Exhibit
10.2


 


AMENDED
AND RESTATED PROMISSORY NOTE


(Renewal)


 


$40,000,000.00


 


April 29, 2010


 


Force Protection, Inc. (“Protection”)

9801 Highway 78

Ladson, South Carolina 29456


 


Force Protection Technologies, Inc. (“Technologies”)

9801 Highway 78

Ladson, South Carolina 29456


 


Force Protection Industries, Inc. (“Industries”)

9801 Highway 78

Ladson, South Carolina 29456


 


(Protection, Technologies, and Industries,

jointly and severally, the “Borrower”)


 


Wells Fargo Bank, National Association

(successor by merger to Wachovia Bank, National Association)

177 Meeting Street, Suite 200

Charleston, South Carolina 29401

(the “Bank”)


 


Borrower
promises to pay to the order of Bank, in lawful money of the United States of
America by debiting a direct deposit account as herein provided, the sum of
Forty Million and No/100 Dollars ($40,000,000.00) or such sum as may be
advanced and outstanding from time to time, with interest on the unpaid
principal balance at the rate and on the terms provided in this Promissory Note
(including all renewals, extensions or modifications hereof, this “Note”).


 


RENEWAL/MODIFICATION/INCREASE.
This Promissory Note renews,
extends, and/or modifies that certain Promissory Note dated October 31,
2008, in the original amount of $40,000,000.00, as renewed and/or extended from
time to time (the “Original Promissory Note”). This Promissory Note is not a
novation to the extent of the principal balance currently outstanding under the
Original Promissory Note.


 


LOAN AGREEMENT. This Note is subject to the provisions of that certain Third
Amended and Restated Loan Agreement between Bank and Borrower dated of even
date herewith (as such may be further amended, modified or restated from time
to time in the future, the “Loan Agreement”).


 


LINE OF CREDIT. Borrower may borrow, repay and reborrow, and, upon the
request of Borrower, Bank shall advance and readvance under this Note from time
to time until the maturity hereof (each an “Advance” and together the “Advances”),
so long as the total principal balance outstanding under this Note at any one
time does not exceed the principal amount stated on the face of this Note,
subject to the limitations described in the Loan Agreement to which this Note
is subject. Bank’s obligation to make Advances under this Note shall terminate
if Borrower is in Default. As of the date of each proposed Advance, Borrower
shall be deemed to represent that each representation made in the Loan
Documents is true as of such date, except to the
extent of changes in the ordinary course of business that singly or in the
aggregate are not materially adverse and to the extent such representations and
warranties expressly relate to an earlier date.


 

















 


If
Borrower subscribes to Bank’s cash management services and such services are
applicable to this line of credit, the terms of such service shall control the
manner in which funds are transferred between the applicable demand deposit
account and the line of credit for credit or debit to the line of credit.


 


USE OF PROCEEDS. Borrower shall use the proceeds of the loan(s) evidenced
by this Note for the commercial purposes of Borrower, as follows: for working
capital and general corporate purposes.


 


SECURITY.
Borrower has granted or will grant Bank a security interest in the collateral
described in the Loan Documents and such other security instruments as are
executed from time to time, including, but not limited to, collateral described
in that certain Security Agreement, dated July 20, 2007, as such may be
modified, restated or replaced from time to time.


 


INTEREST RATE.
Interest shall accrue on the unpaid principal balance of each Advance during
each Interest Period from the date of such Advance at a rate per annum equal to
1-month LIBOR plus the applicable margin (“Applicable Margin”) indicated
in the following pricing matrix. (“Interest Rate”). Interest for each Interest
Period shall accrue each day during such Interest Period, commencing on and
including the first day to but excluding the last day. “Interest Period” means,
in respect of each Advance, each period commencing on the last day of the
immediately preceding Interest Period and ending on the same day of the month
that interest in respect of such Advance is due 1 month thereafter; provided (i) the
first Interest Period shall commence on the date of such Advance and end on the
first day thereafter that interest in respect of such Advance is due, (ii) any
Interest Period that ends in a month for which there is no day which
numerically corresponds to the last day of the immediately preceding Interest
Period shall end on the last day of the month and (iii) any Interest
Period that would otherwise extend past the maturity date of this Note shall
end on the maturity date of this Note. “LIBOR” means, with respect to each
Interest Period, the  rate for U.S. dollar deposits with
a maturity equal to the number of months specified above, as reported on
Telerate Successor Page 3750 as of 11:00 a.m., London time, on the
second London business day before such Interest Period begins (or if not so
reported, then as determined by the Bank from another recognized source or
interbank quotation).


 


	
  Funded
  Debt (as defined in the Loan Agreement) to EBITDA Ratio (as

  defined in the Loan Agreement)

  	
   

  	
  Applicable Margin

  	
   

  
	
  ≥1.50

  	
   

  	
  2.75

  	
  %

  
	
  >1.00 ≤1.50

  	
   

  	
  2.15

  	
  %

  
	
  < 1.00

  	
   

  	
  1.55

  	
  %

  



 


INDEMNIFICATION. Borrower shall indemnify Bank against Bank’s loss or
expense as a consequence of (a) Borrower’s failure to make any payment
when due under this Note, (b) any payment, prepayment or conversion of any
loan on a day other than the last day of the Interest Period, or (c) any
failure to make a borrowing or conversion after giving notice thereof (“Indemnified
Loss or Expense”). The amount of such Indemnified Loss or Expense shall be
determined by Bank based upon the assumption that Bank funded 100% of that
portion of the loan in the London interbank market.


 


DEFAULT RATE.
In addition to all other rights contained in this Note, if a Default (as
defined herein) occurs and as long as a Default continues, all outstanding
Obligations, other than Obligations under any swap agreements (as defined in 11
U.S.C. § 101, as in effect from time to time) between Borrower and Bank or its
affiliates, shall bear interest at the Interest Rate plus 3% (“Default Rate”).
The Default Rate shall also apply from acceleration until the Obligations or
any judgment thereon is paid in full.


 


INTEREST AND FEE(S) COMPUTATION
(ACTUAL/360). Interest and
fees, if any, shall be computed on the basis of a 360-day year for the actual
number of days in the applicable period (“Actual/360 Computation”). The
Actual/360 Computation determines the annual effective interest yield by taking
the stated (nominal) rate for a year’s period and then dividing said rate by
360 to determine the daily periodic rate to be applied for each day in the
applicable period. Application of the Actual/360 Computation produces an
annualized effective rate exceeding the nominal rate.


 


2

















 


REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly
payments of accrued interest only, commencing on May 31, 2010, and
continuing on the last day of each month thereafter until fully paid. In any
event, all principal and accrued interest shall be due and payable on April 30,
2012.


 


AUTOMATIC DEBIT OF
CHECKING ACCOUNT FOR LOAN PAYMENT. Borrower
authorizes Bank to debit demand deposit account number XXXXXXXXX or any other
account with Bank (routing number XXXXXXXX) designated in writing by Borrower
for any payments due under this Note. Borrower further certifies that Borrower
holds legitimate ownership of this account and preauthorizes this periodic
debit as part of its right under said ownership.


 


TRANSACTION FEE. Borrower shall pay to Bank a transaction fee of $60,000.00
at closing of this Note.


 


UNUSED FEE. Borrower shall pay to Bank a quarterly unused fee of
twenty-two (22) basis points on the average unused portion of this Note during
the quarter.


 


APPLICATION OF
PAYMENTS. Monies
received by Bank from any source for application toward payment of the
Obligations shall be applied to accrued interest and then to principal. If a
Default occurs, monies may be  applied
to the Obligations in any manner or order deemed appropriate by Bank.


 


If
any payment received by Bank under this Note or other Loan Documents is
rescinded, avoided or for any reason returned by Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.


 


DEFINITIONS. Loan
Documents. The term “Loan
Documents”, as used in this Note and the other Loan Documents, refers to all
documents executed in connection with or related to the loan evidenced by this
Note and any prior notes which evidence all or any portion of the loan
evidenced by this Note, and any letters of credit issued pursuant to the Loan
Agreement to which this Note is subject, any applications for such letters of
credit and any other documents executed in connection therewith or related thereto,
and may include, without limitation, a commitment letter that survives closing,
the Loan Agreement, this Note, guaranty agreements, security agreements,
security instruments, financing statements, mortgage instruments, any renewals
or modifications, whenever any of the foregoing are executed, but does not
include swap agreements (as defined in 11 U.S.C. § 101, as in effect from time
to time). Obligations. The term “Obligations”,
as used in this Note and the other Loan Documents, refers to any and all indebtedness
and other obligations under this Note, all other obligations under any other
Loan Document(s), and all obligations under any swap agreements (as defined in
11 U.S.C. § 101, as in effect from time to time) between Borrower and Bank, or
its affiliates, whenever executed. Certain
Other Terms. All terms that are used but not otherwise defined in
any of the Loan Documents shall have the definitions provided in the Uniform
Commercial Code.


 


LATE CHARGE. If any payments are not timely made, Borrower shall also pay
to Bank a late charge equal to 5% of each payment past due for 15 or more days.
This late charge shall not apply to payments due at maturity or by acceleration
hereof.


 


Acceptance
by Bank of any late payment without an accompanying late charge shall not be
deemed a waiver of Bank’s right to collect such late charge or to collect a
late charge for any subsequent late payment received.


 


ATTORNEYS’ FEES AND
OTHER COLLECTION COSTS. Borrower
shall pay all of Bank’s reasonable expenses actually incurred to enforce or
collect any of the Obligations including, without limitation, reasonable
arbitration, paralegals’, attorneys’ and experts’ fees and expenses, whether
incurred without the commencement of a suit, in any trial, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.


 


3

















 


USURY. If at any time the effective interest rate under this Note
would, but for this paragraph, exceed the maximum lawful rate, the effective interest
rate under this Note shall be the maximum lawful rate, and any amount received
by Bank in excess of such rate shall be applied to principal and then to fees
and expenses, or, if no such amounts are owing, returned to Borrower.


 


DEFAULT. If any of the following occurs, a default (“Default”) under
this Note shall exist: Nonpayment;
Nonperformance. The failure
of timely payment or performance of the Obligations or Default under this Note
or any other Loan Documents within ten (10) days of the due date thereof. False Warranty. A warranty or
representation made or deemed made in the Loan Documents or furnished Bank in
connection with the loan evidenced by this Note proves materially false, or if
of a continuing nature, becomes materially false. Cross Default. At Bank’s option, any default in payment or
performance of any obligation under any other loans, contracts or agreements of
Borrower, any Subsidiary or Affiliate of Borrower, any general partner of or
the holder(s) of the majority ownership interests of Borrower with Bank or
its affiliates (“Affiliate” shall have the meaning as defined in 11 U.S.C. §
101, as in effect from time to time, except that the term “Borrower” shall be
substituted for the term “Debtor” therein; “Subsidiary” shall mean any business
in which Borrower holds, directly or indirectly, a controlling interest). Cessation; Bankruptcy. The death of,
appointment of a guardian for, dissolution of, termination of existence of,
loss of good standing status by, appointment of a receiver for, assignment for
the benefit of creditors of, or commencement of any bankruptcy or insolvency
proceeding by or against Borrower, its Subsidiaries or Affiliates, if any, or
any general partner of or the holder(s) of the majority ownership
interests of Borrower, or any party to the Loan Documents. Material Capital Structure or Business Alteration. Without
prior written consent of Bank, (i) a material alteration in the kind or
type of Borrower’s business or that of Borrower’s Subsidiaries or Affiliates,
if any; (ii) the sale of substantially all of the business or assets of
Borrower, any of Borrower’s Subsidiaries or Affiliates or any guarantor, or a
material portion (25% or more) of such business or assets if such a sale is
outside the ordinary course of business of Borrower, or any of Borrower’s
Subsidiaries or Affiliates or any guarantor, or more than 50% of the
outstanding stock or voting power of or in any such entity in a single
transaction or a series of transactions; (iii) the acquisition of
substantially all of the business or assets or more than 50% of the outstanding
stock or voting power of any other entity; or (iv) should any Borrower or
any of Borrower’s Subsidiaries or Affiliates or any guarantor enter into any
merger or consolidation. Material Adverse
Change. Bank determines in
good faith, in its sole discretion, that the prospects for payment or
performance of the Obligations are impaired or there has occurred a material
adverse change in the business or prospects of Borrower, financial or
otherwise.


 


REMEDIES UPON DEFAULT.
If a Default occurs under this
Note or any Loan Documents, Bank may at any time thereafter, take the following
actions: Bank Lien. Foreclose its
security interest or lien against Borrower’s deposit accounts and investment
property with five (5) days written notice to Borrower. Acceleration Upon Default. Accelerate  the
maturity of this Note and, at Bank’s
option, any or all other Obligations, other than Obligations under any swap
agreements (as defined in 11 U.S.C. § 101, as in effect from time to time)
between Borrower and Bank, or its affiliates, which shall be due in accordance
with and governed by the provisions of said swap agreements; whereupon this
Note and the accelerated Obligations shall be immediately due and payable; provided,
however, if the Default is based upon a bankruptcy or insolvency proceeding
commenced by or against Borrower or any guarantor or endorser of this Note, all
Obligations (other than Obligations under any swap agreement as referenced
above) shall automatically and immediately be due and payable. Cumulative. Exercise any rights and
remedies as provided under the Note and other Loan Documents, or as provided by
law or equity.


 


FINANCIAL AND OTHER
INFORMATION. Borrower shall
deliver to Bank such information as Bank may reasonably request from time to
time, including without limitation, financial statements and information
pertaining to Borrower’s financial condition. Such information shall be true,
complete, and accurate.


 


WAIVERS AND
AMENDMENTS. No waivers, amendments
or modifications of this Note and other Loan Documents shall be valid unless in
writing and signed by an officer of Bank. No waiver by Bank of any Default
shall operate as a waiver of any other Default or the same Default on a future
occasion. Neither the failure nor any delay on the part of Bank in exercising
any right, power, or remedy under this Note and 


 


4

















 


other
Loan Documents shall operate as a waiver thereof, nor shall a single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or remedy.


 


Except
to the extent otherwise provided by the Loan Documents or prohibited by law,
each Borrower and each other person liable under this Note waives presentment,
protest, notice of dishonor, demand for payment, notice of intention to
accelerate maturity, notice of acceleration of maturity, notice of sale and all
other notices of any kind. Further, each agrees that Bank may (i) extend,
modify or renew this Note or make a novation of the loan evidenced by this
Note, and/or (ii) grant releases, compromises or indulgences with respect
to any collateral securing this Note, or with respect to any Borrower or other
person liable under this Note or any other Loan Documents, all without notice
to or consent of each Borrower and other such person, and without affecting the
liability of each Borrower and other such person; provided, Bank may not
extend, modify or renew this Note or make a novation of the loan evidenced by
this Note without the consent of the Borrower, or if there is more than one
Borrower, without the consent of at least one Borrower; and further provided,
if there is more than one Borrower, Bank may not enter into a modification of
this Note which increases the burdens of a Borrower without the consent of that
Borrower.


 


MISCELLANEOUS
PROVISIONS. Assignment. This
Note and the other Loan Documents shall inure to the benefit of and be binding
upon the parties and their respective heirs, legal representatives, successors
and assigns. Bank’s interests in and rights under this Note and the other Loan
Documents are freely assignable, in whole or in part, by Bank. In addition,
nothing in this Note or any of the other Loan Documents shall prohibit Bank
from pledging or assigning this Note or any of the other Loan Documents or any
interest therein to any Federal Reserve Bank. Borrower shall not assign its
rights and interest hereunder without the prior written consent of Bank, and
any attempt by Borrower to assign without Bank’s prior written consent is null
and void. Any assignment shall not release Borrower from the Obligations. Applicable Law; Conflict Between Documents. This
Note and, unless otherwise provided in any other Loan Document, the other Loan
Documents shall be governed by and interpreted in accordance with federal law
and, except as preempted by federal law, the laws of the state named in Bank’s
address on the first page hereof without regard to that state’s conflict
of laws principles. If the terms of this Note should conflict with the terms of
the Loan Agreement or any commitment letter that survives closing, the terms of
this Note shall control. Borrower’s Accounts.
Except as prohibited by law, Borrower grants Bank a security
interest in all of Borrower’s deposit accounts and investment property with
Bank and any of its affiliates. Swap
Agreements. All swap agreements (as defined in 11 U.S.C. § 101,
as in effect from time to time), if any, between Borrower and Bank or its
affiliates are independent agreements governed by the written provisions of
said swap agreements, which will remain in full force and effect, unaffected by
any repayment, prepayment, acceleration, reduction, increase or change in the
terms of  this Note, except as otherwise expressly provided in
said written swap agreements, and any payoff statement from Bank relating to
this Note shall not apply to said swap agreements except as otherwise expressly
provided in such payoff statement. Jurisdiction.
Borrower irrevocably agrees to non-exclusive personal jurisdiction
in the state named in the Bank’s address on the first page hereof. Severability. If any provision of this Note
or of the other Loan Documents shall be prohibited or invalid under applicable
law, such provision shall be ineffective but only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Note or other such document. Payments. All payments shall be mailed to
Bank at Commercial Loan Services, P. O. Box 740502, Atlanta, GA 30374-0502; or
other such address as provided by Bank in writing. Notices. Any notices to Borrower shall be sufficiently given,
if in writing and mailed or delivered to the Borrower’s address shown above or
such other address as provided hereunder, and to Bank, if in writing and mailed
or delivered to Wells Fargo Bank, National Association (successor by merger to
Wachovia Bank, National Association), Mail Code VA7628 / R4057-01Z, P. O. Box
13327, Roanoke, VA 24040 or Wells Fargo Bank, National Association (successor
by merger to Wachovia Bank, National Association), Mail Code VA7628 /
R4057-01Z, 7711 Plantation Road, Roanoke, VA 24019 or such other address as
Bank may specify in writing from time to time. Notices to Bank must include the
mail code. In the event that Borrower changes Borrower’s address at any time
prior to the date the Obligations are paid in full, Borrower agrees to promptly
give written notice of said change of address by registered or certified mail,
return receipt requested, all charges prepaid. Plural; Captions. All references in the Loan Documents to
Borrower, guarantor, person, document or other nouns of reference mean both the
singular and plural form, as the  


 


5

















 


case
may be, and the term “person” shall mean any individual, person or entity. The
captions contained in the Loan Documents are inserted for convenience only and
shall not affect the meaning or interpretation of the Loan Documents. Advances. Bank may, in its sole discretion,
make other advances which shall be deemed to be advances under this Note, even
though the stated principal amount of this Note may be exceeded as a result
thereof. Posting of Payments. All
payments received during normal banking hours after 2:00 p.m. local time
at the address for payments set forth above shall be deemed received at the
opening of the next banking day. Joint and
Several Obligations. If there is more than one Borrower, each is
jointly and severally obligated together with all other parties obligated for
the Obligations. Fees and Taxes. Borrower
shall promptly pay all documentary, intangible recordation and/or similar taxes
on this transaction whether assessed at closing or arising from time to time. 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. Patriot Act Notice. To help fight the
funding of terrorism and money laundering activities, Federal law requires all
financial institutions to obtain, verify, and record information that
identifies each person who opens an account. For purposes of this section,
account shall be understood to include loan accounts. Telephone Communication Monitoring. Borrower
agrees that Borrower’s telephone communications with Bank may be monitored
and/or recorded to improve customer service and security. Final Agreement. This Note 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
NOTE, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONNECTION WITH THIS NOTE, 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 NOTE.
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 NOTE.


 


[SIGNATURE
PAGE ATTACHED]


 


6

















 


IN WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be duly executed under seal.


 


	
   

  	
  Force Protection, Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Moody

  	
  (SEAL)

  
	
   

  	
   

  	
  Michael Moody, Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Force Protection Technologies, Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Moody

  	
  (SEAL)

  
	
   

  	
   

  	
  Michael Moody, Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Force Protection Industries, Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Moody

  	
  (SEAL)

  
	
   

  	
   

  	
  Michael Moody, Chief
  Executive Officer

  



 


7