MASTER AGREEMENT
Exhibit
10.1
This
Master Agreement dated as of July 25, 2008, is by and between Ironclad
Performance Wear Corporation, a California corporation (the "Manager"), and
EPK
Financial Corporation, a Texas corporation ("EPK").
PRELIMINARY
MATTERS
A. The
Manager may, from time to time, identify trading opportunities involving
the
purchase and resale of goods.
B. The
Parties wish to set forth their agreement regarding the terms upon which
EPK may
agree to purchase and resell such goods and the provision of management services
by, and compensation of, the Manager in connection therewith.
AGREEMENT
In
consideration of the premises, and of the representations, warranties,
covenants, agreements, and conditions contained herein, and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Manager and EPK hereby agree as follows:
ARTICLE
I
INTERPRETATION
1.1 Certain
Definitions.
As used
in this Agreement, the following terms have the meanings specified:
"Affiliate"
when
used with respect to a Person, means any other Person whom directly or
indirectly through one or more intermediaries controls, or is controlled
by, or
is under common control with, such Person. The term "control" (including
the
correlative term "controlled") means the possession, directly or indirectly,
of
the power to direct or cause the direction of the management and policies
of a
Person, whether through the ownership of voting stock, by contract or
otherwise.
"Agreement"
has the
meaning specified in Section 1.4.
"Business
Day"
means
any day which is not a Saturday, a Sunday or a day on which national banks
in
the State of Texas are authorized or required by law to be closed.
"Confirmation"
means a
confirmation in the form of Exhibit A or such other form of written instrument
as to which the Parties may agree.
"Credit
Enhancement,"
with
respect to a Transaction and if applicable, means the letter of credit,
guaranty, bond or other form of credit support with respect to the obligations
of the Purchaser under such Transaction, provided by the Credit Enhancer
for
such Transaction.
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"Credit
Enhancer,"
with
respect to a Transaction, means the Person, if any, identified as such in
the
Confirmation with respect to such Transaction.
"EPK"
has the
meaning specified in the preamble to this Agreement.
"EPK
Minimum Proceeds,"
with
respect to a Transaction, has the meaning specified in the Confirmation for
such
Transaction.
"EPK
Purchase Price,"
with
respect to a Transaction, means the aggregate purchase price payable and/or
paid
to the Vendor for the Goods under such Transaction as set forth in the Vendor
Pro Forma Invoice for such Transaction and the Confirmation with respect
to such
Transaction.
"Event
of Default"
has the
meaning specified in Section 4.1.
"FCPA"
means
the U.S. Foreign Corrupt Practices Act, 15 U.S.C. 78a, et seq., as amended,
supplemented and replaced from time to time.
"Governmental
Authority"
means
any government or any political subdivision or agency, department or
instrumentality thereof, including, without limitation any court or
administrative body.
"Goods,"
with
respect to a Transaction, means the goods identified as such in the Confirmation
with respect to such Transaction.
"Guarantor"
means
Ironclad
Performance Wear Corporation, a Nevada corporation, Xxxxxx Xxxxxx, Xxxxxx
X
Xxxxx, Xx. and Xxxxxx X. Xxxxxxxx.
The
Guarantor constitutes a Credit Enhancer with respect to all Transactions
hereunder.
"Guaranty"
means
the guaranty of the Guarantor, in form acceptable to EPK, delivered pursuant
to
Section 5.15. The Guaranty shall constitute Credit Enhancement with respect
to
all Transactions hereunder.
"Manager's
Compensation,"
with
respect to a Transaction and subject to Section 2.5, the compensation of
the
Manager for performing his obligations in respect of such Transaction under
the
Agreement, as specified in the Confirmation with respect to such
Transaction.
"Party"
means
EPK or the Manager.
"Person"
means
collectively, any individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
organization, joint venture, firm or other entity, or Governmental
Authority.
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"Purchase
Order,"
with
respect to a Transaction, means the agreement referring to purchase orders
from
the Purchaser for the Goods with respect to such Transaction, including any
and
all additions, substitutions, replacements, and/or changes thereto.
"Purchaser,"
with
respect to a Transaction, means the Person identified as such in the
Confirmation with respect to such Transaction, including any and all additions,
substitutions, replacements, and/or changes thereto.
"Purchaser
Purchase Price,"
with
respect to a Transaction, means the aggregate purchase price payable by the
Purchaser for the Goods under such transaction as set forth in the Purchase
Order for such Transaction and the Confirmation with respect to such
Transaction, including any and all additions, substitutions, replacements,
and/or changes thereto.
"Solvent,"
as to
any Person, such Person (a) owns property whose fair salable value is greater
than the amount required to pay all of such Person's indebtedness (including
contingent debts), (b) is able to pay all of the indebtedness as such
indebtedness matures and (c) has capital sufficient to carry on its business
and
transactions and all business and transactions in which it is about to
engage.
"Taxes"
means
all taxes, tariffs, duties, stamp taxes or fees of any description due any
Governmental Authority arising out of or in connection with any Transaction,
excepting only United States federal income taxation of EPK and any State
of
Texas tax based on the net income of EPK.
"Transaction"
means a
particular transaction governed by the terms of this Agreement, including
the
terms set forth in the Confirmation with respect to such
transaction.
"Vendor,"
with
respect to a Transaction, means the Person identified as such in the
Confirmation with respect to such Transaction, including any and all additions,
substitutions, replacements, and/or changes thereto.
"Vendor
Pro Forma Invoice"
with
respect to a Transaction, means the contract from the Vendor for the Goods
with
respect to such Transaction, including any and all additions, substitutions,
replacements, and/or changes thereto.
1.2 Other
Definitional Provisions.
a. Unless
otherwise specified therein, all terms defined in this Agreement have the
above-defined meanings when used in any Confirmation, certificate, amendment,
report or other document made or delivered pursuant hereto.
b. Each
term
defined in the singular form in Section
1.1
shall
mean the plural thereof when the plural form of such term is used in this
Agreement or any Confirmation, certificate, amendment, report or other document
made or delivered pursuant hereto, and each term defined in the plural form
in
Section 1.1
shall
mean the singular thereof when the singular form of such term is used herein
or
therein.
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c. The
words
"hereof," "herein," "hereunder" and similar terms when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision
of
this Agreement, and section, schedule and exhibit references herein are
references to sections, schedules and exhibits to this Agreement unless
otherwise specified.
d. The
word
"including" when used herein shall mean "including without limitation.
"
e. Unless
otherwise specified herein, all times set forth herein are Dallas, Texas
time.
1.3 Inconsistency.
In the
event of any inconsistency between the provisions of any Confirmation and
this
Agreement, such Confirmation will prevail for the purpose of (but only for
the
purpose of) the relevant Transaction.
1.4 Single
Agreement.
All
Transactions are entered into in reliance on the fact that this Master Agreement
and all Confirmations form a single agreement between the Parties (collectively
referred to as this "Agreement"), and the parties would not otherwise enter
into
any Transactions.
ARTICLE
II
TRANSACTIONS
2.1 Offer.
The
Manager may, from time to time propose a Transaction by submitting to EPK
a
proposed Confirmation setting forth for such Transaction the Goods, the EPK
Minimum Proceeds, the Manager's Compensation, the EPK Purchase Price, the
Vendor, the Purchaser Purchase Price, the Purchaser, information sufficient
to
enable to EPK to determine the relative credit worthiness of the Purchaser,
the
Purchaser's terms and method of payment in the transaction, and, if applicable,
the Credit Enhancer, and attaching copies of the Vendor Pro Forma Invoice,
the
Purchase Order and, if applicable, the Credit Enhancement (other than the
Guaranty) with respect to the proposed Transaction, and any other items which
EPK may request from time to time to properly review the
Transaction.
2.2 Acceptance.
EPK
shall have no obligation to enter into any proposed Transaction. In the event
that EPK and the Manager agree upon a proposed Transaction, such agreement
shall
be evidenced by the execution and delivery (which may be by telecopy) of
a
Confirmation setting forth the terms of such Transaction. The Confirmation
with
respect to a Transaction shall become effective upon all of the following
having
occurred (i) execution and delivery thereof by both of the Parties; (ii)
assignment (or other means of transfer) to EPK acceptable to EPK of any Credit
Enhancement with respect to the Transaction; (iii) if requested by EPK, deliver
to EPK a letter from each and every creditor of Manager that now or hereafter
holds a security interest in or lien on any and all of Manager's Inventory
and
Accounts and all personal property whereunder each of them shall have consented
to the Transactions contemplated by this Agreement and shall have acknowledged
EPK's sole and exclusive ownership in the Goods and all proceeds thereof;
and
(iv) if requested by EPK, the establishment of a lock box account over which
EPK
shall have sole access, dominion and control at a state or national bank
acceptable to EPK (the “Lock Box") at the sole cost and expense of
Manager.
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2.3 Services
of the Manager.
Unless
otherwise specified in the Confirmation relevant to a Transaction, the Manager
and/or it agents and representatives shall: (a) cause the Goods to be shipped
to
the Purchaser in accordance with the Purchase Order relevant to such Transaction
and bear all costs, including any shipping costs and messenger expenses and
legal costs, incidental to such Transaction; (b) indemnify and hold EPK and
its
assigns harmless from and against any loss caused by the failure of (i) the
Vendor or any shipper to timely deliver Goods which conform to the requirements
of the Vendor Pro Forma Invoice, the Purchase Order and applicable law, or
(ii)
the Manager to truthfully represent the Purchaser's credit information or
the
terms and method of payments in the transaction as contemplated in Section
3.1;
(c) indemnify and hold EPK and its assigns harmless from and against any
claim
of or liability to any Person arising out of the Transaction, including without
limitation any claim of or liability to the Purchaser or any other Person
in
respect of the Goods; (d) pay, and indemnify and hold EPK and its assigns
harmless from and against, any Taxes due in connection with such Transaction;
(e) be responsible for performing all administrative and ministerial tasks
relating to the collection of such invoices to the Purchaser; provided, however,
that the foregoing shall in no way limit EPK's right at any time and from
time
to time to collect amounts owing under such invoices directly; and provided,
further, that the foregoing shall not constitute a guaranty by Manager of
the
payment or collection of such invoices; (f) to pay for and do all things
necessary to maintain all warranty, service and/or other post delivery
obligations with Purchaser; and (g) not perform any action which could result
in
reduced or non-payment by Purchaser.
2.4 Maximum
EPK
Purchase Price.
Unless
otherwise specified in the Confirmation relevant to a Transaction, the maximum
EPK Purchase Price shall be $1,000,000.00.
2.5 Compensation
of
the Manager.
The
compensation of the Manager in respect of its services in connection with
a
particular Transaction shall be the Manager's Compensation set forth in the
Confirmation with respect to such Transaction; provided, that unless otherwise
specified in the Confirmation with respect to such Transaction, the compensation
of the Manager in respect of a particular Transaction shall be payable solely
from the proceeds received by EPK from the Purchaser and, if applicable,
the
Credit Enhancer with respect to such Transaction and only to the extent that
such proceeds exceed the EPK Minimum Proceeds for such Transaction. Prior
to the
payment of Manager’s Compensation, EPK has the right, in its sole discretion, to
require the Manager to execute a general release duly notarized in form
acceptable to EPK. In the event EPK receives communication of any kind as
to any
conflicting claims or legal proceedings made by any Party in connection with
a
particular Transaction including, but not limited to, the Manager, Vendor
and/or
Purchaser, EPK maintains the right, and is authorized by the Manager, and
at
Manager’s sole risk to (1) retain an amount acceptable to EPK in trust to
reserve against such claims and legal proceedings, (2) file suit in interpleader
or for declaratory relief and deposit such funds into court and/or (3) deposit
same with an attorney acceptable to EPK in trust for EPK, Manager and/or
such
claimants.
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2.6 Further
Assurances.
The
Manager hereby agrees that at any time and from time to time after the execution
of this Agreement, Manager shall, upon request of EPK, execute and deliver
such
further acts and things as EPK may request in order to fully effect the purposes
of this Agreement and to protect EPK's interests in the Goods and/or Credit
Enhancements, including, but not limited to, furnishing any and all documents
necessary to enable EPK or its insurer to defend itself in any litigation
arising in connection herewith. Manager shall give EPK written notice of
any
action known by Manager to have been taken by a third party which may jeopardize
EPK's rights in the Goods and/or Credit Enhancement promptly after Manager
becomes aware of the same. Manager hereby agrees to reimburse EPK for all
out-of-pocket costs and expenses (including but not limited to reasonable
attorneys fees) incurred by EPK in connection with (i) any litigation, contest,
dispute, suit, proceeding or action (whether instituted by EPK, the Vendor,
the
Purchaser, Manager or any other person) in any way relating to the Goods,
the
transactions or this Agreement, (ii) any attempt to enforce any of EPK's
rights
in the Goods or Credit Enhancements in the transactions or under this Agreement
against Manager, the Vendor, the Purchaser or any other person, and/or (iii)
any
attempt to verify, protect, sell, liquidate or otherwise dispose of the Goods
and/or Credit Enhancements. With respect to a Transaction, the Manager agrees
not to accept or arrange for Goods to be returned by the Purchaser without
the
express written authorization of EPK. In the event Goods are returned by
the
Purchaser with respect to a Transaction, and agreed to in writing by EPK,
all
Goods shall be sent to third party warehouse acceptable to EPK. All costs
associated with such returned Goods, including but not limited to freight,
storage and insurance shall be for the account of the Manager.
2.7 Title.
All
Goods shall at all times be and remain the sole and exclusive property of
EPK
and titled in the name of EPK or such tradestyle as may be acceptable to
EPK.
2.8 Insurance
on Goods.
Manager
shall obtain insurance on behalf of EPK which insures the Goods against all
risks or physical loss or damage with warehouse to warehouse coverage. All
such
policies of insurance shall name EPK as the additional insured party and
as
first loss-payee thereunder. EPK shall have the right to file all insurance
claims in EPK’s or Manager’s name, as well as the right to acquire insurance, at
the sole cost of Manager, if Manager’s insurance is terminated or deemed
insufficient by EPK.
2.9 Security
Agreement.
If this
Agreement and any Confirmation hereunder are deemed to be a Security Agreement,
Manager grants EPK a security interest in Goods, Purchase Orders, accounts,
proceeds and any other personal property.
2.10 Collection
of Purchaser Purchase Price.
All
invoices shall instruct the Purchaser to remit their payments directly to
a Lock
Box or as instructed by the Form of Confirmation. Without limiting the
foregoing, in the event that Manager shall receive any remittances from any
Purchaser from time-to-time on account of Transactions, such remittances
shall
be and remain EPK's property and Manager shall hold such remittances as trustee
of an express trust for EPK's benefit and immediately deliver over to EPK
for
deposit or cause to be deposited the same in the Lock Box or to EPK or to
such
other account designated by EPK. Manager acknowledges that such remittances
are
the sole and exclusive property of EPK. All payments of the Purchaser's Purchase
Price which are made through presentment of a letter of credit shall instruct
the collecting or paying bank of said letter of credit to make payment by
wire
transfer of immediately available funds to the Lock Box, to EPK or to such
other
account designated by EPK. All funds deposited in said special account are
the
sole and exclusive property of EPK. EPK and its directors, officers and agents
shall have the right to sign and endorse on behalf of Manager all checks,
drafts
and other forms of payment received by EPK in connection with the payment
of any
account. Manager appoints EPK or any other person EPK may from time to time
designate, as Manager’s attorney-in-fact with power to:
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(a)
|
endorse
Manager’s name on any checks, drafts or other forms of payment or security
that may come into possession;
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(b)
|
sign
Manager’s name on notices of assignment, verifications of accounts,
verifications of Purchase Orders and notices to current and/or
potential
future Purchasers;
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(c)
|
receive,
open and dispose of all mail addressed to Manager and received
by
EPK;
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(d)
|
send
notices of assignment, requests for verification of Purchase Orders
or
requests for verification of accounts to current and/or potential
future
Purchasers;
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(e)
|
to
sign Manager’s name and file any federal and state Financing Statement(s)
/ recordations / registrations / continuation statements / assignments
/
subordinations / terminations, etc. and/or amendments (UCC-1, XXX-0,
XXX-0, etc.);
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(f)
|
to
use the name of Manager and, in EPK’s sole discretion, to litigate, file
in court and/or serve documents in respect to, and, for an amount
less
than face value or cost; etc. in prosecuting and/or defending any
action/claim brought by/against/involving Manager / EPK / Purchaser
and/or
any third parties;
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(g)
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to
settle, compromise, surrender Goods and/or security or modify any
such
Purchase Order and otherwise deal with Purchaser, those with whom
Manager
and/or Purchaser has contracted, for the account and risk of Manager,
notwithstanding any effect on any Purchase Order;
and
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(h)
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do
all things necessary to carry out the terms of this
Agreement.
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2.11 Access
to Information and Control Over Goods.
Manager
shall provide EPK with any and all information which EPK may reasonably request
concerning the Goods, the Purchaser, the Vendors, Manager, and/or any other
parties involved with the Goods, including, but not limited to, the inspection
of the books and records of Manager by EPK and its representatives. Manager
shall provide EPK with immediate access to any and all Goods in Manager's
possession, actual or constructive, upon request by EPK. In the event that
EPK
determines in good faith that it is necessary for EPK to assert or enforce
its
rights as owner of the Goods in order to adequately protect its interests,
EPK
shall be permitted to take, and Manager shall assist EPK in taking any and
all
action as EPK deems necessary, including, but not limited to, (i) notifying
freight forwarders, the Purchasers, the Vendors and other third parties of
EPK's
interest in the Goods, and (ii) taking immediate and complete physical control
over the Goods and the proceeds and products thereof.
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2.12 NO
WARRANTIES ON GOODS.
ALL GOODS COVERED BY THE AGREEMENT ARE RESOLD BY EPK "AS IS" AND "WITH ALL
FAULTS," AND MANAGER ACKNOWLEDGES THAT NO WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE ARE TO BE IMPLIED IN THE AGREEMENT. EPK
GIVES
NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE DESCRIPTION, QUALITY,
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, PRODUCTIVENESS, OR ANY
OTHER MATTER OF ANY OF THE GOODS. EPK SHALL BE IN NO WAY RESPONSIBLE FOR
THE
PROPER USE OR SERVICE OF THE GOODS.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 The
Manager.
The
Manager hereby represents and warrants, and the delivery by the Manager of
each
Confirmation shall constitute the further representation and warranty of
the
Manager, that:
(a) The
Manager is a corporation duly organized and validly existing and in good
standing under the laws of California.
(b) the
Manager has all requisite authority to enter into this Agreement and to perform
all the obligations required to be performed by it hereunder;
(c) neither
the execution and delivery by the Manager of this Agreement, nor the
consummation of any of the Transactions herein contemplated, nor compliance
with
the terms and provisions hereof, will (i) materially contravene or conflict
with
the articles of incorporation or bylaws of the Manager, any requirement of
law
to which the Manager is subject, or any indenture, mortgage, deed of trust,
or
other agreement or instrument to which the Manager is a party or by which
the
Manager may be bound, or to which the property of the Manager may be subject,
or
(ii) result in the creation or imposition of any lien on the property of
the
Manager by any party other than EPK;
(d) this
Agreement is the legal, valid and binding obligation of the Manager, enforceable
against the Manager in accordance with its terms;
(e) there
is
no material fact relevant to the transactions contemplated by this Agreement
(and in the case of each Confirmation, there is no material fact relevant
to the
Transaction set forth in such Confirmation) known to the Manager that the
Manager has not disclosed to EPK including pending or current offsets, charge
backs or allowances of any kind by the Purchaser;
(f) the
Manager is not (and in the case of each Confirmation, to the knowledge of
the
Manager after due inquiry, neither the Purchaser nor the Vendor thereunder
is)
in default under any loan agreement, mortgage, security agreement or other
material agreement or obligation to which it is a party or by which any of
its
property is bound;
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(g) there
are
no material actions, suits or legal, equitable, arbitration or administrative
proceedings pending, or to the knowledge of the Manager threatened, against
the
Manager (and in the case of each Confirmation, to the knowledge of the Manager
after due inquiry, there are no material actions, suits or legal, equitable,
arbitration or administrative proceedings pending, or threatened, against
the
Purchaser or the Vendor thereunder);
(h) all
tax
returns required to be filed by the Manager in any jurisdiction have been
filed
and all taxes, assessments, fees and other governmental charges upon the
Manager
or upon any of its properties, income or franchises have been paid prior
to the
time that such taxes could give rise to a lien thereon;
(i) neither
the execution and delivery of this Agreement nor the consummation of any
of the
transactions contemplated hereby requires the consent or approval of, the
giving
of notice to, or the registration, recording or filing by the Manager or
any
other Person of any document with, or the taking of any other action in respect
of, any Governmental Authority which has jurisdiction over the Manager (or,
in
the case of each Confirmation, the Purchaser or the Vendor thereunder) or
any of
its property;
(j) the
Manager has delivered to EPK a list of creditors of the Manager, an Income
Statement and Balance Sheet for the period ending December 31, 2006, December
31, 2007 and March 31, 2008; and Corporate Tax Returns for the period ending
December 31, 2005 and December 31, 2006; such lists, Income Statement and
tax
returns are accurate in all material respects;
(k) the
Manager (and, in the case of each Confirmation, to the best knowledge of
the
Manager, the Purchaser and the Vendor thereunder) is Solvent;
(l) none
of
the Purchaser, the Vendor or the Credit Enhancer with respect to any Transaction
is an Affiliate of the Manager;
(m) all
information furnished by the Manager in each Confirmation is true, correct,
and
complete; and
(n) the
Manager has paid and will continue to pay and maintain in current standing
all
taxes, insurances, licenses, etc. required for conduct of its business or
profession.
(o) The
Manager shall perform all actions for the benefit of EPK and authorized by
EPK
in a good workmanlike manner and as a reasonably prudent person
would.
All
representations and warranties by the Manager herein shall survive until
all
obligations of the Manager under this Agreement have been irrevocably paid
in
full, and any investigation at any time made by or on behalf of EPK shall
not
diminish the right of EPK to rely thereon.
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ARTICLE
IV
DEFAULT;
REMEDIES
4.1 Event
of Default.
An Event of Default shall exist if any one or more of the following
occurs:
(a) The
Manager fails to make any payment due hereunder on the date that such payment
is
due;
(b) the
Manager fails to observe or perform any other term, covenant or agreement
set
forth in this Agreement on its part to be performed or observed and such
failure
continues unremedied for five (5) Business Days past the date when such
observance or performance is due;
(c) any
material statement, warranty or representation by or on behalf of the Manager
contained in this Agreement, (including any Confirmation or other writing
furnished in connection with this Agreement) proves to have been incorrect
or
misleading in any material respect when made or deemed made;
(d) any
provision of this Agreement shall for any reason cease to be in full force
and
effect, or be declared null and void or unenforceable in whole or in part,
or
the validity or enforceability of any such document shall be challenged or
denied; or
(e) the
Manager enters into any arrangement that provides for a security interest
in any
of its assets without the express written consent or agreement of EPK. This
does
not apply to previously reported security interests that are addressed by
a
subordination or intercreditor agreement.
(f) the
commencement by the Manager or any Credit Enhancer as debtor of any case
or
proceeding under any bankruptcy, insolvency, reorganization, liquidation,
dissolution or similar law, or the seeking by the Manager or any Credit Enhancer
of the appointment of a receiver, trustee, custodian or similar official
for
such Person or any substantial part of its property, (ii) the commencement
of
any such case or proceeding against the Manager, (iii) the making by the
Manager
or any Credit Enhancer of a general assignment for the benefit of its creditors,
or (iv) the admission by the Manager or any Credit Enhancer that it is unable
to
pay its debts as they become due.
4.2 Remedies.
Upon
the occurrence of an Event of Default, all obligations of EPK hereunder shall
be
suspended and EPK may exercise all rights and remedies granted in this
Agreement, in any Credit Enhancement and/or under applicable law, and may
offset
all Manager's compensation then due against any sums due EPK.
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ARTICLE
V
MISCELLANEOUS
5.1 Term.
This
Agreement may be terminated by EPK immediately upon written notice to the
Manager or by the Manager upon 30 days after Manager delivers written notice
to
EPK and shall terminate without notice by either Party on July
31, 2010;
provided, that notwithstanding the termination of this Agreement, this Agreement
shall continue in full force and effect with respect to any Transactions
with
respect to which Manager has not fully performed its obligations hereunder
until
such time as such performance is completed.
5.2 Entire
Agreement; Amendments. etc.
This
Agreement constitutes the entire agreement and understanding of the Manager
with
respect to its subject matter and supersedes all oral communications and
prior
writings with respect thereto. No amendment or waiver of any provision of
this
Agreement nor any consent to any departure by either Party herefrom shall
in any
event be effective unless the same shall be in writing and signed by the
Party
against whom enforcement of such amendment, waiver or consent is sought,
and
then such waiver or consent shall be effective only in the specific instance
and
for the specific purpose for which given.
5.3 No
Waiver, Remedies.
No
failure on the part of EPK to exercise, and no delay on the part of EPK in
exercising, any right hereunder shall operate as a waiver of such right;
nor
shall any single or partial exercise of any right by EPK preclude any further
or
subsequent exercise of the same or any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
5.4 Notices,
etc.
Any
notice or other communication in respect of this Agreement may be given in
any
form set forth below to the address or number or in accordance with the
electronic messaging system details provided on Schedule I and will be deemed
effective as indicated:
(i) If
in
writing and delivered in person or by courier, on the date it is
sent;
(ii) if
sent
by facsimile transmission, on the date that transmission is sent in legible
form
(it being agreed that the burden of proving it was sent will be on the sender
and will be met by a transmission report generated by the sender's facsimile
machine); or
(iii) if
sent
by regular, certified or registered mail or the equivalent (return receipt
requested) on the date it is mailed.
Either
Party may by written notice to the other change the address or facsimile
number
or electronic messaging system details at which notices are to be given to
it.
5.5 Captions.
The
captions in this Agreement are for convenience of reference only and are
not to
be given any substantive meaning or significance whatever in construing the
terms and provisions of this Agreement.
11
5.6 Transfer.
Neither
this Agreement nor any interest or obligation in or under this Agreement
may be
transferred (whether by way of security or otherwise) by the Manager without
the
prior written consent of EPK. EPK may, with written notice to the Manager,
assign or transfer all or any part of its interests and obligations herein
to
any other Person, and such other Person shall thereupon become vested with
all
rights and obligations in respect thereof granted to and assumed by EPK herein
or otherwise.
5.7 GOVERNING
LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF TEXAS.
5.8 GOVERNING
LAW; CONSENT TO FORUM.
THIS AGREEMENT HAS BEEN NEGOTIATED, EXECUTED AND DELIVERED AT AND SHALL BE
DEEMED TO HAVE BEEN MADE IN DALLAS COUNTY, TEXAS. AS PART OF THE CONSIDERATION
FOR NEW VALUE RECEIVED, AND REGARDLESS OF ANY PRESENT OR FUTURE DOMICILE
OR
OTHER PRINCIPAL PLACE OF BUSINESS OF MANAGER OR EPK, MANAGER HEREBY CONSENTS
AND
AGREES THAT THE DISTRICT COURT OF DALLAS COUNTY, TEXAS, OR, AT EPK'S OPTION,
THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS
DIVISION, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS
OR
DISPUTES BETWEEN MANAGER AND EPK PERTAINING TO THIS AGREEMENT OR TO ANY OTHER
MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT. MANAGER EXPRESSLY SUBMITS
AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED
IN
ANY SUCH COURT, AND MANAGER HEREBY WAIVES ANY OBJECTION WHICH MANAGER MAY
HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
FORUM
NON CONVENIENS
AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS
IS
DEEMED APPROPRIATE BY SUCH COURT. MANAGER HEREBY WAIVES PERSONAL SERVICE
OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE
BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO MANAGER AT THE ADDRESS LAST KNOWN
TO
EPK AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
MANAGER'S ACTUAL RECEIPT THEREOF OR 3 DAYS AFTER DEPOSIT IN THE U.S. MAILS,
PROPER POSTAGE PREPAID. NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE
TO
AFFECT THE RIGHT OF EPK TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED
BY
LAW, OR TO PRECLUDE THE ENFORCEMENT BY MANAGER OF ANY JUDGMENT OR ORDER OBTAINED
IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE
SAME
IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
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5.9 JURY
TRIAL; DAMAGES.
THE MANAGER HEREBY (a) IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL
BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR
ANY
COUNTERCLAIM THEREIN; (b) IRREVOCABLY WAIVES, TO THE EXTENT NOT PROHIBITED
BY
LAW, ANY RIGHT THEY MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN,
OR
IN ADDITION TO, ACTUAL DAMAGES; (C) CERTIFIES THAT NO PARTY HERETO NOR ANY
REPRESENTATIVE OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY
OR
OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVERS; AND (d) ACKNOWLEDGES THAT THEY ENTERED
INTO THE AGREEMENT, AND THE TRANSACTIONS CONTEMPLATED HEREBY, BASED UPON,
AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS
SECTION.
5.10 Attorneys'
Fees. Manager
shall pay all EPK's legal fees and expenses in connection to this Agreement
and
enforcement of this Agreement.
5.11 No
Rights Conferred Upon Third Parties. This
Agreement is for the benefit of the Parties hereto and nothing contained
herein
shall be construed to give any third party any benefits or rights
hereunder.
5.12 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be an original
but all of which together shall constitute one and the same
instrument.
5.13
Nothing
in this Master Agreement or related documents should be construed as interest.
Notwithstanding any provision of this Master Agreement, Form of Confirmation
or
other document to the contrary, it is the intent of EPK and the Manager that
EPK
or any subsequent holder or assignee of this Master Agreement shall never
be
entitled to receive, collect, reserve or apply as interest, any amount in
excess
of the maximum rate of interest as permitted by applicable law, as amended
or
enacted, from time to time. In the event that EPK or any subsequent holder
or
assignee of this Master Agreement ever receives, collects, reserves or applies,
as interest, any such excess, such amount which would be excessive interest
shall be deemed a partial prepayment of principal and treated as such, or,
if
the principal indebtedness and all other amounts due are paid in full, any
remaining excess interest shall be paid to the Manager. In determining whether
fees paid or payable under the Master Agreement, under any specific contingency,
constitute interest and exceeds the highest lawful rate, the Manager and
EPK
shall, to the maximum extent permitted under applicable law, (a) exclude
voluntary prepayments and the effects thereof as it may relate to fees charges
by EPK, and (b) amortize, prorate, allocate, and spread, in equal parts,
the
total amount of fees charged throughout the entire term of the Master Agreement.
Upon refund of any excess interest as determined hereunder, EPK shall not
be
subjected to any damages or penalties under any laws for contracting for,
charging, reserving or receiving interest in excess of the maximum lawful
rate.
EPK and the Manager specifically agree and stipulate that any fees charged
under
the Master Agreement, not specifically denominated as interest, are not
compensation for the use or forbearance or detention of money. Manager
specifically waive any damages, whether imposed by precedent or statute,
for the
contract, charge, reserve or receipt by EPK of interest in excess of that
allowed by law except the refund of the excess interest and the Manager
specifically acknowledge that EPK relies on such waiver in entering into
the
Master Agreement and that EPK has changed its position in reliance on such
waiver.
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5.14 COMPLIANCE
WITH LAWS.
MANAGER SHALL STRICTLY OBSERVE AND COMPLY WITH ALL FEDERAL, STATE AND LOCAL
LAWS
AND REGULATIONS WHICH GOVERN THE MANUFACTURE, SALE, HANDLING AND DISPOSAL
OF ANY
PRODUCTS HEREIN SPECIFIED. MANAGER ALSO AGREES TO COMPLY WITH THE PROVISIONS
RELATING TO THE FCPA SET FORTH IN EXHIBIT B. IF MANAGER VIOLATES ANY OF SUCH
LAWS OR REGULATIONS OR IS OFFICIALLY CHARGED WITH SUCH VIOLATIONS, EPK IN
ITS
SOLE DISCRETION MAY TREAT THIS CONDUCT AS A BREACH OF THIS WHOLE AGREEMENT
AND
IN ADDITION TO ANY OTHER REMEDIES, MAY IMMEDIATELY TERMINATE THIS
AGREEMENT.
5.15 Guaranty.
The
Manager shall cause the Guarantor to execute and deliver the Guaranty and
take
all actions reasonably requested by EPK to cause the Guarantor to perform
its
obligations under the Guaranty.
5.16 UCC
Filing.
To
secure performance and payment of Manager’s obligation hereunder, Manager grants
EPK a security interest in all personal property.
5.17
THE MANAGER AND EPK AGREE THAT THE TERMS HEREIN SHALL BE AND AT ALL TIMES
WILL
REMAIN CONFIDENTIAL AND, EXCEPT AS REQUIRED BY LAW, WILL NOT BE COMMUNICATED
BY
EITHER THE MANAGER OR EPK TO ANY THIRD PARTY WITHOUT THE PRIOR WRITTEN CONSENT
OF THE OTHER.
5.18 Notice
of Proposed Refinancing.
Manager
hereby agrees that in the event (a) Manager receives a written proposal from
any
third party to provide financing similar to EPK (“Proposed Refinancing”), (b)
the terms of the Proposed Refinancing are acceptable to Manager, and (c)
Manager
is considering accepting the Proposed Refinancing from the offeror (“Offeror”),
Manager will immediately advise EPK in writing of the identity of the Offeror,
the complete terms and conditions of the Proposed Refinancing, and provide
EPK a
full and complete copy of all written correspondence between Manager and
Offeror
describing the Proposed Refinancing. Manager agrees not to accept the Proposed
Refinancing from the Offeror until at least 10 business days after delivery
of
the foregoing items to EPK.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
14
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
set
forth above.
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MANAGER:
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By:
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/s/
Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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Title:
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Date:
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By:
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/s/
Xxxxxx X. Xxxxxxxx
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Xxxxxx
X. Xxxxxxxx
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Title:
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Date:
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EPK:
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EPK
FINANCIAL CORPORATION
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By:
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/s/
Xxxxxx X. Xxxx
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Xxxxxx
X. Xxxx
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Title:
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President
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Date:
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15
SCHEDULE
I
TO
MASTER
AGREEMENT
EXECUTED
AND DELIVERED AS OF
JULY
25, 2008
BETWEEN
IRONCLAD
PERFORMANCE WEAR CORPORATION
(the
"Manager")
AND
EPK
FINANCIAL CORPORATION ("EPK")
ADDRESSES
FOR NOTICES
Address
for notices to the Manager:
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Address:
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0000
Xxxx Xxxxx, Xxxxx 000, Xx Xxxxxxx, XX 00000
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Attention:
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Xxxxxx
X. Xxxxxxxx
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Facsimile:
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000-000-0000
Phone:000-000-0000
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Address
for notices to the Beneficiary:
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Address:
|
0000
Xxxxxx Xxxx, Xxx. 000 Xxxxxx, XX 00000
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Attention:
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Xxxxxx
X. Xxxx
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Facsimile:
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000-000-0000
Phone: 000-000-0000
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1
