ACCEPTANCE CREDIT AGREEMENT
THIS AGREEMENT is made this 14th day of November, 1996, between ARMOR
HOLDINGS, INC., a Delaware corporation (the "Borrower"), and XXXXXXX BANK,
N.A. (the "Bank").
RECITALS
The Borrower and the Bank have entered into a Loan Agreement (as
amended or restated from time to time, the "Loan Agreement") of even date
herewith. The Loan Agreement contemplates that the Bank will establish a
bankers acceptance facility for the Borrower. This Agreement sets forth the
terms of the facility. All capitalized terms used herein shall have the
meanings set forth in the Loan Agreement unless otherwise defined herein.
NOW, THEREFORE, for good and valuable consideration, the parties
agree as follows:
I. The Borrower hereby requests that the Bank from time to time
accept, for the Borrower's account, drafts in United States Dollars drawn
on the Bank by the Borrower (each a "Draft"). However, not more than
$5,000,000 in aggregate Acceptances (as defined herein) (or such lesser amount
as is set forth in the Loan Agreement) shall be outstanding at any one time.
The parties specifically agree as follows:
(a) The Borrower may from time to time prior to 12:00 noon
on any business day request a quote from the Bank of the All-In Rate
(as defined herein) for an acceptance of Drafts with a certain
maturity and certain aggregate amount (each an "Acceptance"). The
Bank will quote the All-In Rate in effect at the time. The Borrower
immediately thereafter will confirm to the Bank by telephone whether
the Borrower wishes for the Bank to create the Acceptance at the
quoted rate, and, if so, the Bank will, subject to the terms hereof,
issue the Acceptance at the quoted rate. The "All-In Rate" means the
total cost to the Borrower of obtaining the Acceptance and, if
applicable, discounting the Acceptance to the Bank. The All-In Rate
shall include all transaction costs, the applicable discount (which
shall be calculated on the basis of a 360 day year), any commissions
and any and all other charges relating thereto.
(b) Upon the creation of an Acceptance hereunder, the
Borrower will sell the Acceptance at a discount to the Bank. The Bank
shall thereafter deduct the amount of the All-In Rate from the face
amount of the Acceptance and remit the balance to the Borrower. The
Borrower shall pay the full face amount of each Acceptance to the
Bank without deduction in immediately available funds at the
Bank's acceptance office, in United States currency, not later
than the maturity date of the Acceptance. If the Acceptance is not
payable at the
Bank's acceptance office, the Borrower shall make such payment in
time to reach the place of payment not later than the maturity date.
The Borrower agrees that, as more fully set forth in the Loan
Agreement, its obligations to pay the face amount as described above
may be satisfied by the Bank's obtaining an advance under the
Note to reimburse the Bank for payment of any Acceptances upon
maturity thereof.
(c) If amounts due the Bank under the prior paragraph are
not paid by the Borrower as an advance under the Note, the Borrower
shall pay the Bank interest at the Stated Rate (as hereafter defined)
on all amounts remaining unpaid by the Borrower from the due date for
payment thereof until paid. Amounts due hereunder shall not be deemed
unpaid if the Bank has debited the Borrower's deposit accounts
therefor or if an advance has been made under the Note therefor and
such payment has not been set aside as a preference or otherwise. The
Borrower hereby authorizes the Bank to debit its accounts or make
advances for purposes of paying amounts due hereunder. For purposes
hereof, the "Stated Rate" shall equal the Default Rate set forth in
the Note.
(d) The Borrower shall indemnify the Bank from and against
any of the following: (i) all claims, losses or damages to the Bank
arising from any intentional or unintentional misrepresentation by
the Borrower herein or in any certificate made in connection with the
creation of any Acceptance; (ii) all claims, losses or damages to the
Bank in connection with any Draft which is improperly executed,
delivered or authorized by the Borrower or its agents, other than
loss or damage resulting from the Bank's negligence or willful
misconduct; and (iii) all costs and expenses (including reasonable
attorneys' fees and legal expenses) of all claims or legal
proceedings arising from any matter included in the foregoing
clauses, including, without limitation, legal proceedings relating to
any court order, injunction, or other process or decree restraining
or seeking to restrain the Bank from paying any amount under the
Acceptance. The Borrower acknowledges that the Bank's losses or
damages may include additional costs or losses incurred by the Bank
as a result of increased reserve requirements with respect to the
Acceptances.
(e) Without limiting any other provision hereof, if any
Acceptance created hereunder does not, for any reason beyond the
control of the Bank, comply at any time with applicable statutes,
regulations, interpretations or other applicable judicial or
administrative interpretations concerning banker's acceptances
and for such reason is not an acceptance of the type described in
paragraph 7 of Section 13 of the Federal Reserve Act or eligible for
purchase by the Federal Reserve Banks, then, promptly upon obtaining
knowledge of such fact,
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the Bank shall notify the Borrower thereof. Thereafter, upon demand
by the Bank, the Borrower shall pay to the Bank or any participant
hereunder additional amounts sufficient to indemnify the Bank or any
such participant against any additional costs, as determined in good
faith by the Bank, incurred by the Bank or any such participant
(including, but not limited to, costs resulting from a higher
discount rate, reserve requirements, or additional premium liability
to the Federal Deposit Insurance Corporation) in connection with such
Acceptance resulting from such non-compliance or ineligibility.
II. The Borrower certifies that each Draft which may be designated by
it for acceptance by the Bank hereunder will have not more than 90 days'
sight to run and will arise out of a transaction involving (a) the importation
or exportation of goods, (b) the domestic shipment of goods, or (c) the
domestic storage of readily marketable staples, and will not arise from a
transaction in violation of the U.S. Treasury Foreign Assets Control Act. The
parties acknowledge that each Draft created hereunder will ordinarily have a
term of approximately sixty to ninety days.
III. The Borrower agrees that in the event of any extension of the
maturity or time for presentation of Drafts, Acceptances or documents, or any
other modification of the terms of any transaction hereunder, at the
Borrower's request, this Agreement shall be binding upon any action taken
by the Borrower or any of the Bank's correspondents in accordance with
such extension or other modification.
IV. The Borrower shall request the Bank's acceptance of Drafts by
telephone, in writing, or by facsimile. The Borrower shall deliver completed
Drafts or instruct the Bank to complete one or more Drafts drawn on it (a)
signed in blank by the Borrower or its duly authorized agent and held in
custody of the Bank or its agent for the Borrower's account or (b) to be
signed by persons designated in writing by the Borrower. All requests for
Acceptances will be confirmed in writing and include the certification that
(a) no other financing is concurrent, (b) the transaction has not been
refinanced, and (c) the transaction is in compliance with the requirements of
paragraph 2 above. All confirmation of requests for Acceptances shall be made
on an application which is substantially in the form of Exhibit "A" attached
hereto.
V. All Drafts signed in blank and delivered to the Bank by the
Borrower are to be held for safekeeping by the Bank or its agent, and the Bank
or its agent shall exercise reasonable care in the custody and control of the
Drafts with the same degree of care as the Bank or its agent exercise with
respect to bearer instruments or property of a similar nature.
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VI. Each of the following events shall constitute an Event of Default
hereunder: (a) the nonpayment when due of any of the Borrower's obligations
arising hereunder to the Bank; (b) the failure of the Borrower to perform or
observe any of its other terms, covenants, warranties, or representations
contained herein; or (c) any other event constituting an Event of Default
under the Loan Agreement. Upon the occurrence of any Event of Default, the
amount of all outstanding Acceptances, as well as any and all other
liabilities or obligations of the Borrower to the Bank, shall, at the
Bank's option, become due and payable immediately without demand upon or
notice to the Borrower.
VII. The Bank's obligation to accept Drafts hereunder shall
terminate on November 14, 1997. The Bank shall not in any event be required to
accept Drafts hereunder during the continuance of a Default or an Event of
Default hereunder or under the Loan Agreement.
VIII. If there is a determination made by any regulatory body
(including, without limitation, any Federal Reserve Bank) or if there is a
change in, or change in interpretation of, any applicable rule or regulation
(such determination or such change being defined herein as a "Regulatory
Determination"), in any case to the effect, in the judgment of the Bank, that
any Acceptance does not comply with applicable regulations or interpretations
of the Board of Governors of the Federal Reserve System governing banker's
acceptances and for such reason is not an acceptance of the type described in
paragraph 7 of Section 13 of the Federal Reserve Act or eligible for purchase
by Federal Reserve Banks, then, in any such event, the Bank shall have the
right to terminate this Agreement effective on the date on which the Bank
gives notice to the Borrower by telephone of such termination (confirmed in
writing), which notice shall also describe in reasonable detail the nature of
such Regulatory Determination. From and after any such termination, the Bank
shall have no further obligation to accept Drafts hereunder. Such termination
shall not affect the Borrower's then existing obligations or liabilities
to the Bank hereunder.
IX. Upon the occurrence and during the continuance of any Event of
Default, the Bank is hereby authorized at any time and from time to time,
without notice to the Borrower (any such notice being expressly waived by the
Borrower), to set-off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held, including any certificate
of deposit, and other indebtedness at any time owing by the Bank to or for the
credit or the account of the Borrower against any and all of the obligations
of the Borrower now or hereafter existing under this Agreement, irrespective
of whether or not the Bank shall have made any demand under this Agreement.
The Bank agrees promptly to notify the Borrower after any such set-off and
application made by the Bank, on the same business day by telephone and in
writing within three (3) business days thereafter provided that the failure
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to give such notice shall not affect the validity of such set-off and
application. The rights of the Bank under this Paragraph are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which the Bank may have.
X. The Borrower shall make all payments hereunder in lawful money of
the United States. The remedies of the Bank as provided herein shall be
cumulative and concurrent, and may be pursued singly, successively or together,
at the sole discretion of the Bank and may be exercised as often as occasion
therefor shall arise. No act of omission or commission of the Bank, including
specifically any failure to exercise any right, remedy or recourse, shall be
effective, unless set forth in a written document executed by the Bank, and
then only to the extent specifically recited therein. A waiver or release with
reference to one event shall not be construed as continuing, as a bar to, or
as a waiver or release of any subsequent right, remedy or recourse as to any
subsequent event. This Agreement shall be construed and enforced in accordance
with Florida law. This agreement may not be assigned by the Borrower, shall be
binding upon the Borrower, its successors and assigns, and shall inure to the
benefit of, and be enforced by, the Bank, its successors, transferees and
assigns.
The Borrower hereby: (i) waives demand, notice of demand,
presentment for payment, notice of nonpayment or dishonor, protest, notice of
protest and all other notice, filing of suit and diligence to hold it or any
other obligor liable with respect to its obligations hereunder; (ii) agrees to
any substitution, addition or release of any party or person primarily or
secondarily liable hereon; and (iii) agrees that the Bank shall not be
required first to institute any suit, or to exhaust his, their or its remedies
against the Borrower or any other person or party to become liable hereunder,
or against any collateral in order to enforce payment of Borrower's
obligations hereunder.
ARMOR HOLDINGS, INC.
By______________________________________
Its_____________________________________
XXXXXXX BANK, N.A.
By______________________________________
Its_____________________________________
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STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered
before me this ______ day of _____________, 1996, by __________________________
the ___________________________ of Armor Holdings, Inc., on behalf of the
corporation, in Camden County, Georgia.
------------------------------------
Notary Public, State and County
aforesaid
Print Name: ________________________
My Commission Expires:
[Notary Seal]
STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered
before me this _______ day of _____________, 1996, by__________________________
the ___________________________ of Xxxxxxx Bank, N.A., on behalf of the bank,
in Camden County, Georgia.
-----------------------------------
Notary Public, State and County
aforesaid
Print Name: ______________________
My Commission Expires:
[Notary Seal]
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