Government and the Contractor agree to modify the contract as described
below:
a. SECTION B
(1) Under SUBCLIN 0009AA, the Quantity is established as 1;
the Unit as Lot; and the Unit Price as $1,000.00.
(2) Under SUBCLIN 1001AA, the interim Unit Price is
established as $18,925.00 and the Extended Amount is increased from
$3,974,247.86 by $2.14 to $3,974,250.00. Pending definitization of Modification
P00013, the contractor is authorized to receive payment at the interim, unit
billing price of $18,925.00
b. SECTION G
The Accounting and Appropriation Data applicable to the increase under
SUBCLIN 1001AA is incorporated into the contract.
3. The contract is modified by replacing or adding the following pages:
a. Pages 2e and 2m are deleted and replaced with the attached, revised
pages 2e and 2m.
b. New contract page 18m is added to the contract.
4. As a result of this Modification P00025, the contract amount is
increased by $2.14 from $54,890,973.61 to $54,890,975.75.
5. All other terms and conditions remain unchanged.
<PAGE> 290
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00025 2e
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
1001AA SERVICES LINE ITEM 210 EA $18,925.00 $3,974,250.00
PRON: JZ62F637JZ ACRN: AF
NON MILSTRIP
AMS CD: 51103446
</TABLE>
SECTION B - Supplies or Services and
Prices/Costs
NOUN: XM1114 DELIVERY ACCELERATION
SECURITY CLASS: UNCLASSIFIED
THE NOT-TO-EXCEED CEILING PRICE
OF $7,948,495.72
(End of narrative B001)
Pending definitization of P00013, the contractor is
authorized to receive payment at the interim, unit billing
price of $18,925.00.
(End of narrative B002)
SECTION C - Description/Specs./Work Statement
FOR ALL OF CONTRACTED VEHICLES
TO BE DELIVERED NO LATER THAN 31
AUG 96. THE GOVERNMENT LIMITATION
OF LIABILITY FOR THESE VEHICLES IS
$3,974,250.00
(End of narrative C001)
SECTION E - Inspection and Acceptance
INSPECTION: ORIGIN ACCEPTANCE: ORIGIN
SECTION F - Deliveries or Performance
DLVR SCH PERF COMPL
REL CD DT QUANTITY
001 96AUG31 210
$ 3974250.00
Changed by P00025. Page previously added by P00013.
<PAGE> 291
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: 2m
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
<TABLE>
<CAPTION>
ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT
<S> <C> <C> <C> <C> <C>
0009AA SERVICES LINE ITEM 1 Lot $1,000.00 $1,000.00
PRON: EH62J169EH ACRN: AN
AMS CD: 42101015
</TABLE>
SECTION B - Supplies or Services and
Prices/Costs
SECURITY CLASS: UNCLASSIFIED
XM1114, 1996 Armor Conference Display
(End of narrative B001)
SECTION C - Description/Specs./Work Statement
Scope of work described in Clause C.5,
Armor Conference Display Vehicle.
(End of narrative C001)
SECTION E - Inspection and Acceptance
INSPECTION: DESTINATION ACCEPTANCE: DESTINATION
SECTION F - Deliveries or Performance
DLVR SCH PERF COMPL
REL CD DT QUANTITY
001 96JUN07 1
$ 1000.00
Changed by P00025. Page previously added by P00021.
<PAGE> 292
CONTINUATION SHEET Reference No. of Document Being Continued Page
DAAE07-94-C-0406 MOD. No.: P00025 18m
Name of Offeror or Contractor O GARA-HESS & EISENHARDT ARMORING
SECTION G - CONTRACT ADMINISTRATION DATA
Accounting & Appropriation Data
<TABLE>
<CAPTION>
PRON/ OBLG STAT/ INCREASE/DECREASE CUMULATIVE
LINE ITEM AMS CD ACRN JOB ORD NO PRIOR AMOUNT AMOUNT AMOUNT
<S> <C> <C> <C> <C> <C> <C>
1001AA JZ62F637JZ AF 1 $3,974,247.86 $2.14 $3,974,250.00
51103446
NET CHANGE $2.14
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE BY ACCOUNTING INCREASE/DECREASE
ACRN ACCOUNTING CLASSIFICATION STATION AMOUNT
<S> <C> <C> <C> <C> <C>
AF 21 62035 65J5J01P5110 25CZ S2011362F637 W56HZV $2.14
NET CHANGE $2.14
</TABLE>
<TABLE>
<CAPTION>
NET CHANGE FOR AWARD: PRIOR AMOUNT INCREASE/DECREASE CUMULATIVE
OF AWARD AMOUNT OBLIGATED AMOUNT
<S> <C> <C> <C>
$ 54,890,973.61 $2.14 $54,890,975.75
</TABLE>
Page added by P00025.
<PAGE> 1
Exhibit 10.3
Exhibit A - Legal Description
LEASE
1. SPACE:
OLG, LIMITED, an Ohio limited liability company (the "Owner"), whose
address is 9113 LeSaint Drive, Fairfield, Ohio 45014, subject to the terms
hereinafter set forth, does hereby lease to O'GARA-HESS & EISENHARDT ARMORING
COMPANY, a Delaware corporation (the "Tenant"), whose address is 9113 LeSaint
Drive, Fairfield, Ohio 45014, the real property and improvements thereon located
at 4175 Mulhauser Road, Fairfield, Ohio 45014, as more completely described in
Exhibit A attached hereto (the "Property").
2. TERM:
A. Initial Term. The Initial Term of this Lease shall commence on March
12, 1996 (the "Commencement Date"), and shall end at 11:59 p.m. on March 31,
1997, unless extended pursuant to the terms hereof or unless sooner terminated
as hereinafter provided.
B. Renewal Options. Tenant shall have an option to renew the Term of
this Lease. Each option shall be exercisable by written notice to Owner, given
at least one hundred twenty (120) days prior to the time that the Initial Term
or then-current Renewal Term of this Lease, whichever is applicable, would
otherwise have expired. Within thirty (30) days after Tenant notifies Owner of
its intention to exercise each such option, Owner and Tenant shall negotiate the
term of the renewal period and the annual base rent. In the event Owner and
Tenant are unable to reach agreement on the term of the renewal period and the
annual base rent, such option shall terminate and this Lease shall terminate at
the end of the then current Term of the Lease. As used in this Lease, the "Term"
of the Lease means the Initial Term and any applicable Renewal Term(s).
3. RENT:
A. Initial Rent. If the Commencement Date is not the first day of a
month, then on the Commencement Date, Tenant shall pay Owner Interim Base Rent
calculated at the rate of $1,282.19 per day, from such Commencement Date through
and including the last day of such month.
B. Annual Base Rent. (i) Beginning on the Commencement Date, or if the
Commencement Date is not the first day of a month then on the first day of the
next month, Tenant agrees to pay Owner as base rent ("Annual Base Rent") the sum
of $468,000 per annum, payable without demand or setoff in lawful money of the
United States, in equal monthly installments of $39,000 each, in advance, on the
first day of each month during the Initial Term of this Lease.
C. Additional Rent: (i) This is a "net lease" (a "carefree lease" for
Owner) and Tenant agrees to pay, as Additional Rent, all real estate taxes and
installments of assessments levied against the Property during the Term hereof
and all other costs or charges arising in connection with the Property,
including, without limitation, all costs of maintenance, repair, replacement and
insurance. Tenant shall make such payments directly to the taxing authority, wi
respect to all such real estate taxes and assessments at least ten (10) days
before the same would become delinquent.
<PAGE> 2
(ii) If Tenant shall default in performing any of its obligations
hereunder, Owner, at its option, may cure such default and all costs and
expenses of Owner in curing such default or in resisting any third-party claim
(including, without limitation, attorneys' fees) shall constitute Additional
Rent hereunder and shall be due and payable by Tenant within 10 days after
written demand therefor is made by Owner.
(iii) If any installment of the Annual Base Rent or the Additional
Rent, or any other sum owing by Tenant to Owner under this Lease, is not paid
when due and payable or within 10 days thereafter, at Owner's option, a late
charge of 5% of the amount past due shall be immediately due and payable.
(iv) If the present method of real estate taxation or assessment should
be changed so that there would be substituted for the whole or any part of the
real estate taxes or assessments now or hereafter imposed on the Property or any
part thereof, a capital tax or other tax imposed on the rent received by Owner
from Tenant, such other tax, to the extent that it is so substituted, shall be
included in determining Owner's real estate tax bill for the relevant years, and
shall be paid by Tenant.
4. USE AND CARE OF DEMISED PREMISES; ENVIRONMENTAL INDEMNITY:
A. Tenant shall use and occupy the Property only for manufacturing,
warehouse and office purposes and for accessory uses customarily incidental
thereto. Tenant, at its expense, shall comply with all laws, ordinances, rules
and regulations of governmental authorities having jurisdiction, and the rules
and regulations of the National Board of Fire Underwriters (or other body
exercising similar functions) relating to Tenant's use and occupancy of the
Property. Tenant shall comply with all federal, state and local laws and
regulations, including but not limited to the federal laws commonly known as
CERCLA and RCRA and all other environmental laws.
B. Tenant covenants and agrees:
(1) There shall be no Storage, Treatment or Disposal of
Hazardous Substances and no Release, transportation or migration of Hazardous
Substances in, on, onto or from the Property except as may be permitted, allowed
or authorized under Environmental Laws.
(2) There shall be no Underground Storage Tanks located on the
Property.
(3) Tenant shall at all times operate its business on and
maintain the Property in full compliance with all applicable laws, regulations
and ordinances, including but not limited to those pertaining to the protection
of human health, welfare and the environment and Tenant shall not utilize,
accumulate or generate Hazardous Substances on the Property except as permitted,
allowed or authorized by such laws, regulations and ordinances.
C. Tenant agrees that the Property shall be used and occupied in a
careful, safe and proper manner, that no nuisance nor any trade or occupation
which is known in insurance as extra or especially hazardous shall be permitted
therein, and that no waste shall be committed or permitted upon the Property.
D. The Tenant hereby agrees to release, hold harmless, defend and
indemnify Owner from, for and against all actual or threatened claims, costs
(including but not limited to the cost of investigations, removal, remediation
and other clean up of Hazardous Substances, and reasonable fees of attorneys and
other professional, experts and consultants retained by
- 2 -
<PAGE> 3
Owner) demands, orders, losses, lawsuits, liabilities, damages and expenses
whether brought collectively or individually by Tenant, a governmental authority
or any other third party (all the foregoing hereinafter collectively referred to
as "Losses") arising from or related to any of the following:
(a) The Release, threatened Release, Storage, Treatment,
accumulation, utilization, Disposal, transportation
or other handling or migration of any Hazardous
Substance on, in, onto or from the Property.
(b) The violation or alleged violation of Environmental
Laws occurring on or related to the Property.
(c) Any action taken by Owner to eliminate, prevent or
mitigate the potential adverse impact on the Real
Estate or the Owner as a result of or in anticipation
of any actual, suspected or threatened violation of
Environmental Laws or Release or threatened Release
of a Hazardous Substance on, in or from or otherwise
affecting the Property; such action may include but
need not be limited to, the disposition,
distribution, sale, disclaimer or renunciation of any
portion of the Real Estate.
E. Tenant shall keep the Property in a clean and neat condition and
shall provide its own janitorial service.
As used in this Section 4, the following terms shall have the following
meanings:
(1) The term "Environmental Laws shall mean all federal, state
and local laws, regulations and ordinances intended to protect or preserve human
health, Natural Resources and the Environment.
(2) The terms "Hazardous Substance", "Release", "Owner",
"Operator", "Environment" and "Natural Resources" shall have the same meanings
and definitions as set forth in the Comprehensive Environmental Response
Compensation and Liability Act as amended, 42 U.S.C. Section9601 et seq. and
regulations promulgated thereunder (collectively "CERCLA" and any corresponding
state or local law or regulations, provided, however, that as used herein the
term "Hazardous Substance" shall also include: (i) any Pollutant or Contaminant
as defined by CERCLA or by any other Environmental Law; (ii) any Solid Waste,
Hazardous Constituent or Hazardous Waste as defined by, or as otherwise
identified by, the Resource Conservation and Recovery Act as amended 42 U.S.C.
Section6901 et seq. or regulations promulgated thereunder (collectively "RCRA")
or by any other Environmental Law; and (iii) crude oil, petroleum and fractions
or distillates thereof; (iv) any other material, substance or chemical defined,
characterized or regulated as toxic or hazardous under any applicable law,
regulation, ordinance, directive or ruling; and (v) any infectious waste or
medical waste as defined by any applicable federal or state laws or regulations.
(3) The terms "Storage", "Treatment", and "Disposal" shall
have the same meanings and definitions as set forth in RCRA.
5. REPAIRS AND MAINTENANCE:
Tenant, at its expense, shall make all necessary repairs and perform
all necessary maintenance to the Property and the land and building improvements
constituting a part thereof, including, without limitation, all structural
repairs and replacements, whenever needed
- 3 -
<PAGE> 4
to keep the Property in good condition. Owner's reasonable determination that
repairs or maintenance are necessary shall be binding on Tenant.
6. REMODELING AND LIENS:
A. Tenant shall make no material alterations in or additions or
improvements to the Property without first obtaining the written consent of
Owner, and all alterations, additions and improvements made by Tenant shall
become the absolute property of Owner on the termination of this Lease or the
vacation of the Property by Tenant; provided, that Owner may require Tenant to
remove the same at Tenant's expense and in such event, Tenant shall repair any
resulting damage to the Property.
B. Any liens filed against the Property in connection with alterations,
renovations, additions or improvements by Tenant or any other liens filed
against the Property by, through or under the Tenant shall be removed by Tenant,
at its expense, within 30 days of filing.
7. UTILITIES:
Tenant, at its expense, shall obtain and pay for all necessary or
desired utility and other services for the Property. Owner shall not be liable
for any damages Tenant may suffer because of any unavailability of or
interruption or other deficiency in such services.
8. INSPECTION:
Tenant agrees to permit persons authorized by Owner to inspect the
Property at any reasonable time for any proper purpose, including, without
limitation, review of compliance with Tenant's obligations hereunder and
inspection by a prospective purchaser, mortgagee or tenant of the Property.
However, Owner shall have no duty to inspect.
9. INDEMNITY AND INSURANCE:
A. Tenant shall defend and indemnify Owner against all expenses,
losses, costs, claims, liability or damages (hereinafter called "Damages")
relating to the Property and accruing during the Term of this Lease including,
without limitation, Damages that may occur or be claimed with respect to any
death, personal injury, or loss or damage of chattels on or about the Property,
whether or not resulting from the Tenant's use, non-use or possession of the
Property, except such Damages as may result from and be caused solely by the
deliberate misconduct or gross negligence of the Owner.
B. (i) Tenant shall obtain and maintain, at Tenant's sole expense, but
naming the Owner and any mortgagee of the Property as additional insured(s),
comprehensive general liability insurance with bodily injury and property damage
liability coverage in an amount to be reasonably determined, from time to time,
by Owner. Owner's determination of the amount of coverage is for Owner's
benefit, and does not constitute a representation of sufficiency to Tenant or
any third party.
(ii) Tenant, at its expense, shall also obtain "all risk" casualty
insurance for the improvements on the Property in the amount equal to the
replacement cost of such improvements, naming Owner, Tenant and any mortgagee of
the Property as insureds, as their interests may appear.
- 4 -
<PAGE> 5
(iii) All such policies of insurance shall be written by responsible
companies of recognized standing authorized to do business in the State of Ohio,
shall be written in standard form and shall provide that the policies shall not
be cancelable except upon 30 days written notice to Owner and any mortgagee of
the Property. Tenant shall deliver to Owner a copy of such policies or insurance
binders acceptable to Owner upon the execution of this Lease, and a copy of any
renewal policy shall be delivered to Owner and to any mortgagee of the Property
at least 15 days prior to the termination date of any expiring policy. Such
policies shall be delivered endorsed "Premiums Paid" by the company or agency
issuing the same or be accompanied by other evidence satisfactory to Owner that
the premiums thereon have been paid. Each mortgagee of the Property shall agree
to disburse, in accordance with its standard construction loan practices,
amounts it receives from fire and extended coverage insurance policies for use
by Tenant in repairing, rebuilding or reconstructing the Property in accordance
with the obligations of Tenant hereunder.
C. Each party hereto waives, as against the other and its employees and
agents, all liability and rights of subrogation with respect to property damaged
or destroyed by fire or other casualty, to the extent such property is covered
by insurance required hereunder or any other valid and collectible insurance,
even if such loss is caused by negligence of the party released.
10. PERSONAL PROPERTY; LOSS OF BUSINESS:
All personal property of every kind and description that may at any
time be in, at or on the Property shall be kept in, at or on the Property at
Tenant's sole risk, or at the risk of those claiming under Tenant. Owner shall
not be liable for, without limitation, any damage to said personal property or
any loss secured by the business or occupation of Tenant however arising,
whether from the bursting, overflowing or leaking of water, sewer or steam
pipes, from the heating, air conditioning or plumbing fixtures, from electric
wires, from gas or odors, or whether caused by another person in the Property or
caused in any other manner whatsoever except such as may result from and be
caused by the deliberate misconduct or gross negligence of the Owner.
11. DAMAGE BY FIRE OR OTHER CASUALTY:
A. If the Property is so damaged by fire or other casualty that it
cannot reasonably be repaired within 120 days after the casualty, Owner, at its
option, may (1) terminate the Term of this Lease by written notice to Tenant, in
which event rent shall be prorated as of the date of the fire or other casualty,
if Tenant vacates the Property at that time, or up to such date thereafter that
Tenant vacates the Property, or (2) require Tenant to promptly repair and
reconstruct the Property to substantially the same condition, or better, as
existed immediately prior to such casualty loss. For that purpose, Owner shall
make available to Tenant the insurance proceeds, if any, relating to such
casualty loss, but Tenant's obligation to repair and reconstruct is not limited
by the amount of insurance proceeds. Owner may provide for the payment of such
insurance proceeds in a manner which assures Owner of satisfactory, lien-free
completion of such repair or reconstruction.
B. If the Property is damaged by fire or other casualty but to a lesser
extent than specified in Paragraph A., Tenant shall promptly repair and
reconstruct the Property to substantially the same condition, or better, as
existed immediately prior to such casualty loss. For that purpose, Owner shall
make available to Tenant the insurance proceeds, if any, relating to such
casualty loss, but Tenant's obligation to repair and reconstruct is not limited
by the amount of insurance proceeds. Owner may provide for the payment of such
insurance
- 5 -
<PAGE> 6
proceeds in a manner which assures Owner of satisfactory, lien-free completion
of such repair or construction.
C. Rent shall not be abated or reduced during any period in which the
Property is being repaired or reconstructed or is otherwise untenantable, except
after any termination of the Lease as provided in Paragraph A.
12. EMINENT DOMAIN:
A. If the Property or any part thereof is condemned or appropriated by
any public authority during the Term of this Lease in a manner so as to affect
materially and adversely the use thereof by Tenant, Owner, at its option, may
(1) terminate this Lease by written notice to Tenant, in which event such rent
as shall be due from Tenant to Owner to the date of the taking of possession of
the Property by the condemning or appropriating authority, if Tenant wholly
vacates the Property at that time, or up to such date thereafter that Tenant
wholly vacates and ceases to use the Property, shall be paid by Tenant to Owner
at the rate herein provided, or (2) require Tenant to repair and reconstruct the
Property to as nearly as practicable the same condition, or better, as existed
immediately prior to such taking of possession, in which event Owner shall
deliver the proceeds relating to such condemnation or appropriation to Tenant.
(Owner may provide for the payment of such proceeds in a manner which assures
Owner of satisfactory, lien-free completion of such repair or construction.)
B. If the Property or any part thereof is condemned or appropriated by
any public authority during the Term of this Lease in a manner which does not
materially and adversely affect the use thereof by Tenant, Tenant shall repair
and reconstruct the Property to as nearly as practicable the same condition, or
better, as existed immediately prior to such taking of possession, in which
event Owner shall deliver the proceeds relating to such condemnation or
appropriation loss to Tenant. (Owner may provide for the payment of such
proceeds in a manner which assures Owner of satisfactory, lien-free completion
of such repair or construction.)
C. As long as the Term of this Lease remains in effect, rent shall not
be abated during or after the period in which the Property is being repaired or
reconstructed. Owner shall be entitled to receive, and except for proceeds to be
delivered to Tenant as provided above, Owner shall retain as its sole property,
all proceeds of any condemnation award for, or relating to, the Property
(including the leasehold created hereby), but Tenant may make a separate claim
against the condemning authority for the value of its trade fixtures and costs
of relocation.
13. ABANDONMENT:
Should Tenant abandon the Property, Owner may enter the same, using
such force as may be necessary, and change the locks on the doors, all without
liability to Tenant. Thereafter Owner may use the Property for any desired
purpose, with or without terminating this Lease in accordance with provisions of
this Lease concerning default.
14. ABANDONED PROPERTY:
Should Tenant leave any property in the Property after the termination
of this Lease for whatever cause, or after the abandonment of the Property by
Tenant, then at Owner's option, (i) such property shall become the sole property
of Owner without any liability on the part of
- 6 -
<PAGE> 7
Owner to account for the proceeds from the disposition, if any, of the property,
or (ii) Owner may remove and destroy or discard such property, and Tenant shall
reimburse Owner for all expenses incurred in doing so.
15. DEFAULT
A. Should Tenant fail to pay any installment of Annual Base Rent, or
any Additional Rent, or any other sum herein required to be paid to Owner within
10 days after such payment is first due and payable; or should Tenant abandon
the Property before the end of the Term of this Lease; or should Tenant fail to
maintain any required insurance; or should Tenant fail to perform any covenant
or to comply with any condition herein provided to be performed or complied with
by it (other than the payment of money and maintenance of insurance) within 30
days after receipt by Tenant of written notice thereof from Owner (or, in the
event such failure can be removed or corrected, but cannot be removed or
corrected within such 30 day period, in the event Tenant does not commence to
remove or correct such failure with said 30-day period and thereafter diligently
pursue such removal or correction to completion); or should any proceeding in
bankruptcy or under any State or Federal law relating to the relief of debtors
be filed by or against Tenant; or should a receiver be appointed of any of the
property of Tenant so as to directly affect the fulfillment of the obligations
of Tenant hereunder; then and in any such event (herein called a "default")
Owner, at its option, immediately or at any time during the continuation of such
default may (i) terminate Tenant's right to possession of the Property without
terminating this Lease, and thereupon Owner may enter and retake the Property
without further notice or demand and may, without being required to, relet the
Property as agent of Tenant for the balance of the Term and receive the rent
therefor, applying the same first to the payment of expenses of such re-entering
and reletting and then to the payment of all rent due or to become due under the
terms of this Lease, and Tenant shall pay any deficiency, or (ii) declare this
Lease terminated. In retaking possession of the Property, Owner may use such
force as may be necessary so long as the conduct of Owner does not constitute a
breach of peace.
B. If Tenant is in default hereunder, then, at the option of the Owner,
the Annual Base Rent for the entire remaining Term of this Lease shall become
immediately due and payable (discounted to present value at the time of payment
at an annual rate of 6%) and in case Tenant is declared bankrupt or voluntarily
offers to creditors terms of composition, or in case a receiver is appointed to
take charge of and conduct the affairs of Tenant, or if an order for relief is
granted for or against Tenant, such claim for unpaid installments of rent due
under this Lease shall constitute a debt provable in bankruptcy or receivership.
C. To the maximum extent permitted by law, Tenant agrees to pay all
reasonable costs and expenses that shall be incurred by Owner, including
attorney's fees, in enforcing this Lease, and Tenant agrees to indemnify Owner
against all such fees and expenses.
16. CUMULATIVE REMEDIES:
The remedies to which Owner may resort under this Lease are cumulative
and are not intended to be exclusive of, and Owner shall be entitled to
exercise, any other remedy to which Owner may be entitled by law or in equity.
The failure of Owner to insist in any one or more cases on strict performance of
any provision of this Lease or to exercise any right herein contained shall not
constitute a waiver in the future of such right. Acceptance by Owner of rent or
other payment or acceptance of performance required herein with knowledge of a
breach by Tenant of any provision hereof shall not constitute a waiver of such
breach, nor shall any acceptance of rent or other payment in a lesser amount
than herein provided for
- 7 -
<PAGE> 8
operate or be construed in any other manner other than as a payment on account
of the earliest rent or other charge then unpaid by Tenant.
17. SUBLEASE OR ASSIGNMENT:
Tenant shall not assign this Lease or sublet all or any part of the
Property without the prior written consent of Owner, which consent may be
withheld for any reason, and approval by Owner of any such assignment or
subletting shall not relieve Tenant of any obligations hereunder.
18. SURRENDER:
Except as otherwise specifically provided herein, Tenant agrees to
surrender to Owner the Property upon the expiration or termination of this
Lease, in as good condition and repair as the same shall be at the commencement
of the Term provided for herein, ordinary wear and tear excepted. No tenancy of
any duration, other than a tenancy at will, shall be created by Tenant's holding
over beyond the end of said Term.
19. TRADE FIXTURES:
Not later than the expiration or termination of the Term of this Lease,
Tenant may remove all of the trade fixtures and signs owned by Tenant which can
be removed without injury to or defacement of the Property, provided all rents
have been paid in full and all damage to the Property is promptly repaired.
20. SUBORDINATION:
This Lease shall be subordinate to the lien of each and every mortgage
or deed of trust of the Property or any part thereof made by Owner, whether
previously or hereafter made, unless the holder of any such mortgage or deed of
trust elects by recorded instrument that this Lease shall be prior to such
mortgage or deed of trust. Such subordination shall be self-executing and
effective without any further action by Tenant or Owner; provided, that Tenant
shall not be required to subordinate its interest under this Lease to the lien
of any mortgage or deed of trust hereafter made unless the mortgagee shall
execute a Subordination, Attornment and Nondisturbance Agreement which shall
provide in substance that Tenant's possession under this Lease shall not be
disturbed so long as Tenant is not in default of its obligations hereunder and
that Tenant shall attorn to such mortgagee or its successor in interest upon
foreclosure or sale. Tenant agrees, from time to time, immediately upon request
by Owner, promptly to execute such instruments, certificates and tenant estoppel
letters as may be requested by Owner to evidence and confirm such subordination
and promptly to deliver such instruments, certificates and letters to mortgagees
or prospective mortgagees designated by Owner.
21. COVENANT OF QUIET ENJOYMENT:
Owner covenants that Tenant, having performed its covenants and
obligations herein set forth, shall have quiet and peaceable possession of the
Property on the terms and conditions herein provided, free and clear of any
claim by, from, through or under any person lawfully claiming an interest in the
Property from or through Owner.
- 8 -
<PAGE> 9
22. BENEFITS:
The terms, provisions and conditions of this Lease shall inure to the
benefit of and be binding upon the respective successors and assigns of Owner
and Tenant, but no assignment made by Tenant contrary to the provisions of this
Lease shall vest in any assignee any right, title or interest in or to this
Lease or the Property, or any part thereof.
23. NOTIFICATION:
Notices required or permitted to be given under this Lease shall be
sent by registered or certified mail, return receipt requested, postage prepaid,
at the addresses first set forth above, or to such other addresses as may be
designated by either party to the other by like mailing.
24. SEVERABILITY:
If any clause or provision of this Lease is illegal, invalid or
unenforceable, then it is the intention of the parties that the remainder of
this Lease shall not be affected thereby, and in lieu of each clause or
provision of this Lease that is illegal, invalid or unenforceable, there shall
be added as a part of this Lease a clause or provision as similar in terms to
such illegal, invalid, or unenforceable clause or provision as may be possible
and be legal, valid and enforceable. If such invalid provision is, in the
reasonable determination of Owner, essential to this Lease, Owner has the right
to terminate this Lease on written notice to Tenant.
25. TIME:
Time is of the essence with respect to all obligations and rights of
the parties under this Lease.
26. OHIO LAW:
This Lease shall be governed by and construed in accordance with the
laws of the State of Ohio.
27. MEMORANDUM OF LEASE:
A memorandum of lease in proper form for recording purposes shall be
executed upon request by either party. This Lease shall not be recorded.
- 9 -
<PAGE> 10
IN WITNESS WHEREOF, this Lease has been executed as of March 12, 1996.
Signed and acknowledged
in the presence of:
(as to Owner)
Owner:
OLG, LIMITED
/s/Patricia D. Braxton By: /s/Nicholas P. Carpinello
- ----------------------------------- -----------------------------------
Printed Name: Patricia D. Braxton Its: Member & Manager
--------------------- ------------------------------
/s/Abram S. Gordon
- -----------------------------------
Printed Name: Abram S. Gordon
---------------------
(as to Tenant) Tenant:
O'GARA-HESS & EISENHARDT ARMORING
COMPANY
/s/Louis LaFayette By: /s/G W Allen
- ----------------------------------- -----------------------------------
Printed Name: Louis LaFayette Its: VP of Operations
--------------------- -----------------------------
/s/Karen E. Amaya
- -----------------------------------
Printed Name: Karen E. Amaya
---------------------
STATE OF OHIO )
) SS
COUNTY OF HAMILTON )
The foregoing instrument was acknowledged before me this 12th day of
March, 1996, by Nicholas P. Carpinello, the manager of OLG, Limited, an Ohio
limited liability company, on behalf of the limited liability company.
/s/Abram S. Gordon
-----------------------------------
Notary Public
- 10 -
<PAGE> 11
STATE OF OHIO )
) SS
COUNTY OF BUTLER )
The foregoing instrument was acknowledged before me this 12th day of
March, 1996, by G W Allen, the VP of Operations of O'Gara-Hess & Eisenhardt
Armoring Company, a Delaware corporation, on behalf of the corporation.
/s/Karen E. Amaya
-----------------------------------
Notary Public
This instrument prepared by:
Abram S. Gordon, Esq.
Taft, Stettinius & Hollister
1800 Star Bank Center
Cincinnati, Ohio 45202
(513) 381-2838
- 11 -
<PAGE> 12
EXHIBIT A
DESCRIPTION OF PROPERTY
- 12 -
<PAGE> 13
AMENDMENT TO LEASE
This Amendment to Lease ("Amendment") is made and entered into as of
the 20th day of August, 1996, by and between OLG, LIMITED, an Ohio limited
liability company (the "Owner"), whose address is 9113 LeSaint Drive, Fairfield,
Ohio 45014, and O'GARA-HESS & EISENHARDT ARMORING COMPANY, a Delaware
corporation, whose address is 9113 LeSaint Drive, Fairfield, Ohio 45014 (the
"Tenant").
W I T N E S S E T H
WHEREAS, Owner and Tenant are parties to a certain Lease, dated as of
March 12, 1996, relating to the real property and improvements thereon located
at 4175 Mulhauser Road, Fairfield, Ohio 45014, as more completely described in
Exhibit A attached hereto (the "Property"); and
WHEREAS, Owner and Tenant desire to amend the Lease to provide Tenant
with an option to purchase the Property;
NOW, THEREFORE, in consideration of the premises and the payment by
Tenant to Owner of $10.00 and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
A. The following is hereby added as Section 28 to the Lease:
28. OPTION TO PURCHASE. Owner hereby grants Tenant an option to
purchase the Property (the "Option"), at any time during the term of the Lease,
said Option to be upon the following terms and conditions:
(i) Purchase Price. The purchase price for the Property shall be equal
to the Fair Market Value of the Property. Fair Market Value means an amount
agreed upon by both Owner and Tenant or if no agreement can be reached, then
such value shall be determined by an appraisal conducted by a three person board
of appraisers. Two of these appraisers shall be appointed as follows: (1) One
shall be appointed by the Owner; and (2) One shall be appointed by the Tenant.
These two appraisers shall appoint the third appraiser. Costs and expenses of
the appraisal under this subparagraph shall be paid one-half by the Owner, and
the balance by the Tenant.
(ii) Closing. The closing of the purchase of the Property by Tenant
(the "Closing") shall occur at a time and place to be fixed by Owner, but shall
occur not later than 30 days after Tenant exercises its Option in the manner set
forth hereafter.
(iii) Deed. If Tenant exercises its Option, Owner shall convey the
Property to Tenant by a recordable deed of limited warranty, title thereto to be
subject to real estate taxes and installments of assessments, if any, not
delinquent on the date of Closing, easements, restrictions and agreements of
record, current
<PAGE> 14
leases of all or a portion of the Property and rights of the public in public
ways. Owner shall pay the Ohio Real Property Conveyance Fee and Tenant shall pay
all other recording fees and closing costs.
(iv) Prorations. Rents, shall be prorated as of the date of Closing.
Tenant shall be responsible for all real estate taxes, installments of
assessments, if any.
(v) Condition. The Property shall be sold and conveyed in an "as is"
condition without warranty of any kind other than the warranties in the limited
warranty deed referred to above.
(vi) Exercise. Tenant may exercise its Option by written notice to
Owner. This Option expires 30 days prior to the expiration of this Lease
(including any applicable Renewal Terms) or upon termination of this Lease,
whichever is earlier. Notwithstanding any of the above, Tenant may not exercise
this Option during any period that Tenant is in default of any of its
obligations under this Lease. Between the date of the exercise of this Option
and the Closing, Tenant shall remain bound by the terms of this Lease,
including, but not limited to, the obligation to make rental payments. In the
event that Tenant exercises this Option but does not close on the acquisition of
the Property, this Lease shall remain in full force and effect.
B. All of the terms of the Lease not amended hereby shall remain
in full force and effect.
IN WITNESS WHEREOF, this Lease has been executed as of the date first
above written.
Signed and acknowledged
in the presence of:
(as to Owner)
Owner:
OLG, LIMITED
/s/Karen E. Amaya By: /s/Nicholas P. Carpinello
- ----------------------------------- ------------------------------
Printed Name: Karen E. Amaya Nicholas P. Carpinello,
Manager
/s/William E. Petty By: /s/Michael J. Lennon
- ----------------------------------- ------------------------------
Printed Name: William E. Petty Michael J. Lennon, Manager
<PAGE> 15
(as to Tenant) Tenant:
O'GARA-HESS & EISENHARDT
ARMORING COMPANY
/s/Karen E. Amaya By: /s/Wilfred T. O'Gara
- ----------------------------------- ------------------------------
Printed Name: Karen E. Amaya Its: CEO
/s/Louise LaFayette
- -----------------------------------
Printed Name:Louis LaFayette
STATE OF OHIO )
) SS
COUNTY OF BUTLER )
The foregoing instrument was acknowledged before me this 23rd day of
August, 1996, by Nicholas P. Carpinello and Michael J. Lennon, the managers of
OLG, Limited, an Ohio limited liability company, on behalf of the limited
liability company.
/s/ Doris A. Blevins
-----------------------------------
Notary Public
STATE OF OHIO )
) SS
COUNTY OF BUTLER )
The foregoing instrument was acknowledged before me this 23rd day of
August, 1996, by Wilfred T. O'Gara, the Chief Executive Officer of O'Gara-Hess
& Eisenhardt Armoring Company, a Delaware corporation, on behalf of the
corporation.
/s/ Doris A. Blevins
-----------------------------------
Notary Public
This instrument prepared by:
Abram S. Gordon, Esq.
Taft, Stettinius & Hollister
1800 Star Bank Center
Cincinnati, Ohio 45202
(513) 381-2838
<PAGE> 1
EXHIBIT 10.4
AIRCRAFT LEASE
The undersigned lessor ("Lessor") hereby leases to the undersigned lessee
("Lessee"), and Lessee hereby hires and takes from Lessor the following
described aircraft, engine(s), propeller(s), and equipment, together with all
attachments, substitutions, replacements and additions, hereinafter referred to
as "Aircraft":
<TABLE>
<CAPTION>
New/ Model Serial "N"
Used Year Manufacturer Number Number Number
<S> <C> <C> <C> <C> <C>
Used 1970 Gulfstream G-II 1159 97 N930SD
</TABLE>
Engine(s): [x] Horsepower 750 or more. Insert make, model and serial number of
each engine.
Rolls Royce Spey 511-8
(LE) 8710
(RE) 8712
Describe radio(s), propeller(s) and other equipment and accessories fully
including make, kind of unit, model and serial numbers.
See Attached Schedule A attached hereto and incorporated herein by this
reference.
1. TERM AND RENTALS AND DEPOSIT
This lease is for a term of 10 years, beginning February 13, 1995, and ending
February 12, 2005. For said term or any portion thereof, Lessee shall pay to
Lessor rentals aggregating $6,760,493.00, of which $400,493.00 is herewith paid
as a deposit, and all rentals shall be payable in 120 equal successive monthly
rental payments of $53,000 each, of which the first is due March 1, 1995 and the
others on like date of each month thereafter. All rent shall be paid at Lessor's
place of business shown herein, or such other place as the Lessor may designate
by written notice to the Lessee. The operation and use of the Aircraft shall be
at the risk of Lessee, and not of Lessor and the obligation of Lessee to pay
rent hereunder shall be unconditional.
Deposit/Additional Rent: Lessor shall withdraw from the deposit and credit to
the account of Lessee, as additional rent hereunder, the sum, each month, of
$3,337.44 determined to be 1/120th of the deposit set forth above.
2. DESTRUCTION OF AIRCRAFT
If the Aircraft is lost, stolen, totally destroyed, damaged beyond repair or
permanently rendered unfit for use for any reason whatsoever, the liability of
the Lessee to pay rent therefor may be discharged by paying to Lessor all the
rent due
<PAGE> 2
thereon, plus all the rent to become due thereon less the net amount of the
recovery, if any, actually received by or credited to Lessor from insurance or
otherwise for such loss or damage of the Aircraft. Except as expressly provided
in this paragraph, the total or partial destruction of the Aircraft, or total or
partial loss of use or possession thereof to Lessee, shall not release or
relieve Lessee from the duty to pay the rent herein provided.
3. NO WARRANTIES BY LESSOR; MAINTENANCE AND COMPLIANCE WITH
LAWS.
Lessor, not being the manufacturer of the Aircraft, nor manufacturer's agent,
makes no warranty or representation, either express or implied, as to the
fitness, quality, design, condition, capacity, suitability, merchantability or
performance of the Aircraft or of the material or workmanship thereof, or that
the Aircraft will satisfy the requirements of any law, rule, specification or
contract, it being agreed that the Aircraft is leased "as is" and that all such
risks, as between the Lessor and the Lessee, are to be borne by the Lessee at
its sole risk and expense, Lessee accordingly agrees not to assert any claim
whatsoever against the Lessor based thereon. Lessee further agrees, regardless
of cause, not to assert any claim whatsoever against the Lessor for loss of
anticipatory profits or consequential damages. Lessor shall have no obligation
to test or service the Aircraft. All prior conversations, agreements or
representations related hereto and/or to the Aircraft are integrated here, and
no modification hereof shall be binding unless in writing signed by Lessor.
Lessee agrees, at its own cost and expense:
(a) to pay all charges and expenses in connection with the
operation of the Aircraft.
(b) to comply with all governmental laws, ordinances,
regulations, requirements and rules with respect to the use,
maintenance and operation of the Aircraft; and
(c) to make all repairs and replacements required to be made to
maintain the Aircraft in good condition, reasonable wear and
tear expected.
4. INSURANCE.
Lessee agrees, at its own cost and expense, to maintain at all times (a)
Aircraft hull insurance, including all-risk ground and flight insurance on the
Aircraft for the full insurable value thereof for the term of this lease, plus
other insurance thereon in amounts and against such risks as Lessee may specify,
and deliver each policy to Lessor with a standard long form endorsement attached
thereto showing loss payable to Lessor as its interest may appear, and (b)
single limit insurance covering bodily injury liability, property damage
liability and passenger liability for the term of this lease, and deliver to
Lessor
<PAGE> 3
evidence of such insurance coverage, all insurance policies must provide that no
cancellation thereof shall be effective without 30 days prior written notice to
Lessor and all insurance policies shall be in form, terms and amounts and with
insurance carriers satisfactory to Lessor; and
5. TAXES.
Lessee agrees that, during the term of this lease, in addition to the rent and
all other amounts provided herein to be paid, it will promptly pay all taxes,
assessments and other governmental charges (including penalties and interest, if
any, and fees for titling or registration, if required, levied or assessed:
(a) upon the interest of the Lessee in the Aircraft or upon the
use or operation thereof or on the earnings arising
therefrom;
(b) against Lessor on account of its acquisition or ownership of
the Aircraft, or the use or operation thereof or the leasing
thereof to the Lessee, or the rent herein provided for, or
the earnings arising therefrom, exclusive, however, of any
taxes based on net income of Lessor. Lessee agrees to file,
in behalf of Lessor, all required tax returns and reports
concerning the Aircraft with all appropriate governmental
agencies, and within not more than 45 days after the due
date of such filing to send Lessor confirmation, in form
satisfactory to Lessor, of such filing.
6. LESSOR'S TITLE, RIGHT OF INSPECTION AND IDENTIFICATION OF
AIRCRAFT.
Title to the Aircraft shall at all times remain in Lessor, and Lessee will at
all times protect and defend, at its own cost and expense, the title of Lessor
from and against all claims, liens and legal processes of creditors of Lessee
and keep the Aircraft free and clear from all such claims, liens and processes.
All equipment, engines, radios, accessories, instruments and parts now or
hereafter used in connection with the Aircraft shall become part of the Aircraft
by accession. Lessor warrants that the Aircraft is not registered under the laws
of any foreign country. Upon the expiration or termination of this lease, the
Lessee at Lessee's sole expense shall return the Aircraft unencumbered to the
Lessor at the place where the rent is payable or to such other place as Lessor
and Lessee agree upon, and in the same condition as when received by Lessee,
reasonable wear and treat resulting form use thereof alone excepted. Lessor
shall have the right from time to time during reasonable business hours to enter
any hangar or other place where the Aircraft is located for the purpose of
confirming the existence, condition and the proper maintenance of the Aircraft.
Lessee shall, upon the request of Lessor, and at its own expense firmly affix to
the Aircraft in a conspicuous place, a decalcomania or metal plate showing
Lessor as the owner and lessor of the Aircraft.
<PAGE> 4
7. POSSESSION AND PLACE OF USE.
Lessor covenants to and with Lessee that Lessor is the absolute owner of said
Aircraft free and clear of encumbrances except:
The CIT Group/Equipment Financing, Inc. as assignee of Thomas M. O'Gara,
Individually
- --------------------------------------------------------------------------------
If none other than this lease, indicate "None".
The Aircraft shall be based at:
Fulton County Airport Atlanta Fulton Georgia
- --------------------------------------------------------------------------------
Name of airport or street address City County State
and shall not be permanently removed therefrom without Lessor's prior written
consent. Lessee shall not, without Lessor's prior written consent:
(a) part with possession or control of the Aircraft;
(b) attempt or purport to sell, pledge, mortgage or otherwise
encumber the Aircraft or otherwise dispose of or encumber
any interest under this lease; or
8. LESSEE'S WARRANTIES.
Lessee warrants that Lessee is a citizen of the United States as defined in the
Federal Aviation Act of 1958, as amended; that the Aircraft will not be
registered under the laws of any foreign country; that the Aircraft and/or
equipment will not be held, maintained or used in violation of any law,
regulation, ordinance or policy of insurance affecting the maintenance, use or
flight of Aircraft. These warranties are conditions of Lessee's right of
possession and use, and delivery is made in reliance thereon.
9. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR.
In the event that Lessee shall fail duly and promptly to perform any of its
obligations under the provision of this lease, Lessor may, at its option,
perform the same for the account of Lessee without thereby waiving such default,
and any amount paid or expense (including reasonable attorneys' fees), penalty
or other liability incurred by Lessor in such performance, together with
interest at the rate of 1 1/2% per month thereon until paid by Lessee to Lessor,
shall be payable by Lessee upon demand as additional rent for the Aircraft.
10. DEFAULT.
An Event of Default shall occur if:
(a) Lessee fails to pay when due any installment of rent and
such failure continues for a period of 10 days;
<PAGE> 5
(b) Lessee shall fail to perform or observe any covenant, condition or
agreement to be performed or observed by it hereunder and such failure
continues uncured for 15 days after written notice thereof to Lessee by
Lessor;
(c) Lessee ceases doing business as a going concern, make an
assignment for the benefit of creditors, admits in writing
its inability to pay its debts as they become due, files a
voluntary petition in bankruptcy, is adjudicated a bankrupt
of an insolvent, files a petition seeking for itself any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar arrangement under any
present or future statute, law or regulation, or files an
answer admitting the material allegations of a petition
filed against it in any such proceeding, consents to or
acquiesces in the appointment of a trustee, receiver, or
liquidator of it or of all or any substantial part of its
assets or properties, or if it or its shareholders shall
take any action looking to its dissolution or liquidation;
(d) within 60 days after the commencement of any proceedings
against Lessee seeking reorganization, arrangement,
readjustment, liquidation, dissolution or similar relief
under any present or future statue, law or regulation, such
proceedings shall not have been dismissed, or if within 60
days after the appointment without Lessee's consent of
acquiescence of any trustee, receive or liquidator of it or
of all or any substantial part of its assets or properties,
such appointment shall not be vacated; or
(e) Lessee attempts to permanently remove, sell, transfer,
encumber, part with possession or sublet the Aircraft.
Upon the occurrence of any Event of Default, Lessor, at its option, may:
(a) proceed by appropriate court action or actions or other proceedings
either at law or in equity to enforce performance by Lessee of any and
all covenants of this lease to recover damages for the breach thereof;
(b) demand that Lessee deliver the Aircraft forthwith to Lessor
at Lessee's expense at such place as Lessor may designate;
(c) Lessor and/or its agents may, without notice or liability or
legal process, enter into any premises of or under control
or jurisdiction of Lessee or any agent of Lessee where the
Aircraft may be or by Lessor is believed to be, and
repossess the Aircraft, using all force necessary or
permitted by applicable law so to do. Lessee hereby
expressly waiving all further rights to possession of the
Aircraft and all claims for injuries suffered through or
loss caused by such repossession;
<PAGE> 6
(d) terminate this lease, whereupon Lessee shall, without further demand,
as liquidated damages for loss of the bargain and not as a penalty
forthwith pay to Lessor any unpaid rent that accrued on or before the
occurrence of the event of default, of the aggregate rent reserved
hereunder for the unexpired term of this lease; and
(e) exercise all the rights and remedies of a secured party or Lessor under
the Uniform Commercial Code and any other applicable laws, including
the right to any deficiency remaining after disposition of the Aircraft
for which Lessee agrees to remain fully liable.
Lessor will give Lessee reasonable notice of the time and place of any public
sale of the Aircraft or of the time after which any private sale of the Aircraft
or other intended disposition thereof is to be made. Unless otherwise provided
by law, the requirement of reasonable notice shall be met if such notice is
mailed, postage prepaid, to the address of Lessee shown herein at least ten days
before the sale or disposition. Should any proceedings be instituted by or
against Lessor for monies due to Lessor hereunder and/or for possession of the
Aircraft or for any other relief, Lessee shall pay a reasonable sum as attorneys
fees. If any statute governing the proceeding in which damages are to be proved
specifies the amount of such claim, Lessor, shall be entitled to prove as and
for damages for the breach an amount equal to that allowed under such statute.
The remedies of this lease provided in favor of Lessor shall not be deemed
exclusive, but shall be cumulative, and shall be in addition to all other
remedies in its favor existing at law or in equity, and the exercise, or
beginning of exercise both Lessor of any one or more of such remedies shall not
preclude the simultaneous or later exercise by Lessor of any or all such
remedies. No express or implied waiver by Lessor of any event of default
hereunder shall in any way be, or be construed to be, a waiver of any future or
subsequent events of default.
11. INDEMNITY.
Lessee agrees that Lessor shall not be liable to Lessee for, and Lessee shall
indemnify and save Lessor harmless from and against any and all liability, loss,
damage, expense, causes of action, suits, claims or judgments arising from or
caused directly or indirectly by:
(a) Lessee's failure to promptly perform any of its obligations
under the provisions of this lease;
(b) injury to person or property resulting from or based upon
the actual or alleged use, operation, delivery or
transportation of the Aircraft or its location or condition;
or
<PAGE> 7
(c) inadequacy of the Aircraft for any purpose or any deficiency or defect
therein or the use or maintenance thereof or any repairs, servicing or
adjustments thereto or any delay in providing or failure to provide any
thereof or any interruption or loss of service or use thereof or any
loss of business;
and shall, at its own cost and expense, defend any and all suits which may be
brought against Lessor, either alone or in conjunction with others upon any such
liability or claim or claims and shall satisfy, pay and discharge any and all
judgments and fines that may be recovered against Lessor in any such action or
actions, provided, however, that Lessor shall give Lessee written notice of any
such claim or demand.
12. ASSIGNMENTS AND NOTICES.
Neither this lease nor Lessee's rights hereunder shall be assignable except with
Lessor's written consent; the conditions hereof shall bind any permitted
successors and assigns of Lessee. Lessor may assign the rents reserved herein or
all or any of Lessor's other rights hereunder. After such assignment, Lessor
shall not be assignee's agent for any purpose; Lessee will settle all claims
arising out of alleged breach of warranties or otherwise, defenses, set-offs and
counterclaims it may have against Lessor directly with Lessor, and not set up
any such against Lessor's assignee, Lessor hereby agreeing to remain responsible
therefor. Lessee on receiving notice of any such assignment shall abide thereby
and make payment as may therein be directed. Following such assignment, solely
for the purpose of determining assignee's rights hereunder, the terms "Lessor"
shall be deemed to include or refer to Lessor's assignee. All notices relating
hereto shall be delivered in person to an officer of Lessor or Lessee or shall
be mailed to Lessor or Lessee at its respective address herein shown or at any
later address last known to the sender.
13. FURTHER ASSURANCES.
Lessee shall execute and deliver to Lessor, upon Lessor's request, such
instruments and assurances as Lessor deems necessary or advisable for the
confirmation of perfection of this lease and Lessor's rights hereunder. Lessee
may not terminate this Lease without the written consent of Lessor. If Lessor in
good faith believes itself insecure or performance impaired, it may call a
default hereunder or, instead of calling a default, Lessor may demand, and
Lessee hereby agrees to give, additional equipment or other collateral as
security for the obligations hereunder.
14. LEASE IRREVOCABILITY.
This lease is irrevocable for the full term hereof as set forth in Paragraph 1
hereof and for the aggregate rentals herein reserved in said Paragraph 1 and the
rent shall not abate by
<PAGE> 8
reason of termination of Lessee's right of possession and/or the taking of
possession by Lessor or for any other reason, and delinquent installments of
rent shall bear interest at 1 1/2% per month if not prohibited by law, otherwise
at the highest lawful contract rate. If any part hereof is contrary to,
prohibited by or demand invalid under applicable laws or regulations of any
jurisdiction, such provision shall be inapplicable and deemed omitted but shall
not invalidate the remaining provisions hereof.
15. TRUTH LEASING.
(a) THE LESSEE CERTIFIES THAT THE AIRCRAFT PRESENTLY COMPLIES WITH
APPLICABLE FAA MAINTENANCE AND INSPECTION REQUIREMENTS FOR OPERATION TO
BE CONDUCTED UNDER THE LEASE AND THAT THE AIRCRAFT HAS BEEN MAINTAINED
FOR THE LAST 12 MONTHS, AND IN THE FUTURE WILL BE MAINTAINED AND
INSPECTED, UNDER 14 C.F.R. 43, SECTION 91.54, AS AMENDED, OF THE FAA
REGULATIONS FOR OPERATIONS TO BE CONDUCTED UNDER THE LEASE.
(b) LESSEE CERTIFIES THAT IT IS RESPONSIBLE FOR OPERATION CONTROL OF THE
AIRCRAFT UNDER THE LEASE DURING THE TERM HEREOF AND THAT IT UNDERSTANDS
ITS RESPONSIBILITY FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION
REGULATIONS.
(c) THE LESSEE UNDERSTANDS THAT EXPLANATION OF FACTORS BEARING ON
OPERATIONAL CONTROL AND PERTINENT FAA REGULATIONS CAN BE OBTAINED FROM
THE NEAREST FAA FLIGHT STANDARD DISTRICT OFFICE, GENERAL AVIATION
DISTRICT OFFICE, OR AIR CARRIER DISTRICT OFFICE.
(d) LESSEE AGREES TO KEEP A COPY OF THE LEASE IN THE AIRCRAFT AT
ALL TIMES DURING THE LEASE TERM.
NO ORAL AGREEMENT, GUARANTEE, PROMISE, REPRESENTATION OR WARRANTY
SHALL BE BINDING.
THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK
SIGNATURES TO FOLLOW ON NEXT PAGE
<PAGE> 9
Dated:_______________________________________
<TABLE>
<CAPTION>
Co-Lessor: Lessee:
<S> <C>
Longline Leasing, Inc. O'Gara-Hess Eisenhardt Armoring Company
Name of individual, corporation or partnership
By:/s/ Nicholas P. Carpinello By:/s/ Nicholas P. Carpinello
--------------------------------- -------------------------------------
Title:Treasurer Title:Executive Vice Pres./Treasurer
------------------------------ ----------------------------------
If corporation, give official title. If owner or If corporation, have signed by
President, Vice partner, state which. President of Treasurer, and give official title.
If owner or partner, state which.
/s/ Nicholas P. Carpinello /s/ Nicholas P. Carpinello
--------------------------------- --------------------------------------
Signature Signature
9113 LeSaint Drive 9113 LeSaint Drive
- ------------------------------------ ----------------------------------------
Address Address
Fairfield OH 45014 Fairfield Ohio
- -------------------------------------------- ----------------------------------------
45014
- -----------
City State Zip Code City State Zip Code
</TABLE>
Co-Lessor:
Excel Armor Products, Inc.
/s/ Nicholas P. Carpinello, Treasurer
- --------------------------------------
Signature
9113 LeSaint Drive
- --------------------------------------
Address
Fairfield OH 45014
- -------------------------------------------------------------
City State Zip Code
<PAGE> 10
ADDENDUM TO AIRCRAFT LEASE
(THE "LEASE")
Lessors: Longline Leasing, Inc. and Excel Armor Products, Inc.
Lessee: O'Gara-Hess and Eisenhardt Armoring Company
Date of Lease:
Aircraft: Used 1970 Gulfstream G II, model 1159, s/n 97, N930SD
Engines: 2 Rolls Royce Spey 511-8 Engines, Serial Numbers
(LE)8710 and (RE)8712
(which includes all engines, propellers, blades and avionics attached to or used
in connection with Aircraft.)
Notwithstanding anything to the contrary hereinabove in the
above-referenced Lease, the parties hereto agree as follows:
1. Lessor's interest under the Lease may be assigned as collateral to
The CIT Group/Equipment Financing, Inc. ("CIT"), and Lessee hereby gives its
consent to such assignment. Such assignment shall include all rights of Lessor
with respect to the Lease, including rights to receive notices, give or withhold
consents thereunder, receive lease payments after notice to Lessee requiring
same, and receive physical possession of the original executed Lease. CIT,
however, shall have none of the obligations of Lessor under the Lease.
2. Notwithstanding anything the Lease to the contrary, Lessee shall
procure forthwith and maintain at Lessee's expense aircraft hull insurance,
including all-risk ground and flight insurance on the Aircraft and other leased
property for the full insurable value thereof, plus breach of warranty insurance
and such other insurance thereon in amounts and against such risks as CIT shall
specify, for the life of CIT's security interest in the Aircraft or the term of
subject Lease and all renewals thereof, which is shorter. Lessee shall promptly
deliver each policy to CIT with standard long form mortgagee endorsement
attached thereto showing losses payable to CIT, and providing CIT with not less
than 30 days advance written notice of cancellation. Each such policy shall in
form, terms, and amount, and with insurance carriers, satisfactory to CIT. CIT's
acceptance of policies with lesser amounts or covered risks shall not be a
waiver of Lessee's foregoing obligations.
3. Lessee confirms that the Aircraft is and will be kept hangared and
permanently based at Fulton County Airport, Atlanta, Fulton County, Georgia
which base will not be changed without the prior written consent of CIT.
<PAGE> 11
4. Lessee will not operate the Aircraft in any airspace
for which it has not provided CIT insurance coverage as required
above.
5. No portion of Lessee's interest under the Lease may be assigned,
sublet, transferred or encumbered, nor any portion of the leased property
purchased by Lessee, nor the Lease cancelled or suspended by Lessor or Lessee
(pursuant to purchase option or otherwise) without CIT's prior written consent.
6. (a) No lease payment greater than one month in advance
may be made without CIT's prior written consent.
(b) The Lease shall be non-cancelable and shall not be
modified by either party without the advance written consent of CIT, which may
be withheld in CIT's sole discretion.
(c) The Lease is in good standing and is hereby ratified as
amended hereby and no party to this lease is in default or has done or failed to
do something, which, if unremedied, with the passage of time will become a
default.
7. Lessee shall pay all reasonable attorneys' and paralegal fees and
costs, from prior to litigation through post-judgment proceedings, incurred by
CIT and/or Lessor in enforcing its rights upon Lessee's default hereunder.
8. Lessee agrees that the Aircraft will be maintained at all times in
an airworthy condition necessary for aircraft licenses under the laws,
ordinances, rules and regulations of the U.S., the several states and
municipalities, and any other jurisdiction in which the Aircraft shall be
operated at any time.
9. Lessee agrees that the Aircraft will be used at all times in
accordance with the laws, rules, regulations, and ordinances of the U.S., the
several states and municipalities thereof, and any other sovereign jurisdiction
in which the Aircraft may be used.
10. The Lease is subordinate to the Security Agreement, Uniform
Commercial Code financing statements, and related security instruments executed
in favor of CIT in connection with the Aircraft, and CIT's exercise of its
rights under any assignment of the Lease to receive lease payments or otherwise,
shall not prejudice CIT's rights to foreclose Lessee's interest in the Lease as
subordinate to CIT's.
11. CIT shall have the right to inspect the Aircraft upon
reasonable notice, and immediately in the event of an emergency.
12. CIT shall receive simultaneously with Lessor and Lessee copies of
all notices sent by either to the other, and forthwith copies of all
correspondence from either such party with each other, subleases, the FAA,
airport authorities, other
<PAGE> 12
governmental authorities, financial institutions, and/or other persons or
entities related to the Aircraft.
13. Lessee agrees not to make any structural modifications
to the Aircraft without CIT's prior written approval.
14. Lessee and Lessor acknowledge that this Addendum is being executed
by them in consideration for CIT's providing of financing to Thomas M. O'Gara
which has in turn provided financing to Lessor secured by the Aircraft, and
other good and valuable consideration, receipt of which is hereby acknowledged
by Lessor and Lessee; and that such financing would not have been provided in
the absence of this Addendum.
15. Lessee covenants and agrees that during the term of that certain
Negotiable Promissory Note of even date herewith executed by Thomas O'Gara in
favor of CIT, it will provide to CIT (1) within 90 days after the end of each
fiscal year, a balance sheet and income statement of Lessee, prepared in
accordance with generally accepted accounting principles consistently applied
and certified by independent certified public accountants selected by Lessee and
acceptable to CIT, and (2) within 45 days after the end of each of the first
three quarters of such fiscal year, a balance sheet and income statement of
Lessee, prepared in accordance with generally accepted accounting principles
consistently applied and certified by Lessee's Chief Financial Officer.
16. Notice. Notice hereunder shall be by certified mail
return receipt requested, effective upon deposit in the U.S.
mails addressed to the parties at the addresses listed below, or
as changed by notice hereunder.
17. Truth-in-Leasing. (A) THE LESSEE CERTIFIES THAT THE AIRCRAFT
PRESENTLY COMPLIES WITH APPLICABLE FAA MAINTENANCE AND INSPECTION REQUIREMENTS
FOR OPERATION TO BE CONDUCTED UNDER THE LEASE AND THAT THE AIRCRAFT HAS BEEN
MAINTAINED FOR THE LAST 12 MONTHS, AND IN THE FUTURE WILL BE MAINTAINED AND
INSPECTED, UNDER 14 C.F.R. 43, SECTION 91.54, AS AMENDED, OF THE FAA REGULATIONS
FOR OPERATIONS TO BE CONDUCTED UNDER THE LEASE. (B) LESSEE CERTIFIES THAT IT IS
RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT UNDER THE LEASE DURING THE
TERM HEREOF AND THAT IT UNDERSTANDS ITS RESPONSIBILITY FOR COMPLIANCE WITH
APPLICABLE FEDERAL AVIATION REGULATIONS. (C) THE LESSEE UNDERSTANDS THAT AN
EXPLANATION OF FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT FAA
REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT STANDARD DISTRICT
OFFICE, GENERAL AVIATION DISTRICT OFFICE, OR AIR CARRIER DISTRICT OFFICE. (D)
LESSEE AGREES TO KEEP A COPY OF THE LEASE IN THE AIRCRAFT AT ALL TIMES DURING
THE LEASE TERM.
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
this _____ day of _______________, 1995.
Witnessed by: LESSOR: LONGLINE LEASING, INC.
/s/ Thomas M. O'Gara By: /s/ Nicholas P. Carpinello
- -------------------------------- -----------------------------------
Title: Treasurer
-----------------------------------
Address: 9113 LeSaint Drive
Fairfield, OH 45014
Witnessed by: LESSOR: EXCEL ARMOR PRODUCTS,
INC.
/s/ Thomas M. O'Gara By: /s/ Nicholas P. Carpinello
- -------------------------------- -----------------------------------
Title: Treasurer
-----------------------------------
Address: 9113 LeSaint Drive
Fairfield, OH 45014
Witnessed by: LESSEE: O'GARA-HESS AND
EISENHARDT ARMORING
COMPANY
/s/ Thomas M. O'Gara By: /s/ Nicholas P. Carpinello
- -------------------------------- -----------------------------------
Title:Exec. V.P./Treasurer
-----------------------------------
Address: 9113 LeSaint Drive
Fairfield, Ohio 45014
<PAGE> 14
Gulf Stream II Supplemental Lease Agreement
This agreement is between O'Gara-Hess & Eisenhardt Armoring Company (O'Gara) and
Longline Leasing, Inc.-Excel Armor Products, Inc. (LLL-EAP).
WHEREAS-
O'Gara has entered into a lease with LLL-EAP dated 12 Feb 1995 for the use of a
Gulfstream II jet N930SD.
O'Gara has entered into a management agreement with O'Gara Aviation Company
(OAC) to maintain and manage the G II.
O'Gara desires to reduce the net operating expenses of the G II.
LLL-EAP desire to charter the G II.
AGREEMENT-
O'Gara agrees to allow LLL-EAP to manage the G II, including chartering, subject
to the following terms:
O'Gara shall make minimum payments of $30,000 per month during the
term of the lease.
O'Gara shall be invoiced for use of the G II on the basis of $1,500
per hour and to the extent such cumulative invoices for the
period from 12 Feb 1995 to 31 December and each calendar year
thereafter, for the duration of the lease, exceeds the amount
paid by the $30,000 per month for the same period, O'Gara
shall pay to LLL-EAP by no later than 31 January of the
following year.
O'Gara shall have first priority to use the G II.
O'Gara agrees that all net revenues from operations shall be for the
benefit of LLL-EAP.
LLL-EAP agrees to provide aircraft management including pilots,
steward/stewardess, maintenance, food service, insurance,
accounting information, filing of all related use tax returns,
flight planning and clearances as required.
LLL-EAP agrees to operate and maintain the G II.
LLL-EAP shall charter the G II through AMR and direct marketing.
These are the complete terms of the agreement.
O'Gara-Hess & Eisenhardt Armoring Longline Leasing, Inc.
Company
/s/ Nicolas P. Carpinello /s/ W.T. O'Gara
- --------------------------------- -----------------------------------
Nicholas P. Carpinello W.T. O'Gara
Executive Vice President Vice President
<PAGE> 15
AMENDMENT TO LEASE
This Amendment to Lease ("Amendment") is made and entered into as of
the 1st day of August, 1996, by and between Longline Leasing, Inc., a Delaware
corporation, and Excel Armor Products, Inc., a Delaware corporation
(collectively "Lessor"), and O'Gara-Hess & Eisenhardt Armoring Company, a
Delaware corporation ("Lessee").
W I T N E S S E T H
WHEREAS, Lessor and Lessee are parties to a certain Aircraft Lease,
dated as of February 13, 1995 ("Lease");
WHEREAS, in connection with certain amendments to the financing
agreements by which Lessor has financed the acquisition of the Aircraft, the
parties desire to amend the rental payments due under the Lease;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties agree as follows:
1. Paragraph 1 of the Lease is hereby deleted in its
entirety and the following inserted in its place:
"1. TERM AND RENTALS AND DEPOSIT
This lease is for a term of 10 years, beginning February 13, 1995, and
ending February 12, 2005. Lessor shall pay Lessee a deposit of
$400,493. For the period from February 13, 1995 to August 14, 1996,
Lessee shall pay to Lessor rental in the sum of $53,000 per month which
shall be due and payable on the 15th day of each month, of which the
first is due March 15, 1995, thereafter commencing August 15, 1996,
Lessor shall pay Lessee rental in the sum of $35,200 per month ("Base
Rent"), which shall be due and payable on the 15th day of each month,
plus a sum equal to the number of hours that Lessee uses the Aircraft
in excess of 23.47 hours per each year (for purposes of this sentence
year means each 12 month period commencing February 13) multiplied by
$1,500, which sum shall be paid monthly at the same time as the Base
Rent is due. All rent shall be paid at Lessor's place of business shown
herein, or such other place as the Lessor may designate by written
notice to the Lessee. The operation and use of the Aircraft shall be at
the risk of Lessee, and not of Lessor and the obligation of Lessee to
pay rent hereunder shall be unconditional.
<PAGE> 16
Deposit/Additional Rent: Lessor shall withdraw from the deposit and
credit to the account of Lessee, as additional rent hereunder, the sum,
each month, of $3,337.44 determined to be 1/120th of the deposit set
forth above.
2. All capitalized terms not defined herein shall have the
meaning ascribed to them in the Lease.
3. The Lease except as modified herein shall remain in full
force and effect.
The undersigned have executed this Amendment as of the date first above
written.
LESSOR: LONGLINE LEASING, INC.
By: /s/ Nicholas P. Carpinello
-----------------------------
Title: Treasurer
-----------------------------
Address: 9113 LeSaint Drive
LESSOR: EXCEL ARMOR PRODUCTS,
INC.
By: /s/ Nicholas P. Carpinello
-----------------------------
Title: Treasurer
-----------------------------
Address: 9113 LeSaint Drive
LESSEE: O'GARA-HESS AND
EISENHARDT ARMORING
COMPANY
By: /s/ Nicholas P. Carpinello
-----------------------------
Title: Exec. V.P./Treasurer
-----------------------------
Address: 9113 LeSaint Drive
Fairfield, Ohio 45014
<PAGE> 1
EXHIBIT 10.5
Alphaville Commercial Center
Calcade das Rosas, 126
Phone: 421-3235 - Facsimile: 421-3337 LIVING
IMOVEIS
- --------------------------------------------------------------------------------
REAL ESTATE RENT AGREEMENT PRIVATE INSTRUMENT
(English translation of terms)
There are parties in the present instrument:
A) At one side, in the quality of LESSOR, hereinafter simply designated as
LESSOR, MR. PIERO BALDUCCI, Brazilian, industrial, bearer of the Identify Card
RG N.1.565.292 SSP/SP and enrolled in the Taxpayer's Number 028.070.848-34 and
his wife MRS. ELVIRA MIRIAM COLO BALDUCCI, Brazilian, industrial, bearer of the
Identity Card RG N.1.358.564 SSP/SP and enrolled in the Taxpayer's Number
028.070.928-53, married under the matrimonial joint ownership of property before
the law 6.515/77 legal effect, resident and domiciled at Barueri, Sao Paulo
State, at Alameda Belgica, 512, Residential Alphaville (01), Barueri - SP,
B) And at the other side, in the quality of LESSEE, the company hereinafter
simply designated as O'GARA HESS & EISENHARDT DO BRASIL LTDA., enrolled in the
Taxpayer's Number 01.050.021/0001-84, hereinafter duly represented by its
director, MR. PAUL CESAR FERRAO AMORIM, Brazilian, business administrator,
married, bearer of the Identify Card RG. N.6.4001.491 SSP/RS and of the
Taxpayer's Number 722.498.387-04, resident and domiciled at Alameda Sao Carlos,
254, Residential Alphaville (04), Santana do Parnaibe - SP, with the telephone
number of 725-2794 and Zip Code 06486-020.
THE PARTIES ABOVE DESIGNATED AND QUALIFIED HAVE BETWEEN THEM, FAIR
AND CONTRACTED THE FOLLOWING, THAT MUTUALLY CONFER AND ACCEPT,
NAMELY:
FIRST CLAUSE - THE REAL ESTATE
The Lessor, being the owner of the real estate located at the "Centro
Empresarial e Industrial Alphaville", Barueri Territory, Sao Paulo State, at
Avenida Tambore, 1.393, composed of the main floor, 1st floor, second floor and
shed, rent it to the present LESSEE for exclusively COMMERCIAL and INDUSTRIAL
finalities, in the following conditions:
<PAGE> 2
The term of duration of the present Agreement is of 48 (forty eight) months,
beginning on 04/01/1996 and ending at 03/31/2.000, when it shall occur the real
estate vacation, under the penalty of the LESSEE to be subject to the competent
judicial repossession procedure and other legal sanctions.
SOLE PARAGRAPH: The above convened term might be extended, since that the LESSEE
manifest itself in written 30 (thirty) days before the maturity of the present
Agreement and accepts the LESSOR freely established conditions with relation to
the value, clauses and market conditions.
THIRD CLAUSE - THE PRICE
The rent value for the period described in the precedent Clause is of R$
13.000,00 (thirteen thousand Reais), thus the now contracting parties agree of
common consent, that the mentioned payments will be made by the LESSOR to the
LESSEE always on the 5th (fifth) subsequent day of each expired month, wherever
he will indicate.
FIRST PARAGRAPH: The LESSEE will have a 30 (thirty) day's lack, being agreed
that the discount will be applied to the second rent payment.
SECOND PARAGRAPH: The rent payment, made beyond the above established term, will
implicate on the 10% (ten percent) correspondent fine collection over the
matured debt, and if the delay will be superior to 30 (thirty) days, it will be
also subject to moratory interests of 1% (one percent) by month and to the
monetary correction based in the IGP- M "pro rata dies" accrued variation,
enforceable together with the principal, beyond the lawyer's fees of 20% (twenty
percent) over the total debt.
THIRD PARAGRAPH: The LESSEE will have the exclusive payment responsibility of
all the expenses as the water, light, gas, telephone consume and service charge,
eventually incident over the unit, beyond the taxes, as well as any extra
expenses, that might be created and appertain to the LESSEE by law.
FOURTH PARAGRAPH: The LESSEE engages and obliges itself since now, by the
occasion of the real estate now transferred restitution, to pay for any pendent
expenses that might exist.
FIFTH PARAGRAPH: For the readjustment effect, there shall always be observed the
in force legislation criteria or of the one of the legislation that starts to be
in force in the course of the present agreement, in such a way that, for the
moment the readjustments will be "annual", due to what is determined by the law
N. 9.069/95.
SIXTH PARAGRAPH: It remains fair and contracted between the parties that the
first rent will be paid with anticipation to Living Imoveis Ltda., at the due
commission remuneration title by the renting intermediation now contracted.
SEVENTH PARAGRAPH: It's clarified that every amount due and paid now and in the
future by the LESSEE to the LESSOR, will be withdrew of the deductions and
retentions previewed in Law.
FOURTH CLAUSE: CONSERVATION
- 2 -
<PAGE> 3
The LESSEE declares that receives the real estate now ceded, in perfect state of
conservation, hygiene, cleanness, and functioning, mainly with relation to the
electric, hydraulic, masonry, floors, squares, glasses and locks parts, which
the LESSEE declares to know, compromising himself to refund everything at the
end, in perfect conditions, in accordance with the verification to be made when
of the keys devolution.
FIRST PARAGRAPH: All the taxes and fees concerning to the building construction,
as the "Habite-se", "INSS", will be of total responsibility of the LESSOR.
SECOND PARAGRAPH: The LESSOR shall present the "HABITE-SE", between 5 (five)
days after the beginning of the term of the present agreement, in order to make
possible that the LESSEE might register his company, under the penalty of not
being due the rents, until the presentation of the same and also being
characterized an agreement infraction of serious nature, that might cause it's
rescission, with the concomitant application of the previewed penalties.
CLAUSE FIFTH - OBLIGATIONS
Beyond others, previewed in the present agreement and deriving from the law, the
LESSEE obligations, as of the signature of the present agreement, are:
A) to use the real estate and the assets that garnish it exclusively for the
stipulated use, treating them with the same care as if they were of its
property, returning them at the end of the rent period in perfect state, as they
were received.
B) to pay in the due time the payments resulting from the agreement, the taxes,
fees, vigilance, that might incur on real estate or that start to incur, beyond
the cleanness, power and light, water and sanitation payments and extra
expenses, being observed the occupation period by the LESSEE. Such amounts
shall be reimbursed to the LESSOR, after that the respective payments are
made by him, trough the evidence's presentation.
C) to take to the LESSOR immediately knowledge the third parties perturbations
or any problems that might occur in the real estate.
D) to be responsible for the Public Policy demands related to its acts.
R) to respect the restrictions that burden the agreement, the taxes, fees,
vigilance, that might incur on real estate that is object of the present
agreement, obliging himself since now to respect it completely, by himself and
by his successors at any title. The non-observance will be considered as a
contractual infraction.
F) to allow the LESSOR, by himself or third parties, to inspect the real estate
object of the present agreement, always that the he understands that it's
convenient, therefore, within the dates and times scheduled with a minimum
antecedence of 72 (seventy two) hours and they won't be able to compromise the
company's works good performance.
G) to deliver, in the 90 (ninety days) term as of the present date, an insurance
bond having as the beneficiary the LESSOR - for the herein contracted real
estate, in the value of 30 (thirty) times the rent value, in force at that time.
- 3 -
<PAGE> 4
H) the LESSEE might sublease the real estate for the group companies or for
companies that eventually make joint ventures with the LESSEE, since that it
continues being completely responsible for the total rent payment.
SIXTH CLAUSE: THE PROHIBITIONS
Despite of any other prohibitions, previewed in the present agreement or in law,
the LESSEE is forbidden to:
A) to construct, except if through a LESSOR'S previous written authorization,
any works or betterment, no matter if useful, necessary or voluntary, in the
rented real estate, even though they aim to adapt it to the LESSEE needs or
activities. The LESSEE shall observe all the Public Entities determinations and
restrictions existing in the works edification and betterment.
B) to abandon the rented building or to require the present agreement
rescission, even though before any Public Authorities intimation, except if
realizing a judicial inspection that determine that, the real estate is without
use conditions. In this case, the LESSEE shall not be subject to any
indemnification payment, except if the lack of conditions to use the real estate
will be originated of the bad use of it's part, or in virtue of any other act or
omission that it might be liable for.
SEVENTH CLAUSE: THE EXPROPRIATION
In the event of the expropriation of the real estate object of the present
agreement, amicable or judicial, the rents and charges will be due until the
effective writ of entry of the Eminent Domain. In the occurrence of this
hypothesis, none of the parties will be obliged to indemnify the other, with the
exception of the LESSEE right to demand of the Eminent Domain an eventual
indemnification that it might be entitled to.
EIGHT CLAUSE - BETTERMENT
The betterment and the works that might be realized, at the LESSOR criteria,
will remain incorporated to the real estate, the LESSEE not being able, in any
case, to allege the retention, compensation or indemnification right due to the
betterment, being that the same will be always paid only by itself.
SOLE PARAGRAPH: With relation to the company, the LESSEE might withdraw all the
goods pertaining to it, such as equipment, machines, telephones, utensils,
furniture, signs, etc., that eventually, have been installed on the same.
NINTH CLAUSE - THE FINE
It's established the fine equal to 03 (three) rents in force at the time,
independently of the amount of time elapsed, to be imposed to the party that
might violate any clause of the present agreement, not being allowed to any one
of them, to be released of the agreement's obligations by the fine payment, that
will be due as many times the infractions will be committed, being the innocent
party able to consider the present rent rescinded, of plenary right.
- 4 -
<PAGE> 5
FIRST PARAGRAPH: The fine will always be due in whole, whatever will be the time
already elapsed, being avoided, by the parties convention, the Civil Code
Article 924 and 923 norm incidence.
SECOND PARAGRAPH: The fine now fixed, won't free the LESSOR of the culpose
damages payment caused to the rented real estate, nor shall it be compensated
for such finality.
THIRD PARAGRAPH: Everything that will be due related to the present agreement,
and that can't be recovered through an execution proceeding, will be collected
through the competent judicial procedure, being at the guilty part's
responsibility, beyond the principal, the judicial and extrajudicial expenses
and the lawyers fees paid by the innocent part to the constituted lawyer for its
rights defense, since now fixed in 20% (twenty percent).
TENTH CLAUSE - GUARANTY
As guarantor and main payer of all the LESSEE assumed obligations in the present
agreement, with no limits neither solidarity with a guaranty and with the Civil
Code articles 1458, 1498, 1499, 1500, 1503 to 1504 renunciation, signs the
present, MR. PAULO CESAR FERRAO AMORIN, Brazilian, business administrator,
bearer of the Identity Card RG N. 6.400.1491 SSP/S and enrolled in the
Taxpayer's Number 722.498.387-04, married under the matrimonial joint ownership
of property, before the enforcement of the Law 6.515/77, with MRS. DORIS
VIRGINIA FRAGA DE AMORIM, Brazilian, housewife, bearer of the identity card RG
N. 494.954 SSP/ES and enrolled in the Taxpayer's Number 719.738.857- 00,
resident and domiciled at Alameda Sao Carlos, 254 Residential Alphaville (04),
Santana do Parnaiba - SP, with the phone 725-2794 and the Zip Code 06486-020.
FIRST PARAGRAPH: The guarantor's responsibility remains until the effective keys
delivery.
SECOND PARAGRAPH: The guarantor, declares that the LESSOR doesn't need to give a
previous knowledge to him, the guarantor, of any infraction to the agreement or
delay of the agreed, recognizing as his obligation the personal and periodic
notification, the punctuality and the fulfillment of the LESSEE'S obligations.
THIRD PARAGRAPH: In the event of death, insolvency or bankruptcy of the
guarantor, the LESSEE will be obliged to, within the term of 30 (thirty days),
furnish idoneous substitutes, by the LESSOR's criteria, under the penalty of
being characterized, a serious nature contractual infraction, provider of its
rescission, with the previewed penalties concomitant enforcement.
TENTH FIRST CLAUSE - THE SALE OR ALIENATION
It remains expressively previewed the obedience and respect to eventual buyers,
with relation to the present agreement, its prorogation and/or renovation. Thus,
it's an essential condition of the business the registration and recording of
the present agreement, in the terms and for the legal effects. In this way, in
the event of the LESSOR don't exercise his preference right and if the real
estate is transferred to third parties, the present agreement shall be complied
with and respected by the eventual buyer in all of its clauses and conditions,
in the terms of the legislation in force.
- 5 -
<PAGE> 6
TENTH SECOND CLAUSE - THE POWER OF ATTORNEY
Since now the LESSOR nominates the LESSEE as his attorney for the special
finality to represent him before the government offices, Barueri County's
Prefecture, and other organs, with the specific objective of obtaining the
necessary authorizations for the exploitation of his business, industrial and
services field.
TENTH THIRD CLAUSE - JURISDICTION
The parties elect, if the most privileged it might be, the Barueri County
Jurisdiction, Sao Paulo State, in other words, the one of the real estate
localization, in order that the doubts or questions arising from the present
instrument might be solved there. In the event that there will be a need to go
to Court, the looser part will bear all the winner part fees, since now being
stipulated in 20% (twenty percent) of the value of matter in dispute.
AND BEING FAIR AND CONTRACTED, THE PARTIES SIGN THE PRESENT INSTRUMENT, IN 03
(THREE) COUNTERPARTS OF THE SAME MEANING, IN THE PRESENCE OF THE TESTIMONIES
UNDER, THAT ALSO SIGN IT.
Barueri, March 8th, 1996.
LESSORS:___________________
PIERO BALDUCCI
_____________________
ELVIRA MIRIAM COLO BALDUCCI
LESSEE:________________________
O'GARA HESS & EISENHARDT DO BRASIL LTDA.
PAULO CESAR FERRAO AMORIM
GUARANTORS:___________________
PAULO CESAR FERRAO AMORIM
_____________________
DORIS VIRGINIA FRAGA DE AMORIM
WITNESSES:
_____________________________ _____________________________
- 6 -
<PAGE> 1
Exhibit 10.6
IRREVOCABLE CALL OPTION AGREEMENT ENTERED INTO BY AND BETWEEN MEXINVEST, SA DE
C.V. (HEREINAFTER, THE "GRANTOR") AND O'GARA-HESS & EISENHARDT ARMORING COMPANY
DE MEXICO (HEREINAFTER, THE "GRANTEE"). IN ACCORDANCE WITH THE FOLLOWING
REPRESENTATIONS, WARRANTIES AND CLAUSES.
REPRESENTATIONS AND WARRANTIES
I. The Grantor represents and warrants that:
(a) It is a Corporation duly organized, validly existing and in
good standing in accordance with the laws of the Mexican
Republic, and registered in Folio Mercantile
Number ______________________.
(b) This Agreement has been duly executed and delivered by it
through its legal representatives and constitutes a valid and
legally binding obligation of the Grantor, enforceable in
accordance with its terms.
(c) The execution, delivery and performance of this Agreement by
the Grantor do not and will not contravene any law, rule,
regulation or order applicable to him or any agreement,
indenture or contractual provision to which it is a party.
(d) He is the owner of the property located at Andromaco 13 & 23,
col. amplification Granada, Mexico D.F., 11520 (hereinafter,
the "property"), free and clear of any liens, encumbrances,
restrictions, rights of third parties, claims or options,
except for the option granted hereunder to the Grantee. The
property is also subject to a lease agreement, and the lessee
has waived its preferential right to purchase in the same
conditions as Grantee. Grantor has the property in accordance
with title 63516 granted before Public Notary Luis del Valle
Prieto on 3 of July 1979, title which has Been duly registered
in the Public Registry under number 579489 at 57492 on Nov.
15, 1979 (The same title covers, another property that is not
part of this option).
(e) It wishes to enter into this Agreement in order to grant to
the Grantee the irrevocable right to purchase the Property in
accordance with the terms and conditions set forth herein. It
has all requisite corporate authority to enter into this
Agreement and that the person who executes this Agreement on
its behalf has sufficient authority to bind it on the terms
and conditions set forth herein.
II. The Grantee represents and warrants that:
(a) It is a Corporation duly organized validly existing and in
good standing in accordance with the laws of the
<PAGE> 2
Mexican Republic, and registered in Folio Mercantile
Number _________________________.
(b) This Agreement has been duly executed and delivered by the
Grantee and constitutes a valid and legally binding obligation
of the Grantor, enforceable in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by
the Grantor do not and will not contravene any law, rule,
regulation or order applicable to him or any agreement,
indenture or contractual provision to which it is a party.
(e) It has all requisite corporate authority to enter into this
Agreement and that the person who executes this Agreement on
its behalf has sufficient authority to bind it on the terms
and conditions set forth herein.
NOW THEREFORE; the parties hereto, in Consideration of the
representations and warranties set forth above and the mutual covenants
herein contained, hereby agree to the following:
C L A U S E
Clause One. CALL OPTION - The Grantor hereby grants to the Grantee an
irrevocable option to purchase the Property during the term referred to herein,
after which term the option shall mature without any obligations for either
party, unless the option is timely exercised.
Clause Two. CONSIDERATION FOR THE OPTION - As consideration for the
option granted herewith, Grantee pays Grantor the amount of U.S. $25,000.00
(TWENTY-FIVE THOUSAND DOLLARS 00/100) plus V.A.T. The Grantor receives such
consideration upon the execution of this agreement, the receipt of which is
hereby fully and unconditionally acknowledged by the Grantor.
Clause Three. TERMS OF THE OPTION - (a) Exercise Period Exercise Notice
The Grantee shall have the right to purchase the Property at any time before the
due date on which the Grantee proposes to exercise the option, a written notice
specifying the Grantee's intention to exercise and setting forth the date of
exercise within the due date and the ultimate purchase. For purposes of this
agreement due date is the term within which Grantee should exercise the option,
which shall occur before Oct. 01, 1996.
If Grantee fails to exercise the option within the due date, the
Consideration paid in accordance with Clause Two above should
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<PAGE> 3
be final compensation to Grantor without any further obligations or
responsibility of the parties.
(b) Exercise Price. On the exercise date set forth in the Exercise
Notice, the Grantee may exercise the option for the Property by paying the
Grantor the amount of U.S. 1,100,000.00 (PLUS THE CORRESPONDING VAT TAX DOLLARS
00/00) in consideration for the transfer of the property free and clear of any
lien or encumbrance whatsoever, in accordance with article 2014 of the Mexican
Civil Code to Grantee or the person appointed by such Grantee. Grantee and the
ultimate purchaser appointed will have joint responsibility for the payment of
the amount referred to above. If the option is exercised in time by Grantee, the
amount of $25,000.00 U.S. Dollars will be credited to the agreed price of the
sale.
(c) Cost and Expenses. All costs and expenses related to the transfer
of Property to Grantee or Grantee's appointed acquirer, including Notary's fees.
Public Registry and Transfer of Property Tax vat Tax, should be paid for the
Grantee, except for the Income Tax which should be paid for by Grantor.
Clause Four. CONDITION PRECEDENT - Grantee will not be able to exercise
the option within the due date, unless sufficient evidence is given to the
satisfaction of Grantor, that Grantee has paid or secured the payment of
services rendered by United Search & Supply, Inc. a corporation organized and
existing under the Law of the State of Arizona, in an amount not less than U.S.
85,000.00 (EIGHTY-FIVE THOUSAND DOLLARS 00/00).
If such payment is not made or secured to Grantor's satisfaction on or
before the exercise of the option contained herein, within the due date referred
to above, Grantee should not be able to exercise the option and therefore no
transfer of Property shall occur.
Clause Five. NOTICES - Any notices and other communications required or
permitted under the terms and provisions of this Agreement shall be in writing
and shall become effective when delivered by hand or received by telecopier,
telex, telegram or registered first-class mail, postage prepaid and addressed to
the intended recipient at the following address:
If to the Grantor - Andromaco 13, Mexico, D.F. 11520
If to the Grantee - Andromaco 23, Mexico, D.F. 11520
Process may be served upon any party by delivering it to the address
for such party specified in this Clause Three.
Clause Six. CONFIDENTIALITY - Neither party shall issue any
information, publication, document of media, or make any public
statement in relation to this Agreement or any matter relating
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<PAGE> 4
thereto without the other party's prior written consent, unless required to do
so by law.
Clause Seven. JURISDICTION - For any conflict or dispute related to
this irrevocable option agreement and/or the transfer of Property as a result of
the exercise of the option, the parties agree to submit such dispute to the
Courts of Mexico City.
GRANTOR GRANTEE
/s/ Juan R. Hock /s/ Nicholas P. Carpinello
- --------------------------------- -----------------------------------
MEXINVEST S.A. DE. C.V. O'GARA-HESS & EISENHARDT
JUAN R. HOCK ARMORING CO. DE MEXICO, S.A.
DE C.V.
NICHOLAS P. CARPINELLO
DIRECTOR
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<PAGE> 1
Exhibit 10.7
THE O'GARA COMPANY
1996 Stock Option Plan
ARTICLE I
OBJECTIVES
1.1 The objectives of this Stock Option Plan (the "Plan") are
to enable The O'Gara Company ("O'Gara") to compete successfully in retaining and
attracting employees and directors of outstanding ability, to stimulate the
efforts of employees and directors toward O'Gara's objectives and to encourage
ownership of shares of O'Gara's Common Stock by its employees and directors.
ARTICLE II
DEFINITIONS
2.1 For purposes of the Plan each of the following terms shall
have the definition which is attributed to it, unless another definition is
clearly indicated by a particular usage and context.
A. "Board" means the Board of Directors of O'Gara.
B. "Code" means the Internal Revenue Code of 1986, as
amended. Reference to any Section of the Code includes the
provisions of that Section as it may be amended or replaced by
any other section(s) of like intent and purpose and also
includes any regulations or rulings promulgated thereunder.
C. "Company" means O'Gara and any subsidiary of
O'Gara, as the term "subsidiary" is defined in Section 424(f)
of the Code.
D. "Disability" means permanent and total disability
as defined in Section 22(e)(3) of the Code.
E. "Effective Date of Grant" means the date on which,
or such later date as of which, the Board makes an award of an
Option.
F. "Eligible Employee" means any individual (other
than one who receives retirement benefits, stipends,
consulting fees, honorariums and the like) who performs
services for the Company and is included on the regular
payroll of the Company. A director of the Company who does not
otherwise qualify as an Eligible Employee pursuant to the
previous
<PAGE> 2
sentence shall nonetheless be considered an Eligible Employee
with respect to the grant of Nonqualifed Stock Options.
G. "Exchange Act" means the Securities Exchange Act
of 1934, as amended.
H. "Fair Market Value" means the last sale price
reported on The Nasdaq Stock Market, or on any stock exchange
on which the Shares are traded, on a specified date or, if
there are no reported sales on such date, then the last
reported sales price on the next preceding day on which such a
sale was transacted. If the Shares are not then traded as
described in the preceding sentence, then the average of the
closing bid and asked prices on the specified date or last
preceding day on which bid and asked prices were reported, or
such other method as the Board may select, shall be used in
determining Fair Market Value for a Share.
I. "Incentive Stock Option" shall have the same
meaning as is given to that term by Section 422 of the Code.
J. "Nonqualified Stock Option" means any Option other
than an Incentive Stock Option.
K. "Option" means the right, subject to the terms of
this Plan and to such other terms and conditions as the Board
may establish, to purchase from O'Gara a stated number of
Shares at a specified price.
L. "Option Price" means the purchase price per Share
subject to an Option. The Option Price shall not be (i) less
than 85% of the Fair Market Value of a Share on the Effective
Date of Grant in the case of a Nonqualified Stock Option,
except that no Nonqualified Stock Option which is intended to
result in compensation that qualifies for exclusion from the
deduction limitation of Code Section 162(m) shall be granted
with an Option Price of less than 100% of the Fair Market
Value of a Share on the Effective Date of Grant, or (ii) less
than 100% of the Fair Market Value of a Share on the Effective
Date of Grant in the case of an Incentive Stock Option, except
as otherwise provided in Section 8.1.
M. "Share" means one share of the Common Stock, $.01
par value, of O'Gara.
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ARTICLE III
ADMINISTRATION
3.1 Administration. The Plan shall be administered by the
Board. Subject to and consistent with the provisions of the Plan, the Board
shall establish such rules and regulations as it deems necessary or appropriate
for the proper administration of the Plan, shall interpret the provisions of the
Plan, shall decide all questions of fact arising in the application of Plan
provisions and shall make such other determinations and take such actions in
connection with the Plan and the Options granted hereunder as it deems necessary
or advisable. At any time, or from time to time, the Board may appoint a
committee of at least two directors (the "Committee") to administer, or to
approve transactions pursuant to, the Plan. For the purpose of option grants to
and approval of other transactions with persons who are subject to Rule 16b-3
under the Exchange Act with respect to O'Gara, each member of the Committee
shall be a "Non-Employee Director" as defined in Rule 16b-3. To the extent that
it is desired that compensation resulting from the grant of a particular Option
be excluded from the deduction limitation of Section 162(m) of the Code, all
directors comprising the Committee granting such Option also shall be "outside
directors" within the meaning of Code Section 162(m). In the event a Committee
is so appointed, it may carry out all of the functions of the Board with respect
to the Plan, except for amendments to or suspension or termination of the Plan.
3.2 Except as specifically limited by the provisions of the
Plan, the Board shall have authority to:
A. Determine which Eligible Employees shall be
granted Options;
B. Determine the number of Shares which may be
subject to each Option;
C. Determine the term and the Option Price of each
Option;
D. Determine whether an Option is an Incentive Stock
Option or a Nonqualified Stock Option;
E. Determine the time or times when Options will be
granted; and
F. Determine all other terms and conditions of each
Option, including (but not limited to) the terms of any Option
agreement. The Board may, in its discretion, determine as a
condition of any Option that a stated percentage of Shares
covered by such Option shall be exercisable in any one year or
other stated period of time. The Board may also waive or amend
the terms and conditions of, or accelerate the vesting of, an
Option under circumstances selected by the Board.
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<PAGE> 4
3.3 Any action, decision, interpretation or determination by
the Board with respect to the application or administration of this Plan shall
be final and binding upon all persons, and need not be uniform with respect to
its determination of recipients, amount, timing, form, terms or provisions of
Options.
3.4 No member of the Board shall be liable for any action or
determination taken or made in good faith with respect to the Plan or any Option
granted hereunder and, to the extent not prohibited by applicable law, all
members shall be indemnified by the Company for any liability and expenses which
they may incur as a result of any claim or cause of action, or threatened claim
or cause of action, arising in connection with the administration of this Plan
or the grant of any Option hereunder.
ARTICLE IV
SHARES ISSUABLE
4.1 Except as provided in Article XI, the number of Shares
which may be issued under the Plan shall not exceed 400,000 Shares in the
aggregate and Options for no more than 50,000 Shares may be granted to any
individual Eligible Employee during any period of twelve (12) consecutive
months. If any Option expires or terminates for any reason without being
completely exercised, the Shares with respect to which such Option was not
exercised may again be subject to other Options. Shares tendered or withheld as
payment for the Option Price pursuant to Section 7.1 shall be available for
issuance under the Plan. The Board may make such other determinations regarding
the counting of Shares issued pursuant to the Plan as it deems necessary or
advisable, provided that such determinations shall be permitted by law.
ARTICLE V
GRANTING OF OPTIONS
5.1 Subject to the terms and conditions of the Plan, the Board
may, from time to time, grant Options to Eligible Employees on such terms and
conditions as it shall determine. More than one Option and more than one form of
Option may be granted to the same individual.
ARTICLE VI
EXERCISE OF OPTIONS
6.1 Any person entitled to exercise an Option may do so,
without the need for further approval pursuant to Exchange Act Rule 16b-3, in
whole or in part by delivering to O'Gara, attention: Stock Option Plan
Administrator, at its principal office, a written notice of exercise. The
written notice shall specify the number of Shares for which
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<PAGE> 5
an Option is being exercised and shall be accompanied by full payment of the
Option Price for the Shares being purchased.
ARTICLE VII
PAYMENT OF OPTION PRICE
7.1 Subject to such administrative requirements as the Board
may impose, payment of the Option Price may be made, at the election of the
holder of an Option, in cash, by the tender of previously owned Shares, by
directing that a portion of the Shares to be issued upon exercise of the Option
be withheld by O'Gara as payment (to the extent permitted by law) or by a
combination of the foregoing. If payment by the tender of previously owned
Shares or the withholding of Shares is permitted, the value of each Share shall
be deemed to be the Fair Market Value of a Share on the day the Shares are
tendered or withheld for payment. In the case of a tender of previously owned
Shares, this shall be the date on which the Shares, duly endorsed or accompanied
by a stock power duly endorsed for transfer to O'Gara, are received by O'Gara.
In the case of a withholding of Shares, this shall be the date on which a
complete and correct notice of exercise directing the withholding is received by
O'Gara. Notwithstanding the foregoing, an Option's exercise price may also be
paid pursuant to a "cashless" exercise/sale procedure involving a simultaneous
sale by a broker, in which case the exercise date shall be the trade date,
provided that proceeds of such sale in full payment of the Option Price are
received by O'Gara on such date.
ARTICLE VIII
INCENTIVE STOCK OPTIONS AND NONQUALIFIED STOCK OPTIONS
8.1 Any option designated as an Incentive Stock Option will be
subject to the general provisions applicable to all Options granted under the
Plan. In addition, an Incentive Stock Option shall be subject to the following
specific provisions:
A. No Incentive Stock Option may be exercised after
the expiration of ten years from the Effective Date of Grant.
B. At the time the Incentive Stock Option is granted,
if the Eligible Employee owns, directly or indirectly, stock
representing more than 10% of the total combined voting power
of all classes of stock of the Company then:
(i) The Option Price must equal at least
110% of the Fair Market Value on the Effective Date
of Grant; and
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<PAGE> 6
(ii) The term of the Option shall not be
greater than five years from the Effective Date of
Grant.
C. The aggregate Fair Market Value (determined as of
the Effective Date of Grant) of the Shares with respect to
which Incentive Stock Options are exercisable for the first
time by any holder during any calendar year (under all plans
of the Company) shall not exceed $100,000.
8.2 If any Option is not granted, exercised or held pursuant
to the provisions of Code Section 422, it will be considered to be a
Nonqualified Stock Option to the extent that any or all of the grant is in
conflict with those provisions.
ARTICLE IX
TRANSFERABILITY OF OPTIONS
9.1 During the lifetime of an Eligible Employee to whom an
Option has been granted, such Option is non-assignable and non-transferable and
may be exercised only by such individual or that individual's legal
representative or guardian, except that a Nonqualified Stock Option may be
transferred (A) pursuant to a "domestic relations order" as defined in Section
414(p)(1)(B) of the Code or (B) under such other circumstances and in accordance
with such other terms and conditions as may be established by the Board. In the
event of the death of an Eligible Employee to whom an Option has been granted,
the Option shall be transferable pursuant to the holder's Will or by the laws of
descent and distribution and may thereafter be exercised by the transferee(s) as
provided in Section 10.1(C).
ARTICLE X
TERMINATION OF OPTIONS
10.1 Unless earlier terminated pursuant to Article XIII, an
Option granted to an Eligible Employee will terminate as follows:
A. During the period of the Eligible Employee's
continuous employment with, or service as a director of, the
Company, the Option will terminate upon the earlier of the
date on which it has been fully exercised, it expires by its
terms or it is terminated by the mutual agreement of the
Company and the Eligible Employee.
B. Upon termination of the Eligible Employee's
employment with, or service as a director of, the Company for
any reason any unexercisable Option shall immediately
terminate. Except as provided in Section 10.1(C), any Option
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<PAGE> 7
which is exercisable on the date of termination of employment,
or service as a director, will terminate upon the earlier of
its full exercise, the expiration of the Option by its terms
or the end of the three-month period following the date of
termination. For purposes of the Plan, a leave of absence
approved by the Company shall not be deemed to be termination
of employment.
C. If an Eligible Employee to whom an Option was
granted dies or becomes subject to a Disability while employed
by, or serving as a director of, the Company or within three
months of termination of employment or service as a director,
for any reason, the Option may be exercised at any time within
one year after the date of death or the commencement of
Disability, to the extent that the Eligible Employee shall
have been entitled to exercise it at the time of death or the
commencement of Disability, by the Eligible Employee or the
Eligible Employee's legal representative or guardian or by the
representative(s) of the Eligible Employee's estate or the
person(s) to whom the Option may have been transferred by Will
or by the laws of descent and distribution.
10.2 The provisions of Section 10.1 above shall apply
irrespective of whether an Option has been transferred to a person or entity
other than the Eligible Employee to whom the Option was granted.
10.3 The Board, at its discretion, may extend the periods for
Option exercise set forth in this Article X.
ARTICLE XI
ADJUSTMENTS TO SHARES AND OPTION PRICE
11.1 The Board shall make appropriate adjustments in the
number of Shares available for issuance under the Plan, the number of Shares
subject to outstanding Options and the Option Price of optioned Shares in order
to give effect to changes in the Shares as a result of any merger,
consolidation, recapitalization, reclassification, combination, stock dividend,
stock split, or other similar event. The determination as to the method and
extent of such adjustments shall be within the sole discretion of the Board.
ARTICLE XII
AMENDMENT OR TERMINATION OF PLAN
12.1 The Board may at any time amend, suspend or terminate the
Plan; provided, however, that shareholder approval shall be required for any
amendment if such
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<PAGE> 8
approval is required pursuant to the Code or the Exchange Act, or any rule or
regulation thereunder, as such may be in effect and be interpreted from time to
time.
12.2 No amendment to the Plan shall alter or impair any Option
granted under the Plan without the consent of the holder thereof.
ARTICLE XIII
CERTAIN EVENTS
13.1 In the event O'Gara shall consolidate with, merge into,
or transfer all or substantially all of its assets to another corporation or
corporations (a "successor corporation"), such successor corporation may
obligate itself to continue this Plan and to assume all obligations under the
Plan. In the event that such successor corporation does not obligate itself to
continue this Plan as above provided, the Plan shall terminate effective upon
such consolidation, merger or transfer, and, except as provided in Section 13.4,
any Option previously granted hereunder shall terminate. If practical, O'Gara
shall give each holder of an Option twenty (20) days prior notice of any
possible transaction which might terminate this Plan and the Options previously
granted hereunder.
13.2 In the event any person, by any means of purchase or
acquisition, becomes the "beneficial owner" (as defined in Exchange Act Rule
13d-3 as in effect on ___________, 1996) of more than 50% of the outstanding
Shares of O'Gara, or commences a tender offer pursuant to Exchange Act
Regulation 14D (as in effect on ___________, 1996) which, if successful, would
result in such person becoming the beneficial owner of more than 50% of such
Shares, then all Options which are outstanding at the time of such event shall
immediately become exercisable in full.
13.3 In the event of the execution of an agreement of
reorganization, merger or consolidation of O'Gara with one or more corporations
as a result of which O'Gara is not to be the surviving corporation (whether or
not O'Gara shall be dissolved or liquidated) or the execution of an agreement of
sale or transfer of all or substantially all of the assets of O'Gara, then all
Options which are outstanding at the time of such event shall immediately become
exercisable in full.
13.4 In the event of any of the transactions referred to in
Section 13.3 hereof, any holder of one or more Options who is subject to the
reporting requirements of Section 16(a) of the Exchange Act with respect to
O'Gara shall be entitled to tender such Options to the Company and to receive
from the Company a payment of cash equal to the difference between the aggregate
"Fair Value" of Shares subject to the holder's Options which are outstanding and
not exercised immediately prior to the time of consummation of the transaction
and the aggregate Option Price of such Shares. For this purpose, "Fair Value"
shall mean the cash value per Share to be paid to shareholders pursuant to such
agreement, or if cash value is not to be paid, the highest Fair Market Value of
a Share during the 60-day period immediately preceding the date of the
consummation of the transaction. The foregoing payment under this Section 13.4
shall be made in lieu of and in full discharge of any and all obligations of the
Company in respect of all subject Options of the holder.
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<PAGE> 9
13.5 The grant of Options under the Plan shall in no way
affect the right of O'Gara to adjust, reclassify, reorganize or otherwise change
its capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
13.6 Notwithstanding the foregoing, in the event the amounts
deemed payable under this Article XIII when added to all other payments to the
holder of an Option by the Company, would, if made, constitute Excess Parachute
Payments within the meaning of Sections 280G and 4999 of the Code, the amounts
deemed payable by the Company under this Article shall be reduced by the amount
deemed necessary to cause the holder to receive $1,000.00 less than three times
the holder's Base Amount (as that term is defined in Code Section 280G) from all
such payments to the holder from the Company. In the event the amount of the
payments exceeds the amount subsequently determined to have been due, the excess
benefits over three times the Base Amount shall constitute a loan by the Company
to the holder, payable on demand by the Company, with interest at a rate equal
to 120% of the applicable federal rate determined under Section 1274 of the
Code, compounded semi-annually.
ARTICLE XIV
EFFECTIVE DATE
14.1 This Plan shall become effective on _____________, 1996.
If not approved and adopted by the shareholders of O'Gara within twelve months
after such date, all Incentive Stock Options previously granted hereunder shall
be deemed to be Nonqualified Stock Options. No Option shall be granted pursuant
to this Plan subsequent to ___________, 2006 or subsequent to any earlier date
as of which this Plan is terminated.
ARTICLE XV
MISCELLANEOUS
15.1 Nothing contained in this Plan shall constitute the
granting of an Option. Each Option shall be represented by a written Option
agreement executed by both the Eligible Employee and O'Gara.
15.2 Certificates for Shares purchased through exercise of
Options will be issued in regular course after exercise of the Option and
payment therefor as called for by the terms of the Option. No person holding an
Option or entitled to exercise an Option granted under this Plan shall have any
rights or privileges of a shareholder of O'Gara with respect to any Shares
issuable upon exercise of such Option until certificates representing such
Shares shall have been issued and delivered. No Option may be transferred, and
no Option shall be exercisable or Shares issued and delivered upon exercise of
an Option, unless and until O'Gara has complied with any and all applicable
federal and state securities laws, listing requirements of any market or
national securities exchange on which O'Gara's Shares may then be traded and
other requirements of law. Any certificate
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<PAGE> 10
representing Shares acquired upon exercise of an Option may bear such legends as
the Company deems advisable to assure compliance with all applicable laws and
regulations.
15.3 Nothing contained in this Plan or in any Option granted
pursuant to it shall confer upon any person any right to continue in the employ
of or as a director of the Company or to interfere in any way with the right of
the Company to terminate a person's employment or status as a director at any
time. So long as a holder of an Option shall continue to be an employee of the
Company, the Option shall not be affected by any change of the employee's duties
or position.
15.4 This Plan shall be construed and administered in
accordance with and governed by the laws of the State of Ohio.
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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement is made and entered into as of this
23rd day of August, 1996, by and between O'Gara-Hess & Eisenhardt Armoring
Company, a Delaware corporation (the "Company"), and Richard L. Curotto (the
"Executive").
WHEREAS, the Executive and the Company desire to embody in
this Agreement the terms and conditions of Executive's employment by the
Company;
NOW, THEREFORE, in consideration of the premises and mutual
promises contained in this Agreement, including the revised compensation paid to
executive, the parties hereby agree:
ARTICLE I
EMPLOYMENT, DUTIES AND RESPONSIBILITIES
---------------------------------------
1.01. EMPLOYMENT. The Company shall employ Executive as Vice
President World Wide Product Development. Executive hereby accepts such
employment. Executive agrees to devote his full business time and best efforts
to promote the interests of the Company.
1.02. DUTIES AND RESPONSIBILITIES. Executive shall have such
duties and responsibilities as are consistent with his position and shall
perform such services not inconsistent with his position as shall from time to
time be assigned to him by the Board of Directors of the Company, the Chief
Executive Officer of the Company, or any other officer of the Company in a
position superior to Executive.
ARTICLE II
TERM
----
2.01. TERM. (a) The term of this Agreement (the "Term") shall
commence on September 1, 1996 and shall continue for a period of two (2) years
until August 31, 1998 unless sooner terminated pursuant to Article V hereof.
Thereafter, the Term shall continue on a monthly basis unless terminated by any
party upon one month's prior written notice.
ARTICLE III
COMPENSATION
------------
3.01. SALARY, BONUSES AND BENEFITS. As compensation and
consideration for the performance by Executive of his obligations under this
Agreement to the Company, Executive shall be entitled to the compensation and
benefits described in the attached Exhibit A (subject, in each case, to the
provisions of ARTICLE V hereof).
3.02. EXPENSES
(a) The Company will reimburse Executive for reasonable
business- related expenses incurred by him in connection with the performance of
his duties
<PAGE> 2
hereunder during the Term, subject, however, to the Company's policies relating
to business-related expenses as in effect from time to time during the Term.
ARTICLE IV
4.01. EXCLUSIVITY, ETC.
(a) Executive agrees to perform his duties, responsibilities
and obligations hereunder efficiently and to the best of his ability. Executive
agrees that he will devote his entire working time, care and attention and best
efforts to such duties, responsibilities and obligations with the Company
throughout the Term. Executive also agrees that he will not engage in any other
business activities, pursued for gain, profit or other pecuniary advantage that
are competitive with the activities of the Company, except as permitted in
Section 4.02 below. Executive agrees that all of his activities as an employee
of the Company shall be in conformity with all policies, rules and regulations
and directions of the Company not inconsistent with this Agreement.
4.02. OTHER BUSINESS VENTURES; NONCOMPETITION.
(a) The term "Confidential Information", as employed in this
Agreement, means (a) any object, material, device, substance, data, report,
record, forecast, interpretation or information, whether written or oral, not in
the public domain and relating to or reflecting any product, design, process,
procedure, formula, research, idea, invention, discovery, improvement,
equipment, scientific or technical information, method of production, business
plan, financial information, listing of names, addresses or telephone numbers,
trade secret and/or know how, and all matters pertaining thereto, of the Company
whether or not contained in any written document, which are or have been
directly or indirectly communicated to, acquired by, or learned by the Executive
as a result of his relationship (whether as an employee or otherwise) with the
Company and (b) any analysis, compilation, note, study, sample, drawing, sketch,
computer program, computer file or other document, whether prepared by or under
the direction of the Company, the Executive or others, and all copies,
facsimiles, replicas, photographs, and reproductions thereof, which contain,
relate to, or reflect any of the aforementioned items.
(b) The Executive shall not, directly or indirectly, either
disclose any Confidential Information, except to the extent required in the
performance of his duties as an employee of the Company and then only at the
direction of the Company, or use any Confidential Information for the benefit of
himself or any person, firm, corporation, or association other than Company,
either during the term of his employment by the Company or after the termination
of such employment. Nothing contained in this Agreement is deemed to conflict
with Ohio Revised Code sections 1333.51 or 1333.81.
(c) All samples, drawings, sketches, documents and written
information of any kind reflecting any of the Confidential Information or
relating to the Company's business or products which come into the possession of
the Executive shall remain the sole property of the Company, and shall not be
copied, photocopied, reprinted or otherwise reproduced or disseminated by the
Executive except in the performance of his duties as an employee of the Company
and then only at the direction of the Company. Upon the earlier of the Company's
request therefor or the termination of the Executive's employment by the
Company, the Executive shall return all such samples, drawings,
- 2 -
<PAGE> 3
sketches, documents and written information, and all copies, facsimiles,
replicas, photocopies, and reproductions of them, to the Company.
(d) The Executive hereby covenants and agrees to refrain,
during his employment by the Company and for a period of two (2) years after the
date of termination of the Executive's employment for cause or if the Executive
terminates employment on his own volition, from directly or indirectly owning
any interest in or engaging in or performing any services for any person, firm
or corporation that directly or indirectly engages in any business which
competes with any aspect of the business of the Company, wherever located,
either as an individual on his own behalf, or as a partner, employee or agent
for any person or partnership, or as an employee, officer, agent, director or
shareholder of a corporation. The Executive will not at any time during the
period of the Executive's employment by the Company and for a period of two (2)
years thereafter induce or assist others to induce or attempt to induce, in any
manner, directly or indirectly, any employee, agent, representative, customer or
any other person or concern dealing with or in any way associated with the
Company to terminate or to modify in any other fashion to the detriment of the
Company such association with the Company. The Executive represents that his
experience and capabilities are such that the provisions of this paragraph will
not prevent him from earning a livelihood.
(e) The parties hereto agree that the Executive's agreements
contained in paragraph (b) through (d) of this Article relate to matters of
unique character and peculiar value impossible of replacement, that breach of
such agreements by the Executive will cause the Company great and irreparable
injury therefor, that the remedy at law for any breach of the agreements
contained in (b) through (d) will be inadequate and that the Company, in
addition to any other relief available to it, shall be entitled to temporary
restraining orders and temporary and permanent injunctive relief or other
equitable relief without the necessity of proving actual damage so as to prevent
a breach of any of the agreements contained in (b) through (d) of this Article
and to secure the enforcement thereof.
ARTICLE V
TERMINATION
-----------
5.01. TERMINATION BY THE COMPANY. The Company shall have the
right to terminate the Executive's employment at any time, with or without
"Cause." For purposes of this Agreement, "Cause" shall mean (i) substantial
failure by the Executive to perform his duties as described in Article I of this
Agreement, (ii) a breach by the Executive of any of the other terms and
conditions of this Agreement, (iii) conduct grossly insubordinate or disloyal to
the Company, or (iv) pleading no contest or guilty to a felony charge or being
convicted of a felony.
5.02. DEATH. In the event Executive dies during the Term, this
Agreement shall automatically terminate, such termination to be effective on the
date of Executive's death.
5.03. DISABILITY. In the event that Executive shall suffer a
disability which shall have prevented him from performing satisfactorily his
obligations hereunder for a period of at least 90 consecutive days, or 180
non-consecutive days within any 365 day period, the Company shall have the right
to terminate Executive's employment, such
- 3 -
<PAGE> 4
termination to be effective upon the giving of notice thereof to Executive in
accordance with Section 6.03 hereof.
5.04. EFFECT OF TERMINATION. (a) In the event of termination
of Executive's employment for any reason, the Company shall pay to executive (or
his beneficiary in the event of his death) any base salary or other compensation
in accordance with the normal pay practices of the Company upon a termination of
employees for similar reasons.
(b) In the event of termination of Executive's employment (i)
by the Company for Cause, (ii) by Executive for any reason, (iii) because of
Executive's death, or (iv) pursuant to Section 5.03, because of Executive's
disability, neither the Executive nor any beneficiary of Executive shall be
entitled to any further compensation other than the amounts described in Section
5.04(a) hereof.
(c) In the event of termination of Executive's employment by
the Company other than for Cause, the Company shall pay Executive, in addition
to the amounts described in Section 5.04(a) hereof, an amount equal to the value
of the continued payment of Executive's base salary for the remainder of the
Term. Such amount shall be payable, at the discretion of the Company, either (i)
in a lump sum or (ii) in equal monthly installments.
ARTICLE VI
MISCELLANEOUS
-------------
6.01. MITIGATION: OFFSET. In the event that an amount becomes
payable to Executive pursuant to Section 5.04(c) above, such amount shall be
reduced, on a dollar-for-dollar basis, by (i) any outstanding amounts owed by
Executive to the Company and (ii) the amount of any compensation for services
earned by Executive during the remainder of the Term, from any source, whether
paid currently or deferred. In such event, Executive shall cooperate with the
Company and shall provide such information to the Company as it may reasonably
require.
6.02. BENEFIT OF AGREEMENT; ASSIGNMENT; BENEFICIARY. (a) This
Agreement shall inure to the benefit of and be binding upon the Company and
their successors and assigns (but only to the extent the Agreement relates to
such entity), including, without limitation, any corporation or person which may
acquire all or substantially all of the Company's assets or business, or with or
into which the Company may be consolidated or merged. This Agreement shall also
inure to the benefit of, and be enforceable by, the Executive and his personal
or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amount would still be payable to the Executive hereunder if he had continued to
live, all such amounts shall be paid in accordance with the terms of this
Agreement to the Executive's beneficiary, devisee, legatee or other designee, or
if there is no such designee, to the Executive's estate.
(b) The Company shall require any successor (whether director
or indirect, by operation of law, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
- 4 -
<PAGE> 5
6.03. NOTICES. Any notice required or permitted hereunder
shall be in writing and shall be sufficiently given if personally delivered or
if sent by registered or certified mail, postage prepaid, with return receipt
requested, addressed: (a) in the case of the Company to Bill O'Gara; and (b) in
the case of Executive, to Executive's last known address as reflected in the
Company's records, or to such other address as Executive shall designate by
written notice to the Company. Any notice given hereunder shall be deemed to
have been given at the time of receipt thereof by the person to whom such notice
is given if personally delivered or at the time of mailing if sent by registered
or certified mail.
6.04. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement of the parties hereto with respect to the terms and conditions
of Executive's employment during the Term and supersedes any and all prior
agreements and understandings, whether written or oral, between the parties
hereto with respect to compensation due for services rendered hereunder. This
Agreement may not be changed or modified except by an instrument in writing
signed by both of the parties hereto.
6.05. WAIVER. The waiver of either party of a breach of any
provision of this Agreement shall not operate or be construed as a continuing
waiver or as a consent to or waiver of any subsequent breach hereof.
6.06. HEADINGS. The Article and Section headings herein are
for convenience of reference only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions hereof.
6.07. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Ohio without reference to the principles of conflict of laws.
6.08. AGREEMENT TO TAKE ACTIONS. Each party hereto shall
execute and deliver such documents, certificates, agreements and other
instruments, and shall take such other actions, as may be reasonably necessary
or desirable in order to perform his or its obligations under this Agreement or
to effectuate the purposes hereof.
6.09. VENUE AND JURISDICTION. Executive shall bring any legal
action against the Company in either Butler County Court of Common Pleas, State
of Ohio, U.S.A. or in United States District Court, Southern District of Ohio
(Western Division). Executive will not pursue legal action against the Company
in any other judicial venue. Executive submits to the jurisdiction of these
courts and waives any claim of improper venue, inconvenient forum or forum non
conveniens. Notwithstanding the foregoing, the Company may, at its sole
election, pursue legal action against Executive at any location it deems
appropriate.
6.10. SURVIVORSHIP. The respective rights and obligations of
the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
6.11. VALIDITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision or provisions of this Agreement, which
shall remain in full force and effect. If any provision of this Agreement is
held to be invalid, void or unenforceable, any court so
- 5 -
<PAGE> 6
holding shall substitute a valid, enforceable provision that preserves, to the
maximum lawful extent, the terms and intent of this Agreement.
6.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Agreement effective as of the date first written above.
O'GARA-HESS & EISENHARDT
ARMORING COMPANY
By: /S/WILFRED T. O'GARA
-----------------------
Name:
Title:
/S/RICHARD L. CUROTTO
--------------------------
Executive
- 6 -
<PAGE> 7
EXHIBIT A TO EMPLOYMENT AGREEMENT
Executive shall receive as compensation for his performance under the
attached Employment Agreement the following:
(a) SALARY. The Company shall pay Executive a base salary during the
Term, payable in accordance with the normal payment procedures of the Company
and subject to such withholdings and other normal employee deductions as may be
required by law, at the annual rate of $110,000.00. The Board of Directors of
the Company shall review such compensation not less fequently than annually
during the Term.
(b) ANNUAL BONUS. In addition to base salary, Executive shall earn
incentive compensation ("incentive compensation") and the Company shall pay
each fiscal year, or any fractional period thereof during the term, incentive
compensation in accordance with the plan approved by the Compensation Committee
and the Board of Directors each fiscal year.
(c) BENEFITS. Executive shall participate during the Term in such
pension, life insurance, health, disability and major medical insurance plans,
and in such other employee benefit plans and programs, for the benefit of the
employees of the Company, as may be maintained from time to time during the
Term, in the Company's discretion, in each case to the extent and in the manner
available to other officers of the Company and subject to the terms and
provisions of such plans and programs.
(d) VACATION. Executive shall be entitled to a paid vacation of
at least three (3) weeks per annum, in accordance with Company policy (but not
necessarily consecutive vacation weeks) during the Term.
(e) STOCK AWARDS. Executive shall be entitled to receive up to fifty
percent (50%) of any incentive compensation in the form of shares of stock of
The O'Gara Company, an Ohio corporation ("TOC"). In addition, Executive shall
be eligible for grants of stock options in TOC, which grants shall be made at
the discretion of the Compensation Committee of the Board of Directors of TOC.
O'GARA-HESS & EISENHARDT
ARMORING COMPANY
By: /s/ Wilfred T. O'Gara
--------------------------
Name:
Title:
/s/ Richard L. Curotto
--------------------------
Executive
<PAGE> 1
EXHIBIT 10.9
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement is made and entered into as of this
23rd day of August, 1996, by and between The O'Gara Company, an Ohio corporation
(the "Company"), and Thomas M. O'Gara (the "Executive").
WHEREAS, the Executive and the Company desire to embody in
this Agreement the terms and conditions of Executive's employment by the
Company;
NOW, THEREFORE, in consideration of the premises and mutual
promises contained in this Agreement, including the revised compensation paid to
executive, the parties hereby agree:
ARTICLE I
EMPLOYMENT, DUTIES AND RESPONSIBILITIES
---------------------------------------
1.01. EMPLOYMENT. The Company shall employ Executive as
Chairman of the Board. Executive hereby accepts such employment. Executive
agrees to devote his full business time and best efforts to promote the
interests of the Company.
1.02. DUTIES AND RESPONSIBILITIES. Executive shall have such
duties and responsibilities as are consistent with his position and shall
perform such services not inconsistent with his position as shall from time to
time be assigned to him by the Board of Directors of the Company, the Chief
Executive Officer of the Company, or any other officer of the Company in a
position superior to Executive.
ARTICLE II
TERM
----
2.01. TERM. (a) The term of this Agreement (the "Term") shall
commence on September 1, 1996 and shall continue for a period of two (2) years
until August 31, 1998 unless sooner terminated pursuant to Article V hereof.
Thereafter, the Term shall continue on a monthly basis unless terminated by any
party upon one month's prior written notice.
ARTICLE III
COMPENSATION
------------
3.01. SALARY, BONUSES AND BENEFITS. As compensation and
consideration for the performance by Executive of his obligations under this
Agreement to the Company, Executive shall be entitled to the compensation and
benefits described in the attached Exhibit A (subject, in each case, to the
provisions of ARTICLE V hereof).
<PAGE> 2
3.02. EXPENSES
(a) The Company will reimburse Executive for reasonable
business- related expenses incurred by him in connection with the performance of
his duties hereunder during the Term, subject, however, to the Company's
policies relating to business-related expenses as in effect from time to time
during the Term.
ARTICLE IV
4.01. EXCLUSIVITY, ETC.
(a) Executive agrees to perform his duties, responsibilities
and obligations hereunder efficiently and to the best of his ability. Executive
agrees that he will devote his entire working time, care and attention and best
efforts to such duties, responsibilities and obligations with the Company
throughout the Term. Executive also agrees that he will not engage in any other
business activities, pursued for gain, profit or other pecuniary advantage that
are competitive with the activities of the Company, except as permitted in
Section 4.02 below. Executive agrees that all of his activities as an employee
of the Company shall be in conformity with all policies, rules and regulations
and directions of the Company not inconsistent with this Agreement.
4.02. OTHER BUSINESS VENTURES; NONCOMPETITION.
(a) The term "Confidential Information", as employed in this
Agreement, means (a) any object, material, device, substance, data, report,
record, forecast, interpretation or information, whether written or oral, not in
the public domain and relating to or reflecting any product, design, process,
procedure, formula, research, idea, invention, discovery, improvement,
equipment, scientific or technical information, method of production, business
plan, financial information, listing of names, addresses or telephone numbers,
trade secret and/or know how, and all matters pertaining thereto, of the Company
whether or not contained in any written document, which are or have been
directly or indirectly communicated to, acquired by, or learned by the Executive
as a result of his relationship (whether as an employee or otherwise) with the
Company and (b) any analysis, compilation, note, study, sample, drawing, sketch,
computer program, computer file or other document, whether prepared by or under
the direction of the Company, the Executive or others, and all copies,
facsimiles, replicas, photographs, and reproductions thereof, which contain,
relate to, or reflect any of the aforementioned items.
(b) The Executive shall not, directly or indirectly, either
disclose any Confidential Information, except to the extent required in the
performance of his duties as an employee of the Company and then only at the
direction of the Company, or use any Confidential Information for the benefit of
himself or any person, firm, corporation, or association other than Company,
either during the term of his employment by the Company or after the termination
of such employment. Nothing contained in this Agreement is deemed to conflict
with Ohio Revised Code ss.ss. 1333.51 or 1333.81.
(c) All samples, drawings, sketches, documents and written
information of any kind reflecting any of the Confidential Information or
relating to the Company's business or
- 2 -
<PAGE> 3
products which come into the possession of the Executive shall remain the sole
property of the Company, and shall not be copied, photocopied, reprinted or
otherwise reproduced or disseminated by the Executive except in the performance
of his duties as an employee of the Company and then only at the direction of
the Company. Upon the earlier of the Company's request therefor or the
termination of the Executive's employment by the Company, the Executive shall
return all such samples, drawings, sketches, documents and written information,
and all copies, facsimiles, replicas, photocopies, and reproductions of them, to
the Company.
(d) The Executive hereby covenants and agrees to refrain,
during his employment by the Company and for a period of two (2) years after the
date of termination of the Executive's employment for cause or if the Executive
terminates employment on his own volition, from directly or indirectly owning
any interest in or engaging in or performing any services for any person, firm
or corporation that directly or indirectly engages in any business which
competes with any aspect of the business of the Company, wherever located,
either as an individual on his own behalf, or as a partner, employee or agent
for any person or partnership, or as an employee, officer, agent, director or
shareholder of a corporation. The Executive will not at any time during the
period of the Executive's employment by the Company and for a period of two (2)
years thereafter induce or assist others to induce or attempt to induce, in any
manner, directly or indirectly, any employee, agent, representative, customer or
any other person or concern dealing with or in any way associated with the
Company to terminate or to modify in any other fashion to the detriment of the
Company such association with the Company. The Executive represents that his
experience and capabilities are such that the provisions of this paragraph will
not prevent him from earning a livelihood.
(e) Notwithstanding anything contained herein to the contrary,
Executive shall be able to continue his relationship with O'Gara Protective
Services. However, Executive hereby covenants and agrees that during his
employment with the Company and for a period of two (2) years after the date of
termination of the Executive's employment for any reason, Executive shall refer
all contracts or leads for the sale of armored vehicles to the Company.
(f) The parties hereto agree that the Executive's agreements
contained in paragraph (b) through (e) of this Article relate to matters of
unique character and peculiar value impossible of replacement, that breach of
such agreements by the Executive will cause the Company great and irreparable
injury therefor, that the remedy at law for any breach of the agreements
contained in (b) through (e) will be inadequate and that the Company, in
addition to any other relief available to it, shall be entitled to temporary
restraining orders and temporary and permanent injunctive relief or other
equitable relief without the necessity of proving actual damage so as to prevent
a breach of any of the agreements contained in (b) through (e) of this Article
and to secure the enforcement thereof.
ARTICLE V
TERMINATION
-----------
5.01. TERMINATION BY THE COMPANY. The Company shall have the
right to terminate the Executive's employment at any time, with or without
"Cause." For purposes of this Agreement, "Cause" shall mean (i) substantial
failure by the Executive to perform his duties as
- 3 -
<PAGE> 4
described in Article I of this Agreement, (ii) a breach by the Executive of any
of the other terms and conditions of this Agreement, (iii) conduct grossly
insubordinate or disloyal to the Company, or (iv) pleading no contest or guilty
to a felony charge or being convicted of a felony.
5.02. DEATH. In the event Executive dies during the Term, this
Agreement shall automatically terminate, such termination to be effective on the
date of Executive's death.
5.03. DISABILITY. In the event that Executive shall suffer a
disability which shall have prevented him from performing satisfactorily his
obligations hereunder for a period of at least 90 consecutive days, or 180
non-consecutive days within any 365 day period, the Company shall have the right
to terminate Executive's employment, such termination to be effective upon the
giving of notice thereof to Executive in accordance with Section 6.03 hereof.
5.04. EFFECT OF TERMINATION. (a) In the event of termination
of Executive's employment for any reason, the Company shall pay to executive (or
his beneficiary in the event of his death) any base salary or other compensation
in accordance with the normal pay practices of the Company upon a termination of
employees for similar reasons.
(b) In the event of termination of Executive's employment (i)
by the Company for Cause, (ii) by Executive for any reason, (iii) because of
Executive's death, or (iv) pursuant to Section 5.03, because of Executive's
disability, neither the Executive nor any beneficiary of Executive shall be
entitled to any further compensation other than the amounts described in Section
5.04(a) hereof.
(c) In the event of termination of Executive's employment by
the Company other than for Cause, the Company shall pay Executive, in addition
to the amounts described in Section 5.04(a) hereof, an amount equal to the value
of the continued payment of Executive's base salary for the remainder of the
Term. Such amount shall be payable, at the discretion of the Company, either (i)
in a lump sum or (ii) in equal monthly installments.
ARTICLE VI
MISCELLANEOUS
-------------
6.01. MITIGATION: OFFSET. In the event that an amount becomes
payable to Executive pursuant to Section 5.04(c) above, such amount shall be
reduced, on a dollar-for-dollar basis, by (i) any outstanding amounts owed by
Executive to the Company and (ii) the amount of any compensation for services
earned by Executive during the remainder of the Term, from any source, whether
paid currently or deferred. In such event, Executive shall cooperate with the
Company and shall provide such information to the Company as it may reasonably
require.
6.02. BENEFIT OF AGREEMENT; ASSIGNMENT; BENEFICIARY. (a) This
Agreement shall inure to the benefit of and be binding upon the Company and
their successors and assigns (but only to the extent the Agreement relates to
such entity), including, without limitation, any corporation or person which may
acquire all or substantially all of the Company's assets or business, or with or
into which the Company may be consolidated or merged. This Agreement shall also
inure to the benefit of, and be enforceable by, the Executive and his personal
or legal
- 4 -
<PAGE> 5
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount would still
be payable to the Executive hereunder if he had continued to live, all such
amounts shall be paid in accordance with the terms of this Agreement to the
Executive's beneficiary, devisee, legatee or other designee, or if there is no
such designee, to the Executive's estate.
(b) The Company shall require any successor (whether director
or indirect, by operation of law, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
6.03. NOTICES. Any notice required or permitted hereunder
shall be in writing and shall be sufficiently given if personally delivered or
if sent by registered or certified mail, postage prepaid, with return receipt
requested, addressed: (a) in the case of the Company to Bill O'Gara; and (b) in
the case of Executive, to Executive's last known address as reflected in the
Company's records, or to such other address as Executive shall designate by
written notice to the Company. Any notice given hereunder shall be deemed to
have been given at the time of receipt thereof by the person to whom such notice
is given if personally delivered or at the time of mailing if sent by registered
or certified mail.
6.04. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement of the parties hereto with respect to the terms and conditions
of Executive's employment during the Term and supersedes any and all prior
agreements and understandings, whether written or oral, between the parties
hereto with respect to compensation due for services rendered hereunder. This
Agreement may not be changed or modified except by an instrument in writing
signed by both of the parties hereto.
6.05. WAIVER. The waiver of either party of a breach of any
provision of this Agreement shall not operate or be construed as a continuing
waiver or as a consent to or waiver of any subsequent breach hereof.
6.06. HEADINGS. The Article and Section headings herein are
for convenience of reference only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions hereof.
6.07. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Ohio without reference to the principles of conflict of laws.
6.08. AGREEMENT TO TAKE ACTIONS. Each party hereto shall
execute and deliver such documents, certificates, agreements and other
instruments, and shall take such other actions, as may be reasonably necessary
or desirable in order to perform his or its obligations under this Agreement or
to effectuate the purposes hereof.
6.09. VENUE AND JURISDICTION. Executive shall bring any legal
action against the Company in either Butler County Court of Common Pleas, State
of Ohio, U.S.A. or in United States District Court, Southern District of Ohio
(Western Division). Executive will not pursue
- 5 -
<PAGE> 6
legal action against the Company in any other judicial venue. Executive submits
to the jurisdiction of these courts and waives any claim of improper venue,
inconvenient forum or forum non conveniens. Notwithstanding the foregoing, the
Company may, at its sole election, pursue legal action against Executive at any
location it deems appropriate.
6.10. SURVIVORSHIP. The respective rights and obligations of
the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
6.11. VALIDITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision or provisions of this Agreement, which
shall remain in full force and effect. If any provision of this Agreement is
held to be invalid, void or unenforceable, any court so holding shall substitute
a valid, enforceable provision that preserves, to the maximum lawful extent, the
terms and intent of this Agreement.
6.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Agreement effective as of the date first written above.
THE O'GARA COMPANY
By: /s/ Wilfred T. O'Gara
------------------------------
Name:
Title:
/s/ Thomas M. O'Gara
----------------------------------
Executive
- 6 -
<PAGE> 7
EXHIBIT A TO EMPLOYMENT AGREEMENT
Executive shall receive as compensation for his performance under the
attached Employment Agreement the following:
(a) SALARY. The Company shall pay Executive a base salary during the
Term, payable in accordance with the normal payment procedures of the Company
and subject to such withholdings and other normal employee deductions as may be
required by law, at the annual rate of $250,000.00. The Board of Directors of
the Company shall review such compensation not less fequently than annually
during the Term.
(b) ANNUAL BONUS. In addition to base salary, Executive shall earn
incentive compensation ("incentive compensation") and the Company shall pay
each fiscal year, or any fractional period thereof during the term, incentive
compensation in accordance with the plan approved by the Compensation Committee
and the Board of Directors each fiscal year.
(c) BENEFITS. Executive shall participate during the Term in such
pension, life insurance, health, disability and major medical insurance plans,
and in such other employee benefit plans and programs, for the benefit of the
employees of the Company, as may be maintained from time to time during the
Term, in the Company's discretion, in each case to the extent and in the manner
available to other officers of the Company and subject to the terms and
provisions of such plans and programs.
(d) VACATION. Executive shall be entitled to a paid vacation of
at least three (3) weeks per annum, in accordance with Company policy (but not
necessarily consecutive vacation weeks) during the Term.
(e) STOCK AWARDS. Executive shall be entitled to receive up to fifty
percent (50%) of any incentive compensation in the form of shares of stock of
The O'Gara Company, an Ohio corporation ("TOC"). In addition, Executive shall
be eligible for grants of stock options in TOC, which grants shall be made at
the discretion of the Compensation Committee of the Board of Directors of TOC.
THE O'GARA COMPANY
By: /s/ Wilfred T. O'Gara
--------------------------
Name:
Title:
/s/ Thomas M. O'Gara
-----------------------------
Executive
<PAGE> 1
EXHIBIT 10.10
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement is made and entered into as of this
23rd day of August, 1996, by and between The O'Gara Company, an Ohio corporation
(the "Company"), and Wilfred T. O'Gara (the "Executive").
WHEREAS, the Executive and the Company desire to embody in
this Agreement the terms and conditions of Executive's employment by the
Company;
NOW, THEREFORE, in consideration of the premises and mutual
promises contained in this Agreement, including the revised compensation paid to
executive, the parties hereby agree:
ARTICLE I
EMPLOYMENT, DUTIES AND RESPONSIBILITIES
---------------------------------------
1.01. EMPLOYMENT. The Company shall employ Executive as Chief
Executive Officer. Executive hereby accepts such employment. Executive agrees to
devote his full business time and best efforts to promote the interests of the
Company.
1.02. DUTIES AND RESPONSIBILITIES. Executive shall have such
duties and responsibilities as are consistent with his position and shall
perform such services not inconsistent with his position as shall from time to
time be assigned to him by the Board of Directors of the Company, the Chief
Executive Officer of the Company, or any other officer of the Company in a
position superior to Executive.
ARTICLE II
TERM
----
2.01. TERM. (a) The term of this Agreement (the "Term") shall
commence on September 1, 1996 and shall continue for a period of two (2) years
until August 31, 1998 unless sooner terminated pursuant to Article V hereof.
Thereafter, the Term shall continue on a monthly basis unless terminated by any
party upon one month's prior written notice.
ARTICLE III
COMPENSATION
------------
3.01. SALARY, BONUSES AND BENEFITS. As compensation and
consideration for the performance by Executive of his obligations under this
Agreement to the Company, Executive shall be entitled to the compensation and
benefits described in the attached Exhibit A (subject, in each case, to the
provisions of ARTICLE V hereof).
3.02. EXPENSES
(a) The Company will reimburse Executive for reasonable
business- related expenses incurred by him in connection with the performance of
his duties hereunder during the Term, subject, however, to the Company's
policies relating to business-related expenses as in effect from time to time
during the Term.
<PAGE> 2
ARTICLE IV
4.01. EXCLUSIVITY, ETC.
(a) Executive agrees to perform his duties, responsibilities
and obligations hereunder efficiently and to the best of his ability. Executive
agrees that he will devote his entire working time, care and attention and best
efforts to such duties, responsibilities and obligations with the Company
throughout the Term. Executive also agrees that he will not engage in any other
business activities, pursued for gain, profit or other pecuniary advantage that
are competitive with the activities of the Company, except as permitted in
Section 4.02 below. Executive agrees that all of his activities as an employee
of the Company shall be in conformity with all policies, rules and regulations
and directions of the Company not inconsistent with this Agreement.
4.02. OTHER BUSINESS VENTURES; NONCOMPETITION.
(a) The term "Confidential Information", as employed in this
Agreement, means (a) any object, material, device, substance, data, report,
record, forecast, interpretation or information, whether written or oral, not in
the public domain and relating to or reflecting any product, design, process,
procedure, formula, research, idea, invention, discovery, improvement,
equipment, scientific or technical information, method of production, business
plan, financial information, listing of names, addresses or telephone numbers,
trade secret and/or know how, and all matters pertaining thereto, of the Company
whether or not contained in any written document, which are or have been
directly or indirectly communicated to, acquired by, or learned by the Executive
as a result of his relationship (whether as an employee or otherwise) with the
Company and (b) any analysis, compilation, note, study, sample, drawing, sketch,
computer program, computer file or other document, whether prepared by or under
the direction of the Company, the Executive or others, and all copies,
facsimiles, replicas, photographs, and reproductions thereof, which contain,
relate to, or reflect any of the aforementioned items.
(b) The Executive shall not, directly or indirectly, either
disclose any Confidential Information, except to the extent required in the
performance of his duties as an employee of the Company and then only at the
direction of the Company, or use any Confidential Information for the benefit of
himself or any person, firm, corporation, or association other than Company,
either during the term of his employment by the Company or after the termination
of such employment. Nothing contained in this Agreement is deemed to conflict
with Ohio Revised Code ss.ss. 1333.51 or 1333.81.
(c) All samples, drawings, sketches, documents and written
information of any kind reflecting any of the Confidential Information or
relating to the Company's business or products which come into the possession of
the Executive shall remain the sole property of the Company, and shall not be
copied, photocopied, reprinted or otherwise reproduced or disseminated by the
Executive except in the performance of his duties as an employee of the Company
and then only at the direction of the Company. Upon the earlier of the Company's
request therefor or the termination of the Executive's employment by the
Company, the Executive shall return all such samples, drawings, sketches,
documents and written information, and all copies, facsimiles, replicas,
photocopies, and reproductions of them, to the Company.
- 2 -
<PAGE> 3
(d) The Executive hereby covenants and agrees to refrain,
during his employment by the Company and for a period of two (2) years after the
date of termination of the Executive's employment for cause or if the Executive
terminates employment on his own volition, from directly or indirectly owning
any interest in or engaging in or performing any services for any person, firm
or corporation that directly or indirectly engages in any business which
competes with any aspect of the business of the Company, wherever located,
either as an individual on his own behalf, or as a partner, employee or agent
for any person or partnership, or as an employee, officer, agent, director or
shareholder of a corporation. The Executive will not at any time during the
period of the Executive's employment by the Company and for a period of two (2)
years thereafter induce or assist others to induce or attempt to induce, in any
manner, directly or indirectly, any employee, agent, representative, customer or
any other person or concern dealing with or in any way associated with the
Company to terminate or to modify in any other fashion to the detriment of the
Company such association with the Company. The Executive represents that his
experience and capabilities are such that the provisions of this paragraph will
not prevent him from earning a livelihood.
(e) Notwithstanding anything contained herein to the contrary,
Executive shall be able to continue his relationship with O'Gara Protective
Services. However, Executive hereby covenants and agrees that during his
employment with the Company and for a period of two (2) years after the date of
termination of the Executive's employment for any reason, Executive shall refer
all contracts or leads for the sale of armored vehicles to the Company.
(f) The parties hereto agree that the Executive's agreements
contained in paragraph (b) through (e) of this Article relate to matters of
unique character and peculiar value impossible of replacement, that breach of
such agreements by the Executive will cause the Company great and irreparable
injury therefor, that the remedy at law for any breach of the agreements
contained in (b) through (e) will be inadequate and that the Company, in
addition to any other relief available to it, shall be entitled to temporary
restraining orders and temporary and permanent injunctive relief or other
equitable relief without the necessity of proving actual damage so as to prevent
a breach of any of the agreements contained in (b) through (e) of this Article
and to secure the enforcement thereof.
ARTICLE V
TERMINATION
-----------
5.01. TERMINATION BY THE COMPANY. The Company shall have the
right to terminate the Executive's employment at any time, with or without
"Cause." For purposes of this Agreement, "Cause" shall mean (i) substantial
failure by the Executive to perform his duties as described in Article I of this
Agreement, (ii) a breach by the Executive of any of the other terms and
conditions of this Agreement, (iii) conduct grossly insubordinate or disloyal to
the Company, or (iv) pleading no contest or guilty to a felony charge or being
convicted of a felony.
5.02. DEATH. In the event Executive dies during the Term, this
Agreement shall automatically terminate, such termination to be effective on the
date of Executive's death.
- 3 -
<PAGE> 4
5.03. DISABILITY. In the event that Executive shall suffer a
disability which shall have prevented him from performing satisfactorily his
obligations hereunder for a period of at least 90 consecutive days, or 180
non-consecutive days within any 365 day period, the Company shall have the right
to terminate Executive's employment, such termination to be effective upon the
giving of notice thereof to Executive in accordance with Section 6.03 hereof.
5.04. EFFECT OF TERMINATION. (a) In the event of termination
of Executive's employment for any reason, the Company shall pay to executive (or
his beneficiary in the event of his death) any base salary or other compensation
in accordance with the normal pay practices of the Company upon a termination of
employees for similar reasons.
(b) In the event of termination of Executive's employment (i)
by the Company for Cause, (ii) by Executive for any reason, (iii) because of
Executive's death, or (iv) pursuant to Section 5.03, because of Executive's
disability, neither the Executive nor any beneficiary of Executive shall be
entitled to any further compensation other than the amounts described in Section
5.04(a) hereof.
(c) In the event of termination of Executive's employment by
the Company other than for Cause, the Company shall pay Executive, in addition
to the amounts described in Section 5.04(a) hereof, an amount equal to the value
of the continued payment of Executive's base salary for the remainder of the
Term. Such amount shall be payable, at the discretion of the Company, either (i)
in a lump sum or (ii) in equal monthly installments.
ARTICLE VI
MISCELLANEOUS
-------------
6.01. MITIGATION: OFFSET. In the event that an amount becomes
payable to Executive pursuant to Section 5.04(c) above, such amount shall be
reduced, on a dollar-for-dollar basis, by (i) any outstanding amounts owed by
Executive to the Company and (ii) the amount of any compensation for services
earned by Executive during the remainder of the Term, from any source, whether
paid currently or deferred. In such event, Executive shall cooperate with the
Company and shall provide such information to the Company as it may reasonably
require.
6.02. BENEFIT OF AGREEMENT; ASSIGNMENT; BENEFICIARY. (a) This
Agreement shall inure to the benefit of and be binding upon the Company and
their successors and assigns (but only to the extent the Agreement relates to
such entity), including, without limitation, any corporation or person which may
acquire all or substantially all of the Company's assets or business, or with or
into which the Company may be consolidated or merged. This Agreement shall also
inure to the benefit of, and be enforceable by, the Executive and his personal
or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amount would still be payable to the Executive hereunder if he had continued to
live, all such amounts shall be paid in accordance with the terms of this
Agreement to the Executive's beneficiary, devisee, legatee or other designee, or
if there is no such designee, to the Executive's estate.
- 4 -
<PAGE> 5
(b) The Company shall require any successor (whether director
or indirect, by operation of law, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
6.03. NOTICES. Any notice required or permitted hereunder
shall be in writing and shall be sufficiently given if personally delivered or
if sent by registered or certified mail, postage prepaid, with return receipt
requested, addressed: (a) in the case of the Company to Bill O'Gara; and (b) in
the case of Executive, to Executive's last known address as reflected in the
Company's records, or to such other address as Executive shall designate by
written notice to the Company. Any notice given hereunder shall be deemed to
have been given at the time of receipt thereof by the person to whom such notice
is given if personally delivered or at the time of mailing if sent by registered
or certified mail.
6.04. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement of the parties hereto with respect to the terms and conditions
of Executive's employment during the Term and supersedes any and all prior
agreements and understandings, whether written or oral, between the parties
hereto with respect to compensation due for services rendered hereunder. This
Agreement may not be changed or modified except by an instrument in writing
signed by both of the parties hereto.
6.05. WAIVER. The waiver of either party of a breach of any
provision of this Agreement shall not operate or be construed as a continuing
waiver or as a consent to or waiver of any subsequent breach hereof.
6.06. HEADINGS. The Article and Section headings herein are
for convenience of reference only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions hereof.
6.07. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Ohio without reference to the principles of conflict of laws.
6.08. AGREEMENT TO TAKE ACTIONS. Each party hereto shall
execute and deliver such documents, certificates, agreements and other
instruments, and shall take such other actions, as may be reasonably necessary
or desirable in order to perform his or its obligations under this Agreement or
to effectuate the purposes hereof.
6.09. VENUE AND JURISDICTION. Executive shall bring any legal
action against the Company in either Butler County Court of Common Pleas, State
of Ohio, U.S.A. or in United States District Court, Southern District of Ohio
(Western Division). Executive will not pursue legal action against the Company
in any other judicial venue. Executive submits to the jurisdiction of these
courts and waives any claim of improper venue, inconvenient forum or forum non
conveniens. Notwithstanding the foregoing, the Company may, at its sole
election, pursue legal action against Executive at any location it deems
appropriate.
6.10. SURVIVORSHIP. The respective rights and obligations of
the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
- 5 -
<PAGE> 6
6.11. VALIDITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision or provisions of this Agreement, which
shall remain in full force and effect. If any provision of this Agreement is
held to be invalid, void or unenforceable, any court so holding shall substitute
a valid, enforceable provision that preserves, to the maximum lawful extent, the
terms and intent of this Agreement.
6.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Agreement effective as of the date first written above.
THE O'GARA COMPANY
By: /S/WILFRED T. O'GARA
-------------------------------
Name: Wilfred T. O'Gara
Title: CEO
/S/WILFRED T. O'GARA
----------------------------------
Executive
- 6 -
<PAGE> 7
EXHIBIT A TO EMPLOYMENT AGREEMENT
Executive shall receive as compensation for his performance
under the attached Employment Agreement the following:
(a) SALARY. The Company shall pay Executive a base salary
during the Term, payable in accordance with the normal payment procedures of the
Company and subject to such withholdings and other normal employee deductions as
may be required by law, at the annual rate of $230,000.00. The Board of
Directors of the Company shall review such compensation not less frequently than
annually during the Term.
(b) ANNUAL BONUS. In addition to base salary, Executive shall
earn incentive compensation ("incentive compensation") and the Company shall pay
each fiscal year, or any fractional period thereof during the term, incentive
compensation in accordance with the plan approved by the Compensation Committee
and the Board of Directors each fiscal year.
(c) BENEFITS. Executive shall participate during the Term in
such pension, life insurance, health, disability and major medical insurance
plans, and in such other employee benefit plans and programs, for the benefit of
the employees of the Company, as may be maintained from time to time during the
Term, in the Company's discretion, in each case to the extent and in the manner
available to other officers of the Company and subject to the terms and
provisions of such plans or programs.
(d) VACATION. Executive shall be entitled to a paid vacation
of at least three (3) weeks per annum, in accordance with Company policy (but
not necessarily consecutive vacation weeks) during the Term.
(e) STOCK AWARDS. Executive shall be entitled to receive up to
fifty percent (50%) of any incentive compensation in the form of shares of stock
of The O'Gara Company, an Ohio corporation ("TOC"). In addition, Executive shall
be eligible for grants of stock options in TOC, which grants shall be made at
the discretion of the Compensation Committee of the Board of Directors of TOC.
THE O'GARA COMPANY
By: /S/WILFRED T. O'GARA
------------------------------
Name: Wilfred T. O'Gara
Title: CEO
/S/WILFRED T. O'GARA
---------------------------------
Executive
<PAGE> 1
EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into as of this
23rd day of August, 1996, by and between The O'Gara Company, an Ohio corporation
(the "Company"), and Nicholas P. Carpinello (the "Executive").
WHEREAS, the Executive and the Company desire to embody in
this Agreement the terms and conditions of Executive's employment by the
Company;
NOW, THEREFORE, in consideration of the premises and mutual
promises contained in this Agreement, including the revised compensation paid to
executive, the parties hereby agree:
ARTICLE I
EMPLOYMENT, DUTIES AND RESPONSIBILITIES
---------------------------------------
1.01. EMPLOYMENT. The Company shall employ Executive as Chief
Financial Officer. Executive hereby accepts such employment. Executive agrees to
devote his full business time and best efforts to promote the interests of the
Company.
1.02. DUTIES AND RESPONSIBILITIES. Executive shall have such
duties and responsibilities as are consistent with his position and shall
perform such services not inconsistent with his position as shall from time to
time be assigned to him by the Board of Directors of the Company, the Chief
Executive Officer of the Company, or any other officer of the Company in a
position superior to Executive.
ARTICLE II
TERM
----
2.01. TERM. (a) The term of this Agreement (the "Term") shall
commence on September 1, 1996 and shall continue for a period of two (2) years
until August 31, 1998 unless sooner terminated pursuant to Article V hereof.
Thereafter, the Term shall continue on a monthly basis unless terminated by any
party upon one month's prior written notice.
ARTICLE III
COMPENSATION
------------
3.01. SALARY, BONUSES AND BENEFITS. As compensation and
consideration for the performance by Executive of his obligations under this
Agreement to the Company, Executive shall be entitled to the compensation and
benefits described in the attached Exhibit A (subject, in each case, to the
provisions of ARTICLE V hereof).
3.02. EXPENSES
(a) The Company will reimburse Executive for reasonable
business- related expenses incurred by him in connection with the performance of
his duties hereunder during the Term, subject, however, to the Company's
policies relating to business-related expenses as in effect from time to time
during the Term.
<PAGE> 2
ARTICLE IV
4.01. EXCLUSIVITY, ETC.
(a) Executive agrees to perform his duties, responsibilities
and obligations hereunder efficiently and to the best of his ability. Executive
agrees that he will devote his entire working time, care and attention and best
efforts to such duties, responsibilities and obligations with the Company
throughout the Term. Executive also agrees that he will not engage in any other
business activities, pursued for gain, profit or other pecuniary advantage that
are competitive with the activities of the Company, except as permitted in
Section 4.02 below. Executive agrees that all of his activities as an employee
of the Company shall be in conformity with all policies, rules and regulations
and directions of the Company not inconsistent with this Agreement.
4.02. OTHER BUSINESS VENTURES; NONCOMPETITION.
(a) The term "Confidential Information", as employed in this
Agreement, means (a) any object, material, device, substance, data, report,
record, forecast, interpretation or information, whether written or oral, not in
the public domain and relating to or reflecting any product, design, process,
procedure, formula, research, idea, invention, discovery, improvement,
equipment, scientific or technical information, method of production, business
plan, financial information, listing of names, addresses or telephone numbers,
trade secret and/or know how, and all matters pertaining thereto, of the Company
whether or not contained in any written document, which are or have been
directly or indirectly communicated to, acquired by, or learned by the Executive
as a result of his relationship (whether as an employee or otherwise) with the
Company and (b) any analysis, compilation, note, study, sample, drawing, sketch,
computer program, computer file or other document, whether prepared by or under
the direction of the Company, the Executive or others, and all copies,
facsimiles, replicas, photographs, and reproductions thereof, which contain,
relate to, or reflect any of the aforementioned items.
(b) The Executive shall not, directly or indirectly, either
disclose any Confidential Information, except to the extent required in the
performance of his duties as an employee of the Company and then only at the
direction of the Company, or use any Confidential Information for the benefit of
himself or any person, firm, corporation, or association other than Company,
either during the term of his employment by the Company or after the termination
of such employment. Nothing contained in this Agreement is deemed to conflict
with Ohio Revised Code sections 1333.51 or 1333.81.
(c) All samples, drawings, sketches, documents and written
information of any kind reflecting any of the Confidential Information or
relating to the Company's business or products which come into the possession of
the Executive shall remain the sole property of the Company, and shall not be
copied, photocopied, reprinted or otherwise reproduced or disseminated by the
Executive except in the performance of his duties as an employee of the Company
and then only at the direction of the Company. Upon the earlier of the Company's
request therefor or the termination of the Executive's employment by the
Company, the Executive shall return all such samples, drawings, sketches,
documents and written information, and all copies, facsimiles, replicas,
photocopies, and reproductions of them, to the Company.
- 2 -
<PAGE> 3
(d) The Executive hereby covenants and agrees to refrain,
during his employment by the Company and for a period of two (2) years after the
date of termination of the Executive's employment for cause or if the Executive
terminates employment on his own volition, from directly or indirectly owning
any interest in or engaging in or performing any services for any person, firm
or corporation that directly or indirectly engages in any business which
competes with any aspect of the business of the Company, wherever located,
either as an individual on his own behalf, or as a partner, employee or agent
for any person or partnership, or as an employee, officer, agent, director or
shareholder of a corporation. The Executive will not at any time during the
period of the Executive's employment by the Company and for a period of two (2)
years thereafter induce or assist others to induce or attempt to induce, in any
manner, directly or indirectly, any employee, agent, representative, customer or
any other person or concern dealing with or in any way associated with the
Company to terminate or to modify in any other fashion to the detriment of the
Company such association with the Company. The Executive represents that his
experience and capabilities are such that the provisions of this paragraph will
not prevent him from earning a livelihood.
(e) Notwithstanding anything contained herein to the contrary,
Executive shall be able to continue his relationship with O'Gara Protective
Services. However, Executive hereby covenants and agrees that during his
employment with the Company and for a period of two (2) years after the date of
termination of the Executive's employment for any reason, Executive shall refer
all contracts or leads for the sale of armored vehicles to the Company.
(f) The parties hereto agree that the Executive's agreements
contained in paragraph (b) through (e) of this Article relate to matters of
unique character and peculiar value impossible of replacement, that breach of
such agreements by the Executive will cause the Company great and irreparable
injury therefor, that the remedy at law for any breach of the agreements
contained in (b) through (e) will be inadequate and that the Company, in
addition to any other relief available to it, shall be entitled to temporary
restraining orders and temporary and permanent injunctive relief or other
equitable relief without the necessity of proving actual damage so as to prevent
a breach of any of the agreements contained in (b) through (e) of this Article
and to secure the enforcement thereof.
ARTICLE V
TERMINATION
-----------
5.01. TERMINATION BY THE COMPANY. The Company shall have the
right to terminate the Executive's employment at any time, with or without
"Cause." For purposes of this Agreement, "Cause" shall mean (i) substantial
failure by the Executive to perform his duties as described in Article I of this
Agreement, (ii) a breach by the Executive of any of the other terms and
conditions of this Agreement, (iii) conduct grossly insubordinate or disloyal to
the Company, or (iv) pleading no contest or guilty to a felony charge or being
convicted of a felony.
5.02. DEATH. In the event Executive dies during the Term, this
Agreement shall automatically terminate, such termination to be effective on the
date of Executive's death.
- 3 -
<PAGE> 4
5.03. DISABILITY. In the event that Executive shall suffer a
disability which shall have prevented him from performing satisfactorily his
obligations hereunder for a period of at least 90 consecutive days, or 180
non-consecutive days within any 365 day period, the Company shall have the right
to terminate Executive's employment, such termination to be effective upon the
giving of notice thereof to Executive in accordance with Section 6.03 hereof.
5.04. EFFECT OF TERMINATION. (a) In the event of termination
of Executive's employment for any reason, the Company shall pay to executive (or
his beneficiary in the event of his death) any base salary or other compensation
in accordance with the normal pay practices of the Company upon a termination of
employees for similar reasons.
(b) In the event of termination of Executive's employment (i)
by the Company for Cause, (ii) by Executive for any reason, (iii) because of
Executive's death, or (iv) pursuant to Section 5.03, because of Executive's
disability, neither the Executive nor any beneficiary of Executive shall be
entitled to any further compensation other than the amounts described in Section
5.04(a) hereof.
(c) In the event of termination of Executive's employment by
the Company other than for Cause, the Company shall pay Executive, in addition
to the amounts described in Section 5.04(a) hereof, an amount equal to the value
of the continued payment of Executive's base salary for the remainder of the
Term. Such amount shall be payable, at the discretion of the Company, either (i)
in a lump sum or (ii) in equal monthly installments.
ARTICLE VI
MISCELLANEOUS
-------------
6.01. MITIGATION: OFFSET. In the event that an amount becomes
payable to Executive pursuant to Section 5.04(c) above, such amount shall be
reduced, on a dollar-for-dollar basis, by (i) any outstanding amounts owed by
Executive to the Company and (ii) the amount of any compensation for services
earned by Executive during the remainder of the Term, from any source, whether
paid currently or deferred. In such event, Executive shall cooperate with the
Company and shall provide such information to the Company as it may reasonably
require.
6.02. BENEFIT OF AGREEMENT; ASSIGNMENT; BENEFICIARY. (a) This
Agreement shall inure to the benefit of and be binding upon the Company and
their successors and assigns (but only to the extent the Agreement relates to
such entity), including, without limitation, any corporation or person which may
acquire all or substantially all of the Company's assets or business, or with or
into which the Company may be consolidated or merged. This Agreement shall also
inure to the benefit of, and be enforceable by, the Executive and his personal
or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amount would still be payable to the Executive hereunder if he had continued to
live, all such amounts shall be paid in accordance with the terms of this
Agreement to the Executive's beneficiary, devisee, legatee or other designee, or
if there is no such designee, to the Executive's estate.
- 4 -
<PAGE> 5
(b) The Company shall require any successor (whether director
or indirect, by operation of law, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
6.03. NOTICES. Any notice required or permitted hereunder
shall be in writing and shall be sufficiently given if personally delivered or
if sent by registered or certified mail, postage prepaid, with return receipt
requested, addressed: (a) in the case of the Company to Bill O'Gara; and (b) in
the case of Executive, to Executive's last known address as reflected in the
Company's records, or to such other address as Executive shall designate by
written notice to the Company. Any notice given hereunder shall be deemed to
have been given at the time of receipt thereof by the person to whom such notice
is given if personally delivered or at the time of mailing if sent by registered
or certified mail.
6.04. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement of the parties hereto with respect to the terms and conditions
of Executive's employment during the Term and supersedes any and all prior
agreements and understandings, whether written or oral, between the parties
hereto with respect to compensation due for services rendered hereunder. This
Agreement may not be changed or modified except by an instrument in writing
signed by both of the parties hereto.
6.05. WAIVER. The waiver of either party of a breach of any
provision of this Agreement shall not operate or be construed as a continuing
waiver or as a consent to or waiver of any subsequent breach hereof.
6.06. HEADINGS. The Article and Section headings herein are
for convenience of reference only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions hereof.
6.07. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Ohio without reference to the principles of conflict of laws.
6.08. AGREEMENT TO TAKE ACTIONS. Each party hereto shall
execute and deliver such documents, certificates, agreements and other
instruments, and shall take such other actions, as may be reasonably necessary
or desirable in order to perform his or its obligations under this Agreement or
to effectuate the purposes hereof.
6.09. VENUE AND JURISDICTION. Executive shall bring any legal
action against the Company in either Butler County Court of Common Pleas, State
of Ohio, U.S.A. or in United States District Court, Southern District of Ohio
(Western Division). Executive will not pursue legal action against the Company
in any other judicial venue. Executive submits to the jurisdiction of these
courts and waives any claim of improper venue, inconvenient forum or forum non
conveniens. Notwithstanding the foregoing, the Company may, at its sole
election, pursue legal action against Executive at any location it deems
appropriate.
6.10. SURVIVORSHIP. The respective rights and obligations of
the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
- 5 -
<PAGE> 6
6.11. VALIDITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision or provisions of this Agreement, which
shall remain in full force and effect. If any provision of this Agreement is
held to be invalid, void or unenforceable, any court so holding shall substitute
a valid, enforceable provision that preserves, to the maximum lawful extent, the
terms and intent of this Agreement.
6.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Agreement effective as of the date first written above.
THE O'GARA COMPANY
By:/S/WILFRED T. O'GARA
------------------------------
Name:
Title:
/S/NICHOLAS P. CARPINELLO
---------------------------------
Executive
- 6 -
<PAGE> 7
EXHIBIT A TO EMPLOYMENT AGREEMENT
Executive shall receive as compensation for his performance
under the attached Employment Agreement the following:
(a) SALARY. The Company shall pay Executive a base salary
during the Term, payable in accordance with the normal payment procedures of the
Company and subject to such withholdings and other normal employee deductions as
may be required by law, at the annual rate of $120,000.00. The Board of
Directors of the Company shall review such compensation not less frequently than
annually during the Term.
(b) ANNUAL BONUS. In addition to base salary, Executive shall
earn incentive compensation ("incentive compensation") and the Company shall pay
each fiscal year, or any fractional period thereof during the term, incentive
compensation in accordance with the plan approved by the Compensation Committee
and the Board of Directors each fiscal year.
(c) BENEFITS. Executive shall participate during the Term in
such pension, life insurance, health, disability and major medical insurance
plans, and in such other employee benefit plans and programs, for the benefit of
the employees of the Company, as may be maintained from time to time during the
Term, in the Company's discretion, in each case to the extent and in the manner
available to other officers of the Company and subject to the terms and
provisions of such plans or programs.
(d) VACATION. Executive shall be entitled to a paid vacation
of at least three (3) weeks per annum, in accordance with Company policy (but
not necessarily consecutive vacation weeks) during the Term.
(e) STOCK AWARDS. Executive shall be entitled to receive up to
fifty percent (50%) of any incentive compensation in the form of shares of stock
of The O'Gara Company, an Ohio corporation ("TOC"). In addition, Executive shall
be eligible for grants of stock options in TOC, which grants shall be made at
the discretion of the Compensation Committee of the Board of Directors of TOC.
THE O'GARA COMPANY
By: /S/WILFRED T. O'GARA
----------------------------
Name:
Title:
/S/NICHOLAS P. CARPINELLO
-------------------------------
Executive
<PAGE> 1
EXHIBIT 10.12
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement is made and entered into as of this
23rd day of August, 1996, by and between O'Gara Satellite Network Limited, an
Irish corporation (the "Company"), and Neil P. Saldin (the "Executive").
WHEREAS, the Executive and the Company desire to embody in
this Agreement the terms and conditions of Executive's employment by the
Company;
NOW, THEREFORE, in consideration of the premises and mutual
promises contained in this Agreement, including the revised compensation paid to
executive, the parties hereby agree:
ARTICLE I
EMPLOYMENT, DUTIES AND RESPONSIBILITIES
---------------------------------------
1.01. EMPLOYMENT. The Company shall employ Executive as
President. Executive hereby accepts such employment. Executive agrees to devote
his full business time and best efforts to promote the interests of the Company.
1.02. DUTIES AND RESPONSIBILITIES. Executive shall have such
duties and responsibilities as are consistent with his position and shall
perform such services not inconsistent with his position as shall from time to
time be assigned to him by the Board of Directors of the Company, the Chief
Executive Officer of the Company, or any other officer of the Company in a
position superior to Executive.
ARTICLE II
TERM
----
2.01. TERM. (a) The term of this Agreement (the "Term") shall
commence on September 1, 1996 and shall continue for a period of two (2) years
until August 31, 1998 unless sooner terminated pursuant to Article V hereof.
Thereafter, the Term shall continue on a monthly basis unless terminated by any
party upon one month's prior written notice.
ARTICLE III
COMPENSATION
------------
3.01. SALARY, BONUSES AND BENEFITS. As compensation and
consideration for the performance by Executive of his obligations under this
Agreement to the Company, Executive shall be entitled to the compensation and
benefits described in the attached Exhibit A (subject, in each case, to the
provisions of ARTICLE V hereof).
3.02. EXPENSES
(a) The Company will reimburse Executive for reasonable
business- related expenses incurred by him in connection with the performance of
his duties hereunder during the Term, subject, however, to the Company's
policies relating to business-related expenses as in effect from time to time
during the Term.
<PAGE> 2
ARTICLE IV
4.01. EXCLUSIVITY, ETC.
(a) Executive agrees to perform his duties, responsibilities
and obligations hereunder efficiently and to the best of his ability. Executive
agrees that he will devote his entire working time, care and attention and best
efforts to such duties, responsibilities and obligations with the Company
throughout the Term. Executive also agrees that he will not engage in any other
business activities, pursued for gain, profit or other pecuniary advantage that
are competitive with the activities of the Company, except as permitted in
Section 4.02 below. Executive agrees that all of his activities as an employee
of the Company shall be in conformity with all policies, rules and regulations
and directions of the Company not inconsistent with this Agreement.
4.02. OTHER BUSINESS VENTURES; NONCOMPETITION.
(a) The term "Confidential Information", as employed in this
Agreement, means (a) any object, material, device, substance, data, report,
record, forecast, interpretation or information, whether written or oral, not in
the public domain and relating to or reflecting any product, design, process,
procedure, formula, research, idea, invention, discovery, improvement,
equipment, scientific or technical information, method of production, business
plan, financial information, listing of names, addresses or telephone numbers,
trade secret and/or know how, and all matters pertaining thereto, of the Company
whether or not contained in any written document, which are or have been
directly or indirectly communicated to, acquired by, or learned by the Executive
as a result of his relationship (whether as an employee or otherwise) with the
Company and (b) any analysis, compilation, note, study, sample, drawing, sketch,
computer program, computer file or other document, whether prepared by or under
the direction of the Company, the Executive or others, and all copies,
facsimiles, replicas, photographs, and reproductions thereof, which contain,
relate to, or reflect any of the aforementioned items.
(b) The Executive shall not, directly or indirectly, either
disclose any Confidential Information, except to the extent required in the
performance of his duties as an employee of the Company and then only at the
direction of the Company, or use any Confidential Information for the benefit of
himself or any person, firm, corporation, or association other than Company,
either during the term of his employment by the Company or after the termination
of such employment. Nothing contained in this Agreement is deemed to conflict
with Ohio Revised Code sections 1333.51 or 1333.81.
(c) All samples, drawings, sketches, documents and written
information of any kind reflecting any of the Confidential Information or
relating to the Company's business or products which come into the possession of
the Executive shall remain the sole property of the Company, and shall not be
copied, photocopied, reprinted or otherwise reproduced or disseminated by the
Executive except in the performance of his duties as an employee of the Company
and then only at the direction of the Company. Upon the earlier of the Company's
request therefor or the termination of the Executive's employment by the
Company, the Executive shall return all such samples, drawings, sketches,
documents and written information, and all copies, facsimiles, replicas,
photocopies, and reproductions of them, to the Company.
- 2 -
<PAGE> 3
(d) The Executive hereby covenants and agrees to refrain,
during his employment by the Company and for a period of two (2) years after the
date of termination of the Executive's employment for cause or if the Executive
terminates employment on his own volition, from directly or indirectly owning
any interest in or engaging in or performing any services for any person, firm
or corporation that directly or indirectly engages in any business which
competes with any aspect of the business of the Company, wherever located,
either as an individual on his own behalf, or as a partner, employee or agent
for any person or partnership, or as an employee, officer, agent, director or
shareholder of a corporation. The Executive will not at any time during the
period of the Executive's employment by the Company and for a period of two (2)
years thereafter induce or assist others to induce or attempt to induce, in any
manner, directly or indirectly, any employee, agent, representative, customer or
any other person or concern dealing with or in any way associated with the
Company to terminate or to modify in any other fashion to the detriment of the
Company such association with the Company. The Executive represents that his
experience and capabilities are such that the provisions of this paragraph will
not prevent him from earning a livelihood.
(e) The parties hereto agree that the Executive's agreements
contained in paragraph (b) through (d) of this Article relate to matters of
unique character and peculiar value impossible of replacement, that breach of
such agreements by the Executive will cause the Company great and irreparable
injury therefor, that the remedy at law for any breach of the agreements
contained in (b) through (d) will be inadequate and that the Company, in
addition to any other relief available to it, shall be entitled to temporary
restraining orders and temporary and permanent injunctive relief or other
equitable relief without the necessity of proving actual damage so as to prevent
a breach of any of the agreements contained in (b) through (d) of this Article
and to secure the enforcement thereof.
ARTICLE V
TERMINATION
-----------
5.01. TERMINATION BY THE COMPANY. The Company shall have the
right to terminate the Executive's employment at any time, with or without
"Cause." For purposes of this Agreement, "Cause" shall mean (i) substantial
failure by the Executive to perform his duties as described in Article I of this
Agreement, (ii) a breach by the Executive of any of the other terms and
conditions of this Agreement, (iii) conduct grossly insubordinate or disloyal to
the Company, or (iv) pleading no contest or guilty to a felony charge or being
convicted of a felony.
5.02. DEATH. In the event Executive dies during the Term, this
Agreement shall automatically terminate, such termination to be effective on the
date of Executive's death.
5.03. DISABILITY. In the event that Executive shall suffer a
disability which shall have prevented him from performing satisfactorily his
obligations hereunder for a period of at least 90 consecutive days, or 180
non-consecutive days within any 365 day period, the Company shall have the right
to terminate Executive's employment, such termination to be effective upon the
giving of notice thereof to Executive in accordance with Section 6.03 hereof.
- 3 -
<PAGE> 4
5.04. EFFECT OF TERMINATION. (a) In the event of termination
of Executive's employment for any reason, the Company shall pay to executive (or
his beneficiary in the event of his death) any base salary or other compensation
in accordance with the normal pay practices of the Company upon a termination of
employees for similar reasons.
(b) In the event of termination of Executive's employment (i)
by the Company for Cause, (ii) by Executive for any reason, (iii) because of
Executive's death, or (iv) pursuant to Section 5.03, because of Executive's
disability, neither the Executive nor any beneficiary of Executive shall be
entitled to any further compensation other than the amounts described in Section
5.04(a) hereof.
(c) In the event of termination of Executive's employment by
the Company other than for Cause, the Company shall pay Executive, in addition
to the amounts described in Section 5.04(a) hereof, an amount equal to the value
of the continued payment of Executive's base salary for the remainder of the
Term. Such amount shall be payable, at the discretion of the Company, either (i)
in a lump sum or (ii) in equal monthly installments.
ARTICLE VI
MISCELLANEOUS
-------------
6.01. MITIGATION: OFFSET. In the event that an amount becomes
payable to Executive pursuant to Section 5.04(c) above, such amount shall be
reduced, on a dollar-for-dollar basis, by (i) any outstanding amounts owed by
Executive to the Company and (ii) the amount of any compensation for services
earned by Executive during the remainder of the Term, from any source, whether
paid currently or deferred. In such event, Executive shall cooperate with the
Company and shall provide such information to the Company as it may reasonably
require.
6.02. BENEFIT OF AGREEMENT; ASSIGNMENT; BENEFICIARY. (a) This
Agreement shall inure to the benefit of and be binding upon the Company and
their successors and assigns (but only to the extent the Agreement relates to
such entity), including, without limitation, any corporation or person which may
acquire all or substantially all of the Company's assets or business, or with or
into which the Company may be consolidated or merged. This Agreement shall also
inure to the benefit of, and be enforceable by, the Executive and his personal
or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amount would still be payable to the Executive hereunder if he had continued to
live, all such amounts shall be paid in accordance with the terms of this
Agreement to the Executive's beneficiary, devisee, legatee or other designee, or
if there is no such designee, to the Executive's estate.
(b) The Company shall require any successor (whether director
or indirect, by operation of law, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
6.03. NOTICES. Any notice required or permitted hereunder
shall be in writing and shall be sufficiently given if personally delivered or
if sent by registered or
- 4 -
<PAGE> 5
certified mail, postage prepaid, with return receipt requested, addressed: (a)
in the case of the Company to Bill O'Gara; and (b) in the case of Executive, to
Executive's last known address as reflected in the Company's records, or to such
other address as Executive shall designate by written notice to the Company. Any
notice given hereunder shall be deemed to have been given at the time of receipt
thereof by the person to whom such notice is given if personally delivered or at
the time of mailing if sent by registered or certified mail.
6.04. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement of the parties hereto with respect to the terms and conditions
of Executive's employment during the Term and supersedes any and all prior
agreements and understandings, whether written or oral, between the parties
hereto with respect to compensation due for services rendered hereunder. This
Agreement may not be changed or modified except by an instrument in writing
signed by both of the parties hereto.
6.05. WAIVER. The waiver of either party of a breach of any
provision of this Agreement shall not operate or be construed as a continuing
waiver or as a consent to or waiver of any subsequent breach hereof.
6.06. HEADINGS. The Article and Section headings herein are
for convenience of reference only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions hereof.
6.07. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Ohio without reference to the principles of conflict of laws.
6.08. AGREEMENT TO TAKE ACTIONS. Each party hereto shall
execute and deliver such documents, certificates, agreements and other
instruments, and shall take such other actions, as may be reasonably necessary
or desirable in order to perform his or its obligations under this Agreement or
to effectuate the purposes hereof.
6.09. VENUE AND JURISDICTION. Executive shall bring any legal
action against the Company in either Butler County Court of Common Pleas, State
of Ohio, U.S.A. or in United States District Court, Southern District of Ohio
(Western Division). Executive will not pursue legal action against the Company
in any other judicial venue. Executive submits to the jurisdiction of these
courts and waives any claim of improper venue, inconvenient forum or forum non
conveniens. Notwithstanding the foregoing, the Company may, at its sole
election, pursue legal action against Executive at any location it deems
appropriate.
6.10. SURVIVORSHIP. The respective rights and obligations of
the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
6.11. VALIDITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision or provisions of this Agreement, which
shall remain in full force and effect. If any provision of this Agreement is
held to be invalid, void or unenforceable, any court so holding shall substitute
a valid, enforceable provision that preserves, to the maximum lawful extent, the
terms and intent of this Agreement.
- 5 -
<PAGE> 6
6.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Agreement effective as of the date first written above.
O'GARA SATELLITE NETWORK LIMITED
By:/S/WILFRED T. O'GARA
-------------------------------
Name:
Title:
/S/NEIL P. SALDIN
----------------------------------
Executive
- 6 -
<PAGE> 7
EXHIBIT A TO EMPLOYMENT AGREEMENT
Executive shall receive as compensation for his performance
under the attached Employment Agreement the following:
(a) SALARY. The Company shall pay Executive a base salary
during the Term, payable in accordance with the normal payment procedures of the
Company and subject to such withholdings and other normal employee deductions as
may be required by law, at the annual rate of $140,000.00. The Board of
Directors of the Company shall review such compensation not less frequently than
annually during the Term.
(b) ANNUAL BONUS. In addition to base salary, Executive shall
earn incentive compensation ("incentive compensation") and the Company shall pay
each fiscal year, or any fractional period thereof during the term, incentive
compensation in accordance with the plan approved by the Compensation Committee
and the Board of Directors each fiscal year.
(c) BENEFITS. Executive shall participate during the Term in
such pension, life insurance, health, disability and major medical insurance
plans, and in such other employee benefit plans and programs, for the benefit of
the employees of the Company, as may be maintained from time to time during the
Term, in the Company's discretion, in each case to the extent and in the manner
available to other officers of the Company and subject to the terms and
provisions of such plans or programs.
(d) VACATION. Executive shall be entitled to a paid vacation
of at least three (3) weeks per annum, in accordance with Company policy (but
not necessarily consecutive vacation weeks) during the Term.
(e) STOCK AWARDS. Executive shall be entitled to receive up to
fifty percent (50%) of any incentive compensation in the form of shares of stock
of The O'Gara Company, an Ohio corporation ("TOC"). In addition, Executive shall
be eligible for grants of stock options in TOC, which grants shall be made at
the discretion of the Compensation Committee of the Board of Directors of TOC.
O'GARA SATELLITE NETWORK
LIMITED
By: /S/WILFRED T. O'GARA
--------------------------
Name:
Title:
/S/NEIL P. SALDIN
-----------------------------
Executive
<PAGE> 8
EXHIBIT A
DESCRIPTION OF PROPERTY
<PAGE> 1
EXHIBIT 10.13
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement is made and entered into as of this
23rd day of August, 1996, by and between O'Gara-Hess & Eisenhardt Armoring
Company, a Delaware corporation (the "Company"), and Gary W. Allen (the
"Executive").
WHEREAS, the Executive and the Company desire to embody in
this Agreement the terms and conditions of Executive's employment by the
Company;
NOW, THEREFORE, in consideration of the premises and mutual
promises contained in this Agreement, including the revised compensation paid to
executive, the parties hereby agree:
ARTICLE I
EMPLOYMENT, DUTIES AND RESPONSIBILITIES
---------------------------------------
1.01. EMPLOYMENT. The Company shall employ Executive as Vice
President- Operations. Executive hereby accepts such employment. Executive
agrees to devote his full business time and best efforts to promote the
interests of the Company.
1.02. DUTIES AND RESPONSIBILITIES. Executive shall have such
duties and responsibilities as are consistent with his position and shall
perform such services not inconsistent with his position as shall from time to
time be assigned to him by the Board of Directors of the Company, the Chief
Executive Officer of the Company, or any other officer of the Company in a
position superior to Executive.
ARTICLE II
TERM
----
2.01. TERM. (a) The term of this Agreement (the "Term") shall
commence on September 1, 1996 and shall continue for a period of two (2) years
until August 31, 1998 unless sooner terminated pursuant to Article V hereof.
Thereafter, the Term shall continue on a monthly basis unless terminated by any
party upon one month's prior written notice.
ARTICLE III
COMPENSATION
------------
3.01. SALARY, BONUSES AND BENEFITS. As compensation and
consideration for the performance by Executive of his obligations under this
Agreement to the Company, Executive shall be entitled to the compensation and
benefits described in the attached Exhibit A (subject, in each case, to the
provisions of ARTICLE V hereof).
3.02. EXPENSES
(a) The Company will reimburse Executive for reasonable
business- related expenses incurred by him in connection with the performance of
his duties hereunder during the Term, subject, however, to the Company's
policies relating to business-related expenses as in effect from time to time
during the Term.
<PAGE> 2
ARTICLE IV
----------
4.01. EXCLUSIVITY, ETC.
(a) Executive agrees to perform his duties, responsibilities
and obligations hereunder efficiently and to the best of his ability. Executive
agrees that he will devote his entire working time, care and attention and best
efforts to such duties, responsibilities and obligations with the Company
throughout the Term. Executive also agrees that he will not engage in any other
business activities, pursued for gain, profit or other pecuniary advantage that
are competitive with the activities of the Company, except as permitted in
Section 4.02 below. Executive agrees that all of his activities as an employee
of the Company shall be in conformity with all policies, rules and regulations
and directions of the Company not inconsistent with this Agreement.
4.02. OTHER BUSINESS VENTURES; NONCOMPETITION.
(a) The term "Confidential Information", as employed in this
Agreement, means (a) any object, material, device, substance, data, report,
record, forecast, interpretation or information, whether written or oral, not in
the public domain and relating to or reflecting any product, design, process,
procedure, formula, research, idea, invention, discovery, improvement,
equipment, scientific or technical information, method of production, business
plan, financial information, listing of names, addresses or telephone numbers,
trade secret and/or know how, and all matters pertaining thereto, of the Company
whether or not contained in any written document, which are or have been
directly or indirectly communicated to, acquired by, or learned by the Executive
as a result of his relationship (whether as an employee or otherwise) with the
Company and (b) any analysis, compilation, note, study, sample, drawing, sketch,
computer program, computer file or other document, whether prepared by or under
the direction of the Company, the Executive or others, and all copies,
facsimiles, replicas, photographs, and reproductions thereof, which contain,
relate to, or reflect any of the aforementioned items.
(b) The Executive shall not, directly or indirectly, either
disclose any Confidential Information, except to the extent required in the
performance of his duties as an employee of the Company and then only at the
direction of the Company, or use any Confidential Information for the benefit of
himself or any person, firm, corporation, or association other than Company,
either during the term of his employment by the Company or after the termination
of such employment. Nothing contained in this Agreement is deemed to conflict
with Ohio Revised Code sections 1333.51 or 1333.81.
(c) All samples, drawings, sketches, documents and written
information of any kind reflecting any of the Confidential Information or
relating to the Company's business or products which come into the possession of
the Executive shall remain the sole property of the Company, and shall not be
copied, photocopied, reprinted or otherwise reproduced or disseminated by the
Executive except in the performance of his duties as an employee of the Company
and then only at the direction of the Company. Upon the earlier of the Company's
request therefor or the termination of the Executive's employment by the
Company, the Executive shall return all such samples, drawings, sketches,
documents and written information, and all copies, facsimiles, replicas,
photocopies, and reproductions of them, to the Company.
- 2 -
<PAGE> 3
(d) The Executive hereby covenants and agrees to refrain,
during his employment by the Company and for a period of two (2) years after the
date of termination of the Executive's employment for cause or if the Executive
terminates employment on his own volition, from directly or indirectly owning
any interest in or engaging in or performing any services for any person, firm
or corporation that directly or indirectly engages in any business which
competes with any aspect of the business of the Company, wherever located,
either as an individual on his own behalf, or as a partner, employee or agent
for any person or partnership, or as an employee, officer, agent, director or
shareholder of a corporation. The Executive will not at any time during the
period of the Executive's employment by the Company and for a period of two (2)
years thereafter induce or assist others to induce or attempt to induce, in any
manner, directly or indirectly, any employee, agent, representative, customer or
any other person or concern dealing with or in any way associated with the
Company to terminate or to modify in any other fashion to the detriment of the
Company such association with the Company. The Executive represents that his
experience and capabilities are such that the provisions of this paragraph will
not prevent him from earning a livelihood.
(e) The parties hereto agree that the Executive's agreements
contained in paragraph (b) through (d) of this Article relate to matters of
unique character and peculiar value impossible of replacement, that breach of
such agreements by the Executive will cause the Company great and irreparable
injury therefor, that the remedy at law for any breach of the agreements
contained in (b) through (d) will be inadequate and that the Company, in
addition to any other relief available to it, shall be entitled to temporary
restraining orders and temporary and permanent injunctive relief or other
equitable relief without the necessity of proving actual damage so as to prevent
a breach of any of the agreements contained in (b) through (d) of this Article
and to secure the enforcement thereof.
ARTICLE V
TERMINATION
-----------
5.01. TERMINATION BY THE COMPANY. The Company shall have the
right to terminate the Executive's employment at any time, with or without
"Cause." For purposes of this Agreement, "Cause" shall mean (i) substantial
failure by the Executive to perform his duties as described in Article I of this
Agreement, (ii) a breach by the Executive of any of the other terms and
conditions of this Agreement, (iii) conduct grossly insubordinate or disloyal to
the Company, or (iv) pleading no contest or guilty to a felony charge or being
convicted of a felony.
5.02. DEATH. In the event Executive dies during the Term, this
Agreement shall automatically terminate, such termination to be effective on the
date of Executive's death.
5.03. DISABILITY. In the event that Executive shall suffer a
disability which shall have prevented him from performing satisfactorily his
obligations hereunder for a period of at least 90 consecutive days, or 180
non-consecutive days within any 365 day period, the Company shall have the right
to terminate Executive's employment, such termination to be effective upon the
giving of notice thereof to Executive in accordance with Section 6.03 hereof.
- 3 -
<PAGE> 4
5.04. EFFECT OF TERMINATION. (a) In the event of termination
of Executive's employment for any reason, the Company shall pay to executive (or
his beneficiary in the event of his death) any base salary or other compensation
in accordance with the normal pay practices of the Company upon a termination of
employees for similar reasons.
(b) In the event of termination of Executive's employment (i)
by the Company for Cause, (ii) by Executive for any reason, (iii) because of
Executive's death, or (iv) pursuant to Section 5.03, because of Executive's
disability, neither the Executive nor any beneficiary of Executive shall be
entitled to any further compensation other than the amounts described in Section
5.04(a) hereof.
(c) In the event of termination of Executive's employment by
the Company other than for Cause, the Company shall pay Executive, in addition
to the amounts described in Section 5.04(a) hereof, an amount equal to the value
of the continued payment of Executive's base salary for the remainder of the
Term. Such amount shall be payable, at the discretion of the Company, either (i)
in a lump sum or (ii) in equal monthly installments.
ARTICLE VI
MISCELLANEOUS
-------------
6.01. MITIGATION: OFFSET. In the event that an amount becomes
payable to Executive pursuant to Section 5.04(c) above, such amount shall be
reduced, on a dollar-for-dollar basis, by (i) any outstanding amounts owed by
Executive to the Company and (ii) the amount of any compensation for services
earned by Executive during the remainder of the Term, from any source, whether
paid currently or deferred. In such event, Executive shall cooperate with the
Company and shall provide such information to the Company as it may reasonably
require.
6.02. BENEFIT OF AGREEMENT; ASSIGNMENT; BENEFICIARY. (a) This
Agreement shall inure to the benefit of and be binding upon the Company and
their successors and assigns (but only to the extent the Agreement relates to
such entity), including, without limitation, any corporation or person which may
acquire all or substantially all of the Company's assets or business, or with or
into which the Company may be consolidated or merged. This Agreement shall also
inure to the benefit of, and be enforceable by, the Executive and his personal
or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amount would still be payable to the Executive hereunder if he had continued to
live, all such amounts shall be paid in accordance with the terms of this
Agreement to the Executive's beneficiary, devisee, legatee or other designee, or
if there is no such designee, to the Executive's estate.
(b) The Company shall require any successor (whether director
or indirect, by operation of law, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
6.03. NOTICES. Any notice required or permitted hereunder
shall be in writing and shall be sufficiently given if personally delivered or
if sent by registered or
- 4 -
<PAGE> 5
certified mail, postage prepaid, with return receipt requested, addressed: (a)
in the case of the Company to Bill O'Gara; and (b) in the case of Executive, to
Executive's last known address as reflected in the Company's records, or to such
other address as Executive shall designate by written notice to the Company. Any
notice given hereunder shall be deemed to have been given at the time of receipt
thereof by the person to whom such notice is given if personally delivered or at
the time of mailing if sent by registered or certified mail.
6.04. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement of the parties hereto with respect to the terms and conditions
of Executive's employment during the Term and supersedes any and all prior
agreements and understandings, whether written or oral, between the parties
hereto with respect to compensation due for services rendered hereunder. This
Agreement may not be changed or modified except by an instrument in writing
signed by both of the parties hereto.
6.05. WAIVER. The waiver of either party of a breach of any
provision of this Agreement shall not operate or be construed as a continuing
waiver or as a consent to or waiver of any subsequent breach hereof.
6.06. HEADINGS. The Article and Section headings herein are
for convenience of reference only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions hereof.
6.07. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Ohio without reference to the principles of conflict of laws.
6.08. AGREEMENT TO TAKE ACTIONS. Each party hereto shall
execute and deliver such documents, certificates, agreements and other
instruments, and shall take such other actions, as may be reasonably necessary
or desirable in order to perform his or its obligations under this Agreement or
to effectuate the purposes hereof.
6.09. VENUE AND JURISDICTION. Executive shall bring any legal
action against the Company in either Butler County Court of Common Pleas, State
of Ohio, U.S.A. or in United States District Court, Southern District of Ohio
(Western Division). Executive will not pursue legal action against the Company
in any other judicial venue. Executive submits to the jurisdiction of these
courts and waives any claim of improper venue, inconvenient forum or forum non
conveniens. Notwithstanding the foregoing, the Company may, at its sole
election, pursue legal action against Executive at any location it deems
appropriate.
6.10. SURVIVORSHIP. The respective rights and obligations of
the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
6.11. VALIDITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision or provisions of this Agreement, which
shall remain in full force and effect. If any provision of this Agreement is
held to be invalid, void or unenforceable, any court so holding shall substitute
a valid, enforceable provision that preserves, to the maximum lawful extent, the
terms and intent of this Agreement.
- 5 -
<PAGE> 6
6.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Agreement effective as of the date first written above.
O'GARA-HESS & EISENHARDT
ARMORING COMPANY
By: /S/WILFRED T. O'GARA
----------------------------
Name:
Title:
/S/G W ALLEN
-------------------------------
Executive
- 6 -
<PAGE> 7
EXHIBIT A TO EMPLOYMENT AGREEMENT
Executive shall receive as compensation for his performance
under the attached Employment Agreement the following:
(a) SALARY. The Company shall pay Executive a base salary
during the Term, payable in accordance with the normal payment procedures of the
Company and subject to such withholdings and other normal employee deductions as
may be required by law, at the annual rate of $115,000.00. The Board of
Directors of the Company shall review such compensation not less frequently than
annually during the Term.
(b) ANNUAL BONUS. In addition to base salary, Executive shall
earn incentive compensation ("incentive compensation") and the Company shall pay
each fiscal year, or any fractional period thereof during the term, incentive
compensation in accordance with the plan approved by the Compensation Committee
and the Board of Directors each fiscal year.
(c) BENEFITS. Executive shall participate during the Term in
such pension, life insurance, health, disability and major medical insurance
plans, and in such other employee benefit plans and programs, for the benefit of
the employees of the Company, as may be maintained from time to time during the
Term, in the Company's discretion, in each case to the extent and in the manner
available to other officers of the Company and subject to the terms and
provisions of such plans or programs.
(d) VACATION. Executive shall be entitled to a paid vacation
of at least three (3) weeks per annum, in accordance with Company policy (but
not necessarily consecutive vacation weeks) during the Term.
(e) STOCK AWARDS. Executive shall be entitled to receive up to
fifty percent (50%) of any incentive compensation in the form of shares of stock
of The O'Gara Company, an Ohio corporation ("TOC"). In addition, Executive shall
be eligible for grants of stock options in TOC, which grants shall be made at
the discretion of the Compensation Committee of the Board of Directors of TOC.
O'GARA-HESS & EISENHARDT
ARMORING COMPANY
By: /S/WILFRED T. O'GARA
-----------------------------
Name:
Title:
/S/G W ALLEN
--------------------------------
Executive
<PAGE> 1
EXHIBIT 10.14
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement is made and entered into as of this
23rd day of August, 1996, by and between O'Gara-Hess & Eisenhardt Armoring
Company, a Delaware corporation (the "Company"), and Michael J. Lennon (the
"Executive").
WHEREAS, the Executive and the Company desire to embody in
this Agreement the terms and conditions of Executive's employment by the
Company;
NOW, THEREFORE, in consideration of the premises and mutual
promises contained in this Agreement, including the revised compensation paid to
executive, the parties hereby agree:
ARTICLE I
EMPLOYMENT, DUTIES AND RESPONSIBILITIES
---------------------------------------
1.01. EMPLOYMENT. The Company shall employ Executive as
President and Chief Operating Officer. Executive hereby accepts such employment.
Executive agrees to devote his full business time and best efforts to promote
the interests of the Company.
1.02. DUTIES AND RESPONSIBILITIES. Executive shall have such
duties and responsibilities as are consistent with his position and shall
perform such services not inconsistent with his position as shall from time to
time be assigned to him by the Board of Directors of the Company, the Chief
Executive Officer of the Company, or any other officer of the Company in a
position superior to Executive.
ARTICLE II
TERM
----
2.01. TERM. (a) The term of this Agreement (the "Term") shall
commence on September 1, 1996 and shall continue for a period of two (2) years
until August 31, 1998 unless sooner terminated pursuant to Article V hereof.
Thereafter, the Term shall continue on a monthly basis unless terminated by any
party upon one month's prior written notice.
ARTICLE III
COMPENSATION
------------
3.01. SALARY, BONUSES AND BENEFITS. As compensation and
consideration for the performance by Executive of his obligations under this
Agreement to the Company, Executive shall be entitled to the compensation and
benefits described in the attached Exhibit A (subject, in each case, to the
provisions of ARTICLE V hereof).
3.02. EXPENSES
(a) The Company will reimburse Executive for reasonable
business- related expenses incurred by him in connection with the performance of
his duties hereunder during the Term, subject, however, to the Company's
policies relating to business-related expenses as in effect from time to time
during the Term.
<PAGE> 2
ARTICLE IV
4.01. EXCLUSIVITY, ETC.
(a) Executive agrees to perform his duties, responsibilities
and obligations hereunder efficiently and to the best of his ability. Executive
agrees that he will devote his entire working time, care and attention and best
efforts to such duties, responsibilities and obligations with the Company
throughout the Term. Executive also agrees that he will not engage in any other
business activities, pursued for gain, profit or other pecuniary advantage that
are competitive with the activities of the Company, except as permitted in
Section 4.02 below. Executive agrees that all of his activities as an employee
of the Company shall be in conformity with all policies, rules and regulations
and directions of the Company not inconsistent with this Agreement.
4.02. OTHER BUSINESS VENTURES; NONCOMPETITION.
(a) The term "Confidential Information", as employed in this
Agreement, means (a) any object, material, device, substance, data, report,
record, forecast, interpretation or information, whether written or oral, not in
the public domain and relating to or reflecting any product, design, process,
procedure, formula, research, idea, invention, discovery, improvement,
equipment, scientific or technical information, method of production, business
plan, financial information, listing of names, addresses or telephone numbers,
trade secret and/or know how, and all matters pertaining thereto, of the Company
whether or not contained in any written document, which are or have been
directly or indirectly communicated to, acquired by, or learned by the Executive
as a result of his relationship (whether as an employee or otherwise) with the
Company and (b) any analysis, compilation, note, study, sample, drawing, sketch,
computer program, computer file or other document, whether prepared by or under
the direction of the Company, the Executive or others, and all copies,
facsimiles, replicas, photographs, and reproductions thereof, which contain,
relate to, or reflect any of the aforementioned items.
(b) The Executive shall not, directly or indirectly, either
disclose any Confidential Information, except to the extent required in the
performance of his duties as an employee of the Company and then only at the
direction of the Company, or use any Confidential Information for the benefit of
himself or any person, firm, corporation, or association other than Company,
either during the term of his employment by the Company or after the termination
of such employment. Nothing contained in this Agreement is deemed to conflict
with Ohio Revised Code sections 1333.51 or 1333.81.
(c) All samples, drawings, sketches, documents and written
information of any kind reflecting any of the Confidential Information or
relating to the Company's business or products which come into the possession of
the Executive shall remain the sole property of the Company, and shall not be
copied, photocopied, reprinted or otherwise reproduced or disseminated by the
Executive except in the performance of his duties as an employee of the Company
and then only at the direction of the Company. Upon the earlier of the Company's
request therefor or the termination of the Executive's employment by the
Company, the Executive shall return all such samples, drawings, sketches,
documents and written information, and all copies, facsimiles, replicas,
photocopies, and reproductions of them, to the Company.
- 2 -
<PAGE> 3
(d) The Executive hereby covenants and agrees to refrain,
during his employment by the Company and for a period of two (2) years after the
date of termination of the Executive's employment for cause or if the Executive
terminates employment on his own volition, from directly or indirectly owning
any interest in or engaging in or performing any services for any person, firm
or corporation that directly or indirectly engages in any business which
competes with any aspect of the business of the Company, wherever located,
either as an individual on his own behalf, or as a partner, employee or agent
for any person or partnership, or as an employee, officer, agent, director or
shareholder of a corporation. The Executive will not at any time during the
period of the Executive's employment by the Company and for a period of two (2)
years thereafter induce or assist others to induce or attempt to induce, in any
manner, directly or indirectly, any employee, agent, representative, customer or
any other person or concern dealing with or in any way associated with the
Company to terminate or to modify in any other fashion to the detriment of the
Company such association with the Company. The Executive represents that his
experience and capabilities are such that the provisions of this paragraph will
not prevent him from earning a livelihood.
(e) The parties hereto agree that the Executive's agreements
contained in paragraph (b) through (d) of this Article relate to matters of
unique character and peculiar value impossible of replacement, that breach of
such agreements by the Executive will cause the Company great and irreparable
injury therefor, that the remedy at law for any breach of the agreements
contained in (b) through (d) will be inadequate and that the Company, in
addition to any other relief available to it, shall be entitled to temporary
restraining orders and temporary and permanent injunctive relief or other
equitable relief without the necessity of proving actual damage so as to prevent
a breach of any of the agreements contained in (b) through (d) of this Article
and to secure the enforcement thereof.
ARTICLE V
TERMINATION
-----------
5.01. TERMINATION BY THE COMPANY. The Company shall have the
right to terminate the Executive's employment at any time, with or without
"Cause." For purposes of this Agreement, "Cause" shall mean (i) substantial
failure by the Executive to perform his duties as described in Article I of this
Agreement, (ii) a breach by the Executive of any of the other terms and
conditions of this Agreement, (iii) conduct grossly insubordinate or disloyal to
the Company, or (iv) pleading no contest or guilty to a felony charge or being
convicted of a felony.
5.02. DEATH. In the event Executive dies during the Term, this
Agreement shall automatically terminate, such termination to be effective on the
date of Executive's death.
5.03. DISABILITY. In the event that Executive shall suffer a
disability which shall have prevented him from performing satisfactorily his
obligations hereunder for a period of at least 90 consecutive days, or 180
non-consecutive days within any 365 day period, the Company shall have the right
to terminate Executive's employment, such termination to be effective upon the
giving of notice thereof to Executive in accordance with Section 6.03 hereof.
- 3 -
<PAGE> 4
5.04. EFFECT OF TERMINATION. (a) In the event of termination
of Executive's employment for any reason, the Company shall pay to executive (or
his beneficiary in the event of his death) any base salary or other compensation
in accordance with the normal pay practices of the Company upon a termination of
employees for similar reasons.
(b) In the event of termination of Executive's employment (i)
by the Company for Cause, (ii) by Executive for any reason, (iii) because of
Executive's death, or (iv) pursuant to Section 5.03, because of Executive's
disability, neither the Executive nor any beneficiary of Executive shall be
entitled to any further compensation other than the amounts described in Section
5.04(a) hereof.
(c) In the event of termination of Executive's employment by
the Company other than for Cause, the Company shall pay Executive, in addition
to the amounts described in Section 5.04(a) hereof, an amount equal to the value
of the continued payment of Executive's base salary for the remainder of the
Term. Such amount shall be payable, at the discretion of the Company, either (i)
in a lump sum or (ii) in equal monthly installments.
ARTICLE VI
MISCELLANEOUS
-------------
6.01. MITIGATION: OFFSET. In the event that an amount becomes
payable to Executive pursuant to Section 5.04(c) above, such amount shall be
reduced, on a dollar-for-dollar basis, by (i) any outstanding amounts owed by
Executive to the Company and (ii) the amount of any compensation for services
earned by Executive during the remainder of the Term, from any source, whether
paid currently or deferred. In such event, Executive shall cooperate with the
Company and shall provide such information to the Company as it may reasonably
require.
6.02. BENEFIT OF AGREEMENT; ASSIGNMENT; BENEFICIARY. (a) This
Agreement shall inure to the benefit of and be binding upon the Company and
their successors and assigns (but only to the extent the Agreement relates to
such entity), including, without limitation, any corporation or person which may
acquire all or substantially all of the Company's assets or business, or with or
into which the Company may be consolidated or merged. This Agreement shall also
inure to the benefit of, and be enforceable by, the Executive and his personal
or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amount would still be payable to the Executive hereunder if he had continued to
live, all such amounts shall be paid in accordance with the terms of this
Agreement to the Executive's beneficiary, devisee, legatee or other designee, or
if there is no such designee, to the Executive's estate.
(b) The Company shall require any successor (whether director
or indirect, by operation of law, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
6.03. NOTICES. Any notice required or permitted hereunder
shall be in writing and shall be sufficiently given if personally delivered or
if sent by registered or
- 4 -
<PAGE> 5
certified mail, postage prepaid, with return receipt requested, addressed: (a)
in the case of the Company to Bill O'Gara; and (b) in the case of Executive, to
Executive's last known address as reflected in the Company's records, or to such
other address as Executive shall designate by written notice to the Company. Any
notice given hereunder shall be deemed to have been given at the time of receipt
thereof by the person to whom such notice is given if personally delivered or at
the time of mailing if sent by registered or certified mail.
6.04. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement of the parties hereto with respect to the terms and conditions
of Executive's employment during the Term and supersedes any and all prior
agreements and understandings, whether written or oral, between the parties
hereto with respect to compensation due for services rendered hereunder. This
Agreement may not be changed or modified except by an instrument in writing
signed by both of the parties hereto.
6.05. WAIVER. The waiver of either party of a breach of any
provision of this Agreement shall not operate or be construed as a continuing
waiver or as a consent to or waiver of any subsequent breach hereof.
6.06. HEADINGS. The Article and Section headings herein are
for convenience of reference only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions hereof.
6.07. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Ohio without reference to the principles of conflict of laws.
6.08. AGREEMENT TO TAKE ACTIONS. Each party hereto shall
execute and deliver such documents, certificates, agreements and other
instruments, and shall take such other actions, as may be reasonably necessary
or desirable in order to perform his or its obligations under this Agreement or
to effectuate the purposes hereof.
6.09. VENUE AND JURISDICTION. Executive shall bring any legal
action against the Company in either Butler County Court of Common Pleas, State
of Ohio, U.S.A. or in United States District Court, Southern District of Ohio
(Western Division). Executive will not pursue legal action against the Company
in any other judicial venue. Executive submits to the jurisdiction of these
courts and waives any claim of improper venue, inconvenient forum or forum non
conveniens. Notwithstanding the foregoing, the Company may, at its sole
election, pursue legal action against Executive at any location it deems
appropriate.
6.10. SURVIVORSHIP. The respective rights and obligations of
the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
6.11. VALIDITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision or provisions of this Agreement, which
shall remain in full force and effect. If any provision of this Agreement is
held to be invalid, void or unenforceable, any court so holding shall substitute
a valid, enforceable provision that preserves, to the maximum lawful extent, the
terms and intent of this Agreement.
- 5 -
<PAGE> 6
6.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Agreement effective as of the date first written above.
O'GARA-HESS & EISENHARDT
ARMORING COMPANY
By: /S/WILFRED T. O'GARA
----------------------------
Name:
Title:
/S/MICHAEL J. LENNON
------------------------------
Executive
- 6 -
<PAGE> 7
EXHIBIT A TO EMPLOYMENT AGREEMENT
Executive shall receive as compensation for his performance
under the attached Employment Agreement the following:
(a) SALARY. The Company shall pay Executive a base salary
during the Term, payable in accordance with the normal payment procedures of the
Company and subject to such withholdings and other normal employee deductions as
may be required by law, at the annual rate of $145,000.00. The Board of
Directors of the Company shall review such compensation not less frequently than
annually during the Term.
(b) ANNUAL BONUS. In addition to base salary, Executive shall
earn incentive compensation ("incentive compensation") and the Company shall pay
each fiscal year, or any fractional period thereof during the term, incentive
compensation in accordance with the plan approved by the Compensation Committee
and the Board of Directors each fiscal year.
(c) BENEFITS. Executive shall participate during the Term in
such pension, life insurance, health, disability and major medical insurance
plans, and in such other employee benefit plans and programs, for the benefit of
the employees of the Company, as may be maintained from time to time during the
Term, in the Company's discretion, in each case to the extent and in the manner
available to other officers of the Company and subject to the terms and
provisions of such plans or programs.
(d) VACATION. Executive shall be entitled to a paid vacation
of at least three (3) weeks per annum, in accordance with Company policy (but
not necessarily consecutive vacation weeks) during the Term.
(e) STOCK AWARDS. Executive shall be entitled to receive up to
fifty percent (50%) of any incentive compensation in the form of shares of stock
of The O'Gara Company, an Ohio corporation ("TOC"). In addition, Executive shall
be eligible for grants of stock options in TOC, which grants shall be made at
the discretion of the Compensation Committee of the Board of Directors of TOC.
O'GARA-HESS & EISENHARDT
ARMORING COMPANY
By: /S/WILFRED T. O'GARA
---------------------------
Name:
Title:
/S/MICHAEL J. LENNON
------------------------------
Executive
<PAGE> 1
EXHIBIT 10.15
PROMISSORY NOTE
$__________ November ___, 1996
FOR VALUE RECEIVED, the undersigned (the "Maker") promises to pay to
the order of ____________________________________ (the "Holder"), the sum of
______________ Dollars ($______) together with interest thereon computed at the
rate of 8% per annum. Principal and interest shall be due and payable upon the
earlier of (1) the closing of the initial public offering of The O'Gara Company,
an Ohio corporation, or (ii) November ___, 1997. If The O'Gara Company fails to
close an initial public offering by the due date of this Note, Maker may, by
notice to the Holder, elect to extend this Note for an additional one-year
period by paying the Holder one-third of the principal ($______) plus accrued
interest. In such event, one year from the date of this Note, the interest rate
on the remaining balance shall be increased to 12% per annum. Thereafter, the
Maker shall pay the Holder one-half of the remaining balance ($______) together
with accrued interest on May ___, 1997 (six months after the original due date)
and the remaining balance ($______) plus accrued interest shall be due on
November ___, 1998 (an additional six months thereafter).
Payments shall be made in lawful money of the United States at
___________________________________________________, or at such other place as
may be designated in writing by the Holder.
This Note shall be considered in default at the option of the Holder
when payment required to be made hereunder shall not have been made within 10
days of any payment due date. This Note shall remain in default until said
payment shall have been made. In the event of default, the entire principal
balance shall at once become due and payable without notice at the option of the
Holder hereof. While in default, this Note shall bear interest at the rate of
18% per annum or such maximum rate of interest at the rate of 18% per annum or
such maximum rate of interest allowable under the laws of the State of Ohio.
Holder expressly waives presentment for payment, protest, notice of
protest and dishonor as prerequisites to the enforcement hereof.
<PAGE> 2
This Note and the rights and obligations of the Holder and of the
undersigned shall be governed and construed in accordance with the laws of the
State of Ohio.
O'GARA-HESS & EISENHARDT
ARMORING COMPANY
By:__________________________
PROTECTIVE LEGEND
This Note has not been registered under the federal or any state securities laws
and may not be sold, transferred or hypothecated in the absence of any effective
registration statement under such laws as may be applicable or, an opinion of
counsel to the Maker than an exemption from such applicable laws exists.
<PAGE> 1
EXHIBIT 10.16
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
T R U S T I N D E N T U R E
Between
COUNTY OF BUTLER, OHIO
And
THE CENTRAL TRUST COMPANY, N.A.
********************************************************************************
SECURING:
$2,300,000
COUNTY OF BUTLER, OHIO
VARIABLE RATE DEMAND
ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 1986
(O'GARA-HESS & EISENHARDT ARMORING COMPANY
LIMITED PARTNERSHIP PROJECT)
AND ADDITIONAL BONDS (IF ISSUED) ON A
PARITY THEREWITH, AS PROVIDED HEREIN
********************************************************************************
Dated as of September 1, 1986
THIS INSTRUMENT ALSO CONSTITUTES A SECURITY AGREEMENT
UNDER THE OHIO UNIFORM COMMERCIAL CODE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
This instrument prepared by:
M. Maynard Holcombe, Jr., Esq.
Taft, Stettinius & Hollister
1800 First National Bank Center
Cincinnati, Ohio 45202
(513) 381-2838
<PAGE> 2
TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is not a part of this
Indenture but is only for convenience of reference.)
<TABLE>
<S> <C>
Preambles ................................................................ 1
Bond Legislation ......................................................... 2
Section 1 Definitions................................................... 3
Section 2 Determinations of Legislative Authority....................... 15
Section 3 Authorization and Terms of Project Bonds...................... 16
Section 4 Terms of all Bonds............................................ 21
Section 5 Security Pledged for Bonds.................................... 22
Section 6 Sale of Project Bonds and Allocation of Purchase Price........ 22
Section 7 Source of Payment - Bond Fund................................. 24
Section 8 Additional Bonds.............................................. 26
Section 9 Covenants of Issuer........................................... 26
Section 10 Investment of Bond Fund and Construction Fund................. 29
Section 11 Indenture, Agreement and Bond Purchase Agreement.............. 29
Section 12 Other Documents............................................... 30
Section 13 Compliance with Section l2l.22, Ohio Revised Code............. 30
Section 14 Prevailing Rates of Wages..................................... 30
Section 15 Election by Issuer ........................................... 30
Section 16 Temporary Project Bonds ...................................... 31
Section 17 Approval Pursuant to Section 103(k) of the Code .............. 31
Section 18 Effective Date ............................................... 31
Further Preambles ........................................................ 33
Form of Registered Bond................................................... 34
Granting Clauses ......................................................... 45
ARTICLE I
DEFINITIONS
Definitions .............................................................. 47
ARTICLE II
FORM, EXECUTION, AUTHENTICATION,
REGISTRATION AND EXCHANGE OF BONDS
Section 2.01 Form of Bonds and Temporary Bonds........................... 48
Section 2.02 Terms of Additional Bonds................................... 48
Section 2.03 Execution and Authentication of Bonds....................... 48
Section 2.04 Transfer, Exchange and Registration of Bonds................ 49
Section 2.05 Mutilated, Lost, Wrongfully Taken or Destroyed Bonds ....... 51
</TABLE>
- i -
<PAGE> 3
<TABLE>
<S> <C>
Section 2.06 Safekeeping and Cancellation of Bonds....................... 51
Section 2.07 Delivery of the Project Bonds............................... 52
Section 2.08 Delivery of Additional Bonds................................ 54
ARTICLE III
REDEMPTION OF BONDS
Section 3.01 Privilege of Redemption and Redemption Price............... 58
Section 3.02 Issuer's Election to Redeem................................ 58
Section 3.03 Notice of Redemption....................................... 58
Section 3.04 Payment of Redeemed Bonds.................................. 58
ARTICLE IV
FURTHER PROVISIONS AS TO FUNDS,
PAYMENTS, PROJECT AND AGREEMENT
Section 4.01 Provisions for Payment..................................... 60
Section 4.02 Non-presentment of Bonds................................... 60
Section 4.03 Extension of Payment of Bonds.............................. 60
Section 4.04 Payments to Trustee and Paying Agents...................... 61
Section 4.05 Moneys to be Held in Trust................................. 61
Section 4.06 Insurance and Condemnation Proceeds........................ 61
Section 4.07 Repayment to the Company or the Letter of Credit Bank
from the Bond Fund...................................... 62
Section 4.08 Records of Construction Fund............................... 62
Section 4.09 Completion of the Project.................................. 62
Section 4.10 Amendments to Agreement and Letter of Credit Not
Requiring Consent of Bondholders........................ 63
Section 4.11 Amendments to Agreement Requiring Consent of Bondholders
and of Letter of Credit Bank ........................... 63
Section 4.12 Subordination to Rights of the Company 64
Section 4.13 Removal of Portions of Project............................. 64
Section 4.14 Amendments to Letter of Credit Requiring Consent of
Bondholders............................................. 64
Section 4.15 Letter of Credit........................................... 64
Section 4.16 Extension of Letter of Credit; Alternate Letter of Credit.. 67
Section 4.17 Release of Documents Upon Termination of Letter of Credit.. 68
</TABLE>
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<PAGE> 4
ARTICLE V
THE TRUSTEE, REMARKETING AGENT, INDEXING AGENT,
AND PAYING AGENTS
<TABLE>
<S> <C>
Section 5.01 Trustee's Acceptance and Responsibilities.................. 69
Section 5.02 Fees, Charges and Expenses of Trustee and Paying Agents.... 72
Section 5.03 Notice to Bondholders if Default Occurs.................... 72
Section 5.04 Intervention by Trustee.................................... 72
Section 5.05 Successor Trustee.......................................... 73
Section 5.06 Resignation by the Trustee................................. 73
Section 5.07 Removal of the Trustee..................................... 73
Section 5.08 Appointment of Successor Trustee........................... 73
Section 5.09 Concerning Any Successor Trustee........................... 74
Section 5.10 Successor Trustee as Custodian of Funds, Bond Registrar
and Paying Agent........................................ 74
Section 5.11 Adoption of Authentication................................. 74
Section 5.12 Trustee Protected in Relying Upon Instruments.............. 75
Section 5.13 Designation and Succession of Paying Agents................ 75
Section 5.14 Dealing in Bonds........................................... 75
Section 5.15 No Transfer of Note or Notes Held by the Trustee........... 75
Section 5.16 Investment of Construction Fund and Bond Fund.............. 76
Section 5.17 Allocation of Income from Investments...................... 77
Section 5.18 Appointment of Remarking Agent............................. 77
Section 5.19 Qualifications of Remarketing Agent........................ 78
Section 5.20 Remarketing of Bonds....................................... 79
Section 5.21 Purchase of Bonds by Remarketing Agent..................... 79
Section 5.22 Drawings on Letter of Credit for Purchase of Bonds......... 80
Section 5.23 Delivery of Proceeds of Sale............................... 81
Section 5.24 No Purchase or Sale After an Event of Default.............. 81
Section 5.25 Indexing Agent............................................. 82
Section 5.26 Reimbursement of Remarketing Agent......................... 82
ARTICLE VI
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 6.01 Defaults; Events of Default................................ 83
Section 6.02 Acceleration............................................... 85
Section 6.03 Other Remedies; Rights of Surety; Rights of Bondholders.... 86
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
Section 6.04 Right of Bondholders to Direct Proceedings................. 87
Section 6.05 Appointment of Receivers................................... 87
Section 6.06 Application of Moneys...................................... 87
Section 6.07 Remedies Vested in Trustee................................. 89
Section 6.08 Rights and Remedies of Bondholders......................... 90
Section 6.09 Termination of Proceedings................................. 90
Section 6.10 Waivers of Events of Default............................... 90
ARTICLE VII
SUPPLEMENTAL INDENTURES
Section 7.01 Supplemental Indentures Not Requiring Consent of
Bondholders............................................. 92
Section 7.02 Supplemental Indentures Requiring Consent of Bondholders... 93
Section 7.03 Consent of Company......................................... 95
Section 7.04 Authorization to Trustee; Effect of Supplement............. 95
Section 7.05 Opinion of Counsel......................................... 96
Section 7.06 Modification by Unanimous Consent.......................... 96
ARTICLE VIII
DISCHARGE OF LIEN
Section 8.01 Release of Indenture....................................... 97
Section 8.02 Payment and Discharge of Bonds............................. 97
ARTICLE IX
MISCELLANEOUS
Section 9.01 Instruments of Bondholders................................. 100
Section 9.02 Limitation of Rights....................................... 100
Section 9.03 Severability............................................... 101
Section 9.04 Notices.................................................... 101
Section 9.05 Payments Due on Saturdays, Sundays and Holidays............ 102
Section 9.06 Priority Over Other Liens.................................. 102
Section 9.07 Extent of Covenants; No Personal Liability................. 102
Section 9.08 Power to Issue Bonds and Make Pledges...................... 102
Section 9.09 Binding Effect............................................. 102
Section 9.10 Counterparts............................................... 103
Section 9.11 Captions................................................... 103
Section 9.12 Governing Law.............................................. 103
Section 9.13 Security Agreement......................................... 103
Section 9.14 Continuing Obligation...................................... 103
Signatures................................................................ 104
Exhibit A Bond Terms................................................. 105
</TABLE>
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<PAGE> 6
T R U S T I N D E N T U R E
THIS TRUST INDENTURE (hereinafter called the "Indenture") dated as of
the first day of September 1986, by and between the COUNTY OF BUTLER, OHIO (the
"Issuer"), a county and political subdivision existing under the Constitution
and the laws of the State of Ohio and THE CENTRAL TRUST COMPANY, N.A.,
Cincinnati, Ohio, a national banking association organized and existing under
the laws of the United States of America and duly authorized to exercise
corporate trust powers within the State of Ohio, with its principal place of
business located in Cincinnati, Ohio (the "Trustee"), as Trustee;
W I T N E S S E T H :
WHEREAS, by virtue of the authority of the Constitution and laws of the
State of Ohio, and particularly Article VIII, Section 13 of the Constitution and
Chapter 165 of the Ohio Revised Code, and pursuant to the Bond Legislation
referred to below, the Issuer is authorized to enter into this Indenture and to
do or cause to be done all the acts and things herein provided or required to be
done, and to issue the Bonds, all as hereinafter defined and provided for; and
WHEREAS, the Issuer has, in order to assist in the financing of certain
manufacturing facilities (hereinafter defined as the "Project"), determined to
issue the Project Bonds, as hereinafter defined, in the principal amount of
$2,300,000 to the Original Purchaser, as hereinafter defined, and the Issuer has
determined to enter into this Indenture to secure the Bonds, as hereinafter
defined, issuable hereunder, by the pledge and assignment of revenues derived by
the Issuer from the Project, together with the right to receive Loan Payments
under the Agreement, including the payments of principal, interest and any
premium on the Note, all as hereinafter defined, all as set forth and declared
in the Bond Legislation incorporated herein;
WHEREAS, the Bonds to be issued hereunder do not constitute a debt, or
a pledge of the faith and credit of the Issuer, the State of Ohio or any
political subdivision or taxing district thereof, and the holders or owners
thereof have no right to have taxes levied by the General Assembly of the State,
or the taxing authority or any political subdivision of the State (including the
Issuer), for the payment of the principal thereof or interest or any premium
thereon, but such Bonds are payable solely from revenues pledged for their
payment; and
WHEREAS, said Bond Legislation is incorporated herein, constitutes an
integral part of this Indenture, and provides, in its entirety, as follows:
<PAGE> 7
RESOLUTION NO. __________
A RESOLUTION AUTHORIZING THE ISSUANCE OF $2,300,000 VARIABLE
RATE DEMAND ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 1986 OF
THE COUNTY OF BUTLER, OHIO, IN ORDER TO ASSIST O'GARA-HESS &
EISENHARDT ARMORING COMPANY LIMITED PARTNERSHIP IN THE FINANCING
OF COSTS OF MANUFACTURING FACILITIES; AUTHORIZING THE ISSUANCE
OF ADDITIONAL BONDS; PROVIDING FOR THE PLEDGE OF REVENUES FOR
THE PAYMENT OF SAID BONDS; AUTHORIZING A LOAN AGREEMENT WITH
RESPECT TO THE PROCEEDS DERIVED FROM THE SALE OF SAID BONDS;
AUTHORIZING A TRUST INDENTURE APPROPRIATE FOR THE PROTECTION AND
DISPOSITION OF SUCH REVENUES AND FURTHER TO SECURE THE PAYMENT
OF SAID BONDS, AUTHORIZING A BOND PURCHASE AGREEMENT AND
AUTHORIZING THE ASSIGNMENT BY THE COUNTY OF BUTLER, OHIO, OF A
NOTE FROM O'GARA-HESS & EISENHARDT ARMORING COMPANY LIMITED
PARTNERSHIP.
WHEREAS, the County of Butler, Ohio (hereinafter called the
"Issuer"), a county and political subdivision in and of the State of Ohio, is by
virtue of the laws of said State, including Section 13 of Article VIII of the
Ohio Constitution and Chapter 165 of the Ohio Revised Code, and other
authorities mentioned therein, authorized and empowered, among other things, (a)
to issue revenue bonds in order to assist in the financing of costs of
manufacturing facilities located within the boundaries of the Issuer, (b) to
enter into an agreement with the user of such facilities providing for revenues,
as defined in 165.01(I) of the Ohio Revised Code, sufficient to pay the
principal of and interest and any premium on such revenue bonds, (c) to secure
such revenue bonds by a trust agreement or indenture between the Issuer and a
corporate trustee, and by a pledge and assignment of such revenues, as provided
for herein, and (d) to enact this Bond Legislation and enter into the Indenture
and the Agreement, as hereinafter identified, upon the terms and conditions
provided therein; and
WHEREAS, O'Gara-Hess & Eisenhardt Armoring Company Limited
Partnership is an Ohio limited partnership qualified to do business in the State
of Ohio; and
WHEREAS, Section 4115.032 of the Ohio Revised Code requires
designation by the Ohio Department of Industrial Relations of a prevailing wage
coordinator for any project, facility or project facility for which such
coordinator has not been designated by a public authority; and
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<PAGE> 8
WHEREAS, Section 165.12 of the Ohio Revised Code
prohibits an "issuer", as defined by Section 165.01 of the Ohio Revised Code,
being the equivalent of a "public authority" for this purpose, from using any of
its own moneys, other than moneys realized from the sale of "bonds", similarly
defined, or from donations, for any of the purposes authorized by Sections
165.01 to 165.14, inclusive, of the Ohio Revised Code, including payment of
salary or other compensation to a prevailing wage coordinator; and
WHEREAS, the Loan Agreement authorized hereby requires the
Company to request that a prevailing wage coordinator be designated for the
Project by the Ohio Department of Industrial Relations, and to provide evidence
of such request prior to issuance of the Bonds, and further provides that in the
event of failure or refusal by the Ohio Department of Industrial Relations to
make such designation, the Issuer shall do so on an interim basis at the expense
of the Company; and
WHEREAS, it is hereby determined by this Legislative Authority
that the acquisition, construction, and equipping of the Project, as hereinafter
defined, including the financing thereof, will require the issuance, sale and
delivery of Project Bonds in the principal amount of $2,300,000 and hereafter
may require the Issuer's issuance, sale and delivery of Additional Bonds on a
parity therewith, all of which Bonds shall be equally and ratably payable and
secured as provided herein and in the Indenture authorized herein:
NOW, THEREFORE, BE IT RESOLVED by the Board of County
Commissioners of the County of Butler, Ohio:
Section 1. Definitions. In addition to the words and terms
elsewhere defined in this Bond Legislation or in the Agreement, hereinafter
identified, and used herein as defined words and terms, the following words and
terms as used in this Bond Legislation and in the Indenture authorized herein
shall have the following meanings unless the context or use clearly indicates
another or different meaning or intent:
"Act" means Chapter 165 of the Ohio Revised Code, enacted and
amended pursuant to Section 13 of Article VIII and other provisions of the Ohio
Constitution.
"Additional Bonds" means Bonds issued pursuant to Section 8 of
this Bond Legislation.
"Additional Guarantees" means the personal guarantee
agreement(s) of Edward O'Gara, Vicki O'Gara and Thomas O'Gara to be executed and
delivered to the Trustee and the Letter of Credit Bank.
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<PAGE> 9
"Additional Payments" means the amounts required to be paid by
the provisions of Section 2.2 of the Agreement.
"Agency" means (i) the Butler County Community Improvement
Corporation, a community improvement corporation, and its lawful successors and
assigns, and (ii) any corporation resulting from or surviving any consolidation
or merger to which it or its successors may be a party.
"Agreement" means the Loan Agreement, provided for in Section 11
hereof, between the Issuer and the Company, dated as of September 1, 1986, as
the same may be duly amended, modified or supplemented in accordance with the
provisions thereof.
"Alternate Letter of Credit" means an irrevocable letter of
credit authorizing drawings thereunder by the Trustee, the terms of which shall
be the same in all material respects (except as to expiration date) as the
Letter of Credit, and issued by a savings and loan association or a national
bank or other commercial bank which satisfies the requirements of Section 4.16
of the Indenture, or a surety bond, a bond insurance policy or other credit
enhancement instrument, which Alternate Letter of Credit shall, in the opinion
of the Remarketing Agent, provide the Bondholders with comparable or better
security than the Letter of Credit.
"Assignment of Rents" means the Assignment of Rents and Leases
dated as of September 1, 1986, executed by the Company in favor of the Trustee
and the Letter of Credit Bank.
"Authorized Company Representative" means any person reasonably
acceptable to the Trustee and the Letter of Credit Bank from time to time
designated to act on behalf of the Company by written certificate furnished to
the Issuer and the Trustee, containing the specimen signature of such person and
signed on behalf of the Company by a general partner of the Company. Such
certificate may designate an alternate or alternates who shall have the same
authority, duties and powers as such Authorized Company Representative.
"Authorized Issuer Representative" means the person from time to
time designated to act on behalf of the Issuer by written certificate furnished
to the Company and Trustee, containing the specimen signature of such person and
signed on behalf of the Issuer by the Executive or Fiscal Officer of the Issuer
or Clerk of the Legislative Authority. Such certificate may designate an
alternate or alternates who shall have the same authority, duties and powers as
the Authorized Issuer Company Representative.
"Bonds" means the Project Bonds and any Additional Bonds issued
and to be issued pursuant to the Indenture.
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<PAGE> 10
"Bond Fund" means the Bond Fund created in Section 7 of this
Bond Legislation.
"Bond Fund Payment" means as to the Project Bonds an amount
equal to the interest accrued on the Project Bonds from their date to the date
of their delivery to the Original Purchaser and payment therefor, and as to the
Additional Bonds the amount specified in this Bond Legislation authorizing such
Additional Bonds, provided that the Bond Fund Payment for any Additional Bonds
shall not be less than an amount equal to the interest accrued on such
Additional Bonds from their date to the date of delivery of such Additional
Bonds to their original purchaser and payment therefor.
"Bond Purchase Agreement" means the Bond Purchase Agreement by
and among the Issuer, the Company, the Letter of Credit Bank and the Original
Purchaser.
"Bondholder" or "Holder" or "holder" or "holder of Bonds" means
any person in whose name a Bond is registered.
"Bond Legislation" means this resolution adopted by the
Legislative Authority of the Issuer authorizing the Project Bonds, except that
when used with reference to an issue of Additional Bonds it shall mean this
resolution to the extent applicable and other legislation providing for the
issuance of such Additional Bonds, and except that when used with reference to
Bonds when Additional Bonds are outstanding, it shall mean the resolution first
referred to above and the Bond Legislation providing for the issuance of
Additional Bonds, all as the same may from time to time be lawfully amended,
modified or supplemented.
"Bond Redemption Date" means any date, other than an Interest
Payment Date, upon which Bonds shall be redeemed pursuant to the Indenture.
"Bond service charges" for any time period or with respect to
any date means the principal, including mandatory sinking fund redemption
requirements, interest, and redemption premium, if any, required to be paid by
the Issuer on the Bonds for such time period or on such date.
"Business Day" means any day of the year, other than a Saturday
or a Sunday, on which banks located in the cities in which the principal
corporate trust office of the Trustee and the principal office of the Letter of
Credit Bank are located are not required or authorized by law to remain closed
and on which The New York Stock Exchange is not closed.
"Code" means the Internal Revenue Code of l954, as amended, and
with respect to a specific section thereof such
- 5 -
<PAGE> 11
reference shall be deemed to include (i) the regulations prescribed under such
section, (ii) any successor provision of similar import hereafter enacted, (iii)
any corresponding provision of any subsequent Internal Revenue Code, and (iv)
the regulations prescribed under the provisions described in (ii) and (iii).
"Company" means O'Gara-Hess & Eisenhardt Armoring Company
Limited Partnership, an Ohio general partnership, and its successors and assigns
including any surviving, resulting or transferee partnership or other entity as
provided in Section 6.3 of the Agreement.
"Completion Date" means the date by which acquisition,
construction and equipping of the Project is completed with such completion to
be evidenced by the certificate of the Authorized Company Representative to be
furnished with respect to the Project pursuant to Section 3.3 of the Agreement.
"Construction Fund" means the Construction Fund created in
Section 6 of this Bond Legislation.
"Construction Period" means the period between the date on which
the Project Bonds are delivered to the Original Purchaser and the Completion
Date.
"Determination of Taxability" means (i) the enactment of
legislation or the adoption of final regulations or a final decision, ruling or
technical advice by any Federal judicial or administrative authority which has
the effect of requiring interest on the Bonds to be included in the gross income
of the holders for Federal income tax purposes (other than a holder who is a
"substantial user" of the Project or a "related person" as those terms are used
in Section 103(b) of the Code and other than Bonds held by the Letter of Credit
Bank); (ii) the delivery to the Trustee of a written statement signed by the
Authorized Company Representative to the effect that the Company has exceeded or
will exceed the maximum amount of capital expenditures permitted under Section
103(b)(6)(D) of the Code; provided that no decision by any court or decision,
ruling or technical advice by any administrative authority shall be considered
final (a) unless the holder involved in the proceeding or action giving rise to
such decision, ruling or technical advice (i) gives the Company and the Trustee
prompt notice of the commencement thereof, and (ii) offers the Company the
opportunity to control the contest thereof, provided the Company shall have
agreed to bear all expenses in connection therewith and to indemnify that holder
against all liabilities in connection therewith, and (b) until the expiration of
all periods for judicial review or appeal.
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<PAGE> 12
"Eligible Investments" means:
(i) Obligations of, or guaranteed as to principal and interest
by, the United States or any agency or instrumentality
thereof when such obligations are backed by the full faith
and credit of the United States;
(ii) Federal Home Loan Mortgage Corporation (FHLMC) and Farm
Credit Banks (Federal Land Banks, Federal Intermediate
Credit Banks and Banks for Cooperatives) participation
certificates and senior debt obligations;
(iii) Federal National Mortgage Association's (FNMA) mortgage
backed securities and senior debt obligations;
(iv) Student Loan Marketing Association (Sallie Mae) letter of
credit backed issues and senior debt obligations;
(v) Federal funds, certificates of deposit, time deposits and
bankers' acceptances (having original maturities of not
more than 365 days) of any bank (including the Trustee or
its affiliates) the debt obligations of which (or, in the
case of the principal bank in a bank holding company, debt
obligations of the bank holding company) have been rated
"A-1+" (or its equivalent) by one of the Rating Services
(including the Trustee or its affiliates);
(vi) Commercial paper (having original maturities of not more
than 365 days) rated "A-1+" (or its equivalent) by one of
the Rating Services;
(vii) Obligations rated "AAA" (or its equivalent) by one of the
Rating Services (or those investments specified in (ii)
above with banks which have debt obligations rated "AAA");
(viii) Deposits which are fully insured by the Federal Savings
and Loan Insurance Corporation (FSLIC) or the Federal
Deposit Insurance Corporation (FDIC);
(ix) Repurchase agreements with any AAA rated institution;
insured by FDIC or FSLIC provided: (1) the collateral
which is the subject of the repurchase agreement is at a
level acceptable to Standard & Poor's Corporation and the
pricing
- 7 -
<PAGE> 13
and cure period are also acceptable to Standard & Poor's
Corporation, (2) the Trustee or a third party acting
solely as agent for the Trustee has possession of the
collateral, (3) the Trustee has a perfected first security
interest in the collateral, (4) the collateral is free and
clear of third party liens, and (5) failure to maintain
the requisite collateral percentage in (1) above will
require the Trustee to liquidate the collateral;
(x) Obligations of any state, or political subdivision
thereof, or any municipality, which obligations are rated
in any of the four highest generic long-term rating
categories by the Rating Services; and
(xi) Money market mutual funds, provided that such funds shall
be invested solely in obligations or securities described
in (i) through (x) above.
"Engineer" means an engineer or engineering firm or an architect
or architectural firm qualified to practice the profession of engineering or
architecture under the laws of the State of Ohio, and who or which is acceptable
to the Trustee and the Letter of Credit Bank and is not an officer, partner or
full-time employee of the Agency, the Issuer or the Company.
"Event of Taxability" means the occurrence of circumstances
wherein a Determination of Taxability shall have been found to have occurred, or
which shall constitute a Determination of Taxability, and which result in the
interest payable on the Bonds becoming includable in the gross income for
Federal income tax purposes of the holders of the Bonds (other than a holder who
is a "substantial user" of the Project or a "related person" as such are defined
or used in Section 103(b) of the Code).
"Executive" means the President of the Legislative Authority of
the Issuer.
"Fiscal Officer" means the County Auditor of the Issuer.
"Guarantee Agreement" means the Guarantee Agreement dated
as of September 1, 1986, from Occidental Resources Corp. and Cibie
Corp. ("Guarantors") to the Trustee and the Letter of Credit Bank.
"Indenture" means the Trust Indenture between the Issuer and The
Central Trust Company, N.A., Cincinnati, Ohio, as Trustee, dated as of September
1, 1986, as the same may be duly
- 8 -
<PAGE> 14
amended, modified or supplemented in accordance with the provisions thereof.
"Independent Counsel" means any attorney or firm of attorneys
acceptable to the Trustee and to the Issuer and who is not an officer, partner
or a full-time employee of the Agency, the Issuer or the Company, and in the
case of a firm, none of the attorneys or members of which is an officer, partner
or a full-time employee of the Agency, the Issuer or the Company.
"Indexing Agent" means, initially, Kenny Information Systems,
New York, New York, and any Person meeting the qualifications of Section 5.25 of
the Indenture subsequently appointed from time to time to act as Indexing Agent
pursuant to Section 5.25 of the Indenture.
"Interest Payment Date" means, as to the Project Bonds, each
March 1 and September 1, commencing March 1, 1987, and, as to Additional Bonds,
the date or dates identified as such in the Bond Legislation authorizing such
Additional Bonds.
"Interest Period" means, initially, the period from and
including September 1, 1986, to and including February 28, 1987, and thereafter,
each period commencing from and including the day next preceding the next
succeeding Interest Payment Date.
"Interest Rate Determination Date" means, with respect to the
Six-Month Interest Rate, the twelfth Business Day preceding the commencement of
the Interest Payment Date which begins the period for which the interest rate is
being determined and set.
"Interest Rate for Advances" means a rate per annum which is
equal to the sum of the Prime Rate plus two percent.
"Legal Officer" means the Prosecuting Attorney of the Issuer.
"Legislative Authority" means the Board of County Commissioners
of the Issuer.
"Letter of Credit" means (A) the irrevocable letter of credit to
be issued by the Letter of Credit Bank and delivered to the Trustee on the same
date as the delivery of the Bonds to the Original Purchaser thereof and being an
irrevocable obligation to make payment to the Trustee of up to the amounts
therein specified with respect to (a) the principal amount of the Project Bonds
outstanding to enable the Trustee to pay (i) the principal amount of the Project
Bonds when due at maturity or upon redemption or acceleration on the occurrence
of an event of default, and (ii) an amount equal to the purchase price of any
Project Bonds tendered for purchase by the holders thereof
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<PAGE> 15
which cannot be remarketed by the Remarketing Agent, plus (b) the amount of
interest due on the Project Bonds but not to exceed one hundred ninety-five
(195) days maximum accrued interest (at the rate of twelve percent (12%) per
annum) to enable the Trustee to pay interest due on the Project Bonds, plus (c)
the amount of any discount (not to exceed 2%) at which Project Bonds are
remarketed, as the same may be transferred, reissued, extended or replaced in
accordance with the Indenture and the Letter of Credit and (B) upon the issuance
thereof, any Alternate Letter of Credit.
"Letter of Credit Bank" means, as to the Project Bonds, The
Central Trust Company, N.A., Cincinnati, Ohio, and its successors under the
Letter of Credit, and the issuer of any Alternate Letter of Credit.
"Letter of Credit Termination Date" means the expiration date of
the Letter of Credit or any Alternate Letter of Credit.
"Loan" means the loan by the Issuer to the Company of the
proceeds from the sale of the Project Bonds to the Original Purchaser as the
same may hereafter be increased from the proceeds from the sale of Additional
Bonds.
"Loan Payment Date" means each Bond Redemption Date, each
Interest Payment Date, each Principal Payment Date, each Mandatory Redemption
Date and the date upon which any advance payment of principal or interest is
required by the provisions of Section 2.1 of the Agreement; and any date on
which any principal of, premium, if any, or interest on the Bonds shall be due
and payable upon mandatory redemption because of acceleration.
"Loan Payments" means the amounts required to be paid and/or
prepaid by the provisions of Section 2.1 of the Agreement, as the same may
hereafter be amended or supplemented.
"Mandatory Redemption Date" means the first day of September in
each of the years 1987 through 2016, inclusive, and as to any Additional Bonds,
the date or dates specified in the applicable Bond Legislation on which such
Additional Bonds are to be retired prior to maturity pursuant to Mandatory
Sinking Fund Requirements. As appropriate, the maturity date denoting a
particular series of Project Bonds shall be used in conjunction with the term
"Mandatory Redemption Date".
"Mandatory Sinking Fund Requirements" means amounts required by
this Bond Legislation to be deposited in the Bond Fund for the purpose of
retiring, on a specified date, principal maturities of Bonds which by their
terms are due and payable, if not called for prior to redemption, at a
subsequent date.
- 10 -
<PAGE> 16
"Mortgage" means the Open-End Mortgage and Security Agreement
from the Company to the Trustee and the Letter of Credit Bank with respect to
the Project, dated as of September 1, 1986, as the same may be duly amended,
modified or supplemented in accordance with the provisions thereof.
"Net Proceeds" means, as to any insurance proceeds or any
condemnation award, the amount remaining after deducting therefrom all expenses
(including attorneys' fees and any Extraordinary Expenses, as defined in the
Indenture, of the Trustee) incurred in the collection of such proceeds or award.
"Note" or "Notes" means the promissory note dated as of
September 1, 1986, constituting the promise of the Company to repay the Loan to
the Issuer, which Note shall be in substantially the form attached to the
Agreement as Exhibit A, and any additional promissory note or notes executed and
delivered with respect to Additional Bonds.
"Notice Address" means:
(a) As to the Issuer: County of Butler, Ohio
130 N. High Street
Hamilton, Ohio 45011
Attention: Clerk of Commissioners
(b) As to the Grantor: O'Gara-Hess & Eisenhardt Armoring
Company Limited Partnership
8959 Blue Ash Road
Cincinnati, Ohio 45242
Attention: Nicholas P. Carpinello,
President
(c) As to the Trustee: The Central Trust Company, N.A.
400 Central Trust Center
Fifth and Main Streets
Cincinnati, Ohio 45202
Attention: Corporate Trust
Department
(d) As to the Original
Purchaser: Gradison & Company Incorporated
1717 Dixie Highway, Suite 470
Ft. Wright, Kentucky 41011
Attention: Daniel R. Blank
(e) As to the Letter
of Credit Bank: The Central Trust Company, N.A.
700 Central Trust Center
Fifth and Main Streets
Cincinnati, Ohio 45202
Attention: International Dept.
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<PAGE> 17
Operations Manager
(f) As to the Remarketing Gradison & Company Incorporated
Agent: 580 Building
Cincinnati, Ohio 45202
Attention: Mr. Michael J. Link
or such different address notice of which is given under Section 10.3 of the
Agreement, but no such notice shall thereby be required to be sent to more than
two addresses.
"Original Purchaser" means, as to the Project Bonds, Gradison &
Company Incorporated, Cincinnati, Ohio, and, as to any Additional Bonds, the
person or persons identified as such in the Bond Legislation providing for the
issuance of such Additional Bonds.
"Outstanding Bonds" or "Bonds outstanding" or "outstanding" as
applied to Bonds, means, as of any date, all Bonds which have been authenticated
and delivered, or are then being delivered, by the Trustee under the Indenture
except:
(a) Bonds surrendered for and replaced upon exchange or
transfer, or cancelled because of payment or
redemption, at or prior to such date;
(b) Bonds which are deemed to have been paid and
discharged pursuant to the provisions of Section
8.02 of the Indenture; provided that if such Bonds
are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given or
arrangements satisfactory to the Trustee shall have
been made therefor, or waiver of such notice
satisfactory in form to the Trustee shall have been
filed with the Trustee; and
(c) Bonds in lieu of which others have been authenticated
(or payment, when due, of which is made without
replacement) under Section 2.05 of the Indenture;
and also except that
(d) For the purpose of determining whether the holders
of the requisite principal amount of Bonds have
made or concurred in any notice, request, demand,
direction, consent, approval, order, waiver,
acceptance, appointment or other instrument or
communication under or pursuant to the Indenture,
Bonds owned by or for the account of the Company or
any person owned, controlled by, under common
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<PAGE> 18
control with or controlling the Company, but
specifically excluding Bonds, if any, held or owned by,
or pledged to, the Letter of Credit Bank, shall be
disregarded and deemed to be not outstanding. The term
"control" (including the terms "controlling",
"controlled by" and "under common control with") means
the possession, directly or indirectly, of the power to
direct or cause the direction of the management and
policies of a person, whether through the ownership of
voting securities, by contract, or otherwise. Ownership
of 5% or more of a class of securities having general
voting power to elect a majority of the board of
directors of a corporation shall be conclusive evidence
of control of such corporation.
"Paying Agents" means any banks or trust companies designated as
the paying agencies or places of payment for Bonds by or pursuant to the
applicable Bond Legislation, and their successors designated pursuant to the
Indenture.
"Person" means an individual, a partnership, a corporation, a
trust, an unincorporated organization, a joint-stock company, an association and
a government or any department or agency thereof.
"Plans and Specifications" means the plans and specifications
for the Project now on file with the Letter of Credit Bank and the Issuer, as
revised from time to time as provided in the Agreement.
"Pledged Receipts" means (a) the Loan Payments, including the
payments of principal of and interest and any premium on the Note, (b) subject
to the provisions of Sections 3.04, 4.02 and 8.02 of the Indenture with respect
to the Trustee holding moneys for the benefit of the holders of particular
Bonds, all other moneys received by the Issuer or the Trustee for the account of
the Issuer including condemnation awards, insurance proceeds, and other payments
pursuant to the Agreement or in respect to the Loan, (c) the proceeds of the
Bonds and any moneys deposited in the Construction Fund and the Bond Fund from
whatever source, including any draws under the Letter of Credit, and (d) the
income and profit from the investment of the Loan Payments and such moneys
deposited in the Construction Fund and the Bond Fund. Moneys in the Excess
Investment Earnings Account shall not constitute Pledged Receipts.
"Prime Rate" shall have the meaning assigned to such term in the
Reimbursement Agreement.
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<PAGE> 19
"Principal Payment Date" means, as to the Project Bonds the
first day of each September in the years in which the Project Bonds mature (or
are subject to redemption pursuant to Mandatory Sinking Fund Requirements) as
provided in Section 3 of this Bond Legislation, and as to Additional Bonds, the
date or dates identified as such in the Bond Legislation authorizing such
Additional Bonds.
"Project" means the real, personal or real and personal
property, including undivided or other interests therein, identified in Exhibits
A and B of the Mortgage and Exhibits B and C of the Agreement, or in or pursuant
to any amendments thereto or hereto or in the certificate of the Authorized
Company Representative given pursuant to Section 3.3 of the Agreement, or
acquired, constructed or installed as a replacement or substitution therefor or
an addition thereto if financed from the proceeds of the Bonds, or as may result
from a revision of the Plans and Specifications in accordance with the
provisions of the Agreement.
"Project Bonds" means the Bonds initially issued by the Issuer
pursuant to the Indenture and designated "Variable Rate Demand Economic
Development Revenue Bonds, Series 1986 (O'Gara-Hess & Eisenhardt Armoring
Company Limited Partnership Project)".
"Project Purposes" means the purposes of a manufacturing
facility as described in the Act.
"Project Site" means the real property described in Exhibit C of
the Agreement.
"Rating Services" means Standard & Poor's Corporation or Moody's
Investors Service or their successors and assigns, or if both are dissolved or
no longer assigning credit ratings to long term debt, then such other nationally
recognized service assigning credit ratings to long term debt designated by the
Company and acceptable to the Remarketing Agent and the Letter of Credit Bank.
"Registered Bonds" means Bonds registered in the name of the
holder.
"Regular Record Date" means, with respect to any Bond, the 15th
day preceding an Interest Payment Date applicable to that Bond.
"Reimbursement Account" means the Reimbursement Account in the
Bond Fund created pursuant to Section 4.01 of the Indenture."
- 14 -
<PAGE> 20
"Reimbursement Agreement" or "Letter of Credit Agreement" means
the Letter of Credit Agreement by and between the Company and the Letter of
Credit Bank pursuant to which the Letter of Credit is to be issued, as from time
to time replaced, supplemented or amended.
"Remarketing Agent" means the Remarketing Agent appointed in
accordance with the Indenture, initially Gradison & Company Incorporated,
Cincinnati, Ohio, and any Person meeting the qualifications of Section 5.19 of
the Indenture and designated from time to time to act as Remarketing Agent under
Section 5.19 of the Indenture.
"Remarketing Agreement" means the Remarketing Agreement
dated as of September 1, 1986, by and among the Company, the Letter of Credit
Bank, the Remarketing Agent and the Trustee.
"Security Agreement" means the Security Agreement dated as of
September 1, 1986, from the Company to the Trustee and the Letter of Credit
Bank.
"State" means the State of Ohio.
"Termination Date" means September 1, 2016, subject to earlier
termination as provided in the Agreement.
"Trustee" means the bank or trust company at the time serving as
Trustee under the Indenture.
Any reference herein to the Issuer, to the Legislative
Authority, or to any officers thereof, shall include any person or entity which
succeeds to its or their duties or responsibilities pursuant to or by operation
of law. Any reference to a section or provision of the Ohio Constitution or the
Act or to a section, provision or chapter of the Ohio Revised Code shall include
such section or provision or chapter as from time to time amended, modified,
revised, supplemented, or superseded; provided, however, that no such change in
the Constitution or laws (a) shall alter the obligation to pay the Bond service
charges in the amounts and manner, at the times, and from the sources provided
in this Bond Legislation and the Indenture, except as otherwise herein permitted
or (b) shall be deemed applicable by reason of this provision if such change
would in any way constitute an impairment of the rights of the Issuer, the
Trustee, the Letter of Credit Bank or the Company under the Agreement or the
Indenture.
Unless the context shall otherwise indicate, words importing the
singular number shall include the plural number, and vice versa, and the terms
"hereof", "hereby", "hereto", "hereunder", and similar terms, mean this Bond
Legislation and the Indenture.
- 15 -
<PAGE> 21
Section 2. Determinations of Legislative Authority. The
Legislative Authority hereby determines:
(a) That the property to be acquired by the Company by
purchase, improvement and installation, through the
Loan is now and after improvement will be useful to the
Project (consisting generally of a facility for the
manufacture of armored automobiles); and
(b) the Project is a "project" as that term is defined in
Section 165.01 of the Ohio Revised Code, is consistent
with the purposes of Section 13 of Article VIII of the
Ohio Constitution and the Act and will benefit the
people of the Issuer by creating or preserving jobs and
employment opportunities and promoting the commercial
and economic development of the Issuer and the State.
Section 3. Authorization and Terms of Project Bonds.
(a) Authorization. It is hereby determined to be necessary to,
and the Issuer shall, issue, sell and deliver, as provided and authorized herein
and pursuant to the authority of the Act, $2,300,000 aggregate principal amount
of Project Bonds for the purpose of making a loan to assist the Company in the
financing of costs of acquiring, constructing and installing the Project to be
owned by the Company and used by the Company for the Project Purposes, including
costs incidental thereto and to the financing thereof. Said Project Bonds shall
be designated "Variable Rate Demand Economic Development Revenue Bonds, Series
1986 (O'Gara-Hess & Eisenhardt Armoring Company Limited Partnership Project)".
The Issuer may also issue, sell and deliver Additional Bonds on a parity with
the Project Bonds for the purposes and in the manner provided in Section 8 of
this Bond Legislation.
(b) Form, Denominations, Dates and Interest Rate. The Project
Bonds shall be issued in fully registered form in the manner and on the terms
provided in the Indenture, and shall be numbered from 1 upward. Project Bonds
shall be in the denomination of $5,000 or any integral multiple thereof. The
Project Bonds shall mature on the date set forth below.
<TABLE>
<CAPTION>
Principal
Amount Maturity
--------- --------
<S> <C>
$2,300,000 September 1, 2016
</TABLE>
- 16 -
<PAGE> 22
Project Bonds shall initially be dated as of September 1, 1986, and thereafter
shall be dated as of the Interest Payment Date next preceding the date of their
authentication, unless authenticated upon an Interest Payment Date in which case
they shall be dated as of the date of their authentication; provided, however,
that if at the time of authentication of any Bond interest thereon is in
default, such Bond shall be dated as of the date to which interest has been
paid. Interest on the Project Bonds shall be calculated on the basis of 360-day
years consisting of twelve 30-day months.
Interest on the Project Bonds shall be payable as follows: for
the first Interest Period, i.e., from September 1, 1986 to and including
February 28, 1987, the Project Bonds shall bear interest at the rate of five and
one-fourth percent (5 1/4%) per annum, payable on March 1, 1987. From and after
March 1, 1987, the Project Bonds shall bear interest at the percentage per annum
(the "Six-Month Interest Rate") determined as of the Interest Rate Determination
Date immediately preceding such Interest Period (a) by the Remarketing Agent to
be that rate per annum which, if borne by all the outstanding Project Bonds,
would, in the judgment of the Remarketing Agent (taking into consideration
current transactions and comparable securities in which the Remarketing Agent is
involved or of which it is aware and prevailing financial market conditions), be
the interest rate necessary (but which would not exceed the interest rate
necessary) to produce as nearly as practical a par bid for each outstanding
Project Bond on the Interest Rate Determination Date, provided, that the
interest rate so determined shall not be more than one hundred thirty-five
percent (135%) nor less than eighty percent (80%) of the Six-Month Interest
Index for such Interest Period or (b) in the event that either the Indexing
Agent no longer computes or fails to compute the Six-Month Interest Index and no
other municipal securities evaluation service has been appointed by the Issuer,
or the Remarketing Agent has been removed and no successor appointed, by the
Trustee to be that rate per annum equal to eighty-five percent (85%) of the bond
equivalent yield of thirteen-week United States Treasury bills determined on the
basis of the average per annum discount rate at which such thirteen-week
Treasury bills shall have been sold at the most recent Treasury auction held
during the seventeen (17) Business Days ending on or including the Interest Rate
Determination Date, or, if no such auction shall have been conducted during such
seventeen (17) Business Days ending on the Business Day preceding the Interest
Rate Determination Date, the bond equivalent yield of thirteen-week United
States Treasury bills shall be determined on the basis of the arithmetic average
of the mean between the closing bid and asked per annum market discount rates
for the issue of Treasury bills or other Treasury obligations with a maturity
date closest to ninety-one (91) days from the date of quotation (selecting the
bills or other obligations with the
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<PAGE> 23
earlier maturity in the case of two issues with maturity dates equally close to
ninety-one (91) days), as reported daily on a composite basis by the Federal
Reserve Bank of New York for the first, second and third Business Days
immediately preceding the Interest Rate Determination Date. Anything herein to
the contrary notwithstanding, in no event shall the Six-Month Interest Rate
exceed twelve percent (12%) per annum.
The Six-Month Interest Index shall be based upon six-month yield
evaluations at par of not less than twenty (20) nor more than forty (40) issues
of securities (which may include without limitation issues of commercial paper,
project notes, bond anticipation notes and tax anticipation notes), the interest
on which is exempt from Federal income taxation (the "High Grade Component
Issues") selected by the Indexing Agent for the purpose of computing its
"Six-Month High Grade Municipal Index" which is offered generally by the
Indexing Agent to its subscribers and identified in a certificate delivered by
the Indexing Agent. The issues included in the computation of the Index, after
notice to the Issuer, the Company, the Trustee, the Remarketing Agent and the
Letter of Credit Bank may be changed, added or reduced from time to time by the
Indexing Agent. If the Issuer, the Company or the Letter of Credit Bank objects
to the proposed change, the Indexing Agent will replace, beginning with the next
computation, the issue to which an objection has been made.
The computation of the Six-Month Interest Index by the Indexing
Agent, and the computation of the Six-Month Interest Rate by the Remarketing
Agent or the Trustee, as applicable, shall be binding and conclusive upon the
holders of the Project Bonds.
Anything in this Bond Legislation to the contrary
notwithstanding to the extent the Letter of Credit Bank either holds or is
pledged the Project Bonds or any portion thereof, the interest rate on such
Project Bonds shall be the Letter of Credit Bank Rate (as such term is defined
in Exhibit A to the Indenture).
(c) Extraordinary Optional Redemption. In the event the Company
exercises its option to prepay the Loan as provided in Section 8.2(a) and 8.2(b)
of the Agreement, the Project Bonds are subject to extraordinary optional
redemption by the Issuer prior to stated maturity at any time in whole at a
redemption price of 100% of the principal amount thereof plus accrued interest
to the redemption date.
The exercise of any such prepayment option by the Company shall
be conditioned on the deposit by the Company of sufficient funds with the Letter
of Credit Bank in accordance
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<PAGE> 24
with Section 2.1 of the Agreement or waiver of such requirement by the Letter of
Credit Bank.
Notice from the Company to the Trustee pursuant to Section 8.4
of the Agreement that the Company shall exercise its option to prepay the Loan
pursuant to Section 8.2 of the Agreement, shall constitute the direction from
the Issuer to the Trustee to call all of the then outstanding Project Bonds for
extraordinary optional redemption pursuant to this paragraph, and no separate
notice from the Issuer to the Trustee shall be required.
(d) General Optional Redemption. Except as expressly authorized
in Section 8.2(a) and 8.2(b) of the Agreement and as required in Section 8.3 of
the Agreement, the Company shall not be entitled to prepay all or any part of
the Loan prior to March 1, 1987. The Company has an option, exercisable on any
Interest Payment Date occurring on and after March 1, 1987, upon giving notice
in accordance with Section 8.4 of the Agreement, to prepay all or part (in the
amount of $5,000 or any integral multiple thereof) of the Loan Payments at a
prepayment price equal to 100% of the principal amount to be prepaid, without
penalty or premium, but with accrued interest to the date of such prepayment.
The exercise of any such prepayment option by the Company shall
be conditioned on the deposit by the Company of sufficient funds with the Letter
of Credit Bank in accordance with Section 2.1 of the Agreement or waiver of such
requirement by the Letter of Credit Bank.
Notice from the Company to the Trustee pursuant to Section 8.4
of the Agreement that the Company shall exercise its general option to prepay
the Loan pursuant to Section 8.2 of the Agreement, shall constitute the
direction from the Issuer to the Trustee to call all or part of the then
outstanding Project Bonds for general optional redemption pursuant to this
paragraph, and no separate notice from the Issuer to the Trustee shall be
required.
(e) Special Mandatory Redemption Upon Unenforceability or
Taxability. The Project Bonds are also subject to special mandatory redemption
by the Issuer prior to stated maturity at any time in whole if and when (i) the
Agreement shall have become void or unenforceable or impossible of performance
in accordance with the intent and purpose of the parties as expressed in the
Agreement by reason of any changes in the Constitution of the State or the
Constitution of the United States of America or by reason of legislative or
administrative action (whether state or Federal) or any final decree, judgment
or order of any court or administrative body (whether state or Federal) entered
after the contest thereof by the Issuer or the
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<PAGE> 25
Company in good faith to the effect that the Note and the obligations evidenced
thereby are no longer enforceable by the holder thereof, or (ii) interest on the
Project Bonds shall have become subject to Federal income tax because of a
Determination of Taxability. The redemption price in any such events shall be
100% of the principal amount of the Project Bonds outstanding plus accrued
interest to the redemption date. Any such redemption shall be made not more than
120 days following the effective date of such constitutional amendment,
legislation, administrative action or decree, judgment or order, or following
the date of the Determination of Taxability (excluding any final determination
that interest is subject to Federal income tax with respect to any Project Bond
because such Project Bond is held by a "substantial user" of the Project or by a
"related person", as those terms are used in Section 103(b) of the Code). Notice
from the Company to the Trustee pursuant to Section 8.4 of the Agreement that
the Company shall prepay the Loan in full as required under Section 8.3 of the
Agreement, shall constitute the direction from the Issuer to the Trustee to call
all the then outstanding Project Bonds for special mandatory redemption pursuant
to this paragraph, and no separate notice from the Issuer to the Trustee shall
be required.
(f) Mandatory Sinking Fund Redemption. The Project Bonds are
subject to mandatory sinking fund redemption, prior to maturity, on September 1
in the years 1987 through 2016, inclusive, at the redemption price of 100% of
the principal amount thereof plus accrued interest to the redemption date, as
provided in Section 7 hereof.
(g) Special Mandatory Redemption Upon Expiration of Letter of
Credit. The Project Bonds are subject to mandatory redemption in whole on the
Letter of Credit Termination Date or any subsequent date to which the Letter of
Credit Termination Date shall have been extended at a redemption price of 100%
of the principal amount thereof plus accrued interest to the redemption date
unless, at least forty-five (45) days prior to any such Letter of Credit
Termination Date (a) the Letter of Credit Bank shall have agreed to an extension
or further extension of the Letter of Credit Termination Date to a date not
earlier than one (1) year from the Letter of Credit Termination Date being
extended or (b) the Company shall have obtained an Alternate Letter of Credit
with a termination date not earlier than one (1) year from the Letter of Credit
Termination Date for the Letter of Credit it replaces.
(h) Method of Redemption. Notice of the call for any redemption
of Project Bonds, identifying by designation, letters, numbers, or other
distinguishing marks, the Project Bonds to be redeemed, the redemption price to
be paid, the date fixed for redemption and the place or places where the amounts
due upon such redemption are payable, shall be given by the
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<PAGE> 26
Trustee on behalf of the Issuer by mailing a copy of the redemption notice by
first class mail at least thirty days prior to the date fixed for redemption to
the registered owner of each Bond to be redeemed at the address shown on the
registration books kept by the Trustee; provided, however, that failure to give
such notice by mailing, or any defect in such notice, shall not affect the
validity of any proceedings for the redemption of the Project Bonds.
If less than the entire unmatured portion of the Project Bonds
be called for redemption at any time or from time to time, the Project Bonds to
be redeemed shall be selected in the inverse order of their maturities, and
within any maturity the selection of such Project Bonds or portion of fully
registered Project Bonds shall be made by lot in such manner as may be
designated by the Trustee; provided, however, that if Project Bonds have been
pledged to the Letter of Credit Bank as a result of a Remarketing Drawing (as
defined in the Letter of Credit) or purchased by the Letter of Credit Bank
pursuant to the Remarketing Agreement, Project Bonds so held by the Letter of
Credit Bank will be selected for redemption by the Trustee prior to any
selection by lot.
(i) Place of Payment. Bond service charges on Project
Bonds shall be payable, without deduction for services of the Paying Agent, in
the manner provided in the Project Bonds.
(j) Execution. The Project Bonds shall be executed by at least
two members of the Legislative Authority of the Issuer, provided that any of
such signatures may be facsimiles.
(k) Appointment of Remarketing Agent and Indexing Agent.
The Issuer hereby appoints Gradison & Company Incorporated,
Cincinnati, Ohio, as the Remarketing Agent under the Indenture and
Kenny Information Systems, New York, New York, as Indexing Agent
under the Indenture.
Section 4. Terms of all Bonds. All Bonds shall bear such
designation as may be necessary to distinguish them from Bonds of any other
series. Bond service charges on all Bonds shall be payable in lawful money of
the United States of America. Bonds shall be issued as fully registered Bonds.
All Bonds shall be negotiable instruments within the meaning of Chapter 165 of
the Ohio Revised Code, subject to applicable provisions for registration, and
shall express on their faces the purpose for which they are issued and such
other statements or legends as may be required by law.
All Bonds shall be executed in the manner provided in the Bond
Legislation authorizing their issuance or in the manner provided by the
applicable law in effect at the time of their issuance. In case any officer
whose signature or a facsimile of
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<PAGE> 27
whose signature shall appear on any Bonds shall cease to be such officer before
the issuance, authentication or delivery of such Bonds, such signature or such
facsimile shall nevertheless be valid and sufficient for all purposes, the same
as if he or she had remained in office until that time.
Unless otherwise provided in the Bond Legislation authorizing
the issuance of Additional Bonds, notice of call for redemption of all Bonds
shall be given in the manner provided in Section 3 hereof for the notice of call
for redemption of the Project Bonds. If Bonds or portions of fully registered
Bonds are duly called for redemption and if on such redemption date moneys for
the redemption of all the Bonds to be redeemed, together with accrued interest
to the redemption date, shall be held by the Trustee or Paying Agents so as to
be available therefor, then from and after such redemption date such Bonds or
portions of fully registered Bonds shall cease to bear interest.
Section 5. Security Pledged for Bonds. As provided herein, the
Project Bonds shall be equally and ratably payable solely from the Pledged
Receipts and secured by a pledge of and lien on moneys deposited in the
Construction Fund and the Bond Fund, and a pledge and assignment of other moneys
constituting Pledged Receipts, and further secured by the Indenture and by the
pledge and assignment of the Note and by the Mortgage, the Assignment of Rents,
the Security Agreement and the Guarantee; and anything in this Bond Legislation,
the Bonds, the Agreement, Mortgage and the Assignment of Rents or the Indenture
to the contrary notwithstanding, neither this Bond Legislation, the Bonds, the
Agreement, Mortgage, the Security Agreement, the Assignment of Rents nor the
Indenture shall constitute a debt or a pledge of the faith and credit of the
Issuer or of the State or any political subdivision thereof and the holders or
owners of the Bonds shall have no right to have taxes levied by the General
Assembly of the State or the taxing authority of the Issuer or of any other
political subdivision of the State for the payment of the principal of, premium,
if any, or interest on the Bonds, but such Bonds are payable solely from the
Pledged Receipts and the Bonds shall contain on the face thereof a statement to
that effect.
Section 6. Sale of Project Bonds; Allocation of Purchase Price.
The Executive and Fiscal Officer are hereby authorized and directed to offer for
sale the Project Bonds to the Original Purchaser for purchase by the Original
Purchaser at the price set forth in the Bond Purchase Agreement, plus accrued
interest, in accordance with the terms and provisions of this Bond Legislation,
and to make the necessary arrangements on behalf of the Issuer with the Original
Purchaser to establish the date, location, procedure and conditions for the
delivery of the Project Bonds to the Original Purchaser. The Executive and
Fiscal Officer further are hereby authorized and directed to
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<PAGE> 28
take all steps necessary to effect due authentication, delivery and security of
the Project Bonds under the terms of this Bond Legislation and the Indenture,
and it is hereby determined that the aforesaid purchase price and the interest
rate for the Project Bonds and the manner of sale, as provided in this Bond
Legislation, are in compliance with all legal requirements. The Clerk of the
Legislative Authority shall furnish to the Original Purchaser a true transcript
of proceedings had with reference to the issuance of the Project Bonds,
certified by him or her, along with such information from his or her records as
is necessary to determine the regularity and validity of the issuance of said
Bonds.
The distribution of a Preliminary Offering Circular relating to
the Project Bonds is ratified and approved hereby. The use and distribution of a
final Offering Circular, relating to the original issuance of the Bonds,
substantially in the form now on file with the Issuer and any supplements
thereto is authorized hereby. The Issuer has not confirmed, and assumes no
responsibility for the accuracy, sufficiency or fairness of, any statements in
the Preliminary Offering Circular or the final Offering Circular or any
supplements thereto, or in any reports, financial information, offering or
disclosure documents or other information in any way relating to the Project,
the Company, the Letter of Credit Bank, the Remarketing Agent, the Indexing
Agent or the Original Purchaser.
At the time of issuance, delivery of and payment for the Project
Bonds, the Bond Fund Payment shall be deposited from the purchase price for the
Project Bonds into the Bond Fund.
There is hereby created by the Issuer and ordered maintained as
a separate deposit account (except when invested as hereinafter provided) in the
custody of the Trustee a trust fund to be designated "County of Butler,
Ohio--O'Gara-Hess & Eisenhardt Armoring Company Limited Partnership Construction
Fund" (herein called the "Construction Fund"). The Bond proceeds, after payment
of bond discounts, shall be used to fund the Bond Fund with the Bond Fund
Payment and the balance to fund the Construction Fund. Moneys in the
Construction Fund shall be disbursed by the Trustee in accordance with the
provisions of the Agreement, and the Trustee is hereby authorized and directed
to issue its check for each disbursement required by the provisions of the
Agreement. The Issuer covenants and agrees promptly to take whatever action, if
any, is necessary in approving and ordering all such disbursements.
The moneys to the credit of the Construction Fund shall, pending
application thereof as above set forth, be subject to a lien and charge in favor
of the holders of the Project Bonds, but only to the extent of their interest
therein.
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<PAGE> 29
Moneys in the Construction Fund shall be applied to payment of
the costs of acquiring, constructing, furnishing and equipping the Project in
accordance with the Agreement. Any moneys remaining in the Construction Fund
after payment of such costs will be applied as provided in Section 4.2(g) of the
Agreement.
Moneys in the Construction Fund can be disbursed by the Trustee
only in accordance with the Disbursement Agreement.
There is hereby also created by the Issuer and ordered
maintained as a separate deposit account in the custody of the Trustee, a trust
fund to be designated "County of Butler, Ohio--O'Gara-Hess & Eisenhardt Armoring
Company Limited Partnership Excess Investment Earnings Account" (the "Excess
Investment Earnings Account") and therein a Principal Subaccount and an Interest
Subaccount as provided in the Indenture.
Section 7. Source of Payment - Bond Fund. As provided in the
Agreement, moneys sufficient in time and amount to pay the Bond service charges
as they come due are to be drawn by the Trustee from the Letter of Credit Bank
pursuant to the Letter of Credit (or paid by the Company directly to the
Trustee, including payments received on the Note) for the account of the Issuer
and deposited in the Bond Fund. Under the provisions of the Agreement, payments
with respect to the Note received by the Trustee shall be deposited into the
Reimbursement Account in the Bond Fund for the account of the Issuer and shall
constitute Loan Payments.
There is hereby created by the Issuer and ordered maintained, as
a separate deposit account (except when invested as hereinafter provided) in the
custody of the Trustee, a trust fund to be designated "County of Butler,
Ohio--O'Gara-Hess & Eisenhardt Armoring Company Limited Partnership Revenue Bond
Fund" (herein called the "Bond Fund"). The Bond Fund (and accounts therein
provided for in the Indenture or in the Agreement) and the moneys and
investments therein are hereby pledged to and shall be used for the payment of
Bond service charges, all as provided herein and in the Indenture and the
Agreement, provided that no part thereof (except as may otherwise be provided
for herein and in the Indenture or the Agreement) shall be used to redeem or
purchase, prior to maturity, any Bonds.
On or before each date when Bond service charges are due and
payable, the Trustee shall transmit from moneys in the Bond Fund applicable
thereto to any other Paying Agents, as appropriate, amounts sufficient to meet
payments to be made by them of Bond service charges then to be due and payable;
provided that to the extent that the amount needed by any other Paying Agent is
not sufficiently predictable, the Trustee may
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<PAGE> 30
make such credit arrangements with such Paying Agent as to permit meeting such
payments.
There shall be deposited into the Bond Fund (and credited, if
required by the Indenture or the Agreement, to appropriate accounts therein), as
and when received, (a) all Loan Payments, (b) all moneys drawn by the Trustee
under the Letter of Credit for the payment of principal of or interest on the
Project Bonds, and (c) all other Pledged Receipts, except those amounts required
by the Indenture or the Agreement to be deposited in the Construction Fund or
any other separate insurance or condemnation proceeds account.
As and for the Mandatory Sinking Fund Requirements for the
retirement, by mandatory redemption pursuant to Section 3 hereof, of the Project
Bonds the aggregate of the Loan Payments specified in Section 2.1 of the
Agreement which are to be deposited in the Bond Fund on or before each Loan
Payment Date (as defined in the Agreement) shall include amounts sufficient to
redeem on each corresponding Mandatory Redemption Date the principal amount of
Project Bonds set opposite the appropriate year in the Bond Purchase Agreement
and Exhibit A to the Indenture. For the purpose of effecting said mandatory
redemption the Trustee, on behalf of the Issuer, and without necessity for
further action by the Company, shall cause to be redeemed, in the manner
provided in Section 3 hereof, on each Mandatory Redemption Date such an
aggregate principal amount of the Project Bonds as equals the Mandatory Sinking
Fund Requirements as provided for above in this Section 7 for the applicable
Mandatory Redemption Date; provided, however, that Loan Payments shall be
decreased by credits for the Bond Fund Payment, for the proceeds of business
interruption insurance deposited in the Bond Fund, for the amount of any
penalties or liquidated damages received or withheld under construction
contracts and deposited in the Bond Fund, and for certain Project Bonds
theretofore redeemed by the Trustee or delivered to the Trustee by the Company,
all in accordance with Sections 2.1 and 2.10 of the Agreement.
The Issuer hereby covenants and agrees that so long as any of
the Bonds are outstanding it will deposit or cause to be deposited in the Bond
Fund, Pledged Receipts sufficient in time and amount to pay the Bond service
charges as the same become due and payable, and to this end the Issuer covenants
and agrees that, so long as any Bonds are outstanding, it will diligently and
promptly proceed in good faith and use its best efforts to enforce the
Agreement, and that, should there be an event of default under the Agreement,
the Issuer shall fully cooperate with the Trustee and with the Bondholders to
protect fully the rights and security of the Bondholders hereunder. Nothing
herein shall be construed as requiring the Issuer to use or
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apply to the payment of Bond service charges any funds or revenues from any
source other than Pledged Receipts.
The Issuer covenants and agrees, whenever the moneys and
investments in the Bond Fund (or otherwise held by the Trustee for such purpose)
are sufficient in amount to redeem all of the Bonds then outstanding and to pay
interest to accrue thereon to the date or dates of such redemption, to take and
cause to be taken, at the direction of the Company, the necessary steps to
redeem all of said Bonds on the next succeeding redemption date or dates for
which the required notice of call for redemption may be given.
Section 8. Additional Bonds. At the request of the Company with
the prior written consent of the Letter of Credit Bank, which consent may be
withheld in its absolute discretion, if the Company is not then in default under
the Agreement, upon delivery to the Trustee of an irrevocable letter of credit,
substantially in the form of the Letter of Credit, the Issuer, to the extent
permitted by law (including the Act) then in effect and for purposes consistent
with the Act, shall use its best efforts to issue Additional Bonds from time to
time to provide loans to the Company for: (i) completion of the Project,
including additional costs incurred in acquiring, constructing and equipping the
Project, or (ii) restoring or repairing the Project following any condemnation
thereof or damage thereto to the extent the Net Proceeds of any insurance or
condemnation award are insufficient to pay for same, or (iii) acquiring or
constructing improvements to the Project, (iv) refunding the Project Bonds or
any one or more series of Additional Bonds, or (v) any combination of the
foregoing; provided, that the proceeds of any Additional Bonds shall, except to
the extent issued for the purpose described in clause (iv), be used solely to
pay permissible costs under the Act. Such Additional Bonds shall be on a parity
with the Project Bonds and any Additional Bonds theretofore or thereafter
issued, except with respect to any moneys drawn by the Trustee under the Letter
of Credit and deposited in the Bond Fund, which shall be used only for the
payment of principal of and interest on the Project Bonds. Before any Additional
Bonds are authenticated there shall be delivered to the Trustee the items
required by Section 2.08 of the Indenture and (a) any necessary amendment of the
Agreement to provide for increased Loan Payments so that the aggregate of the
Loan Payments thereafter payable under the Agreement shall be sufficient in
amount to make all required payments into the Bond Fund in order to pay when due
Bond service charges on all Bonds then to be outstanding, and for all Additional
Payments (as defined in the Agreement) by the Company under the provisions of
the Agreement and the Bond Legislation, and (b) either the opinion of nationally
recognized bond counsel or a ruling of the Internal Revenue Service of the
United States Department of Treasury that the issuance of such series of
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Additional Bonds will not adversely affect the exemption from Federal income
taxation of the interest paid or payable on any outstanding Bonds.
Section 9. Covenants of Issuer. In addition to other covenants
of the Issuer contained in this Bond Legislation and the Indenture, the Issuer
further covenants and agrees as follows:
(a) Payment of Bond Service Charges. The Issuer will, solely
from Pledged Receipts pay or cause to be paid the Bond service charges on each
and all Bonds on the dates, at the places and in the manner provided herein, in
the applicable Bond Legislation and in the Bonds.
(b) Performance of Covenants, Authority and Actions. The Issuer
will at all times faithfully observe and perform all agreements, covenants,
undertakings, stipulations and provisions contained in the Bond Legislation, the
Agreement, the Indenture and in any and every Bond executed, authenticated and
delivered under the Indenture, and in all proceedings of the Issuer pertaining
to the Bonds, the Indenture or the Agreement. The Issuer warrants and covenants
that it is, and upon delivery of the Project Bonds will be, duly authorized by
the Constitution and laws of the State, including particularly and without
limitation the Act, to issue the Project Bonds and to execute the Indenture, the
Agreement and the Bond Purchase Agreement, to provide the security for payment
of the Bond service charges in the manner and to the extent herein and in the
Indenture set forth; that all actions on its part for the issuance of the
Project Bonds and execution and delivery of the Indenture, the Agreement and the
Bond Purchase Agreement have been or will be duly and effectively taken; and
that the Project Bonds in the hands of the holders thereof will be valid and
enforceable special obligations of the Issuer according to the terms thereof.
Each provision of this Bond Legislation, the Indenture, the Agreement, the Bond
Purchase Agreement and the Bonds is binding upon each such officer of the Issuer
as may from time to time have the authority under law to take such actions as
may be necessary to perform all or any part of the duties required by such
provision; and each duty of the Issuer and of its officers undertaken pursuant
to such proceedings for the issuance of the Bonds is established as a duty of
the Issuer and of each such officer having authority to perform such duty,
specifically enjoined by law and resulting from an office, trust, or station
within the meaning of Section 2731.01 of the Ohio Revised Code, providing for
enforcement by writ of mandamus.
(c) Pledged Receipts. Except as otherwise provided in this Bond
Legislation, the Indenture and the Agreement, the Issuer will not create or
suffer to be created any debt, lien or charge thereon, or make any pledge or
assignment of or create any debt, lien or
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charge thereon, or make any pledge or assignment of or create any lien or
encumbrance upon the Pledged Receipts, including the moneys in the Bond Fund and
Construction Fund, other than the pledge and assignment thereof under this Bond
Legislation, the Indenture and the Agreement.
(d) Recordings and Filings. The Issuer will, at the expense of
the Company, cause (to the extent required by the laws of the State to perfect
such instruments and/or the lien created thereby) all necessary financing
statements, amendments thereto, continuation statements and instruments of
similar character relating to the pledges and assignments made by it to secure
the Bonds, to be recorded and filed in such manner and in such places and to the
extent required by law in order to fully preserve and protect the security of
the holders of the Bonds and the rights of the Trustee under the Indenture.
(e) Inspection of Project Books. All books and documents in the
Issuer's possession relating to the Project or the Pledged Receipts shall at all
times be open to inspection by such accountants or other agents of the Trustee
or the Letter of Credit Bank as the Trustee or the Letter of Credit Bank may
from time to time designate.
(f) Rights under Agreement. The Trustee, in its name or in the
name of the Issuer, may, for and on behalf of the Bondholders, enforce all
rights of the Issuer and all obligations of the Company under and pursuant to
the Agreement and Note, whether or not the Issuer is in default of the pursuit
or enforcement of such rights and obligations.
(g) Maintenance of Agreement. The Issuer shall do all things and
take all actions on its part necessary to comply with the obligations, duties
and responsibilities on the part of the Issuer under the Agreement, and will
take all actions within its authority to maintain the Agreement in effect in
accordance with the terms thereof and to enforce and protect the rights of the
Issuer thereunder, including actions at law and in equity, as may be
appropriate.
(h) Arbitrage Provisions. The Issuer will, to the extent that it
is in a position to control or direct such matters, restrict the use of the
proceeds of the Project Bonds in such manner and to such extent, if any, as may
be necessary, after taking into account reasonable expectations at the time the
Project Bonds are delivered to the Original Purchaser, so that they will not
constitute "arbitrage bonds" under Section 103(c) of the Internal Revenue Code
of 1954, as amended, and the regulations promulgated under that section. The
Fiscal Officer or any other officer having responsibility with respect to the
issuance of the Project Bonds, is authorized and directed, alone
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or in conjunction with any of the foregoing or with any other officer, employee,
consultant or agent of the Legislative Authority, or any partner of the Company,
and upon receipt of satisfactory indemnities, to give an appropriate certificate
on behalf of the Issuer, for inclusion in the transcript of proceedings for the
Project Bonds, setting forth the facts, estimates and circumstances and
reasonable expectations pertaining to said Section 103(c) and regulations
thereunder. The Issuer also will, to the extent it is in a position to control
or direct such matters, comply with Section 103(c)(6) of the Code.
Section 10. Investment of Bond Fund and Construction Fund.
Except as otherwise provided in the Indenture, moneys in the Bond Fund and the
Construction Fund shall be invested and reinvested by the Trustee in Eligible
Investments, in accordance with and subject to the orders (if verbal, to be
confirmed in writing) of the Authorized Company Representative with respect
thereto, provided that investments of moneys in the Bond Fund shall mature or be
redeemable at the option of the Trustee at the times and in the amounts
necessary to provide moneys hereunder to pay Bond service charges as they fall
due at stated maturity or by redemption or pursuant to any Mandatory Sinking
Fund Requirements, and further provided that moneys in the Reimbursement Account
in the Bond Fund shall mature or be redeemable at the option of the Trustee at
the times and in the amounts necessary to reimburse the Letter of Credit Bank
for draws under the Letter of Credit, and provided that each investment of
moneys in the Construction Fund shall in any event mature or be redeemable at
the option of the Trustee at such time as may be necessary to make timely
payments from said Construction Fund. Any such investments may be purchased from
the Trustee or its affiliates. The Trustee shall sell or redeem investments
standing to the credit of the Bond Fund to produce sufficient moneys hereunder
at the times required for the purpose of paying Bond service charges when due as
aforesaid, and shall do so without necessity for any order on behalf of the
Issuer and without restriction by reason of any such order. For purposes of the
Indenture and this Bond Legislation, such investments shall be valued at face
amount or market value, whichever is less.
Section 11. Indenture, Agreement and Bond Purchase Agreement. In
order better to secure the payment of the Bond service charges as the same shall
become due and payable, each member of the Legislative Authority is hereby
authorized and directed, on behalf of the Issuer, to execute and deliver the
Indenture, the Agreement and the Bond Purchase Agreement in substantially the
forms submitted to the Issuer, and to endorse upon the Note the assignment
thereof to the Trustee, which instruments are hereby approved, with such changes
therein not inconsistent with this Bond Legislation and not substantially
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<PAGE> 35
adverse to the Issuer as may be permitted by the Act and approved by the
officers executing the same. The approval of such changes by said officers, and
that such are not substantially adverse to the Issuer, shall be conclusively
evidenced by the execution of the Indenture, the Agreement and the Bond Purchase
Agreement respectively, and by endorsement of the Note, by such officers.
This Bond Legislation shall constitute a part of the Indenture
as therein provided and for all purposes of said Indenture, including, without
limitation thereto, application to this Bond Legislation of the provisions in
the Indenture relating to amendment, modification and supplementation, and
provisions for severability.
Section 12. Other Documents. Each member of the Legislative
Authority and/or the Fiscal Officer are hereby further authorized and directed
to execute financing statements, other assignments and any other instruments as
are, in the opinion of bond counsel to the Issuer, necessary to perfect the
pledges set forth in the Indenture and to consummate the transactions provided
for in the Indenture, the Agreement and the Bond Purchase Agreement.
Section 13. Compliance with Section 121.22, Ohio Revised Code.
It is hereby found and determined that all formal actions of this Legislative
Authority concerning and relating to the passage of this Bond Legislation were
taken in an open meeting of this Legislative Authority, and that all
deliberations of this Legislative Authority and of any of its committees, if
any, that resulted in such formal action, were taken in meetings open to the
public, in full compliance with applicable legal requirements, including Section
121.22 of the Ohio Revised Code.
Section 14. Prevailing Rates of Wages. All laborers and
mechanics employed on the Project shall be paid at the prevailing rates of wages
of laborers and mechanics for the class of work called for by the Project, which
wages shall be determined in accordance with the requirements of Chapter 4115 of
the Ohio Revised Code, for determination of prevailing wages, provided that
should the Company or other nonpublic user beneficiary of the Project undertake,
as part of the Project, construction to be performed by its regular collective
bargaining unit employees who are covered under a collective bargaining
agreement which was in existence prior to the date of the commitment instrument
undertaking to issue the Project Bonds, then, in that event, the rate of pay
provided under the collective bargaining agreement may be paid to such
employees.
Section 15. Election by Issuer. The Issuer hereby elects with
respect to the Project Bonds to be within the
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<PAGE> 36
limitations imposed by the provisions of Section 103(b)(6)(D) of the Internal
Revenue Code of 1954, as enacted by Public Law 90-634, as amended, and the
Executive or Fiscal Officer is hereby authorized and directed to perform any and
all acts and provide such information as may be required by the Secretary of the
Treasury, his delegate or the Internal Revenue Service in order to implement
such election, and any and all acts heretofore taken pertaining to such election
and relating to such requirements are hereby ratified and confirmed.
Section 16. Temporary Project Bonds. Pending the preparation of
definitive Project Bonds, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Project Bonds in printed or typewritten form.
Temporary Project Bonds shall be issuable in fully registered form, of any
denomination, and substantially in the form of the definitive Project Bonds but
with such omissions, insertions and variations as may be appropriate for
temporary Project Bonds, all as may be determined by the Fiscal Officer, his
execution of any such temporary Project Bonds to be conclusive evidence of his
determinations as aforesaid. Every temporary Project Bond shall be executed on
behalf of the Issuer, and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Project Bonds. If one or more temporary Project Bonds are issued,
then without unnecessary delay the Issuer shall execute and furnish definitive
Project Bonds and thereupon temporary Project Bonds may be surrendered to the
Trustee in exchange therefor without charge to the holder thereof, and the
Trustee shall authenticate and deliver in exchange for such temporary Project
Bonds an equal aggregate principal amount of definitive Project Bonds. Until so
exchanged the temporary Project Bonds shall be entitled to the same benefits
under the Indenture as definitive Project Bonds.
Section 17. Approval Pursuant to Section 103(k) of the Code. For
purposes of complying with Section 103(k) of the Code, the Legislative Authority
hereby approves the issuance of the Project Bonds in the maximum aggregate
principal amount of $2,300,000 and the acquisition, construction and equipping
of an approximately 85,000 square foot facility for the manufacture of armored
automobiles, located on a 7.6 acre tract at the Northwest corner of the
intersection of Le Saint Drive and Thunderbird Road, Union Township, Butler
County, Ohio, which facility will be owned and operated by the Company. Prior to
granting this approval, the Legislative Authority has conducted a public hearing
with respect to the Project and the use of the Project Bonds, with notice of
such public hearing having been published at least 14 days prior to such hearing
in the Hamilton Journal News.
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Section 18. Effective Date. This Resolution shall take
effect and be in force immediately upon its adoption.
Adopted: September , 1986
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<PAGE> 38
CERTIFICATE
The undersigned, Clerk of the Board of County Commissioners of
the County of Butler, Ohio, hereby certifies that the foregoing is a true and
complete copy of Resolution No. __________ adopted on the _____ day of
September, 1986, and has not been amended or rescinded as of this date.
September _____, 1986 ________________________________
Clerk of Board of County
Commissioners
County of Butler, Ohio
WHEREAS, all acts, conditions and things required to happen,
exist, and be performed precedent to and in the issuance of the Project Bonds
and the execution and delivery of this Indenture have happened, exist and have
been performed in order to make the Project Bonds, when issued, delivered and
authenticated, valid obligations of the Issuer in accordance with the terms
thereof and hereof, and in order to make this Indenture a valid, binding and
legal trust agreement for the security of the Bonds in accordance with its
terms; and
WHEREAS, the Trustee has accepted the trusts created by this
Indenture, and in evidence thereof has joined in the execution hereof; and
WHEREAS, the texts of the Project Bonds, the certificate of
authentication of the Trustee to be endorsed thereon and other provisions to be
included therein are to be substantially in the following forms with appropriate
omissions, insertions and variations as in this Indenture provided or permitted:
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<PAGE> 39
(BOND FORM)
REGISTERED REGISTERED
NO. $
(FORM OF FACE OF BOND)
United States of America
State of Ohio
County of Butler
Variable Rate Demand Economic Development Revenue Bond,
Series 1986 (O'Gara-Hess & Eisenhardt Armoring Company
Limited Partnership Project)
Maturity Date: Dated as of: CUSIP
September 1, 2016 ____________ ___________
The County of Butler, Ohio (the "Issuer"), a county and
political subdivision duly organized and validly existing under the laws of the
State of Ohio, for value received, promises to pay to ____________________, or
registered assigns, but solely from the sources and in the manner hereinafter
referred to
____________________ DOLLARS
on the aforesaid Maturity Date, unless this Bond is called for earlier
redemption, and to pay from those sources interest thereon from the date hereof
at the interest rate hereinafter described, payable on March 1 and September 1
of each year, or if any such day is not a Business Day, as hereinafter defined,
on the immediately succeeding Business Day (the "Interest Payment Dates"), until
the principal amount is paid or duly provided for. Interest on the Bonds will
accrue from and including the date set forth above to and including the day
preceding the next Interest Payment Date, and thereafter from and including each
Interest Payment Date to and including the date preceding each succeeding March
1 or September 1, whichever occurs first (each such period hereinafter called an
"Interest Period"). Interest shall be calculated on the basis of 360-day years
and twelve 30-day months. This Bond will bear interest from the most recent date
to which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for, from its date. The term "Business Day", as used
herein, means any day of the year, other than a Saturday or a Sunday, on which
banks located in the cities in which the
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<PAGE> 40
principal corporate trust office of the Trustee (hereinafter identified) and the
principal office of the Letter of Credit Bank (hereinafter identified) are
located are not required or authorized by law to remain closed and on which The
New York Stock Exchange is not closed.
The principal of and any premium on this Bond are payable upon
presentation and surrender hereof at the principal corporate trust office of the
trustee, presently The Central Trust Company, N.A., Cincinnati, Ohio (the
"Trustee"). Interest is payable on each Interest Payment Date by check or draft
mailed to the person in whose name this Bond is registered (the "Holder") at the
close of business on the l5th day preceding that Interest Payment Date (the
"Regular Record Date") on the registration books for this issue maintained by
the Trustee, as Registrar, at the address appearing therein. The principal of
and interest and any premium on this Bond are payable in lawful money of the
United States of America, without deduction for the services of the paying
agent.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET
FORTH ON THE REVERSE SIDE. THOSE PROVISIONS SHALL HAVE THE SAME EFFECT FOR ALL
PURPOSES AS IF SET FORTH HERE.
It is certified and recited that there have been performed and
have happened in regular and due form, as required by law, all acts and
conditions necessary to be done or performed by the Issuer or to have happened
(i) precedent to and in the issuing of the Bonds in order to make them legal,
valid and binding special obligations of the Issuer, and (ii) precedent to and
in the execution and delivery of the Indenture and the Agreement; that payment
in full for the Bonds has been received; and that the Bonds do not exceed or
violate any constitutional or statutory limitation.
[FORM OF Registrable at: IN WITNESS OF THE
CERTIFICATE _______________, ABOVE, the County
OF AUTHEN- ___, ______________ of Butler, Ohio has
TICATION] caused this Bond to be
This Bond is executed in the name of
one of the the Issuer by at least
Bonds described two members of its Board
in the within of County Commissioners,
mentioned acting in their official
Indenture. capacities, as of the
date shown above.
THE CENTRAL TRUST COMPANY, N.A. COUNTY OF BUTLER, OHIO
By ________________________ By ___________________________
Authorized Signer County Commissioner
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<PAGE> 41
By ___________________________
County Commissioner
By ___________________________
County Commissioner
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<PAGE> 42
[FORM OF REVERSE OF BOND]
This Bond is one of a duly authorized issue of Variable Rate Demand
Economic Development Revenue Bonds, Series 1986 (O'Gara-Hess & Eisenhardt
Armoring Company Limited Partnership Project) (the "Bonds"), issuable under the
Trust Indenture, dated as of September 1, 1986 (the "Indenture"), between the
Issuer and the Trustee, aggregating in principal amount $2,300,000 and issued
for the purpose of making a loan (the "Loan") to assist O'Gara-Hess & Eisenhardt
Armoring Company Limited Partnership (the "Company") in the financing of costs
of a Project, as defined in the Loan Agreement, dated as of September 1, 1986
(the "Agreement"), between the Issuer and the Company. The Bonds, together with
any Additional Bonds which may be issued on a parity therewith under the
Indenture (collectively, the "Bonds"), are special obligations of the Issuer,
issued or to be issued under and are to be secured and entitled equally and
ratably to the protection given by the Indenture. The Bonds are issued pursuant
to Section 13 of Article VIII of the Constitution of the State of Ohio and to
the laws of that State, particularly Chapter 165, Ohio Revised Code, and to a
resolution duly adopted by the Board of County Commissioners of the Issuer.
Reference is made to the Indenture for a more complete description
of the Project, the provisions, among others, with respect to the nature and
extent of the security for the Bonds, the rights, duties and obligations of the
Issuer, the Trustee and the Holders of the Bonds, and the terms and conditions
upon which the Bonds are issued and secured. Each Holder assents, by its
acceptance hereof, to all of the provisions of the Indenture.
Pursuant to the Agreement, the Company has executed and delivered to
the Issuer, and the Issuer has endorsed to the Trustee the Company's promissory
note, dated as of September 1, 1986 (the "Note"), in the principal amount of
$2,300,000. The Company is required by the Agreement and the Note to make
payments to the Trustee in the amounts and at the times necessary to pay the
principal of and interest and any premium (the "Bond service charges") on the
Bonds. The Company's obligations thereunder are secured by the Open-End Mortgage
and Security Agreement, dated as of September 1, 1986 (the "Mortgage"), from the
Company to the Trustee and The Central Trust Company, N.A., Cincinnati, Ohio
(the "Letter of Credit Bank") and by an Assignment of Rents and Leases, dated as
of September 1, 1986, from the Company to the Trustee and the Letter of Credit
Bank (the "Assignment of Rents"). In the Indenture, the Issuer has assigned to
the Trustee, to provide for the payment of the Bond service charges on the
Bonds, the Issuer's right, title and interest in and to the Agreement,
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<PAGE> 43
except for Unassigned Issuer's Rights as defined in the Agreement.
Pursuant to the Agreement, the Company has caused to be issued and
delivered to the Trustee by the Letter of Credit Bank an irrevocable letter of
credit (the "Letter of Credit"), pursuant to which the Trustee is entitled to
draw up to (a) the principal amount of the Bonds outstanding to enable the
Trustee to pay (i) the principal amount of the Bonds when due at maturity or
upon redemption or acceleration and (ii) an amount equal to the purchase price
of any Bonds tendered for purchase by the Holders thereof which cannot be
remarketed by the Remarketing Agent, plus (b) the amount of interest due on the
Bonds but not to exceed one hundred ninety-five (195) days maximum accrued
interest (at the rate of twelve percent (12%) per annum) to enable the Trustee
to pay interest due on the Bonds, plus (c) the amount of any discount (not to
exceed 2%) at which Bonds are remarketed. To provide for the issuance of the
Letter of Credit, the Company has entered into a Letter of Credit Agreement,
dated as of September 1, 1986 (the Letter of Credit Agreement is hereinafter
referred to as the "Reimbursement Agreement"), with the Letter of Credit Bank
pursuant to which the Company is obligated to reimburse the Letter of Credit
Bank for all drawings made under the Letter of Credit. The Letter of Credit
shall expire on September 2, 1991, unless extended, and may be replaced by an
Alternate Letter of Credit (as defined in the Indenture). The issuer of the
Alternate Letter of Credit must satisfy the requirements of Section 4.16 of the
Indenture. As used herein, the term "Letter of Credit" shall refer to the Letter
of Credit and any Alternate Letter of Credit.
The Company has also entered into a Security Agreement dated as of
September 1, 1986, from the Company to the Trustee and the Letter of Credit Bank
(the "Security Agreement"), and the corporate general partners of the Company
have entered into a Guarantee Agreement, dated as of September 1, 1986, from
such general partners to the Trustee and the Letter of Credit Bank (the
"Guarantee Agreement").
Copies of the Indenture, the Agreement, the Mortgage, the Note, the
Letter of Credit, the Security Agreement, the Guarantee Agreement, the
Reimbursement Agreement and the Assignment of Rents are on file at the principal
corporate trust office of the Trustee.
The Bond service charges on the Bonds are payable solely from the
Pledged Receipts, as defined and as provided in the Indenture (being, primarily,
the amounts to be drawn on the Letter of Credit to pay Bond service charges),
and are an obligation of the Issuer only to the extent of such Pledged Receipts.
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<PAGE> 44
THE BONDS ARE NOT SECURED BY AN OBLIGATION OR PLEDGE OF ANY MONEYS RAISED BY
TAXATION AND DO NOT REPRESENT OR CONSTITUTE A DEBT OR PLEDGE OF THE FAITH AND
CREDIT OF THE ISSUER, THE STATE OF OHIO OR ANY POLITICAL SUBDIVISION OR TAXING
DISTRICT OF THE STATE OF OHIO.
The Bonds are issuable only as fully registered bonds in the
denominations of $5,000 and any integral multiple thereof and are exchangeable
for Bonds of other authorized denominations in equal aggregate principal amounts
at the office of the Registrar specified on the face hereof, but only in the
manner and subject to the limitations provided in the Indenture. This Bond is
transferrable at the office of the Registrar, by the Holder in person or by his
attorney, duly authorized in writing, upon presentation and surrender hereof to
the Registrar. The Registrar is not required to transfer or exchange any Bond
during a period beginning at the opening of business 15 days before any Interest
Payment Date.
This Bond is subject to changes in certain terms as described below.
PART I. INITIAL FIXED INTEREST RATE.
For the first Interest Period, i.e., from September 1, 1986 to and
including February 28, 1987, the Project Bonds shall bear interest at the rate
of five and one-fourth percent (5 1/4%) per annum, payable on March 1, 1987.
PART II. SIX-MONTH INTEREST RATE PROVISIONS.
From and after March 1, 1987, the Bonds shall bear interest at the
percentage per annum (the "Six-Month Interest Rate") determined as of the
Interest Rate Determination Date immediately preceding such Interest Period (a)
by the Remarketing Agent to be that rate per annum which, if borne by all the
outstanding Bonds, would, in the judgment of the Remarketing Agent (taking into
consideration current transactions and comparable securities in which the
Remarketing Agent is involved or of which it is aware and prevailing financial
market conditions), be the interest rate necessary (but which would not exceed
the interest rate necessary) to produce as nearly as practical a par bid for
each outstanding Bond on the Interest Rate Determination Date, provided, that
the interest rate so determined shall not be more than one hundred thirty-five
percent (135%) nor less than eighty percent (80%) of the Six-Month Interest
Index for such Interest Period or (b) in the event that either the Indexing
Agent no longer computes, or fails to compute, the Six-Month Interest Index and
no other municipal securities evaluation service has been appointed by the
Issuer, or the Remarketing Agent has been removed and no successor appointed, by
the Trustee to be that rate per annum to
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<PAGE> 45
be equal to eighty-five percent (85%) of the bond equivalent yield of
thirteen-week United States Treasury bills determined on the basis of the
average per annum discount rate at which such thirteen-week Treasury bills shall
have been sold at the most recent Treasury auction held during the seventeen
(17) Business Days ending on and including the Interest Rate Determination Date,
or, if no such auction shall have been conducted during such seventeen (17)
Business Days ending on the Business Day preceding the Interest Rate
Determination Date, the bond equivalent yield of thirteen-week United States
Treasury bills shall be determined on the basis of the arithmetic average of the
mean between the closing bid and asked per annum market discount rates for the
issue of Treasury bills or other Treasury obligations with a maturity date
closest to ninety-one (91) days from the date of quotation (selecting the bills
or other obligations with the earlier maturity in the case of two issues with
maturity dates equally close to ninety-one (91) days), as reported daily on a
composite basis by the Federal Reserve Bank of New York for the first, second
and third Business Days immediately preceding the Interest Rate Determination
Date. Anything herein to the contrary notwithstanding, in no event shall the
Six-Month Interest Rate exceed twelve percent (12%) per annum. The term
"Interest Rate Determination Date", as used herein, means the twelfth Business
Day preceding the commencement of each Interest Period.
The Six-Month Interest Index shall be based upon six-month yield
evaluations at par of not less than twenty (20) nor more than forty (40) issues
of securities (which may include without limitation issues of commercial paper,
project notes, bond anticipation notes and tax anticipation notes), the interest
on which is exempt from Federal income taxation (the "High Grade Component
Issuers") selected by the Indexing Agent for the purpose of computing its
"Six-Month High Grade Municipal Index" which is offered generally by the
Indexing Agent to its subscribers. The issues included in the computation of the
index after notice to the Issuer, the Company, the Trustee, the Remarketing
Agent and the Letter of Credit Bank may be changed, increased or reduced from
time to time by the Indexing Agent. If the Issuer, the Company or the Letter of
Credit Bank objects to the proposed change, the Indexing Agent will replace,
beginning with the next computation, the issue to which an objection has been
made.
The computation of the Six-Month Interest Index by the Indexing
Agent, and the computation of the Six-Month Interest Rate by the Remarketing
Agent or the Trustee, as applicable, shall be binding and conclusive upon the
Holders of the Bonds.
PART III. INTEREST RATE WITH RESPECT TO BONDS HELD BY OR PLEDGED BY
THE COMPANY TO THE LETTER OF CREDIT BANK PURSUANT TO REIMBURSEMENT AGREEMENT.
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<PAGE> 46
Anything in this Bond to the contrary notwithstanding, the interest
rate on any Bond held by or pledged to the Letter of Credit Bank by virtue of
the Reimbursement Agreement will be equal to a rate per annum equal to the Prime
Rate plus one and one-half percent (1-1/2%).
PART IV. TENDER OPTIONS.
On March 1, 1987, and on any Interest Payment Date thereafter, any
Bond or portion thereof in the amount of $5,000 or any integral multiple thereof
(except for any Bond or portion of any Bond called for redemption on such date
or previously called for redemption) shall be purchased, but only from the
sources hereinafter specified, by the Remarketing Agent, at the option of the
Holder thereof, at a purchase price equal to 100% of the principal amount
thereof, upon:
(a) delivery to the Remarketing Agent, at its principal
office, at or prior to 4:00 P.M., local time, on the eighth Business
Day prior to such Interest Payment Date of a written notice which
(i) states the principal amount of such Bond (or portion thereof),
the number thereof and the name of the registered owner thereof and
(ii) states that such Bond (or portion thereof) is to be so
purchased on such Interest Payment Date; and
(b) delivery of such Bond, assigned in blank, to the
Remarketing Agent, at its principal office, at or prior to 11:00
A.M., local time, on the fifth Business Day immediately preceding
such Interest Payment Date.
Payment for Bonds purchased by the Remarketing Agent shall be made with the
following funds, which shall be applied in the following order: (a) proceeds of
the remarketing of such Bonds by the Remarketing Agent, (b) proceeds of a draw
under the Letter of Credit, or (c) a combination of the foregoing.
In the event the Company or the Letter of Credit Bank should fail to
make any required payment for the purchase price of any unmarketed Bonds, such
failure shall constitute an Event of Default and the Trustee have the remedies
set forth in Article VI of the Indenture.
The Issuer has appointed Gradison & Company Incorporated,
Cincinnati, Ohio, as the initial Remarketing Agent. The Issuer may, from time to
time, at the direction of the Company, remove or replace the Remarketing Agent.
There shall be no purchase of Bonds by the Remarketing Agent if
there shall have occurred and be continuing an Event of
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<PAGE> 47
Default under the Indenture of which the Remarketing Agent has received written
notice. The Remarketing Agent's obligations are set forth in an Remarketing
Agreement dated as of September 1, 1986, among the Remarketing Agent, the
Company, the Letter of Credit Bank, and the Trustee (the "Remarketing
Agreement").
The Issuer has appointed Kenny Information Systems as the initial
Indexing Agent under the Indenture. The Issuer may from time to time, at the
direction of the Company, remove the Indexing Agent and appoint a different
nationally recognized municipal securities evaluation service to serve as
Indexing Agent.
PART V. GENERAL PROVISIONS.
On March 1, 1987, and on any Interest Payment Date thereafter, the
Bonds are subject to redemption in whole or in part (in integral multiples of
$5,000) by the Issuer, at the Company's option, at a redemption price equal to
100% of the principal amount to be redeemed, plus accrued interest to the
redemption date, but without penalty or premium.
The Bonds are subject to mandatory redemption by the Issuer in whole
on September 1, 1991, or any Interest Payment Date thereafter which next
precedes a Letter of Credit Termination Date (as defined in the Indenture) or a
subsequent date to which the Letter of Credit Termination Date shall have been
extended (or if the Letter of Credit Termination Date is on an Interest Payment
Date, then such date), at a redemption price of 100% of the principal amount
thereof plus accrued interest to the redemption date unless, at least forty-five
(45) days prior to such Interest Payment Date (a) the Letter of Credit Bank
shall have agreed to an extension or further extension of the Letter of Credit
Termination Date to a date not earlier than one (1) year from the Letter of
Credit Termination Date being extended or (b) the Company shall have obtained an
Alternate Letter of Credit with a termination date not earlier than one (1) year
from the Letter of Credit Termination Date for the Letter of Credit it replaces.
The Bonds are subject to redemption prior to stated maturity
pursuant to first class mailed notice thereof given 30 days prior to the
redemption date, as follows:
1. The Bonds are subject to mandatory sinking fund redemption at a
redemption price of 100% of the principal amount redeemed plus interest accrued
to the redemption date, on September 1 in each of the years 1987 to 2016,
inclusive, in the amounts indicated below:
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<PAGE> 48
<TABLE>
<CAPTION>
Year of Redemption Principal Amount
on September 1 to be redeemed
------------------ ----------------
<S> <C>
1987 $75,000
1988 75,000
1989 75,000
1990 75,000
1991 75,000
1992 75,000
1993 75,000
1994 75,000
1995 75,000
1996 75,000
1997 75,000
1998 75,000
1999 75,000
2000 75,000
2001 75,000
2002 75,000
2003 75,000
2004 75,000
2005 75,000
2006 75,000
2007 75,000
2008 75,000
2009 80,000
2010 80,000
2011 80,000
2012 80,000
2013 80,000
2014 80,000
2015 85,000
2016* 85,000
</TABLE>
* Final Maturity
2. The Bonds are subject to mandatory redemption prior to stated
maturity at any time in whole at a redemption price of 100% of the principal
amount thereof plus accrued interest to the redemption date if and when (i) the
Agreement shall have become void or unenforceable or impossible of performance
in accordance with the intent and purpose of the parties as expressed in the
Agreement by reason of any changes in the Constitution of the State or the
Constitution of the United States of America or by reason of legislative or
administrative action (whether state or Federal) or any final decree, judgment
or order of any court or administrative body (whether state or Federal) entered
after the contest thereof by the Issuer or the Company in good faith to the
effect that the Note and the obligations evidenced thereby are no longer
enforceable by the holder thereof, or (ii) interest on the Bonds shall have
become subject to Federal income tax because of a
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<PAGE> 49
Determination of Taxability (as defined in the Indenture). Any such redemption
shall be made not more than 120 days following the effective date of such
constitutional amendment, legislation, administrative action or decree, judgment
or order, or following the date of the Determination of Taxability (excluding
any final determination that interest is subject to Federal income tax with
respect to any Bond because such Bond is held by a "substantial user" of the
Project or by a "related person", as those terms are used in Section 103(b)(13)
of the Internal Revenue Code of 1954, as amended.).
3. The Bonds are also subject to redemption in whole at a redemption
price of 100% of the principal amount redeemed plus accrued interest to the
redemption date at the option of the Company, in the event of damage,
destruction or condemnation of the Project as provided in the Agreement.
If less than all Bonds are to be redeemed at one time, the selection
of Bonds, or portions thereof in amounts of $5,000 or any integral multiple
thereof, to be redeemed shall be made by lot by the Trustee; provided, however,
that if Bonds are held by or have been pledged to the Letter of Credit Bank as a
result of a Remarketing Drawing (as defined in the Letter of Credit), Bonds so
held by the Letter of Credit Bank will be selected for redemption by the Trustee
prior to any selection by lot. If Bonds or portions thereof are called for
redemption and if on the redemption date moneys for the redemption thereof are
held by the Trustee, thereafter those Bonds or portions thereof to be redeemed
shall cease to bear interest, and shall cease to be secured by, and shall not be
deemed to be outstanding under, the Indenture.
In addition to the provision contained in the Indenture authorizing
the Issuer and the Trustee, without the consent of or notice to any of the
Bondholders, to enter into supplemental indentures not inconsistent with the
Indenture and for certain purposes specified therein, the Indenture contains
provisions permitting such parties, with the consent of the Holders of not less
than 66-2/3% in aggregate principal amount of the Bonds at the time outstanding,
to execute supplemental indentures for the purpose of modifying, altering,
amending, adding to or rescinding, in any particular, any of the terms or
provisions of the Indenture or any indenture supplemental thereto; provided,
however, that no such supplemental indenture shall (a) without the consent of
the Holder of each Bond so affected extend the maturity of the principal of or
the interest on any Bond, reduce the principal amount of any Bond or the rate of
interest or redemption premium thereon, or reduce the amount or extend the time
of payment required by any Mandatory Sinking Fund Requirements (as defined in
the Indenture), or (b) without the consent of the Holders of all Bonds then
outstanding permit a privilege or priority of any Bond or Bonds over any other
Bond
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<PAGE> 50
or Bonds or reduce the aggregate principal amount of the Bonds required for
consent to such supplemental indenture. For purposes of this paragraph consent
of the Holders of not less than 66-2/3% in aggregate principal amount of the
Bonds with respect to supplemental indentures shall have been deemed to have
been obtained if the Trustee does not receive letters of protest or objections
to such supplemental indentures signed by or on behalf of the Holders of 33-1/3%
or more of the aggregate principal amount of the Bonds then outstanding within
60 days from the date the Trustee mails notice of any proposed supplemental
indenture to the Holders of the Bonds as more specifically provided in the
Indenture.
The Holder of each Bond has only those remedies provided in the
Indenture.
The Bonds shall not constitute the personal obligation, either
jointly or severally, of the members of the Legislative Authority of the Issuer
or of any other officer of the Issuer.
This Bond shall not be entitled to any security or benefit under the
Indenture or be valid or become obligatory for any purpose until the certificate
of authentication herein shall have been signed.
[LEGAL OPINION]
[FORM OF ASSIGNMENT]
ASSIGNMENT
For value received, the undersigned sells, assigns and transfers
unto _________________________ the within Bond and irrevocably constitutes and
appoints __________attorney to transfer that Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: ________________________ ___________________________________
Signature Guaranteed:
_______________________________
Notice: The assignor's signature to this assignment must correspond with the
name as it appears upon the face of the within Bond in every
particular, without alteration or any change whatever.
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<PAGE> 51
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure
the payment of the Bond service charges on the Bonds according to their true
intent and meaning, and to secure the performance and observance of all the
covenants and conditions therein and herein contained and to declare the terms
and conditions upon and subject to which the Bonds are and are intended to be
issued, held, secured, and enforced, the Issuer, in consideration of the
premises and the acceptance by the Trustee of the trusts hereby created and of
the purchase and acceptance of the Project Bonds by the holders and owners
thereof, and for other good and valuable considerations, the receipt of which is
hereby acknowledged, has executed and delivered this Indenture and does hereby
pledge and assign to The Central Trust Company, N.A., Cincinnati, Ohio, as
Trustee, and to its successors in trust, and its and their assigns, for the
securing of the performance of the obligations of the Issuer hereinafter set
forth, the Issuer's right, title and interest in Pledged Receipts, including
without limitation all payments and other amounts receivable by or on behalf of
the Issuer under the Agreement (except for Unassigned Issuer's Rights as defined
in the Agreement) and in respect to the Loan, and all moneys and investments in
the Construction Fund and Bond Fund, and in particular the payments to be
received under and pursuant to and subject to the provisions of the Agreement
and the Note, pursuant to the terms of which payments are to be paid directly to
the Trustee at the corporate trust office of the Trustee for the account of the
Issuer and deposited in the Bond Fund, all subject to and in accordance with
this Indenture;
TO HAVE AND TO HOLD to the Trustee and its successors in said trust
and to its and their assigns forever;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate benefit,
except as to the Letter of Credit and subject to the terms hereof, security and
protection of all present and future holders and owners of the Bonds issued or
to be issued under and secured by this Indenture, and for the enforcement of the
payment of the Bond service charges on the Bonds, when payable, according to the
true intent and meaning thereof and of this Indenture and to secure the
performance of and compliance with the covenants, terms and conditions of this
Indenture, without preference, priority or distinction, as to lien or otherwise,
of any one Bond over any other by reason of designation, number, date of
authorization, issuance, sale, execution or delivery, date of the Bonds or of
maturity, or otherwise, so that each and all Bonds shall have the same right,
lien and privilege under this Indenture, and shall be equally and ratably
secured hereby, as if all the Bonds had been made, issued and negotiated
simultaneously with the delivery of this Indenture, it being intended that the
lien and security of this Indenture shall take effect from the date hereof,
without regard to the date of actual issue, sale or disposition of the Bonds as
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<PAGE> 52
though upon such date all the Bonds were actually issued, sold and delivered to
purchasers for value; provided, however, that if the Issuer, its successors or
assigns, shall well and truly pay, or cause to be paid, the principal of the
Bonds and the interest due or to become due thereon together with any premium
required by redemption of any of the Bonds prior to maturity, at the times and
in the manner mentioned in the Bonds according to the true intent and meaning
thereof, or shall cause the payment to be made into the Bond Fund as required
under Section 7 of the Bond Legislation authorizing the Project Bonds and the
Bond Legislation authorizing any Additional Bonds, or shall have caused the
Bonds to have been paid and discharged in accordance with Sections 8.01 and 8.02
of this Indenture, shall well and truly keep, perform and observe all the
covenants and conditions pursuant to the terms of this Indenture to be kept,
performed and observed by it, and shall pay or cause to be paid to the Trustee
and Paying Agents all sums of money due or to become due to them in accordance
with the terms and provisions hereof, then this Indenture and the rights hereby
granted shall cease, determine and be void; otherwise, this Indenture shall be
and remain in full force and effect.
And it is expressly declared that the Bond Legislation set forth
above is part of this Indenture and that all Bonds issued and secured hereunder
are to be issued, authenticated and delivered, and all Pledged Receipts hereby
pledged and the Construction Fund and the Bond Fund are to be dealt with and
disposed of under, upon and subject to the terms, conditions, stipulations,
covenants, agreements, trusts, uses and purposes provided in this Indenture, and
the Issuer has agreed and covenanted, and does hereby further agree and
covenant, with the Trustee and with the respective holders and owners from time
to time, of the Bonds or any part thereof, as follows:
ARTICLE I
DEFINITIONS
In addition to the words and terms elsewhere defined, directly or by
reference to the Agreement, in this Indenture, including the Bond Legislation,
the following words and terms as used in this Indenture shall have the following
meanings unless the context or use clearly indicates another or different
meaning or intent:
"Bond Registrar" means the Trustee acting as Bond Registrar with
respect to the Bonds pursuant to the provisions of the Indenture.
"Extraordinary Services" and "Extraordinary Expenses" means all
services rendered and all reasonable expenses properly
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<PAGE> 53
incurred under this Indenture other than Ordinary Services and Ordinary
Expenses.
"Ordinary Services" and "Ordinary Expenses" mean those services
normally rendered and those expenses normally incurred by a trustee under
instruments similar to this Indenture.
"Redemption Price" means principal and premium, if any, as set forth
in Section 3 of the Bond Legislation.
ARTICLE II
FORM, EXECUTION, AUTHENTICATION,
REGISTRATION AND EXCHANGE OF BONDS
Section 2.01 Form of Bonds and Temporary Bonds. The Bonds and
Trustee's certificate of authentication shall be substantially in the forms set
forth in the preambles to this Indenture with, in the case of Additional Bonds,
such omissions, insertions and variations as may be authorized or permitted by
the Bond Legislation authorizing, or supplemental indenture entered into in
connection with, such Additional Bonds, all consistent with this Indenture.
Bonds of any series may be initially issued in temporary form
exchangeable for definitive Bonds of the same series when ready for delivery.
The temporary Bonds shall be of such denomination or denominations as may be
determined by the Legislative Authority in accordance with the Bond Legislation,
and may contain such reference to any of the provisions of this Indenture as may
be appropriate. Every temporary Bond shall be executed and authenticated upon
the same conditions and in substantially the same manner as the definitive
Bonds. If temporary Bonds are issued, the Issuer will thereafter execute and
furnish definitive Bonds and thereupon the temporary Bonds may be surrendered
for cancellation in exchange therefor at the principal office of the Trustee,
and the Trustee shall authenticate and deliver in exchange for such temporary
Bonds an equal aggregate principal amount of definitive Bonds of the same series
and maturity of authorized denominations. Until so exchanged, the temporary
Bonds shall be entitled to the same benefits under this Indenture as definitive
Bonds authenticated and delivered hereunder.
Section 2.02 Terms of Additional Bonds. Any series of Additional
Bonds shall have maturities, interest rates, interest payment dates, redemption
provisions, denominations, registration provisions and other terms as provided
in the Bond Legislation authorizing the issuance thereof, and the proceeds
thereof shall be held, invested and paid out as therein
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<PAGE> 54
provided, provided that such terms and provisions shall not be otherwise
inconsistent with this Indenture.
Section 2.03 Execution and Authentication of Bonds. The Bonds shall
be executed in the manner provided in the Bond Legislation authorizing such
Bonds; provided, however, that such manner of execution shall not be
inconsistent with any requirements of law or of this Indenture.
No Bond shall be valid or become obligatory for any purpose or shall
be entitled to any security or benefit under this Indenture unless and until an
authentication certificate, substantially in the form hereinabove set forth in
connection with the Project Bonds, shall have been duly endorsed upon such Bond.
Such authentication by the Trustee upon any Bond shall be conclusive evidence
that the Bond so authenticated has been duly authenticated and delivered
hereunder and is entitled to the security and benefit of this Indenture. Such
certificate of the Trustee may be executed by any person duly authorized by the
Trustee, but it shall not be necessary that the same person sign the
authentication certificate on all of the Bonds.
Section 2.04 Transfer, Exchange and Registration of Bonds. Each Bond
shall be of a single maturity of the same series; provided, however, that the
Fiscal Officer with approval of the Trustee may authorize issuance of one or
more Bonds representing more than one maturity of the same series with
appropriate changes in the bond form to cover more than one maturity, such
authorization and approval in each case to be evidenced by the facsimile or
original signature of the Fiscal Officer and authentication by the Trustee.
Except as otherwise provided in the Bond Legislation, each Bond shall bear
interest from its date and shall be dated as of September 1, 1986 if
authenticated prior to the first Interest Payment Date, and otherwise shall be
dated as of the Interest Payment Date next preceding the date of its
authentication, unless authenticated upon an Interest Payment Date in which case
it shall be dated as of the date of its authentication; provided, however, that
if at the time of authentication of any Bond interest thereon is in default,
such Bond shall be dated as of the date to which interest has been paid.
Unless otherwise provided in the Bond Legislation, the principal of
and any premium on all registered Bonds shall be payable at the corporate trust
office of the Trustee upon presentation and surrender of such registered Bonds,
and payment of the interest on the Bonds shall be made on each Interest Payment
Date to the person in whose name the Bond is registered at the close of business
on the Regular Record Date applicable to each Interest Payment Date on the
registration books hereinafter provided for as the registered holder thereof, by
check or draft mailed or delivered by the Trustee to such
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<PAGE> 55
registered holder at his address as it appears on such registration books.
Any Bonds, upon surrender thereof at the corporate trust office of
the Bond Registrar, together with an assignment duly executed by the registered
holder or his duly authorized attorney in such form as shall be satisfactory to
the Bond Registrar, may, if and to the extent permitted by law, at the option of
the registered holder thereof, be exchanged for fully registered Bonds of the
same series of any denomination or denominations authorized by the applicable
Bond Legislation in an aggregate principal amount equal to the unmatured and
unredeemed principal amount of such fully registered Bonds, and bearing interest
at the same rate and maturing on the same date or dates.
Any fully registered Bond may be transferred upon the books kept for
the registration and transfer of Bonds, only upon surrender thereof at the
corporate trust office of the Bond Registrar together with an assignment duly
executed by the registered holder or his duly authorized attorney in such form
as shall be satisfactory to the Bond Registrar. Upon the transfer of any such
fully registered Bond and on request of the Bond Registrar, the Issuer shall
execute in the name of the transferee, and the Trustee shall authenticate and
deliver, a new fully registered Bond or Bonds of the same series, of any
denomination or denominations permitted by this Indenture and the applicable
Bond Legislation, in aggregate principal amount equal to the unmatured and
unredeemed principal amount of such fully registered Bond, and bearing interest
at the same rate and maturing on the same date or dates.
In all cases in which Bonds shall be exchanged or fully registered
Bonds shall be transferred hereunder, the Issuer shall execute and the Trustee
shall authenticate and deliver Bonds in accordance with the provisions of this
Indenture. Except as otherwise provided in the applicable Bond Legislation as to
the series of Bonds authorized by such Bond Legislation, the Issuer and Bond
Registrar may make a charge for every such exchange or transfer of Bonds
sufficient to reimburse them for any tax, fee or other governmental charge
required to be paid with respect to such exchange or to reimburse them for all
other costs and expenses incurred in connection with such exchange or transfer,
and such charge or charges shall be paid before any such new Bond shall be
delivered; provided, however, that if any fully registered Bonds shall have been
initially delivered in temporary form to the Original Purchaser of the same
series of Bonds, there shall be no charge to the Original Purchaser for the
exchange of temporary Bonds for definitive Bonds. Neither the Issuer nor the
Bond Registrar shall be required to make any such exchange or transfer of any
Bond during the fifteen days next preceding an Interest Payment Date on the
Bonds of the same
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<PAGE> 56
series or next preceding any selection of Bonds of the same series to be
redeemed, or after such Bond has been selected for partial or complete
redemption.
In case any fully registered Bond is redeemed in part only, the
Issuer, on or after the redemption date and upon surrender of such Bond, shall
cause execution of and the Trustee shall authenticate and deliver a new Bond or
Bonds in authorized denominations and in aggregate principal amount equal to the
unredeemed portion of such Bond.
So long as any of the Bonds remain outstanding, the Issuer will
cause to be maintained and kept, at the corporate trust office of the Trustee as
Bond Registrar, books for the aforesaid registration and transfer of Bonds
except that as to any series of Bonds an additional or different Bond Registrar
may be designated in the applicable Bond Legislation.
Section 2.05 Mutilated, Lost, Wrongfully Taken or Destroyed Bonds.
In the event any temporary or definitive Bond is mutilated, lost, wrongfully
taken or destroyed, the Issuer shall execute and the Trustee shall authenticate
a new Bond of like date, maturity and denomination as that mutilated, lost,
wrongfully taken or destroyed, provided that, in the case of any mutilated Bond
such mutilated Bond shall first be surrendered to the Trustee, and in the case
of any lost, wrongfully taken or destroyed Bond there shall be first furnished
to the Issuer, the Company, the Letter of Credit Bank and the Trustee evidence
of such loss, wrongful taking or destruction satisfactory to the Fiscal Officer,
the Authorized Company Representative, the Letter of Credit Bank and the
Trustee, together with indemnity satisfactory to them. In the event such lost,
wrongfully taken or destroyed Bond shall have matured, instead of issuing a new
Bond the Issuer, by its Fiscal Officer, may direct the Trustee to pay the same
without surrender thereof upon the furnishing of the satisfactory evidence and
indemnity as in the case of issuance of a new Bond. The Issuer and the Trustee
may charge the holder of such Bond with their reasonable fees and expenses in
connection with their action pursuant to this Section .
Every new Bond issued pursuant to this Section shall, with respect
to such Bond constitute an additional contractual obligation of the Issuer,
whether or not the lost, wrongfully taken or destroyed Bond shall be found at
any time, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Bonds duly issued hereunder. All
Bonds shall be held and owned on the express condition that the foregoing
provisions of this Section are exclusive with respect to the replacement or
payment of mutilated, lost, wrongfully taken or destroyed Bonds and shall
preclude any and all rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with
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<PAGE> 57
respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.06 Safekeeping and Cancellation of Bonds. Any Bond
surrendered for the purpose of payment or retirement, or for exchange, or for
replacement or payment pursuant to Section 2.05, shall be cancelled upon
surrender thereof to the Trustee or Paying Agents. Any such Bonds cancelled by a
Paying Agent other than the Trustee shall promptly be transmitted by such Paying
Agent to the Trustee. Certification of such surrender and cancellation shall be
made to the Issuer by the Trustee at least once each calendar year. Unless
otherwise directed by the Issuer or other lawful authority, cancelled Bonds
shall promptly be destroyed by shredding or cremation by the Trustee, and
certificates of such destruction (describing the manner thereof) provided by the
Trustee to the Issuer.
Section 2.07 Delivery of the Project Bonds. Upon the execution and
delivery of this Indenture and subject to Section 6 of the Bond Legislation, the
Issuer shall execute and deliver to the Trustee, and the Trustee shall
authenticate, the Project Bonds and deliver them to, or for the account of, the
Original Purchaser thereof as may be directed by the Issuer as hereinafter in
this Section 2.07 provided.
Prior to the delivery by the Trustee of any of the Project Bonds
there shall be filed with the Trustee:
1. A copy, duly certified by the Clerk of the Legislative Authority,
of the Bond Legislation authorizing the execution and delivery of the Indenture,
Agreement, Bond Purchase Agreement, and the issuance and sale of the Project
Bonds, and a copy, duly certified by a general partner of the Company, of the
resolution or resolutions adopted by the Company authorizing the execution and
delivery of the Agreement, Reimbursement Agreement, Bond Purchase Agreement,
Assignment of Rents, Mortgage, Security Agreement, Guarantee Agreement and Note.
2. Original executed counterparts of the Indenture, Agreement,
Mortgage, Assignment of Rents, Security Agreement, Guarantee Agreement and the
Reimbursement Agreement.
3. The original executed Letter of Credit.
4. The original executed Note which will:
(a) be payable to the Issuer, and assigned to the Trustee;
(b) be issued in a principal amount equal to the aggregate
principal amount of the Project Bonds;
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<PAGE> 58
(c) provide for payments of interest equal to the payments of
interest on the Project Bonds;
(d) require payments of principal, any premium and/or
prepayments equal to the payments of principal, and premium and/or
mandatory sinking fund payments on the Project Bonds;
(e) require all payments on such Note to be made on or prior
to the date for the corresponding payments to be made on the Project
Bonds;
(f) contain optional prepayment provisions and provisions in
respect of the acceleration of principal and any premium
corresponding to such provisions of the Project Bonds;
(g) be on a parity with all other Notes thereafter executed
and delivered by the Company.
5. A written opinion or opinions of one or more legal counsel
acceptable to the Trustee to the effect that:
(a) the Indenture has been duly authorized, executed and
delivered by the Issuer and constitutes a valid and legally binding
instrument enforceable in accordance with its terms (except as the
same may be subject to limitations upon the right to obtain judicial
orders requiring specific performance and may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws in effect from time to time affecting the rights of
creditors generally), and the Project Bonds have been validly
authorized and executed and are (or when authenticated and delivered
will be) valid and legally binding special obligations of the Issuer
in accordance with their terms (except as aforesaid);
(b) the Agreement and the Bond Purchase Agreement have been
duly authorized, executed and delivered and constitute valid and
legally binding instruments enforceable in accordance with their
terms, except as the same may be subject to limitations upon the
right to obtain judicial orders requiring specific performance and
may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting generally the enforcement of
creditors' rights;
(c) the Reimbursement Agreement, the Mortgage, the Assignment
of Rents, Security Agreement, and the Note have been duly
authorized, executed and delivered
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and are valid and legally binding obligations of the Company;
(d) all recordings and filings required to be made under the
Bond Legislation authorizing the Project Bonds have been made; and
(e) all conditions precedent to the delivery of the Project
Bonds and the Note have been fulfilled.
6. Evidence satisfactory to the Trustee and the Letter of Credit
Bank that the Company has good title to, the Project Site, and a Title Insurance
Binder issued by Chicago Title Insurance Company in favor of the Trustee and the
Letter of Credit Bank with respect to the real estate covered by the Mortgage in
the amount of not less than $2,495,500, and the form of title insurance policy
to be issued pursuant to the aforesaid Binder.
7. A request and authorization to the Trustee on behalf of the
Issuer, signed by the Executive or the Fiscal Officer, to authenticate and
deliver the Project Bonds to, or on the order of, the Original Purchaser upon
payment to the Trustee, but for account of the Issuer, of the sum specified
therein plus accrued interest, which shall be deposited as provided in Section 6
of the Bond Legislation.
8. An opinion of nationally recognized bond counsel that interest on
the Project Bonds is excludable from gross income of the recipients thereof for
Federal tax purposes.
9. An opinion of counsel with respect to the validity and
enforceability of the Letter of Credit and opining that draws under the Letter
of Credit will not constitute an avoidable preference in the hands of the
Trustee in the event of bankruptcy of the Company.
10. An opinion of counsel to the Guarantors with respect to the
valid execution and the enforceability of the Guarantee Agreement.
Section 2.08 Delivery of Additional Bonds. Before any Additional
Bonds authorized by Section 8 of the Bond Legislation authorizing the Project
Bonds shall be authenticated and delivered by the Trustee, there shall be filed
with the Trustee those items required by Section 8 of the Bond Legislation, and:
1. A copy, duly certified by the Clerk of the Legislative Authority,
of the Bond Legislation authorizing the issuance and sale of such Additional
Bonds.
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2. An original executed counterpart of any amendment or supplement
to the Indenture, Agreement and Mortgage.
3. A copy of the written request from the Company to the Issuer for
issuance of the Additional Bonds and a copy, duly certified by a general partner
of the Company, of the resolution or resolutions adopted by the Company
authorizing the execution and delivery of a Note or Notes, if any, and any
amendments or supplements to the Agreement and Indenture in connection with the
issuance of such Additional Bonds.
4. An original executed letter of credit as required by Section 8 of
the Bond Legislation.
5. The original executed Note or Notes with such variations in
principal amounts, interest rates, interest payment and maturity dates and
prepayment provisions as may be appropriate to correspond to such provisions of
the Additional Bonds, which Note or Notes will:
(a) be payable to the Issuer and assigned to the Trustee;
(b) be issued in an aggregate principal amount equal to the
aggregate principal amount of the Additional Bonds;
(c) provide for payments of interest equal to the payments of
interest on the Additional Bonds;
(d) require payments of principal, any premium and/or
prepayments equal to the payments of principal, any premium and/or
sinking fund payments on the Additional Bonds;
(e) require all payments on such Note or Notes to be made on
or prior to the date for the corresponding payments to be made on
the Additional Bonds;
(f) contain optional prepayment provisions and provisions in
respect of the acceleration of principal and any premium
corresponding to such provisions of the Additional Bonds; and
(g) be on a parity with all other Notes before or after
executed and delivered by the Company pursuant to the Agreement
corresponding to any Bonds.
6. A written opinion or opinions of one or more counsel acceptable
to the Trustee to the effect that:
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(a) the indenture supplemental hereto providing for the
issuance of the Additional Bonds has been duly authorized, executed
and delivered by the Issuer and constitutes a valid and legally
binding instrument enforceable in accordance with its terms (except
as the same may be subject to limitations upon the right to obtain
judicial orders requiring specific performance and may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws in effect from time to time affecting the rights of
creditors generally), and the Additional Bonds have been validly
authorized and executed and are (or when authenticated and delivered
pursuant to the request of the Issuer, will be) valid and legally
binding special obligations of the Issuer in accordance with their
terms (except as aforesaid);
(b) the Agreement as amended or supplemented in connection
with the issuance of the Additional Bonds, has been duly authorized,
executed and delivered and constitutes a valid and legally binding
instrument enforceable in accordance with its terms, except as the
same may be subject to limitations upon the right to obtain judicial
orders requiring specific performance and may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or
affecting generally the enforcement of creditors' rights or the
enforcement of the security provided by the Agreement, as amended or
supplemented as aforesaid;
(c) the Note or Notes delivered under paragraph 5 above have
been duly authorized, executed and delivered and are valid and
legally binding obligations of the Company;
(d) all recordings and filings required to be made under the
Bond Legislation authorizing the Project Bonds and such Additional
Bonds have been made; and
(e) all conditions precedent to the delivery of such
Additional Bonds and the Note or Notes delivered under paragraph 5
above have been fulfilled.
7. A request and authorization to the Trustee on behalf of the
Issuer, signed by the Executive or the Fiscal Officer, to authenticate and
deliver such Additional Bonds to, or on the order of, the Original Purchaser
thereof upon payment to the Trustee, but for the account of the Issuer, of the
sum specified therein plus accrued interest, which shall be deposited as
provided in the Bond Legislation authorizing such Additional Bonds.
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8. An opinion of nationally recognized bond counsel or a ruling of
the Internal Revenue Service that the issuance of such Additional Bonds will not
affect the Federal income tax exemption on any outstanding Bonds and that
interest on such Additional Bonds will be exempt from gross income for Federal
income tax purposes.
9. Consent of the Letter of Credit Bank to the issuance of
Additional Bonds.
10. An opinion of counsel that draws under the letter of credit
issued with respect to Additional Bonds would not constitute an avoidable
preference in the event of bankruptcy of the Company.
ARTICLE III
REDEMPTION OF BONDS
Section 3.01 Privilege of Redemption and Redemption Price. The Bonds
shall be subject to redemption prior to maturity at such times, to the extent
and in the manner provided in the applicable Bond Legislation, all subject to
this Indenture.
Section 3.02 Issuer's Election to Redeem. The Issuer, except in the
case of redemption pursuant to any mandatory redemption provisions provided in
the Bond Legislation, and except as otherwise provided in the Bond Legislation,
shall give written notice to the Trustee of its election to redeem in the manner
provided in and in accordance with the applicable Bond Legislation, of the
places where the amounts due upon such redemption are payable, and of the
redemption date and of the principal amount of each maturity of each series of
redeemable Bonds to be redeemed, which notice shall be given at least forty-five
days prior to the redemption date or such shorter period as shall be acceptable
to the Trustee. In the event notice of redemption shall have been given as in
the Bond Legislation or Section 3.03 provided, the Issuer shall, and hereby
covenants that it will on or prior to the redemption date, if sufficient funds
shall have been provided for the purpose by the Company under the Agreement or
the Letter of Credit, pay or cause to be paid to the Trustee an amount in cash
which, in addition to other moneys, if any, available therefor held by the
Trustee, will be sufficient to redeem at the Redemption Price thereof, plus
interest accrued to the redemption date, all of the redeemable Bonds which the
Issuer has so elected to redeem.
Section 3.03 Notice of Redemption. When the Trustee shall receive
notice from or on behalf of the Issuer of its
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election to redeem Bonds, or in order to carry out any mandatory redemption
provisions of any Bond Legislation, the Trustee shall give notice of call for
redemption as provided for in the applicable Bond Legislation.
Section 3.04 Payment of Redeemed Bonds. Notice having been given in
the manner provided in Section 3.03, the Bonds so called for redemption shall
become due and payable on the redemption date at the Redemption Price, plus
interest accrued to the redemption date, and, upon presentation and surrender
thereof at the place or places specified in such notice, such Bonds shall be
paid at the Redemption Price plus interest accrued to the redemption date. If,
on the redemption date, moneys for the redemption of all such Bonds to be
redeemed, together with interest to the redemption date, are held by the Trustee
so as to be available therefor on said date and if notice of redemption shall
have been given as aforesaid, then, from and after the redemption date such
Bonds so called for redemption shall cease to bear interest, and said Bonds
shall no longer be considered as outstanding hereunder. If said moneys shall not
be so available on the redemption date, such Bonds shall continue to bear
interest until paid at the same rate as they would have borne had they not been
called for redemption.
All moneys deposited in the Bond Fund and held by the Trustee or
Paying Agents for the redemption of particular Bonds shall be held in trust for
the account of the holders thereof and shall be paid to them respectively upon
presentation and surrender of such Bonds.
ARTICLE IV
FURTHER PROVISIONS AS TO FUNDS,
PAYMENTS, PROJECT AND AGREEMENT
Section 4.01 Provisions for Payment. The Issuer hereby authorizes
and directs the Trustee to cause withdrawal of sufficient funds from the Bond
Fund available for such purpose to pay the Bond service charges on the Bonds as
the same become due and payable (whether at stated maturity or by redemption or
pursuant to any Mandatory Sinking Fund Requirements or otherwise), for the
purposes of paying, or transferring necessary funds to Paying Agents to pay,
said Bond service charges, which authorization and direction the Trustee hereby
accepts. The Trustee shall create and maintain a separate Reimbursement Account
("Reimbursement Account") within the Bond Fund which Reimbursement Account shall
be used by the Trustee to reimburse the Letter of Credit Bank, as provided
herein or in the Agreement.
Section 4.02 Non-presentment of Bonds. In the event any Bond shall
not be presented for payment when the principal
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thereof becomes due, whether at maturity, at the date fixed for redemption
thereof, or otherwise, if funds sufficient to pay such Bond shall have been made
available to the Trustee for the benefit of the holder or holders thereof, all
liability of the Issuer to the holder thereof for the payment of such Bond shall
thereupon cease and be completely discharged, and it shall be the duty of the
Trustee to hold such funds, without liability for interest thereon, in a
separate account in the Bond Fund for the benefit of the holder of such Bond,
who shall thereafter be restricted exclusively to such funds for any claim of
whatever nature on his part under this Indenture or on, or with respect to, said
Bond; provided that any funds which shall be so held by the Trustee and which
remain unclaimed by the holder of the Bond not presented for payment for a
period of three years after such due date thereof, shall be paid first to the
Letter of Credit Bank to the extent of any amounts due and payable to the Letter
of Credit Bank under the Reimbursement Agreement and then to the Company free of
any trust or lien and thereafter the holder of such Bond shall look only to the
Company for payment and then only to the amounts so received by the Letter of
Credit Bank or the Company without any interest thereon, and the Trustee shall
have no further responsibility with respect to such moneys.
Section 4.03 Extension of Payment of Bonds. The Issuer shall not
directly or indirectly extend or assent to the extension of the maturity of any
of the Bonds or the time of payment of any claims for interest, by the purchase
or funding of such Bonds or claims for interest or by any other arrangement, and
in case the maturity of any of the Bonds or the time for payment of any such
claims for interest shall be extended, such Bonds or claims for interest shall
not be entitled in case of any event of default under this Indenture to the
benefit of the Indenture or to any payment out of the funds (except funds held
for the payment of particular Bonds or claims for interest pursuant to this
Indenture held by the Trustee or any Paying Agent) except subject to the prior
payment of the principal of all Bonds issued and outstanding the maturity of
which has not been extended and of such portion of the accrued interest on the
Bonds as shall not be represented by such extended claims for interest. Nothing
herein shall be deemed to limit the right of the Issuer to issue any duly
authorized refunding Bonds and such issuance shall not be deemed to constitute
an extension of maturity of the Bonds.
Section 4.04 Payments to Trustee and Paying Agents. Pursuant to the
provisions of the Agreement, the Company has agreed to pay to the Trustee,
continuing until the outstanding Bonds shall have been fully paid and discharged
in accordance with the provisions of the Indenture, the reasonable fees, charges
and expenses of the Trustee, as Trustee (for Ordinary and Extraordinary Services
and Expenses), Bond Registrar and Paying Agent, and of other Paying Agents, as
and when the same
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become due; provided, that the Company may, without creating a default
thereunder, contest in good faith the necessity for any such Extraordinary
Services and Extraordinary Expenses and the reasonableness of any such fees,
charges or expenses. The initial or acceptance fees of the Trustee and the fees,
charges and expenses of the Trustee or other Paying Agents referred to in the
first sentence of this Section, which may become due and payable during the
Construction Period (as defined in the Agreement) may be paid by the Trustee
from the Construction Fund as and when the same shall become due and payable as
provided in the Agreement.
Section 4.05 Moneys to be Held in Trust. All moneys required or
permitted to be deposited with or paid to the Trustee or any Paying Agent under
any provision of this Indenture, the Letter of Credit or the Agreement, and any
investments thereof, shall be held by the Trustee or such Paying Agent in trust
and, except for moneys deposited with or paid to the Trustee or any Paying Agent
for the redemption of Bonds, notice of the redemption of which has been duly
given, and moneys held by the Trustee pursuant to Section 4.02 hereof, shall,
while held by the Trustee or Paying Agent, be subject to the lien hereof.
Section 4.06 Insurance and Condemnation Proceeds. In the event that
Net Proceeds, or an amount equal to Net Proceeds, of any insurance or
condemnation award shall be paid to the Trustee for the account of the Issuer
and deposited in a special account or in the Reimbursement Account in the Bond
Fund, in accordance with the provisions of Section 5.8 of the Agreement, the
Trustee hereby agrees to accept and disburse such Net Proceeds or amount as
directed by the Issuer with the consent of the Letter of Credit Bank and the
Company. Any such Net Proceeds or amount equal thereto deposited in the
Reimbursement Account in the Bond Fund in accordance with the provisions of said
Section 5.8 shall be applied in the manner provided in Section 2.9 of the
Agreement.
Section 4.07 Repayment to the Company or the Letter of Credit Bank
from the Bond Fund. Except as provided in Section 4.02 of this Indenture, any
amounts remaining in the Bond Fund, after all of the outstanding Bonds shall be
deemed to have been paid and discharged under the provisions of this Indenture,
and the fees, charges and expenses of the Trustee and the Paying Agents and all
other amounts required to be paid under this Indenture and the Agreement shall
have been paid, shall be paid first to the Letter of Credit Bank in satisfaction
of any outstanding obligations of the Company to the Letter of Credit Bank under
the terms of the Reimbursement Agreement and then to the Company upon the
expiration or sooner termination of the Agreement, provided that nothing
contained herein shall impair any right of the Issuer or the Trustee under the
Agreement, this
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Indenture or law to recover from such amounts prior to such payment to the
Company any loss, cost or expense incurred as a result of any default by the
Company in any payment of Loan Payments.
Section 4.08 Records of Construction Fund. The Trustee shall cause
to be kept and maintained adequate records pertaining to the Construction Fund
and all disbursements therefrom. After the Project has been completed and a
certificate of payment of all costs is filed as provided in Section 4.09 hereof,
the Trustee shall, if requested by the Issuer, the Letter of Credit Bank or the
Company, file an accounting thereof with the Issuer, the Letter of Credit Bank
and with the Company.
Section 4.09 Completion of the Project. The completion of the
Project and payment of all costs and expenses incident thereto shall be
evidenced by the filing with the Trustee and the Letter of Credit Bank of (i)
the certificate of the Authorized Company Representative required by Section 3.3
of the Agreement and (ii) a certificate signed by the Authorized Company
Representative, stating that all obligations and costs in connection with the
Project and payable out of the Construction Fund have been paid and discharged
except for amounts retained by the Trustee as provided under the Agreement for
the payment of costs of the Project not then due and payable. After the
Completion Date, any balance remaining in the Construction Fund (other than the
amounts retained by the Trustee referred to in the preceding sentence) shall be
deposited or applied in accordance with Section 4.2(g) of the Agreement.
Section 4.10 Amendments to Agreement and Letter of Credit Not
Requiring Consent of Bondholders. The Issuer and the Trustee shall, without the
consent of or notice to the Bondholders, but only with the consent of the Letter
of Credit Bank, consent to any amendment, change or modification of the
Agreement or the Letter of Credit as may be required (i) by the provisions of
the Agreement, the Letter of Credit and this Indenture, (ii) in connection with
the issuance of Additional Bonds as specified in Section 2.08 hereof, (iii) for
the purpose of curing any ambiguity, inconsistency or formal defect or omission
in the Agreement or the Letter of Credit, or (iv) in connection with any other
change therein which, in the judgment of the Trustee and the Issuer, is not to
the prejudice of the Trustee, the Issuer or the holders of the Bonds.
Section 4.11 Amendments to Agreement Requiring Consent of
Bondholders. Except for the amendments, changes or modifications as provided in
Section 4.10 hereof, neither the Issuer nor the Trustee shall consent to (i) any
amendment, change or modification of the Agreement which would change the
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Loan Payments under the Agreement or the Company's covenant not to adversely
affect the tax exempt status of the Bonds without the mailing of notice as
provided in this Section of such proposed amendment, change or modification and
the written approval or consent thereto of the holders of all of the then
outstanding Bonds, or (ii) any other amendment, change or modification of the
Agreement without the mailing of notice as provided in this Section of such
proposed amendment, change or modification and the written approval or consent
thereto of the holders of not less than 66-2/3% in aggregate principal amount of
the Bonds then outstanding. Such approval or consent of the Bondholders shall be
procured as provided in Section 7.02 hereof with respect to supplemental
indentures. If at any time the Issuer and the Company shall request the consent
of the Trustee to any such proposed amendment, change or modification of the
Agreement as provided in clause (i) or (ii) of the first sentence of this
Section, the Trustee shall, upon being satisfactorily indemnified with respect
to expenses, cause notice of such proposed amendment, change or modification to
be mailed in the same manner as provided by Section 7.02 hereof with respect to
notice of supplemental indentures, which notice shall briefly set forth the
nature of such proposed amendment, change or modification and shall state that
copies of the instrument embodying the same are on file at the corporate trust
office of the Trustee for inspection by all Bondholders. Anything herein to the
contrary notwithstanding, no amendment, change or modification to the Agreement
under this Section 4.11 shall be permitted without the prior written consent of
the Letter of Credit Bank.
Section 4.12 Subordination to Rights of the Company. As provided in
Section 7.2 of the Agreement, this Indenture and the assignments and pledges
hereunder are subject and subordinate to the rights of the Company under the
Agreement so long as no event of default has occurred thereunder.
Section 4.13 Removal of Portions of Project. Reference is made to
the provisions of the Agreement, including without limitation Section 5.2
thereof, whereby the Company may remove portions of the Project upon compliance
with the terms and conditions of the Agreement. The Trustee shall, at the
request of the Issuer or the Company and upon such provisions of the Agreement
being complied with, certify that any such portions are no longer part of the
Project for purposes of this Indenture.
Section 4.14. Amendments to Letter of Credit Requiring Consent of
Bondholders. Except for the amendments to the Letter of Credit as provided in
Section 4.10 hereof, neither the Issuer nor the Trustee shall consent to any
other amendment to the Letter of Credit without consent of the Letter of Credit
Bank and the holders of not less than 66-2/3% in aggregate principal
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amount of the Bonds then outstanding. If at any time the Issuer and the Company
shall request the consent of the Trustee to any proposed amendment of the Letter
of Credit, the Trustee shall, upon being satisfactorily indemnified with respect
to expenses, cause notice to be given in the same manner as provided in Section
7.02 hereof with respect to supplemental indentures.
Section 4.15 Letter of Credit. Except as otherwise provided in this
Section, the Trustee shall deposit in the Bond Fund upon receipt all Pledged
Receipts, all moneys received upon drawings made under the Letter of Credit, all
amounts representing proceeds from the sale or liquidation of any collateral
pursuant to the Mortgage, the Security Agreement, the Guarantee Agreement, and
any other amounts which, under the terms of this Indenture, the Note, the
Agreement, the Mortgage, the Assignment of Rents, or the Letter of Credit are to
be applied to the payment of Bond service charges. Except as provided in this
Section 4.15 and Sections 4.02 and 4.16 hereof, the Bond Fund (and accounts
therein for which provision is made herein or in the Agreement) and the moneys
and Eligible Investments therein shall be used solely and exclusively for the
payment of Bond service charges as they fall due at stated maturity, or by
redemption or pursuant to any Mandatory Sinking Fund Requirements or upon
acceleration, all as provided herein and in the Agreement.
The Trustee shall establish separate accounts within the Bond Fund
for each separate series of Bonds. The Trustee shall establish separate
subaccounts within each separate series account in the Bond Fund to the extent
required so that the Trustee may at all times ascertain the date and source of
deposit of the funds in each subaccount.
Moneys in the Bond Fund shall be used to pay Bond service charges
with respect to the Bonds and for the redemption of Bonds prior to maturity and
as otherwise provided in this Indenture only in the following order:
FIRST: Amounts derived from the proceeds of the initial sale and
delivery of the Bonds representing any accrued interest thereon, and
proceeds from the investment thereof;
SECOND: Amounts drawn by the Trustee under the Letter of Credit; and
THIRD: Any other amounts available in the Bond Fund.
The Issuer hereby authorizes and directs the Trustee to draw on the
Letter of Credit pursuant to its terms, in the amounts and at the times
necessary to pay Bond service charges on the Bonds pursuant to this Section
4.15.
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The Trustee shall draw upon the Letter of Credit in accordance with
the terms thereof under the following circumstances:
(a) On or before 11:00 A.M., local time, on the fourth
Business Day prior to any Interest Payment Date or the fourth
Business Day preceding the date of the purchase of any Bonds by the
Remarketing Agent pursuant to Section 5.21 hereof, or the payment of
any discount pursuant to Section 5.20 hereof, the Trustee shall
determine the amount necessary to make all required payments of
principal and interest on the Bonds on the next succeeding Interest
Payment Date or such purchase of the Bonds or such payments of
discounts thereon, and shall present a draft to the Letter of Credit
Bank (together with required certificates under the Letter of
Credit) in such amount, so as to permit the timely transfer of funds
(which in the case of any payment of principal or interest on the
Bonds, other than as a result of inability of the Remarketing Agent
to remarket such Bonds, shall require that such funds be in the
Trustee's possession on the Business Day immediately preceding the
date such principal or interest is due on the Bonds) from the Letter
of Credit Bank to the Trustee for payment of the principal of and
interest on the Bonds when due, whether at maturity or upon prior
redemption or acceleration or otherwise, or the payment of the
purchase price of the Bonds or the payment of any discount from the
remarketing of the Bonds. In addition to the foregoing draws, the
Trustee shall make a draw on the Letter of Credit in the case of a
Defaulting Buyer (as defined in Section 5.23 hereof).
(b) Upon acceleration of the Bonds upon the occurrence of an
Event of Default under Section 6.01 hereof, the Trustee shall, on or
before 10:00 A.M., local time, on the Business Day following the
date of declaration of the acceleration of the Bonds, present a
draft to the Letter of Credit Bank (together with required
certificates under the Letter of Credit) for payment of the entire
amount due under Section 6.02 hereof.
(c) If the Letter of Credit Bank has not transferred funds in
accordance with the Letter of Credit upon the presentment of any
such draft, the Trustee shall (i) resubmit such draft properly and
take such other action as may be necessary to cause the Letter of
Credit Bank to honor its obligations under the Letter of Credit and
(ii) promptly notify, by oral or telephonic communication confirmed
in writing, the
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Company of the failure of the Letter of Credit Bank to transfer
funds.
In calculating the amount to be drawn on the Letter of Credit for
the payment of principal of and interest on the Bonds, whether at maturity or
upon redemption or acceleration, the Trustee shall not take into account the
potential receipt of funds from the Company under the Agreement on or before the
corresponding Interest Payment Date, or the existence of any other moneys in the
Bond Fund (other than accrued interest, if any, received at the time of the
issuance and delivery of the Bonds), but shall draw on the Letter of Credit for
the full amount of principal and interest coming due on the Bonds. In
calculating the amount to be drawn on the Letter of Credit for the purchase of
Bonds and the payment of any such discount in connection with the remarketing of
the Bonds, the Trustee shall take into account only the proceeds expected to be
received by the Remarketing Agent with respect to the remarketing of such Bonds,
including purchase thereof for its own account. Upon receipt of such moneys from
the Letter of Credit Bank, the Trustee shall (i) deposit the amount representing
a drawing on the Letter of Credit for the payment of principal and interest on
the Bonds in the Bond Fund, and apply the same to the payment of such principal
and interest due on the Bonds on the next succeeding Interest Payment Date, (ii)
deposit the amount representing a drawing on the Letter of Credit for the
purchase of Bonds and the payment of any such discount in a separate trust fund
and disburse said amount to the Remarketing Agent for the purchase of Bonds and
the payment of any such discount and (iii) so long as there does not exist the
Event of Default described in Section 6.01(j) hereof, pay, on behalf of the
Company, but only from and to the extent of Loan Payments and any other amounts
then on deposit in the Reimbursement Account in the Bond Fund and not derived
from drawings under the Letter of Credit, to the Letter of Credit Bank any and
all amounts then due and payable under the Reimbursement Agreement. Any payment
made by the Trustee on behalf of the Company described in clause (iii) of the
immediately preceding sentence shall be made by wire transfer of immediately
available funds to the account of the Letter of Credit Bank on the date the
Trustee receives moneys pursuant to a drawing upon the Letter of Credit.
The Trustee shall transmit to any Paying Agents, as appropriate from
moneys in the Bond Fund applicable thereto, amounts sufficient to make timely
payments of principal of and any premium on the Bonds to be made by those Paying
Agents and then due and payable. To the extent that the amount needed by any
Paying Agent is not sufficiently predictable, the Trustee may make any credit
arrangements with that Paying Agent which will permit those payments to be made.
The Issuer authorizes and directs the Trustee to cause withdrawal of moneys from
the Bond Fund which are available for the purpose of paying, and are
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sufficient to pay, the principal of and any premium on the Bonds as they become
due and payable (whether at stated maturity, by redemption or pursuant to any
Mandatory Sinking Fund Requirements), for the purposes of paying or transferring
moneys to the Paying Agents which are necessary to pay such principal and
premium.
Section 4.16. Extension of Letter of Credit; Alternate Letter of
Credit. The Letter of Credit expires upon the earliest to occur of (i) the
Trustee's making of the final drawing available to be made thereunder, (ii)
receipt by the Letter of Credit Bank of written notice from the Trustee that the
Indenture has been discharged and all outstanding Bonds have been deemed to be
paid in full in accordance with the Indenture or (iii) subject to the provision
for extension, and for substitution of an Alternate Letter of Credit provided
for herein, September 2, 1991.
The Letter of Credit Bank may, at its election, provide for an
extension of the expiration date of the Letter of Credit to a date not earlier
than one (1) year from the Letter of Credit Termination Date being extended. The
Company may, at its option, provide for the delivery to the Trustee of an
Alternate Letter of Credit, which shall have an expiration date of not earlier
than one (1) year from the Letter of Credit Termination Date for the Letter of
Credit it replaces and shall otherwise comply with the terms of the Alternate
Letter of Credit Agreement. The issuer of the Alternate Letter of Credit must be
organized under Federal or state laws with a net worth at the time of issuance
of the Alternate Letter of Credit at least equal to that of the Letter of Credit
Bank (or any successor entity thereto under the Letter of Credit) at such time.
If the Letter of Credit is so extended to a date not earlier than one (1) year
from the Letter of Credit Termination Date being extended, or if the Company so
provides such an Alternate Letter of Credit complying with the requirements of
this paragraph, the mandatory redemption pursuant to the terms of this Indenture
shall not occur.
Section 4.17. Release of Documents Upon Termination of Letter of
Credit. Upon the termination of the Letter of Credit, the Trustee, upon written
direction from the Company, shall unconditionally and timely release and
discharge the lien of the Mortgage, the Assignment of Rents and the Security
Agreement (and any other documents or instruments given as security by the
Company or any guarantor under the Guarantee Agreement or Additional Guarantees)
and shall redeliver the Guarantee Agreement and the Additional Guarantees to
each of the Guarantors.
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ARTICLE V
THE TRUSTEE, REMARKETING AGENT,
INDEXING AGENT AND PAYING AGENTS
Section 5.01 Trustee's Acceptance and Responsibilities. The Trustee
hereby accepts the trusts imposed upon it by this Indenture and the Agreement,
and agrees to perform the trusts and its obligations under this Indenture and
the Agreement as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs, but only upon and subject to the following
express terms and conditions:
(a) The Trustee may execute any of the trusts or powers hereof
and perform any of its duties by or through attorneys, agents,
receivers or employees but shall be answerable for the conduct of
the same in accordance with the standard specified above, and shall
be entitled to advice of counsel concerning all matters of trusts
hereof and duties hereunder, and may in all cases pay reasonable
compensation to all such attorneys, agents, receivers and employees
as may reasonably be employed in connection with the trusts hereof.
The Trustee may act upon the opinion or advice of any attorney (who
may be the attorney or attorneys for the Issuer or the Company),
approved by the Trustee in the exercise of reasonable care. The
Trustee shall not be responsible for any loss or damage resulting
from any action taken or not taken in good faith in reliance upon
such opinion or advice. The Trustee shall, however, be responsible
for loss or damage resulting from any negligence or willful
misconduct on its part.
(b) Except for its certificate of authentication on the Bonds,
the Trustee shall not be responsible for any recital herein or in
the Bonds, or for the validity, priority, recording or rerecording,
filing or refiling of this Indenture or the Agreement or any
financing statements, amendments thereto or continuation statements,
or for insuring the Project or collecting any insurance moneys, or
for the validity of the execution by the Issuer of this Indenture or
of any supplements thereto or instruments of further assurance, or
for the sufficiency of the security hereof. The Trustee shall not be
bound to ascertain or inquire as to the performance or observance of
any covenants, conditions or agreements on the part of the Issuer or
on the part of the Company under the Agreement in connection with
the matters referred to in Section 5.1 of the Agreement, except as
hereinafter set forth; but the Trustee may require of the Issuer or
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the Company full information and advice as to the performance of the
covenants, conditions and agreements aforesaid. Except as otherwise
provided in Section 6.03 hereof, the Trustee shall have no
obligation to perform any of the duties of the Issuer under the
Agreement.
(c) The Trustee shall not be accountable for the application
by the Company of the proceeds of any Bonds authenticated or
delivered hereunder.
(d) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram or
other paper or document believed to be genuine and correct and to
have been signed or sent by the proper person or persons. Any action
taken by the Trustee pursuant to this Indenture upon the request or
authority or consent of any person who at the time of making such
request or giving such authority or consent is the holder of any
Bonds, shall be conclusive and binding upon all future holders of
the same Bond and of Bonds issued in exchange therefor or in place
thereof.
(e) As to the existence or nonexistence of any fact or as to
the sufficiency or validity of any instrument, paper or proceeding,
the Trustee shall be entitled to rely upon a certificate signed on
behalf of the Issuer or the Company by an authorized officer or
partner thereof as sufficient evidence of the facts therein
contained, and, prior to the occurrence of a default of which the
Trustee has been notified as provided in paragraph (g) of this
Section, or of which by said paragraph it is deemed to have notice,
shall also be entitled to rely upon a similar certificate to the
effect that any particular dealing, transaction or action is
necessary or expedient, but may at its discretion obtain such
further evidence deemed necessary or advisable, but shall in no case
be bound to secure the same. The Trustee may accept a certificate of
an officer, or an assistant thereto, of the Issuer having charge of
the appropriate records to the effect that legislation or any
resolution in the form therein set forth has been adopted by the
Legislative Authority of the Issuer or by the general partners of
the Company, as conclusive evidence that such legislation or
resolution has been duly adopted and is in full force and effect.
(f) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty and
the Trustee shall not be
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answerable for other than its negligence or willful misconduct.
(g) The Trustee shall not be required to take notice or be
deemed to have notice of any default hereunder, except events of
default described in paragraphs (a), (b), (i), (j), or (k), of
Section 6.01 hereof, unless the Trustee shall be specifically
notified by writing delivered to it of such default by the Issuer,
the Letter of Credit Bank or the Company or by the holders of at
least twenty-five percent in aggregate principal amount of Bonds
then outstanding, and in the absence of such notice so delivered the
Trustee may conclusively assume there is no default except as
aforesaid.
(h) The Trustee shall not be personally liable for any debts
contracted, or for injury or damage to persons or to personal
property, or for salaries or nonfulfillment of contracts, relating
to the Project.
(i) At any and all reasonable times the Trustee and the Letter
of Credit Bank, and their duly authorized agents, attorneys,
experts, engineers, accountants and representatives shall have the
right fully to inspect the Project and any and all books, papers and
records of the Issuer pertaining to the Project and the Bonds, and
to take such memoranda from and in regard thereto and make copies
thereof as may be desired.
(j) The Trustee shall not be required to give any bond or
surety in respect of the execution of the said trusts and powers or
otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture
contained, the Trustee shall have the right, but shall not be
required, to demand, in respect of the authentication of any Bonds,
the withdrawal of any cash, the release of any property, or any
action whatsoever within the purview of this Indenture, any
showings, certificates, opinions, appraisals or other information,
or corporate action or evidence thereof, in addition to that by the
terms hereof required as a condition of such action by the Trustee,
deemed desirable for the purpose of establishing the right of the
Issuer to the authentication of any Bonds, the withdrawal of any
cash, the release of any property, or the taking of any other action
by the Trustee.
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(l) Before taking action under Article VI or Section 5.04
hereof, the Trustee may require that a satisfactory indemnity bond
be furnished for the reimbursement of all expenses to which it may
be put and to protect it against all liability, except liability
which is adjudicated to have resulted from its negligence or willful
misconduct by reason of any action so taken.
(m) Unless otherwise provided herein, all moneys received by
the Trustee under this Indenture shall, until used or applied or
invested as herein provided, be held in trust for the purposes for
which they were received but need not be segregated from other funds
except to the extent required by this Indenture or by law. The
Trustee shall not be under liability for interest on any moneys
received hereunder except such as may be agreed upon with the Issuer
or the Company.
Section 5.02 Fees, Charges and Expenses of Trustee and Paying
Agents. Subject to the provisions of Section 4.04 hereof, the Trustee shall be
entitled to timely payment and/or reimbursement for reasonable fees for its
Ordinary Services rendered hereunder and all advances, counsel fees and other
Ordinary Expenses reasonably and necessarily made or incurred by the Trustee in
connection with such Ordinary Services and, in the event that it should become
necessary that the Trustee perform Extraordinary Services, it shall be entitled
to reasonable extra compensation therefor, and to reimbursement for reasonable
and necessary Extraordinary Expenses in connection therewith; provided, that if
such Extraordinary Services or Extraordinary Expenses are occasioned by the
neglect or willful misconduct of the Trustee, it shall not be entitled to
compensation or reimbursement therefor. The Trustee and any Paying Agent shall
also be entitled to payment and reimbursement, but only from the applicable
Construction Fund or from the Additional Payments by the Company pursuant to the
Agreement or from Pledged Receipts available therefor, but not from moneys
derived from drawings on the Letter of Credit, for their reasonable fees and
charges as Paying Agents.
Section 5.03 Notice to Bondholders if Default Occurs. If a default
occurs of which the Trustee has, pursuant to this Indenture, notice, then the
Trustee shall give written notice thereof to the Letter of Credit Bank and to
the holders of all Bonds then outstanding as shown by the registration books
maintained pursuant to Section 2.04 hereof.
Section 5.04 Intervention by Trustee. In any judicial proceeding to
which the Issuer, Letter of Credit Bank or the Company is a party and which in
the opinion of the Trustee and its attorney has a substantial bearing on the
interest of
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holders of the Bonds, the Trustee may intervene on behalf of the Bondholders and
shall do so if requested in writing by the holders of at least twenty-five
percent in the aggregate principal amount of Bonds then outstanding. The rights
and obligations of the Trustee under this Section are subject to the approval of
such intervention by a court of competent jurisdiction.
Section 5.05 Successor Trustee. Any corporation or association into
which the Trustee may be converted or merged, or with which it or any successor
to it may be consolidated, or to which it may sell or transfer its assets and
trust business as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party, ipso facto, shall be and become successor
Trustee hereunder and vested with all of the title to the trust estate hereunder
and all the trusts, powers, discretions, immunities, privileges and all other
matters as was its predecessor, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that any such
successor Trustee shall be a trust company, a bank or a banking association
authorized to exercise corporate trust powers within the State of Ohio, having a
reported capital and surplus or undivided profits of not less than $50,000,000.
Section 5.06 Resignation by the Trustee. The Trustee may at any time
resign from the trusts hereby created by giving at least sixty (60) days'
written notice thereof to the Issuer, the Letter of Credit Bank, the Company and
the Original Purchaser of each series of Bonds then outstanding, and by giving
such notice in the same manner as provided for in the Bond Legislation for
giving notice of call for redemption, not less than forty-five (45) days before
such resignation is to take effect, and such resignation shall take effect at
the appointment of a successor Trustee by the Bondholders or by the Issuer and
acceptance by the successor Trustee of such trusts.
Section 5.07 Removal of the Trustee. The Trustee may be removed at
any time by an instrument or concurrent instruments in writing delivered to the
Trustee, to the Issuer, the Letter of Credit Bank and to the Company and signed
by or on behalf of the holders of a majority in aggregate principal amount of
Bonds then outstanding; provided however, that the removal of the Trustee shall
not be effective until a successor Trustee has been appointed pursuant to
Section 5.08 hereof.
Section 5.08 Appointment of Successor Trustee. In case the Trustee
hereunder shall resign or be removed, or be dissolved, or otherwise become
incapable of acting hereunder, or in case it shall be taken under the control of
any public
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officer or officers, or of a receiver appointed by a court, a successor shall be
appointed by the Issuer with the written consent of the Company and the Letter
of Credit Bank; provided that if a successor Trustee is not so appointed within
ten days after notice of resignation is mailed or instrument of removal is
delivered as provided in Sections 5.06 and 5.07, respectively, or within ten
days after the Trustee is dissolved, taken under control or otherwise incapable
of action as above provided, then the holders of a majority in aggregate
principal amount of Bonds then outstanding, by an instrument or concurrent
instruments in writing signed by or on behalf of such holders, may designate a
successor Trustee. Every such successor Trustee appointed pursuant to the
provisions of this Section shall be a trust company, a bank or a banking
association in good standing, duly authorized to exercise corporate trust powers
within the State of Ohio, having a reported capital and surplus or undivided
profits of not less than $50,000,000 and willing to accept the trusteeship under
the terms and conditions of this Indenture.
Section 5.09 Concerning Any Successor Trustee. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to its
predecessor and also to the Issuer, the Letter of Credit Bank and the Company,
an instrument in writing accepting such appointment hereunder, and thereupon
such successor without any further act shall become fully vested with all the
rights, powers, trusts, duties and obligations of its predecessor; but such
predecessor shall, nevertheless, on the written request of its successor or the
Issuer, execute and deliver an instrument transferring to such successor Trustee
all the estates, properties, rights, powers and trusts of such predecessor
hereunder, and shall duly assign, transfer and deliver all property, securities
and moneys held by it as Trustee to its successor. Should any instrument in
writing from the Issuer be required by any successor Trustee for more fully and
certainly vesting in such successor the rights, powers and duties hereby vested
or intended to be vested in the predecessor, any and all such instruments in
writing shall, on request, be executed, acknowledged and delivered by the
Issuer.
Section 5.10 Successor Trustee as Custodian of Funds, Bond Registrar
and Paying Agent. In the event of a change in the office of Trustee, the
predecessor Trustee which has resigned or been removed shall cease to be
custodian of any funds it may hold pursuant to the Indenture, and cease to be
Bond Registrar and Paying Agent for any of the Bonds, and the successor Trustee
shall become such custodian, Bond Registrar and Paying Agent.
Section 5.11 Adoption of Authentication. In case any of the Bonds
contemplated to be issued hereunder shall have been authenticated but not
delivered, any successor Trustee may adopt
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the certificate of authentication of the original Trustee or of any successor of
it as Trustee hereunder and deliver the said Bonds so authenticated as
hereinbefore provided; and in case any of such Bonds shall not have been
authenticated, any successor Trustee may authenticate such Bonds either in the
name of any predecessor or in its own name. In all such cases such certificate
of authentication shall have the same force and effect as provided in the Bonds
or in this Indenture with respect to the certificate of authentication of the
Trustee.
Section 5.12 Trustee Protected in Relying Upon Instruments.
Legislation, resolutions, opinions, certificates and other instruments provided
for in this Indenture may be accepted by the Trustee as conclusive evidence of
the facts and conclusions stated therein and shall be full warrant, protection
and authority to the Trustee for its actions taken hereunder.
Section 5.13 Designation and Succession of Paying Agents. The
Trustee and the other banks or trust companies, if any, designated as Paying
Agent or Paying Agents in the Bond Legislation pertaining to a particular series
of Bonds shall be the Paying Agent or Paying Agents for the applicable series of
Bonds, and in the absence of such designation the Trustee shall be the sole
Paying Agent.
Any bank or trust company with or into which any Paying Agent other
than the Trustee may be merged or consolidated, or to which the assets and
business of such Paying Agent may be sold, shall be deemed the successor of such
Paying Agent for the purposes of this Indenture. If the position of such Paying
Agent shall become vacant for any reason, the Issuer shall, within thirty days
thereafter, appoint a bank or trust company located in the same city as such
Paying Agent to fill such vacancy; provided, however, that if the Issuer shall
fail to appoint such Paying Agent within said period, the Trustee shall make
such appointment.
The Paying Agents shall enjoy the same protective provisions in the
performance of their duties hereunder as are specified in Section 5.01 hereof
with respect to the Trustee, insofar as such provisions may be applicable.
Section 5.14 Dealing in Bonds. The Trustee, the Letter of Credit
Bank, the Remarketing Agent and Paying Agents and any of their directors,
officers, employees or agents, may in good faith become the owners of Bonds
secured hereby with the same rights which it or they would have hereunder if not
the Trustee, the Letter of Credit Bank, the Remarketing Agent or Paying Agent.
Section 5.15 No Transfer of Note or Notes held by the Trustee.
Except as required to effect an assignment to a
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successor trustee or the Letter of Credit Bank, or in the event of default under
the Agreement, the Reimbursement Agreement or this Indenture the Trustee shall
not sell, assign, pledge or transfer the Note or Notes held by it, and the
Trustee is authorized to enter into an agreement with the Company to such
effect.
Section 5.16 Investment of Construction Fund and Bond Fund. Subject
to Article VI hereof, any moneys (except moneys in the Bond Fund derived from
drawings under the Letter of Credit) held as part of the Construction Fund, Bond
Fund or any special trust fund created pursuant to Article IV of the Agreement
shall, to the extent permitted by law, at the written or verbal (if verbal, to
be confirmed in writing) request of and as specified by the Authorized Company
Representative be invested and reinvested by the Trustee in accordance with the
provisions of Section 4.5 of the Agreement and Section 10 of the Bond
Legislation. Any such investments shall be held by or under the control of the
Trustee and shall be deemed at all times a part of the Construction Fund, Bond
Fund or any such special trust fund, as the case may be, and the interest
accruing thereon and any profit realized from such investments shall be credited
as set forth in Section 5.17 of this Indenture and any loss resulting from such
investments shall be charged to such fund. The Trustee is directed to sell and
reduce to cash funds a sufficient amount of such investments whenever the cash
balance in the Construction Fund is insufficient to pay a requisition when
presented or whenever the cash balance in the Bond Fund or special trust fund is
insufficient for the uses prescribed for moneys held in the Bond Fund or special
trust fund, respectively.
The Company has covenanted and agreed that it will (a) prepare and
file with the Trustee and the Issuer a report setting forth the "Rebate Amount"
determined in accordance with Section 6.2(t) of the Agreement, and (b) deposit
or cause to be deposited in the Excess Investment Earnings Account (as defined
in the Agreement) any and all Rebate Amounts promptly following a determination
of any such Rebate Amount.
The Trustee, as Construction Fund and Bond Fund custodian, covenants
and agrees that it will, on or before each anniversary of the date of issuance
of the Bonds, prepare and file with the Issuer and the Company a report with
respect to the Construction Fund and the Bond Fund setting forth the total
amounts invested during the preceding bond year, the investments made with the
moneys in the Construction Fund and the Bond Fund and the investment earnings
(and losses) resulting from the investments in each such Fund, respectively,
together with such additional information concerning such Funds and the
investments therein, respectively, as the Issuer or the Company shall reasonably
request.
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The Trustee agrees that it will, to the extent practicable, keep all
moneys in the Excess Investment Earnings Account fully invested in Eligible
Investments and it will disburse all moneys in the Excess Investment Earnings
Account to the United States at the times and in the manner set forth in Section
6.2(t) of the Agreement.
Moneys in the Excess Investment Earnings Account, including
investment earnings thereon, if any, shall not be subject to the pledge of this
Indenture and shall not constitute moneys held for the benefit of the Holders of
the Bonds.
Section 5.17 Allocation of Income from Investments. All interest
accruing therefrom and any profit realized from investments of moneys in the
Construction Fund and Bond Fund shall, subject to the requirements of Section
6.2(t) of the Agreement, be allocated as follows:
(a) interest and profits from investment of Construction Fund
moneys shall be retained in the Construction Fund;
(b) interest and profits from investment of Bond Fund moneys shall
be retained in the Bond Fund and shall be used for the
purposes for which the Bond Fund is created;
(c) interest and profits from investment of moneys in the Excess
Investment Earnings Account shall be applied as required in
Section 6.2(t) of the Agreement; and
(d) interest and profits from investment of other funds or
accounts, if any, shall be paid into the Reimbursement Account
in the Bond Fund; provided that such payment shall not, in the
opinion of nationally-recognized bond counsel, impair the
tax-exempt status of interest on the Bonds.
Section 5.18 Appointment of Remarketing Agent. The Issuer shall,
with the approval of the Company, appoint the Remarketing Agent for the Bonds,
subject to the conditions set forth in Section 5.19 hereof. The Remarketing
Agent shall designate to the Trustee its principal office and signify its
acceptance of the duties and obligations imposed upon it hereunder by a written
instrument of acceptance delivered to the Issuer, the Company, the Letter of
Credit Bank and the Trustee under which the Remarketing Agent will agree,
particularly:
(a) to hold all Bonds delivered to it for purchase pursuant to
Section 5.21 hereof in trust for
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the benefit of the respective holders of such Bonds until moneys
representing the purchase price of such Bonds shall have been
delivered to or for the account of or to the order of such holders
of such Bonds;
(b) to hold all moneys delivered to it hereunder for the
purchase of Bonds pursuant to Section 5.21 hereof in trust for the
benefit of the Person or entity which shall have so delivered such
moneys until the Bonds purchased with such moneys shall have been
delivered to or for the account of such Person or entity;
(c) to establish the Six-Month Interest Rate on each
applicable Interest Rate Determination Date; and
(d) to keep such books and records as shall be consistent with
prudent industry practice and to make such books and records
available for inspection by the Issuer, the Trustee, the Letter of
Credit Bank and the Company at all reasonable times.
The Remarketing Agent shall be entitled to advice of legal counsel on any matter
relating to the Remarketing Agent's obligations hereunder and shall be entitled
to act upon the opinion of such counsel in the exercise of reasonable care in
fulfilling such obligations.
Section 5.19 Qualifications of Remarketing Agent. The Remarketing
Agent shall be a member of the National Association of Securities Dealers, Inc.,
having a capitalization of at least $2,500,000 and being authorized by law to
perform all the duties imposed upon it by this Indenture. The Remarketing Agent
may at any time resign and be discharged of the duties and obligations created
by this Indenture by giving at least 60 day's prior written notice by registered
or certified mail to the Issuer, the Company, the Letter of Credit Bank and the
Trustee. The Remarketing Agent may be removed at any time, by the Issuer at the
direction of the Company, by an instrument, signed by the Issuer, designating a
successor Remarketing Agent (with the approval of the Company), filed with the
Remarketing Agent, the Letter of Credit Bank and the Trustee.
In the event of the resignation or removal of the Remarketing Agent,
the Remarketing Agent shall pay over, assign and deliver any moneys and Bonds
held by it in such capacity to its successor or, if there be no successor, to
the Trustee as hereinafter provided.
In the event that the Remarketing Agent shall resign or be removed,
or be dissolved, or if the property or affairs of the Remarketing Agent shall be
taken under the control of any
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state or Federal court or administrative body because of bankruptcy or
insolvency, or for any other reason, and the Issuer shall not have appointed its
successor as Remarketing Agent, the Trustee, notwithstanding the provisions of
the first paragraph of this Section, but only upon its receipt of actual notice
of such resignation, removal or dissolution shall ipso facto be deemed to be the
Remarketing Agent for all purposes of this Indenture until the appointment by
the Issuer of the successor Remarketing Agent; provided that the Trustee, in its
capacity as Remarketing Agent, shall not be required to remarket Bonds or
establish rates of interest otherwise than as provided in Section 3 of the Bond
Legislation.
Section 5.20 Remarketing of Bonds. Upon delivery of Bonds to the
Remarketing Agent for purchase pursuant to Section 5.21 hereof, the Remarketing
Agent shall offer for sale and use its best efforts to sell such Bonds, any such
sale to be made on or before the Interest Payment Date on which such Bonds are
to be purchased, and in so doing may sell such Bonds at such a discount or such
a premium as, in its judgment having due regard to prevailing financial market
conditions, is necessary, but which would not exceed the discount or would not
be less than the premium necessary, to enable the Remarketing Agent to sell, not
later than the applicable Interest Payment Date, such Bonds so delivered to it;
provided, that no Bond shall be resold by the Remarketing Agent at a price less
than ninety-eight percent (98%) of its par value. Except as provided in Section
5.21 hereof, the Remarketing Agent may resell directly to the Company any Bonds
so delivered to it. The amount of any premium from any such resale, net of any
remarketing fees due to the Remarketing Agent and any amounts due and payable to
the Letter of Credit Bank under the Reimbursement Agreement, shall be paid to
the Company. The amount of any discount from any such resale shall be drawn by
the Trustee, at the written request of the Remarketing Agent, on the Letter of
Credit. In its capacity as a registered broker-dealer, the Remarketing Agent
may, but is not obligated to, acquire for its own account any Bonds so delivered
to it, but not otherwise resold, in which case the Remarketing Agent shall
resell such Bonds to itself. The Remarketing Agent may purchase and sell Bonds
for its own account at any time.
Section 5.21 Purchase of Bonds by the Remarketing Agent. So long as
no Event of Default shall have happened and be continuing hereunder, any Bond
(or a portion thereof in the amount of $5,000 or any integral multiple thereof)
shall be purchased, but only from the sources hereinafter specified, by the
Remarketing Agent, at the option of the holder thereof, on March 1, 1987, and on
any Interest Payment Date thereafter, at a purchase price equal to 100% of the
principal amount thereof, upon:
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(a) delivery to the Remarketing Agent, initially Gradison &
Company Incorporated at its Trading Desk, 580 Building, Cincinnati,
Ohio 45202; Telephone (513-579-5000) not later than 4:00 P.M., local
time, on the eighth Business Day prior to such Interest Payment Date
of a written notice which (i) states the principal amount of such
Bond (or portion thereof) to be purchased and the number thereof and
the name of the registered owner thereof, and (ii) states that such
Bond (or a portion thereof) is to be so purchased on such Interest
Payment Date; and
(b) delivery of such Bond, assigned in blank, to the
Remarketing Agent at the aforementioned office, at or prior to 11:00
A.M. local time, on the fifth Business Day immediately preceding
such Interest Payment Date.
Payment for Bonds purchased by the Remarketing Agent shall be made with the
following funds only in the following order of availability: (i) the proceeds
from the remarketing of such Bonds by the Remarketing Agent, (ii) money is
received from the Trustee pursuant to terms under the Letter of Credit, or (iii)
a combination of the foregoing.
Bonds remarketed by the Remarketing Agent shall be delivered to the
purchasers thereof. Bonds purchased by the Remarketing Agent and not remarketed
shall, if purchased with proceeds of a draw on the Letter of Credit, be
delivered to the Letter of Credit Bank and shall, if purchased with funds
provided by the Company, at the direction of the Company, be held by the
Remarketing Agent for the Company, delivered to the Trustee for cancellation or
delivered to the Company.
Bonds held by or pledged to the Letter of Credit Bank pursuant to
the Remarketing Agreement shall be delivered to the Letter of Credit Bank or
held by the Remarketing Agent for the account of the Letter of Credit Bank.
Section 5.22 Drawings on Letter of Credit for Purchase of Bonds. The
Remarketing Agent shall direct the Trustee in writing to draw moneys under the
Letter of Credit to the extent necessary to make timely payments required to be
made pursuant to, and in accordance with, Section 5.21 hereof.
At least five (5) Business Days before each Interest Payment Date
the Remarketing Agent shall notify the Trustee and the Company in writing of the
amount of any discount required to remarket the Bonds pursuant to Section 5.20
hereof and the face amount of any Bonds held by the Remarketing Agent which
cannot be remarketed by the Remarketing Agent on such Interest Payment Date.
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Section 5.23 Delivery of Proceeds of Sale. The proceeds of the sale
by the Remarketing Agent of any Bonds delivered to it by, or held by it for the
account of, the Company or the Letter of Credit Bank, or delivered to it by any
other holder, shall be turned over to the Company, the Letter of Credit Bank or
such other holder, as the case may be; provided that any such proceeds which
otherwise would be turned over to the Company shall be turned over to the Letter
of Credit Bank if there has been a drawing under a Letter of Credit pursuant to
Section 5.22 hereof, but only to the extent the Letter of Credit Bank has not
been reimbursed for such drawing and all other amounts due under the
Reimbursement Agreement; and provided further, that any premium received or any
sale shall be paid or applied as provided in Section 5.20 hereof.
In connection with remarketing of the Bonds hereunder, the
Remarketing Agent will be acting in an agency capacity rather than as principal.
Accordingly, the following provisions of this paragraph are designed to provide
protection to the Remarketing Agent against the risk that any Person (a
"Defaulting Buyer") which has agreed to purchase a Bond or portion thereof in
the remarketing process for any reason fails to pay the purchase price therefor.
Not later than noon on the fourth Business Day after any Interest Payment Date,
the Remarketing Agent shall provide notice to the Company, the Trustee, the
Letter of Credit Bank and the Original Purchaser, of the principal amount of the
Bonds remarketed hereunder for which the Remarketing Agent has paid the purchase
price but for which the Remarketing Agent has not been reimbursed by a
Defaulting Buyer. On the fifth Business Day after such Interest Payment Date the
Trustee shall draw such amount on the Letter of Credit and use the moneys so
drawn, to pay to the Remarketing Agent the applicable purchase price which shall
include interest to date. In the event of any such drawing, and provided such
drawing is promptly honored in full, the Bonds purchased in whole or in part
with the proceeds of such draw shall be assigned and delivered by the Trustee to
the Letter of Credit Bank and shall be pledged by the Company to the Letter of
Credit Bank pursuant to the Reimbursement Agreement.
Section 5.24 No Purchases or Sales After an Event of Default.
Anything in this Indenture to the contrary notwithstanding there shall be no
purchases or sales of Bonds pursuant to this Article V if there shall have
occurred and be continuing an Event of Default under this Indenture of which the
Remarketing Agent has been notified in writing.
Section 5.25 Indexing Agent. The Issuer shall, with the approval of
the Company, appoint the Indexing Agent for the Bonds, subject to the conditions
set forth herein. The Indexing Agent shall designate to the Trustee its
principal office and signify its acceptance of the duties and obligations
imposed
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upon it hereunder by a written instrument of acceptance delivered to the Issuer,
the Trustee, the Company, the Letter of Credit Bank and the Remarketing Agent
under which the Indexing Agent will agree, particularly:
(a) no later than 10:00 A.M. on each Interest Rate
Determination Date to compute the Six-Month Interest Index in
accordance with the terms of this Indenture and to give (i)
telephonic notice to the Remarketing Agent of the Six-Month Interest
Index no later than 10:00 A.M. on such Interest Rate Determination
Date, and (ii) to give written notice to the Issuer, the Trustee,
the Letter of Credit Bank, the Remarketing Agent and the Company of
the Six-Month Interest Index on such Interest Rate Determination
Date; and
(b) to keep such books and records as shall be consistent with
prudent industry practice and to make such books and records
available for inspection by the Issuer, the Trustee, the Letter of
Credit Bank and the Company at all reasonable times.
The Indexing Agent shall be a nationally recognized municipal
securities evaluation service. The Indexing Agent may at any time resign and be
discharged of the duties and obligations created by this Indenture by giving at
least sixty days' notice to the Issuer, the Company, the Remarketing Agent, the
Letter of Credit Bank and the Trustee. The Indexing Agent may be removed at any
time, at the direction of the Company, by an instrument, signed by the Issuer,
filed with the Indexing Agent, the Remarketing Agent, the Letter of Credit Bank
and the Trustee.
Section 5.26. Reimbursement of Remarketing Agent. The Company has
agreed, pursuant to Section 2.2(d) of the Agreement, to pay directly reasonable
compensation to and the reasonable expenses of the Remarketing Agent. Unless
otherwise agreed from time to time by the Company, the Letter of Credit Bank and
the Remarketing Agent, the Remarketing Agent will charge a fee of three eighths
of one percent (3/8%) of the principal amount of the Bonds remarketed as the fee
for remarketing such Bonds.
ARTICLE VI
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 6.01 Defaults; Events of Default. If any of the following
events occur, subject to the provisions of Section 6.10 hereof, it is hereby
defined as and declared to be and to constitute an "event of default" hereunder:
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(a) Failure to pay any interest on any Bond when and as the same
shall have become due and payable;
(b) failure to pay the principal of or any premium on any Bond
when and as the same shall become due and payable, whether at
stated maturity or by acceleration or by mandatory or optional
redemption;
(c) failure by the Issuer to perform or observe any other
covenant, agreement or condition on the part of the Issuer
contained in this Indenture or in the Bonds, which failure
shall have continued for a period of thirty days after written
notice, by registered or certified mail, to the Issuer and to
the Company specifying the failure and requiring the same to
be remedied, which notice may be given by the Trustee in its
discretion and which notice shall be given by the Trustee at
the written request of the holders of not less than
twenty-five percent in aggregate principal amount of Bonds
then outstanding;
(d) the occurrence of an event of default by the Company as
defined in the Mortgage;
(e) the occurrence of an event of default by the Company under the
Note;
(f) the occurrence of an event of default by the Company under the
Agreement;
(g) receipt by the Company, the Issuer and the Trustee of a notice
from the Letter of Credit Bank that an event of default exists
and is subsisting under the Reimbursement Agreement;
(h) the Letter of Credit Bank shall: (i) commence a proceeding
under any Federal or state insolvency, liquidation, custodial,
reorganization or similar law, or have such a proceeding
commenced against it and either have an order of insolvency or
reorganization entered against it or have the proceeding
remain undismissed and unstayed for ninety (90) days, or (ii)
have a receiver, liquidator, custodian or trustee appointed
for it or for the whole or any substantial part of its
property; provided, however, that the Company has not obtained
an Alternate Letter of Credit within forty-five (45) days of
such event;
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(i) subsequent to any drawing by the Trustee under the Letter of
Credit (referred to hereinafter as a "Drawing"), if the
Trustee shall receive notice from the Letter of Credit Bank
that the amount available to be drawn by the Trustee under the
Letter of Credit has not been reinstated to an amount not less
than the principal of, one hundred ninety-five (195) days
accrued interest on, and a discount not to exceed two percent
(2%) (if applicable) relating to the outstanding Project
Bonds; provided, however, that the Company has not obtained an
Alternate Letter of Credit within twenty-five (25) days of
such event;
(j) failure of the Letter of Credit Bank to honor any proper
drawing (including Principal, Interest, Discount or
Remarketing Drawings) in timely fashion so that the funds
necessary to pay such principal and interest are in the
possession of the Trustee on the Interest Payment Date on
which such principal and interest is due to the holders of the
Project Bonds; provided, however, that the Company has not
obtained an Alternate Letter of Credit within twenty-five (25)
days of such event; or
(k) failure to pay amounts due to the holder of any Project Bond
who has delivered such Project Bond to the Remarketing Agent
for purchase pursuant to the terms of this Indenture upon
notification to the Trustee and the Company of such failure
from the Remarketing Agent or any such holder, provided,
however, that if the Company shall have made such payment
within five (5) days of such notice, such failure shall not
constitute an event of default.
Upon the occurrence of any event of default, the Trustee shall
within five days after knowledge of such event of default, give written notice
of the event of default, by registered or certified mail, to the Issuer, the
Company, the Letter of Credit Bank and the Original Purchaser.
Section 6.02. Acceleration. Upon the occurrence of an Event of
Default, as defined in Section 6.01 hereof, as specified in Subsections (a),
(b), (i), (j), or (k) of Section 6.01 hereof, the Trustee shall declare, by a
notice in writing delivered to the Company, the principal of all Bonds then
outstanding (if not then due and payable), together with interest accrued
thereon, to be due and payable immediately. Upon the occurrence of any other
Event of Default, other than an Event of Default under Subsection (h), the
Trustee shall, upon
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the written direction of the Letter of Credit Bank, declare, by a notice in
writing delivered to the Company, the principal of all Bonds then outstanding
(if not then due and payable), together with interest accrued thereon, to be due
and payable immediately. Upon the occurrence of an Event of Default described in
Subsection (h) of Section 6.01 hereof, if there is not then an existing Event of
Default described in Subsections (a), (b), (i), (j), or (k) of Section 6.01
hereof, then the Trustee, without the written request of the Letter of Credit
Bank may, and upon the written request of the holders of not less than 25
percent in aggregate principal amount of Bonds then outstanding shall, declare
the principal of all Bonds then outstanding, together with interest accrued
thereon, to be due and payable immediately. Upon any such declaration, principal
and interest shall become and be due and payable immediately. Interest on the
Bonds shall accrue to the date determined by the Trustee for the tender of
payment to the holders pursuant to that declaration which date must be within
the period for which principal of and interest on the Bonds is covered by the
amount available under the Letter of Credit; provided, that interest on any
unpaid principal of Bonds outstanding shall continue to accrue from the date
determined by the Trustee for the tender of payment to the holders of those
Bonds.
Any such declaration shall be by notice in writing to the Issuer,
the Letter of Credit Bank and the Company, and, upon said declaration, principal
and interest on all Bonds shall become and be immediately due and payable. The
Trustee immediately upon such declaration shall give notice thereof in the same
manner and within the same time period as provided in Section 3.03 hereof with
respect to redemption of the Bonds. Such notice shall specify the date on which
payment of principal and interest shall be tendered to the holders of the Bonds.
Upon any declaration of acceleration hereunder, the Trustee shall (i)
immediately exercise such rights as it may have under the Agreement and the
Notes to declare all payments thereunder to be immediately due and payable and
(ii) immediately draw upon the Letter of Credit to the full extent permitted by
the terms thereof.
Anything herein to the contrary notwithstanding, if the Company
fails to provide the Trustee with a written statement to the effect that a
Determination of Taxability has occurred as a result of a violation of the
capital expenditure limit under Section 103(b)(6)(D) of the Code, the Trustee
may, at the expense of the Company, request an opinion of nationally-recognized
bond counsel acceptable to the Company with regard to the tax-exempt status of
the Bonds, and if in the opinion of such bond counsel the Bonds are taxable, the
Trustee shall declare, by a notice in writing delivered to the Company, the
principal of all Bonds then outstanding (if not then due and
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payable), together with interest accrued thereon, to be due and payable
immediately.
Section 6.03 Other Remedies; Rights of Bondholders. Upon the
happening and continuance of an event of default the Trustee may, with or
without taking action under Section 6.02 hereof, pursue any available remedy,
including without limitation actions at law or in equity, to enforce the payment
of Bond service charges or to remedy any event of default.
Upon the happening and continuance of an event of default, and if
requested so to do by the holders of at least twenty-five percent in aggregate
principal amount of Bonds then outstanding and indemnified at its option, as
provided in Section 5.01 hereof, the Trustee shall exercise such of the rights
and powers conferred by this Section and by Section 6.02 as the Trustee, being
advised by counsel, shall deem most effective to enforce and protect the
interests of the Bondholders.
No remedy conferred upon or reserved to the Trustee (or to the
Bondholders) hereby is intended to be exclusive of any other remedy, but each
and every such remedy shall be cumulative and shall be in addition to any other
remedy given to the Trustee or to the Bondholders hereunder or now or hereafter
existing.
No delay or omission to exercise any right or power accruing upon
any default or event of default shall impair any such right or power or shall be
construed to be a waiver of any such default or event of default or acquiescence
therein; and every such right and power may be exercised from time to time and
as often as may be deemed expedient.
No waiver of any default or event of default hereunder, whether by
the Trustee or by the Bondholders, shall extend to or shall affect any
subsequent default or event of default or shall impair any rights or remedies
consequent thereon.
The Trustee, as the assignee of all right, title and interest of the
Issuer in and to the Agreement (except Unassigned Issuer Rights) and the Note,
shall enforce each and every right granted to the Issuer under the Agreement and
the Note. In exercising such rights and the rights given the Trustee under this
Article VI, the Trustee shall take such action as, in the judgment of the
Trustee, applying the standards described in Section 5.01 hereof, would best
serve the interests of the Bondholders.
Section 6.04 Right of Bondholders to Direct Proceedings. Anything in
this Indenture to the contrary not withstanding, the holders of a majority in
aggregate principal
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amount of Bonds then outstanding shall have the right at any time, by an
instrument or instruments in writing executed and delivered to the Trustee, to
direct the method and place of conducting all proceedings to be taken in
connection with the enforcement of the terms and conditions of this Indenture,
or for the appointment of a receiver or any other proceedings hereunder;
provided, that such direction shall not be otherwise than in accordance with the
provisions of law and of this Indenture, and provided that the Trustee shall be
indemnified to its satisfaction.
Section 6.05 Appointment of Receivers. Upon the occurrence of an
event of default, and upon the filing of a suit or other commencement of
judicial proceedings to enforce the rights of the Trustee and of the Bondholders
under this Indenture, the Agreement, and the Note, the Trustee shall be
entitled, as a matter of right, to the appointment of a receiver or receivers of
the Pledged Receipts, pending such proceedings, with such power as the court
making such appointment shall confer.
Upon the occurrence of an event of default, to the extent such
rights may then lawfully be waived, neither the Issuer, nor the Company, nor
anyone claiming through or under either of them, shall set up, claim, or seek to
take advantage of any stay, extension, moratorium or redemption laws now or
hereafter in force, in order to prevent or hinder the enforcement of this
Indenture, but the Issuer, for itself and all who may claim through or under it,
hereby waives, to the extent it may lawfully do so, the benefit of all such laws
and all right of redemption to which it may be entitled.
Section 6.06 Application of Moneys. All moneys received by the
Trustee or a receiver pursuant to any right given or action taken under the
provisions of this Article shall, after payment of the Trustee's fees and
expenses, subject to any provision made pursuant to Sections 3.04 or 4.02
hereof, be deposited in the Bond Fund and all moneys in the Bond Fund shall be
applied as follows:
(a) Unless the principal of all the Bonds shall have become or
have been declared due and payable, all such moneys shall be
applied:
First--To the payment to the persons entitled thereto of all
installments of interest then due on the Bonds, in the order of
maturity of the installments of such interest beginning with the
earliest such maturity and, if the amount available shall not be
sufficient to pay in full any particular installment, then to the
payment thereof ratably, according to the amounts due on such
installment, to the persons entitled thereto,
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without any discrimination or privilege except as to any difference
in the respective rates of interest specified in the Bonds; and
Second--To the payment to the persons entitled thereto of the unpaid
principal of any of the Bonds which shall have become due (other
than Bonds previously called for redemption for the payment of which
moneys are held pursuant to the provisions of this Indenture)
whether at maturity or by call for redemption, in the order of their
due dates and beginning with the earliest such due date, with
interest on such Bonds from the respective dates upon which they
became due and if the amount available shall not be sufficient to
pay in full all Bonds due on any particular date, together with such
interest, then to the payment thereof ratably, according to the
amount of principal due on such date, to the persons entitled
thereto without any discrimination or privilege.
(b) If the principal of all the Bonds shall have become due or
shall have been declared due and payable pursuant to this
Article, all such moneys shall be applied to the payment of
the principal and interest then due and unpaid upon the Bonds,
without preference or priority of principal over interest or
of interest over principal, or of any installment of interest
over any other installment of interest, or of any Bond over
any other Bond, ratably, according to the amounts due
respectively for principal and interest, to the persons
entitled thereto without any discrimination or privilege
except as to any difference in the respective rates of
interest specified in the Bonds.
(c) If the principal of all the Bonds shall have been declared due
and payable pursuant to this Article, and if such declaration
shall thereafter have been rescinded and annulled under the
provisions of Section 6.10 hereof, then, subject to the
provisions of paragraph (b) of this Section in the event that
the principal of all the Bonds shall later become due or be
declared due and payable, the moneys shall be applied in
accordance with the provisions of paragraph (a) of this
Section;
provided, however, that prior to any application of moneys as set forth above,
the Trustee shall be entitled to its necessary and reasonable fees and expenses
incurred in the enforcement of any remedies under this Indenture.
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The Letter of Credit is issued by the Letter of Credit Bank only
with respect to the payment of principal, interest and certain discounts and
purchase price payments on the Project Bonds for the benefit of the Trustee on
behalf of the holders of such Project Bonds. Proceeds of draws on the Letter of
Credit shall not be used for any other purpose.
Whenever moneys are to be applied pursuant to the provisions of this
Section, such moneys shall be applied at such times, and from time to time, as
the Trustee shall determine, having due regard to the amount of such moneys
available for application and the likelihood of additional moneys becoming
available for such application in the future. Whenever the Trustee shall apply
such funds, it shall fix the date (which shall be an Interest Payment Date
unless it shall deem another date more suitable) upon which such application is
to be made and upon such date interest on the amounts of principal to be paid on
such dates, and for which moneys are available, shall cease to accrue. The
Trustee shall give notice as it may deem appropriate of the deposit with it of
any moneys and of the fixing of any such date, and shall not be required to make
payment to the holder of any unpaid Bond until such Bond shall be presented to
the Trustee for cancellation if fully paid.
The provisions of this Section are in all respects subject to the
provisions of Section 4.03 hereof.
Whenever all Bonds and interest thereon have been paid under the
provisions of this Section and all fees, expenses and charges of the Trustee and
Paying Agents and all other expenses payable under this Indenture have been
paid, any balance remaining in the Bond Fund shall be paid as provided in
Section 4.07 hereof.
Section 6.07 Remedies Vested in Trustee. All rights of action
(including the right to file proof of claims) under this Indenture or under any
of the Bonds may be enforced by the Trustee without the possession of any of the
Bonds or the production thereof in any trial or other proceeding relating
thereto and any such suit or proceeding instituted by the Trustee shall be
brought in its name as Trustee without the necessity of joining as plaintiffs or
defendants any holders of the Bonds, and any recovery of judgment shall be for
the benefit of the holders of the outstanding Bonds, subject, however, to the
provisions of this Indenture.
Section 6.08 Rights and Remedies of Bondholders. No holder of any
Bond shall have any right to institute any suit, action or proceeding for the
enforcement of this Indenture or for the execution of any power or trust thereof
or for the appointment of a receiver or any other remedy hereunder, unless an
event of default hereunder has occurred and is continuing, of
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which the Trustee has been notified as provided in Section 5.01(g), or of which
by said paragraph it is deemed to have notice, and the holders of at least
twenty-five percent in aggregate principal amount of Bonds then outstanding
shall have made written request to the Trustee and shall have afforded the
Trustee reasonable opportunity to proceed to exercise the powers or trusts
hereinbefore granted or to institute such action, suit or proceeding in its own
name, and have offered to the Trustee indemnity as provided in Section 5.01, and
the Trustee shall thereafter fail or refuse to exercise the powers or trusts
hereinbefore granted or to institute such action, suit or proceeding in its own
name; and such notification, request and offer of indemnity are hereby declared
in every case at the option of the Trustee to be conditions precedent to the
execution of the powers and trusts of this Indenture, and to any action or cause
of action for the enforcement of this Indenture, or for the appointment of a
receiver or for any other remedy hereunder; it being understood and intended
that no one or more holders of the Bonds shall have any right in any manner
whatsoever to affect, disturb or prejudice the lien of this Indenture by its,
his, or their action or to enforce any right hereunder except in the manner
herein provided and that proceedings shall be instituted, had and maintained in
the manner herein provided and for the benefit of the holders and owners of all
Bonds then outstanding. Subject to the foregoing, each Bondholder shall have a
right of action to enforce the payment of the principal of and interest on any
Bond held or owned by him at and after the maturity thereof at the place, from
the sources and in the manner in said Bond expressed.
Section 6.09 Termination of Proceedings. In case the Trustee shall
have proceeded to enforce any right under this Indenture by the appointment of a
receiver or otherwise, and such proceeding shall have been discontinued or
abandoned for any reason, or shall have been determined adversely, then and in
every such case the Issuer, the Trustee and the Bondholders shall be restored to
their former positions and rights hereunder, respectively, and all rights,
remedies and powers of the Trustee shall continue unimpaired as before.
Section 6.10 Waivers of Events of Default. The Trustee with the
consent of the Letter of Credit Bank, other than in the case of an event of
default described in Section 6.01(a), (b), (h), (i), (j), or (k) hereof, may in
its discretion waive any event of default under this Indenture and its
consequences and rescind any declaration of maturity of principal, and shall do
so upon the written request of (1) the Letter of Credit Bank and (2) the holders
of at least 25% in aggregate principal amount of all Project Bonds and
Additional Bonds then outstanding; provided, however, that there shall not be
waived any event of default described in paragraphs (a) or (b) of Section 6.01
hereof or any such declaration in connection
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therewith rescinded. In case of any such waiver or rescission, or in case any
proceeding taken by the Trustee on account of any such event of default shall
have been discontinued or abandoned or determined adversely, then and in every
such case the Issuer, the Trustee, the Letter of Credit Bank and the Bondholders
shall be restored to their former positions and rights hereunder respectively,
but no such waiver or rescission shall extend to any subsequent or other event
of default, or impair any right consequent thereon.
ARTICLE VII
SUPPLEMENTAL INDENTURES
Section 7.01 Supplemental Indentures Not Requiring Consent of
Bondholders. The Issuer and the Trustee may without the consent of, or notice
to, any of the Bondholders, but with the consent of the Letter of Credit Bank,
enter into indentures supplemental to this Indenture and financing statements or
other instruments evidencing the existence of a lien and/or security interests
and amendments to the Letter of Credit as shall not, in the opinion of the
Issuer and the Trustee, be inconsistent with the terms and provisions hereof for
any one or more of the following purposes:
(a) To cure any ambiguity, inconsistency or formal defect or
omission in this Indenture or the Letter of Credit;
(b) To grant to or confer upon the Trustee for the benefit of the
Bondholders any additional rights, remedies, powers, or
authority that may lawfully be granted to or conferred upon
the Bondholders or the Trustee;
(c) To subject additional revenues, additional notes or interests
in real estate to the liens and pledge of the Indenture;
(d) To add to the covenants and agreements of the Issuer contained
in the Indenture other covenants and agreements thereafter to
be observed for the protection of the Bondholders, or to
surrender or limit any right, power or authority reserved to
or conferred upon the Issuer in the Indenture, including the
limitation of rights of redemption so that in certain
instances Bonds of different series will be redeemed in some
prescribed relationship to one another;
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(e) To evidence any succession to the Issuer and the assumption by
such successor of the covenants and agreements of the Issuer
contained in the Indenture, the Agreement and the Bonds or of
the Letter of Credit Bank contained in the Letter of Credit;
(f) To modify, amend or supplement the Indenture in such manner as
to permit the qualification thereof under the Trust Indenture
Act of 1939, as amended, or to comply with any similar
requirements of any other law;
(g) In connection with the issuance of Additional Bonds in
accordance with Section 2.08 hereof and Section 8 of the Bond
Legislation for the Project Bonds; and
(h) Any other change not to the detriment of the holders of the
Bonds.
The Trustee may also accept, without the consent of or notice to any of the
Bondholders, an Alternate Letter of Credit or any amendments to the Letter of
Credit necessary to continue the effectiveness of the Letter of Credit as
originally intended or which in the judgment of the Trustee are not to the
prejudice of the Bondholders.
Section 7.02 Supplemental Indentures Requiring Consent of
Bondholders. Exclusive of supplemental indentures referred to in Section 7.01
hereof and subject to the terms and provisions and limitations contained in this
Section , and not otherwise, the holders of not less than 66-2/3% in aggregate
principal amount of the Bonds then outstanding shall have the right, from time
to time, anything contained in any other Section or provision of this Indenture
to the contrary notwithstanding, with the consent of the Letter of Credit Bank,
to consent to and approve the execution by the Issuer and the Trustee of such
other indenture or indentures supplemental to this Indenture as shall be deemed
necessary and desirable by the Issuer and the Trustee for the purpose of
modifying, altering, amending, adding to or rescinding, in any particular, any
of the terms or provisions contained in this Indenture; provided, however, that
nothing in this Section or elsewhere shall permit, or be construed as
permitting, a supplemental indenture providing for (a) an extension of the
maturity of the principal or of the interest on any Bond, or a reduction in the
principal amount of any Bond or the rate of interest or redemption premium
thereon, or a reduction in the amount or extension of the time of any payment
required by any Mandatory Sinking Fund Requirements provided for in the Bond
Legislation, without the consent of the holder of each Bond so affected, or (b)
a
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privilege or priority of any Bond or Bonds over any other Bond or Bonds, a
reduction in the aggregate principal amount of the Bonds required for consent to
such supplemental indenture, or (c) an extension of the time for or reduction in
the amount of any payment under the Letter of Credit without the consent of the
Letter of Credit Bank and the holders of all of the then outstanding Bonds.
If at any time the Issuer shall request the Trustee to enter into
any such supplemental indenture for any of the purposes of this Section, the
Trustee shall, if any Bonds are at the time outstanding, upon being
satisfactorily indemnified with respect to expenses, cause notice of the
proposed execution of such supplemental indenture to be mailed by first-class
mail, postage prepaid, to the Original Purchaser of each series of Bonds and to
all registered holders of Bonds then outstanding at their addresses as they
appear on the registration books herein provided for. The Trustee shall not,
however, be subject to any liability to any Bondholder by reason of its failure
to mail, or the failure of such Bondholder to receive, the notice required by
this Section, and any such failure shall not affect the validity of such
supplemental indenture when consented to and approved as provided in this
Section. Such notice shall briefly set forth the nature of the proposed
supplemental indenture and shall state that copies thereof are on file at the
office of the Trustee for inspection by all Bondholders. Such notice or notices
may be waived by an instrument or concurrent instruments executed by the holders
or owners of all Bonds at the time outstanding.
If, within 60 days or such longer period as shall be prescribed by
the Trustee following the mailing of such notice the holders of not less than
66-2/3% of the aggregate principal amount of the Bonds then outstanding shall
have consented to the adoption thereof, such supplemental indenture may be
executed and this Indenture shall be deemed to be modified and amended in
accordance therewith. The holders of not less than 66-2/3% of the aggregate
principal amount of the Bonds then outstanding shall be deemed to have consented
to and approved the adoption of such supplemental indenture if the Trustee does
not receive letters of protest or objections thereto signed by or on behalf of
the holders of 33-1/3% or more of the aggregate principal amount of the Bonds
then outstanding on or before 3:30 P.M. local time at the principal corporate
trust office of the Trustee on the 60th day after mailing of the aforesaid
notice.
Any such consent shall be binding upon the holder of the Bond giving
such consent and, anything in Section 9.01 hereof to the contrary
notwithstanding, upon any subsequent holder of such Bond and of any Bond issued
in exchange therefor (whether or not such subsequent holder has notice thereof),
unless such consent is revoked by the holder of such Bond giving
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such consent or by a subsequent holder thereof by filing with the Trustee, prior
to the execution by the Trustee of such supplemental indenture, such revocation
and, if such Bond or Bonds are transferable by delivery, proof that such Bonds
are held by the signer of such revocation in the manner permitted by Section
9.01. At any time after the holders of the required percentage of Bonds shall
have consented to the supplemental indenture, the Trustee shall make and file
with the Issuer a written statement that the holders of such required percentage
of Bonds have so consented. Such written statement shall be conclusive that such
consents have been so filed.
If the holders of the required percentage in aggregate principal
amount of the Bonds outstanding shall have consented to and approved the
execution thereof as herein provided, no holder of any Bond shall have any right
to object to the execution of such supplemental indenture, or to object to any
of the terms and provisions contained therein or the operation thereof, or in
any manner to question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the Issuer from executing the same or from taking any
action pursuant to the provisions thereof.
Section 7.03 Consent of the Company. Anything herein to the contrary
notwithstanding, a supplemental indenture under this Article VII which affects
any rights or obligations of the Company shall not become effective unless and
until the Company shall have consented in writing to the execution and delivery
of such supplemental indenture. In this regard, the Trustee shall cause notice
of the proposed execution and delivery of any supplemental indenture together
with a copy of the proposed supplemental indenture to be mailed as provided in
Section 9.04 hereof to the Company at least ten days before the date of its
proposed execution and delivery in the case of a supplemental indenture referred
to in Section 7.01 hereof, and not later than five days after such mailing of
the notice of the proposed execution and delivery in the case of a supplemental
indenture provided for in Section 7.02 hereof.
Section 7.04 Authorization to Trustee; Effect of Supplement. The
Trustee is authorized to join with the Issuer in the execution of any
supplemental indenture provided for in this Article and to make the further
agreements and stipulations which may be contained therein. Any supplemental
indenture executed in accordance with the provisions of this Article shall
thereafter form a part of this Indenture; all the terms and conditions contained
in any such supplemental indenture as to any provision authorized to be
contained therein shall be deemed to be part of the terms and conditions of this
Indenture for any and all purposes; this Indenture shall be and be deemed to be
modified and amended in accordance therewith; and the respective rights, duties
and obligations under this Indenture of the
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<PAGE> 98
Issuer, the Company, the Trustee, the Letter of Credit Bank, the Remarketing
Agent, the Indexing Agent, the Paying Agents and all holders of Bonds then
outstanding shall thereafter be determined, exercised and enforced thereunder,
subject in all respects to such modifications and amendments. Express reference
to such executed supplemental indenture may be made in the text of any Bonds
issued thereafter, if deemed necessary or desirable by the Trustee or the
Issuer. A copy of any supplemental indenture provided for in this Article,
except such as may be entered into pursuant to clause (g) of Section 7.01
hereof, shall be mailed by the Trustee to the Original Purchaser of each and
every series of Bonds affected thereby.
Section 7.05 Opinion of Counsel. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, the opinion of any
counsel approved by it, who may be counsel for the Issuer, as conclusive
evidence that any such proposed supplemental indenture complies with the
provisions of this Indenture, and that it is proper for the Trustee, under the
provisions of this Article, to join in the execution of such supplemental
indenture.
Section 7.06 Modification by Unanimous Consent. Notwithstanding
anything contained elsewhere in this Indenture, the rights and obligations of
the Issuer and of the holders of the Bonds, and the terms and provisions of the
Bonds and this Indenture or any supplemental indenture, may be modified or
altered in any respect with the consent of the Issuer, the consent of the
Trustee, the consent of the Letter of Credit Bank and the consent of the holders
of all of the Bonds then outstanding and, if required by Section 7.03 hereof,
the consent of the Company.
ARTICLE VIII
DISCHARGE OF LIEN
Section 8.01 Release of Indenture. If the Issuer shall pay or cause
to be paid and discharged all the outstanding Bonds or there shall otherwise be
paid to the holders of the outstanding Bonds all Bond service charges due or to
become due thereon, and provision shall also be made for paying all other sums
payable hereunder by the Issuer or by the Company, including the fees or
expenses of the Trustee, then and in that event this Indenture (except for
Sections 4.0l, 4.02, 4.07 and 8.02 hereof) shall cease, determine and become
null and void, and the covenants, agreements and other obligations of the Issuer
hereunder shall be discharged and satisfied, and thereupon the Trustee shall
release this Indenture, including the cancellation and discharge of the lien
hereof, and execute and deliver to the Issuer such instruments in writing as
shall be requisite to satisfy the lien hereof and to enter on the records such
satisfaction and discharge and such other
- 93 -
<PAGE> 99
instruments to evidence such release and discharge as may be reasonably required
by the Issuer; and the Trustee and Paying Agents shall assign and deliver to the
Issuer any property, other than the Note or Notes, at the time subject to the
lien of this Indenture which may then be in their possession, except amounts in
the Bond Fund required to be paid to the Company or the Letter of Credit Bank
under Section 4.07 hereof, or to be held by the Trustee and Paying Agents under
Section 4.02 hereof or otherwise for the payment of Bond service charges.
Section 8.02 Payment and Discharge of Bonds. All the outstanding
Bonds of one or more series or of one or more maturities within any series shall
be deemed to have been paid and discharged within the meaning of this Indenture,
including, without limitation, Section 8.01 hereof, if:
(a) the Trustee and the Paying Agents shall hold in the Bond Fund
in trust for and irrevocably committed thereto, sufficient
moneys drawn under the Letter of Credit plus any premium
deposited by the Company with the Trustee for at least 91
days, or
(b) the Trustee shall hold in the Bond Fund in trust for and
irrevocably committed thereto, direct obligations of, or
obligations guaranteed by, the United States (or securities or
receipts evidencing ownership interests in such obligations)
which have been purchased from moneys drawn under the Letter
of Credit plus any premium deposited by the Company with the
Trustee for at least 91 days certified by an independent
accounting firm of national reputation to be of such
maturities and interest payment dates and to bear such
interest as will, without further investment or reinvestment
of either the principal amount thereof or the interest
earnings therefrom (likewise to be held in trust and
committed, except as hereinafter provided), be sufficient
together with moneys (if any) referred to in (a) above,
for the payment, at their maturities or redemption dates, of all Bond service
charges thereon to the date of maturity or redemption, as the case may be, or if
default in such payment shall have occurred on such date then to the date of the
tender of such payment; provided, that if any of such Bonds are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been duly
given or irrevocable provision satisfactory to the Trustee shall have been duly
made for the giving of such notice. Any moneys held by the Trustee in accordance
with the provisions of this Section may be invested
- 94 -
<PAGE> 100
by the Trustee, but only in direct obligations of, or obligations guaranteed by,
the United States the maturities or redemption dates of which, at the option of
the holder, shall coincide as nearly as practicable with, but not later than,
the time or times at which said moneys will be required for the aforesaid
purposes. Any income or interest earned by, or increment to, the investments
held under this Section shall, to the extent determined from time to time by the
Trustee to be in excess of the amount required to be held by it for the purposes
of this Section, be transferred at the time of such determination as provided in
Section 4.07 hereof for transfers of remaining amounts in the Bond Fund. In the
event of non-presentment as referred to in Section 4.02 hereof, the moneys held
pursuant to this Section to which Section 4.02 would apply but for the release
of this Indenture shall be held and paid as provided for in said Section 4.02.
Bonds so paid and discharged shall thereafter be secured solely by the moneys
and investments so deposited and held for their payment, and shall no longer be
secured by the Pledged Receipts or a lien upon the Note or Notes, provided that
if payment or provision therefor has been made in accordance with this Section
8.02 with respect to all the Bonds of any series of Bonds or of one or more
maturities within any series, the Trustee shall surrender the Note or Notes
relating to such Bonds to the Company.
In the event that this Indenture is satisfied and discharged in
accordance with the first paragraph of this Section and Section 8.01 hereof, the
holders of any Bonds then outstanding, the maturity or redemption dates thereof
having not then arrived, shall have the right (to the extent that such will not
result in insufficient moneys to pay Bond service charges on other Bonds at
maturity or redemption) as of and on any Interest Payment Date to surrender said
Bonds to a Paying Agent designated in such Bonds, and, upon such surrender, to
be paid the principal amount of any Bond surrendered, plus the redemption
premium, if any, held in accordance with this Section on account of the
surrendered Bond, plus interest accrued on any such Bond so surrendered computed
to such Interest Payment Date; provided that such right may be exercised only
after the holders of any such Bonds to be surrendered have given written notice
to the Trustee, at least sixty days before the Interest Payment Date on which
they request such payment, of their intent to so surrender the Bonds for such
payment and setting forth in such notice the Bonds to be surrendered. If any
Bond as to which such notice of intent has been given is not surrendered on or
before such Interest Payment Date, surrender thereof for payment need not be
accepted for a period of one year from said date. The Trustee shall give notice
within thirty days after such discharge and satisfaction of this Indenture in
the same manner as provided in Section 3 of the Bond Legislation for the Project
Bonds for notice of call for redemption, to the holders of such Bonds provided
for in this paragraph of their rights under this
- 95 -
<PAGE> 101
paragraph; provided that failure so to mail any such notice shall not impose any
liability on the Trustee nor affect the satisfaction and discharge of this
Indenture.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Instruments of Bondholders. Any consent, request,
direction, approval, objection or other instrument required by the Indenture to
be signed and executed by the Bondholders may be in any number of concurrent
writings of similar tenor and may be signed or executed by such Bondholders in
person or by agent appointed in writing. Proof of the execution of any such
consent, request, direction, approval, objection or other instrument or of the
writing appointing any such agent and of the ownership of Bonds, if made in the
following manner shall be sufficient for any of the purposes of this Indenture,
and shall be conclusive in favor of the Trustee with regard to any action taken
under such request or other instrument, namely:
(a) The fact and date of the execution by any person of any such
writing may be proved by the certificate of any officer in any
jurisdiction, who by law has power to take acknowledgments
within such jurisdiction, that the person signing such writing
acknowledged before him the execution thereof, or by affidavit
of any witness to such execution.
(b) The fact of ownership of fully registered Bonds shall be
proved by the registration books maintained by the Bond
Registrar.
Nothing contained herein shall be construed as limiting the Trustee
to such proof, it being intended that the Trustee may accept any other evidence
of the matter herein stated which it deems to be sufficient. Any request or
consent of the holder of any Bond shall bind every future holder of the same
Bond in respect to anything done or suffered to be done by the Issuer, the
Trustee or any Paying Agent in pursuance of such request or consent.
Section 9.02 Limitation of Rights. With the exception of rights
herein expressly conferred, nothing expressed or mentioned in or to be implied
from the Indenture or the Bonds is intended or shall be construed to give to any
person other than the parties hereto, the Company, the Letter of Credit Bank and
the holders of the Bonds, any legal or equitable right, remedy or claim under or
in respect to this Indenture or any covenants, conditions and provisions herein
contained; this Indenture and
- 96 -
<PAGE> 102
all of the covenants, conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto, the Company, the
Letter of Credit Bank and the holders of the Bonds as herein provided.
Section 9.03 Severability. In case any clause, provision or section
of this Indenture, or in case any covenant, stipulation, obligation, agreement,
act, or action, or part thereof, made, assumed, entered into, or taken under
this Indenture, or any application thereof, is for any reason held to be
illegal, invalid or inoperable, such illegality or invalidity or inoperability
shall not affect the remainder thereof or any other clause, provision or section
of this Indenture or any other covenant, stipulation, obligation, agreement,
act, or action, or part thereof, made, assumed, entered into, or taken under
this Indenture, which shall at the time be construed and enforced as if such
illegal or invalid or inoperable portion were not contained herein, nor shall
such illegality or invalidity or inoperability or any application thereof affect
any legal and valid and operable application from time to time, and each such
section, provision, covenant, stipulation, obligation, agreement, act, or
action, or part thereof, shall be deemed to be effective, operative, made,
entered into or taken in the manner and to the full extent from time to time
permitted by law.
Section 9.04 Notices. Except as provided in Section 6.0l hereof, it
shall be sufficient service or giving of any notice, request, complaint, demand
or other paper if the same shall be duly mailed by first class mail addressed as
follows: if to the Issuer, at the County of Butler, 130 N. High Street,
Hamilton, Ohio 45011, Attention, Clerk of Board of County Commissioners; if to
the Company, at O'Gara-Hess & Eisenhardt Armoring Company Limited Partnership,
8959 Blue Ash Road, Cincinnati, Ohio 45242, Attention: Mr. Nicholas P.
Carpinello, President; if to the Trustee, at The Central Trust Company, N.A.,
400 Central Trust Center, Fifth and Main Streets, Cincinnati, Ohio 45202,
Attention, Corporate Trust Department; if to the Original Purchaser, at Gradison
& Company Incorporated, 1717 Dixie Highway, Suite 470, Ft. Wright, Kentucky
41011, Attention, Mr. Daniel R. Blank; if to the Letter of Credit Bank, at The
Central Trust Company, N.A., 700 Central Trust Center, Fifth and Main Streets,
Cincinnati, Ohio 45202, Attention, International Dept. Operations Manager; if to
the Remarketing Agent, at Gradison & Company Incorporated, 580 Building,
Cincinnati, Ohio 45202, Attention, Mr. Michael J. Link. Duplicate copies of each
notice, certificate or other communication given hereunder by the Issuer,
Trustee, Remarketing Agent, Letter of Credit Bank or the Company to one or more
of the others shall also be given to the others. The Issuer, the Company, the
Letter of Credit Bank, the Remarketing Agent and the Trustee may, by notice
given hereunder, designate
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<PAGE> 103
any further or different addresses to which subsequent notices, certificates or
other communications shall be sent, but no such notice shall thereby be required
to be sent to more than two addresses.
Section 9.05 Payments Due on Saturdays, Sundays and Holidays. In any
case where the date of maturity of interest on or principal of the Bonds or the
date fixed for redemption of any Bonds shall be a Saturday or Sunday or a day on
which the Trustee or any Paying Agent is required, or authorized or not
prohibited, by law (including executive orders) to close and is closed, then
payment of such interest or principal and any redemption premium need not be
made by such Paying Agent on such date but may be made on the next succeeding
business day on which such Paying Agent is open for business with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
Section 9.06 Priority Over Other Liens. This Indenture is given in
order to secure funds to pay for new acquisition, construction or equipping and
by reason thereof it is intended that this Indenture shall be superior to any
liens which may be placed upon the Bond Fund or Construction Fund.
Section 9.07 Extent of Covenants; No Personal Liability. All
covenants, stipulations, obligations and agreements of the Issuer contained in
the Indenture shall be effective to the extent authorized and permitted by
applicable law. No such covenant, stipulation, obligation or agreement shall be
deemed to be a covenant, stipulation, obligation or agreement of any present or
future member, officer, agent or employee of the Issuer or its Legislative
Authority in his individual capacity, and neither the members of the Legislative
Authority nor any official executing the Bonds shall be liable personally on the
Bonds or be subject to any personal liability or accountability by reason of the
issuance thereof.
Section 9.08 Power to Issue Bonds and Make Pledges. The Issuer is
duly authorized pursuant to law to create and issue the Bonds and enter into
this Indenture and to pledge the Pledged Receipts, the Bond Fund and all its
right, title and interest in and under the Agreement and the Note in the manner
and to the extent provided in this Indenture. The Bonds are and will be the
valid and legally enforceable special obligations of the Issuer and the
provisions of this Indenture are and will be the valid and legally enforceable
obligations of the Issuer, all in accordance with their terms and the terms of
this Indenture. The Issuer shall at all times, to the extent permitted by law,
defend, preserve and protect the pledge of the Pledged Receipts, the Bond Fund
and all its right, title and interest in and under the Agreement and the Note
and all the rights of the Bondholders
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<PAGE> 104
under this Indenture against all claims and demands of all persons whomsoever.
Section 9.09 Binding Effect. This instrument shall inure to the
benefit of and shall be binding upon the Issuer and the Trustee and their
respective successors and assigns, subject, however, to the limitations
contained in this Indenture.
Section 9.10 Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 9.11 Captions. The captions or headings in this Indenture
are for convenience only and in no way define, limit or describe the scope or
intent of any provisions or sections of this Indenture.
Section 9.12 Governing Law. This Indenture and the Bonds shall be
deemed to be contracts made under the laws of the State and for all purposes
shall be governed by and construed in accordance with the laws of the State.
Section 9.13 Security Agreement. This Indenture constitutes a
security agreement and the Trustee as secured party shall have all the remedies
available to a secured party under the Ohio Uniform Commercial Code.
Section 9.14 Continuing Obligation. The parties hereto acknowledge
and agree that the Loan Agreement, the Reimbursement Agreement, the Note, the
Mortgage, the Security Agreement and the Assignment of Rents and Leases are
continuing obligations and will (i) be binding upon the Company, its successors
and assigns, and (ii) inure to the benefit of and be enforceable by the Trustee
and the Letter of Credit Bank and their respective successors, transferees and
assigns; provided, that the Company may not assign all or any part of the
foregoing instruments without the prior written consent of the Letter of Credit
Bank. Except as set forth in the preceding sentence and except with respect to
the holder(s) of any participation made by the Letter of Credit Bank of the
Reimbursement Agreement and the Letter of Credit, no Person not a party to this
Agreement will be entitled to the benefit of this Agreement.
IN WITNESS WHEREOF, The Issuer and the Trustee have caused this
Trust Indenture to be executed in their respective
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<PAGE> 105
names by their duly authorized officers, all as of the day and year first above
written.
COUNTY OF BUTLER
By /s/ Cale Logsdon
--------------------------------
County Commissioner
By /s/ Donald Dixon
--------------------------------
County Commissioner
By /s/ Edward Shelton
--------------------------------
County Commissioner
THE CENTRAL TRUST COMPANY, N.A.
as Trustee
By /s/ [illegible]
--------------------------------
Authorized Officer
The form of the foregoing Indenture
is hereby approved.
By /s/ Victoria Daiker
-----------------------------
Prosecuting Attorney,
County of Butler, Ohio
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<PAGE> 106
EXHIBIT A
The interest rate on the Project Bonds for the first Interest
Period, i.e., for the period from September 1, 1986 to and including February
28, 1987 shall be five and one-fourth percent (5-1/4%) per annum, payable on
March 1, 1987.
The rate of interest per annum on any Bond held by or pledged to the
Letter of Credit Bank shall be the Prime Rate plus one and one-half percent
(1-1/2%). Such rate shall be considered the "Letter of Credit Bank Rate."
The Project Bonds are subject to mandatory sinking fund redemption
on September 1 in each of the years from 1987 through 2016 in the following
principal amounts:
<TABLE>
<CAPTION>
Year of Redemption Principal Amount
on September 1 to be redeemed
------------------ ----------------
<S> <C>
1987 $75,000
1988 75,000
1989 75,000
1990 75,000
1991 75,000
1992 75,000
1993 75,000
1994 75,000
1995 75,000
1996 75,000
1997 75,000
1998 75,000
1999 75,000
2000 75,000
2001 75,000
2002 75,000
2003 75,000
2004 75,000
2005 75,000
2006 75,000
2007 75,000
2008 75,000
2009 80,000
2010 80,000
2011 80,000
2012 80,000
2013 80,000
2014 80,000
2015 85,000
2016* 85,000
</TABLE>
- 101 -
<PAGE> 107
*Final Maturity
- -------------------
- 102 -
<PAGE> 1
EXHIBIT 10.17
================================================================================
LOAN AGREEMENT RELATING TO
O'GARA-HESS & EISENHARDT ARMORING COMPANY
LIMITED PARTNERSHIP
Between
COUNTY OF BUTLER, OHIO
And
O'GARA-HESS & EISENHARDT ARMORING COMPANY
LIMITED PARTNERSHIP
****************************************************************
$2,300,000
VARIABLE RATE DEMAND ECONOMIC DEVELOPMENT
REVENUE BONDS, SERIES, 1986
(O'GARA-HESS & EISENHARDT ARMORING COMPANY
LIMITED PARTNERSHIP PROJECT)
****************************************************************
Dated as of September 1, 1986
Certain of the interests of the County of Butler, Ohio, in this Loan Agreement
has been assigned to The Central Trust Company, N.A., Cincinnati, Ohio, as
Trustee under the Trust Indenture dated as of September 1, 1986, from the County
of Butler, Ohio.
================================================================================
This instrument prepared by:
M. Maynard Holcombe, Jr., Esq.
Taft, Stettinius & Hollister
1800 First National Bank Center
Cincinnati, Ohio 45202
<PAGE> 2
INDEX
(The Index is not a part of the Agreement
but for convenience of reference only.)
<TABLE>
<CAPTION>
Page
----
<S> <C>
Preambles .......................................................... 1
ARTICLE I
DEFINITIONS
Section 1.1 General ................................. 4
Section 1.2 Definitions ............................. 4
ARTICLE II
THE LOAN; LOAN PAYMENTS, LETTER OF CREDIT
AND ADDITIONAL PAYMENTS;
COMPANY TO EXECUTE AND DELIVER NOTE
Section 2.1 Amount and Terms of the Loan; the Note .. 15
Section 2.2 Additional Payments ..................... 17
Section 2.3 Notes ................................... 18
Section 2.4 Assignment of Payments and Note ......... 20
Section 2.5 Obligations Unconditional ............... 20
Section 2.6 Prepayment of Loan and Additional
Payments; Moneys for Purchase or
Optional Redemption ................... 21
Section 2.7 Past Due Loan Payments and
Additional Payments ................... 21
Section 2.8 Redemption of Bonds ..................... 22
Section 2.9 Application of Certain Proceeds ......... 22
Section 2.10 Adjustment of Loan Payments in the
Event of Redemption or Cancellation
of Project Bonds ...................... 22
Section 2.11 Assignment of Agreement and Pledged
Receipts .............................. 22
Section 2.12 Payments to Remarketing Agent ........... 23
Section 2.13 Letter of Credit ........................ 23
ARTICLE III
ACQUISITION, CONSTRUCTION, EQUIPPING AND
OWNERSHIP OF THE PROJECT
Section 3.1 Agreement to Acquire, Construct and
Equip the Project ..................... 25
Section 3.2 Plans and Specifications ................ 26
Section 3.3 Completion Date ......................... 27
Section 3.4 Agreement as to Ownership of Project .... 27
</TABLE>
<PAGE> 3
(ii)
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 3.5 Use of Project .......................... 27
Section 3.6 Additional Bonds ........................ 28
Section 3.7 Opinion to be Provided .................. 28
ARTICLE IV
ISSUANCE OF BONDS;
APPLICATION OF PROCEEDS
Section 4.1 Issuance of Bonds; Deposit of Bond
Proceeds .............................. 29
Section 4.2 Disbursements from the Construction
Fund .................................. 29
Section 4.3 Obligation of the Parties to Cooperate
in Furnishing Documents ............... 31
Section 4.4 Company Required to Pay Costs in Event
Construction Fund Insufficient ........ 32
Section 4.5 Investment of Fund Moneys ............... 32
ARTICLE V
MAINTENANCE; INSURANCE; DAMAGE;
DESTRUCTION AND EMINENT DOMAIN
Section 5.1 Maintenance ............................. 34
Section 5.2 Removal of Portions of Project .......... 34
Section 5.3 Option to Release Portion of Project .... 34
Section 5.4 Insurance Required ...................... 35
Section 5.5 Title Insurance ......................... 37
Section 5.6 Worker's Compensation Coverage .......... 38
Section 5.7 Mechanics' Liens ........................ 38
Section 5.8 Damage, Destruction and Eminent
Domain ................................ 39
ARTICLE VI
WARRANTIES, REPRESENTATIONS AND COVENANTS
Section 6.1 Warranty of Issuer ...................... 40
Section 6.2 Representations of the Company .......... 40
Section 6.3 Covenants Regarding Maintenance
of Company's Existence as a
Partnership ........................... 51
Section 6.4 Financial Statements .................... 52
Section 6.5 Company's Approval of Indenture ......... 52
Section 6.6 Right of Access ......................... 52
Section 6.7 Indemnification ......................... 52
Section 6.8 Company Not to Adversely Affect Tax
Exempt Status of Bond Interest
on Project Bonds....................... 53
</TABLE>
<PAGE> 4
(iii)
<TABLE>
<CAPTION>
Page
----
ARTICLE VII
ASSIGNMENT
<S> <C> <C>
Section 7.1 Assignment by Company ................... 55
Section 7.2 Assignment by Issuer .................... 55
ARTICLE VIII
TERMINATION AND PREPAYMENT
Section 8.1 Option to Terminate ..................... 57
Section 8.2 Option to Prepay Loan ................... 57
Section 8.3 Obligation to Prepay Loan ............... 58
Section 8.4 Notice of Prepayment .................... 58
Section 8.5 Prepayment Price ........................ 59
Section 8.6 Relative Position of this Article and
Indenture ............................. 59
Section 8.7 Concurrent Discharge of Note ............ 59
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.1 Events of Default ....................... 61
Section 9.2 Remedies on Default ..................... 62
Section 9.3 No Remedy Exclusive ..................... 64
Section 9.4 Agreement to Pay Attorneys' Fees
and Expenses .......................... 64
Section 9.5 No Additional Waiver Implied by One
Waiver ................................ 64
ARTICLE X
MISCELLANEOUS
Section 10.1 Term of Agreement ....................... 65
Section 10.2 Amounts Remaining in Bond Fund .......... 65
Section 10.3 Notices ................................. 65
</TABLE>
<PAGE> 5
(iv)
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 10.4 Binding Effect .......................... 65
Section 10.5 Amendments, Changes and Modifications ... 66
Section 10.6 Counterparts ............................ 66
Section 10.7 Severability ............................ 66
Section 10.8 Captions ................................ 66
Section 10.9 Governing Law ........................... 66
Section 10.10 Selection of Alternate Letter of
Credit ................................ 66
Section 10.11 Continuing Obligation ................... 67
Signatures ......................................... 67
Certificate ......................................... 68
Exhibit A Form of Promissory Note ................. 69
Exhibit B Project Site Description
Exhibit C Project
</TABLE>
<PAGE> 6
L O A N A G R E E M E N T
Between
COUNTY OF BUTLER, OHIO
And
O'GARA-HESS & EISENHARDT ARMORING COMPANY
LIMITED PARTNERSHIP
THIS LOAN AGREEMENT made and entered into as of the first day
of September 1986, between the COUNTY OF BUTLER, OHIO (hereinafter called the
"Issuer"), a county and political subdivision organized and existing under the
Constitution and laws of the State of Ohio, and operating herein pursuant to the
provisions of Chapter 165 of the Ohio Revised Code, and particularly Section
165.02 thereof, to carry out the public purposes of the Issuer and the State of
Ohio as set forth in Article VIII, Section 13 of the Constitution of the State
of Ohio, and O'GARA-HESS & EISENHARDT ARMORING COMPANY LIMITED PARTNERSHIP
(hereinafter called "Company"), an Ohio limited partnership,
W I T N E S S E T H :
WHEREAS, Section 13 of Article VIII of the Ohio Constitution
provides, among other things, for the passage of laws authorizing the State, its
political subdivisions and their agencies or instrumentalities, others, to
acquire, construct, enlarge, improve and equip, and lease and sell property,
structures, equipment and facilities for industry, commerce, distribution and
research and to make loans and to issue bonds to provide funds by loans for such
purposes, in order to create or preserve jobs and employment opportunities and
improve the economic welfare of the people of the State; and
WHEREAS, pursuant thereto, Ohio Revised Code Chapter 165
provides, among other things, for the issuance of revenue bonds of a county to
provide funds to make loans to others to purchase, construct, reconstruct,
enlarge, improve, furnish and equip real or personal property or both, or
interests therein, to create or preserve employment opportunities and to improve
the economic welfare of the Issuer, for the use of such property for industry,
commerce, distribution or research; and
WHEREAS, pursuant to Section 1724.10 of the Ohio Revised Code,
the Butler County Community Improvement Corporation (hereinafter referred to as
"Agency"), a community improvement corporation organized and operating pursuant
to the provisions of
<PAGE> 7
Chapter 1724 of the Ohio Revised Code, was designated by the Issuer as Agent for
the Issuer's industrial, commercial, distribution and research development, and
a plan has been prepared and submitted by the Agency to said Issuer for the
Issuer's industrial, commercial, distribution and research development (being
hereinafter referred to as "Plan"), in order to create jobs and employment
opportunities and improve the economic welfare of the State and Issuer, and the
Plan has been confirmed by the Legislative Authority (as hereinafter defined) of
the Issuer; and
WHEREAS, the Agency has certified to the Issuer that the
acquisition, construction and equipping of the facility constituting the Project
which is the subject of this Agreement and which is hereinafter identified
(being a "Project" within the meaning of that term as defined in Section 165.01
of the Ohio Revised Code) at the Project Site (as hereinafter defined) is in
accordance with the Plan; and
WHEREAS, the Legislative Authority has found and determined,
and hereby finds and determines, that the industrial, commercial and economic
welfare of the Issuer will be benefited by the Project, and negotiations have
been carried on between the Issuer and the Company with respect to the issuance
by the Issuer of its economic development revenue bonds (hereinafter called the
"Project Bonds") and the loan of the proceeds derived from the sale of the
Project Bonds in order to assist in the financing of the manufacturing facility
comprising the Project, which facility is to be acquired, constructed, equipped
and owned by the Company; and the Issuer, through its Legislative Authority, has
found and determined, and hereby finds and determines, that the financing of the
Project as hereinabove described will promote the welfare of the people of the
Issuer, stabilize the economy, provide employment, and assist in the development
of commercial activities to the benefit of the people of the Issuer and will
provide additional opportunities for their gainful employment or preservation of
their employment, and that such financing is authorized by, and will be
consistent with and in furtherance of, the provisions of Article VIII, Section
13 of the Ohio Constitution and of the laws of the State of Ohio, particularly
Chapter 165 of the Ohio Revised Code, and the Plan aforesaid; and
WHEREAS, the Issuer and/or its agent for such purpose has
caused written notice to have been mailed by certified mail to the Director of
the Department of Development of the State of Ohio in accordance with Section
165.03(D) of the Ohio Revised Code, and has caused all other notices required by
law to have been sent; and
WHEREAS, the Company and the Issuer each have full right and
lawful authority to enter into this Loan Agreement (hereinafter called the
"Agreement", and, when the context
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permits, references herein to the Agreement shall be deemed to include
amendments hereto) and to perform and observe the provisions hereof on their
respective parts to be performed and observed;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, the parties hereto covenant, agree and
bind themselves as follows, provided, that any obligation of the Issuer created
by or arising out of this Agreement, shall never constitute a debt or a pledge
of the faith and credit or the taxing power of the Issuer, the State of Ohio or
any political subdivision or taxing district thereof but shall be payable solely
out of Pledged Receipts as herein defined, anything herein contained to the
contrary by implication or otherwise notwithstanding:
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ARTICLE I
DEFINITIONS
Section 1.1. General. In addition to the words and terms
elsewhere defined in this Agreement, certain words and terms as used in this
Agreement shall have the meanings given to them by the definitions and
descriptions in this Article I unless the context or use indicates another or
different meaning or intent and such definitions shall be equally applicable to
both the singular and plural forms of any of the words and terms herein defined.
Those words and terms not specifically defined herein and used in this Agreement
and Article I as defined words or terms shall have the meanings set forth in the
Indenture, as defined herein.
Section 1.2. Definitions. The following words and
terms are defined terms under this Agreement:
"Act" means Chapter 165 of the Ohio Revised Code, enacted and
amended pursuant to Section 13 of Article VIII and other provisions of the Ohio
Constitution.
"Additional Bonds" means Bonds issued pursuant to Section 8 of
the Bond Legislation.
"Additional Guarantees" means the personal guarantee
agreement(s) of Edward O'Gara, Vicki O'Gara and Thomas O'Gara to be executed and
delivered to the Trustee and the Letter of Credit Bank.
"Additional Payments" means the amounts required to be paid by
the provisions of Section 2.2 of this Agreement.
"Agency" means (i) Butler County Community Improvement
Corporation, a community improvement corporation, and its lawful successors and
assigns, and (ii) any corporation resulting from or surviving any consolidation
or merger to which it or its successors may be a party.
"Agreement" means this Loan Agreement between the Issuer and
the Company, dated as of September 1, 1986, as the same may be duly amended,
modified or supplemented in accordance with the provisions hereof.
"Alternate Letter of Credit" means an Alternate Letter
of Credit as defined in the Indenture.
"Assignment of Partnership Interests" means the Security
Agreement-Partnership Interest and Partnership Acknowledgement dated as of
September 1, 1986 by and between
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Occidental Resources Corp. and Cibie Corp., respectively, and The Central Trust
Company, N.A., as Trustee and as Letter of Credit Bank, as amended or
supplemented.
"Assignment of Rents" means the Assignment of Rents and Leases
dated as of September 1, 1986, executed by the Company in favor of the Trustee
and the Letter of Credit Bank.
"Authorized Company Representative" means any person
reasonably acceptable to the Trustee and the Letter of Credit Bank and from time
to time designated to act on behalf of the Company by written certificate
furnished to the Issuer, the Letter of Credit Bank and the Trustee, containing
the specimen signature of such person and signed on behalf of the Company by a
general partner of the Company. Such certificate may designate an alternate or
alternates who shall have the same authority, duties and powers as such
Authorized Representative.
"Authorized Issuer Representative" means the person from time
to time designated to act on behalf of the Issuer by written certificate
furnished to the Company and Trustee, containing the specimen signature of such
person and signed on behalf of the Issuer by the Executive or Fiscal Officer of
the Issuer or Clerk of the Legislative Authority. Such certificate may designate
an alternate or alternates who shall have the same authority, duties and powers
as the Authorized Issuer Representative.
"Bonds" means the Project Bond or Project Bonds and any
Additional Bonds issued and to be issued pursuant to the Indenture.
"Bond Fund" means the Bond Fund created in Section 7 of the
Bond Legislation and Indenture.
"Bond Fund Payment" means as to the Project Bonds an amount
equal to the interest accrued on the Project Bonds from their date to the date
of their delivery to the Original Purchaser and payment therefor, and as to the
Additional Bonds the amount specified in the Bond Legislation authorizing such
Additional Bonds, provided that the Bond Fund Payment for any Additional Bonds
shall not be less than an amount equal to the interest accrued on such
Additional Bonds from their date to the date of delivery of such Additional
Bonds to their original purchaser and payment therefor.
"Bond Purchase Agreement" means the Bond Purchase Agreement,
by and among the Issuer, the Company, the Letter of Credit Bank and the Original
Purchaser.
"Bondholder" or "Holder" or "holder" or "holder of Bonds"
means any person in whose name a Bond is registered.
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"Bond Legislation" means the resolution adopted by the
Legislative Authority of the Issuer authorizing the Project Bonds, except that
when used with reference to an issue of Additional Bonds it shall mean the
aforesaid resolution to the extent applicable and other legislation providing
for the issuance of such Additional Bonds, and except that when used with
reference to Bonds when Additional Bonds are outstanding, it shall mean the
resolution first referred to above and the Bond Legislation providing for the
issuance of Additional Bonds, all as the same may from time to time be lawfully
amended, modified or supplemented.
"Bond Redemption Date" means any date, other than an Interest
Payment Date, upon which Bonds shall be redeemed pursuant to the Indenture.
"Bond service charges" for any time period or with respect to
any date means the principal, including mandatory sinking fund redemption
requirements, interest, and redemption premium, if any, required to be paid by
the Issuer on the Bonds for such time period or on such date.
"Code" means the Internal Revenue Code of 1954, as amended,
and with respect to a specific section thereof such reference shall be deemed to
include (i) the regulations prescribed under such section, (ii) any successor
provision of similar import hereafter enacted, (iii) any corresponding provision
of any subsequent Internal Revenue Code, and (iv) the regulations prescribed
under the provisions described in (ii) and (iii).
"Company" means O'Gara-Hess & Eisenhardt Armoring Company
Limited Partnership, an Ohio limited partnership, and its successors and
assigns, including any transferee partnership or other entity as provided in
Section 6.3 of this Agreement.
"Completion Date" means the date by which acquisition,
construction and equipping of the Project is completed, with such completion to
be evidenced by the certificate of the Authorized Company Representative to be
furnished with respect to the Project pursuant to Section 3.3 of this Agreement.
"Construction Fund" means the Construction Fund created in
Section 6 of the Bond Legislation.
"Construction Period" means the period between the date on
which the Project Bonds are delivered to the Original Purchaser and the
Completion Date.
"Determination of Taxability" means (i) the enactment of
legislation or the adoption of final regulations or a final decision, ruling or
technical advice by any Federal judicial or
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<PAGE> 12
administrative authority which has the effect of requiring interest on the Bonds
to be included in the gross income of the holders for Federal income tax
purposes (other than a holder who is a "substantial user" of the Project or a
"related person" as those terms are used in Section 103(b) of the Code and other
than Bonds held by the Letter of Credit Bank); or (ii) the delivery to the
Trustee of a written statement signed by the Authorized Company Representative
to the effect that the Company has exceeded or will exceed the maximum amount of
capital expenditures permitted under Section 103(b)(6)(D) of the Code; provided
that no decision by any court or decision, ruling or technical advice by any
administrative authority shall be considered final (a) unless the holder
involved in the proceeding or action giving rise to such decision, ruling or
technical advice (i) gives the Company and the Trustee prompt notice of the
commencement thereof, and (ii) offers the Company the opportunity to control the
contest thereof, provided the Company shall have agreed to bear all expenses in
connection therewith and to indemnify that holder against all liabilities in
connection therewith, and (b) until the expiration of all periods for judicial
review or appeal.
"Disbursement Agreement" means the Disbursement Agreement
dated as of September 1, 1986, by and among the Company, the Trustee and the
Letter of Credit Bank.
"Eligible Investments" means Eligible Investments as
defined in the Indenture.
"Engineer" means an engineer or engineering firm or an
architect or architectural firm qualified to practice the profession of
engineering or architecture under the laws of the State of Ohio, and who or
which is acceptable to the Company, the Trustee and the Letter of Credit Bank
and is not an officer or full-time employee of the Agency, the Issuer or the
Company.
"Event of Taxability" means the occurrence of circumstances
wherein a Determination of Taxability shall have been found to have occurred, or
which shall constitute a Determination of Taxability, and which result in the
interest payable on the Bonds becoming includable in the gross income for
Federal income tax purposes of the holders of the Bonds (other than a holder who
is a "substantial user" of the Project or a "related person" as such are defined
or used in Section 103(b) of the Code).
"Executive" means the President of the Legislative
Authority of the Issuer.
"Fiscal Officer" means the County Auditor of the
Issuer.
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<PAGE> 13
"Guarantee Agreement" means the Guarantee Agreement by
and among Occidental Resources Corp. and Cibie Corp., as
guarantors, and The Central Trust Company, N.A., as Trustee and
Letter of Credit Bank.
"Indenture" means the Trust Indenture between the Issuer and
The Central Trust Company, N.A., Cincinnati, Ohio, as Trustee, of even date
herewith, as the same may be duly amended, modified or supplemented in
accordance with the provisions thereof.
"Independent Counsel" means any attorney or firm of attorneys
acceptable to the Trustee and to the Issuer and who is not an officer, partner
or a full-time employee of the Agency, the Issuer or the Company, and in the
case of a firm, none of the attorneys or members of which is an officer, partner
or a full-time employee of the Agency, the Issuer or the Company.
"Indexing Agent" means the Indexing Agent as defined in
the Indenture.
"Interest Payment Date" means, as to the Project Bonds, each
September 1 and March 1, commencing March 1, 1987, and, as to Additional Bonds,
the date or dates identified as such in the Bond Legislation authorizing such
Additional Bonds.
"Interest Rate for Advances" means a rate per annum which is
equal to the sum of the Prime Rate plus two percent.
"Legal Officer" means the Prosecuting Attorney of the
Issuer.
"Legislative Authority" means the Board of County
Commissioners of the Issuer.
"Letter of Credit" means the Letter of Credit as
defined in the Indenture.
"Letter of Credit Bank" means, as to the Project Bonds, The
Central Trust Company, N.A., Cincinnati, Ohio, and its successors under the
Letter of Credit and the issuer of any Alternate Letter of Credit.
"Loan" means the loan by the Issuer to the Company of the
proceeds from the sale of the Project Bonds to the Original Purchaser as the
same may hereafter be increased from the proceeds from the sale of Additional
Bonds.
"Loan Payment Date" means each Bond Redemption Date, each
Interest Payment Date, each Principal Payment Date, each Mandatory Redemption
Date, the date upon which any advance payment of principal or interest is
required by the provisions of
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<PAGE> 14
Section 2.1 of this Agreement, and any date on which any principal of, premium,
if any, or interest on the Bonds shall be due and payable upon mandatory
redemption because of acceleration.
"Loan Payments" means the amounts required to be paid and/or
prepaid by the provisions of Section 2.1 of this Agreement, as the same may
hereafter be amended or supplemented.
"Mandatory Redemption Date" means the first day of September
in each of the years 1987 through 2016, inclusive, and as to any Additional
Bonds, the date or dates specified in the applicable Bond Legislation on which
such Additional Bonds are to be retired prior to maturity pursuant to Mandatory
Sinking Fund Requirements. As appropriate, the maturity date denoting a
particular series of Project Bonds shall be used in conjunction with the term
"Mandatory Redemption Date."
"Mandatory Sinking Fund Requirements" means amounts required
by the Bond Legislation to be deposited in the Bond Fund for the purpose of
retiring, on a specified date, principal maturities of Bonds which by their
terms are due and payable, if not called for prior redemption, at a subsequent
date.
"Mortgage" means the Open-End Mortgage and Security Agreement
from the Company to the Trustee and the Letter of Credit Bank with respect to
the Project, dated as of September 1, 1986, as the same may be duly amended,
modified or supplemented in accordance with the provisions thereof.
"Net Proceeds" means, as to any insurance proceeds or any
condemnation award, the amount remaining after deducting therefrom all expenses
(including attorneys' fees and any Extraordinary Expenses, as defined in the
Indenture, of the Trustee) incurred in the collection of such proceeds or award.
"Note" or "Notes" means the promissory note dated as of
September 1, 1986, constituting the promise of the Company to repay the Loan to
the Issuer, which Note shall be in substantially the form attached to this
Agreement as Exhibit A, and any additional promissory note or notes executed and
delivered with respect to Additional Bonds.
"Notice Address" means:
(a) As to the Issuer: County of Butler, Ohio
130 N. High Street
Hamilton, Ohio 45011
Attention: Clerk of
Commissioners
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<PAGE> 15
(b) As to the Company: O'Gara-Hess & Eisenhardt Armoring
Company Limited Partnership
8959 Blue Ash Road
Cincinnati, Ohio 45242
Attention: Nicholas P. Carpinello,
President
(c) As to the Trustee: The Central Trust Company, N.A.
400 Central Trust Center
Fifth and Main Streets
Cincinnati, Ohio 45202
Attention: Corporate Trust
Department
(d) As to the Original Gradison & Company Incorporated
Purchaser: 1717 Dixie Highway, Suite 470
Ft. Wright, KY 41011
Attention: Daniel R. Blank
(e) As to the Letter of The Central Trust Company, N.A.
Credit Bank: 700 Central Trust Center
Fifth and Main Streets
Cincinnati, Ohio 45202
Attention: International Dept.
Operations Manager
(f) As to the Remarketing Gradison & Company Incorporated
Agent: 580 Building
Cincinnati, Ohio 45202
Attention: Mr. Michael J. Link
or such different address, notice of which is given under Section 10.3 of this
Agreement, but no such notice shall thereby be required to be sent to more than
two addresses.
"Original Purchaser" means, as to the Project Bonds, Gradison
& Company Incorporated, Cincinnati, Ohio, and, as to any Additional Bonds, the
person or persons identified as such in the Bond Legislation providing for the
issuance of such Additional Bonds.
"Outstanding Bonds" or "Bonds outstanding" or "outstanding" as
applied to Bonds, means, as of any date, all Bonds which have been authenticated
and delivered, or are then being delivered, by the Trustee under the Indenture
except:
(a) Bonds surrendered for and replaced upon exchange
or transfer, or cancelled because of payment or
redemption, at or prior to such date;
(b) Bonds which are deemed to have been paid and
discharged pursuant to the provisions of Section
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<PAGE> 16
8.02 of the Indenture; provided that if such Bonds
are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given or
arrangements satisfactory to the Trustee shall have
been made therefor, or waiver of such notice
satisfactory in form to the Trustee shall have been
filed with the Trustee; and
(c) Bonds in lieu of which others have been authenticated
(or payment, when due, of which is made without
replacement) under Section 2.05 of the Indenture;
and also except that
(d) For the purpose of determining whether the holders
of the requisite principal amount of Bonds have
made or concurred in any notice, request, demand,
direction, consent, approval, order, waiver,
acceptance, appointment or other instrument or
communication under or pursuant to the Indenture,
Bonds owned by or for the account of the Company
or any person owned, controlled by, under common
control with or controlling the Company, but
specifically excluding Bonds, if any, held or
owned by, or pledged to, the Letter of Credit
Bank, shall be disregarded and deemed to be not
outstanding. The term "control" (including the
terms "controlling", "controlled by" and "under
common control with") means the possession,
directly or indirectly, of the power to direct or
cause the direction of the management and policies
of a person, whether through the ownership of
voting securities, by contract, or otherwise.
Ownership of 5% or more of a class of securities
having general voting power to elect a majority of
the board of directors of a corporation shall be
conclusive evidence of control of such
corporation.
"Paying Agents" means any banks or trust companies designated
as the paying agencies or places of payment for Bonds by or pursuant to the
applicable Bond Legislation, and their successors designated pursuant to the
Indenture.
"Person" means an individual, a partnership, a corporation, a
trust, an unincorporated organization, a joint-stock company, an association and
a government or any department or agency thereof.
"Plans and Specifications" means the plans and specifications
for the Project now on file with the Letter of
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<PAGE> 17
Credit Bank and the Issuer, as revised from time to time as in this Agreement
provided.
"Pledged Receipts" means (a) the Loan Payments, including the
payments of principal of and interest and any premium on the Note, (b) subject
to the provisions of Sections 3.04, 4.02 and 8.02 of the Indenture with respect
to the Trustee holding moneys for the benefit of the holders of particular
Bonds, all other moneys received by the Issuer or the Trustee for the account of
the Issuer, including condemnation awards, insurance proceeds, and other
payments pursuant to this Agreement or in respect to the Loan, (c) the proceeds
of the Bonds and any moneys deposited in the Construction Fund and the Bond Fund
from whatever source including any draws under the Letter of Credit, and (d) the
income and profit from the investment of the Loan Payments and such moneys
deposited in the Construction Fund and the Bond Fund. Moneys in the Excess
Investment Earnings Account shall not constitute Pledged Receipts.
"Prime Rate" shall have the meaning assigned to such term in
the Letter of Credit Agreement.
"Principal Payment Date" means, as to the Project Bonds, the
first day of each September in the years in which the Project Bonds mature (or
are subject to redemption pursuant to Mandatory Sinking Fund Requirements) as
provided in Section 3 of the Bond Legislation, and as to Additional Bonds, the
date or dates identified as such in the Bond Legislation authorizing such
Additional Bonds.
"Project" means the real, personal or real and personal
property, including undivided or other interests therein, identified in Exhibits
A and B of the Mortgage and Exhibits B and C of this Agreement, or in or
pursuant to any amendments thereto or hereto or in the certificate of the
Authorized Company Representative given pursuant to Section 3.3 of this
Agreement, or acquired, constructed or installed as a replacement or
substitution therefor or an addition thereto, or as may result from a revision
of the Plans and Specifications in accordance with the provisions of this
Agreement.
"Project Bonds" means the Bond or Bonds initially issued by
the Issuer pursuant to the Indenture and designated "Variable Rate Demand
Economic Development Revenue Bonds, Series 1986 (O'Gara-Hess & Eisenhardt
Armoring Company Limited
Partnership Project)".
"Project Purposes" means the purposes of a manufacturing
facility as described in the Act.
"Project Site" means the real property described in Exhibit C
of this Agreement.
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<PAGE> 18
"Rating Services" means Standard & Poor's Corporation or
Moody's Investor Service, or their successors and assigns, or if both are
dissolved or no longer assigning credit ratings to long term debt, then such
other nationally recognized service assigning credit ratings to long term debt
designated by the Company and acceptable to the Remarketing Agent and the Letter
of Credit Bank.
"Registered Bonds" means Bonds registered in the name
of the holder.
"Reimbursement Agreement" or "Letter of Credit Agreement"
means the Letter of Credit Agreement by and between the Company and the Letter
of Credit Bank pursuant to which the Letter of Credit is to be issued, as from
time to time replaced, supplemented or amended.
"Remarketing Agent" means the Remarketing Agent as
defined in the Indenture.
"Remarketing Agreement" means the Remarketing Agreement dated
as of September 1, 1986, by and among the Company, the Letter of Credit Bank,
the Remarketing Agent and the Trustee.
"Security Agreement" means the Security Agreement dated as of
September 1, 1986, by and between the Company and The Central Trust Company,
N.A., as Trustee and as Letter of Credit Bank, as amended or supplemented.
"State" means the State of Ohio.
"Termination Date" means September 1, 2016, subject to earlier
termination as provided in this Agreement.
"Trustee" means the bank or trust company at the time serving
as Trustee under the Indenture.
"Unassigned Issuer's Rights" means all of the rights of the
Issuer to receive Additional Payments under Section 2.2 hereof, and to be held
harmless and indemnified and to be reimbursed for attorney's fees and expenses
under Section 6.7 hereof.
Any reference herein to the Issuer, to the Legislative
Authority, or to any officers thereof, shall include any person or entity which
succeeds to its or their duties or responsibilities pursuant to or by operation
of law. Any reference to a section or provision of the Ohio Constitution or the
Act or to a section, provision or chapter of the Ohio Revised Code shall include
such section or provision or chapter as from time to time amended, modified,
revised, supplemented, or superseded; provided, however, that no such change in
the
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<PAGE> 19
Constitution or laws (a) shall alter the obligation to pay the Bond service
charges in the amounts and manner, at the times, and from the sources provided
in the Bond Legislation and the Indenture, except as otherwise herein permitted
or (b) shall be deemed applicable by reason of this provision if such change
would in any way constitute an impairment of the rights of the Issuer, the
Letter of Credit Bank or the Company under the Agreement or the Indenture.
The terms "hereof", "hereby", "hereto", "hereunder", and
similar terms, refer to this Loan Agreement.
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<PAGE> 20
ARTICLE II
THE LOAN; LOAN PAYMENTS, LETTER OF CREDIT AND
ADDITIONAL PAYMENTS;
COMPANY TO EXECUTE AND DELIVER NOTE
Section 2.1. Amount and Terms of the Loan; the Note. The
Issuer agrees, subject to the terms and conditions in this Agreement, to lend to
the Company the proceeds from the sale of the Project Bonds. Such proceeds
(after deducting the Original Purchaser's bond discount, if any) shall be
deposited with the Trustee and disbursed, after deducting the Bond Fund Payment
as provided in the Indenture, in accordance with the provisions of Section 4.2
hereof in payment of costs of the Project and costs of issuance and sale of the
Project Bonds. Concurrently with the issuance of the Project Bonds, the Company
agrees to and shall execute and deliver a Note in substantially the form
attached hereto as Exhibit A, evidencing the obligation of the Company to repay
the Loan made by the Issuer. Such Note shall be dated as of September 1, 1986,
shall be payable to the order of the Issuer for the principal amount of the
Loan, and shall be payable in the amounts and at the rates set forth in such
Note. Such amounts of principal, interest and premium, if any, shall together
constitute the Loan Payments.
The Company shall, simultaneously with the delivery of the
Project Bonds and the Note, deliver or cause to be delivered the Letter of
Credit to the Trustee. The Company agrees that it will not, either by its action
or inaction, in any way adversely affect the continuation or effectiveness of
the Letter of Credit.
All Loan Payments made hereunder on account of principal of
and interest and any premium on the Note shall be made directly to the Trustee
at its corporate trust office for the account of the Issuer for deposit in the
Reimbursement Account in the Bond Fund.
The Company shall have the right to prepay the Loan in full
and without premium or penalty but with accrued interest to the date of such
prepayment on the amount prepaid, upon the happening of an event described in
Section 8.2(a) or (b) of this Agreement, and the Company shall also have the
option, exercisable on any Interest Payment Date, to prepay all or part (in the
amount of $5,000 or any integral multiple thereof) of the Loan, without premium
or penalty, but with accrued interest to the date of such prepayment; provided,
however, that before the Company gives the notice in accordance with Section 8.4
of this Agreement of its intention to exercise its option to prepay the Loan in
whole or in part, the Company shall deposit with the Letter of Credit Bank the
full amount of the prepayment price, including accrued interest to the date of
prepayment specified in
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<PAGE> 21
the aforesaid notice, or alternatively, obtains a written waiver of such deposit
requirement from the Letter of Credit Bank. The Company shall be required to
prepay the Loan in full with accrued interest to the date of such prepayment on
the amount prepaid, upon the happening of an event described in Section 8.3 of
this Agreement. Any such prepayment pursuant to said Section 8.3 shall be
without premium or penalty. Any such optional or mandatory prepayment shall be
made pursuant to the notice provisions described in Section 8.4 of this
Agreement.
In any event, the sum of the Loan Payments payable under this
Section shall be sufficient to pay the total amount due with respect to the
principal of, premium (if any) and interest on the Bonds as and when due, and if
at any time when said payments are due the balance in the Bond Fund is
insufficient to make such payments, the Company will forthwith pay to the
Trustee, for the account of the Issuer for deposit into the Bond Fund, any such
deficiency; provided, that any amount at any time held by the Trustee in the
Bond Fund as the Bond Fund Payment, as interest earned on moneys held by the
Trustee and deposited in the Reimbursement Account in the Bond Fund, as the
proceeds of business interruption insurance, or as a result of the payment of
any penalties or liquidated damages received or withheld under construction
contracts and deposited in the Reimbursement Account in the Bond Fund shall be
transferred by the Trustee to the Letter of Credit Bank pursuant to Section 4.15
of the Indenture, and provided further, that if at any time all the outstanding
Bonds are paid and discharged within the meaning of the Indenture and the Letter
of Credit Bank has been fully reimbursed under the Reimbursement Agreement, the
Company shall not be obligated to make any further Loan Payments under this
Section . All payments made pursuant to this Section shall be made in such
manner and at such times as shall be necessary to assure that the Trustee shall
receive such payments in sufficient time to permit payment of the amounts of the
principal of, and interest and any premium on the Bonds when the same shall
respectively become due and payable.
The Issuer and the Company have provided for the payment of
the principal of the Project Bonds, upon maturity, redemption or acceleration,
and up to 195 days' interest on the Project Bonds from payments to be made by
the Letter of Credit Bank to the Trustee pursuant to the Letter of Credit.
Pursuant thereto, the Company hereby authorizes the Trustee to draw under the
Letter of Credit the moneys necessary to pay the principal of and interest on
the Project Bonds as they become due, including as a result of a Determination
of Taxability. The Issuer and the Company authorize the Trustee to draw moneys,
in which moneys the Company has no interest, under the Letter of Credit in an
amount sufficient to pay the principal of and interest on the Project Bonds at
least two (2) days prior to the date such principal or interest becomes due. The
amount of such drawings shall be
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<PAGE> 22
credited against the Company's obligations to make Loan Payments hereunder and
under the Note.
Section 2.2. Additional Payments. The Company agrees
to make Additional Payments as follows:
(a) To the Issuer, as reimbursement for any and all
costs, expenses and liabilities paid by the Issuer in
satisfaction of any obligations of the Company
hereunder not performed in accordance with the terms
hereof by the Company.
(b) To the Issuer, as reimbursement for or prepayment
of expenses paid or to be paid by the Issuer and
requested by the Company, or required by this
Agreement, or the Indenture or incurred in
enforcing the provisions of this Agreement or the
Indenture, or incurred in defending any action or
proceedings with respect to the Project, this
Agreement, or the Indenture, or arising out of or
based upon any other document related to the
issuance of the Bonds which are not otherwise
required to be paid by the Company under this
Agreement.
(c) To the Trustee, the reasonable fees, charges and
expenses of the Trustee as trustee, bond registrar
and paying agent, and of any other paying agent on
the Bonds under the Indenture, all as provided in
the Indenture, as and when the same become due;
provided that the Company may, without creating a
default hereunder, contest in good faith the
necessity for any Extraordinary Services and
Extraordinary Expenses, as such terms are defined
in the Indenture, and the reasonableness of any
such fees, charges or expenses.
(d) To the Indexing Agent and the Remarketing Agent,
respectively, the reasonable fees and expenses of
the Indexing Agent and the Remarketing Agent
(including any fees and expenses of the Indexing
Agent which the Indexing Agent has billed to the
Remarketing Agent) for services rendered in
connection with the Project Bonds, including with
respect to the Remarketing Agent its fees for
remarketing Project Bonds.
(e) The Company will pay, as the same become due: (i)
all taxes and governmental charges of any kind
whatsoever that may at any time be lawfully
assessed or levied against or with respect to the
Project or any machinery, equipment, furnishings
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or other property installed by the Company thereon
including, without limiting the generality of the
foregoing, ad valorem taxes or payments in lieu of
such taxes lawfully assessed against the Project;
(ii) all utility and other charges incurred in the
operation, maintenance, use, occupancy and upkeep of
the Project; and (iii) all assessments and charges
lawfully made by any governmental body for public
improvements that may be secured by a lien on the
Project; provided, that with respect to special
assessments or other governmental charges that may
lawfully be paid in installments over a period of
years, the Company shall be obligated to pay only
such installments as are required to be paid while
payments of principal or interest are outstanding
with respect to the Note.
If the Company shall first notify the Trustee and the Letter
of Credit Bank of its intention to do so, the Company may, at its expense and in
its own name and behalf or in the name and behalf of the Issuer, in good faith
contest any such taxes, assessments and other charges and, in the event of any
such contest, may permit the taxes, assessments or other charges so contested to
remain unpaid (except where tender of all or a portion of the taxes, assessments
or other charges may be made without prejudice to the Company's contest
regarding same, in which case such tender shall be made to avoid the imposition
of any penalty) during the period of such contest and any appeal therefrom
unless the Trustee or the Letter of Credit Bank shall notify the Company that,
in the opinion of Independent Counsel, by nonpayment of any such items the lien
of the Indenture or the Mortgage or the Security Agreement will be materially
endangered or the Project or any material part thereof will be subject to
imminent loss or forfeiture, in which event such taxes, assessments or charges
shall be promptly satisfied and discharged by payment thereof, by furnishing a
bond satisfactory to the Trustee and the Letter of Credit Bank, or by payment to
a reserve held by the Trustee. Notwithstanding the provisions herein, the Issuer
shall not pay any cost, expense or liability of the Company under this Agreement
or the Indenture unless it shall have first afforded the Company an opportunity
to make any such payment; provided that the Company may, without creating a
default hereunder, contest in good faith the necessity or the reasonableness of
any such cost, expense or liability (other than any amount which represents
principal of or interest or any premium on any Bonds).
Section 2.3. Notes. In addition to the Note described in
Section 2.1 hereof, a Note or Notes in an aggregate principal amount equal to
the principal amount of any Additional Bonds will be executed and delivered by
the Company in a form substantially similar to the form of the Note attached
hereto as Exhibit A,
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<PAGE> 24
with the necessary and appropriate variations, omissions and insertions as
permitted and required by this Agreement as amended and supplemented. All Notes
shall:
(a) Provide for payments of interest equal to the
payments of interest on the corresponding Bonds;
(b) require payments and/or prepayments of principal
and any premium equal to the payments of principal
and/or sinking fund payments and any premium on
the corresponding Bonds;
(c) require all payments on such Notes to be made on
or prior to the due dates for the corresponding
payments to be made on the corresponding Bonds;
(d) contain optional and mandatory prepayment provisions
and provisions in respect of the optional and
mandatory acceleration or prepayment of principal and
any premium corresponding with the redemption
provisions of the corresponding Bonds; and
(e) be on a parity with all other Notes theretofore or
thereafter executed and delivered by the Company
pursuant to this Agreement as the same may be amended
or supplemented in connection with issuance of any
Bonds.
Upon payment in full of the principal of and interest and any
premium on any or all Bonds, whether at maturity or by redemption or otherwise,
and the surrender thereof to, and cancellation thereof by, the Trustee, or upon
provision for the payment thereof having been made in accordance with the
provisions of the Indenture, the Notes, issued concurrently with such Bonds, of
the same maturity, bearing the same interest rate and in an amount equal to the
aggregate principal amount of such Bonds so surrendered and cancelled or for the
payment of which provision has been made, shall be deemed fully paid and the
obligations of the Company thereunder terminated and such Notes shall be
cancelled and surrendered by the Issuer or the Trustee to the Company.
Notwithstanding the previous sentence, in the event that moneys sufficient for
such payment have been paid to the Trustee by the Letter of Credit Bank, the
Trustee shall upon written instructions of the Letter of Credit Bank assign all
of its right, title and interest in and to the Notes, together with the
Mortgage, the Security Agreement, Guarantee Agreement, Additional Guarantees and
Assignment of Partnership Interests to the Letter of Credit Bank. The Company
hereby agrees and consents to such an assignment without defense or set-off by
reason of any dispute between the Company and the Trustee. Unless the Company is
entitled to a credit under express terms of
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<PAGE> 25
this Agreement or the Indenture, all payments on each Note shall be in the full
amount required thereunder. Each Note shall be payable to the Issuer and shall
not be negotiated by the Issuer, except to effect assignment thereof to the
Trustee and to any successor trustee under the Indenture.
Section 2.4. Assignment of Payments and Note. The Issuer will,
as security for payment of the Bonds, concurrently with the issuance of the
Bonds, pledge and assign to the Trustee all right, title and interest of the
Issuer in and to the corresponding Note and the Issuer's rights under this
Agreement to receive the Loan Payments, including the right to receive payments
under such Note (but specifically excluding Unassigned Issuer's Rights), and
hereby covenants and agrees with the Company to pledge, assign and deliver the
Note issued pursuant to Section 2.1 hereof to the Trustee. The Issuer hereby
authorizes and directs the Company and the Company hereby agrees, to pay all
Loan Payments directly to the Trustee at its corporate trust office for the
account of the Issuer and for deposit in the Bond Fund. Additional Payments
shall be paid directly to the person or entity to whom or to which they are due.
The Company will, as additional security for payment of the Bonds, concurrently
with the issuance of the Bonds and the Issuer's assignment of the Note, mortgage
the Project to the Trustee and the Letter of Credit Bank, pursuant to the
Mortgage, and will execute and deliver the Security Agreement and cause the
execution and delivery of the Guarantee Agreement, and the Additional
Guarantees.
Section 2.5. Obligations Unconditional. The obligations of the
Company to make payments pursuant to this Agreement and to perform and observe
the other agreements on its part contained herein shall be absolute and
unconditional. Until such time as all conditions provided in the Indenture for
release of the Indenture are met, the Company (i) will not suspend or
discontinue any payments pursuant to the Note or Notes or this Agreement, (ii)
will perform and observe all of its other agreements contained in this
Agreement, and (iii) except as provided in Article VIII hereof, will not
terminate this Agreement for any cause including, without limiting the
generality of the foregoing, failure to complete the Project, failure of title
to the Project or Project Site or any portion thereof, any acts or circumstances
that may constitute failure of consideration, destruction of or damage to the
Project, or any portion thereof, commercial frustration of purpose, any change
in the tax or other laws or administrative rulings of or administrative actions
by or under authority of the United States of America or of the State or any
failure of the Issuer or the Letter of Credit Bank to perform and observe any
agreement, whether expressed or implied, or any duty, liability or obligation
arising out of or connected with this Agreement or the Reimbursement Agreement
or the Indenture. Nothing contained in
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<PAGE> 26
this Section shall be construed to release the Issuer from the performance of
any of the agreements on its part contained in this Agreement, and in the event
the Issuer should fail to perform any such agreement on its part, the Company
may institute such action against the Issuer as the Company may deem necessary
to compel performance or recover its damages for nonperformance so long as such
action shall not do violence to the agreements on the part of the Company
contained in the next preceding sentence. The Company may, however, at its own
cost and expense and in its own name or, to the extent lawful, in the name of
the Issuer, prosecute or defend any action or proceeding or take any other
action involving third persons which the Company deems reasonably necessary in
order to secure or protect its rights hereunder, and in such event the Issuer
hereby agrees to cooperate fully with the Company so far as lawful, but at the
Company's expense, and to take all action necessary to effect the substitution
of the Company for the Issuer in any such action or proceeding if the Company
shall so request, or if the Issuer shall determine such action to be in its
interest. This provision shall not be construed to require cooperation by the
Issuer with the Company in any labor dispute.
Section 2.6. Prepayment of Loan and Additional Payments;
Moneys for Purchase or Optional Redemption. Except as provided in Sections 8.2
and 8.3 hereof, the Company shall not be entitled to prepay all or any part of
the Loan prior to March 1, 1987. On March 1, 1987, and on any Interest Payment
Date thereafter, the Company shall have the option to prepay all or part (in the
amount of $5,000 or any integral multiple thereof) of the Loan (i) at the
prepayment price provided in Section 2.1 of this Agreement, (ii) upon depositing
sufficient moneys with the Letter of Credit Bank as set forth in said Section
2.1, and (iii) upon giving notice in accordance with Section 8.4 hereof.
The Issuer agrees that it shall take all steps that may be
necessary to ensure that the Trustee accept such prepayment of the Loan, or of
any Additional Payments when the same are tendered by the Company for deposit by
the Trustee in the Reimbursement Account in the Bond Fund to be used to
reimburse the Letter of Credit Bank for any draw under the Letter of Credit used
to redeem Project Bonds on the corresponding Bond Redemption Date. Payments
required under the Note shall be accelerated as necessary to correspond with, in
time and amount, payments of principal of and interest and premium, if any, on
the Bonds.
Section 2.7. Past Due Loan Payments and Additional Payments.
In the event that the Company should fail to pay any Loan Payments or Additional
Payments, the payment in default shall continue as an obligation of the Company
with interest payable at the Interest Rate for Advances until the amount in
default shall have been fully paid; provided, however, that anything herein to
the contrary notwithstanding the rate of
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<PAGE> 27
interest on any Loan Payment in default shall not be less than the rate of
interest on the Bonds to which such Loan Payment relates.
Section 2.8. Redemption of Bonds. The Issuer, at the written
request at any time of the Company, and upon provision first made for the
Issuer's expenses, if any, shall forthwith take all steps that may be necessary
under the applicable redemption provisions of the Indenture to effect the
redemption of all or part of the then outstanding Bonds, as may be specified by
the Company, on the earliest redemption date on which such redemption may be
made under such applicable provisions.
Section 2.9. Application of Certain Proceeds. So long as the
Company is not in default hereunder or under the Note, the Trustee shall, with
respect to amounts deposited in the Reimbursement Account in the Bond Fund
pursuant to Sections 3.1(c) (penalties or liquidated damages received or
withheld under construction contracts), 5.2, 5.3, 5.4 or 5.8 hereof, reimburse
the Letter of Credit Bank for corresponding draws under the Letter of Credit
used to redeem Project Bonds (if such Bonds are subject to redemption under
applicable provisions hereof or of the Indenture). In lieu of such redemption
(if such Bonds are not subject to redemption under applicable provisions hereof
or of the Indenture), at the Company's option, with the concurrence of the
Letter of Credit Bank, such amounts may (i) be retained in the Reimbursement
Account in the Bond Fund and used for the purposes for which said Account is
created if the Trustee and the Letter of Credit Bank receive an opinion from a
firm of nationally-recognized bond counsel that such retention will not cause
the Bonds to become taxable, or (ii) be used to purchase Bonds on the open
market at prices not exceeding par plus accrued interest to the date of payment
therefor and surrender Bonds so purchased to the Trustee for cancellation.
Section 2.10. Adjustment of Loan Payments in the Event of
Redemption or Cancellation of Project Bonds. In the event the Issuer redeems any
Project Bonds or in the event the Company delivers to the Trustee any Project
Bonds with instructions to cancel said Bonds, then in that event the principal
amount of such Bonds shall be allowed as a credit against principal payable
under the Note in the inverse order of principal payments due under the Note.
Section 2.11 Assignment of Agreement and Pledged Receipts. To
secure the payment of Bond service charges, the Issuer shall assign, by the
Indenture, its rights under and interest in this Agreement (except for the
Unassigned Issuer's Rights) and the Pledged Receipts to the Trustee. The Company
hereby agrees and consents to those assignments.
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<PAGE> 28
Section 2.12 Payments to Remarketing Agent. The Company shall
pay to the Remarketing Agent on or before each Interest Payment Date on which
the Remarketing Agent is required to remarket Project Bonds, an amount equal to
the amount to be paid by the Remarketing Agent for the purchase of Project Bonds
on such Interest Payment Date, pursuant to the Indenture, provided that amounts
available on such Interest Payment Date for such payment from either:
(i) proceeds of the remarketing of such Project
Bonds by the Remarketing Agent, or
(ii) proceeds of a draw under the Letter of
Credit
shall be credited against the Company's obligation to make payments under this
Section 2.12.
The Company hereby consents to the appointment of the
Remarketing Agent and any successor Remarketing Agent pursuant to and as
specified in Sections 5.18 and 5.19 of the Indenture and to the appointment of
the Indexing Agent and any successor Indexing Agent pursuant to and as specified
in Section 5.25 of the Indenture.
Section 2.13 Letter of Credit. Prior to the initial delivery
of the Project Bonds to the Original Purchaser pursuant to the Indenture, the
Company shall obtain and deliver, to the Trustee, the Letter of Credit. The
initial Letter of Credit shall be issued by the Letter of Credit Bank pursuant
to the Reimbursement Agreement; shall be dated the date of delivery of the
Project Bonds; shall expire on September 2, 1991, subject to extension in
accordance with the terms thereof and of the Reimbursement Agreement; may be
replaced by an Alternate Letter of Credit complying with the provisions of
Section 4.16 of the Indenture; shall obligate the Letter of Credit Bank to pay
to the Trustee up to (i) the aggregate principal amount of the Project Bonds (a)
to enable the Trustee to pay the principal of the Project Bonds at maturity,
upon redemption or acceleration, and (b) to enable the Remarketing Agent to pay
the portion of the purchase price of Project Bonds delivered to, and not
remarketed by, the Remarketing Agent, equal to the aggregate principal amount of
such Project Bonds, and (ii) an amount equal to the portion of the purchase
price of Project Bonds delivered to and remarketed by the Remarketing Agent,
representing any discount at which the Project Bonds are remarketed as permitted
by Section 5.20 of the Indenture, plus (iii) an amount equal to the maximum
interest (at the rate of twelve percent (12%) per annum) to accrue on the
Project Bonds for one hundred ninety-five (195) days to enable the Trustee to
pay interest on the Project Bonds; and shall be in substantially the same form
as attached to the Reimbursement Agreement and made a part thereof.
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<PAGE> 29
The Company shall take whatever action may be necessary to
maintain the Letter of Credit or an Alternate Letter of Credit in full force and
effect during the period required by the Indenture, including the payment to the
Letter of Credit Bank of all amounts payable under the Reimbursement Agreement
at the times and in the amounts described therein and the payment of any
transfer fees required by the Letter of Credit Bank upon any transfer of the
Letter of Credit or an Alternate Letter of Credit to any successor Trustee
pursuant to the Indenture.
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ARTICLE III
ACQUISITION, CONSTRUCTION, EQUIPPING AND
OWNERSHIP OF THE PROJECT
Section 3.1. Agreement to Acquire, Construct and Equip
the Project. The Company agrees:
(a) To cause the Project to be acquired, constructed
and equipped, using its best efforts to do so with
all dispatch to secure completion as promptly as
is reasonably feasible in accordance with the
Plans and Specifications, and will use its best
efforts to cause the construction and equipment of
other facilities and real and personal property
deemed necessary in connection with the Project to
the end that the Project will fulfill the Project
Purposes.
(b) To make, execute, acknowledge and deliver any
contracts, orders, receipts, writings and
instructions with any other persons, firms or
corporations, and in general do all things which may
be requisite or proper for acquiring, constructing
and installing the Project.
(c) Where economically feasible to ask, demand, sue
for, levy and use its best efforts to recover and
receive such sums of money, debts, dues or other
demands whatsoever in connection with the Project,
to which it may be entitled under any contract,
order, receipt, guaranty, warranty, writing or
instrument in connection with any of the
foregoing, and to enforce the provisions of any
contract, agreement, obligation, bond or other
security in connection with the Project. Any
amounts received in connection with the foregoing,
after deduction of expenses incurred in such
recovery (i) prior to the Completion Date and full
disposition of the Construction Fund in accordance
with this Agreement and the Indenture, shall be
paid into the Construction Fund, or (ii) after the
Completion Date and full disposition of the
Construction Fund in accordance with this
Agreement and the Indenture shall be used in
accordance with Section 4.2(g) hereof, as if such
amounts were remaining in the Construction Fund
after the Completion Date and after payment of all
costs, or provision therefor, had been made.
Notwithstanding the other provisions of this
paragraph, any penalties received from any
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<PAGE> 31
contractor for failure to complete work on time shall
be paid to the Trustee for deposit in the
Reimbursement Account in the Bond Fund.
(d) All laborers and mechanics employed on the Project
shall be paid at the prevailing rates of wages of
laborers and mechanics for the class of work
called for by the Project, which wages shall be
determined in accordance with the requirements of
Chapter 4115 of the Ohio Revised Code, for
determination of prevailing wages, provided that
should the Company or other non-public user
beneficiary of the Project undertake, as part of
the Project, construction to be performed by its
regular collective bargaining unit employees who
are covered under a collective bargaining
agreement which was in existence prior to the date
of the commitment instrument undertaking to issue
the Project Bonds, then, in that event, the rate
of pay provided under the collective bargaining
agreement may be paid to such employees. To the
extent required by Section 4115.032 of the Ohio
Revised Code, the Company shall comply, and shall
require compliance by all contractors or
subcontractors working on the Project, with all
applicable requirements of Sections 4115.03
through 4115.16 of the Ohio Revised Code,
including, without implied limitation, obtaining
or causing to be obtained from the Ohio Department
of Industrial Relations ("Department") its
determination of the prevailing rates of wages to
be paid for the class of work called for by the
Project and requesting it to designate a
prevailing wage coordinator ("Coordinator") for
the Project, pursuant to Section 4115.032 of the
Ohio Revised Code. Prior to issuance of the
Bonds, the Company shall be required to provide
the Issuer with evidence that it has complied with
the foregoing agreements. In the event of failure
or refusal by the Department to designate a
Coordinator for the Project within thirty days of
receipt of such request, the Issuer shall
designate one of its employees to act as the
interim Coordinator for the Project until the
Department designates a Coordinator, and the cost
of such employee's services, based upon the time
of such employee expended in performing such
services at his or her usual rate of compensation,
shall upon demand be reimbursed to the Issuer by
the Company.
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<PAGE> 32
Section 3.2. Plans and Specifications. The Plans and
Specifications are at the date hereof on file with the Issuer and the Letter of
Credit Bank and may be changed from time to time by the Company provided that
any such change shall also be filed with the Issuer and the Letter of Credit
Bank and provided further that no amendment in the Plans and Specifications
shall materially change the function of the Project or impair the significance
or character of the Project as furthering the Project Purposes. There shall be
no amendment to the Plans and Specifications except in accordance with the
provisions of the Disbursement Agreement.
Section 3.3. Completion Date. Completion of the improvement
and equipping of the Project shall be evidenced to the Issuer, the Trustee, the
Letter of Credit Bank and the Company by a certificate signed by the Authorized
Company Representative stating that, except for any amounts retained by the
Trustee at the direction of the Authorized Company Representative, with the
approval and consent of the Letter of Credit Bank, for any amount of the costs
set forth in Subsections 4.2(a) through (f) hereof not then due and payable, (i)
construction and equipping of the Project have been substantially completed in
accordance with the Plans and Specifications and all labor, services, materials
and supplies used in such construction and equipping have been paid for, (ii)
all other facilities necessary in connection with the Project have been
acquired, constructed and equipped and all costs and expenses incurred in
connection therewith have been paid, and (iii) all construction and equipping of
the Project and facilities necessary thereto have been accomplished in such a
manner as to conform with all applicable zoning, planning, building,
environmental and other similar regulations of all governmental authorities
having jurisdiction, and have been accomplished to the satisfaction of the
Company so as to permit efficient operation for the Project Purposes. Said
certificate shall also specify the date by which the foregoing three events have
occurred. Notwithstanding the foregoing, such certificate shall state that it is
given without prejudice to any rights against third parties which then exist or
may subsequently arise.
Section 3.4. Agreement as to Ownership of Project. The Issuer
and the Company agree that title to and the ownership of the Project shall vest
in and remain in and be the sole property of the Company subject to the
Mortgage.
Section 3.5. Use of Project. The Issuer does hereby covenant
and agree that it will not take any action, or cause any action to be taken,
during the term of this Agreement, other than pursuant to Article IX of this
Agreement or Article VI of the Indenture, to interfere with the Company's
ownership of the Project or to prevent the Company from having possession,
custody, use and enjoyment of the Project, except such action as
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<PAGE> 33
may be required of or permitted to the Issuer in its governmental
capacities.
Section 3.6. Additional Bonds. Subject to the provisions of
Section 8 of the Bond Legislation for the Project Bonds, the Company and the
Issuer agree that one or more series of Additional Bonds may be issued pursuant
to the Indenture.
Section 3.7. Opinion to be Provided. Prior to September 1,
1991, and prior to September 1 of each year thereafter, the Company shall on
behalf of the Issuer cause to be delivered to the Trustee and the Letter of
Credit Bank an opinion of counsel, who may be counsel for the Company, addressed
to the Trustee and the Letter of Credit Bank and stating that based upon the law
in effect on the date of such opinion no filing, registration or recording and
no refiling, reregistration or rerecording of any financing statement,
amendments thereto, continuation statements or instruments of a similar
character relating to the pledges and assignments made by the Issuer to secure
the Bonds is required by law in order to fully preserve and protect the security
of the holders of the Bonds and the rights of the Trustee and the Letter of
Credit Bank under the Indenture, the Mortgage, the Assignment of Rents, and this
Agreement, or if such filing, registration, recording, refiling, reregistration
or rerecording is necessary, setting forth the requirements in respect thereto.
Promptly after any filing, recording, refiling or rerecording of any such
financing statement or amendment thereto or continuation statement or
instrument, the Company on behalf of the Issuer will deliver to the Trustee and
the Letter of Credit Bank an opinion of counsel, who may be counsel for the
Company, to the effect that such filing, registration, recording, refiling,
reregistration or rerecording has been duly accomplished and setting forth the
particulars thereof.
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<PAGE> 34
ARTICLE IV
ISSUANCE OF BONDS;
APPLICATION OF PROCEEDS
Section 4.1. Issuance of Bonds; Deposit of Bond Proceeds. In
order to provide funds to make the Loan and thereby pay for the costs described
in Section 4.2 hereof and incurred under or in connection with this Agreement,
concurrently with the delivery to the Trustee of the Note as provided in
Section 2.1 hereof, the Issuer will issue, sell and deliver the Project Bonds
to the Original Purchaser and will deposit the proceeds (net of the Original
Purchaser's bond discount, if any) of said Project Bonds, after deducting the
Bond Fund Payment as provided in the Indenture, into the Construction Fund. The
moneys derived from the proceeds of the Project Bonds deposited in the
Construction Fund, pending application as provided in Section 4.2 hereof, are
subject to a lien in favor of the holders of the Project Bonds as provided in
the Indenture.
Section 4.2. Disbursements from the Construction Fund. The
Issuer has, in the Indenture, authorized and directed the Trustee to use the
moneys in the Construction Fund for the disbursements required by the provisions
of this Agreement. Such disbursements shall be to pay, or, to the extent the
Company shall have paid, to reimburse the Company, for the following:
(a) Costs incurred directly or indirectly for or in
connection with the acquisition, construction or
equipping of the Project including but not limited
to those for any feasibility study, preliminary
planning and studies, architectural, legal,
engineering and supervisory services, labor,
services, materials, grading, construction and
equipment acquisition and installation, and
including interest on the Bonds during the
Construction Period to the extent that such
interest qualifies as or may be treated as
"construction period interest" as defined in
Section 266 of the Code.
(b) Premiums attributable to all insurance required to
be taken out and maintained during the
Construction Period with respect to the Project,
the premium on each surety bond, if any, required
with respect to work on the Project, and taxes,
assessments and other charges in respect of the
Project, that may become due and payable during
the Construction Period.
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<PAGE> 35
(c) Costs incurred directly or indirectly in seeking to
enforce any remedy against any contractor or
subcontractor in respect of any default under any
contract relating to the Project.
(d) Financial, legal, accounting, printing and engraving
fees, charges and expenses, and all other such fees,
charges and expenses incurred in connection with the
Bonds and the preparation and delivery of this
Agreement, the Indenture, the Mortgage and related
documents.
(e) Fees and expenses of the Trustee and of any paying
agent properly incurred under the Indenture that may
become due and payable during the Construction
Period, and the initial or acceptance fee of the
Trustee.
(f) Any other incidental and necessary costs including
without limitation any expenses, fees and charges,
relating to the acquisition, construction or
equipping of the Project, including deposits to
the Reimbursement Account in the Bond Fund for the
purpose of reimbursing the Letter of Credit Bank
for draws under the Letter of Credit to pay
interest during the Construction Period, and
including deposits to the Excess Investment
Earnings Account for the purpose of making any
payments required pursuant to Section 6.2(t) of
this Agreement; provided, that nothing in this
Agreement permits, or shall be construed to
permit, the expenditure of any moneys in the
Construction Fund for, or in reimbursement of
payments made for, the acquisition of raw
materials or supplies (other than raw materials or
supplies used in connection with the construction
of the Project), inventory, or accounts
receivable, or for provision of working capital,
including the payment of any principal or interest
on any other secured or unsecured indebtedness
incurred by the Company in connection with the
Project, and no such expenditure shall be made
from the Construction Fund.
(g) All moneys in the Construction Fund (including
moneys earned thereon by investment thereof)
remaining after the Completion Date and payment,
or provision for payment, in full of the costs
provided for in the preceding subsections of this
Section , then due and payable, shall promptly be
deposited in a subaccount ("Subaccount") of the
Reimbursement Account in the Bond Fund and, at the
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direction of the Authorized Company Representative,
used to (i) reimburse the Letter of Credit Bank for
draws on the Letter of Credit to redeem Bonds (if
such Bonds are subject to redemption under applicable
provisions hereof or of the Indenture) or (ii)
purchase Bonds in the open market for the purpose of
cancellation at prices not exceeding par plus accrued
interest thereon to the date of payment therefor, or
(iii) a combination of the foregoing; provided that
amounts approved by the Authorized Company
Representative and the Letter of Credit Bank shall be
retained by the Trustee in the Construction Fund for
payment of such costs not then due and payable, and
any balance remaining of such retained funds after
full payment of all such costs shall be used in the
manner specified and in the priorities set forth in
clauses (i), (ii) and (iii) of this subsection; and
further provided, that if such moneys remaining in
the Construction Fund prior to application in the
manner specified in clauses (i), (ii) and (iii) of
this subsection exceed 10% of the aggregate principal
amount of the Project Bonds after subtracting the
total of the costs of the issuance, sale and delivery
of the Project Bonds and any cost incurred prior to
June 5, 1986, paid out of Bond proceeds, then the
amount by which such moneys remaining in the
Construction Fund exceed the amount specified above
shall only be applied by the Company as set forth in
clause (i) above to redeem or retire Bonds, or a
portion thereof at the earlier of their next
redemption date or date of maturity and pending such
application such amount shall be held in escrow in
the Subaccount in the Reimbursement Account in the
Bond Fund and the yield on such escrowed amount shall
not exceed the yield on the Bonds, and provided
further that with regard to such redemption or
retirement of Bonds, such excess shall not be applied
to any premium which is paid for such Bonds.
Each of the payments referred to in the preceding subsections
(a) through (f) above shall be made only upon satisfaction by the Company of all
requirements for each disbursement under the terms of the Disbursement Agreement
and each such disbursement shall be made by the Trustee only in accordance with
the provisions of the Disbursement Agreement.
Section 4.3. Obligation of the Parties to Cooperate in
Furnishing Documents. The Issuer and the Company agree to
cooperate in furnishing the documents referred to in Section 4.2
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hereof that are required to effect payments out of the Construction Fund, and to
cause such approvals and orders to be directed by the Authorized Company
Representative to the Trustee as may be necessary to effect payments out of the
Construction Fund in accordance with Section 4.2 hereof. The Issuer's obligation
is subject to any provisions of this Agreement or the Indenture requiring
additional documentation with respect to payments and shall not extend beyond
the moneys in the Construction Fund available for payment under the terms of the
Indenture.
Section 4.4. Company Required to Pay Costs in Event
Construction Fund Insufficient. In the event the moneys in the Construction Fund
(including moneys from the proceeds of any Additional Bonds sold to finance
completion of the Project) should not be sufficient to pay all costs payable
therefrom, the Company agrees, in order to fulfill the public purposes for which
the Project is to be used, to complete the acquisition, improvement,
construction, installation and equipment to be accomplished pursuant hereto and
to pay all costs therefor in full; provided, however, that nothing contained
herein shall impair the Company's rights under Article VIII hereof. The Issuer
does not make any warranty, either expressed or implied, that the moneys, which
will be paid into the Construction Fund and which under the provisions of this
Agreement will be available for payment of the costs of the acquisition,
improvement, construction, installation and equipment to be accomplished
pursuant hereto, will be sufficient to pay all the costs which will be incurred
in that connection. The Company agrees that if after exhaustion of the moneys in
the Construction Fund the Company should pay pursuant hereto any portion of the
said costs listed in Section 4.2 hereof, it shall not be entitled to any
reimbursement therefor from the Issuer, the Trustee, or the holders of any of
the Bonds, nor shall it be entitled to any diminution in or abatement or
postponement of the Loan Payments.
Section 4.5. Investment of Fund Moneys. Except as otherwise
provided in the Indenture, any moneys held as part of the Bond Fund or
Construction Fund shall at the oral (and if oral, to be confirmed in writing) or
written request of the Authorized Company Representative be invested or
reinvested by the Trustee as specified in the Indenture. The Issuer and the
Company jointly and severally covenant that the use of the proceeds of the Bonds
will be restricted in such manner and to such extent, if any, as may be
necessary, after taking into account reasonable expectations at the time of
issuance of the Bonds, so that they will not constitute "arbitrage bonds" within
the meaning of Section 103(c) of the Internal Revenue Code and the regulations
prescribed under that Section. The Company and the Issuer hereby agree that the
gross proceeds of the Project Bonds will be restricted, invested and rebated as
provided in Section 6.2(t) hereof. Any officer of the Issuer having
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responsibility with respect to the issuance of the Bonds is authorized and
directed, alone or in conjunction with any other officer, partner, employee or
consultant of the Issuer or the Company, and upon receipt of satisfactory
indemnities from the Company, to give an appropriate certificate on behalf of
the Issuer, for inclusion in the transcript of proceedings for the Bonds,
setting forth the facts, estimates and circumstances and reasonable expectations
pertaining to said Section 103(c) and regulations thereunder. The Clerk of the
Legislative Authority shall cause to be furnished as provided in the Indenture a
true transcript of certified proceedings including all proceedings had with
reference to the issuance of the Bonds along with such other information as is
necessary or proper with respect to the Bonds.
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ARTICLE V
MAINTENANCE; INSURANCE; DAMAGE;
DESTRUCTION AND EMINENT DOMAIN
Section 5.1. Maintenance. So long as any of the Bonds are
outstanding within the meaning of the Indenture, the Company shall keep and
maintain the Project, including all appurtenances thereto and any personal
property therein or thereon, in good repair and good operating condition.
So long as such shall not be in violation of the Act, and
provided there is continued compliance with applicable laws and regulations of
governmental jurisdictions, the Company shall have the right to remodel the
Project or make additions, modifications and improvements thereto, from time to
time as it, in its discretion, may deem to be desirable for its uses and
purposes, the cost of which remodeling, additions, modifications and
improvements shall be paid by the Company or, to the extent permitted by the
Indenture, from the proceeds of Additional Bonds, and the same shall, when made,
become a part of the Project, provided, however, that any such remodeling shall
not have a material adverse effect on the value of the Project; and provided
further, however, that the Company shall not, except as required by law, remodel
the Project or make any additions, modifications, or improvements thereto which
would cause the Project to fail to meet the requirements of all applicable fire
and safety codes.
Section 5.2. Removal of Portions of the Project. The Company
may remove items of furnishings or equipment constituting part of the Project
only in accordance with the provisions of the Reimbursement Agreement and the
Mortgage.
Section 5.3. Option to Release Portion of Project. The Company
has the option, with the consent of the Letter of Credit Bank, to release from
the lien of the Mortgage any portion of the land, upon which no buildings,
structures, or improvements financed from Bond proceeds are located, and
appurtenances thereto and any equipment and fixtures which are subject to the
lien of the Mortgage provided that an independent architect or engineer
certifies that such real and personal property is not necessary for the
operation of the Project and the release will not interfere with the use of the
Project. To the extent that (i) any of such equipment and fixtures are necessary
for the operation of the Project or (ii) the Company does not desire to purchase
any of such equipment and fixtures, and in either case such equipment and
fixtures can be moved to another location on the Project Site, then such
equipment and fixtures shall be moved and shall not be released hereunder. The
purchase price for such release shall be the fair market value of such property
as
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determined by three independent real estate appraisers (selected in the manner
provided in Section 5.4(1) hereof). The purchase price will be deposited in the
Reimbursement Account in the Bond Fund and used for the purposes for which the
Reimbursement Account in the Bond Fund was created.
Section 5.4. Insurance Required. During the Construction
Period and throughout the term of the Note, the Company shall keep the Project,
or cause the same to be kept, continuously insured against such risks as are
customarily insured against with respect to facilities of like size and type,
paying as the same become due all premiums in respect thereto, including, but
not limited to:
(1) builder's risk insurance, and prior to the expiration
of such builder's risk insurance, insurance on the
repair or replacement basis in an amount of not less
than 100% of the then actual cost of replacement
(excluding costs of replacing excavations and
foundations but without deduction for depreciation)
on the Project (with deductible provisions not to
exceed $50,000 in any one casualty) against loss or
damage by fire, lightning, windstorm, hail,
explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke and such
other risks as are now or hereafter included in
uniform standard extended coverage endorsement in
common use for similar structures (including
vandalism and malicious mischief). In the case of any
dispute regarding the repair or replacement value of
the Project, such dispute shall be determined by
three independent appraisers who are members of the
American Institute of Real Estate Appraisers, one
appointed by the Company, one appointed by the
Trustee and Letter of Credit Bank jointly, and a
third appointed by the two appointed by the Company
and the Trustee and Letter of Credit Bank jointly; if
such two appointed by the Company and the Trustee and
Letter of Credit Bank jointly are unable to agree
upon a third, the appointment of the third shall be
determined by arbitration under the rules of the
American Arbitration Association;
(2) business interruption insurance (also referred to as
"use and occupancy insurance" or "rent insurance")
covering loss of revenues and other income by the
Company by reason of total or partial suspension of,
or interruption in the operation of the Project
caused by damage or destruction of the Project in an
amount equal to six (6) months' maximum debt service
on the
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Project Bonds plus an amount sufficient to enable the
Company to pay all taxes with respect to the Project
due and payable during such applicable six-month
period;
(3) boiler explosion insurance on steam boilers, if
any, pressure vessels and pressure piping in an
amount not less than repair or replacement cost
(with deductible provisions not to exceed
$50,000), provided that such insurance need not be
taken out until the steam boilers, pressure
vessels and pressure piping have been installed in
the Project; and
(4) during the Construction Period, comprehensive general
liability insurance to the extent of not less than
$1,000,000 combined single limit of liability for
personal injury and property damage; and thereafter
with respect to the Project, comprehensive general
liability insurance providing insurance with
deductible provisions not to exceed $50,000 to the
extent of not less than (i) $300,000 per occurrence
against liability for personal and bodily injury
including death resulting therefrom, (ii) $100,000
per occurrence for damage to property including loss
of use thereof, occurring on or in any way related to
the Project or any part thereof, with excess coverage
or "umbrella" insurance for claims under such
coverage in (i) and (ii) in the aggregate of not less
than $3,000,000.
The Net Proceeds of the insurance carried pursuant to the
provisions of subparagraphs (1) and (3) hereof shall be paid and applied as
provided in Section 5.8 hereof and the Net Proceeds of insurance carried
pursuant to the provisions of subparagraph (4) hereof shall be applied toward
extinguishment or satisfaction of the liability with respect to which such
insurance proceeds have been paid. The Net Proceeds of the insurance carried
pursuant to the provisions of subparagraph (2) hereof shall be deposited in the
Reimbursement Account in the Bond Fund and used as provided in the Indenture.
All insurance required herein shall be taken out and
maintained in generally recognized responsible insurance companies, with at
least an A+ Class XII Best's rating or otherwise acceptable to the Letter of
Credit Bank and the Trustee, qualified to do business in the State, selected by
the Company. All policies evidencing such insurance shall provide for payment to
the Issuer, the Company, the Letter of Credit Bank, and the Trustee as their
respective interests may appear, and the policies required by subparagraphs (1),
(2), and (3)
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hereof shall contain standard mortgagee clauses naming the Trustee and the
Letter of Credit Bank, as their interests may appear, and requiring that all Net
Proceeds of insurance resulting from any claim in excess of $5,000 for loss or
damage covered thereby be paid to the Trustee and the Letter of Credit Bank;
provided, however, that all claims regardless of amount may be adjusted by the
Company with the insurers, subject to approval of the Trustee and the Letter of
Credit Bank as to any settlement of any claim in excess of $5,000, which
approval shall not be unreasonably withheld. A certificate or certificates of
the insurers that such insurance is in force and effect shall be deposited with
the Trustee and the Letter of Credit Bank at the time such insurance is to be in
force and effect; and prior to the expiration of any such policy the Company
shall furnish the Trustee and the Letter of Credit Bank with evidence reasonably
satisfactory to the Trustee and the Letter of Credit Bank that the policy has
been renewed or replaced or is no longer required by this Agreement. In lieu of
separate policies, the Company may maintain one or more blanket policies of
insurance having the coverage required hereby. All such policies shall provide
that such insurance may not be modified adversely to the interests of the Issuer
or the Trustee or the Letter of Credit Bank or canceled by the issuer thereof
before the Bonds and the obligations of the Company under the Reimbursement
Agreement have been fully paid without at least thirty (30) days' notice to the
Company, the Issuer, the Trustee and the Letter of Credit Bank. If available,
all such policies shall provide that (i) any defenses against the Company shall
not affect the rights of the Issuer, the Trustee and the Letter of Credit Bank
thereunder; (ii) any loss shall be payable notwithstanding any act or negligence
of the Issuer or the Company or others that might otherwise result in forfeiture
of the insurance; (iii) the insurer waives the right of subrogation against the
Issuer and the Trustee and the Letter of Credit Bank and the Project; and (iv)
the policies are primary and noncontributory with any insurance that may be
carried by the Issuer or the Trustee or the Letter of Credit Bank.
Section 5.5. Title Insurance. The Company will prior to, or
simultaneously with, the issuance of the Bonds, obtain and furnish title
insurance in the form of an ALTA mortgagee's title binder issued by Chicago
Title Insurance Company in the face amount of $2,495,500 and will furnish a copy
of such binder to the Letter of Credit Bank and the Trustee. The Company will
furnish within the time limit specified in such binder a mortgagee's title
policy issued by such title insurance company. The mortgagee's title policy
shall insure that the Trustee and the Letter of Credit Bank, as their respective
interests appear, have a first mortgage in the Project Site and all improvements
thereon subject only to this Agreement and the "Permitted Encumbrances" as
defined in the Mortgage. Any Net Proceeds payable either to the Company or the
Trustee or the Letter of
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Credit Bank under such policy shall be subject to the lien of the Indenture,
shall be paid to the Trustee and the Letter of Credit Bank and shall, at the
Company's option with the consent of the Letter of Credit Bank, be (a) used
(subject to the prior concurrence of the Trustee and the Letter of Credit Bank)
to acquire and construct replacement or substitute property for that to which
title has been lost, or (b) used to redeem or purchase Bonds at the earliest
possible date pursuant to the Indenture, or (c) used to discharge the title
defect with respect to which such Net Proceeds were paid. Any proceeds of title
insurance remaining after the Bonds are fully paid shall be paid first to the
Letter of Credit Bank to the extent of any amounts payable by the Company to the
Letter of Credit Bank under the terms of the Reimbursement Agreement and
thereafter to the Company. Any such replacement or substitute property must be
approved in writing by the Authorized Issuer Representative and must be subject
to the lien of the Mortgage.
Section 5.6. Worker's Compensation Coverage. While the Note
and any obligation under the Reimbursement Agreement remains unpaid, including
the Construction Period, the Company shall maintain or cause to be maintained,
in connection with the Project, the Worker's Compensation coverage required by
the laws of the State.
Section 5.7. Mechanics' Liens. The Company shall not suffer or
permit any mechanics' liens to be filed against the Project, nor against any
Loan Payment paid or payable hereunder, by reason of work, labor, services or
materials supplied or claimed to have been supplied to the Company or anyone
holding the Project or any part thereof through or under the Company. If any
such mechanics' liens shall at any time be filed, the Company shall, within
ninety (90) days after notice of the filing thereof, cause the same to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. The Company shall have the right to contest the
validity and the amount of any such lien by appropriate proceedings timely
instituted, provided that the Company (a) gives the Issuer, the Trustee and the
Letter of Credit Bank written notice of its intention so to do, (b) diligently
prosecutes any such contest, and (c) if requested by the Issuer, the Trustee or
the Letter of Credit Bank, furnishes a bond in cash or by surety, whichever
shall be acceptable to the Issuer, the Trustee and the Letter of Credit Bank, in
an amount equal to the amount required by applicable law, and the Company shall
not be in default hereunder for failure to pay or discharge any such lien so
long as it is contesting the same as aforesaid. In lieu of providing the cash or
surety bond required by clause (c) above, the Company may provide the Issuer,
the Trustee and the Letter of Credit Bank with evidence of a title insurance
policy or endorsement satisfactory to the Letter of Credit Bank which policy or
endorsement insures over such lien.
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Section 5.8. Damage, Destruction and Eminent Domain. If, prior
to full payment of all Bonds outstanding (or provision for payment thereof
having been made in accordance with the provisions of the Indenture), the
Project or any portion thereof is destroyed or damaged in whole or in part by
fire or other casualty, or title to, or the temporary use of, the Project or any
portion thereof shall have been taken by the exercise of the power of eminent
domain, and the Issuer, the Company or Trustee receives Net Proceeds from
insurance or any exercise of the power of eminent domain, all Net Proceeds from
any insurance policy or any kind of condemnation awards in connection therewith
shall, at the direction of the Company be paid to the Trustee which shall
deposit same (a) in a special trust fund to be applied and disbursed in
accordance with the terms and provisions of Section 4.2 of this Agreement, to be
used by the Company, with the consent of the Letter of Credit Bank, to repair,
reconstruct, restore, replace or improve the Project or such portion thereof,
and the Company shall use its best efforts to use such proceeds in such a way as
to restore the earning power of the Project and as will not impair the character
or significance of the Project as furthering the Project Purposes, and upon
completion of such repair, reconstruction, restoration, replacement or
improvement of the Project or such portion thereof to the satisfaction of the
Letter of Credit Bank, any balance remaining in such special trust fund shall be
transferred to the Reimbursement Account in the Bond Fund, or (b) if the Company
has exercised its option to prepay the Loan pursuant to the provisions of
Section 8.2(a) or Section 8.2(b) hereof, into the Reimbursement Account in the
Bond Fund. The Letter of Credit Bank may impose such reasonable conditions as it
deems appropriate to ensure proper application of moneys pursuant to (a) above,
including without limitation, the requirement that all disbursements shall be
made in accordance with the provisions of the Disbursement Agreement.
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ARTICLE VI
WARRANTIES, REPRESENTATIONS AND SPECIAL COVENANTS
Section 6.1 Warranty of Issuer. The Issuer warrants and
represents that it is a duly organized and existing county and political
subdivision of the State of Ohio, and, under Section 1724.10 of the Ohio Revised
Code, has designated the Agency as the Issuer's agency and instrumentality for
the Issuer's industrial, commercial, distribution and research development and
has confirmed the Plan for such development prepared by such Agency. The Issuer
agrees that it will do or cause to be done all things necessary, so far as
lawful, to preserve and keep in full force and effect its existence. The Issuer
has determined that the Project constitutes a "project" within the meaning of
that term as defined in Section 165.01 of the Ohio Revised Code. The Issuer has
duly accomplished all conditions necessary to be accomplished by it prior to
issuance and delivery of the Project Bonds and execution and delivery of this
Agreement and is not in default under any of the provisions contained in the
laws of the State in any manner which would impair its ability to carry out its
obligations hereunder. The Issuer further warrants and represents that under the
Act it has power to enter into the transactions contemplated by this Agreement,
and it has been duly authorized to execute and deliver this Agreement.
Section 6.2 Representations of the Company. The Company makes
the following representations and warranties to induce the Issuer to enter into
this Agreement:
(a) The Company is a limited partnership duly formed
and existing, in good standing under the laws of
the State, and is not in violation of any
provision of its Partnership Agreement or any laws
of the State relevant to the transactions
contemplated by this Agreement, the Bond Purchase
Agreement, the Remarketing Agreement, the Note,
the Security Agreement, the Mortgage, the
Assignment of Rents, the Indenture or the
Reimbursement Agreement.
(b) The Company has full power and authority to
execute and deliver this Agreement, the Bond
Purchase Agreement, the Remarketing Agreement, the
Security Agreement, the Mortgage, the Assignment
of Rents, the Note and the Reimbursement Agreement
and to carry out the transactions provided for
therein. This Agreement, the Bond Purchase
Agreement, the Remarketing Agreement, the Security
Agreement, the Mortgage, the Assignment of Rents,
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the Note and the Reimbursement Agreement have by
proper action been duly authorized, executed and
delivered by the Company and all steps necessary have
been taken to constitute this Agreement, the Bond
Purchase Agreement, the Remarketing Agreement, the
Mortgage, the Assignment of Rents, the Security
Agreement, the Note and the Reimbursement Agreement
when executed and delivered by the respective parties
thereto, valid and binding obligations of the
Company.
(c) The execution, delivery and performance by the
Company of this Agreement, the Security Agreement,
the Bond Purchase Agreement, the Remarketing
Agreement, the Mortgage, the Assignment of Rents,
the Note and the Reimbursement Agreement and the
consummation of the transactions contemplated
hereby and thereby will not violate any provision
of law or regulation applicable to the Company, or
of any writ or decree of any court or governmental
instrumentality, or of the Partnership Agreement
of the Company, or of any mortgage, indenture,
contract, agreement or other undertaking to which
the Company is a party or which is known to the
Company to purport to be binding upon the Company
or upon any of its assets.
(d) The financing, acquisition, construction and
equipping provided for under this Agreement, and
commitments therefor made by the Issuer, have induced
the Company to acquire and construct within the
boundaries of the Issuer the manufacturing facilities
constituting the Project which will be used in the
business of the Company.
(e) Acquisition, construction and installation in
accordance with the Plans and Specifications and
the Act will be accomplished and the Project will
be used and maintained in such manner as to
conform in all material respects with all
applicable zoning, planning, fire, building,
environmental and other regulations, which are
material to the operation of the Project, of all
governmental authorities having jurisdiction.
(f) The Project is of the type authorized and permitted
by the Act. The Project will be completed in
accordance with the Plans and Specifications and the
Project has been and will be operated and maintained
in such manner to conform with all applicable zoning,
planning, building, environmental and other
applicable
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governmental regulations to be consistent with the
Act.
(g) The Project is located entirely within the
boundaries of Union Township, County of Butler,
Ohio.
(h) The acquisition, construction and installation of the
Project commenced after June 5, 1986, and no
obligation relating to the acquisition, construction
or installation of the Project was paid or incurred
prior to such date.
(i) Except for the Project Bonds, no bonds, notes or
other obligations of any state, territory or
possession or any political subdivision of the
United States of America or any political
subdivision of any of the foregoing, or of the
District of Columbia, have been issued and are now
outstanding, the proceeds of which have been or
are to be used primarily with respect to
facilities of which the Company or any related
person thereto is or will be a principal user and
which are located within the boundaries of the
Issuer.
(j) There are no other obligations heretofore issued
or to be issued by or on behalf of any state,
territory or possession of the United States, or
political subdivision of any of the foregoing, or
of the District of Columbia, for the benefit of
the Company or any person related to the Company,
which constitute "industrial development bonds"
within the meaning of Section 103(b) of the Code
and which (i) were or are to be sold within 30
days of the date of sale of the Project Bonds,
(ii) were or are to be sold at substantially the
same interest rate as the interest rate on the
Project Bonds, (iii) were or are to be sold
pursuant to a plan of marketing that is in common
with the marketing plan for the Project Bonds, and
(iv) are payable directly or indirectly by the
Company or from any source from which the Project
Bonds are payable.
(k) The information furnished by the Company and used by
the Issuer in preparing the election, which has been
filed by or on behalf of the Issuer with the Internal
Revenue Service pursuant to Section 103(b)(6)(D) of
the Code, was true and complete as of the date of
filing of said election.
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(l) The information furnished by the Company and used
by the Issuer in preparing the Form 8038,
Information Return for Private Activity Bond
Issues, which has been filed by or on behalf of
the Issuer, with the Internal Revenue Service
Center in Philadelphia, Pennsylvania pursuant to
Section 103(1) of the Code, was true and complete
as of the date of filing of said Form 8038.
(m) The weighted average maturity of the Project Bonds
does not exceed the weighted average estimated
economic life of the components comprising the
Project by more than 20%, determined pursuant to
Section 103(b)(14) of the Code.
(n) The aggregate authorized face amount of the
Project Bonds allocated to any person (or any
person related thereto within the meaning of
Section 103(b)(6)(C) of the Code) who was, is, or
will be an owner or principal user of the Project
at any time during the three-year period beginning
on the later of (i) the date such facilities were
placed in service or (ii) the date of issuance of
the Project Bonds, when increased by the aggregate
face amount of all industrial development bonds
the interest on which is exempt from tax under
Subsection 103(b) of the Code which are allocated
to such person (pursuant to Section 103(b)(15)(C)
of the Code) and which are outstanding at the time
of issuance of the Project Bonds, will not exceed
$40,000,000.
(o) At no time will:
(A) more than 25% of the net proceeds of the sale of
the Project Bonds be used to provide a facility the
primary purpose of which is one of the following:
retail food and beverage services (including eating
and drinking places, but excluding grocery stores),
automobile sales or service, or the provision of
recreation or entertainment; or
(B) any portion of the net proceeds of the sale of
the Project Bonds be used to provide the following:
any private or commercial golf course, country club,
massage parlor, tennis club, skating facility
(including roller skating, skateboard and ice
skating), racquet sports facility (including any
handball or racquetball court), hot tub facility,
suntan facility, racetrack, airplane, skybox, other
private luxury box, health club
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facility, facility primarily used for gambling, or
any store the principal business of which is the sale
of alcoholic beverages for consumption off premises.
(p) No part of the net proceeds of the sale of the
Project Bonds will be used for the acquisition of
any existing property (or interest therein) unless
the first use of such property is pursuant to such
acquisition, except as provided herein. In the
event that the Project consists of or includes the
acquisition of an existing building (and equipment
therefor), the first use of which will not be
pursuant to such acquisition, an amount equal to
at least 15% of the net proceeds of the sale of
the Project Bonds to be expended on such building
(and equipment therefor) shall be used for
qualifying rehabilitation expenditures (as defined
in Section 103(b)(17) of the Code).
(q) At no time will 25% or more of the proceeds of the
sale of the Project Bonds be used (directly or
indirectly) for the acquisition of land or any
interest therein.
(r) If the Project consists of or will be included within
a project consisting of a single building, an
enclosed shopping mall, or a strip of offices,
stores, or warehouses using substantial common
facilities, no other tax-exempt obligation, other
than the Project Bonds, has been or will be issued
for any such project or component thereof.
(s) No "significant portion" (within the meaning of
Section 103(b)(6)(J) of the Code) of the proceeds of
the Project Bonds are to be used directly or
indirectly to provide "residential real property for
family units" (within the meaning of such section).
(t) (a) The Company hereby covenants and agrees with
the Issuer and the Trustee for the benefit of the
Holders of any of the Bonds, present and future,
that it will proceed with due diligence to spend
the "gross proceeds" (hereinafter defined) of the
Bonds in connection with the acquisition,
construction, installation and equipping of the
Project and that it will not make, or permit, any
use of the proceeds of the Bonds which will cause
the Bonds to be "arbitrage bonds" within the
meaning of Section 103(c) of the Code and any
Income Tax Regulations promulgated thereunder as
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such regulations may apply to obligations issued as of the date
of the Bonds. The Company shall deliver to the Issuer its
certificate, evidencing the reasonable expectations of the
Company, in such reasonable form as the Issuer shall specify
and upon which the Issuer may rely.
(b) The Company hereby further covenants and agrees with the
Issuer and the Trustee, and with the Holders of any of the
Bonds, present and future, as follows:
(1) All of the gross proceeds of the Bonds, other than gross
proceeds held in a "bona fide debt service fund" (hereinafter defined)
will be expended on the Project within six (6) months of the date of
issuance and delivery of the Bonds, or
(2) If any part of the gross proceeds of the Bonds has not
been expended on the Project within six (6) months of the date of
issuance and delivery of the Bonds, the Company shall invest or cause
such gross proceeds to be invested in the manner described in
subparagraph (A) below and shall pay or cause to be paid to the United
States the amounts described in subparagraph (B) below in accordance
with the terms and conditions set forth therein.
(A) Except during any "temporary period" (hereinafter
defined), the aggregate amount of gross proceeds of the Bonds
which are invested in "nonpurpose obligations" (hereinafter
defined) having a "yield" (hereinafter defined) higher than the
yield on the Bonds shall at no time during any "bond year"
(hereinafter defined) exceed one hundred fifty per centum
(150%) of the "debt service" (hereinafter defined) on the Bonds
for such bond year. In addition, the aggregate amount of gross
proceeds of the Bonds invested hereunder in nonpurpose
obligations having a yield higher than the yield on the Bonds
shall be reduced within 30 days of any redemption of Bonds
(whether by payment at maturity, mandatory sinking fund
redemption, redemption prior to maturity, or otherwise) which
results in a decrease in annual debt service on the Bonds, so
that after such reduction the Company's investment of gross
proceeds of the Bonds complies with the limitation set forth in
this subparagraph (A), based upon such decreased annual debt
service. The Company shall not be required to sell or dispose
of nonpurpose obligations if such sale or disposition
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would result in the realization of a loss, for Federal income
tax purposes, that exceeds the amount that would be rebated to
the United States pursuant to the provisions of subparagraph
(b)(2)(B) below (but for such sale or disposition), at the time
of such sale or disposition if a rebate were due at such time.
The provisions of the foregoing sentence shall not apply to the
extent that other nonpurpose obligations acquired with the
gross proceeds of the Bonds may be sold or disposed of without
incurring the loss described above, and in any event the
provisions of the foregoing sentence shall cease to apply
thirty (30) days after the last day of the first "computation
period" (defined in subparagraph (b)(2)(B)) ending thereafter
on which such nonpurpose obligations can be sold or disposed of
without incurring the loss described hereinabove. The
provisions of this subparagraph (A) shall not apply to gross
proceeds of the Bonds which are:
(i) invested for the initial temporary period
provided in Section 1.103-14(b)(1) of the Income Tax
Regulations;
(ii) held in a bona fide debt service fund for the
Bonds and invested for the 13-month temporary period
provided in Section 1.103-14 (b)(10) of the Income Tax
Regulations;
(iii) invested for either of the temporary periods
provided for a sinking fund for the Bonds in Sections
1.103-14(b)(8) and 1.103-14(b)(12) of the Income Tax
Regulations;
(iv) invested during the one-year temporary period
provided for investment earnings derived from invested
proceeds of the Bonds and from the investment of amounts
held in a sinking fund for the Bonds under Sections
1.103-14(b)(6) and 1.103-14(b)(9) of the Income Tax
Regulations;
(v) invested for the temporary period provided for
proceeds of a refunding issue in Section 1.103-14(e)(3) of
the Income Tax Regulations; or
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(vi) held in a "revolving fund" (within the meaning
of Section 1.103-14(b)(11) of the Income Tax Regulations)
and invested during the three-year temporary period set
forth therein.
For purposes of the limitations described in this subparagraph (A), in
determining the aggregate amount of gross proceeds of the Bonds invested in
nonpurpose obligations that bear a yield in excess of the yield of the Bonds,
each such obligation shall be valued at its fair market value on the date such
obligation is acquired by the Trustee at the direction of the Company. In
addition, the yield of obligations acquired with gross proceeds of the Bonds
shall be determined based on such fair market value. For purposes of this
subparagraph (A), an obligation acquired with gross proceeds of the Bonds need
not be revalued after the date on which the obligation is acquired.
(B) At the time or times hereinafter set forth, the
Company shall pay or shall cause the Trustee to pay to the
United States an amount, hereinafter referred to as the "Rebate
Amount", which is equal to the sum of:
(i) the excess of--
(a) the aggregate amounts earned from the date of
issuance and delivery of the Bonds on all nonpurpose
obligations in which gross proceeds of the Bonds have
been invested (other than nonpurpose obligations
attributable to an excess described herein) over
(b) the aggregate amounts which would have been
earned if the yield on such nonpurpose obligations
(other than nonpurpose obligations attributable to an
excess described herein) had been equal to the yield
on the Bonds, plus
(ii) any income attributable to the excess described
in the clause (i) above.
The Rebate Amount payable to the United States shall be
determined at least annually, on each and every anniversary
date of the issuance and delivery of the Bonds, by the Company
for each bond year during which Bonds remain outstanding and
upon retirement of the last of the Bonds (each such period is
hereinafter referred to as a "computation period"). Upon such
determination,
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to the extent that the portion of the Rebate Amount determined
to be due and payable to the United States under (B)(i) above
as of the close of such computation period exceeds the sum of
(a) the then-current balance of the Principal Subaccount of the
Excess Investment Earnings Account created pursuant to the
provisions of Section 6 of the Bond Legislation and (b) amounts
previously rebated to the United States from the Principal
Subaccount of the Excess Investment Earnings Account, such
amount, if any, shall be deposited in the Principal Subaccount
of the Excess Investment Earnings Account created pursuant to
the provisions of the Indenture. That portion of the Rebate
Amount described in (B)(ii) above shall be deposited, as it is
earned, in the Income Subaccount of the Excess Investment
Earnings Account created pursuant to the provisions of the
Indenture. The Rebate Amount shall be paid to the United States
in installments, as follows:
(I) subject to clause (III) below, the first such
installment shall be paid no later than thirty (30) days
after the end of the fifth (5th) bond year of the Bonds;
(II) subject to clause (III) below, an additional
installment shall be paid on or prior to the last day of
each additional installment payment period during which
any of the Bonds remain outstanding. For purposes of this
clause (II), an installment payment period shall commence
on the last day on which a preceding installment of the
Rebate Amount was required to be paid, and shall end on
the day preceding the fifth (5th) anniversary of such
payment date;
(III) anything herein to the contrary notwithstanding,
the last installment shall be paid no later than thirty
(30) days after the last of the Bonds has been retired;
and
(IV) each installment shall be in an amount which,
when aggregated with the amount of any prior installments
paid to the United States hereunder, will equal at least
ninety per centum (90%) of the total Rebate Amount payable
to the United States hereunder as of the date such
installment is paid; provided, however, that the last
installment shall be
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in an amount equal to the entire remaining balance of
the Rebate Amount payable to the United States
hereunder.
The Company shall maintain or cause to be maintained
records of such determinations for each computation period
until six years after payment in full of the Bonds and
shall make such records available to the Issuer, the
Trustee, the Letter of Credit Bank, and their
representatives upon reasonable request therefor. The
Issuer and the Trustee hereby agree to cooperate with the
Company in making the determinations for each computation
period required pursuant to this subparagraph (b).
To that end the Trustee, as Construction Fund and Bond
Fund custodian, has covenanted and agreed in Section 5.16
of the Indenture that it will, on or before each
anniversary of the date of issuance of the Bonds, prepare
and file with the Issuer and the Company a report with
respect to the Construction Fund and the Bond Fund setting
forth the total amounts invested during the preceding bond
year, the investments made with the moneys in the
Construction Fund and the Bond Fund and the investment
earnings (and losses) resulting from the investments in
each such Fund, respectively, together with such
additional information concerning such Funds and the
investments therein, respectively, as the Issuer or the
Company shall reasonably request.
(3) For purposes of clause (a) of subparagraph (2)(B)(i)
of this subparagraph (b), the Company, in determining the
aggregate amounts earned on all nonpurpose obligations acquired
with gross proceeds of the Bonds--
(A) will take into account any gain or loss incurred
on the disposition of any such nonpurpose obligation, and
(B) unless the Issuer otherwise elects, will not take
into account any amounts earned on nonpurpose obligations
held in a bona fide debt service fund for the Bonds during
any bond year in which the gross earnings on such fund do
not exceed One Hundred Thousand Dollars ($100,000).
(4) Except as provided in Section 1.103-15AT(d)(6) of the
Temporary Income Tax Regulations with respect to the purchase
of obligations
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of the United States Treasury directly from the United States
Treasury, at no time shall any of the gross proceeds of the
Bonds be invested in (A) nonpurpose obligations having a
purchase price which is not equal to the fair market value of
comparable obligations or producing a yield which is not equal
to the fair market yield of comparable obligations, or (B) in
any other manner resulting in a "prohibited payment" (within
the meaning of Section 1.103-l5AT(d)(6) of the Temporary Income
Tax Regulations) of any portion of the Rebate Amount, directly
or indirectly, to a party other than the United States.
(5) Notwithstanding the provisions of subparagraph (b)(1),
if gross proceeds of the Bonds subsequently arise following the
end of the six-month period commencing on the date of issuance
and delivery of the Bonds (whether due to sale of the Project,
condemnation of the Project, damage or destruction to the
Project, or otherwise) the provisions of subparagraph (b)(1)
shall cease to apply and the Company shall be obligated to (i)
make the payments to the United States set forth in
subparagraph (b)(2)(B) with respect to the gross proceeds of
the Bonds which arise following the end of such six-month
period (but not with respect to gross proceeds of the Bonds
expended during such six-month period) and perform the other
duties set forth in subparagraph (b)(2)(B), and (ii) limit the
amount of gross proceeds of the issue and perform the other
duties set forth in subparagraph (b)(2)(A) above.
(c) For purposes of construing this Section and Section
5.16 of the Indenture, the following definitions shall apply:
(1) "bona fide debt service fund" shall have the meaning
set forth in Income Tax Regulation Section 1.103-13(b)(12);
(2) "bond year" shall mean the one-year period commencing
on the date of issuance and delivery of the Bonds and ending
one year later, and each one-year period thereafter until
payment in full of the Bonds;
(3) "debt service" shall have the meaning set forth in
Code Section 103(c)(6)(C)(iii) and Temporary Income Tax
Regulation Section 1.103-15AT(b)(5) and Temporary Income Tax
Regulation Section 1.103-15AT(c)(4);
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<PAGE> 56
(4) "gross proceeds" shall have the meaning set forth in
Temporary Income Tax Regulation Section 1.103-15AT(b)(6) and
shall include:
(i) original proceeds of the Bonds;
(ii) investment proceeds of the Bonds;
(iii) transferred proceeds of the Bonds;
(iv) amounts held in a sinking fund for the Bonds;
(v) amounts held in a reasonably required reserve
or replacement fund for the Bonds;
(vi) securities or obligations pledged as security
for the payment of debt service on the Bonds;
(vii) amounts received with respect to acquired
purpose obligations acquired with the proceeds of the
Bonds;
(viii) any other amount to be used to pay debt
service on the Bonds; and
(ix) any amounts received as a result of investing
any amounts described in (i) through (viii) above;
(5) "nonpurpose obligations" shall have the meaning set
forth in Code Section 103(c)(6)(H)(ii) and Temporary Income Tax
Regulation Section 1.103-15AT(b)(2);
(6) "temporary period" shall mean the temporary periods
set forth in Temporary Income Tax Regulation Section
1.103-15AT(c)(2) and described in clauses (i) (vi) of
subparagraph (b)(2)(A) above; and
(7) "yield" shall have the meaning set forth in Code
Section 103(c)(6)(C)(ii) and Temporary Income Tax Regulation
Section 1.103-15AT(b)(3) and Temporary Income Tax Regulation
Section 1.103-15AT(c)(40).
(d) The covenants and agreements contained in subparagraph
(b) above are intended to assure compliance with Section 103(c)(6) of the Code
and with Temporary Income Tax Regulation Section 1.103-15AT. In the event such
Temporary Income Tax Regulations are hereafter modified, or Final Income Tax
Regulations modify or delete any element of the covenants
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contained in subparagraph (b) above, the Company shall be relieved of its
obligation to comply with such covenants to the extent of such modification or
deletion. In the event such modifications or Final Income Tax Regulations impose
additional requirements which are applicable to the Bonds, the Company hereby
covenants and agrees to comply with the provisions of the Temporary Income Tax
Regulations, as modified, or with such Final Income Tax Regulations.
Section 6.3. Covenants Regarding Maintenance of Company's
Existence as a Partnership. The Company covenants that so long as the Note is
outstanding it will maintain its existence to the extent permitted by law, will
not dissolve and liquidate or otherwise dispose of all or substantially all of
its assets and will not consolidate with or merge into another partnership or
corporation or permit one or more other partnerships or corporations to
consolidate or merge into it; provided, that the Company may, with the prior
written consent of the Letter of Credit Bank, consolidate with or merge into
another United States partnership or corporation or permit one or more other
partnerships or corporations to consolidate with or merge into it, or sell or
otherwise transfer to another United States partnership or corporation all or
substantially all of its assets as an entirety and thereafter dissolve, provided
the surviving, resulting or transferee entity, as the case may be, (i) is
authorized to do business in the State of Ohio, (ii) assumes in writing all of
the obligations of the Company under the Note, this Agreement, the Mortgage, the
Security Agreement, the Assignment of Rents and the Reimbursement Agreement (or
executes a reimbursement agreement containing substantially the same terms), and
(iii) obtains a letter of credit from the Letter of Credit Bank or other
comparable financial institution acceptable to the Remarketing Agent in favor of
the Trustee, and provided further that the Company shall furnish to the Trustee
an opinion of counsel or ruling of the Internal Revenue Service to the effect
that no "Event of Taxability" (as defined in this Agreement) has theretofore
occurred or will occur or result from such sale, transfer, consolidation or
merger; provided, however, that this Section shall not apply to dissolution of
the Company by operation of law so long as the business of the Company continues
uninterrupted.
Section 6.4. Financial Statements. While any indebtedness of
the Bonds is outstanding, the Company shall provide the Trustee and the Letter
of Credit Bank annually the financial reports and certifications required by the
Reimbursement Agreement.
Section 6.5. Company's Approval of Indenture. The Indenture has
been submitted to the Company for examination, and the Company acknowledges, by
execution of this Agreement, that it has approved the Indenture and agrees to be
bound by its terms.
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Section 6.6. Right of Access. The Company agrees that, subject
to reasonable security and safety regulations and to reasonable requirements as
to notice, the Issuer, the Trustee and the Letter of Credit Bank and they or any
of their respective duly authorized agents shall have the right at all
reasonable times to enter upon and to examine and inspect the Project. The
Company further agrees that the Trustee and the Letter of Credit Bank and their
duly authorized agents shall have such rights of access to the Project as may be
reasonably necessary to cause to be completed the construction, installation and
equipment provided for herein, and thereafter for the proper maintenance of the
Project in the event of failure by the Company to perform its obligations
hereunder.
Section 6.7. Indemnification. The Company releases the Issuer,
the Trustee, the Letter of Credit Bank, and the Remarketing Agent from, agrees
that the Issuer, the Remarketing Agent, the Letter of Credit Bank, and the
Trustee shall not be liable for, and agrees to hold the Issuer, the Trustee, the
Letter of Credit Bank, and the Remarketing Agent harmless against, any loss or
damage to property, or any injury to or death of any person, that may be
occasioned by any cause whatsoever pertaining to and arising out of the Project
or the use thereof during the Construction Period and while the Company is in
possession thereof. The Company further agrees to indemnify and save harmless
the Issuer, the Trustee, the Letter of Credit Bank, the Original Purchaser, and
the Remarketing Agent against and from any and all cost, liability, expenses and
claims arising from any breach or default on the part of the Company in the
performance of any covenant or agreement on the part of the Company to be
performed pursuant to the terms of this Agreement, or arising from any act or
failure to act by the Company or any of its agents, contractors, servants,
employees, or licensees, or arising from any accident, injury or damage
whatsoever caused to any person, firm or corporation occurring during the term
of this Agreement, on about the Project Site, and from and against all cost,
liability and expenses incurred in or in connection with any such claim or
action or proceeding brought thereon; and in case any action or proceeding be
brought against the Issuer, the Trustee, the Letter of Credit Bank, the Original
Purchaser, or the Remarketing Agent by reason of any such claim, the Company
upon notice from the Issuer, the Trustee, the Letter of Credit Bank, the
Original Purchaser, or the Remarketing Agent covenants to resist or defend such
action or proceedings at the Company's expense.
Section 6.8. Company Not to Adversely Affect Tax Exempt Status
of Interest on Project Bonds. The Company, for the benefit of the Issuer, the
Trustee, the Letter of Credit Bank and the holders from time to time of the
Project Bonds, hereby represents that it has not taken, or permitted to be taken
on its behalf, and agrees that it will not take, or permit to be taken
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on its behalf, any action which would adversely affect the exemption from
Federal income taxation of the interest paid on the Project Bonds, and that it
will take, or require to be taken, such acts as may from time to time be
required under applicable law or regulation in effect on the date of the
original delivery of the Project Bonds to the Original Purchaser to maintain the
exemption from Federal income taxation of the interest on the Project Bonds. In
particular, without limiting the generality of the foregoing, the Company agrees
that, within the meaning of Section l03(b)(6)(A) of the Code, substantially all
of the proceeds of the Project Bonds will be used to acquire, construct,
reconstruct or improve land or property of a character subject to the allowance
for depreciation.
The Company further covenants with the Issuer, the Letter of
Credit Bank, and the Trustee and with each of the future holders of any Bonds
that it has not permitted and will not permit the sum of the Bond issuance plus
capital expenditures (other than out of the proceeds of the Bonds) with respect
to any "facility" as defined in Section 103(b)(6)(D) of the Code, in the
incorporated area of Union Township, County of Butler, Ohio, to exceed
$10,000,000 during the applicable six (6) year period set forth in said section,
or such other limitation as may from time to time be imposed under said section.
The Company agrees that it will timely prepare and file, or
cause to be prepared and filed, with copies delivered to the Trustee and the
Original Purchaser, any statements or documents required to be filed by it or
any other "principal user" of the Project in order to maintain the tax exempt
status of the interest on the Bonds.
Notwithstanding anything in this Agreement or the Indenture to
the contrary, the Company shall in no way be obligated to pay to the holders of
the Bonds (or any prior holder) any amounts for unpaid taxes, penalties,
interest or other assessments which any of them may incur as a result of a
Determination of Taxability unless such Determination of Taxability results from
the failure of the Company to perform its obligations hereunder.
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ARTICLE VII
ASSIGNMENT
Section 7.1. Assignment by Company. This Agreement may be
assigned in whole or in part by the Company, with the consent of the Letter of
Credit Bank but without the necessity of obtaining the consent of either the
Issuer or the Trustee, provided, however, that no such assignment shall be made
otherwise than in accordance with the Plan as from time to time amended, and
subject, however, to each of the following conditions:
(a) No assignment (other than pursuant to Section 6.3 hereof
or with the express written consent of the Letter of
Credit Bank) shall relieve the Company from primary
liability for any of its obligations hereunder, and in the
event of any such assignment the Company shall continue to
remain primarily liable for the payment of the Loan
Payments and Additional Payments and for performance and
observance of the agreements on its part herein provided
to be performed and observed by it.
(b) Any assignment from the Company must retain for the
Company such rights and interests as will permit it to
perform its obligations under this Agreement and any
assignee from the Company shall assume in writing the
obligations of the Company hereunder to the extent of the
interest assigned.
(c) The Company shall, within thirty (30) days after execution
thereof, furnish or cause to be furnished to the Issuer
and the Trustee a true and complete copy of each such
assignment together with any instrument of assumption.
(d) Any assignment from the Company shall not materially
impair fulfillment of the Project Purposes to be
accomplished by operation of the Project.
Section 7.2. Assignment by the Issuer. The Issuer shall assign
its rights under and interest in, and pledge the Pledged Receipts including,
among other things, Loan Payments received under or pursuant to, this Agreement,
along with all of its right, title and interest in, to and under the Note, to
the Trustee pursuant to the Indenture and the Note, respectively, as security
for payment of the principal of and interest and any premium on the Bonds, and
shall not make any further such assignment or pledge except as may be necessary
or required to
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enforce or secure payment of principal of and interest and any premium on the
Bonds. Each such assignment or pledge shall be subordinate and subject to the
rights of the Company under this Agreement, so long as the Company is not in
default under this Agreement, the Note, the Assignment of Rents, the Security
Agreement, or the Mortgage.
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ARTICLE VIII
TERMINATION AND PREPAYMENT
Section 8.1. Option to Terminate. The Company shall have the
option to terminate this Agreement at any time when (i) the Indenture shall have
been satisfied pursuant to its provisions and (ii) sufficient moneys are on
deposit with the Trustee, the Letter of Credit Bank or the Issuer, as
appropriate, to meet all Additional Payments due or to become due through the
date on which the last of the Bonds are then scheduled to be retired or
redeemed, or, with respect to Additional Payments to become due, provisions
satisfactory to the Trustee, the Letter of Credit Bank and the Issuer are made
for paying such amounts as they come due. Such option shall be exercised by the
Company giving the Issuer, the Letter of Credit Bank and the Trustee notice of
such termination and such termination shall thereupon become effective.
Section 8.2. Option to Prepay Loan. The Company shall have, and
is hereby granted the option to prepay the Loan in full prior to the Termination
Date and prior to the payment and discharge of all the outstanding Bonds in
accordance with the provisions of the Indenture, if any of the following shall
have occurred:
(a) The Project shall have been damaged or destroyed (i) to
such extent that the Project cannot be reasonably restored
within a period of three months to the condition thereof
immediately preceding such damage or destruction, or if
the cost of such restoration exceeds the Net Proceeds of
insurance by more than $100,000, or (ii) to such extent
that the Company is thereby prevented from carrying on its
normal operations in connection therewith for a period of
three months.
(b) Title to, or the temporary use of, all or a substantial
portion of the Project shall have been taken under the
exercise of the power of eminent domain by any
governmental authority, or person, firm or corporation
acting under governmental authority, (i) to such extent
that the facilities comprising the Project cannot be
reasonably restored within a period of three months to a
condition of usefulness comparable to that existing prior
to such taking, or if the cost of such restoration exceeds
the Net Proceeds of any condemnation award by more than
$100,000, or (ii) such a taking results in the Company
being thereby
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prevented from carrying on its normal operations in
connection therewith for a period of three months.
The mutual agreements contained in this Section 8.2 are
independent of, and constitute an agreement separate and distinct from, any and
all provisions of this Agreement and shall be unaffected by any fact or
circumstances which might impair or be alleged to impair the validity of any
other provision.
Except as expressly provided above and as required by Section
8.3 below, the Company shall not be entitled to prepay all or any part of the
Loan prior to February 1, 1987. The Company shall have, and is hereby granted,
an option, exercisable on any Interest Payment Date on and after February 1,
1987, upon giving notice in accordance with Section 8.4 hereof, to prepay all or
part (in the amount of $5,000 or any integral multiple thereof) of the Loan
Payments due or to become due, subject to such terms, with such deposit
requirements and at the prepayment prices as are set forth in Sections 2.1 and
2.6 hereof.
Section 8.3. Obligation to Prepay Loan. The Company shall be
obligated to prepay the entire Loan prior to the expiration of this Agreement
and prior to the full payment of the Bonds (or prior to making provision for
payment thereof in accordance with the Indenture) and to cancel or terminate
this Agreement if and when (i) this Agreement shall have become void or
unenforceable or impossible of performance in accordance with the intent and
purpose of the parties as expressed in this Agreement by reason of any changes
in the Constitution of the State or the Constitution of the United States of
America or by reason of legislative or administrative action (whether state or
Federal) or any final decree, judgment or order of any court or administrative
body (whether state or Federal) entered after the contest thereof by the Issuer
or the Company in good faith to the effect that the Note and the obligations
evidenced thereby are no longer enforceable by the holder thereof, or (ii) a
Determination of Taxability shall have occurred, or (iii) the Company fails to
obtain an extension of the Letter of Credit or to obtain an Alternate Letter of
Credit on the terms provided in the Indenture.
Any such prepayment shall be made in the manner provided in
Section 2.l hereof on the Loan Payment Date corresponding to the Bond Redemption
Date fixed in accordance with the provisions of the Indenture in an amount
sufficient to pay the principal of and interest and any premium on the Bonds to
such Bond Redemption Date.
Section 8.4. Notice of Prepayment. In order to exercise an
option granted in, or to consummate a prepayment required by, this Agreement,
the Company shall, (i) within 60 days following the event authorizing the
exercise of such option
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or requiring such prepayment, or (ii) at least 60 days prior to the date of the
Company's exercise of the option granted in the last paragraph of Section 8.2
hereof, give notice to the Issuer, the Trustee and the Letter of Credit Bank
(and the Trustee if all conditions provided in the Indenture for release thereof
are not then met), and shall specify therein the date on which such prepayment
is to be made, which date shall be not less than 45 days nor more than 90 days
from the date such notice is mailed, and in case of a redemption of the Bonds in
accordance with the provisions of the Indenture the Company shall make
arrangements satisfactory to the Trustee for the giving of the required notice
of redemption, in which arrangements the Issuer shall cooperate.
Section 8.5. Prepayment Price. In the case of prepayment of the
entire Loan pursuant to any provision of this Article, the prepayment price
shall be the sum of the following:
(a) To the Trustee, an amount of money equal to the amount of
all principal, interest and any premium required to be
paid in connection with the corresponding redemption of
Bonds under the Indenture (plus any premium payable with
respect to Bonds theretofore redeemed), plus
(b) to the Trustee or to the persons to whom Additional
Payments are or will be due, an amount of money equal to
the Additional Payments accrued and which will accrue
until final maturity of the Bonds or until the appropriate
redemption date if the Bonds are to be redeemed; provided
that this portion of such prepayment price will be deemed
paid if provisions acceptable to the Trustee, the Letter
of Credit Bank, the Remarketing Agent and the Issuer are
made for paying such Additional Payments as they become
due.
Section 8.6. Relative Position of this Article and Indenture.
The rights and options granted to the Company in this Article shall be and
remain prior and superior to the Indenture and may be exercised whether or not
the Company is in default hereunder; provided that such default will not result
in nonfulfillment of any condition to the exercise of any such right or option.
Section 8.7. Concurrent Discharge of Note. In the event any of
the Bonds shall be paid and discharged pursuant to any provisions of this
Agreement or the Indenture, so that such Bonds are not thereafter outstanding
within the meaning of the Indenture, an equivalent principal amount of the
corresponding Note or Notes shall be deemed fully paid for purposes of this
Agreement and to such extent the obligations of the Company thereunder
terminated. In such event, the Issuer or any assignee
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of the Note or Notes shall take whatever steps are required to cause such Note
or Notes, or the pertinent installments of the principal sum thereof, to be
cancelled and deemed fully paid.
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ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.1. Events of Default. The following shall be "events
of default" under this Agreement and the terms "event of default" or "default"
shall mean, whenever they are used in this Agreement, any one or more of the
following events:
(a) The occurrence of an event of default as defined in
Section 6.01(a) or (b) of the Indenture.
(b) Failure by the Company to observe and perform any
covenant, condition or agreement on its part to be
observed or performed hereunder, or in the Mortgage or the
Assignment of Rents, other than as referred to in
paragraph (a) of this Section, for a period of thirty (30)
days after notice of such failure requesting such failure
to be remedied, given to the Company by the Issuer or the
Trustee, unless the Issuer and the Trustee shall agree in
writing to an extension of such time prior to its
expiration; provided, however, that, if such default is
curable, and if and so long as the Company is proceeding
with due diligence to cure the default such period shall
be extended to whatever reasonable period is required to
permit the Company to cure such default.
(c) The dissolution and liquidation of the Company, except as
provided in Section 6.3 of this Agreement, or failure by
the Company promptly to satisfy or cause to be set aside
any execution, garnishment or attachment of such
consequence as will impair its ability to carry out its
obligations under this Agreement, or the filing by the
Company of a petition for the appointment of a receiver in
liquidation or a trustee with respect to itself or any of
its property, or if it makes a voluntary assignment for
the benefit of creditors or files a petition in bankruptcy
or insolvency or for reorganization, compromise,
adjustment or other relief under the laws of the United
States or of any state relating to the relief of debtors;
or if any party other than the Company shall file a
petition for the appointment of a receiver in liquidation
or a trustee with respect to the Company, or shall file a
petition against the Company in bankruptcy, insolvency, or
for reorganization, compromise, adjustment or other relief
under the laws of the United States or any
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<PAGE> 67
state relating to the relief of debtors and such petition
shall not be vacated or set aside or stayed within thirty
(30) days from the Company's receiving notice thereof.
(d) Any foreclosure of, or ousting of the Company from
possession of, the Project or any material portion thereof
under any indenture of mortgage and deed of trust or any
other security interest given by the Company, or for any
other reason.
The provisions of paragraph (b) of this Section are subject to the following
limitations: If by reason of acts of God; winds; fires; epidemics; landslides;
floods; droughts; famines; strikes; lockouts or other industrial disturbances;
acts of public enemies; acts or orders of any kind of any governmental
authority; insurrection; military action; war, whether or not declared;
sabotage; riots; civil disturbances; explosions; breakage or accident to
machinery, transmission pipes or canals; partial or entire failure of utilities;
or any cause or event not reasonably within the control of the Company, the
Company is unable in whole or in part to carry out its agreements on its part
herein contained, other than the obligations on the part of the Company to pay
Loan Payments, Additional Payments and to carry insurance and to permit
inspection of the Project, Company records and collateral under the Security
Agreement; the Company shall not be deemed in default for a period of thirty
(30) days from the inception of such inability; provided, however, that, if such
default is curable, and if and so long as the Company is proceeding with due
diligence to cure the default such period shall be extended to whatever
reasonable period is required to permit the Company to cure such default. The
Company shall, however, use its best efforts to remedy with all reasonable
dispatch the cause or causes preventing the Company from carrying out its
agreements; provided, that the Company shall in no event be required to settle
strikes, lockouts or other industrial disturbances by acceding to the demands of
the opposing party or parties when such course is, in the judgment of the
Company, not in the interest of the Company.
Section 9.2. Remedies on Default. Whenever any event of default
under Section 9.1 of this Agreement shall have happened and be subsisting, any
one or more of the following remedial steps may be taken; provided that in no
event shall the Issuer be obligated to take any step which in its opinion will
or might cause it to expend time or money or otherwise incur liability unless
and until satisfactory indemnity has been furnished to it:
(a) The Issuer shall, at the written request of the Trustee if
acceleration is declared pursuant to Section 6.02 of the
Indenture, declare all Loan
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<PAGE> 68
Payments and Additional Payments payable hereunder for the
remainder of the term of this Agreement to be immediately
due and payable, whereupon the same shall become
immediately due and payable.
(b) In the event any of the Bonds shall at the time be
outstanding and not paid and discharged in accordance with
the provisions of the Indenture, the Issuer or the Trustee
may have access to and inspect, examine and make copies of
the books and records and any and all accounts, data and
income tax and other tax returns of the Company, only,
however, insofar as they pertain to the Project or Project
Site or any portion thereof, or to the Company's
operations of the Project or at the Project Site.
(c) The Issuer may without being required to give any notice
(other than to the Trustee), except as provided in this
Agreement or as may be required by mandatory provisions of
law, pursue all remedies of a creditor or secured party
under the Ohio Revised Code, or any other applicable laws.
(d) The Issuer or the Trustee may take whatever action at law
or in equity may appear necessary or desirable to collect
the Loan Payments and Additional Payments then due and
thereafter to become due, or to enforce performance and
observance of any obligation, agreement or covenant of the
Company under this Agreement.
(e) The Trustee may exercise all remedies available under the
Mortgage, the Indenture, the Security Agreement, and the
Assignment of Rents.
Any amounts collected as Loan Payments or applicable to Loan Payments and any
other amounts which would be applicable to payment of principal of and interest
and any premium on the Bonds collected pursuant to action taken under this
Section shall be paid into the Bond Fund and applied in accordance with the
provisions of the Indenture or, if the outstanding Bonds have been paid and
discharged in accordance with the provisions of the Indenture, shall be paid as
provided in Section 4.07 of the Indenture for transfers of remaining amounts in
the Bond Fund.
The provisions of this Section are subject to the further
limitation that the rescission or annulment of a declaration that all the Bonds
outstanding under the Indenture are immediately due and payable shall also
constitute rescission or annulment of any corresponding declaration made
pursuant to paragraph (a) of this Section and a waiver and rescission of the
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<PAGE> 69
consequences of such declaration and of the event of default with respect to
which such declaration had been made, provided that no such waiver or rescission
shall extend to or affect any subsequent or other default or impair any right
consequent thereon.
Section 9.3. No Remedy Exclusive. No remedy conferred upon or
reserved to the Issuer or the Trustee by this Agreement is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by
statute. No delay or omission to exercise any right or power accruing upon any
default shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to time
and as often as may be deemed expedient. In order to entitle the Issuer or the
Trustee to exercise any remedy reserved to it in this Article, it shall not be
necessary to give any notice, other than such notice as may be expressly
required herein.
Section 9.4. Agreement to Pay Attorneys' Fees and Expenses. In
the event the Company should default under any of the provisions of this
Agreement and the Issuer or the Trustee should employ attorneys or incur other
expenses for the collection of Loan Payments or the enforcement of performance
or observance of any obligation or agreement on the part of the Company
contained in this Agreement or in or represented by the Note, the Company shall
on demand therefor reimburse the reasonable fee of such attorneys and such other
expenses so incurred. Any attorneys' fees required to be paid by the Company
under this Agreement shall include attorneys' fees through all proceedings,
including, but not limited to, negotiations, administrative hearings, trials and
appeals.
Section 9.5. No Additional Waiver Implied by One Waiver. In the
event any agreement contained in this Agreement should be breached by either
party and thereafter waived by the other party, such waiver shall be limited to
the particular breach so waived and shall not be deemed to waive any other
breach hereunder.
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ARTICLE X
MISCELLANEOUS
Section 10.1. Term of Agreement. This Agreement shall remain in
full force and effect from the date hereof to and including the Termination
Date, or until such time as all of the Bonds shall have been fully paid (or
provision made for such payment pursuant to the Indenture), whichever shall be
earlier; provided, however, that this Agreement may be cancelled and terminated
prior to said date if the Company shall prepay all of the Loan pursuant to
Article VIII hereof.
Section 10.2. Amounts Remaining in Bond Fund. Any amounts in
the Bond Fund remaining unclaimed by the holders of Bonds for three years after
the due date (whether at maturity or by redemption or pursuant to any Mandatory
Sinking Fund Requirements or otherwise) thereof, shall be paid first to the
Letter of Credit Bank in satisfaction of any outstanding obligations of the
Company to the Letter of Credit Bank under the Reimbursement Agreement and any
amount remaining thereafter shall be paid to the Company by the Trustee. With
respect to the principal of and interest and any premium on the Bonds to be paid
from moneys paid to the Company or the Letter of Credit Bank pursuant to this
Section the holders of the Bonds entitled to such moneys shall look solely to
the Company for the payment of such moneys.
Section 10.3. Notices. All notices, certificates, requests or
other communications hereunder shall be sufficiently given and shall be deemed
given when mailed by registered or certified mail, postage prepaid, addressed to
the appropriate Notice Address. A duplicate copy of each notice, certificate,
request or other communication given hereunder to the Issuer, the Company, the
Original Purchaser, the Letter of Credit Bank, the Remarketing Agent, or the
Trustee shall also be given to the others. The Company, the Issuer, the Original
Purchaser, the Letter of Credit Bank, the Remarketing Agent, and the Trustee
may, by notice given hereunder, designate a different Notice Address for it
other than the one specified in Section l.2 hereof.
Section 10.4. Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the Issuer, the Company and their
respective successors and assigns, subject, however, to the specific provisions
hereof, and subject to the further limitation that any obligation of the Issuer
created by or arising out of this Agreement shall not be a general debt of the
Issuer or the State or any political subdivision or taxing district thereof, but
shall be payable solely out of the Pledged Receipts.
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<PAGE> 71
Section 10.5. Amendments, Changes and Modifications. Except as
otherwise provided in this Agreement or in the Indenture, subsequent to the
issuance of the Project Bonds and prior to all conditions provided for in the
Indenture for release of the Indenture having been met, this Agreement may not
be effectively amended, changed, modified, altered or terminated without the
prior written consent of the Trustee and the Letter of Credit Bank.
Section 10.6. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be regarded as an original and all of
which shall constitute but one and the same Agreement.
Section 10.7. Severability. In case any clause, provision or
section of this Agreement, or any covenant, stipulation, obligation, agreement,
act, or action, or part thereof, made, assumed, entered into, or taken under
this Agreement, or any application thereof, is for any reason held to be
illegal, invalid or inoperable, such illegality, invalidity, or inoperability
shall not affect the remainder thereof or any other clause, provision or section
or any other covenant, stipulation, obligation, agreement, act or action or part
thereof, made, assumed, entered into, or taken thereunder, which shall at the
time be construed and enforced as if such illegal or invalid or inoperable
portion were not contained therein, nor shall such illegality or invalidity or
inoperability of any application thereof affect any legal and valid and operable
application thereof, from time to time, and each such clause, provision or
section, covenant, stipulation, obligation, agreement, act, or action, or part
thereof shall be deemed to be effective, operative, made, entered into or taken
in the manner and to the full extent from time to time permitted by law.
Section 10.8. Captions. The captions or headings in this
Agreement are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Agreement.
Section 10.9. Governing Law. This Agreement shall be deemed to
be a contract made under the laws of the State and for all purposes shall be
governed by and construed in accordance with the laws of the State.
Section 10.10. Selection of Alternate Letter of Credit.
Notwithstanding anything to the contrary contained herein or in the Indenture,
the Company shall have the right to secure an Alternate Letter of Credit at any
time prior to the issuance of a notice of redemption of the Bonds due to a
termination of the Letter of Credit.
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<PAGE> 72
10.11 Continuing Obligation.
This Agreement is a continuing obligation and will (i) be
binding upon the Company, its successors and assigns, and (ii) inure to the
benefit of and be enforceable by the Issuer and its successors, transferees and
assigns; provided, that the Company may not assign all or any part of this
Agreement without the prior written consent of the Letter of Credit Bank. Except
as set forth in the preceding sentence and except with respect to the holder(s)
of any participation made by the Letter of Credit Bank of this Agreement and the
Letter of Credit, no Person not a party to this Agreement will be entitled to
the benefit of this Agreement.
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed in their respective names all as of the day and year
first above written.
COUNTY OF BUTLER, OHIO
By /s/ Edward Shelton
------------------------------
County Commissioner
By /s/ Cale Logsdon
------------------------------
County Commissioner
By /s/ Donald L. Dixon
------------------------------
County Commissioner
O'GARA-HESS & EISENHARDT ARMORING
COMPANY LIMITED PARTNERSHIP, an
Ohio limited partnership
By Occidental Resources Corp.
By /s/ Edward O'Gara
------------------------------
Edward O'Gara, President
Approved as to form:
By /s/ Victoria Daiker
------------------------------
Prosecuting Attorney,
County of Butler, Ohio
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<PAGE> 73
CERTIFICATE
The undersigned, Fiscal Officer of the County of Butler, Ohio,
hereby certifies that the moneys required to meet the obligations of the Issuer
during the year 1986 under the aforesaid Agreement have been lawfully
appropriated by the Board of County Commissioners of the County of Butler, Ohio
for such purposes and are in the treasury of the Issuer or in the process of
collection to the credit of an appropriate fund, free from any previous
encumbrances. This Certificate is given in compliance with Sections 5705.41 and
5705.44, Ohio Revised Code.
Dated: Sept. 25, 1986.
/s/ James A. Tilton
------------------------------
County Auditor
County of Butler, Ohio
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<PAGE> 74
EXHIBIT A
PROMISSORY NOTE
$2,300,000 September 1, 1986
Cincinnati, Ohio
FOR VALUE RECEIVED, the undersigned O'GARA-HESS & EISENHARDT
ARMORING COMPANY LIMITED PARTNERSHIP (the "Company"), an Ohio limited
partnership, promises to pay to the order of the COUNTY OF BUTLER, OHIO (the
"Lender"), the principal sum of TWO MILLION THREE HUNDRED THOUSAND DOLLARS
($2,300,000) and to pay interest on the unpaid balance of such principal sum, as
hereinafter provided, until the payment of such principal sum has been made or
provided for.
The Note has been executed and delivered by the Company to the
Lender and assigned to The Central Trust Company, N.A., as Trustee (the
"Trustee") pursuant to the Loan Agreement (the "Agreement"), dated as of
September 1, 1986, between the Lender and the Company. Under the Agreement, the
Lender has loaned the Company the proceeds received from the sale of the
Lender's $2,300,000 Variable Rate Demand Economic Development Revenue Bonds,
Series 1986 (O'Gara-Hess & Eisenhardt Armoring Company Limited Partnership
Project) initially dated as of September 1, 1986 (the "Bonds") to assist the
Company in the financing of the Project (as defined in the Agreement). The
Company has agreed to repay the loan of the proceeds of the Bonds by making
payments (the "Loan Payments") at the times and in the amounts set forth in this
Note. The Bonds have been issued, concurrently with the execution and delivery
of this Note, pursuant to, and are secured by, the Trust Indenture (the
"Indenture"), dated as of September 1, 1986, between the Lender and the Trustee.
The Bonds bear interest from their date at the Applicable Rate, as defined in
Appendix I to this Note, payable each March 1 and September 1, commencing March
1, 1987, and mature on September 1, 2016.
To provide funds to pay the principal of the Bonds as and when
due as above-specified, the Company hereby agrees to and shall make Loan
Payments in such manner as to provide immediately available funds on the first
day of each month, commencing October 1, 1986, in an amount equal to one-twelfth
of the amount payable as principal on the Bonds on each next succeeding
September 1 (provided, however, that any payment otherwise due on September 1,
shall be payable four Business Days prior to such September 1). To provide funds
to pay the interest on the Bonds as and when due as above-specified, the Company
hereby agrees to and shall make Loan Payments on November 1, 1986, in an amount
equal to one-third of the amount payable as interest on the Bonds on March 1,
1987, on the first day of each month thereafter in an
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<PAGE> 75
amount equal to one-sixth of the amount payable as interest on the Bonds on each
next succeeding March 1 and September 1, as applicable (provided, however, that
any payment otherwise due on March 1 or September 1 shall be payable four
Business Days prior to such March 1 or September 1); provided, however, that
with respect to the interest payment due November 1, 1986, the Company shall
receive a credit against such interest payment equal to the amount of money in
the Bond Fund (as defined in the Indenture) representing the Bond Fund Payment
(as defined in the Indenture).
If payment or provision for payment in accordance with the
Indenture is made in respect of the principal of and redemption premium, if any,
and interest on the Bonds, and if amounts due the Letter of Credit Bank pursuant
to the Reimbursement Agreement (as such terms are defined in the Indenture) have
been paid or provision therefor has been made, this Note shall be deemed paid to
the extent of such payment or provision for payment of Bonds and amounts due
under the Reimbursement Agreement has been made.
All Loan Payments shall be payable in lawful money of the
United States of America and shall be made to the Trustee at its principal
corporate trust office for the account of the Issuer and deposited in the Bond
Fund created by the Indenture. Except as otherwise provided in the Indenture,
the Loan Payments shall be used by the Trustee to pay the principal of and
redemption premium, if any, and interest on the Bonds as and when due or to
reimburse the Letter of Credit Bank for draws under the Letter of Credit.
The obligation of the Company to make the payments required
hereunder shall be absolute and unconditional and the Company shall make such
payments without abatement, diminution or deduction regardless of any cause or
circumstances whatsoever including, without limitation, any defense, set-off,
recoupment or counterclaim which the Company may have or assert against the
Lender, the Trustee, the Letter of Credit Bank, or the Remarketing Agent (each
as defined in the Agreement) or any other person.
This Note is subject to optional, extraordinary optional and
mandatory prepayment upon the same terms and conditions, on the same date or
dates and at the same prepayment prices, as the Bonds are subject to optional,
extraordinary optional and mandatory redemption, and the Company hereby agrees
that it will make Loan Payments hereunder in an amount equal to the principal of
and premium, if any, and interest on the Bonds due and payable on any such
redemption date. All optional prepayments of amounts due under this Note are
subject to the requirement that the Company deposit sufficient moneys with the
Letter of Credit Bank in accordance with 2.1 of the Agreement prior to the
Company giving notice of its intention to so prepay
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<PAGE> 76
pursuant to Section 8.4 of the Agreement. Any such redemption prior to stated
maturity is subject to the obligation of the Company to give the Lender and the
Trustee sufficient notice of such redemption as shall enable the Issuer and the
Trustee to take all action necessary under the Indenture to redeem on the date
specified for prepayment a like principal amount of Bonds at the same redemption
price.
Whenever an event of default under Section 6.01 of the
Indenture shall have occurred and, as a result thereof, the principal of the
Bonds then outstanding, and interest accrued thereon, shall have been declared
to be immediately due and payable pursuant to Section 6.02 of the Indenture, the
unpaid principal amount of and accrued interest on this Note shall also be due
and payable on the date on which the principal of and interest on the Bonds
shall have been declared due and payable; provided, that the annulment of a
declaration of acceleration with respect to the Bonds shall also constitute an
annulment of any corresponding declaration with respect to this Note.
This Note and the Company's obligations under the Agreement are
secured by the Open-End Mortgage and Security Agreement (the "Mortgage"), and
the Security Agreement (the "Security Agreement") each dated as of September 1,
1986, from the Company to the Trustee and the Letter of Credit Bank and are
further secured by (i) the Assignment of Rents and Leases (the "Assignment of
Rents"), dated as of September 1, 1986, from the Company to the Trustee and the
Letter of Credit Bank and (ii) the Guarantee Agreement and the Additional
Guarantees described in the Agreement.
IN WITNESS WHEREOF, the Company has caused this Note to be
executed in its name by its duly authorized partners as of the date first
written above.
O'GARA-HESS & EISENHARDT ARMORING
COMPANY LIMITED PARTNERSHIP, an
Ohio limited partnership
By Occidental Resources Corp.
By
-------------------------------
Edward O'Gara, President
The above Promissory Note is hereby pledged and assigned to the
Trustee without recourse, as Trustee pursuant to the within described Indenture
this day of September, 1986.
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<PAGE> 77
COUNTY OF BUTLER, OHIO
By
------------------------------
County Commissioner
By
------------------------------
County Commissioner
By
------------------------------
County Commissioner
Borrower hereby acknowledges and agrees to the aforesaid
assignment of this Promissory Note to the Trustee.
O'GARA-HESS & EISENHARDT ARMORING
COMPANY LIMITED PARTNERSHIP, an
Ohio limited partnership
By Occidental Resources Corp.
By
------------------------------
Edward O'Gara, President
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<PAGE> 78
APPENDIX I
As used in this Note, "Applicable Rate" shall mean at any time
the then applicable interest rate per annum on the Bonds as described below. The
capitalized terms not defined in the Note shall have the meanings ascribed to
them in the Indenture.
A. Initial Fixed Interest Rate
For the first Interest Period, i.e. from September 1, 1986, to
and including February 28, 1987, the Bonds shall bear interest at the rate of
five and one-fourth percent (5-1/4%) per annum, payable March 1, 1987.
B. Six-Month Interest Rate
From and after March 1, 1987, the Bonds shall bear interest at
the Six-Month Interest Rate determined as of the Interest Rate Determination
Date preceding each Interest Period (a) by the Remarketing Agent to be that rate
per annum which, if borne by all the outstanding Bonds, would, in the judgment
of the Remarketing Agent (taking into consideration current transactions and
comparable securities in which the Remarketing Agent is involved or of which it
is aware and prevailing financial market conditions), be the interest rate
necessary (but which would not exceed the interest rate necessary) to produce as
nearly as practical a par bid for each outstanding Bond on the Interest Rate
Determination Date, provided, that the interest rate determined shall not be
more than one hundred thirty-five percent (135%) nor less than eighty percent
(80%) of the Six-Month Interest Index for such Interest Period or (b) in the
event that either the Indexing Agent no longer computes, or fails to compute,
the Six-Month Interest Index and no other municipal securities evaluation
service has been appointed by the Issuer or the Remarketing Agent has been
removed and no successor appointed, by the Trustee to be that rate per annum
equal to eighty-five percent (85%) of the bond equivalent yield of thirteen-week
United States Treasury bills determined on the basis of the average per annum
discount rate at which such thirteen-week Treasury bills shall have been sold at
the most recent Treasury auction held during the seventeen (17) Business Days
ending the Business Day preceding the Interest Rate Determination Date, or, if
no such auction shall have been conducted during such seventeen (17) Business
Days ending on an including the Interest Rate Determination Date, the bond
equivalent yield of thirteen-week United States Treasury bills shall be
determined on the basis of the arithmetic average of the mean between the
closing bid and asked per annum market discount rates for the issue of Treasury
bills or other Treasury obligations with a maturity date closest to ninety-one
(91) days
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<PAGE> 79
from the date of quotation (selecting the bills or other obligations with the
earlier maturity in the case of two issues with maturity dates equally close to
ninety-one (91) days), as reported daily on a composite basis by the Federal
Reserve Bank of New York for the first, second and third Business Days
immediately preceding the Interest Rate Determination Date.
In no event shall the Six-Month Interest Rate borne by the
Bonds exceed twelve percent (12%) per annum.
The Six-Month Interest Index shall be based upon six-month
yield evaluations at par of not less than twenty (20) nor more than forty (40)
issues of securities (which may include without limitation issues of commercial
paper, project notes, bond anticipation notes and tax anticipation notes), the
interest on which is exempt from Federal income taxation (the "High Grade
Component Issues"), selected by the Indexing Agent for the purpose of computing
its "Six-Month High Grade Municipal Index" which is offered generally by the
Indexing Agent to its subscribers.
D. Interest Rate with Respect to Bonds
Held by or Pledged to Letter of
Credit Bank
The interest rate hereon payable with respect to any Project
Bond which is held by or pledged to the Letter of Credit Bank shall be a rate
per annum equal to the Prime Rate plus one and one-half percent (1 1/2%).
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<PAGE> 80
EXHIBIT B
The Project consists of an 85,000 square foot facility for the
manufacture of armored cars, located on approximately 7.6 acres at the Northwest
corner of the intersection of Le Saint Drive and Thunderbird Road, Union
Township, Butler County, Ohio, including all furniture, furnishings, fixtures
and equipment of the Company located thereon and thereat, but only to the extent
such assets are purchased with Bond Proceeds.
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<PAGE> 81
EXHIBIT C
(Project Site)
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<PAGE> 1
Exhibit 10.18
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
PURCHASE AGREEMENT
CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
1. DEFINITIONS................................................................................... 1
2. MARKET EXCLUSIVITY............................................................................ 2
3. PURCHASE OF PRODUCTS.......................................................................... 2
3.1 Order and Supply..................................................................... 2
3.2 Initial Order........................................................................ 2
3.3 Order of Related Items............................................................... 2
3.4 Follow-on Orders..................................................................... 2
4. PAYMENTS AND PURCHASE PRICES.................................................................. 2
4.1 Advance Payments..................................................................... 2
4.2 Product Unit Prices.................................................................. 4
4.3 Acceptance Payment................................................................... 4
4.4 Invoices............................................................................. 4
5. DEVELOPMENT AND DELIVERY SCHEDULE............................................................. 4
5.1 Development of PRODUCTS.............................................................. 4
5.1.1 Schedule.................................................................... 4
5.1.2 Program Manager............................................................. 4
5.1.3 Acceptance.................................................................. 5
5.2 Deviation from Schedule.............................................................. 5
5.3 Inmarsat Type Approval............................................................... 5
6. DELIVERY AND SHIPPING......................................................................... 5
6.1 Schedule............................................................................. 5
6.1.1 Product Delivery Schedule................................................... 5
6.1.2 Adjustment to Delivery Schedule by OSN...................................... 5
6.1.3 Adjustment to Delivery Schedule by GLOCOM................................... 6
6.2 Delivery............................................................................. 6
6.3 Shipment by OSN...................................................................... 6
6.4 Packaging............................................................................ 6
7. PRODUCT MARKING............................................................................... 6
7.1 OSN Specifications................................................................... 6
7.2 OSN Provided Trademarks.............................................................. 6
7.3 Packaging............................................................................ 6
</TABLE>
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<PAGE> 2
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
<TABLE>
<S> <C> <C>
8. PRODUCT WARRANTY.............................................................................. 7
8.1 Factory Warranty..................................................................... 7
8.2 Warranty Repair...................................................................... 7
8.3 Replacement PRODUCTS................................................................. 7
9. SERVICE OF PRODUCT AFTER WARRANTY PERIOD...................................................... 7
9.1 Mail-in Service...................................................................... 7
9.2 Mail-in Repair Warranty.............................................................. 7
9.3 Parts Repair......................................................................... 8
9.4 Shipment for Repair.................................................................. 8
10. INDEMNIFICATION............................................................................... 8
10.1 Product Liability.................................................................... 8
10.2 Intellectual Property................................................................ 8
10.3 Insurance............................................................................ 8
11. PRODUCT CHANGES............................................................................... 9
12. PRODUCT TRAINING.............................................................................. 9
13. CONFIDENTIAL INFORMATION...................................................................... 9
13.1 Information Received................................................................. 9
13.2 Exceptions........................................................................... 10
13.3 Further Exceptions................................................................... 10
13.4 Survival............................................................................. 10
14. PRODUCT PROTECTION AND RIGHT OF FIRST REFUSAL................................................. 10
14.1 Product Protection................................................................... 10
14.2 Right of First Refusal............................................................... 10
15. TERM AND TERMINATION.......................................................................... 10
15.1 Term................................................................................. 10
15.2 Termination for Breach............................................................... 10
15.3 Termination for Failure to Reach Milestone Date or Dispute Regarding
Payment Letter of Credit............................................................. 11
15.4 Bankruptcy........................................................................... 11
15.5 Consequences of Termination.......................................................... 11
16. MISCELLANEOUS RIGHTS AND DUTIES............................................................... 12
16.1 Security............................................................................. 12
16.2 O'Gara-Hess & Eisenhardt Armoring Company Guaranty................................... 12
16.3 No Assignment........................................................................ 12
16.4 Successor............................................................................ 12
16.5 Notices and Communications........................................................... 12
16.6 Excused Performance.................................................................. 13
16.7 Integration.......................................................................... 13
16.8 Modification......................................................................... 13
16.9 Waiver or Delay...................................................................... 13
16.10 Severability......................................................................... 13
16.11 Governing Law........................................................................ 13
</TABLE>
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<PAGE> 3
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
<TABLE>
<S> <C>
16.12 Headings............................................................................. 13
16.13 Compliance with Laws................................................................. 13
16.14 Representations...................................................................... 13
16.15 Relationship of PARTIES.............................................................. 14
</TABLE>
EXHIBITS
A. PRODUCTS
B. DELIVERY SCHEDULE
C. MILESTONE SCHEDULE
D. RESALE FOR TAIWAN MARKET
E. SPECIFICATIONS
F. AFTER WARRANTY PERIOD RATE TABLE
G. PAYMENT LETTER OF CREDIT
H. STANDBY LETTER OF CREDIT
I. PRICE SCHEDULE FOR ORDER OF RELATED ITEMS
REFERENCES
ADDENDUM #1
GUARANTY
SECURITY AGREEMENT
STOCK PLEDGE AGREEMENT
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CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (The "AGREEMENT") is made and entered into as
of June 29, 1995 (the "EFFECTIVE DATE"), by and between O'GARA SATELLITE
NETWORKS, LTD. ("OSN"), an Irish corporation at P.O. Box 253, Bordage House, Le
Bordage, St. Peters Port, Guernsey, Channel Islands, and GLOCOM INC. ("GLOCOM"),
a Maryland corporation with offices at 1803 Research Boulevard, Rockville,
Maryland. OSN and GLOCOM may be collectively referred to herein as the
"PARTIES".
WHEREAS, OSN and GLOCOM have previously entered into a Letter of Intent
agreement (the "LOI"), setting forth certain terms for an agreement under which
GLOCOM would develop and manufacture for OSN, and OSN would purchase for resale,
certain electronic equipment described herein, which are capable of supporting
Inmarsat-M voice, fax, data, and other information communications via satellite;
and
WHEREAS, OSN and GLOCOM desire to supersede the LOI and enter into an
agreement under which GLOCOM will manufacture and supply the PRODUCTS, on an
exclusive basis (subject to Section 2, Market Exclusivity) to OSN, and OSN will
purchase the PRODUCTS from GLOCOM and re-sell them to third parties who will
distribute the PRODUCTS through a sales network to end users;
NOW, THEREFORE, the PARTIES hereby agree as follows:
1. DEFINITIONS
1.1 "COMPACT-M" means the notebook style, pre-commissioned,
Inmarsat-M land transportable earth station (Inmarsat M-TES)
being developed by GLOCOM for OSN and defined in Exhibit A and
specified in Exhibit E attached hereto.
1.2 "SUPPORTING SERVICES" means those logistic services relating
to the usage of PRODUCTS including but not limited to smart
card subscription services to be developed and rendered by
GLOCOM with fees in addition to the OSN tariffed
communications services (i.e. MINUTES) to its customers.
1.3 "TAIWAN MARKET" means end-users who are residents in Taiwan,
the Republic of China, and purchasing the PRODUCTS in Taiwan.
1.4 "MINUTES" means a pre-paid plan or package allowing an
end-user of a PRODUCT a certain amount of usage of the PRODUCT
without further charges accruing.
1.5 "MINI-M" means a future capability and option to convert the
COMPACT-M into an Inmarsat MINI-M terminal when the Inmarsat
third generation satellites and the corresponding Land Earth
Station services become available on a global basis.
1.6 "PRODUCTS" means the COMPACT-M and other related accessory
items defined in Exhibit A sold by GLOCOM pursuant to this
AGREEMENT
1.7 "SPECIFICATIONS" means the complete written specifications for
PRODUCTS defined in Exhibit E.
1.8 "BETA UNITS" means the pre-production units that will serve to
qualify that the production units of the COMPACT-M will meet
the SPECIFICATIONS. GLOCOM will provide these units to OSN and
OSN will in turn provide these units for distribution to
potential customers to assist in the analyses of the readiness
of the PRODUCTS ("BETA TEST"). There will be no cost for these
units if OSN returns them after completion of the BETA TEST.
It is the intent of the PARTIES that the
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CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
BETA UNITS will be refurbished by GLOCOM and will become
production units and paid for as such by OSN.
2. MARKET EXCLUSIVITY. During the term of this AGREEMENT, GLOCOM agrees to
sell all of its PRODUCTS to OSN exclusively throughout the world for
re-sale (except for the TAIWAN MARKET), either directly or indirectly
(through other distributors, dealers, or OEMS), to end-users throughout
the world. OSN agrees to grant Glocom Inc. marketing rights for the
purpose of Glocom Inc. reselling the COMPACT-M to the TAIWAN MARKET.
The price and terms and conditions for this resell is defined in
Exhibit D ("RESALE FOR TAIWAN MARKET"). PRODUCTS sold by Glocom Inc. in
the TAIWAN MARKET do not count towards PRODUCTS ordered pursuant to the
INITIAL PURCHASE ORDER.
3. PURCHASE OF PRODUCTS
3.1 ORDER AND SUPPLY. GLOCOM agrees to manufacture for and supply
to OSN, and OSN agrees to purchase from GLOCOM, OSN's
requirements of PRODUCTS, under the terms of this AGREEMENT,
for resale as contemplated hereunder. Ordering and purchases
of PRODUCTS shall be by purchase orders submitted by OSN.
Purchase orders for PRODUCTS shall be irrevocable and
non-cancelable except they will be subject to the conditions
stated in articles 4 and 5 and with other appropriate sections
of the AGREEMENT, and shall include such information as
reasonably required by GLOCOM to commence filling the order,
including: (a) identity of the PRODUCT; (b) quantity ordered;
(c) unit price; (d) requested date of delivery (FOB Rockville,
Maryland); and (e) any shipping instructions. In the event of
any inconsistency or conflict between the terms and conditions
specified in such purchase orders and the terms of this
AGREEMENT, the terms of this June 28, 1995 AGREEMENT shall
control.
3.2 INITIAL ORDER. Within fifteen (15) days of the EFFECTIVE DATE
of this AGREEMENT, OSN will issue an initial irrevocable
purchase order for the purchase of four thousand (4,000) units
of the COMPACT-M ("INITIAL PURCHASE ORDER"). GLOCOM agrees to
supply such ordered COMPACT-Ms in such quantities and on
delivery dates in accordance with the schedule in Exhibit B
(the "DELIVERY SCHEDULE") as such schedule may be amended in
accordance with Section 6.1. The price for such purchases is
set forth below in Section 4.2.
3.3 ORDER OF RELATED ITEMS. OSN agrees to purchase from GLOCOM
pursuant to purchase orders, and GLOCOM agrees to sell to OSN,
spare parts, options, accessory items, and SUPPORTING SERVICES
to supplement the MINUTES in quantities and prices to be
established by mutual agreement and placed in a GLOCOM
quotation. It is understood by OSN that the prices will be
affected by the quantities ordered. Prices for items that can
now be identified are set forth in Exhibit I and attached
hereto.
3.4 FOLLOW-ON ORDERS. OSN may also purchase additional quantities
of COMPACT-M pursuant to purchase orders, and GLOCOM agrees to
sell to OSN additional quantities of COMPACT-M at OSN's
request. The price and delivery schedule for these follow-on
orders will be negotiated on the basis of quantity and parts
availability, respectively.
4. PAYMENTS AND PURCHASE PRICES
4.1 ADVANCE PAYMENTS. OSN agrees to make advance payments to
GLOCOM for the purpose of (i) financing the purchase of
materials and subcontractor work to manufacture the COMPACT-M,
and (ii) reimbursing direct labor costs of GLOCOM employees
relating to the development of the COMPACT-M in the amount of
no more than one hundred thousand dollars ($100,000) per month
for the months of July 1995 November 1995. Within the later of
(i) ten (10) business days after the full execution
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CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
of this AGREEMENT or (ii) the delivery to OSN of a working
prototype that demonstrates to OSN's reasonable satisfaction
that the COMPACT-M will meet the SPECIFICATIONS and
demonstrates the ability to make and receive voice calls over
the actual Inmarsat-M satellite system, OSN shall cause to be
delivered to GLOCOM a letter of credit in the amount of three
million dollars ($3,000,000), with an expiration date of
January 10, 1996, in the form of Exhibit G ("PAYMENT LETTER OF
CREDIT"). GLOCOM shall be entitled to draw under the PAYMENT
LETTER OF CREDIT upon the following terms and conditions:
4.1.1 All draw requests shall be made only to reimburse
GLOCOM for direct employee costs and for the purchase
of material parts and subcontractor work necessary to
produce the COMPACT-M;
4.1.2 The draw requests shall be certified by GLOCOM's
Managing Director and the PROGRAM MANAGER (as
hereinafter defined) to be in compliance with
subparagraph 4.1.1 above;
4.1.3 GLOCOM may not request more than two (2) draws under
the PAYMENT LETTER OF CREDIT per calendar month;
4.1.4 As security for the repayment of the Advance
Payments, GLOCOM agrees to open an irrevocable
standby letter of credit in favor of OSN in the form
of Exhibit H, in the amount of five hundred thousand
dollars ($500,000) with an expiration date of no
earlier than December 31, 1995 ("STANDBY LETTER OF
CREDIT'). GLOCOM may not make any drawings under the
PAYMENT LETTER OF CREDIT after July 15, 1995, unless
GLOCOM has delivered to OSN the STANDBY LETTER OF
CREDIT;
4.1.5 GLOCOM shall not be entitled to make any further
drawings under the PAYMENT LETTER OF CREDIT in the
event:
(1) GLOCOM has failed to deliver to OSN the
Inmarsat Type Approval as hereinafter
defined) by the dates defined in the
MILESTONE SCHEDULE, Exhibit C;
(2) GLOCOM has failed to deliver the ten (10)
BETA UNITS in accordance with the terms of
the DELIVERY SCHEDULE and MILESTONE
SCHEDULE;
(3) OSN rejects the BETA UNITS in accordance
with the terms of subparagraph 5.1.3 hereof;
(4) GLOCOM fails to deliver to OSN the Initial
Production units in accordance with the
terms of the DELIVERY SCHEDULE and MILESTONE
SCHEDULE;
(5) OSN rejects the Initial Production units in
accordance with the terms of subparagraph
5.1.3 hereof; or
(6) GLOCOM is in default of any of the
provisions of this AGREEMENT
4.1.6 Upon OSN's acceptance of the BETA UNITS and the
Initial Production Units in accordance with the terms
of the MILESTONE SCHEDULE, and provided that Inmarsat
Type Approval is obtained by the dates set forth in
the MILESTONE SCHEDULE, OSN shall immediately
instruct the bank that issues the STANDBY LETTER OF
CREDIT that the STANDBY LETTER
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CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
OF CREDIT is terminated and return the STANDBY LETTER
OF CREDIT to GLOCOM.
4.1.7 In the event of any dispute regarding a requested
draw by GLOCOM under the PAYMENT LETTER OF CREDIT,
there shall be a meeting as soon as practical within
ten (10) business days between J.D. Pan and Neil
Saldin and/or Bill O'Gara to attempt to resolve such
dispute within ten (10) business days. In the event
such dispute cannot be resolved, either PARTY may
terminate this AGREEMENT in accordance with Section
5.3.
4.2 PRODUCT UNIT PRICES. The unit price for the first four
thousand (4,000) units of COMPACT-M under the OSN Initial
Order in Section 3.2 shall be two thousand nine hundred ninety
nine dollars ($2,999), FOB Rockville, MD., less, three million
dollars ($3,000,000) reflecting the total of the Advance
Payments in subsection 4.1 plus the sixty thousand dollars
($60,000) LOI deposit payment, divided by four thousand
(4,000) (i.e., a price of two thousand two hundred thirty four
dollars ($2,234) per unit). Such amount shall be recalculated
after the last draw under the PAYMENT LETTER OF CREDIT in the
event the full $3,000,000 is not drawn.
4.3 ACCEPTANCE PAYMENT. Upon the execution of this AGREEMENT and
the delivery by GLOCOM of the documents required under Section
16.1 hereof, OSN shall pay to GLOCOM twenty five thousand
dollars ($25,000) which sum shall not be considered an advance
payment under Section 4.1 or a payment on any invoice under
section 4.4
4.4 INVOICES. Upon delivery of PRODUCTS in accordance with the
DELIVERY SCHEDULE after the ten (10) BETA UNITS, GLOCOM shall
invoice OSN for each monthly batch delivery at the adjusted
price per unit specified in section 4.2 and section 3.3 for
related items. Invoices shall be paid by OSN within thirty
days (30) after invoice date, which invoice date shall be no
sooner than the date unit(s) are scheduled and available for
shipment. OSN shall have fifteen (15) days to inspect or cause
to be inspected each monthly batch delivery and accept or
reject PRODUCTS. Any non-conformance to the SPECIFICATIONS as
the result of inspection shall be reported to GLOCOM in
writing and rejects are to be returned to GLOCOM. OSN may
deduct the amount from the invoice for payments due for those
units being rejected. Rejects shall be repaired by GLOCOM and
shipped to OSN as soon as possible but no later than the next
scheduled batch delivery.
5. DEVELOPMENT AND DELIVERY SCHEDULE
5.1 DEVELOPMENT OF PRODUCTS.
5.1.1 SCHEDULE. The PARTIES have agreed on a schedule for
accomplishment of specific events in the development
of a commercially marketable COMPACT M PRODUCT, which
is set forth in the "MILESTONE SCHEDULE" attached as
Exhibit C.
5.1.2 PROGRAM MANAGER. GLOCOM agrees to accept a program
manager provided by OSN and approved by GLOCOM (the
"PROGRAM MANAGER"). The primary function of the
PROGRAM MANAGER is to oversee the project - reporting
on the performance of the development and
manufacturing aspects of this AGREEMENT and to
certify allowable draws under the PAYMENT LETTER OF
CREDIT. GLOCOM agrees to reimburse OSN fifty percent
(50%) of the cost and travel expenses for the PROGRAM
MANAGER, with GLOCOM's share not to exceed forty
thousand dollars ($40,000). The PROGRAM MANAGER will
be required for the first six months. GLOCOM agrees
to provide to the PROGRAM MANAGER access to GLOCOM's
facilities and all aspects of this project pertaining
to development and
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CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
manufacturing. Access to the facilities will be
available during business hours and other hours if
agreed to by GLOCOM.
5.1.3 ACCEPTANCE. OSN will examine and test, and/or cause
to be examined and tested, the BETA UNITS and Initial
Production Units, as described in the DELIVERY
SCHEDULE in Exhibit B attached hereto, upon delivery
to reasonably determine the conformance to the
SPECIFICATIONS. Within twenty (20) days of delivery,
OSN shall either: (I) accept the BETA UNITS or
Initial Production PRODUCTS in writing; or (ii)
reject the BETA UNITS or Initial Production and
provide GLOCOM with a written non-conformance report.
GLOCOM will promptly remedy any defects in the
PRODUCT and redeliver such PRODUCT to OSN, within ten
(10) days after receipt of OSN's non-conformance
report, for a second acceptance test. Upon
redelivery, OSN shall, within twenty (20) days after
such redelivery, either (a) accept the redelivery in
writing or (b) reject the redelivered PRODUCTS and at
OSN's choice terminate the AGREEMENT pursuant to
section 15.3 herein or repeat the process defined by
(a) and (b) in this sentence.
5.2 DEVIATION FROM SCHEDULE. GLOCOM agrees that if GLOCOM fails to
achieve a particular milestone more than thirty (30) days
after the date specified in the MILESTONE SCHEDULE or
delivered more than forty-five (45) days after the date
specified in the DELIVERY SCHEDULE for accomplishing that
milestone or delivery, then OSN will have the right to
re-negotiate the applicable terms of this AGREEMENT or to
terminate the AGREEMENT under Section 15.3, or Section 15.2,
(subject to the grace period provided therein), whichever is
appropriate.
5.3 INMARSAT TYPE APPROVAL. GLOCOM will be responsible for the
complete process required for the Inmarsat-M type approval
from Inmarsat for the COMPACT-M and its options and
accessories defined in Exhibit A. GLOCOM will deliver to OSN a
fully type approved certificate issued by Inmarsat for the
COMPACT-M as an Inmarsat M-TES approved for Inmarsat-M voice,
fax, and data communications as being defined in the
Inmarsat-M SDM. The said type approval certificate shall be in
the name of OSN, or in the name that OSN provides GLOCOM in
writing, with the model name and number designated by OSN, and
will be delivered to OSN in accordance with the MILESTONE
SCHEDULE, as set forth in Exhibit C. In accordance with the
provisions of the Resale for TAIWAN MARKET, as set forth in
Exhibit D, GLOCOM reserves the right to type approve the
COMPACT-M under its own model name for the TAIWAN MARKET but
is restricted from obtaining type approval to any third party
without the written consent of OSN. GLOCOM reserves the right
to develop and type approve other non Inmarsat M-TES systems
independent of this AGREEMENT.
6. DELIVERY AND SHIPPING
6.1 SCHEDULE.
6.1.1 PRODUCT DELIVERY SCHEDULE. GLOCOM agrees that it will
use its best efforts to ship the PRODUCTS as
specified in the DELIVERY SCHEDULE attached as
Exhibit B. In the event GLOCOM is unable to deliver
PRODUCTS in accordance with the DELIVERY SCHEDULE due
to GLOCOM's inability to obtain necessary parts,
despite GLOCOM's best efforts, GLOCOM shall not be
liable to OSN in accordance with Section 15.5.2.
6.1.2 ADJUSTMENT TO DELIVERY SCHEDULE BY OSN. OSN may
adjust the DELIVERY SCHEDULE with a DELIVERY SCHEDULE
Change Notification ("DSCN") submitted in writing to
GLOCOM no more frequently than once every three
months, which DSCN may change the DELIVERY SCHEDULE
by up to 50% per month for PRODUCTS scheduled for
delivery more than three months
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CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
after the DSCN is issued. Notwithstanding the
foregoing, there shall be no change in the DELIVERY
SCHEDULE to reduce the number of PRODUCTS delivered
through March 31, 1996.
6.1.3 ADJUSTMENT TO DELIVERY SCHEDULE BY GLOCOM. GLOCOM may
request to adjust the DELIVERY SCHEDULE with a
DELIVERY SCHEDULE Change Proposal ("DSCP") submitted
in writing to OSN no more frequently than once every
three months, which DSCP may request a DSCN from OSN
in order to increase the DELIVERY SCHEDULE by up to
50% per month for PRODUCTS scheduled for delivery
beginning January 1996 and more than three months
after the DSCP is issued. Upon receipt of the DSCP,
OSN will determine its current delivery requirements
and make a best effort to accommodate GLOCOM and
issue the requested DSCN to GLOCOM.
6.2 DELIVERY. GLOCOM shall make delivery of ordered PRODUCTS and
related items F.O.B., Rockville, MD. Unless OSN specifies that
GLOCOM arrange shipment of ordered PRODUCTS and related items
to a particular location, OSN shall be responsible for
arranging shipment of the ordered PRODUCTS and items from
GLOCOM in Rockville, MD.
6.3 SHIPMENT BY OSN. If OSN specifies a shipment location for
ordered PRODUCTS and items, GLOCOM will arrange for the
ordered PRODUCTS and items to be shipped, according to OSN's
instructions as to carrier and handling. In the absence of
specific direction, GLOCOM will ship by the best commercial
means available as determined by GLOCOM. All costs of such
shipping and insurance will be charged to OSN's account with
the designated carrier.
6.4 PACKAGING. GLOCOM will use best commercial methods to prevent
deterioration and damage during shipment, handling and
storage, and to ensure safe arrival at the shipment
destination specified by OSN. Prior to commercial shipment of
a PRODUCT to OSN, GLOCOM shall provide OSN with samples of the
packaging proposed to be used for the PRODUCTS, for OSN's
review and approval. GLOCOM's prices include the cost of
packaging and preparing the PRODUCTS for shipment.
7. PRODUCT MARKING
7.1 OSN SPECIFICATIONS. GLOCOM agrees that the exterior of the
PRODUCTS ordered by OSN and the Smart Cards shall include and
conform to the colors, labels, name, trademarks, and logos
specified by OSN, from time to time.
7.2 OSN PROVIDED TRADEMARKS. OSN and its customers shall retain
ownership of all trademarks and other marks and logos it
requires on the PRODUCTS supplied by GLOCOM hereunder, and no
right or license to use any provided trademarks, marks, or
logos is granted to GLOCOM hereunder, except as needed to
manufacture and ship the PRODUCTS supplied to OSN.
7.3 PACKAGING. GLOCOM shall mark and label all packaging and
containers for the shipment and storage of PRODUCTS in
accordance with OSN's instructions including packaging colors.
All logos, trademarks, labels, and container marks shall be
submitted in camera ready format for printing to GLOCOM within
thirty (30) days after the signing of this AGREEMENT.
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CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
8. PRODUCT WARRANTY
8.1 FACTORY WARRANTY. GLOCOM warrants that each PRODUCT shall
conform to the specifications for such PRODUCT and shall be
free from defects in material and workmanship, for a period
equal to the one (1) year from the date of shipment of such
PRODUCT by OSN, or any of its distributors and customers, to
the end-user (the "WARRANTY"). The WARRANTY shall extend to
OSN, its customers, distributors, and end-users of the
PRODUCTS. The Warranty shall specifically exclude any PRODUCTS
which have been subject to misuse, negligence, or accident not
caused by GLOCOM or which has been repaired or altered by any
service unauthorized by OSN. The Warranty given to the
end-user will be mutually agreed to by the PARTIES.
8.2 WARRANTY REPAIR. OSN, in conjunction with its distributors,
shall attempt to create a worldwide "swap out" service
available to all PRODUCTS end-users. As a result, designated,
authorized service stations will be established. End-users may
use these designated service stations and request for a swap
out if their COMPACT-M unit is under factory warranty and
tested to be faulty beyond the service station's own
capability to repair. The service station shall replace the
end-users faulty unit with a good, working unit from its
inventory, if available. GLOCOM shall establish at no charge a
special online reporting mechanism using COMPACT-M (one of the
free SUPPORTING SERVICES). The Service Station will call (at
its expense) this SUPPORTING SERVICES which will activate this
swap out so that the end-user's same smart card will work on
the new unit. The Service Station, OSN, OSN's distributors and
customers, or the end-user will return the faulty unit to
GLOCOM. Upon receiving the utility unit, GLOCOM shall promptly
repair or replace, at its option and expenses, PRODUCTS that
fail to comply with the Factory Warranty in section 8.1. The
shipping cost of returning the faulty unit to GLOCOM shall be
born by OSN or its designated service station, OSN's
distributor and customer, or end-user. The shipping cost after
warranty repair from GLOCOM to the originated Service Station,
OSN, distributor and customer, or end-user will be at GLOCOM's
expense.
8.3 REPLACEMENT PRODUCTS. Any PRODUCT replaced or repaired under
the WARRANTY shall be covered by the WARRANTY until the later
of: (a) the end of the original period of WARRANTY for the
PRODUCT, or (b) ninety (90) days from the date such PRODUCT is
returned to OSN or OSN's customers, distributors, or
end-users.
9. SERVICE OF PRODUCT AFTER WARRANTY PERIOD
9.1 MAIL-IN SERVICE. GLOCOM agrees to provide mail-in repair
service for PRODUCTS after the Factory Warranty has expired
for such PRODUCTS. GLOCOM will first check the PRODUCT
returned and give OSN an estimate for the repair based on the
rate table per repair type as listed in the Mail-in Service of
PRODUCT After Warranty Period Rate Table in Exhibit F,
attached hereto. GLOCOM will proceed with the repair and
charge based on the estimate upon OSN authorization. If the
authorization to repair the PRODUCT is not given by OSN, or if
GLOCOM receives a PRODUCT after the Factory Warranty for
repair of an error or fault, and GLOCOM cannot duplicate or
reproduce the error or fault identified by the customer,
distributor, or end-user, GLOCOM may charge OSN two hundred
twenty five dollars ($225) for a mail-in test and evaluation
fee.
9.2 MAIL-IN REPAIR WARRANTY. GLOCOM warrants that paid repairs
performed on a PRODUCT under Section 9.1 outside of the
original warranty period shall conform to the SPECIFICATIONS
for such PRODUCT and shall be free from defects in material
and workmanship for a period of ninety (90) days after
delivery of the repaired PRODUCT to the end-user.
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CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
9.3 PARTS REPAIR. GLOCOM agrees to repair accessory items for
PRODUCTS, not otherwise covered under Section 9.1, at GLOCOM's
best price.
9.4 SHIPMENT FOR REPAIR. OSN or the end-user of the defective
PRODUCT or part is responsible for shipping costs to GLOCOM
and GLOCOM is responsible for the shipping cost to return the
repaired part (which shall be a part of the price to repair
defective PRODUCTS). GLOCOM shall use best efforts to assist
OSN to achieve a 48 hour or less repair turn around.
10. INDEMNIFICATION.
10.1 PRODUCT LIABILITY. GLOCOM agrees to protect, indemnify and
hold OSN harmless from and against all liability resulting
from any and all claims by third parties for loss, illegal
usages by GLOCOM or any of its other customers by virtue of
GLOCOM selling to the TAIWAN MARKET or otherwise, damages,
costs, expenses, fines or injury (including death) allegedly
caused by or arising from or related to any PRODUCT (exclusive
of incidental or consequential damages of OSN), to the extent
not caused by fault attributable to OSN and provided that
GLOCOM is notified by OSN of all such claims within a
reasonable period of time following OSN's initial notification
of such claims. Notwithstanding the foregoing, no such claim
shall be settled without the express written consent of OSN
which consent shall not be unreasonably withheld, and provided
that if the entire amount of such claim is covered by GLOCOM's
insurance then such claim may be settled without OSN's
consent. Prior to OSN settling any claim for which they intend
to seek indemnity from GLOCOM, OSN will obtain the express
written consent of GLOCOM, which consent shall not be
unreasonably withheld.
10.2 INTELLECTUAL PROPERTY. GLOCOM hereby represents that, to the
best of GLOCOM's knowledge, neither the performance by the
PARTIES of their obligations nor the exercise of their rights
under this AGREEMENT shall infringe on any third party's
intellectual property rights. GLOCOM agrees to defend,
indemnify and hold OSN harmless from and against any and all
damages, claims losses or liabilities, including without
limitation, all attorneys' and other professional fees,
resulting from such infringement. Notwithstanding the
foregoing, GLOCOM shall have no liability to OSN under this
Section 10.2 in the event any alleged breach hereunder is
based on (i) the use of a PRODUCT in connection or combination
with equipment, devices or software not intended for use with
the PRODUCTS by GLOCOM, or (ii) the alteration or modification
of the PRODUCT, if such claim would have been avoided by the
absence of such connection, combination, alteration or
modification.
10.3 INSURANCE. GLOCOM shall obtain and carry in full force and
effect, from and after the date it first delivers PRODUCTS to
OSN, commercial general liability insurance (including product
liability coverage with respect to its PRODUCTS), in the
amount of at least one million dollars ($1,000,000) in
coverage, which insurance shall name OSN and OSN's customers
as additional insured in any such policy of insurance. GLOCOM
shall provide OSN a copy of such insurance policy. Additional
insured status shall be limited to all liability resulting
from any and all claims by third parties for loss, damages,
costs, expenses (including reasonable attorney's fees and
costs) or injury (including death) allegedly caused by or
arising from or related to any PRODUCT, to the extent not
caused by fault attributable to OSN. In addition all such
policies shall provide that the coverage provided thereby
shall not be cancelable without thirty (30) days notice to
OSN.
10.4 OSN agrees to protect, indemnify, and hold GLOCOM harmless
from and against all liability resulting from any and all
claims by third parties for loss, damages, costs, expenses,
fines or injury (including death) allegedly caused by or
arising from or related to (i) any alteration or changes to
the PRODUCTS performed by OSN without the
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CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
consent of GLOCOM, and (ii) as parts sold or provided by OSN
with respect to the PRODUCTS without authorization of GLOCOM
(exclusive of incidental or consequential damages of GLOCOM),
provided that OSN is notified by GLOCOM of all such claims
within a reasonable period of time following GLOCOM's initial
notification of such claim. Notwithstanding the foregoing, no
such claim shall be settled without the express written
consent of GLOCOM which consent shall not be unreasonably
withheld, and provided that if the entire amount of such claim
is covered by OSN's insurance then such claim may be settled
without GLOCOM's consent. Prior to GLOCOM settling any claim
for which they intend to seek indemnity from OSN in accordance
with this section, GLOCOM will obtain the express written
consent of OSN, which consent shall not be unreasonably
withheld.
10.5 OSN shall obtain and carry in full force and effect, from and
after the date that GLOCOM first delivers PRODUCTS to OSN,
commercial general liability insurance (including product
liability coverage), in the amount of at least one million
dollars ($1,000,000) in coverage which insurance shall name
GLOCOM as an additional insured with respect to claims under
Section 10.4.
11. PRODUCT CHANGES
11.1 GLOCOM may make changes to the PRODUCTS, provided that such
changes result in performance and functionality of such
PRODUCTS that is at least equivalent to the performance and
functionality of the PRODUCTS prior to such changes and
notifies OSN as to the nature of the change. Furthermore,
GLOCOM may not make changes that affect the external
appearance of the PRODUCTS without OSN's prior written
consent. Any such changes shall be at no additional cost to
OSN.
11.2 GLOCOM will keep the subject PRODUCTS current, via updates
supplied to OSN and/or its customers (at OSN's direction) at
no additional charge, with any and all Inmarsat software
change notices that are mandatory for proper system operation.
11.3 Software changes that add optional system features, not in the
original Specification for the PRODUCTS, will be provided upon
mutual agreement at GLOCOM's best price.
11.4 GLOCOM shall not make changes which will lessen the PRODUCT's
original specifications, delete features, interfere with the
functional characteristics, degrade product performance, or
change external physical interfaces without prior approval
from OSN. If it is determined that the modifications or
alterations will not impact the customers of the PRODUCTS, OSN
will most likely authorize the changes.
12. PRODUCT TRAINING. GLOCOM shall provide a one-time training course, at a
facility to be determined, in the U.S., in installation, usage and
maintenance of the PRODUCTS. The training course duration is
anticipated to take less than a week and formal presentation material
is not required. At such training, GLOCOM shall provide all manuals,
documentation, engineering drawings, and other materials necessary for
OSN or its customers to develop and provide technical sales and service
and maintenance support. OSN will be responsible for the expenses of
its personnel attending the training course.
13. CONFIDENTIAL INFORMATION
13.1 INFORMATION RECEIVED. Each PARTY shall maintain in confidence
and not disclose or use except as permitted in this AGREEMENT
(i) any of the other PARTY's proprietary and confidential
technical, business, financial, product, marketing and other
information which it receives under this AGREEMENT, and (ii)
any of the terms and conditions of this AGREEMENT except that
the PARTIES may disclose the existence of this AGREEMENT
("CONFIDENTIAL INFORMATION").
- 9 -
<PAGE> 13
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
13.2 EXCEPTIONS. Section 13.1 shall not apply to, and the receiving
PARTY shall have no obligation with respect to, any
information which the receiving PARTY can demonstrate:
13.2.1 is or becomes public knowledge through no wrongful
act of the receiving PARTY,
13.2.2 is already known to the receiving PARTY and not
subject to an obligation of non-disclosure,
13.2.3 is rightfully obtained by the receiving PARTY from
any third party without restriction on disclosure and
without breach of any obligation owed to the
disclosing PARTY,
13.2.4 is disclosed pursuant to a lawful requirement of a
governmental agency, or
13.2.5 is approved for release by written authorization of
the disclosing PARTY (GLOCOM acknowledges and agrees
that the SPECIFICATIONS shall not be deemed
CONFIDENTIAL INFORMATION).
13.3 FURTHER EXCEPTIONS. OSN may disclose to its distributors,
dealers, OEMS, and customers any and all property and
confidential technical, product, marketing and other
information relating to the PRODUCTS, provided that OSN
requires such entities to maintain such information in
confidence. In addition, the PARTIES may disclose the terms
and conditions of this AGREEMENT to its attorneys,
accountants, and Comview Systems Inc. (OSN's consultant).
13.4 SURVIVAL. The obligations of the parties arising under this
Section 13 shall survive for a period of three (3) years
following the term or any termination of the AGREEMENT.
14. PRODUCT PROTECTION AND RIGHT OF FIRST REFUSAL
14.1 PRODUCT PROTECTION. GLOCOM agrees to limit its product
development for Inmarsat M-TES to the COMPACT-M only. GLOCOM
reserves all its rights to develop, manufacture and market any
other systems including the Mini-M (as defined by the Inmarsat
SDM for Mini-M) independently and separately from this
AGREEMENT. GLOCOM reserves the right to manufacture and sell
all its existing Inmarsat-M models that were Inmarsat type
approved prior to December 31, 1994, to any third party.
14.2 RIGHT OF FIRST REFUSAL. Upon termination of this AGREEMENT,
OSN shall be given the right of first refusal with respect to
the distribution, exclusive marketing rights, and sales of any
of the PRODUCTS. It is understood that due to parts
availability and price fluctuations, the delivery and price
may vary from that which is stated in this AGREEMENT.
15. TERM AND TERMINATION
15.1 TERM. Unless terminated as provided below, this AGREEMENT
shall terminate upon the later of (i) two (2) years from the
EFFECTIVE DATE or (ii) the delivery by GLOCOM of all PRODUCTS
which have been ordered by OSN pursuant to this AGREEMENT.
15.2 TERMINATION FOR BREACH. Either PARTY may terminate this
AGREEMENT upon written notice to the other PARTY, if the other
PARTY has committed a material breach or default under the
AGREEMENT including the failure to deliver PRODUCTS in
accordance with the DELIVERY SCHEDULE (after expiration of the
applicable grade period) or the failure to make payments on
invoices due as per
- 10 -
<PAGE> 14
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
Section 4.4, which breach or default remains uncured (i) with
respect to non-monetary defaults, thirty (30) days after the
date of written notice from the non-breaching PARTY specifying
such breach, or (ii) with respect to monetary defaults, ten
(10) days after the date of written notice from the
non-breaching PARTY specifying such breach.
15.3 TERMINATION FOR FAILURE TO REACH MILESTONE DATE OR DISPUTE
REGARDING PAYMENT LETTER OF CREDIT. Subject to subsection 5.2
hereof, (i) OSN may terminate this AGREEMENT in the event
GLOCOM fails to supply those deliverables conforming to the
SPECIFICATIONS, within the time frame set forth in the
MILESTONE SCHEDULE, and (ii) either PARTY may terminate this
AGREEMENT in accordance with Section 4.1.7 hereof. OSN shall
not have the right to terminate this AGREEMENT under any other
provision of this AGREEMENT as a result of any cause giving it
the right of termination under this Section.
15.4 BANKRUPTCY. Either PARTY may terminate this AGREEMENT upon
written notice if the other PARTY becomes bankrupt, insolvent,
or unable to pay its debts when due (other than as a result of
a default by OSN of this AGREEMENT), or suffers the
appointment of a trustee, custodian or receiver for it or a
substantial portion of its assets, or shall commence, or have
commenced against it, any proceeding under any bankruptcy,
reorganization, dissolution, adjustment or debt, or
liquidation law or statute, or shall make an assignment for
the benefit of creditors. Notwithstanding the foregoing, there
should be no right to terminate this AGREEMENT if such
involuntary petition in bankruptcy is dismissed within sixty
(60) days.
15.5 CONSEQUENCES OF TERMINATION.
15.5.1 In the event OSN terminates the AGREEMENT in
accordance with Sections 15.2, 15.3, or 15.4:
(1) GLOCOM shall immediately repay OSN for all
amounts drawn under the PAYMENT LETTER OF
CREDIT which have not been credited to the
Purchase Price of PRODUCTS delivered to and
accepted by OSN pursuant to Sections 4.2 and
4.4 and OSN shall be entitled to offset all
or any portion of such sum by drawing under
the STANDBY LETTER OF CREDIT (OSN and GLOCOM
agree to negotiate in good faith, payment
terms in the event GLOCOM does not have the
cash availability to immediately repay OSN).
(2) In the event of a default under Section 15.4
OSN shall have the right to use all
information of GLOCOM to continue the
manufacture of PRODUCTS.
(3) In the event of a default under Section
15.2, GLOCOM hereby grants to OSN a license
to use all information of GLOCOM necessary
for the manufacture of all unfulfilled
orders for PRODUCTS under this AGREEMENT.
(4) GLOCOM shall immediately instruct the bank
that issues the PAYMENT LETTER OF CREDIT
that the PAYMENT LETTER OF CREDIT is
terminated and return the PAYMENT LETTER OF
CREDIT to OSN.
15.5.2 In the event OSN terminates this AGREEMENT in
accordance with Sections 15.2 and 15.4 only GLOCOM
shall be liable for all damages of OSN, including all
consequential damages which resulting from OSN's
termination of its distributorship, dealer, or OEM
contracts; and
- 11 -
<PAGE> 15
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
15.5.3 In the event of a termination or the expiration of
this AGREEMENT, Articles 8, 9, 10, 13, 15, and 16 of
this AGREEMENT shall survive the termination.
16. MISCELLANEOUS RIGHTS AND DUTIES
16.1 SECURITY. In order to induce OSN to enter into this AGREEMENT
and make the Advance Payments defined in subsection 4.1,
GLOCOM hereby agrees to grant to OSN a security interest in
certain of its assets pursuant to the terms of a Security
Agreement, and to cause Chung-Chun Pan, Hanzhong Gao, Shu-Gwei
Tyan to guaranty the obligation of GLOCOM under this AGREEMENT
pursuant to a Guaranty (limited in recourse only to their
stock in GLOCOM), which Guarantees shall be secured by pledge
of the guarantor Stock of GLOCOM pursuant to a Stock Pledge
Agreement. The form and substance of the Security Agreement,
Guaranty, and Stock Pledge shall be satisfactory to OSN.
16.2 O'GARA-HESS & EISENHARDT ARMORING COMPANY GUARANTY. In order
to induce GLOCOM to enter into this AGREEMENT, and upon the
payment of twenty five thousand dollars ($25,000) from GLOCOM
to O'Gara-Hess & Eisenhardt Armoring Company, O'Gara-Hess &
Eisenhardt Armoring Company will guaranty the payment
obligations under Section 4.4. The form and substance of this
Guaranty shall be satisfactory to GLOCOM.
16.3 NO ASSIGNMENT. Neither this AGREEMENT nor any right or
obligation hereunder may be assigned or delegated by either
PARTY without the prior written consent of the other PARTY,
and any attempted assignment or delegation not in conformity
with this Section 16 shall be null and void.
16.4 SUCCESSOR. Notwithstanding anything in this AGREEMENT to the
contrary, this AGREEMENT with all rights and obligations
hereunder shall be binding upon and insure to the benefit of
any successor to which either PARTY directly or indirectly
transfers all or substantially all of its business and assets
pertaining to the PRODUCT, whether by merger, sale of assets,
sale of stock or otherwise, provided that in the event of any
assignment by OSN, O'Gara-Hess & Eisenhardt's guaranty shall
not be abrogated. The PARTY making such a transfer shall
assign this AGREEMENT and the rights and obligations hereunder
and obtain from the assignee, in a form satisfactory to
counsel for the other PARTY, an acceptance of such assignment
and an assumption of all of the assignor PARTY's obligations
under this AGREEMENT.
16.5 NOTICES AND COMMUNICATIONS. Except as otherwise specifically
provided herein, notices and other communications by a PARTY
under this AGREEMENT shall be deemed given the next business
day after the date when sent via Federal Express or some other
nationally recognized courier service, addressed as follows or
as from time to time otherwise directed in writing by either
PARTY.
To GLOCOM: Mr. J.D. Pan
GLOCOM Inc.
1803 Research Blvd., Suite 401
Rockville, MD 20850
To OSN: Mr. Bill O'Gara
O'Gara Satellite Networks
1 Brandywine Drive
Deer Park, NY 11729
- 12 -
<PAGE> 16
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
With a copy to: Mr. Nicholas Carpinello
O'Gara Satellite Networks
9113 Le Saint Drive
Fairfield, Ohio 45014
16.6 EXCUSED PERFORMANCE. Neither PARTY shall be liable for damages
because of delays in or failure of performance required under
this AGREEMENT when such delay or failure is due to acts of
God, acts of civil or military authority, fire, flood,
strikes, war, epidemics, shortage of power, or other cause
beyond such PARTY's reasonable control and without its fault
or negligence, provided that such PARTY (a) uses best efforts
to promptly notify the other in advance of conditions which
will result in any such delay in or failure of performance,
(b) uses best efforts to avoid or remove such conditions, and
(c) immediately continues performance whenever such conditions
are removed.
16.7 INTEGRATION. This AGREEMENT, the Exhibits annexed hereto, and
the documents described in Section 16.1 are intended to be the
sole and complete statement of the obligations of the parties.
These supersede any other agreement or understanding
(including without limitation the LOI, which is terminated),
whether written or oral, that may have been previously made or
entered into with regard to the subject matter hereof by OSN
or GLOCOM.
16.8 MODIFICATION. This AGREEMENT may not be altered, amended or
modified, except by formal agreement in writing signed by duly
authorized representatives of both PARTIES. Purchase orders,
purchase order acknowledgments, acceptance forms, and other
printed documents, to the extent they deviate from the terms
of this AGREEMENT, shall not constitute an alteration,
amendment or modification,, unless such specific terms are
acknowledged and accepted in writing signed by both PARTIES.
16.9 WAIVER OR DELAY. Any waiver or delay in the exercise by either
PARTY hereto of its rights to terminate hereunder or to
enforce any provision of the AGREEMENT for any breach by the
other PARTY shall not prejudice such PARTY's right of
termination or enforcement for any further, continuing or
other breach by the other PARTY.
16.10 SEVERABILITY. In the event that any provision contained in
this AGREEMENT should, for any reason, be held to be invalid
or unenforceable in any respect under the laws of any
jurisdiction where enforcement is sought, such invalidity or
unenforceability shall not affect any other provision of this
AGREEMENT and this AGREEMENT shall be construed as if such
invalid or unenforceable provision had not been contained
herein.
16.11 GOVERNING LAW. This AGREEMENT shall be interpreted and
construed, and the legal regulations created herein shall be
determined, in accordance with the laws of the State of
Maryland, without regard to principles of conflict of laws.
The parties consent to jurisdiction and venue for any
litigation, arbitration or other proceeding arising out of the
AGREEMENT or the subject matter hereof in Maryland.
16.12 HEADINGS. The Section and Paragraph headings within this
AGREEMENT are for convenience only and shall neither be
considered a part of, nor affect the construction or
interpretation of, any provision of this AGREEMENT.
16.13 COMPLIANCE WITH LAWS. Each PARTY shall, in the performance of
this AGREEMENT, fully comply with all applicable federal,
state, local and other governmental laws and regulations,
including laws governing the import and export of goods, and
licensing. GLOCOM shall be responsible for obtaining the ECCN
number from the U.S.
Department of Commerce for the sale of the PRODUCTS.
16.14 REPRESENTATIONS. OSN and GLOCOM represent and warrant to each
other that each has the right and power to enter into this
AGREEMENT.
- 13 -
<PAGE> 17
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
16.15 RELATIONSHIP OF PARTIES. The relationship of OSN and GLOCOM as
established under this AGREEMENT shall be and at all times
remain one of independent contractors, and neither PARTY shall
be at any time or in any way represent itself as being a
dealer, agent, franchisee or other representative of the other
PARTY or as having authority to assume or create obligations
or otherwise act in any manner on behalf of the other PARTY.
The PARTIES agree to act in good faith with respect to their
obligation under this AGREEMENT.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT.
<TABLE>
<CAPTION>
O'GARA SATELLITE NETWORKS, LTD. GLOCOM INC.
<S> <C>
/s/ W. T. O'Gara /s/ Chung-chun (J.D.) PAN
- --------------------------------------------- ---------------------------------------------------
Signature Signature
W. T. O'Gara Chung-chun (J.D.) PAN
- --------------------------------------------- ---------------------------------------------------
Name Name
President 7/6/95 Vice President 6/30/95
- --------------------------------------------- ---------------------------------------------------
Title Date Title Date
</TABLE>
- 14 -
<PAGE> 18
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
EXHIBIT A
PRODUCTS
COMPACT-M (CODE NAME) - INMARSAT-M PORTABLE MES
- -----------------------------------------------
Physical Characteristics:
- -------------------------
Assembly: Plastic Housing with internal die-cast
aluminum RF module.
Packaging: Generally shaped as a lap-top personal
computer. Unique folding antenna design with
a hinge device that keeps the antenna tilted
in any angle position.
Size: 6.8" x 11.3" x 2.8", maximum
Weight: 5.2 lbs (not including handset, power cord
or options)
Operating Temperature: -25(degree)C to +55(degree)C
Humidity: 95% non-condensing at 40(degree)C
Electrical Characteristics:
- ---------------------------
Specification: Meets Inmarsat-M SDM for Portable MES.
Power Input: 10 to 16 VDC
Power Consumption: 65 Watts Transmit (+/- 5 Watts), 25
Watts Receive
Antenna Gain: 15.5 dB
G/T: -12 dB/K
Functional Characteristics:
- ---------------------------
Voice: 6.4 kbps digital
Fax: 2.4 kbps (CCITT Group 3)
Data: 2.4 kbps (Hayes compatible commands)
External Interfaces: Voice (RJI 1), Fax (RJ11), Data Port
(RS-232; 9-pin)
Fax/Printer: Combined Functionality
Smart Card System: Smart Card provides method of distributing
pre-paid Minutes (to be defined).
Included Accessories: 12 VDC Power Cord
- --------------------- DTMF 2-wire Handset
Compass
Smart Card
Carrying Handbag
- 15 -
<PAGE> 19
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
OPTIONS AND ACCESSORIES
- -----------------------
Integrated Features:
--------------------
Secure Telephone: 2.4 kbps STU III
Remote Antenna: Interface and External Antenna
Peripherals:
------------
Power Converter: AC/DC with built-in Battery Charger
Battery Pack: Rechargeable
Mini-M Upgrade: Return to factory upgrade
--------------- Includes Rechargeable Battery Pack
in Compact-M package.
Subscription Service: 24-hour, 7-day, automated dial-up
service allowing end-users to
purchase additional minutes.
- 16 -
<PAGE> 20
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
<TABLE>
<CAPTION>
EXHIBIT B
DELIVERY SCHEDULE
========================================================================================================================
QUANTITY DELIVERY
- ------------------------------------------------------------------------------------------------------------------------
<S> <C>
10 (Beta Units) Aug 15, 1995
- ------------------------------------------------------------------------------------------------------------------------
10 (Initial Production) Sep 1995
- ------------------------------------------------------------------------------------------------------------------------
55 Oct 1995
- ------------------------------------------------------------------------------------------------------------------------
85 (Includes updating Beta Units) Nov 1995
- ------------------------------------------------------------------------------------------------------------------------
110 Dec 1995
- ------------------------------------------------------------------------------------------------------------------------
140 Jan 1996
- ------------------------------------------------------------------------------------------------------------------------
200 Feb 1996
- ------------------------------------------------------------------------------------------------------------------------
200 Mar 1996
- ------------------------------------------------------------------------------------------------------------------------
200 Apr 1996
- ------------------------------------------------------------------------------------------------------------------------
200 May 1996
- ------------------------------------------------------------------------------------------------------------------------
200 Jun 1996
- ------------------------------------------------------------------------------------------------------------------------
200 July 1996
- ------------------------------------------------------------------------------------------------------------------------
200 Aug 1996
- ------------------------------------------------------------------------------------------------------------------------
200 Sep 1996
- ------------------------------------------------------------------------------------------------------------------------
200 Oct 1996
- ------------------------------------------------------------------------------------------------------------------------
200 Nov 1996
- ------------------------------------------------------------------------------------------------------------------------
200 Dec 1996
- ------------------------------------------------------------------------------------------------------------------------
200 Jan 1997
- ------------------------------------------------------------------------------------------------------------------------
200 Feb 1997
- ------------------------------------------------------------------------------------------------------------------------
200 Mar 1997
- ------------------------------------------------------------------------------------------------------------------------
200 Apr 1997
- ------------------------------------------------------------------------------------------------------------------------
200 May 1997
- ------------------------------------------------------------------------------------------------------------------------
200 Jun 1997
- ------------------------------------------------------------------------------------------------------------------------
200 Jul 1997
- ------------------------------------------------------------------------------------------------------------------------
4000
========================================================================================================================
<FN>
Note: Months indicated imply the last day of the month except where indicated
</TABLE>
- 17 -
<PAGE> 21
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
EXHIBIT C
MILESTONE SCHEDULE
<TABLE>
<CAPTION>
===========================================================================
ACTIVITY DATE DUE
- ---------------------------------------------------------------------------
<S> <C>
Deliver Working Prototype (voice) 26 Jun 95
- ---------------------------------------------------------------------------
Execute Agreement 26 Jun 95
- ---------------------------------------------------------------------------
Deliver Standby Letter of Credit 15 Jul 95
- ---------------------------------------------------------------------------
Type Approval (voice) 15 Aug 95
- ---------------------------------------------------------------------------
Type Approval (fax) 15 Aug 95
- ---------------------------------------------------------------------------
Pre-Production (Beta Units for Beta Test) 20 Aug 95
- ---------------------------------------------------------------------------
Receipt of Type Approval Certificate (voice and fax) 31 Aug 95
- ---------------------------------------------------------------------------
Type Approval (data) * 15 Sep 95
- ---------------------------------------------------------------------------
Initial Production 30 Sep 95
- ---------------------------------------------------------------------------
Subscription Service 30 Sep 95
===========================================================================
<FN>
* Type Approval for Data and Secure will be dependent on LES service
availability
</TABLE>
- 18 -
<PAGE> 22
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
EXHIBIT D
RESALE FOR TAIWAN MARKET
1. For Products that are being resold to Glocom for the Taiwan Market, it
is agreed that Glocom has exclusivity.
2. These Products are intended for sale by Glocom into the Taiwan Market.
3. Glocom shall private label these Products for the Taiwan Market and at
Glocom's option obtain a separate Type Approval certificate.
4. The requirements for Product Marking, defined in Section 7, shall be
deleted.
5. All sections of the Agreement remain valid for this resale except
Section 7.
6. Glocom will ship-in-place to Glocom Inc., who for this transaction
will be an OSN customer. Glocom will provide the same documentation for
these shipments as required for any other shipment as defined in this
Agreement.
7. OSN will invoice Glocom Inc. in the amount of three thousand dollars
($3,000) for the Compact-M.
8. Glocom agrees that the suggested list price for the Products will be
set by OSN.
9. Glocom agrees that it will sell the Products only in the Taiwan Market
and will use its best efforts to prevent others from re-selling the
Products anywhere in the world.
- 19 -
<PAGE> 23
CONFIDENTIAL (OSN - GLOCOM) June 28, 1995
EXHIBIT E
SPECIFICATIONS
Specifications are immediately following this page
Specification 100001 - Revision: June 25, 1995
- 20 -
<PAGE> 24
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
SPECIFICATION FOR A
COMPACT-M
INMARSAT-M MOBILE EARTH STATION
O'Gara Satellite Networks
- 21 -
<PAGE> 25
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
TABLE OF CONTENTS
1.0 Scope .....................................................1
2.0 Applicable Documents ......................................1
3.0 Requirements - General ....................................1
3.1 Land Transportable Earth Station - General ................1
3.1.1 Inmarsat Services .........................................1
3.1.2 Physical Characteristics ..................................2
3.1.3 DC Power Input ............................................2
3.1.4 Two-wire Telephone Interface ..............................2
3.1.5 Two-wire Fax Interface ....................................2
3.1.6 Serial Data Device Interface ..............................3
3.1.7 Smart Card Interface ......................................3
3.1.8 Environment ...............................................3
3.1.8.1 Operating Conditions .............................3
3.1.8.2 Storage, Handling and Transportation .............3
3.1.9 Control Capabilities and Voice Prompt Interface ...........4
3.1.9.1 Speed Dialing ....................................4
3.1.9.2 Satellite Selection ..............................4
3.1.9.3 Print Call Logs ..................................4
3.1.9.4 Change LES for the Next Call .....................5
3.1.9.5 Check Account Balance ............................5
3.1.9.6 Check Call-in-Absence Notice .....................5
3.1.9.7 Check E-Mail Notice ..............................5
3.1.9.8 Order Additional Minutes .........................6
3.1.9.9 Perform Self-test ................................6
3.1.10 Help Instructions .........................................6
3.1.11 System Administration Functions ...........................6
3.1.11.1 Change PIN Number ................................7
3.1.11.2 Set Date and Time ................................7
3.1.11.3 Select Voice Prompt Language .....................7
3.1.12 Change Terminal Configuration ....................7
3.1.12.1 Add Option .......................................7
3.1.12.2 Upgrade System Software ..........................7
3.1.12.3 Change Default LES ...............................8
3.1.12.4 Change/Disable Forward/Return ID Pair & ISDN .....8
3.1.13 Visual Signal Meter .......................................8
- 22 -
<PAGE> 26
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
3.1.14 Other Indicators ...................................8
3.2 Telephone ..........................................8
3.3 Carrying Case ......................................9
3.4 Compass ............................................9
3.5 DC Line Cord .......................................9
3.6 User Documentation .................................9
3.7 Reliability ........................................9
3.8 Maintainability ....................................9
3.9 Options and Accessories ............................9
3.9.1 Integrated Features ...............................10
3.9.1.1 Secure Telephone Operation ...............10
3.9.1.2 Remote Antenna ...........................10
3.9.1.3 Mini-M Upgradability .....................10
3.9.2 Peripherals .......................................10
3.9.2.1 Fax/Printer ..............................10
3.9.2.2 AC-DC Converter/Battery Charger ..........11
3.9.2.3 Rechargeable Battery Pack ................11
3.9.3 Services ..........................................11
3.9.3.1 Subscription Service .....................11
3.9.3.2 Repair Service ...........................11
3.10 Safety ............................................11
4.0 Quality Assurance Provisions ......................12
4.1 Design Verification Tests .........................12
4.2 Manufacturing/Quality Assurance Plan ..............12
5.0 Warranty ..........................................12
- 23 -
<PAGE> 27
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
1.0 Scope
This specification defines the requirements for a portable Inmarsat-M
Land Transportable Earth Station system of components. The product's
designation shall be "Compact-M."
2.0 Applicable Documents
Inmarsat-M - System Development Manual
3.0 Requirements- General
The system defined in this specification is a portable satellite
communications terminal that operates with the Inmarsat-M System. The
basic system consists of an Inmarsat-M Land Transportable Earth Station
(MES) with integral Smart Card system, a 2-wire telephone handset,
compass, 12 VDC power cord, carrying bag and manual.
3.1 Land Transportable Earth Station - General
The MES shall consist of a Smart Card equipped transreceiver with
antenna, transmit and receive electronics and software and a 2-wire
telephone that when connected to a source of 12 volt DC power will
allow the user to communicate over the Inmarsat-M Satellite System. The
MES shall provide 2.4 Kbpsfax and data service as well. The Land
Transportable Earth Station (M-TES) defined herein, shall meet all
applicable requirements of the current version (and future updates
relating to the services defined in paragraph 3.1.1 below) of the
System Definition Manual for Inmarsat-M Land Transportable Earth
Stations for the services and environment defined herein. Meeting these
requirements shall be demonstrated by the Compact-M receiving full
Inmarsat Type Acceptance under the OSN name for those services and
conditions. As a system conversion option, the Compact-M shall be
factory upgradeable to meet the requirements of Inmarsat-Mini-M as
defined herein.
3.1.1 Inmarsat Services
The basic Compact-M shall provide Inmarsat-M voice service, 2.4 Kbps
Group 3 fax service and 2.4 Kbps Hayes command compatible data service
(pending LES service availability). The terminal's design shall be
flexible (within existing packaging constraints) to allow for future
enhancements to provide optional additional services as they are
developed and approved by Inmarsat.
3.1.2 Physical Characteristics (see Figure 1)
The terminal shall be contained in a case with maximum dimensions as
follows:
length- 11.3"
width- 6.8"
height- 2.8"
The terminal's weight shall be less than or equal to 5.2 lbs., not
including handset or AC-DC converter or DC power cable. The terminal
shall include a folding antenna which, when folded, fits within the
dimensions defined above. The antenna shall be equipped with rotary RF
joints which shall hold the operator determined position without the
need for props or other mechanical devices. All RF cables shall be
fixed and shall not flex as the antenna is opened or raised/lowered to
its proper elevation position.
- 24 -
<PAGE> 28
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
3.1.3 DC Power Input
The terminal shall be provided with an input connector for its DC power
input. The terminal shall operate within specifications over a range of
input voltage from 10 to 16 volts DC.
Terminal input power requirements shall be as follows:
Receive mode - 15 watts max.
Transmit mode- 65 +/-5 watts
3.1.4 Two-wire Telephone Interface
A single RJ-11 jack shall be provided on the outside surface of the
terminal for connection of a standard 2-wire telephone. It shall be
possible to connect a 2-wire fax machine to this interface and make
outgoing fax calls by dialing a * at the end of the destination number.
3.1.5 Two wire Fax Interface
A single RJ-11 jack shall be provided on the outside surface of the
terminal for connection of a standard 2-wire fax machine. All incoming
fax calls shall be routed to this interface. Outgoing calls made from
this interface shall be designated as fax calls only.
3.1.6 Serial Data Device Interface
A 9 pin D female connector shall be provided on the outside surface of
the terminal for a serial data port for connection to a computer or
other serial data device. The terminal shall communicate over this port
using RS-232C electrical specifications acting in the DCE (Data
Communication Equipment) mode. The connector shall carry the following
RS-232C signals as a minimum: TXD, RXD, RTS, CTS, GND, DSR, DTR.
3.1.7 Smart Card Interface
The terminal shall be equipped with a Smart Card Interface and starter
card. IN ORDER TO USE THE TERMINAL, IT SHALL BE NECESSARY TO INSERT A
SMART CARD CONTAINING APPROPRIATE INFORMATION. Operation of the
terminal with regard to the Smart Card shall be defined by mutual
agreement between the parties and described in an Appendix to this
specification prior to receiving Type Acceptance.
3.1.8 Environment
3.1.8.1 Operating Conditions
The M-TES shall meet all specified requirements over an ambient
temperature range of -25 degrees C to + 55 degrees C, without solar
radiation and relative humidity up to 95% without condensation.
3.1.8.2 Storage, Handling and Transportation
The M-TES shall not sustain damage when transported or stored in any
combination of the following conditions:
Ambient temperature -40 degrees C. to +60 degrees C.
Humidity up to 95% non-condensing
Shock and Vibration as would be encountered during normal
handling of a PC-like device and during
transportation within a protective case
on a commercial airline,
- 25 -
<PAGE> 29
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
3.1.9 Control Capabilities and Voice Prompt Interface
The terminal shall provide to the operator of the terminal, the
capabilities listed below through the use of the telephone keypad and
voice prompts enunciated by the handset earpiece. The voice prompts and
instructions shall be in English. If storage capacity permits, the
terminal shall include the capability to include a second, factory
selectable language. The secondary language shall include, as a
minimum, Arabic, Russian, French, Spanish and German. These
capabilities are defined in the paragraphs that follow.
1) speed dialing
2) satellite selection
3) print call logs
4) change the LES to be used for the next call
5) check account balance
6) check call-in-absence notice
7) check E-Mail notice
8) order additional minutes
9) perform self-test
10) help instructions
11) system administration functions
12) others to be defined
3.1.9.1 Speed Dialing
The operator shall be able to enter and change up to 10 frequently called
numbers into the terminal. After a number has been entered, it shall be possible
to place a call to that number by entering a star (*) command sequence, followed
by a single digit corresponding to the number entered. The stored number shall
include the Inmarsat Dialing prefix (can be omitted if call prefix is 00), the
country code, city or area code, telephone number and the dialing termination
code (# for voice call or * for fax call).
3.1.9.2 Satellite Selection
The operator shall be able to select any of the Inmarsat satellites by
entering a star (*) command followed by a numeric entry from the
telephone keypad. The voice prompt will enunciate each available
satellite and its correct numeric code. After entry, the voice prompt
will provide confirmation of the satellite selection or indicate that
the entry was invalid.
3.1.9.3 Print Call Logs
The operator shall be able to print call logs stored in the terminal by
entering a star (*) command and a Personal Identification Number (PIN)
plus a digit that specifies the time period covered by the call log for
the PIN entered. Tune period selections shall include this week or
month, last week or month, or all activity stored. A supervisory PIN
shall be able to print all terminal activity for all users. The call
log shall have a capacity of 1,000 calls and shall store the caller,
date, time and duration of the call, the number called and the type of
call. When the capacity of 1,000 calls is reached, the call log will
remove records on a first-in first out basis. It shall be possible to
direct the printout to either a fax machine or PC fax connected to the
fax port or to a printer or PC connected to the data port.
3.1.9.4 Change LES for the Next Call
The operator shall be able to change the LES for the next call by
entering a star (*) command and the three digit LES access code number.
The voice prompt will confirm the selection or indicate that the entry
was invalid. At the completion of the call, the terminal will
- 26 -
<PAGE> 30
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
automatically revert to the default LES. The operator shall be reminded
that changing the LES may result in higher charges and that the charges
are not covered by the prepaid Smart Card.
3.1.9.5 Check Account Balance
The terminal shall provide the capability for the operator to determine
the amount of time that remains on the operator's pre-paid smart card.
This shall be accomplished by entering a star (*) command along with a
PIN. The account balance in minutes shall be enunciated by the voice
prompt, along with instructions that define the star command that is
used to order more time.
3.1.9.6 Check Call-in-Absence Notice
As an optional feature, the terminal shall have the capability for the
operator to request a participating LES to down-load to the terminal, a
list of all terrestrial originated calls that were made to the terminal
during the time that the terminal was not responding to incoming call
announcements. The information shall be transmitted via the Inmarsat
data service and stored in the terminal for printing or down-loading to
a PC. Note: this capability shall be made available after operating
specifications, procedures and exclusivity agreements have been
developed with the participating LESs.
3.1.9.7 Check E-Mail Notice
As an optional feature, the terminal shall have the capability for the
operator to request a participating LES to down-load to the terminal a
list of all E-Mail stored in the LES mail box for the current operator
of the terminal. The list shall be transmitted over the Inmarsat data
service and stored in the terminal for down-loading to a PC. Transfer
of the E-Mail to the terminal shall be controlled using the PC. Note:
this capability shall be made available after operating specifications,
procedures and exclusivity agreements have been developed with the
participating LESs.
3.1.9.8 Order Additional Minutes
The terminal shall provide the capability for the operator to make a
call to a Subscription Service to request additional minutes to be
purchased and added to the Smart-Card currently inserted into the
terminal. The operation shall be accomplished by entering a star (*)
command which will result in a voice call being placed to the
subscription center which will respond with voice prompts requesting a
credit card number, a PIN and a numeric entry corresponding to the
number of minutes being purchased (in multiples of 100). The terminal
shall have the capability to receive, recognize and decode a DTMF
response from the subscription center. The terminal shall then confirm
the transaction with a voice announcement, allow the operator to
confirm it and enter the purchased minutes into the Smart-Card.
3.1.9.9 Perform Self-test
The terminal shall conduct a test immediately after power is applied.
This test shall result in an indication to the operator that the
terminal is ready for use or that a failure has occurred.
3.1.10 Help Instructions
The terminal shall provide audible operating instructions using the
voice prompt system. Selection of topics shall be controlled by
entering star commands and additional numeric entries.
- 27 -
<PAGE> 31
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
3.1.11 System Administration Functions
The terminal shall provide the capability to distinguish levels of
authority for different users of the terminal and allow administrative
personnel to perform functions that are not allowed by
non-administrative personnel. The following functions shall be
allocated to administrative personnel only: 1) change PIN numbers; 2)
set date and time; 3) select voice prompt language (if a second
language is available).
3.1.11.1 Change PIN Number
The terminal shall allow an administrator to change the Personal
Identification Number (PIN) by entering a star (*) command and
following the voice prompts to enter original and new PINs. The
terminal shall confirm the new selection with a voice message.
3.1.11.2 Set Date and Time
The terminal shall allow an administrator to set the current date and
time by entering a star command and PIN number, and then following the
instructions provided by the voice prompt system to enter date and time
information.
3.1.11.3 Select Voice Prompt Language
If the terminal can support a second language, it shall be possible for
an administrator to select either English or the secondary language for
voice prompts by using a combination of star commands and numeric
entries.
3.1.12 Change Terminal Configuration
The terminal shall allow an administrator to change terminal
configuration including the following: 1) add options; 2) upgrade
system software; 3) change default LES; 4) change and/or disable
forward and return ID pair and Inmarsat Serial Number. Changes to these
items shall require factory authorization codes to be entered into the
terminal by an authorized agent.
3.1.12.1 Add Options
The terminal shall be designed such that an authorized agent shall be
able to enable options (for example, Secure Mode Operation) by entering
an encrypted code into the terminal from a PC running proprietary
software.
3.1.12.2 Upgrade System Software
The terminal shall provide the capability to allow an authorized agent
to upgrade the terminal software from a PC running proprietary
software.
3.1.12.3 Change Default LES
The terminal shall allow an authorized agent to change the default LES
from a PC running proprietary software.
3.1.12.4 Change/Disable Forward/Return ID Pair & ISN
The terminal shall be designed to allow an authorized agent to change
the forward and return ID pair (FRP) and Inmarsat Serial Number (ISN)
to allow for terminal substitution in the case
- 28 -
<PAGE> 32
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
of terminal failure. Suitable control procedures shall be defined and
implemented to ensure proper security and billing consistency.
3.1.13 Visual Signal Meter
The terminal shall provide a visual signal meter in the form of a
series of LEDs to indicate the relative signal strength of the incoming
signal. There shall be at least two different color groups representing
marginal signal and acceptable signal level. There shall be sufficient
number of LEDs in the acceptable signal level group to allow the
operator to detect signal level changes when the antenna is close to
the center of the satellite beam so that the antenna can be aimed
within 5 degrees of the beam peak.
3.1.14 Other Indicators
The terminal shall be equipped with LEDs that indicate the terminal: 1)
is ready to make or receive a call; 2) has detected a fault which may
prevent the terminal from operating properly; 3) is in transmit mode.
3.2 Telephone (see Figure 2)
A 2-wire telephone shall be provided with the terminal. The telephone
shall be completely contained in a handset and shall include a standard
12 button DTMF keypad, an ON/OFF HOOK mechanism, earpiece and
microphone and shall be housed in an aesthetically pleasing, modern
looking handset. The handset dimensions and weight shall be consistent
with the terminal size. The telephone shall include a removable 6 foot
coiled cord. Figure 2 shows the desired envelope for the handset.
3.3 Carrying Case (see Figure 3)
A carrying case with handle shall be provided with each terminal. The
case shall be constructed of nylon or vinyl material (with protective
cushioning material) and shall be designed to carry the terminal, a
compass, manual, DC power cord and the handset.
3.4 Compass
A compass shall be provided to assist the operator in aiming the
terminal. The compass shall have built-in marking showing the minimum
12 compass points.
3.5 DC Line Cord
A 6 foot long DC line cord shall be provided for each Compact-M
terminal. The line cord shall be provided with a connector to interface
with the Compact-M terminal on one end and an automotive cigarette
lighter adapter on the other end.
3.6 User Documentation
The Compact-M shall include an operator's manual. The form factor of
the manual shall be such that it can be included in the carrying case
with minimal increase in size of the case.
3.7 Reliability
The terminal shall be designed to have a high reliability (a goal of
15,000 hours MTBF @ 30 degrees C). The equipment shall be designed such
that all parts are operated within the manufacturer's specified
tolerances for all environmental conditions defined in this
specification.
- 29 -
<PAGE> 33
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
3.8 Maintainability
The terminal shall be designed to support a field swap-out and factory
repair maintenance philosophy. Details shall be defined in the
contract.
3.9 Options and Accessories
The following options and capabilities shall be designed and made
available for the Compact-M:
1) Integrated
1) Secure Telephone Operation (STU-III @ 2.4Kb/s)
2) Remote Antenna
3) Mini-M Upgrade
2) Peripherals
1) Fax Printer (Combined Functionality)
2) AC/DC Power Converter
3) Rechargeable Battery Pack
3) Services
1) Subscription Service
3.9.1 Integrated Features
3.9.1.1 Secure Telephone Operation
The terminal shall be capable of providing 2.4 Kb/s Secure Telephone
operation when used with an STU-III secure telephone and an LES
providing the service. The terminal shall be capable of operating with
either COMSAT and/or IDB protocols.
3.9.1.2 Remote Antenna
As a goal, the terminal shall have the capability to allow an operator
to connect a remote (up to 50 feet) antenna to the Compact-M, without
requiring the built-in antenna to be disconnected. Glocom shall develop
a design approach to address this need and shall develop the antenna,
antenna coupling mechanism and cable.
3.9.1.3 Mini-M Upgradability
The Compact-M shall be designed to be factory upgraded to provide
Inmarsat-Mini-M service. This optional upgrade will result in a fully
compliant Mini-M terminal. As a goal, the unit shall include a built-in
battery in the same form factor as defined in paragraph 3.1.2.
3.9.2 Peripherals
3.9.2.1 Fax/Printer
The terminal shall have the capability to print information on a
standard Group 3 fax machine. A lightweight, compact fax machine shall
be selected and appropriate software developed for the Compact-M to
provide this feature.
3.9.2.2 AC-DC Converter/Battery Charger (see Figure 4)
An AC-DC Converter/Battery Charger shall be designed for the terminal.
This optional unit, shall provide the following capabilities: a)
operation from universal AC power, b) power ON/OFF control for the
terminal; c) battery charging from either external AC or external DC
- 30 -
<PAGE> 34
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
power sources; and, if possible, d) battery replacement during a call.
AC and DC power cords shall be provided with this option. The DC power
cord shall include a mating connector to the DC input of the Compact-M
on one end and a connector that mates with the battery pack and AC-DC
Converter on the other end. Detailed requirements for the AC-DC
converter are defined in OSN Specification 100002.
3.9.2.3 Rechargeable Battery Pack
An optional rechargeable battery pack shall be designed for terminal.
The pack shall use nickel-metal-hydride batteries and shall provide a
minimum of 65 volt-amp hours of capacity. Detailed requirements for the
battery pack are defined in OSN Specification 100002.
3.9.3 Services
3.9.3.1 Subscription Service
A subscription service shall be developed and implemented which allows
a Compact-M user to initiate a voice call on the Inmarsat-M system to
the service to request additional prepaid minutes to be added to the
terminal's Smart-Card. The service shall receive the request, perform a
credit check with the subscriber's credit card company and update the
Smart-Card with the requested additional minutes through the use of an
encrypted DTMF code or voice announcement system. The subscription
service shall also be equipped to receive Smart-Cards returned by
subscribers and users, add the minutes and return the cards.
3.9.3.2 Repair Service
A repair service shall be established and maintained as provided for in
the contact.
3.10 Safety
PROPRIETARY INFORMATION
-----------------------
The termination shall be designed such that it will not pose a safety
threat to the operator of the terminal or those in its vicinity.
Hazards such as electrical shock, touch temperature, flammability of
materials, mechanical interfaces and radiation exposure shall be
minimized in accordance with accepted industry standards.
4.0 Quality Assurance Provisions
4.1 Design Verification Tests
Product conformance with the requirements of this specification shall
be validated by performing a series of analyses, inspections,
demonstrations and tests as specified in Table 1 Design Verification
Matrix. The tests shall include those tests required to gain Inmarsat
Type Approval. Glocom shall provide OSN with a complete set of Inmarsat
Type Approval test documentation including test plans, analyses and
data sheets.
4.2 Manufacturing/Quality Assurance Plan
Glocom shall provide to OSN an ISO 9000 or equivalent
manufacturing/quality assurance plan which shall define the
manufacturing and quality assurance processes that will be used to
produce and service the article manufactured under this program.
- 31 -
<PAGE> 35
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
5.0 Warranty
Glocom shall warranty the terminal components to be free from defects
in design, materials and workmanship for a period of one year from the
date of shipment to the end-user. Items returned to Glocom under the
warranty shall be repaired or replaced at no charge to the party.
- 32 -
<PAGE> 36
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
PROPRIETARY INFORMATION
-----------------------
TABLE 1
-------
DESIGN VERIFICATION MATRIX
--------------------------
<TABLE>
<CAPTION>
Para. Requirement Inspection Analysis Demonstration Text
<S> <C> <C> <C> <C> <C>
3.1 Land Transportable Earth X X X X
Station - General
3.1.1 Inmarsat Services X
3.1.2 Physical Characteristics X
3.1.3 DC Power Input X
3.1.4 Two-wire Telephone X X
Interface
3.1.5 Two-wire Fax Interface X X
3.1.6 Serial Data Device Interface X X
3.1.7 Smart-Card Interface X X
3.1.8 Environment X
3.1.9 Control Capabilities and X
Voice Prompt Interface
3.1.10 Help Instructions X
3.1.11 Systems Administration X
Functions
3.1.12 Change Terminal X
Configuration
3.1.13 Visual Signal Meter X X
3.1.14 Other Indicators X X
- 33 -
</TABLE>
<PAGE> 37
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
<TABLE>
<CAPTION>
PROPRIETARY INFORMATION
-----------------------
Para. Requirement Inspection Analysis Demonstration Text
<S> <C> <C> <C> <C> <C>
3.2 Telephone X X
3.3 Carrying Case X
3.4 Compass X
3.5 DC Line Cord X
3.6 User Documentation X
3.7 Reliability X
3.8 Maintainability X
3.9.1.1 Secure Telephone Operation X X
3.9.1.2 Remote Antenna X X
3.9.1.3 Mini-M Upgradability X
3.9.2.1 Fax/Printer X
3.9.2.2 AC-DC Converter/Battery X
Charger
3.9.2.3. Rechargeable Battery Pack X
3.9.3.1 Subscription Service X
3.10 Safety X X X
4.1 Design Verification Tests X X X X
</TABLE>
- 34 -
<PAGE> 38
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
EXHIBIT F
AFTER WARRANTY PERIOD RATE TABLE
Mail-in Service of PRODUCT
<TABLE>
<CAPTION>
REPAIR TYPE SERVICE RATE - TO OSN ESTIMATED TURN-
(FOB ROCKVILLE, MD) AROUND (IN WEEKS)
<S> <C> <C>
HPA Module $595 3
Diplexer/LNA Module $595 3
Antenna Subsystem $440 2
Antenna Locking Device $175 1
Cooling Fan $45 1
DC-DC Voltage Distributor $225 2
TX Synthesizer $450 3
RX Synthesizer $450 3
Transceiver Board $750 (max charge inc. synthesizer, if required) 3
Digital Processor Board $795 3
Smart Card Reader $295 2
System Reset $295 1
</TABLE>
- 35 -
<PAGE> 39
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
EXHIBIT G
PAYMENT LETTER OF CREDIT
Applicant: O'Gara Satellite Networks, Ltd.
Beneficiary: Glocom Inc.
Amount: $3,000,000
Expiration: 10 January 1996
Partial Payments: Yes
Documents: 1) Sight Draft drawn on Fifth Third Bank, Cincinnati,
Ohio referencing Letter of Credit Number.
2) Copy of vendor's invoices, due for payment within
ten (10) days of the date of the draft, the total
of which shall equal the amount of the draft.
3) Certificate
CERTIFICATE
I, hereby certify the invoices included for advance payment dated ____________
represent material or services required for the manufacture of the Compact-M
terminals in accordance with the contract dated __ June, 1995 and such invoices
are due for payment within ten (10) days of the date of this request.
- ----------------------- ---------------------
J.D. Pan William Classen
Managing Director Program Manager
Special Provisions: 1) Payment requests are limited to two per month.
2) Last payment request shall be made not later than 31
December 1995.
3) No payment shall be made after 15 July 1995
unless a Standby Letter of Credit in the
form of Exhibit H is opened in favor of
O'Gara Satellite Networks, Ltd., through a
prime United States bank and advised through
Fifth Third Bank, International
Department, Cincinnati, Ohio.
- 36 -
<PAGE> 40
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
EXHIBIT H
STANDBY LETTER OF CREDIT
Applicant: Glocom Inc.
Beneficiary: O'Gara Satellite Networks, Ltd.
Amount: $500,000
Expiration: 31 December 1995
Beneficiary may draw upon a Letter of Credit upon representation of draft at
site and accompanied by certificate stating:
CERTIFICATE
I, W.T. O'Gara, Director of O'Gara Satellite
Networks, Ltd. hereby certify that Glocom Inc. has
failed to perform in accordance with section 5.1.3. or
5.3 of the Purchase Agreement for the Compact-M
dated ____ June, 1995.
/s/ W. T. O'Gara
- ----------------
W.T. O'Gara
Director
Special Provision:
1) In the event Beneficiary draws under this
AGREEMENT due to failure to obtain full Type
Approval, Applicant shall have 48 hours to
deliver to the Letter of Credit Bank such
full Type Approval Certificate, and in such
event the Letter of Credit Bank shall reject
such draw.
2) Beneficiary may not draw under the STANDBY LETTER OF
CREDIT due to a rejection of the BETA UNITS before
September 1, 1995.
- 37 -
<PAGE> 41
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
EXHIBIT I
PRICE SCHEDULE FOR
ORDER OF RELATED ITEMS
<TABLE>
<CAPTION>
ITEM UNIT PRICE QUANTITY
<S> <C> <C>
AC/DC Universal Power Converter/Charger $150 2000
NiMH Rechargeable Battery Pack TBD TBD
Smart Card (additional issue) $25 1
Subscription Service (each tele-order) $35 1
2.4. kbps STU III (per LES specification) $500 1
Mini-M Upgrade Conversion TBD TBD
Remote Antenna & Cable TBD TBD
4.8 kbps fax upgrade $450 1
4.8 kbps data upgrade $450 1
<FN>
NOTES
1. Specification of above items to be determined.
2. Unit price is based on the quantity ordered. If the quantity is different the price will
be adjusted accordingly and subject to negotiation.
3. GLOCOM will use its best efforts to produce the Mini-M Upgrade conversion for a
price no greater than $1,000.
</TABLE>
- 38 -
<PAGE> 42
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
LETTER OF AGREEMENT
ADDENDUM #1
This Letter of Agreement is an addendum to the PURCHASE AGREEMENT (the
"AGREEMENT") signed on June 29, 1995, between O'Gara Satellite Networks, Ltd.
("OSN") and Glocom Inc. ("GLOCOM") collectively referred to as the PARTIES.
In connection with the sale of the COMPACT-M and PRODUCTS (defined in the
AGREEMENT), it is understood that the intention of the PARTIES is to maximize
the quantity of units sold under the AGREEMENT. The following activities are
meant to be actions that the PARTIES shall cooperate on in good faith:
1. UNITED STATES MILITARY SALES
- -------------------------------
Although OSN owns complete rights to market the product to the United States
Military, OSN agrees to attempt to negotiate with Rockwell International and
MESC for the purpose of establishing a sales agreement whereby Rockwell and/or
MESC will purchase PRODUCTS from OSN and resell to the United States Military.
If Rockwell and/or MESC purchases PRODUCTS from OSN with a large firm
commitment, OSN may, at its discretion, order additional quantities from GLOCOM
in accordance with paragraph 3.4 of the AGREEMENT and allow them to private
label the PRODUCTS.
2. SUGGESTED LIST PRICE
- -----------------------
Subject to applicable United States laws, OSN will collaborate with its largest
customers and establish a suggested list price for the COMPACT-M. OSN will
strongly propose that the suggested list price be set at $5,995. It is
understood that this price is suggested only and that OSN has no authority to
bind any customer or reseller in establishing prices. Furthermore, it is agreed
that it is in the PARTIES' best interest to encourage OSN's resellers to provide
PRODUCTS to end-users at the lowest price possible.
3. OGM COMMUNICATIONS LTD. (OGM)
- --------------------------------
In recent months, OGM has been formed in which OSN is a principal shareholder.
OGM is currently in negotiations with Morsviasputnik, a Russian company who is a
joint venture member of an Operating Agreement referred to in the marketplace as
Project Condominium (Condo), to purchase a portion of their share in Condo. The
purpose of Condo is to provide Inmarsat-M and Inmarsat-B services via Land Earth
Stations. OSN agrees that in the event OGM (or OSN) completes a purchase
arrangement for a portion of Condo with Morsviasputnik, OSN will provide GLOCOM
with an offer to join the resulting partnership.
- 39 -
<PAGE> 43
Exhibit E - Specifications
SPECIFICATION 100001 REVISION: - JUNE 25, 1995
PROPRIETARY INFORMATION
-----------------------
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT.
O'GARA SATELLITE NETWORKS, LTD. GLOCOM, INC.
/s/ W. T. O'Gara /s/ Chung-chun (J.D.) PAN
- ------------------- ---------------------------
Signature Signature
W. T. O'Gara Chung-chun (J.D.) PAN
- ------------------- ---------------------------
Name Name
President 7/6/95 Vice President 6/30/95
- ------------------- ---------------------------
Title Date Title Date
- 40 -
<PAGE> 1
EXHIBIT 10.19
OEM SUPPLY AGREEMENT
This OEM SUPPLY AGREEMENT (the "Agreement") is made and
entered into as of June 2, 1995 (the "Effective Date"), by and
between O'GARA SATELLITE NETWORKS, LTD. ("OSN"), an Irish
corporation at P. O. Box 253, Bordage House, Le Bordage, St.
Peters Port, Guernsey, Channel Islands, and MAGELLAN CORPORATION
("Magellan"), a Delaware corporation with offices at 960 Overland
Court, San Dimas, California. OSN and Magellan may be
collectively referred to herein as the "Parties."
WHEREAS, OSN and Magellan have previously entered into a Letter of Intent
agreement (the "LOI"), setting forth certain terms for an agreement under which
OSN would supply to Magellan, and Magellan would purchase for resale, certain
electronic equipment products described herein, which are capable of supporting
voice, data and other information communications via satellite; and
WHEREAS, OSN and Magellan desire to supersede the LOI and enter into an
agreement under which OSN will supply the Products, and any related Compact-M
Inmarsat-M products developed by OSN, to Magellan on an exclusive basis with
specified exclusions and restrictions, and Magellan will purchase the Products
from OSN and re-sell them to third party distributors and to end-users through a
network of sales representatives;
NOW, THEREFORE, the Parties hereby agree as follows:
1. DEFINITIONS
1.1 "Commercial Services" means such tariffed communications
services relating to usage of Products as OSN may develop from time to time and
offer to distributors or end-users of Products, including without limitation
billing services, accounting authority, prepaid or discounted Product usage
credits, credit card services for Product usage, and commissioning.
1.2 "Manufacturing Site" means the site of the third party
manufacturer for OSN which shall manufacture parts of the Products, located at
Rockville, Maryland.
1.3 "Minutes" means a pre-paid plan or package allowing an
end-user of a Product a certain amount of usage of the Product without further
charges accruing.
1.4 "OSN-U.S." means the United States affiliate of OSN, with
a main office at 1 Brandywine Drive, Deer Park, New York 11729.
1.5 "Other Products" means all Inmarsat-M communications
products (excluding the Products) or equipment designed for use on land and
developed by or on behalf of OSN during the term of this Agreement, including
Mini-M products.
<PAGE> 2
1.6 "Product" or "Products" means the Compact-M Basic Unit and
Compact-M optional items of the portable Inmarsat-M electronic communications
products of OSN described in Exhibit A attached hereto.
1.7 "Restricted Markets" means end-users (a) resident in and
purchasing the Products for use in the countries listed on the attached Exhibit
D or (b) who are units of or members of the United States Army, Navy, Air Force
and Marines Corps.
1.8 "Specifications" means the complete written specifications
for the Products ordered by Magellan hereunder, which shall be attached hereto
as part of Exhibit A.
2. EXCLUSIVE DISTRIBUTION ENGAGEMENT
2.1 APPOINTMENT. OSN hereby appoints Magellan as OSN's
exclusive distributor of the Products, for re-sale, either directly or
indirectly through other distributors, to end-users throughout the world, except
for the Restricted Markets.
2.2 RESTRICTED MARKETS. OSN reserves the right to sell, or to
engage other distributors to sell, Products to end-users in the Restricted
Markets. Magellan may sell, directly or through distributors, Products on a
non-exclusive basis to end-users in the countries of the Restricted Markets
included on List A of Exhibit D. With respect to the countries of the Restricted
Markets included on List B of Exhibit D, Magellan may sell Products to end-users
in such countries directly or through distributors, on a non-exclusive basis
only if Magellan obtains OSN's prior written consent. Magellan agrees that,
unless it obtains OSN's prior written consent, it shall not, and it shall use
reasonable efforts to require that its distributors not, sell any Products to
end-users in the Restricted Markets included on List B of Exhibit D.
2.3 MAGELLAN EXCLUSIVITY. OSN agrees that it shall not sell,
and it shall use reasonable efforts to prevent others from selling, any Products
to any end-users outside of the Restricted Markets. OSN agrees that, in the
event after the date OSN delivers to Magellan the first initial production units
of the Products OSN or any of its affiliates produces and sells or markets a
satcom product that is directly competitive with any of the Products, then
Magellan may include such competitive product as a "Product" under the terms of
this Agreement and may substitute such product in place of the purchase of
Products pursuant-to existing Magellan purchase orders under Section 3.1.
2.4 INFORMATION REGARDING PRODUCTS. In connection with the
sales of the Products by Magellan, OSN shall not be responsible for any
representation or warranty to the end-users made by Magellan with respect to the
Products other than the Warranty as set forth in Article 8. Magellan will have
noauthority to bind or obligate OSN to the end-users except as to the Warranty
set forth in Article 8.
<PAGE> 3
3. PURCHASE OF PRODUCTS
3.1 ORDER AND SUPPLY. OSN agrees to supply to Magellan, and
Magellan agrees to purchase from OSN, Magellan's requirements of Products, under
the terms of this Agreement, for resale as contemplated hereunder. Ordering and
purchases of Products shall be by purchase orders submitted by Magellan.
Purchase orders for Products shall include such information as reasonably
required by OSN to commence filling the order, including: (a) identity of the
Product; (b) quantity ordered; (c) unit price; (d) requested date of delivery
(F.O.B. OSN-U.S. or the Manufacturing Site); and (e) any shipping instructions.
In the event of any inconsistency or conflict between the terms and conditions
specified in such purchase orders and the terms of this Agreement, the terms of
this Agreement shall control.
3.2 INITIAL ORDER. Within fifteen (15) days of the Effective
Date, Magellan will issue an initial, irrevocable and non-cancelable purchase
order for the purchase of four thousand (4,000) units of the Compact-M Basic
Unit. OSN agrees to supply such ordered Products in such quantities and on firm
delivery dates in accordance with the schedule in Exhibit B (the "Delivery
Schedule"), as such schedule may be amended in accordance with Section 6.1. The
price for such purchases is as set forth below in Section 4.1.
3.3 ORDER OF RELATED ITEMS. Magellan may also purchase from
OSN pursuant to purchase orders, and OSN agrees to sell to Magellan, spare parts
and optional items for the Products, and contracts for Commercial Services and
Minutes (which Magellan may resell to end-users of the Products).
4. PAYMENTS AND PURCHASE PRICES
4.1 PRODUCT UNIT PRICES. The per unit price for the 4,000
Compact-M Basic Unit products described in Exhibit A purchased by Magellan under
Magellan's initial purchase order hereunder shall be $4,000. Additional units of
the Compact-M Basic Units, and any optional items, ordered by Magellan hereunder
shall be purchased under such price and delivery terms as are negotiated by the
Parties in good faith at the time Magellan submits the purchase order for such
Products. The Product prices will not in any event be greater than the lowest
price OSN may charge other OEM customers for such Products. The Product prices
are F.O.B. OSN-U.S. or the Manufacturing Site and do not include options. The
prices include all required packing but exclude costs of insurance and shipping.
These transportation costs will be charged separately to Magellan, if arranged
by OSN at Magellan's request.
4.2 PURCHASE OF RELATED ITEMS. The purchase prices
for Minutes and optional items as specified in Exhibit A or
developed by OSN during the course of this Agreement, spare parts
and Commercial Services will be as agreed between the parties and
<PAGE> 4
placed in an OSN quotation. The prices will not be greater than the lowest price
OSN may charge other OEM customers for such items.
4.3 INVOICES. Upon the earlier of (a) delivery of Products in
accordance with the Delivery Schedule and related items ordered by Magellan
hereunder, or (b) two days after the Products are ready for shipment F.O.B.
OSN-U.S. or the Manufacturing Site in accordance with the Delivery Schedule, OSN
will issue to Magellan invoices for such Products and items including charges
incurred at Magellan's request for shipping and insurance. Magellan shall pay
OSN the amount of the invoice, less any deductions for failed or damaged
Products rejected by Magellan and returned to OSN, within thirty (30) days of
the invoice. Payments made after 45 days from the date the invoice is sent will
accrue interest at the rate of 1 1/2% per month on the overdue amount until
paid.
5. DEVELOPMENT AND DELIVERY SCHEDULE
5.1 Development of Products.
(a) Schedule. The Parties have agreed on a
schedule for accomplishment of specific events in the development of a
commercially marketable Compact-M Basic Unit, which is set forth in the
"Milestone Schedule" attached as Exhibit C. The Parties agree to use best
efforts to achieve the specific milestones established in the Milestone Schedule
by the dates indicated therein for their accomplishment. However, it is
understood that such specific dates are not absolute requirements and are target
dates, provided that the party to accomplish a specific task is using best
efforts to meet such date. OSN shall consult with Magellan on a regular basis
regarding OSN's progress and accomplishments in pursuing achievement of each
milestone in the Milestone Schedule.
(b) Acceptance. Magellan will examine and test
limited quantities of first article Production Release Product, as described in
the Milestone Schedule on Exhibit C attached hereto, upon delivery to reasonably
determine whether the same conforms to the Specifications. Within twenty (20)
days of delivery, Magellan will: (i) accept the first article Production Release
Products and so inform OSN in writing; or (ii) reject such Products and provide
OSN with a written statement of the reasons for such rejection. Failure to
reject the Product within such twenty (20) day period shall be deemed an
acceptance thereof. OSN will promptly remedy any defects in the Product and
redeliver such Product to Magellan within thirty (30) days after receipt of
Magellan's rejection notice. Magellan shall, within twenty (20) days after such
redelivery, accept or reject the redelivered Product as provided herein. If
Magellan rejects the Product after the second attempt by OSN to remedy defects,
Magellan may at its discretion agree to repeat such procedure further or may
terminate this Agreement pursuant to Section 15.3 below.
<PAGE> 5
(c) Failure to Develop. If the Product fails to
meet the Specifications after the second redelivery of such Product under
Section 5.1(b), Magellan shall have the right to terminate this Agreement
pursuant to Section 15.3 hereunder. Such termination shall be Magellan's sole
and exclusive remedy for OSN's failure to develop the Product on a timely basis.
5.2 DEVIATION FROM SCHEDULE. The Parties agree that if a Party
fails to achieve a particular milestone more than sixty (60) days after the date
specified in the Milestone Schedule or the Delivery Schedule for accomplishing
that milestone or delivery, then the other Party will have the right to
re-negotiate the applicable terms of this Agreement or to terminate the
Agreement under Section 15.3.
6. DELIVERY AND SHIPPING
6.1 PRODUCT DELIVERY SCHEDULE. OSN agrees that it will use all
reasonable efforts to ship the Products as specified in the Delivery Schedule
attached as Exhibit B, as adjusted. Commencing on the date four months after the
date of initiation of commercial production of Products hereunder, Magellan may
adjust the Delivery Schedule with a Delivery Schedule Change Notification
("DSCN"), submitted in writing to OSN no more frequently than once every four
months, which DSCN may change the Delivery Schedule for only Products scheduled
for delivery more than three months after the DSCN is issued; provided, however,
that the total quantity of Products scheduled for delivery within the first 24
months of the first production shipment of Products may not be less than four
thousand (4,000) units, and the change in the total number of units to be
shipped in any one month shall not exceed 50% of the amount previously scheduled
unless agreed to in writing by OSN.
6.2 DELIVERY. OSN shall make delivery of ordered
Products and related items F.O.B. at OSN-U.S. or the
Manufacturing Site. Unless Magellan specifies that OSN arrange
shipment of ordered Products and related items to a particular
location, Magellan shall be responsible for arranging shipment of
the ordered Products and items from OSN-U.S. or the Manufacturing
Site.
6.3 SHIPMENT BY OSN. If Magellan specifies a shipment location
for ordered Products and items, OSN will arrange for the ordered Products and
items to be shipped, according to Magellan's instructions as to carrier and
insurance. In the absence of specific direction, OSN will ship by the best
commercial means available as determined by OSN. All costs of such shipping and
insurance will be prepaid by OSN and added to the invoice to Magellan.
6.4 PACKAGING. OSN will use reasonable commercial
methods to prevent deterioration and damage during shipment,
handling and storage, and to ensure safe arrival at the shipment
destination specified by Magellan. Prior to commercial shipment
<PAGE> 6
of a Product to Magellan, OSN shall provide Magellan with samples of the
packaging proposed to be used for the Products for Magellan's review and
reasonable approval. OSN's prices include the cost of packaging and preparing
the Products for shipment.
7. PRODUCT MARKING
7.1 MAGELLAN SPECIFICATIONS. OSN agrees that the
exterior of the Products ordered by Magellan and the packaging
therefor shall include and conform to the colors, labels,
trademarks and logos specified by Magellan.
7.2 MAGELLAN TRADEMARKS. Magellan shall retain its ownership
of all trademarks and other marks and logos it requires on the Products supplied
by OSN hereunder, and no right or license to use such trademarks, marks or logos
is granted OSN hereunder, except as needed to manufacture the Products supplied
to Magellan.
7.3 PACKAGING. OSN shall mark and label all packaging and
containers for the shipment and storage of Products in accordance with
Magellan's instructions. Magellan agrees to provide OSN with camera-ready
artwork for such packaging and labelling requirements within thirty (30) days of
the Effective Date.
8. PRODUCT WARRANTY
8.1 GENERAL WARRANTY. OSN warrants that each Product shall
conform to the Specifications for such Product and shall be free from defects in
material and workmanship, for a period equal to the one (1) year from the date
of shipment of such Product to the end-user (the "Warranty"). The Warranty shall
extend to Magellan and all of its distributors and end-users of the Products.
The Warranty shall specifically exclude any Products which have been subject to
misuse, negligence or accident not caused by OSN or which has been repaired or
altered by any one other then OSN or Magellan. The Warranty shall not and does
not include any implied warranty of merchantability or fitness for a particular
purpose. OSN shall not be liable hereunder for consequential or indirect damages
whether or not occasioned by OSN's negligence and OSN neither assumes nor
authorizes any person to assume for it any other liability in connection with
the Products.
8.2 WARRANTY REPAIR. OSN shall promptly repair or replace, at
its option and expense, Products that fail to comply with the Warranty in
Section 8.1, or alternately, shall pay Magellan its costs of remedying such
non-compliance. The shipment of non-complying Products to OSN shall be at the
customer's expense, and the return shipment of repaired or replacement Products
by OSN under this Section shall be at OSN's expense.
<PAGE> 7
8.3 REPLACEMENT PRODUCTS. Any Product replaced or repaired
under the Warranty shall be covered by the Warranty until the later of: (a) the
end of the original period of Warranty for the Product, or (b) 90 days from the
date such Product is returned to Magellan or Magellan's customer.
8.4 MAGELLAN REPAIRS. The Parties anticipate that OSN shall
perform most repair or replacement of Products under the Warranty. However,
Magellan may elect to perform Warranty repair at a field site by a Magellan
authorized service representative without invalidating OSN's Warranty. Warranty
repair required as a result of fault or negligence of Magellan or its authorized
representatives in performing such repair shall void the Warranty coverage with
respect to the particular product.
9. SERVICE OF PRODUCT AFTER WARRANTY PERIOD
9.1 MAIL-IN SERVICE. OSN agrees to provide mail-in repair for
Products after the Warranty period has expired for such Products. The cost of
repair to a Product with a reproducible error or fault shall be a fixed tee of
$1,250, unless otherwise changed by mutual agreement of the Parties. If OSN
receives a Product outside of the Warranty for repair of an error or fault, and
OSN cannot duplicate or reproduce the error or fault identified by the customer,
OSN may charge such customer a mail-in test and evaluation fee of $500.
9.2 REPAIR WARRANTY. OSN warrants that paid repairs performed
on a Product under Section 9.1 outside of the original warranty period shall
conform to the Specifications for such Product and shall be free from defects in
material and workmanship for a period of 90 days after delivery of the repaired
Product to the customer.
9.3 PARTS REPAIR. OSN agrees to repair auxiliary items and
spare parts for Products, not otherwise covered under Section 9.1, at a cost no
greater than OSN's best OEM repair prices, which shall in any event not exceed
75% of the replacement price hereunder for such items or parts.
9.4 SHIPMENT FOR REPAIR. Magellan or the owner of the
defective Product or part is responsible for shipping costs in both directions.
Unless directed otherwise by Magellan, OSN upon receipt of a defective but
repairable part shall immediately ship a replacement part if an identical part
is in inventory. Otherwise, OSN will repair the defective part received and
return the same. OSN shall use best efforts to assist Magellan to achieve a 48
hour or less repair turn around.
10. INDEMNIFICATION
10.1 PRODUCT LIABILITY. OSN agrees to protect, indemnify and
hold Magellan harmless from and against all liability resulting from any and all
claims by third parties for loss, illegal usages by OSN or any of its other
customers,
<PAGE> 8
damages, costs, expenses (including reasonable attorney's fees and costs), fines
or injury (including death) allegedly caused by or arising from or related to
any Product, to the extent not caused by fault attributable to Magellan
(including without limitation Magellan's breach of Section 2.4) and provided
that OSN is notified by Magellan of all such claims within a reasonable period
of time following Magellan's initial notification of such claims.
Notwithstanding the foregoing, no such claim shall be settled without the
express written consent of Magellan, which consent shall not be unreasonably
withheld, and provided that if the entire amount of such claim is covered by
insurance then such claim may be settled without Magellan's consent.
10.2 INTELLECTUAL PROPERTY. OSN hereby represents that, to the
best of OSN's knowledge, neither the performance by the Parties of their
obligations nor the exercise of their rights under this Agreement shall infringe
on any third party's intellectual property rights. OSN agrees to defend,
indemnify and hold Magellan harmless from and against any and all damages,
claims losses or liabilities, including without limitation, all attorneys' and
other professional fees, resulting from such infringement. Notwithstanding the
foregoing, OSN shall have no liability to Magellan under this Section 10.2 in
the event any alleged breach hereunder is based on (i) the use of a Product in
connection or combination with equipment, devices or software not supplied by
OSN, or (ii) the alteration or modification of the Product, if such claim would
have been avoided by the absence of such connection, combination, alteration or
modification.
10.3 BY MAGELLAN. Magellan agrees to protect, indemnify and
hold OSN harmless from and against all liability resulting from any and all
claims by third parties for loss, damages, costs, expenses (including reasonable
attorney's fees and costs) or injury (including death) allegedly caused by or
arising from or related to any Product, to the extent not caused by fault
attributable to OSN and provided that Magellan is notified by OSN of all such
claims within a reasonable period of time following OSN's initial notification
of such claims. Notwithstanding the foregoing, no such claim shall be settled
without the express written consent of OSN, which consent shall not be
unreasonably withheld, and provided that if the entire amount of such claim is
covered by insurance, then such claim may be settled without OSN's consent.
10.4 INSURANCE. OSN shall obtain and carry in full force and
effect, from and after the date it first delivers Products to Magellan,
appropriate commercial general liability insurance (including product liability
coverage with respect to its Products) in the amount of at least $10 million in
coverage, which insurance shall name Magellan as an additional insured in any
such policy of insurance. OSN shall provide Magellan a copy of the insurance
certificate evidencing the existence of such insurance policy. Additional
insured status shall be limited to all liability resulting from any and all
claims by third parties
<PAGE> 9
for loss, damages, costs, expenses (including reasonable attorney's fees and
costs), or injury (including death) allegedly caused by or arising from or
related to any Product, to the extent not caused by fault attributable to
Magellan (including without limitation Magellan's breach of Section 2.4).
11. PRODUCT CHANGES
11.1 OSN may make changes to the Products, provided that such
changes result in performance and functionality of such Products that is at
least equivalent or superior to the performance and functionality of the
Products prior to such changes, and provided further that OSN may not make
changes that affect the external appearance of the Product without Magellan's
prior written consent. Any such changes shall be at no additional cost to
Magellan.
11.2 OSN will keep the subject Products current, via updates
supplied to Magellan and/or its customers (at Magellan's direction) at no
additional charge, with any and all Inmarsat software change notices that are
mandatory for proper system operation.
11.3 Software changes that add optional system features, not
in the original Specification for the Products, will be provided upon mutual
agreement at OSN's best OEM firmware price.
11.4 OSN shall not make changes which will lessen the
Product's original specifications, delete features, interfere with the
functional characteristics, degrade product performance, change the external
appearance, or change external physical interfaces without prior approval from
Magellan. If it is determined that the modifications or alternations will not
impact the customers of the Products, Magellan will authorize such changes.
11.5 OSN agrees to offer to Magellan the right of first
refusal to obtain the distribution rights (including exclusive marketing rights)
to any Other Products that OSN may develop.
11.6 Magellan agrees to offer to OSN the right of first
refusal to supply to Magellan any other Inmarsat products (other than Products)
prior to Magellan offering for sale any such other Inmarsat products.
11.7 In the event that, prior to completion of delivery of all
4,000 units of the Compact-M Basic Unit pursuant to Magellan's initial purchase
order hereunder, a future Inmarsat service or product, including without
limitation a Mini-M service or product, is introduced that is directly
competitive with the Products and is marketed at a significantly lower price
than the Compact-M Product, then Magellan and OSN shall cooperate in good faith
in the development of a modified version of the Compact-M Product or a new
terminal, and shall discuss in good faith such
<PAGE> 10
other reasonable and appropriate actions, including without limitations
modifications to the terms of this Agreement, to address and resolve the affects
on the respective parties caused by the marketing of such competitive product or
service.
12. PRODUCT TRAINING
OSN shall provide a one-time training course at Magellan's
facility in installation, usage and maintenance of the Products. The training
course duration is anticipated to take less than one week and formal
presentation material is not required. At such training, OSN shall provide
Magellan with all manuals, documentation, engineering drawings, and other
materials necessary for Magellan to develop and provide technical sales and
service and maintenance support. All such materials provided to Magellan
hereunder shall be deemed "Confidential Information" of OSN under Article 13,
subject to the exclusions therein. OSN will be responsible for the expenses of
its personnel attending the training course.
13. CONFIDENTIAL INFORMATION
13.1 INFORMATION RECEIVED. Each party shall maintain in
confidence and not disclose or use except as permitted in this Agreement any of
the other party's proprietary and confidential technical, business, financial,
product, marketing and other information which it receives under this Agreement
("Confidential Information").
13.2 EXCEPTIONS. Section 13.1 shall not apply to, and the
receiving party shall have no obligation with respect to, any information which
the receiving party can demonstrate:
(a) is or becomes public knowledge through no
wrongful act of the receiving party,
(b) is already known to the receiving party and
not subject to an obligation of non-disclosure,
(c) is rightfully obtained by the receiving party
from any third party without restriction on disclosure and
without breach of any obligation owed to the disclosing party,
(d) is disclosed pursuant to a lawful requirement
of a governmental agency, or
(e) is approved for release by written
authorization of the disclosing, party.
13.3 SURVIVAL. The obligations of the parties arising under
this Article 13 shall survive for a period of three (3) years following the term
or any termination of this Agreement.
<PAGE> 11
14. PRODUCT PROTECTION
Magellan undertakes to preserve in all respects for the
benefit of OSN the design of the Products together with such drawings, tools,
patents, and know-how as may be made available by OSN to Magellan for the
performance of this Agreement. Furthermore, Magellan will not copy, reproduce or
release to any third party whatsoever particulars of the design and
specification of the Products to this Agreement without OSN's prior written
permission, except in so far as may be necessary to instruct and enable
Magellan's customers in the ordinary course of Magellan's business, and except
as permitted under Section 15.5. During the term of this Agreement, Magellan
shall not sell, distribute, or promote either directly or indirectly, nor as a
principal, shareholder, officer, director, employee, agent, partner or
otherwise, any product the same or similar in performance to the Products or any
products directly competitive with any Products.
15. TERM AND TERMINATION
15.1 TERM. Unless terminated as provided below, this
Agreement shall be in effect perpetually.
15.2 TERMINATION WITHOUT CAUSE. This Agreement can be
terminated by either party, without specifying any reason, by giving at least
six (6) months notice in writing to the other party. In case of termination
hereunder by OSN, OSN agrees to fulfill completely according to the terms and
conditions of this Agreement, any outstanding orders or orders placed by
Magellan within 45 days after such notice, any remaining commitments resulting
from previous orders, and all Products required to be delivered under the
Delivery Schedule prior to the effective date of such termination, and Magellan
shall be released from purchasing any additional Products under the initial
purchase order except for these Products specified to be delivered under the
Delivery Schedule prior to the effective date of such termination. In case of
termination hereunder by Magellan, Magellan guarantees that it shall complete
the purchase of all Products scheduled to be delivered by OSN under any
irrevocable purchase order hereunder.
15.3 TERMINATION FOR BREACH. Either party may terminate this
Agreement upon written notice to the other party, if the other party has
committed a material breach or default under the Agreement, which breach or
default remains uncured 30 days after receiving written notice from the
non-breaching party specifying such breach. Without limiting the generality of
the foregoing, failure of OSN to supply the Compact-M Product conforming to the
Specifications for such Product, within the time frame set forth in the Delivery
Schedule, shall constitute a material breach, subject to sections 5.2 and 6.1.
15.4 BANKRUPTCY. Either party may terminate this
Agreement upon written notice if the other party becomes
<PAGE> 12
bankrupt, insolvent, or unable to pay its debts when due, or suffers the
appointment of a trustee, custodian or receiver for it or a substantial portion
of its assets, or shall commence, or have commenced against it, any proceeding
under any bankruptcy, reorganization, dissolution, adjustment of debt, or
liquidation law or statute, or shall make an assignment for the benefit of
creditors.
15.5 CONSEQUENCES OF TERMINATION. In the event Magellan
terminates the Agreement under sections 15.3 or 15.4, Magellan shall have the
right to use all information in the possession or control of OSN to obtain the
continued supply of Products. Articles 8, 9, 10, 13, 15, and 16 shall survive
the termination of this Agreement for any reason.
16. MISCELLANEOUS RIGHTS AND DUTIES
16.1 NO ASSIGNMENT. Neither this Agreement nor any right or
obligation hereunder may be assigned or delegated by either party without the
prior written consent of the other party, and any attempted assignment or
delegation not in conformity with this Section 16.1 shall be null and void.
16.2 SUCCESSOR. Notwithstanding anything in this Agreement to
the contrary, this Agreement with all rights and obligations hereunder shall be
binding upon and inure to the benefit of any successor to which either party
directly or indirectly transfers all or substantially all of its business and
assets pertaining to the Product, whether by merger, sale of assets, sale of
stock or otherwise. The party making such a transfer shall assign this Agreement
and the rights and obligations hereunder and obtain from the assignee, in a form
satisfactory to counsel for the other party, an acceptance of such assignment
and an assumption of all of the assignor party's obligations under this
Agreement.
<PAGE> 13
16.3 NOTICES AND COMMUNICATIONS.
Except as otherwise specifically provided herein, notices and
other communications by a party under this Agreement shall be deemed given the
next business day after the date when sent via Federal Express or some other
nationally recognized courier service, addressed as follows or as from time to
time otherwise directed in writing by either party:
To Magellan: Magellan Corporation
960 Overland Court
San Dimas, California 91773
To OSN: O'Gara Satellite Networks
1 Brandywine Drive
Deer Park, New York 11729
16.4 EXCUSED PERFORMANCE. Neither Party shall be liable for
damages because of delays in or failure of performance required under this
Agreement when such delay or failure is due to acts of God, acts of civil or
military authority, fire, flood, strikes, war, epidemics, shortage of power, or
other cause beyond such party's reasonable control and without its fault or
negligence, provided that such party (a) uses best efforts to promptly notify
the other in advance of conditions which will result in any such delay in or
failure of performance, (b) uses best efforts to avoid or remove such
conditions, and (c) immediately continues performance whenever such conditions
are removed.
16.5 INTEGRATION. This Agreement and the Exhibits annexed
hereto is intended to be the sole and complete statement of the obligations of
the parties. It supersedes any other agreement or understanding (including
without limitation the LOI, which is terminated), whether written or oral, that
may have been made or entered into with regard to the subject matter hereof by
OSN or Magellan.
16.6 MODIFICATION. This Agreement may not be altered, amended
or modified except by formal agreement in writing signed by duly authorized
representatives of both Parties. Purchase orders, purchaser order
acknowledgments, acceptance forms, and other printed documents, to the extent
they deviate from the terms of this Agreement, shall not constitute an
alteration, amendment or modification, unless such specific terms are
acknowledged and accepted in a writing signed by both Parties.
16.7 WAIVER OR DELAY. Any waiver or delay in the exercise by
either party hereto of its right to terminate hereunder or to enforce any
provision of this Agreement for any breach by the other party shall not
prejudice such party's right of termination or enforcement for any further,
continuing or other breach by the other party.
<PAGE> 14
16.8 SEVERABILITY. In the event that any provision contained
in this Agreement should, for any reason, be held to be invalid or unenforceable
in any respect under the laws of any jurisdiction where enforcement is sought,
such invalidity or unenforceability shall not affect any other provision of this
Agreement and this Agreement shall be construed as if such invalid or
unenforceable provision had not been contained herein.
16.9 GOVERNING LAW. This Agreement shall be interpreted and
construed, and the legal regulations created herein shall be determined, in
accordance with the laws of the State of California, without regard to
principles of conflict of laws. The parties consent to jurisdiction and venue
for any litigation, arbitration or other proceeding arising out of this
Agreement or the subject matter hereof in the courts or other appropriate venue
in the County of Los Angeles, California.
16.10 HEADINGS. The Article and Paragraph headings within this
Agreement are for convenience only and shall neither be considered a part of,
nor affect the construction or interpretation of, any provision of this
Agreement.
16.11 COMPLIANCE WITH LAWS. Each party shall, in the
performance of this Agreement, fully comply with all applicable federal, state,
local and other governmental laws and regulations, including laws governing the
import and export of goods.
16.12 REPRESENTATIONS. OSN and Magellan represent and warrant
to each other that each has the right and power to enter into this Agreement.
16.13 RELATIONSHIP OF PARTIES. The relationship of OSN and
Magellan as established under this Agreement shall be and at all times remain
one of independent contractors, and neither party shall at any time or in any
way represent itself as being a dealer, agent, franchisee or other
representative of the other party or as having authority to assume or create
obligations or otherwise act in any manner on behalf of the other party.
<PAGE> 15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
O'GARA SATELLITE NETWORKS, LTD. MAGELLAN CORPORATION
/s/ Thomas M. O'Gara /s/ Randy D. Hoffman
- ----------------------------- ------------------------------
Signature Signature
Thomas M. O'Gara Randy D. Hoffman
- ----------------------------- ------------------------------
Name Name
Chairman of Board 6/2/95 President 6/2/95
- ----------------------------- ------------------------------
Title Date Title Date
<PAGE> 16
CONFIDENTIAL June 2, 1995
EXHIBIT A
COMPACT-M PRODUCTS
Compact-M Product Description
- -----------------------------
The Compact-M Inmarsat-M terminal is a portable satellite communications
terminal which allows the user access to the Inmarsat-M voice service and
optionally fax, data, and a secure STU III mode available at select Land Earth
Stations. The equipment comprises a basic unit plus options. The basic unit is
being purchased as the Initial Order, section 3.2 of the Agreement, at the unit
price defined by Product Unit Prices in section 4.1 of the Agreement.
The basic unit provides voice telephone service and operates with a user
supplied 12 Volt DC source (typically found in a vehicle). The basic unit
includes a transceiver unit, a telephone handset, instructions, compass, and a
12VDC power cord, in a soft carrying case. The transceiver unit contains the
system electronics modules packaged in a housing made of plastic and die-cast
aluminum and includes a unique folding antenna design.
Fax, data communications, and secure mode (depends on Land Earth Station
availability), will be available by optional software upgrades. Power supply
options will include an AC/DC converter and a rechargeable battery pack which
allows the unit to be operated off AC mains power or its optional battery pack.
An optional soft case designed to hold the basic unit (including carrying case)
will accommodate the power supply options. Other case options will include a
hard transit case to replace the soft case and a hard transit case designed to
contain the basic unit, power supply options and with room for other peripherals
such as a notebook computer, fax machine and cellular phone. The hard transit
cases will be designed to be transported as checked airline baggage.
The transceiver will incorporate a smart card reader. This system will permit
the unit to be sold with a quantity of pre-paid Minutes and thus permit the user
to arrange to pre-pay for communications services via the terminal.
Compact-M Basic Unit Specifications (initially ordered and priced in Section
- ----------------------------------------------------------------------------
3.2., and 4.1, respectively, of the Agreement)
- ----------------------------------------------
Physical Characteristics:
- -------------------------
Assembly: Plastic Housing with internal
die-cast aluminum RF module.
<PAGE> 17
Packaging: Generally shaped as a lap-top
personal computer. Unique folding
antenna design with a hinge device
that keeps the antenna tilted in
any angle position.
Size: 6.8" x 11.3" x 2.8": +/- 0.20" for
each dimension; not including
accessories or options.
Weight: 6 lbs (approximate; not including
accessories or options)
Operating Temperature: -25(degree)C to +55(degree)C
Electrical Characteristics:
- ---------------------------
Specification: Meets Inmarsat-M SDM for Portable
MES.
Power Input: 10 to 16 VDC
Power Consumption: 85 Watts Transmit, 25 Watts Receive
(estimate)
Antenna Gain: 15.5 dB
G/T: -12 dB/K
Functional Characteristics:
- ---------------------------
Voice: 6.4 kbps digital
External Interfaces: Voice (RJ11), Fax (RJ11), Data Port
(RS-232: 9-pin)
Compact-M Accessories: 12 VDC Power Cord
DTMF 2-wire handset
Soft Carrying Case
Smart Card System: Provides method of distributing
pre-paid "minutes (to be defined).
Manufacturing Standards:
- ------------------------
The Compact-M Basic Unit will be manufactured in accordance with an ISO 9000, or
equivalent, manufacturing/quality assurance plan and will meet normally accepted
commercial standards for quality of finishes, parts assembly and tolerances,
printed wiring board assembly and soldering, and general external appearance.
OPTIONAL ITEMS (NOT INCLUDED IN THE INITIAL ORDER OF SECTION 3.2
- ----------------------------------------------------------------
OF THE AGREEMENT)
- -----------------
<PAGE> 18
These options will be ordered as per section 3.3, Order of Related Items, and
priced as per section 4.2, Purchase of Related Items. The specifications and
configurations will be subject to change and agreed to by the Parties. The
delivery and milestone schedule will be determined by the Parties and placed in
to subsequent OSN quotations and Magellan purchase orders.
Software:
- ---------
Fax: 2.4 kbps
Data: 9.4 kbps
Secure: 2.4 kbps STU III
Compact-M Accessories: AC/DC Power Converter
- --------------------- Rechargeable Battery Pack (to be defined
- charger may be integral with AC/DC
Power Converter)
Compact-M Cases:
- ---------------
Soft Case: Houses basic unit, power supply options
---------
Hard Cases: Transit case containing all items
---------- contained in soft case. An additional
transit case will also contain room for
peripherals such as notebook computer,
fax, cellular phone.
Smart Cards: TBD along with Subscription Service for
- ----------- additional minutes.
Mini-M Upgrade: Return to factory upgrade that will be
- -------------- available when Inmarsat has world-wide
service via its third generation
spot-beam satellites.
<PAGE> 19
EXHIBIT B
DELIVERY SCHEDULE
Compact-M Basic Unit
<TABLE>
<CAPTION>
===============================================================================
QUANTITY DELIVERY*
- -------------------------------------------------------------------------------
First Article Sep. 11, 1995
- -------------------------------------------------------------------------------
<S> <C>
10 (Initial Production) one (1) month following Acceptance
- -------------------------------------------------------------------------------
55 two (2) months following Acceptance
- -------------------------------------------------------------------------------
85 three (3) months following Acceptance
- -------------------------------------------------------------------------------
110 four (4) months following Acceptance
- -------------------------------------------------------------------------------
140 five (5) months following Acceptance
- -------------------------------------------------------------------------------
200 six (6) months following Acceptance
- -------------------------------------------------------------------------------
200 seven (7) months following Acceptance
- -------------------------------------------------------------------------------
200 eight (8) months following Acceptance
- -------------------------------------------------------------------------------
200 nine (9) months following Acceptance
- -------------------------------------------------------------------------------
200 ten (10) months following Acceptance
- -------------------------------------------------------------------------------
200 eleven (11) months following Acceptance
- -------------------------------------------------------------------------------
200 twelve (12) months following Acceptance
- -------------------------------------------------------------------------------
200 thirteen (13) months following Acceptance
- -------------------------------------------------------------------------------
200 fourteen (14) months following Acceptance
- -------------------------------------------------------------------------------
200 fifteen (15) months following Acceptance
- -------------------------------------------------------------------------------
200 sixteen (16) months following Acceptance
- -------------------------------------------------------------------------------
200 seventeen (17) months following Acceptance
- -------------------------------------------------------------------------------
200 eighteen (18) months following Acceptance
- -------------------------------------------------------------------------------
200 nineteen (19) months following Acceptance
- -------------------------------------------------------------------------------
200 twenty (20) months following Acceptance
- -------------------------------------------------------------------------------
200 twenty one (21) months following Acceptance
- -------------------------------------------------------------------------------
200 twenty two (22) months following Acceptance
- -------------------------------------------------------------------------------
200 twenty three (23) months following Acceptance
===============================------------------------------------------------
4000
===============================================================================
<FN>
* Acceptance is defined in Section 5.1 (b) of the Agreement and Exhibit
C. For example, if Acceptance is given by September 30, 1995 then
initial Production is October 31.
</TABLE>
<PAGE> 20
EXHIBIT C
MILESTONE SCHEDULE
Compact-M Basic Unit
<TABLE>
<CAPTION>
ACTIVITY DATE DUE
<S> <C>
Signed Letter of Intent (LOI) 10 Mar
Draft OEM Agreement 20 Mar
Demonstrate Mock-up (model with electronics) 14 Apr
Final Compact-M Dimensions 01 May
Execute Agreement 02 Jun
Demonstrate Prototype 14 Jun
Purchase Order (Magellan) 21 Jun
Joint Press Release 22 Jun
Camera Ready Artwork for Product Marking (Magellan) 01 Jul
Marketing Plan (Magellan) 14 Jul
Type Approval 05 Sep
First Article Delivery 20 Aug - 11 Sep
Initial Production *
</TABLE>
Production will begin thirty (30) days after acceptance by Magellan of the First
Article in accordance with Section 5.1(b) of the Agreement.
<PAGE> 21
EXHIBIT D
RESTRICTED MARKETS
LIST A COUNTRIES * LIST B COUNTRIES **
Yemen Egypt
United Arab Emirates Saudi Arabia
Qatar Oman
Bahrain Syria
Kuwait Morocco
Iraq Taiwan
Jordan US Military
Israel
Lebanon
Turkey
* Non-exclusive
** Restricted without written consent from OSN
<PAGE> 22
LETTER OF AGREEMENT
-------------------
This letter of agreement is an addendum to the "OEM Supply Agreement"
("Agreement") signed between O'Gara Satellite Networks, Ltd. ("OSN") and
Magellan Corporation ("Magellan") collectively referred to as the "Parties".
In connection with the sale of the Compact-M Products, which are the subject of
the Agreement, the Parties agree to collaborate to develop the form of contract
to be used with end users and to ensure that an appropriate notice is provided
to customers with the product notifying them of their responsibility to obtain
all necessary governmental or other licenses to operate the equipment.
Dated June 2nd, 1995
Signed on behalf of:
O'Gara Satellite Networks, Ltd. Magellan Corporation
/s/ Thomas M. O'Gara /s/ Randy D. Hoffman
- ------------------------------ --------------------------------
Signature Signature
Thomas M. O'Gara Randy D. Hoffman
- ------------------------------ --------------------------------
Name Name
Chairman of the Board 6/2/95 President 6/2/95
- ------------------------------ --------------------------------
Title Date Title Date
<PAGE> 1
EXHIBIT 10.20
O'GARA-HESS & EISENHARDT
ARMORING COMPANY
EST. 1876
August 15, 1996
Mr. Morton Palmer
Palmer Associates, S.C.
Mexico City, Mexico
Dear Pete:
Please treat this as a letter of intent for The O'Gara Company (the "buyer") to
purchase, and Morton Palmer (the "seller") to sell certain assets and certain
liabilities of Palmer Associates, S.C. for the terms set forth below, subject to
satisfactory completion of due diligence on behalf of the buyer. The terms are
as follows:
1. The purchase of certain assets and certain liabilities of Palmer Associates,
S.C. for the purchase price of $1,000,000, payable $500,000 upon the closing of
The O'Gara Company's initial public offering of common stock (which is now
estimated to close in early November 1996), $250,000 on December 31, 1997 and
$250,000 on December 31, 1998.
2. Additionally, The O'Gara Company will pay Morton Palmer $200,000, in four (4)
annual and equal installments of $50,000 each, in a covenant not to compete for
four (4) years from the date of its acquisition of Palmer Associates, S.C.
3. The O'Gara Company will provide its standard two year employment agreement to
Morton Palmer. Mr. Palmer will be paid $150,000 per year, payable monthly. Of
this amount, $125,000 will be considered salary and $25,000 will be considered a
prepayment of bonus (the sum of $25,000 will be deducted from any bonus for
Morton Palmer which is declared at the end of The O'Gara Company's fiscal year
1997 or any year in which a certain sum
<PAGE> 2
has been declared a prepayment of bonus). Furthermore, The O'Gara Company will
offer its standard two year employment agreement to senior partners of Palmer
Associates, S.C. as so designated by Morton Palmer.
4. Currently, it is the intention of The O'Gara Company to begin its due
diligence during the week commencing September 1, 1996.
Agreed to:
Buyer
/s/ W. T. O'Gara 8-15-96
- ----------------------------------- -------------------------
W.T. O'Gara Dated
for The O'Gara Company
Seller
/s/ Morton Palmer 8-16-96
- ----------------------------------- -------------------------
Morton (Pete) Palmer Dated
for Palmer Associates, S.C.
<PAGE> 1
EXHIBIT 10.21
SUBSCRIPTION AGREEMENT
This agreement is entered in duplicates on March 21, 1995,
Between Morsviazsputnik, the Inmarsat Signatory of Russia and a
member of Project Condominium, with its corporate
headquarters residing at Bldg. 7, 14/10, U1.
Novosloboskaya, Moscow, 103030, Russia (referred to as
MVS hereinafter);
And the following parties:
GLOCOM, Inc., an U.S. company with its corporate
headquarters residing at 1803 Research Boulevard,
Rockville, Maryland 20850 USA; and
O'Gara Satellite Networks, Ltd., an Irish company with
office at P.O. Box 253, Bordage House, Le Bordage, St.
Peters Port, Guernsey, Channel Islands.
(collectively referred to as the Subscribers
hereinafter).
This is a contract entered into between Subscribers and MVS, whereby MVS has
entered into a Joint Venture Operating Agreement with Teleglobe Canada, Inc.,
and MVS Mobile Communications, Inc., (known as Project Condominium) to provide
the Inmarsat-B&M satellite services as authorized by Inmarsat.
1. DEFINITIONS
a. Inmarsat-B&M Satellite Services: This is an
Inmarsat-based satellite telephone service that
provides subscribers with the ability to communicate
from an Inmarsat-B or M mobile earth station (i.e.
terminal equipment) to land-based locations (e.g.
home/office) through MVS affiliated Land Earth Stations
(LES) on all Inmarsat 4 ocean region basis.
b. Take-or-Pay Subscription: For a total of 100,000 or
more minutes per year to be paid by the Subscribers but
without time limit as when the minutes must be
consumed, MVS agrees to provide the Inmarsat-B&M
Satellite Services at the following special rate and
conditions: (i) US$3.40/min, charged as $0.34 for
first six-second interval and $0.0057 for each 1-second
increment thereafter; (ii) good for both Inmarsat-B and
M satellite services on telephony, fax and regular data
(up to 9.6 kbps) calls initiated from terminal and
terminated at any place worldwide; (iii), all inclusive
that the rate covers MVS service charge, landline
connection charge and any other service charges that
may be imposed by MVS as a Routing Organizations or MVS
<PAGE> 2
affiliated LES's; and (iv) available to all four ocean
regions on the 24-hour basis.
c. Non-standard calls: The following Inmarsat-B&M calls
are considered to be the non-standard calls: (i) Calls
initiated from land-based locations to terminals.
Subscribers are not responsible for these incoming
calls; (ii) Calls routed from an alternate LES rather
than MVS affiliated LES's. The Subscribers (or their
customers) may elect to use an alternate LES for
routing calls but minutes used in such case will be
billed by the alternate LES to customers via MVS acting
as Accounting Authority at the rate set by that
alternate LES plus MVS standard accounting fee of 8
percent plus Subscriber's handling charges; and (iii)
terminal-to-terminal calls. When the Subscriber (or
affiliated user) uses the terminal to call another
Inmarsat mobile earth station, service charges will be
billed at twice the rate as described in 1.b.(i).
2. MVS RESPONSIBILITIES: For 100,000 minutes on take-or-pay
subscription, MVS will provide the Subscribers with the
following:
a. Inmarsat Mobile Number(s) on each terminal
commissioning application submitted by Subscribers.
The commissioning will be registered through
Morsviazsputnik, the routing organization in Russia.
No other surcharge will be imposed by MVS;
b. Inmarsat-B&M satellite services the rate and conditions
stated in Article 1.b.;
c. Offer the MVS 1,000-minute promotional deal to each
first-time terminal owner commissioned through MVS at
$3.20 per minute (global, single rate, all inclusive)
with no time limit;
d. Monthly itemized calling activity statement by customer
account in hardcopy and electronic media. Regular
calls made through the affiliated LES will be charged
at the rate per Article 1.b. All non-standard calls
will be charged at the rate per Article 1.c.;
e. In the event that MVS is in default of this agreement,
or is no longer able to provide the services described
in this agreement, it is understood that the Project
Condominium agreement will survive and the Subscribers
may continue to access the services provided by Project
Condominium. Furthermore the Subscribers will have the
option of continuing the terms of this agreement with
MVS-USA notwithstanding the optional arrangement
described in Article 4.d.
- 2 -
<PAGE> 3
f. For all traffic described in Article 3.d., in which SU-04 is
the Accounting Authority, MVS agrees to waive all charges and
invoice at the rates defined by this Agreement.
3. SUBSCRIBERS OBLIGATIONS:
a. Make monthly payment to MVS within 30 days upon
receiving invoice for the minutes consumed by
Subscribers or their clients during that billing
period;
b. Make prepayment for the MVS 1,000-minute promotional
deal (per Article 2.c.) for each new terminal equipment
sold in conjunction with the promotional deal by the
Subscribers;
c. Generate and forward monthly bills to customers per MVS
monthly calling activity statement issued;
d. Set 015 as the default LES access code in all four ocean
regions for those terminals sold by subscribers under this
program. As a temporary measure, 013 shall be used as the
default LES access code for POR and IOR until such time as an
agreement is reached with an POR/IOR LES for 015.
e. Maintain a database of all their customers and inform
MVS in a timely manner, of all pertinent changes.
f. Subscribers shall not publicly promote or advertise their
tariff more than 10 percent different from MVS current
published rates, so as not to upset market prices or damage
other marketing activities.
g. In the event that the 100,000 minutes have not been
fully taken at the end of this agreement term,
Subscribers shall be obligated to pay MVS for the
difference between 100,000 minutes and the utilized
minutes at the rate of US$3.40 per minute. These
prepaid minutes can then be used by the Subscribers in
accordance with this Agreement without any time limit.
The payment obligation among the Subscribers shall be
in proportion to each Subscriber's initial agreed
commitment as follows: O'Gara Satellite Networks 60
percent and GLOCOM 40 percent.
4. OPTIONAL SERVICES
a. Subscribers shall have the option to subscribe to the
Inmarsat-B 56/64 kbps high speed data services to be
offered by MVS through its affiliated LES's when it
becomes commercially available at the discount rate of
- 3 -
<PAGE> 4
at least 25 percent below the MVS published tariff on a take
or pay deal identical as those set forth herein.
b. Subscribers shall have the option of using MVS as the
routing organization and MVS as the Accounting
Authority with designation SU-04.
c. Subscribers shall have the option of commissioning
terminal with any LES it chooses, with the exception
that terminals commissioned under the promotional
activity described in Article 2.c., will be
commissioned with MVS. Subscribers shall inform MVS,
in a timely manner, of any commissioning performed by a
different LES so that the terminals will be registered
for this agreement.
d. Subscribers shall have the option of designating MVS-USA as
the billing entity. The terms and conditions of this
arrangement, if any, will be provided under a separate
agreement, if this option is chosen.
5. DISCLAIMER: In no event shall Subscribers be liable to any
customers or third parties for any incidental, indirect,
consequential or special damages or loss of revenue or
profits arising out of or in connection with any MVS or
affiliated LES operational problems related to the
subscribed services.
6. CONFIDENTIALITY: MVS and the Subscribers shall keep in
confidence all of the commercial information related to this
Agreement, and shall not disclose such information for any
purpose other than as required to fulfil this Agreement.
7. TERM: This Agreement shall be valid for one year from the date first
appeared in this document. It shall be automatically renewed every
twelve month period unless terminated by either the Subscriber(s) or
MVS by serving written notice to the other Party with at least thirty
days notice. Termination shall not relieve any Party from its
obligations under this Agreement.
8. JURISDICTION: In the case of any disputes and/or discords
arising between MVS and Subscribers in connection with this
Agreement, the Parties agree to settle them by way of
negotiations. If the Parties fail to settle by
negotiations, the disputes and/or discords shall without
resort to any court be referred for settlement to
Arbitration. Arbitration shall be exercised in accordance
with the applicable laws of Switzerland.
9. GENERAL PROVISIONS: Neither Party may assign or transfer
the obligations of this Agreement without the prior written
- 4 -
<PAGE> 5
consent of the other Party. This restriction shall not apply to a legal
successor, subsidiary or any other corporation of which major shares
are controlled by the Party.
10. ENTRY INTO FORCE: This Agreement becomes effective from the
date of the last signature.
In witness hereof, the agreement is executed by the undersigned on 24 Day of
March, 1995 .
Morsviazsputnik
Signed: /s/ Valery Bogdanov
-----------------------------
O'Gara Satellite Networks, Ltd.
Signed: /s/ Wilfred T. O'Gara
GLOCOM, INC.
Signed: /s/ J.D. Pan
-----------------------------
- 5 -
<PAGE> 1
Exhibit 21
<TABLE>
<CAPTION>
Subsidiary of Registrant Jurisdiction of Incorporation
- ------------------------ -----------------------------
<S> <C>
O'Gara-Hess & Eisenhardt Delaware
Armoring Company
O'Gara Satellite Networks Ireland
Limited
</TABLE>
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
Cincinnati, Ohio
August 29, 1996
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
<EXCHANGE-RATE> 1
<CASH> 324
<SECURITIES> 0
<RECEIVABLES> 18,831
<ALLOWANCES> 109
<INVENTORY> 4,927
<CURRENT-ASSETS> 24,122
<PP&E> 6,681
<DEPRECIATION> 3,511
<TOTAL-ASSETS> 27,817
<CURRENT-LIABILITIES> 27,353
<BONDS> 225
0
0
<COMMON> 15
<OTHER-SE> 224
<TOTAL-LIABILITY-AND-EQUITY> 27,817
<SALES> 32,817
<TOTAL-REVENUES> 32,817
<CGS> 25,237
<TOTAL-COSTS> 32,994
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 842
<INCOME-PRETAX> (1,122)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,122)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,122)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> JUN-30-1996
<EXCHANGE-RATE> 1
<CASH> 1,088
<SECURITIES> 0
<RECEIVABLES> 22,877
<ALLOWANCES> 160
<INVENTORY> 7,272
<CURRENT-ASSETS> 31,363
<PP&E> 7,468
<DEPRECIATION> 3,800
<TOTAL-ASSETS> 36,265
<CURRENT-LIABILITIES> 31,979
<BONDS> 270
0
0
<COMMON> 15
<OTHER-SE> 4,000
<TOTAL-LIABILITY-AND-EQUITY> 35,265
<SALES> 41,521
<TOTAL-REVENUES> 41,521
<CGS> 31,383
<TOTAL-COSTS> 36,828
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 613
<INCOME-PRETAX> 4,002
<INCOME-TAX> 0
<INCOME-CONTINUING> 4,002
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,002
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
<PAGE> 1
EXHIBIT 99.2
CONSENT OF NOMINEE FOR DIRECTOR
The O'Gara Company
9113 Le Saint Drive
Fairfield, OH 45014
ATTN: Thomas M. O'Gara
Chairman of the Board of Directors
Dear Tom:
I hereby consent to be named in a Registration Statement and the
Prospectus part thereof as a nominee for director of The O'Gara Company (the
"Company") and to all references to me in the Prospectus. This consent is being
given with respect to the Company's Registration Statement to be filed with the
Securities and Exchange Commission regarding the registration of shares of the
Company's Common Stock.
Signed this 28th day of August, 1996.
/s/ William S. Sessions
-----------------------------------
William S. Sessions
<PAGE> 1
EXHIBIT 99.3
The O'Gara Company
August 27, 1996
Page 2
CONSENT OF NOMINEE FOR DIRECTOR
The O'Gara Company
9113 Le Saint Drive
Fairfield, OH 45014
ATTN: Thomas M. O'Gara
Chairman of the Board of Directors
Dear Tom:
I hereby consent to be named in a Registration Statement and the
Prospectus part thereof as a nominee for director of The O'Gara Company (the
"Company") and to all references to me in the Prospectus. This consent is being
given with respect to the Company's Registration Statement to be filed with the
Securities and Exchange Commission regarding the registration of shares of the
Company's Common Stock.
Signed this 27th day of August, 1996.
/s/ Raymond E. Mabus
------------------------------
Raymond E. Mabus
