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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Armor Holdings, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
042260109
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(CUSIP Number)
Warren B. Kanders
Kanders Florida Holdings, Inc.
191 Nassau Place Road, Yulee, FL 32097
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 20, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is subject of this Schedule 13D, and is filing this
statement because of Rule 13d-1(b)(3) or (4), check the following box: / /
Check the following box if a fee is being paid with the statement: / /
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CUSIP No. 042260109 SCHEDULE 13D Page 2 of 5 Pages
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Kanders Florida Holdings, Inc.
IRS I.D. No. 58-2210921
2. Check the Appropriate Box if a Member of a Group (a) / /
(b) /X/
3. SEC Use Only
4. Source of Funds
Not applicable.
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
6. Citizenship or Place of Organization
Delaware
7. Sole Voting Power
4,133,037
Number of Shares
8. Shared Voting Power
Beneficially
-0-
Owned by Each
9. Sole Dispositive Power
Reporting Person
4,133,037
With
10. Shared Dispositive Power
-0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person
4,133,037
12. Check Box if the Aggregate Amount in Row 11
Excludes Certain Shares /X/
13. Percent of Class Represented by Amount in Row 11
39.8%
14. Type of Reporting Person
CO
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Page 3 of 5 Pages
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This Amendment No. 1 to Schedule 13D relates to the Schedule
13D, dated January 26, 1996 (the "Schedule 13D") filed by Kanders Florida
Holdings, Inc. ("KFH") in connection with the shares of common stock, par value
$.01 per share (the "Common Stock"), of Armor Holdings, Inc., a Delaware
corporation (the "Company").
This Amendment No. 1 to Schedule 13D amends the Schedule 13D
by amending the disclosures contained in Items 5(a) and (b) and by adding to the
disclosure contained in Item 6 of the Schedule 13D the additional information
set forth herein.
Item 5. Interest in Securities of the Issuer
Paragraph 1 of Item 5 of the Schedule 13D is hereby deleted in
its entirety and the following is substituted in lieu thereof:
KFH is the owner of 4,133,037 shares of Common Stock. The
4,133,037 shares of Common Stock of the Company that are owned by KFH constitute
approximately 39.8% of the outstanding shares of Common Stock of the Company. On
December 27, 1996, KFH made a charitable contribution of 400,000 shares of
Common Stock of the Company to the Kanders Florida Holdings, Inc. 1996
Charitable Remainder Unitrust (the "Trust"). Warren B. Kanders is a trustee of
the Trust, and in such capacity has the power to vote or direct the vote and to
dispose or direct the disposition of the shares of Common Stock owned by the
Trust. Mr. Kanders, the President, sole director and sole shareholder of KFH,
may be deemed to be the beneficial owner of the shares of Common Stock that are
owned by KFH and the Trust. Mr. Kanders disclaims beneficial ownership of the
shares of Common Stock owned by the Trust. In addition, Mr. Kanders owns 29,141
shares of Common Stock individually. The 4,162,178 shares of Common Stock
collectively owned by KFH and Mr. Kanders constitute approximately 40.1% of the
outstanding shares of Common Stock of the Company.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Company
Item 6 of the Schedule 13D is hereby amended by adding the
following to the end thereof:
On December 20, 1996, KFH entered into a loan transaction
with NationsBank, N.A. ("NationsBank") pursuant to which KFH may
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Page 4 of 5 Pages
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borrow up to $10,000,000 under a revolving credit facility (the "Loan"). The
Loan bears interest at the London Interbank Offered Rate (LIBOR) plus 1.25%. The
obligation of KFH to repay the Loan matures on December 20, 1997. Interest on
the Loan is payable quarterly at the end of each quarter, commencing March 31,
1997. Pursuant to a pledge agreement between KFH and NationsBank dated December
20, 1996 (the "Pledge Agreement"), KFH pledged 3,196,037 shares of Common Stock
of the Company owned by KFH as security for the repayment of the Loan. The
repayment of the Loan is personally guaranteed by Warren B. Kanders, the
President, sole director and sole shareholder of KFH. Mr. Kanders has also
provided certain additional collateral to secure the Loan. In the event of a
default by KFH under the Loan, NationsBank has the right to, among other things,
foreclose on the shares of Common Stock pledged under the Pledge Agreement.
On December 27, 1996, KFH made a charitable contribution of
400,000 shares of Common Stock of the Company owned by KFH to the Trust.
Item 7. Material to be Filed as Exhibits
Item 7 of the Schedule 13D is hereby amended by adding the
following as exhibits thereto:
2. Promissory Note, dated December 20, 1996, in the
principal amount of $10,000,000, issued by KFH in favor of NationsBank.
3. Pledge Agreement, dated December 20, 1996, between
KFH and NationsBank.
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Page 5 of 5 Pages
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Signature
The undersigned, after reasonable inquiry and to the best of
its knowledge and belief, certifies that the information set forth in this
statement is true, complete and correct.
Dated: December 27, 1996
KANDERS FLORIDA HOLDINGS, INC.
By: /s/Warren B. Kanders
--------------------------
Warren B. Kanders
President
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NationsBank, N.A.
PROMISSORY NOTE
Date December 20, 1996 NEW NOTE Amount $10,000,000.00
Maturity Date December 20, 1997
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Bank: Borrower:
NationsBank, N.A. Kanders Florida Holdings, Inc.
Banking Center: c/o Armor Holdings, Inc.
191 Nassau Place Rd.
Private Client Group Yule, FL 32097
767 5th Avenue
New York, NY 10153-0001
County: New York County: Nassau
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FOR VALUE RECEIVED, the undersigned Borrower unconditionally promises to pay to
the order of Bank, its successors and assigns, without setoff, at its offices
indicated at the beginning of this Note, or at such other place as may be
designated by Bank, the principal amount of Ten Million and 00/100 Dollars
($10,000,000.00), or so much thereof as may be advanced from time to time in
immediately available funds, together with interest computed daily on the
outstanding principal balance hereunder, at an annual interest rate, and in
accordance with the payment schedule, indicated below.
[This Note contains some provisions preceded by boxes. If a box is marked, the
provision applies to this transaction; if it not marked, the provision does not
apply to this transaction.]
1. Rate.
Interest shall accrue and be payable on the unpaid Principal Amount from the
date hereof until maturity (whether by acceleration, declaration, extension or
otherwise) at the floating and fluctuating rate of interest (rounded upwards,
if necessary, to the next higher 1/16 of 1%) determined by Bank, in
accordance with its customary general practice from time to time, equal to the
daily London Interbank Offered Rate (expressed as a percentage) for Thirty
(30) day Dollar deposits as would be quoted by the Bank for 11:00 a.m. (London
time) adjusted for required reserves, FDIC premiums and other regulatory costs
(the "Libo Rate"), plus one and one quarter percent (1.25%) per annum. Each
time the Libo Rate changes, the per annum rate of interest on this Note shall
change immediately and contemporaneously with such change in the Libo Rate.
Notwithstanding any provision of this Note, Bank does not intend to charge and
Borrower shall not be required to pay any amount of interest or other charges
in excess of the maximum permitted by the applicable law of the State of North
Carolina; if any higher rate ceiling is lawful, then that higher rate ceiling
shall apply. Any payment in excess of such maximum shall be refunded to
Borrower or credited against principal, at the option of Bank.
2. Accrual Method. Unless otherwise indicated, interest at the Rate set forth
above, will be calculated by the 365/360 day method (a daily amount of
interest is computed for a hypothetical year of 360 days; that amount is
multiplied by the actual number of days for which any principal is outstanding
hereunder). If interest is not to be computed using this method, the method
shall be: N/A.
3. Rate Change Date. Any Rate based on a fluctuating index or base rate will
change, unless otherwise provided, each time and as of the date that the index
or base rate changes. If the Rate is to change on any other date or at any
other interval, the change shall be: N/A. In the event any index is
discontinued, Bank shall substitute an index determined by Bank to be
comparable, in its sole discretion.
4. Payment Schedule. All payments received hereunder shall be applied first
to the payment of any expense or charges payable hereunder or under any other
loan documents executed in connection with this Note, then to interest due and
payable, with the balance applied to principal, or in such other order as Bank
shall determine at its option.
Single Principal Payment. Principal shall be paid in full in a single payment
on December 20, 1997. Interest thereon shall be paid quarterly, commencing on
March 31, 1997, and continuing on the last day of each successive month,
quarter or other period (as applicable) thereafter, with a final payment of
all unpaid interest at the stated maturity of this Note.
5. Revolving Feature.
[X] Borrower may borrow, repay and reborrow hereunder at any time, up to a
maximum aggregate amount outstanding at any one time equal to the principal
amount of this Note, provided, that Borrower is not in default under any
provision of this Note, any other documents executed in connection with this
Note, or any other note or other loan documents now or hereafter executed in
connection with any other obligation of Borrower to Bank, and provided that the
borrowings hereunder do not exceeed any borrowing base or other limitation on
borrowings by Borrower. Bank shall incur no liability for its refusal to advance
funds based upon its determination that any conditions of such further advances
have not been met. In the absence of fraud, bad faith, or mistake, Bank records
of the amounts borrowed from time to time shall be conclusive proof thereof.
[ ] Uncommitted Facility. Borrower acknowledges and agrees that,
notwithstanding any provisions of this Note or any other documents executed
in connection with this Note, Bank has no obligation to make any advance,
and that all advances are at the sole discretion of Bank.
[ ] Out-Of-Debt Period. For a period of at least __ consecutive days during
[ ] each fiscal year, [ ] any consecutive 12-month period, Borrower shall
fully pay down the balance of this Note, so that no amount of principal or
interest and no other obligation under this Note remains outstanding.
1
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6. Automatic Payment.
[ ] Borrower has elected to authorize Bank to effect payment of sums due under
this Note by means of debiting Borrower's account number ________________. This
authorization shall not affect the obligation of Borrower to pay such sums when
due, without notice, if there are insufficient funds in such account to make
such payment in full on the due date thereof, or if Bank fails to debit the
account.
7. Waivers, Consents and Covenants. Borrower, any indorser, or guarantor hereof
or any other party hereto (individually an "Obligor" and collectively
"Obligors") and each of them jointly and severally: (a) waive presentment,
demand, protest, notice of demand, notice of intent to accelerate, notice of
acceleration of maturity, notice of protest, notice of nonpayment, notice of
dishonor, and any other notice required to be given under the law to any Obligor
in connection with the delivery, acceptance, performance, default or enforcement
of this Note, any indorsement or guaranty of this Note, or any other documents
executed in conection with this Note (including without limitation that certain
Pledge Agreement, Collateral Assignment of Interests or Agreement to Maintain
Liquid Assets referred to below in Term 10) or any other note or other loan
documents now or hereafter executed in conection with any obligation of Borrower
to Bank (the "Loan Documents"); (b) consent to all delays, extensions, renewals
or other modifications of this Note or the Loan Documents, or waivers of any
term hereof or of the Loan Documents, or release or discharge by Bank of any of
Obligors, or release, substitution or exchange of any security for the payment
hereof, or the failure to act on the part of Bank, or any indulgence shown by
Bank (without notice to or further assent from any of Obligors), and agree that
no such action, failure to act or failure to exercise any right or remedy by
Bank shall in any way affect or impair the obligations of any Obligors or be
construed as a waiver by Bank of, or otherwise affect, any of Bank's rights
under this Note, under any indorsement or guaranty of this Note or under any of
the Loan Documents; and (c) agree to pay, on demand, all costs and expenses of
collection or defense of this Note or of any indorsement or guaranty hereof
and/or the enforcement or defense of Bank's rights with respect to, or the
administration, supervision, preservation, protection of, or realization upon,
any property securing payment hereof, including, without limitation, reasonable
attorney's fees, including fees related to any suit, mediation or arbitration
proceeding, out of court payment agreement, trial, appeal, bankruptcy
proceedings or other proceeding.
8. Prepayments. Prepayments may be made in whole or in part at any time on any
loan for which the Rate is based on the Prime Rate. All prepayments of principal
shall be applied in the inverse order of maturity, or in such other order as
Bank shall determine in its sole discretion. Except as may be prohibited by
applicable law, no prepayment of any other loan shall be permitted without the
prior written consent of Bank. Notwithstanding such prepayment prohibition,
if there is a prepayment of any such loan, whether by consent of Bank, or
because of acceleration or otherwise, Borrower shall, within 15 days of any
request by Bank, pay to Bank, unless prohibited by applicable law, any loss or
expense which Bank may incur or sustain as a result of such prepayment. For the
purposes of calculating the amounts owed only, it shall be assumed that Bank
actually funded or committed to fund the loan through the purchase of an
underlying deposit in an amount and for a term comparable to the loan, and such
determination by Bank shall be conclusive, absent a manifest error in
computation.
9. Delinquency Charge. To the extent permitted by law, a delinquency charge may
be imposed in an amount not to exceed four percent (4%) of the unpaid portion of
any payment that is more than fifteen days late. Unless the terms of this Note
call for repayment of the entire balance of this Note (both principal and
interest) in a single payment and not for installments of interest or principal
and interest, the 4% delinquency charge may be imposed not only with respect to
regular installments of principal or interest or principal and interest, but
also with respect to any other payment in default under this Note (other than a
previous delinquency charge), including without limitation a single payment of
principal due at the maturity of this Note. In the event any installment, or
portion thereof, is not paid in a timely manner, subsequent payments will be
applied first to the past due balance (which shall not include any previous
delinquency charges), specifically to the oldest maturing installment, and a
separate delinquency charge will be imposed for each payment that becomes due
until the default is cured.
10. Events of Default. The following are events of default hereunder: (a) the
failure to pay or perform any obligation, liability or indebtedness of any
Obligor to Bank, or to any affiliate or subsidiary of NationsBank Corporation,
whether under this Note or any Loan Documents, as and when due (whether upon
demand, at maturity or by acceleration); (b) the failure to pay or perform any
other material obligation, liability or indebtedness of any Obligor to any other
party, including, without limitation, the failure of Borrower to comply with the
provisions of that certain Collateral Maintenance Agreement or that certain
Agreement to Maintain Liquid Assets both of even date herewith between Bank and
Warren B. Kanders; (c) the death of any Obligor (if an individual); (d) the
resignation or withdrawal of any partner or a material owner/Guarantor of
Borrower, as determined by Bank in its sole discretion; (e) the commencement of
a proceeding against any Obligor for dissolution or liquidation, the voluntary
or involuntary termination or dissolution of any Obligor or the merger or
consolidation of any Obligor with or into another entity; (f) the insolvency of,
the business failure of, the appointment of a custodian, trustee, liquidator or
receiver for or for any of the property of, the assignment for the benefit of
creditors by, or the filing of a petition under bankruptcy, insolvency or
debtor's relief law or the filing of a petition for any adjustment of
indebtedness, composition or extension by or against any Obligor; (g) the
determination by Bank that any representation or warranty made to Bank by any
Obligor in any Loan Documents or otherwise is or was, when it was made, untrue
or misleading in any material respect; (h) the failure of any Obligor to timely
deliver such financial statements, including tax returns, other statements of
condition or other information, as Bank shall reasonably request from time to
time; (i) the entry of a judgment against any Obligor which Bank deems to be of
a material nature, in Bank's sole discretion; (j) the seizure or forfeiture of,
or the issuance of any writ of possession, garnishment or attachment, or any
turnover order for any property of any Obligor; (k) the determination by Bank in
good faith that it is insecure for any reason; (l) the determination by Bank
that a material adverse change has occurred in the financial condition of any
Obligor; (m) the failure of Borrower's business to comply with any material law
or regulation controlling its operation, the failure to comply with which would
have a material adverse consequence; or (n) the occurrence of an event of
default under that certain Pledge Agreement of even date herewith from Borrower
to Bank or that certain Collateral Assignment of Interests or Agreement to
Maintain Liquid Assets also of even date herewith from Warren B. Kanders.
11. Remedies upon Default. Whenever there is a default under this Note (a) the
entire balance outstanding hereunder and all other obligations of any Obligor to
Bank (however acquired or evidenced) shall, at the option of Bank, become
immediately due and payable and any obligation of Bank to permit further
borrowing under this Note shall immediately cease and terminate, and/or (b) to
the extent permitted by law, the Rate of Interest on the unpaid principal shall
be increased at Bank's discretion up to the maximum rate allowed by law, or if
none, 25% per annum (the "Default Rate"). The provisions herein for a Default
Rate and a delinquency charge shall not be deemed to extend the time for any
payment hereunder or to constitute a "grace period" giving Obligors a right to
cure any default. At Bank's option, any accrued and unpaid interest, fees or
charges may, for purposes of computing and accruing interest on a daily basis
after the due date of the Note or any installment thereof, be deemed to be a
part of the principal balance, and interest shall accrue on a daily compounded
basis after such date at the Default Rate provided in this Note until the entire
outstanding balance of principal and interest is paid in full. Bank is hereby
authorized at any time to set off and charge
2
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against any deposit accounts of any Obligor, as well as any money, instruments,
securities, documents, chattel paper, credits, claims, demands, income and any
other property, rights and interests of any Obligor which at any time shall come
into the possession or custody or under the control of Bank or any of its
agents, affiliates or correspondents, without notice or demand, any and all
obligations due hereunder. Additionally, Bank shall have all rights and
remedies available under each of the Loan Documents (including without
limitation the Pledge Agreement and Collateral Assignment of Interests referred
to above in Term 10), as well as all rights and remedies available at law or in
equity.
12. Non-Waiver. The failure at any time of Bank to exercise any of its options
or any other rights hereunder shall not constitute a waiver thereof, nor shall
it be a bar to the exercise of any of its options or rights at a later date. All
rights and remedies of Bank shall be cumulative and may be pursued singly,
successively or together, at the option of Bank. The acceptance by Bank of any
partial payment shall not constitute a waiver of any default or of any of Bank's
rights under this Note. No waiver of any of its rights hereunder, and no
modification or amendment of this Note, shall be deemed to be made by Bank
unless the same shall be in writing, duly signed on behalf of Bank; each such
waiver shall apply only with respect to the specific instance involved, and
shall in no way impair the rights of Bank or the obligations of Obligor to Bank
in any other respect at any other time.
13. Applicable Law, Venue and Jurisdiction. This Note and the rights and
obligations of Borrower and Bank shall be governed by and interpreted in
accordance with the law of the State of North Carolina. In any litigation in
connection with or to enforce this Note or any indorsement or guaranty of this
Note or any Loan Documents, Obligors, and each of them, irrevocably consent to
and confer personal jurisdiction on the courts of the State of North Carolina or
the United States located within the State of North Carolina and expressly waive
any objections as to venue in any such courts. Nothing contained herein shall,
however, prevent Bank from bringing any action or exercising any rights within
any other state or jurisdiction or from obtaining personal jurisdiction by any
other means available under applicable law.
14. Partial Invalidity. The unenforceability or invalidity of any provision of
this Note shall not affect the enforceability or validity of any other
provision herein and the invalidity or unenforceability of any provision of this
Note or of the Loan Documents to any person or circumstance shall not affect the
enforceability or validity of such provision as it may apply to other persons or
circumstances.
15. Binding Effect. This Note shall be binding upon and inure to the benefit
of Borrower, Obligors and Bank and their respective successors, assigns, heirs
and personal representatives, provided, however, that no obligations of Borrower
or Obligors hereunder can be assigned without prior written consent of Bank.
16. Controlling Document. To the extent that this Note conflicts with or is in
any way incompatible with any other Loan Document concerning this obligation,
the Note shall control over any other document, and if the Note does not address
an issue, then each other document shall control to the extent that it deals
most specifically with an issue.
17. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN
THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGEMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY
TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF ANY
BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT, AGREEMENT
OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF
J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN
THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL
BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL BE
DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR
DOCUMENT; OR (ii) BE A WAIVER BY BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE
RIGHT OF BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED
TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH
AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT
OF A RECEIVER. BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
Borrower represents to Bank that the proceeds of this loan are to be used
primarily for business, commercial or agricultural purposes. Borrower
acknowledges having read and understood, and agrees to be bound by, all terms
and conditions of this Note and hereby executes this Note under seal as of the
date here above written.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Borrower
Kanders Florida Holdings, Inc.
B: /s/ Warren B. Kanders (Seal)
--------------------------
Name: Warren B. Kanders
------------------------
Title: President
------------------------
3
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Date: December 20, 1996
Pledge Agreement
===============================================================================
BANK/SECURED PARTY: PLEDGOR(S)/DEBTOR(S):
NationsBank, N.A.
Banking Center:
Kanders Florida Holdings, Inc.
Private Client Group c/o Armor Holdings, Inc.
767 5th Avenue 191 Nassau Place Rd.
New York, NY 10153-0001 Yulee, FL 32097
County: New York County: Nassau
===============================================================================
Pledgor/Debtor is: An corporation
Address is Pledgor's/Debtor's: Place of business
===============================================================================
1. Security Interest. For good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Pledgor/Debtor (hereinafter referred
to as "Pledgor") pledges, assigns and grants to Bank a security interest and
lien in the Collateral (hereinafter defined) to secure the payment and the
performance of the Obligation (hereinafter defined).
2. Collateral. The security interest is granted in the following
collateral (the "Collateral"):
A. Description of Collateral.
Specific Investment Property/Securities: The following investment
property and/or securities, together with all investment property and/or
securities hereafter delivered to Bank in substitution therefor or in
addition thereto: 3,196,037 shares of Armor Holdings, Inc., formerly
known as American Body Armor & Equipment, common stock certificate
numbers AH 0081, AH 0082, NU 5516;
CUSIP number 042260 10 9.
It is contemplated by the parties that Pledgor may provide additional
collateral from time to time hereunder as additional security for the
Obligation, and may from time to time with the prior written consent of
Bank sell or otherwise dispose of any Collateral provided that Pledgor
provides Bank with substitute collateral. At the time of each addition
or substitution of Collateral, the securities added or substituted shall
be identified on a Pledge Certificate, substantially in the form of
Schedule II attached hereto (the "Pledge Certificate"), and delivered to
Bank. Bank has no obligation to make any advances requested in
connection therewith unless (i) such additional and/or substituted
Collateral is satisfactory to Bank and (ii) the perfected security
interest granted to Bank therein is completed to the satisfaction of
Bank. All such additional and/or substituted Collateral shall be
Collateral for purposes of this Agreement, and shall secure the
Obligation in the same manner as the Collateral for which it is added to
and/or substituted.
B. Proceeds. All additions, substitutes and replacements for and
proceeds of the above Collateral (including all income and benefits
resulting from any of the above, such as dividends payable or
distributable in cash, property or stock; interest, premium and
principal payments; redemption proceeds and subscription rights; and
shares or other proceeds of conversions or splits of any securities in
the Collateral). Any investment property and/or securities received by
Pledgor, which shall comprise such additions, substitutes and
replacements for, or proceeds of, the Collateral, shall be held in trust
for Bank and shall be delivered immediately to Bank. Any cash proceeds
shall be held in trust for Bank and upon request shall be delivered
immediately to Bank.
3. Obligation.
A. Description of Obligation. The following obligations
("Obligation") are secured by this Agreement:
i. Promissory Note: All debt arising under promissory note dated
December 20, 1996 in the principal face amount of $10,000,000.00
executed by Kanders Florida Holdings, Inc. ("Borrower") payable to the
order of NationsBank, N.A., and any and all renewals, extensions and
rearrangements thereof;
ii. All costs and expenses incurred by Bank, including attorney's
fees, to obtain, preserve, perfect, enforce and defend this Agreement
and maintain, preserve, collect and realize upon the Collateral,
together with interest thereon at the highest rate allowed by law, or if
none, 25% per annum;
iii. All amounts which may be owed to Bank pursuant to all other
loan documents executed in connection with the indebtedness described in
subpart i. above.
In the event any amount paid to Bank on any Obligation is subsequently
recovered from Bank in or as a result of any bankruptcy, insolvency or
fraudulent conveyance proceeding involving an obligor of the Obligation
other than Pledgor, Pledgor shall be liable to Bank for the amounts so
recovered up to the fair market value of the Collateral whether or not
the Collateral has been released or the security interest terminated. In
the event the Collateral has been released or the security interest
terminated, the fair market value of the Collateral shall be determined,
at Bank's option, as of the date the Collateral was released, the
security interest terminated, or said amounts were recovered.
B. Use of Proceeds. The proceeds of any indebtedness or obligation
secured by the Collateral will not be used directly or indirectly to
purchase or carry any "margin stock" as that term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, or
extend credit to or invest in other parties for the pupose of purchasing
or carrying any such "margin stock," or to reduce or retire any
indebtedness incurred for such purpose or otherwise in a manner which
would violate Regulations G, T or U.
4. Pledgor's Warranties. Pledgor hereby represents and warrants to Bank
as follows:
A. Financing Statements. Except as may be noted by schedule attached
hereto and incorporated herein by reference, no financing statement
covering the Collateral is or will be on file in any public office,
except the financing statements relating to this security interest, and
no security interest, other than the one herein created, has attached or
been perfected in the Collateral or any part thereof.
B. Ownership. Pledgor owns, or will use the proceeds of any loans by
Bank to become the owner of, the Collateral free from any setoff, claim,
restriction, lien, security interest or encumbrance except liens for
taxes not yet due and payble and the security interest hereunder.
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C. Power and Authority. Pledgor has full power and authority to make this
Agreement, and all necessary consents and approvals of any persons, entities,
governmental or regulatory authorities and securities exchanges have been
obtained to effectuate the validity of this Agreement.
5. Pledgor's Covenants. Until full payment and performance of all of the
Obligation and termination or expiration of any obligation or commitment of Bank
to make advances or loans to Borrower, unless Bank otherwise consents in
writing:
A. Obligation and This Agreement. Pledgor shall perform all of its
agreements herein and in any other agreements between it and Bank.
B. Ownership of Collateral. Pledgor shall defend the Collateral against all
claims and demands of all persons at any time claiming any interest therein
adverse to Bank. Pledgor shall keep the Collateral free from all liens and
security interests except those for taxes not yet due and payable and the
security interest hereby created.
C. Bank's Costs. Pledgor shall pay all costs necessary to obtain, preserve,
perfect, defend and enforce the security interest created by this Agreement,
collect the Obligation, and preserve, defend, enforce and collect the
Collateral, including but not limited to taxes, assessments, reasonable
attorney's fees, legal expenses and expenses of sales. Whether the Collateral is
or is not in Bank's possession, and without any obligation to do so and without
waiving Pledgor's default for failure to make any such payment, Bank at its
option may pay any such costs and expenses and discharge encumbrances on the
Collateral, and such payments shall be a part of the Obligation and bear
interest at the rate set out in the Obligation. Pledgor agrees to reimburse Bank
on demand for any costs so incurred.
D. Information and Inspection. Pledgor shall (i) promptly furnish Bank any
information with respect to the Collateral requested by Bank; (ii) allow Bank or
its representatives to inspect and copy, or furnish Bank or its representatives
with copies of, all records relating to the Collateral and the Obligation; and
(iii) promptly furnish Bank or its representatives with any other information
Bank may reasonably request.
E. Additional Documents. Pledgor shall sign and deliver any papers furnished
by Bank which are necessary or desirable in the judgment of Bank to obtain,
maintain and perfect the security interest hereunder and to enable Bank to
comply with any federal or state law in order to obtain or perfect Bank's
interest in the Collateral or to obtain proceeds of the Collateral.
F. Notice of Changes. Pledgor shall notify Bank immediately of (i) any
material change in the Collateral, (ii) a change in Pledgor's residence or
location, (iii) a change in any matter warranted or represented by Pledgor in
this Agreement, or in any of the loan documents relating to the Obligation or
furnished to Bank pursuant to this Agreement, and (iv) the occurrence of an
Event of Default as defined herein.
G. Possession of Collateral. Pledgor shall deliver a copy of this Agreement
(other notice acceptable to Bank) to any Broker, financial intermediary, or any
other person in possession of any of the Collateral or on whose books the
interest of Pledgor in the Collateral appears, and such delivery shall
constitute notice to such person of Bank's security interest in the Collateral
and shall constitute Pledgor's instruction to such person to note Bank's
security interest on their books and records, or deliver to Bank certificates or
other evidence of the Collateral promptly upon Bank's request, Pledgor shall
deliver all investment securities and other instruments and documents which
are a part of the Collateral and in Pledgor's possession to Bank immediately,
or if hereafter acquired, immediately following acquisition, in a form suitable
for transfer by delivery or accompanied by duly executed instruments of transfer
or assignment in blank with signatures appropriately guaranteed in form and
substance suitable to Bank.
H. Change of Name/Status. Pledgor shall not change its name, change its
corporate status, use any trade name or engage in any business not reasonably
related to its business as presently conducted.
I. Power of Attorney. Pledgor appoints Bank and any officer thereof as
Pledgor's attorney-in-fact with full power in Pledgor's name and on Pledgor's
behalf upon and during the continuance of an Event of Default, to do every act
which Pledgor is obligated to do or may be required to do hereunder; however,
nothing in this paragraph shall be construed to obligate Bank to take any action
hereunder nor shall Bank be liable to Pledgor for failure to take any action
hereunder. This appointment shall be deemed a power coupled with an interest and
shall not be terminable as long as the Obligation is outstanding and shall not
terminate on the disability or incompetence of Pledgor. Without limiting the
generality of the foregoing, upon and during the continuance of an Event of
Default, Bank shall have the right and power to receive, indorse and collect all
checks and other orders for the payment of money made payable to Pledgor
representing any dividend, interest payment or other distribution payable in
respect of the Collateral or any part thereof.
J. Other Parties and Other Collateral. No renewal or extensions of or any
other indulgence with respect to the Obligation or any part thereof, no
modification of the document(s) evidencing the Obligation, no release of any
security, no release of any person (including any maker, indorser, guarantor or
surety) liable on the Obligation, no delay in enforcement of payment, and no
delay or omission or lack of diligence or care in exercising any right or power
with respect to the Obligation or any security therefor or guaranty thereof or
under this Agreement shall in any manner impair or affect the rights of Bank
under any law, hereunder, or under any other agreement pertaining to the
Collateral. Bank need not file suit or assert a claim for personal judgment
against any person for any part of the Obligation or seek to realize upon any
other security for the Obligation, before foreclosing or otherwise realizing
upon the Collateral. Pledgor waives any right that can be waived to the benefit
of or to require or control application of any other security or proceeds
thereof, and agrees that Bank shall have no duty or obligation to Pledgor to
apply to the Obligation any such other security or proceeds thereof.
K. Waivers by Pledgor. Pledgor waives notice of creation, advance, increase,
existence, extension or renewal of, and of any indulgence with respect to, the
Obligation; waives presentment, demand, notice of dishonor, and protest; waives
notice of the amount of the Obligation outstanding at any time, notice of any
change in financial condition of any person liable for the Obligation or any
part thereof, notice of any Event of Default, and all other notices respecting
the Obligation; and agrees that maturity of the Obligation and any part thereof
may be accelerated, extended or renewed one or more times by Bank in its
discretion, without notice to Pledgor. Pledgor waives any right to require that
any action be brought against any other person or to require that resort be had
to any other security or to any balance of any deposit account. Pledgor further
waives any right of subrogation or to enforce any right of action against any
other pledgor until the Obligation is paid in full.
L. Additional Provisions. If one or more Riders to this Agreement are
executed by Pledgor, the covenants and provisions of each such Rider shall be
incorporated by reference into this Agreement.
6. Maintenance of Collateral. Pledgor acknowledges that Warren B. Kanders,
as guarantor of the Obligation, will enter or has entered into a Collateral
Maintenance Agreement with Bank, which if in default will constitute an Event of
Default hereunder.
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A. General. Bank, before or after default, without liability to Pledgor
may: take control of proceeds, including stock received as dividends or by
reason of stock splits; release the Collateral in its possession to any Pledgor,
temporarily or otherwise; require additional Collateral; reject as
unsatisfactory any property hereafter offered by Pledgor as collateral; take
control of funds generated by the Collateral, such as cash dividends, interest
and proceeds, and use same to reduce any part of the Obligation and exercise all
other rights which an owner of such Collateral may exercise, except the right to
vote or dispose of the Collateral before an Event of Default; and at any time
transfer any of the Collateral or evidence thereof into its own name or that of
its nominee. Bank shall not be liable for failure to collect any account or
instruments, or for any act or omission on the part of Bank, its officers,
agents or employees, except for its or their own willful misconduct or gross
negligence. The foregoing rights and powers of Bank will be in addition to, and
not a limitation upon, any rights and powers of Bank given by law, elsewhere in
this Agreement, or otherwise.
B. Convertible Collateral. Bank may present for conversion any
Collateral which is convertible into any other instrument or investment
security or a combination thereof with cash, but Bank shall not have any
duty to present for conversion any Collateral unless it shall have
received from Pledgor detailed written instructions to that effect at a
time reasonably far in advance of the final conversion date to make such
conversion possible.
8. Default.
A. Event of Default. An event of default ("Event of Default") shall
occur (a) if Pledgor or any other obligor on or guarantor of all or part
of the Obligation shall fail to timely and properly pay or observe, keep
or perform any term, convenant, agreement or condition in this Agreement
or in any other agreement between Pledgor and Bank or between Bank and
any other obligor on or guarantor of the Obligation, including but not
limited to any other note, guaranty, or instrument, loan agreement,
security agreement, deed of trust, mortgage, promissory note, assignment or
other agreement or instrument concerning the Obligation; or (b) if
Pledgor or such other obligor or guarantor shall fail to timely and
properly pay or observe, keep or perform any term, convenant, agreement
or condition in any agreement between such party and any affiliate or
subsidiary of NationsBank Corporation; or (c) if that certain Collateral
Maintenance Agreement dated of even date herewith between Warren B.
Kanders and Bank shall be in default.
B. Rights and Remedies. If any Event of Default shall occur, then,
in each and every such case, Bank may, without (a) presentment, demand,
or protest, (b) notice of default, dishonor, demand, non-payment, or
protest, (c) notice of intent to accelerate all or any part of the
Obligation, (d) notice of acceleration of all or any part of the
Obligation, or (e) notice of any other kind, all of which Pledgor hereby
expressly waives (except for any notice required under this Agreement,
any other loan document or which may not be waived under applicable
law), at any time thereafter exercise and/or enforce any of the
following rights and remedies, at Bank's option:
i. Acceleration. The Obligation shall, at Bank's option, become
immediately due and payable, and the obligation, if any, of Bank to
permit further borrowings under the Obligation shall at Bank's option
immediately cease and terminate.
ii. Liquidation of Collateral. Sell, or instruct any Agent or
Broker to sell, all or any part of the Collateral in a public or
private sale, direct any Agent or Broker to liquidate all or any part of
any Account and deliver all proceeds thereof to Bank and apply all
proceeds to the payment of any or all of the Obligation in such order
and manner as Bank shall, in its discretion, choose.
iii. Uniform Commercial Code. All of the rights, powers and
remedies of a secured creditor under the Uniform Commercial Code ("UCC")
as adopted in the jurisdiction to which Bank is subject under this
Agreement.
iv. Right of Set Off. Without notice or demand to Pledgor, set
off and apply against any and all of the Obligation any and all deposits
(general or special, time or demand, provisional or final) and any other
indebtedness, at any time held or owing by Bank or by any of Bank's
affiliates or correspondents to or for the credit of the account of
Pledgor or any guarantor or indorser of Pledgor's Obligation.
Pledgor specifically understands and agrees that any sale by Bank of all
or part of the Collateral pursuant to the terms of this Agreement may be
effected by Bank at times and in manners which could result in the
proceeds of such sale as being significantly and materially less than
might have been received if such sale had occurred at different times or
in different manners, and Pledgor hereby releases Bank and its officers
and representatives from and against any and all obligations and
liabilities arising out of or related to the timing or manner of any
such sale.
If, in the opinion of Bank, there is any question that a public sale or
distribution of any Collateral will violate any state or federal
securities law, Bank may offer and sell such Collateral in a transaction
exempt from registration under federal securities law, and any such sale
made in good faith by Bank shall be deemed "commercially reasonable."
9. General.
A. Parties Bound. Bank's rights hereunder shall insure to the benefit of
its successors and assigns, and in the event of any assignment or
transfer of any of the Obligation or the Collateral, Bank thereafter
shall be fully discharged from any responsibility with respect to the
Collateral so assigned or transferred, but Bank shall retain all rights
and powers hereby given with respect to any of the Obligation or the
Collateral not so assigned or transferred. All repesentations,
warranties and agreements of Pledgor, if more than one, are joint and several
and all shall be binding upon the personal representatives, heirs, successors
and assigns of Pledgor.
B. Waiver. No delay of Bank in exercising any power or right shall operate
as a waiver thereof; nor shall any single or partial exercise of any power or
right preclude other or further exercise thereof or the exercise of any other
power or right. No waiver by Bank of any right hereunder or of any default by
Pledgor shall be binding upon Bank unless in writing, and no failure by Bank to
exercise any power or right hereunder or waiver of any default by Pledgor shall
operate as a waiver of any other or further exercise of such right or power or
of any further default. Each right, power and remedy of Bank as provided for
herein or in any of the loan documents related to the Obligation, or which shall
now or hereafter exist at law or in equity or by statute or otherwise, shall be
cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by Bank of any one or
more of such rights, powers or remedies shall not preclude the simultaneous or
later exercise by Bank of any or all other such rights, powers or remedies.
C. Agreement Continuing. This Agreement shall constitute a continuing
agreement. If the Obligation consists of All Debt, this Agreement shall apply to
all future as well as existing transactions, whether or not of the character
contemplated at the date of this Agreement, and if all transactions between Bank
and Pledgor shall be closed at any time, shall be equally applicable to any new
transactions thereafter. Provisions of this Agreement, unless by their terms
exclusive, shall be in addition to other agreements between the parties. Time is
of the essence of this Agreement.
D. Definitions. Unless the context indicates otherwise, definitions in the
UCC apply to words and phrases in this Agreement; if UCC definitions conflict,
Article 8 and/or 9 definitions apply.
E. Notice. Notice shall be deemed reasonable if mailed postage prepaid at
least 5 days before the related action (or if the UCC elsewhere specifies a
longer period, such longer period) to the address of Pledgor given above. Each
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notice, request and demand shall be deemed given or made, if sent by mail, upon
the earlier of the date of receipt or five (5) days after deposit in the U.S.
Mail, first class postage prepaid, or if sent by any other means, upon delivery.
F. Modifications. No provision hereof shall be modified or limited except
by a written agreement expressly referring hereto and to the provisions so
modified or limited and signed by Pledgor and Bank. The provisions of this
Agreement shall not be modified or limited by course of conduct or usage of
trade.
G. Partial Invalidity. The unenforceability or invalidity of any provision
of this Agreement shall not affect the enforceability or validity of any other
provision herein, and the invalidity or unenforceability of any provision of any
loan document related to the Obligation to any person or circumstance shall not
affect the enforceability or validity of such provision as it may apply to other
persons or circumstances.
H. Applicable Law and Venue. This Agreement has been delivered in the
State of North Carolina and shall be construed in accordance with the laws of
that State. It is performable by Pledgor in the county or city of Bank's
address set out above and Pledgor expressly waives any objection as to venue in
any such location. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Agreement.
I. Financing Statement. To the extent permitted by applicable
law, a carbon, photographic or other reproduction of this Agreement or
any financing statement covering the Collateral shall be sufficient as a
financing statement.
J. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN
THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY
TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
i. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF ANY
BORROWER'S DOMICILE, OR IF THERE IS REAL OR PERSONAL PROPERTY COLLATERAL, IN THE
COUNTY WHERE SUCH REAL OR PERSONAL PROPERTY IS LOCATED AT THE TIME OF THE
EXECUTION OF THIS INSTRUMENT, AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S.
WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM
ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL
SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND
FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
ii. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL BE
DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR
DOCUMENT; OR (II) BE A WAIVER BY BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE
RIGHT OF BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED
TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH
AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT
OF A RECEIVER. BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
K. Controlling Document. To the extent that this Agreement conflicts with
or is in any way incompatible with any other loan document concerning the
Obligation, any promissory note shall control over any other document, and if
such promissory note does not address an issue, then each other loan document
shall control to the extent that it deals most specifically with an issue.
L. Execution Under Seal. This Agreement is being executed under seal by
Pledgor(s).
M. NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND ANY OTHER
DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed under seal by their duly authorized representatives as of the date
first above written.
Bank/Secured Party: Pledgor(s)/Debtor(s):
NationsBank, N.A. Kanders Florida Holdings, Inc.
By: /s/ Rosemary T. Vrablic SVP By: /s/ Warren B. Kanders (Seal)
--------------------------- ---------------------
Name: Rosemary T. Vrablic Name: Warren B. Kanders
Title: Senior Vice President Title: President
