**Exhibit 10.5**

 

**MODIFICATION NUMBER ONETO PROMISSORY NOTE**

 

Force Protection, Inc.9801 Highway 78Ladson, South Carolina 29456

 

Force Protection Technologies, Inc. 9801 Highway 78Ladson, South Carolina 29456

 

Force Protection Industries, Inc.9801 Highway 78Ladson, South Carolina 29456(Individually and collectively, “Borrower”)

 

Wachovia Bank, National Association 177 Meeting Street, Suite 450Charleston, South Carolina 29401 (Hereinafter referred to as “Bank”)

 

THIS AGREEMENT is entered into effective as of September 30, 2007by 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 originalprincipal 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 theagreements contained herein, the parties agree as follows:

 

**AGREEMENT**

 

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

 

**MODIFICATIONS.**

 

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

 

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

 

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

 

**ACKNOWLEDGMENTS AND REPRESENTATIONS.** Borroweracknowledges and represents that the Note and other Loan Documents, as amendedhereby, are in full force and effect without any defense, counterclaim, rightor claim of set-off; that, after giving effect to this Agreement, no default orevent that with the passage of time or giving of notice would constitute adefault under the Loan Documents has occurred, all representations andwarranties contained in the Loan Documents are true and correct as of thisdate, all necessary action to authorize the execution and delivery of thisAgreement has been taken; and this Agreement is a modification of an existingobligation and is not a novation.

 

**COLLATERAL.** Borrower acknowledges and confirmsthat there have been no changes in the ownership of any collateral pledged tosecure the Obligations (the “Collateral”) since the Collateral was originallypledged; Borrower acknowledges and confirms that the Bank has existing, validfirst priority security interests and liens in the Collateral; and that suchsecurity interests and liens shall secure Borrower’s Obligations, including anymodification of the Note or Loan Agreement, if any, and all futuremodifications, extensions, renewals and/or replacements of the Loan Documents.

 

**RENEWAL FEE.** Borrower shall pay to Bank arenewal fee of $100,000 at the signing of this Agreement. Upon closing asyndicated credit facility with Wachovia Capital Markets as sole lead arrangerand book runner, all of this fee will be credited toward any fees charged undersuch syndicated credit facility.

 

**MISCELLANEOUS.** This Agreement shall beconstrued in accordance with and governed by the laws of the applicable stateas originally provided in the Loan Documents, without reference to that state’sconflicts of law principles. This Agreement and the other Loan Documentsconstitute the sole agreement of the parties with respect to the subject matterthereof and supersede all oral negotiations and prior writings with respect tothe subject matter thereof. No amendment of this Agreement, and no waiver ofany one or more of the provisions hereof shall be effective unless set forth inwriting and signed by the parties hereto. The illegality, unenforceability orinconsistency of any provision of this Agreement shall not in any way affect orimpair the legality, enforceability or consistency of the remaining provisionsof this Agreement or the other Loan Documents. This Agreement and the otherLoan Documents are intended to be consistent. However, in the event of anyinconsistencies among this Agreement and any of the Loan Documents, the termsof this Agreement, and then the Note, shall control. This Agreement may be executedin any number of counterparts and by the different parties on separatecounterparts. Each such counterpart shall be deemed an original, but all suchcounterparts shall together constitute one and the same agreement. Terms usedin this Agreement which are capitalized and not otherwise defined herein shallhave the meanings ascribed to such terms in the Note. **LIMITATIONON LIABILITY; WAIVER OF PUNITIVE DAMAGES.** EACH OF THE PARTIESHERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL,MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN ORAMONG 

 

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THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THISAGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN ORAMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENTSHALL 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 OREXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE INCONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME ISRESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. **Final Agreement.** This Agreement and the other Loan Documentsrepresent the final agreement between the parties and may not be contradictedby 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 PERMITTEDBY APPLICABLE LAW, EACH OF BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCEHEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVETO 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 AGREEMENTCONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OFCONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONSOF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TOBANK TO ACCEPT THIS AGREEMENT. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOFSHALL SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OFDISPUTES BETWEEN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHERDOCUMENT OR AGREEMENT HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO ORBEING REPLACED, SUPPLEMENTED, EXTENDED OR MODIFIED BY, THIS AGREEMENT.

 

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**IN WITNESS WHEREOF,** the undersigned have dulysigned 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 |   |

 

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