Exhibit 10.5


 


MODIFICATION NUMBER ONE

TO PROMISSORY NOTE


 


Force Protection, Inc.

9801 Highway 78

Ladson, South Carolina 29456


 


Force Protection Technologies, Inc. 

9801 Highway 78

Ladson, South Carolina 29456


 


Force Protection Industries, Inc.

9801 Highway 78

Ladson, South Carolina 29456

(Individually and collectively, “Borrower”)


 


Wachovia Bank, National Association 

177 Meeting Street, Suite 450

Charleston, South Carolina 29401 

(Hereinafter referred to as “Bank”)


 


THIS AGREEMENT is entered into effective as of September 30, 2007
by and between Bank and Borrower.


 


RECITALS


 


Bank is the holder of a Promissory Note, as modified from time to time,
executed and delivered by Borrower, dated July 19, 2007, in the original
principal amount of $50,000,000.00 (the “Note”);


 


Borrower and Bank have agreed to modify the terms of the Note.


 


In consideration of Bank’s continued extension of credit and the
agreements contained herein, the parties agree as follows:


 


AGREEMENT


 


ACKNOWLEDGMENT OF BALANCE. Borrower acknowledges
that the most recent Commercial Loan Invoice sent to Borrower with respect to
the Obligations under the Note is correct.


 


MODIFICATIONS.


 


The Note is hereby modified by deleting the provisions in the Note
establishing the repayment terms and substituting the following in their place
and stead:


 


REPAYMENT TERMS. The Note shall be due and
payable in consecutive monthly payments of accrued interest only, commencing on
September 30, 2007, and continuing on the same day of 


 

















 


each month thereafter until fully paid. In any event, all principal and
accrued interest shall be due and payable on January 9, 2008.


 


ACKNOWLEDGMENTS AND REPRESENTATIONS. Borrower
acknowledges and represents that the Note and other Loan Documents, as amended
hereby, are in full force and effect without any defense, counterclaim, right
or claim of set-off; that, after giving effect to this Agreement, no default or
event that with the passage of time or giving of notice would constitute a
default under the Loan Documents has occurred, all representations and
warranties contained in the Loan Documents are true and correct as of this
date, all necessary action to authorize the execution and delivery of this
Agreement has been taken; and this Agreement is a modification of an existing
obligation and is not a novation.


 


COLLATERAL. Borrower acknowledges and confirms
that there have been no changes in the ownership of any collateral pledged to
secure the Obligations (the “Collateral”) since the Collateral was originally
pledged; Borrower acknowledges and confirms that the Bank has existing, valid
first priority security interests and liens in the Collateral; and that such
security interests and liens shall secure Borrower’s Obligations, including any
modification of the Note or Loan Agreement, if any, and all future
modifications, extensions, renewals and/or replacements of the Loan Documents.


 


RENEWAL FEE. Borrower shall pay to Bank a
renewal fee of $100,000 at the signing of this Agreement. Upon closing a
syndicated credit facility with Wachovia Capital Markets as sole lead arranger
and book runner, all of this fee will be credited toward any fees charged under
such syndicated credit facility.


 


MISCELLANEOUS. This Agreement shall be
construed in accordance with and governed by the laws of the applicable state
as originally provided in the Loan Documents, without reference to that state’s
conflicts of law principles. This Agreement and the other Loan Documents
constitute the sole agreement of the parties with respect to the subject matter
thereof and supersede all oral negotiations and prior writings with respect to
the subject matter thereof. No amendment of this Agreement, and no waiver of
any one or more of the provisions hereof shall be effective unless set forth in
writing and signed by the parties hereto. The illegality, unenforceability or
inconsistency of any provision of this Agreement shall not in any way affect or
impair the legality, enforceability or consistency of the remaining provisions
of this Agreement or the other Loan Documents. This Agreement and the other
Loan Documents are intended to be consistent. However, in the event of any
inconsistencies among this Agreement and any of the Loan Documents, the terms
of this Agreement, and then the Note, shall control. This Agreement may be executed
in any number of counterparts and by the different parties on separate
counterparts. Each such counterpart shall be deemed an original, but all such
counterparts shall together constitute one and the same agreement. Terms used
in this Agreement which are capitalized and not otherwise defined herein shall
have the meanings ascribed to such terms in the Note. LIMITATION
ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES
HERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL,
MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR
AMONG 


 

















 


THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS
AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR
AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT
SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES.
EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR
EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN
CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS
RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. Final Agreement. This Agreement and the other Loan Documents
represent the final agreement between the parties and may not be contradicted
by evidence of prior, contemporaneous or subsequent agreements of the parties.
There are no unwritten agreements between the parties.


 


WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED
BY APPLICABLE LAW, EACH OF BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE
HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO
BANK TO ACCEPT THIS AGREEMENT. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF
SHALL SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF
DISPUTES BETWEEN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER
DOCUMENT OR AGREEMENT HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO OR
BEING REPLACED, SUPPLEMENTED, EXTENDED OR MODIFIED BY, THIS AGREEMENT.


 

















 


IN WITNESS WHEREOF, the undersigned have duly
signed and sealed this Agreement the day and year first above written.


 


 


	
   

  	
  Force Protection, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Michael S. Durski

  	
  (SEAL)

  
	
   

  	
   

  	
  Michael S. Durski, Chief Financial Officer and Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Force Protection Technologies, Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Michael S. Durski

  	
  (SEAL)

  
	
   

  	
   

  	
  Michael S. Durski, Chief Financial Officer and Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Force Protection Industries, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Michael S. Durski

  	
  (SEAL)

  
	
   

  	
   

  	
  Michael S. Durski, Chief Financial Officer and Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Wachovia Bank, National Association

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Guy M. Meares

  	
  (SEAL)

  
	
   

  	
   

  	
  Guy M. Meares, III, Senior Vice President