SECURED PARTY'S BILL OF SALE
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For good and valuable consideration, and in consideration of Five
Hundred Thousand Dollars ($500,000.00), the receipt of which is hereby
acknowledged, EASTERN BANK, a bank organized under the laws of the Commonwealth
of Massachusetts with an office located at 265 Franklin Street, Boston,
Massachusetts (the "Secured Party") hereby sells, assigns, and transfers to
Titan PCB East, Inc., a Delaware corporation having a principal place of
business at 1855 Norman Avenue, Santa Clara, California 95054 (the "Purchaser"),
all of the Secured Party's right, title, and interest in and to the personal
property (the "Purchased Assets") listed on Exhibit "A", annexed hereto and
incorporated herein by reference, in which the Secured Party has been granted a
security interest by Eastern Manufacturing Corp. (the "Borrower").
The Purchaser acknowledges and agrees as follows:
1. That except as expressly set forth in Paragraph 8, below, this
secured party's sale is made WITHOUT any representations or
warranties whatsoever by the Secured Party, whether expressed,
implied, or imposed by law. Without limiting the generality of
the foregoing total exclusion of representations and
warranties, THIS SECURED PARTY'S SALE IS MADE WITHOUT ANY
WARRANTY OF MERCHANTABILITY AND WITHOUT ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, AND WITHOUT ANY WARRANTY
RELATING TO TITLE, POSSESSION, OR QUIET ENJOYMENT.
2. This secured party's sale is further made without any
representations or warranties by the Secured Party as to the
validity, enforceability, priority, or perfection of the
Secured Party's liens on and security interests in the
Purchased Assets, or the ownership of, rights in, location of,
or access to, or any other matter concerning, the Purchased
Assets. The Purchaser acknowledges and agrees that the Secured
Party is selling only the Secured Party's right, title, and
interest in those assets listed on Exhibit "A" in which the
Secured Party has been granted a security interest by the
Borrower, and not any items of leased property or other items
in the possession of the Borrower, but not owned by the
Borrower (regardless of whether said items are included on
Exhibit "A").
3. The Purchaser further warrants and represents that the
Purchaser (i) has made its own independent investigation and
evaluation as to the nature and sufficiency of the Purchased
Assets, the validity, enforceability, priority, and perfection
of the Secured Party's liens and security interests in the
Purchased Assets, and and the status of title to the Purchased
Assets, (ii) is acquiring the Purchased Assets AS IS and WHERE
IS, (iii) has entered into this transaction after consultation
with independent counsel of the Purchaser's own selection,
(iv) is not relying upon any representation or warranty of the
Secured Party in consummating this transaction.
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4. Upon delivery of this Secured Party's Bill of Sale, all risk
of loss with respect to the Purchased Assets shall transfer to
the Purchaser. The Purchaser further acknowledges and agrees
that by accepting this Secured Party's Bill of Sale, the
Purchaser has received all of the Purchased Assets to be
transferred hereunder and that the Secured Party has performed
all and singular its obligations to the Purchaser in
connection with this transaction.
5. In the event that the Purchaser asserts any claim against the
Secured Party in connection with this Secured Party's Bill of
Sale, or otherwise in any way relating to this transaction or
the Purchased Assets, the Purchaser's sole and exclusive
remedy, both at law and in equity, shall be limited to the
refund of all or a portion, as may be appropriate, of the
purchase price actually paid by the Purchaser to the Secured
Party. In no event shall the Secured Party ever be liable to
the Purchaser (or the Purchasers successors and/or assigns)
for any claims, damages, costs, expenses, or liabilities of
any nature whatsoever, or for any incidental, consequential,
special or punitive damages relating to this Secured Party's
Bill of Sale or otherwise in any way relating to this
transaction or the Purchased Assets.
6. The Purchaser warrants and represents that the Purchaser has
full power and authority to execute, deliver, and perform its
agreements set forth herein, and the person executing and
delivering this Secured Party's Bill of Sale in the name, and
on behalf of the Purchaser has been duly authorized so to do.
7. The Purchaser shall indemnify, defend, and hold the Secured
Party and any employee, officer, attorney, or agent of the
Secured Party (each, an "Indemnified Person") harmless of and
from any claim brought or threatened against any Indemnified
Person by the Borrower, or any guarantor or endorser of the
Borrowers' obligations, or any other person (as well as from
attorneys' reasonable fees and expenses in connection
therewith) on account of this Secured Party's Bill of Sale,
this transaction, and/or the Purchased Assets, including,
without limitation, any claims based upon the use or
possession of the Purchased Assets by the Purchaser (each of
which may be defended, compromised, settled, or pursued by the
Indemnified Person with counsel of the Secured Party's
selection, but at the expense of the Purchaser), other than
any claim as to which a final determination is made in a
judicial proceeding (in a court of competent jurisdiction and
in which the Secured Party and any other Indemnified Person
has had an opportunity to be heard), which determination
includes a specific finding that the Indemnified Person
seeking indemnification had acted with gross negligence or
willful misconduct. The Purchaser acknowledges and agrees that
its liability and obligations under this Section shall survive
the closing on the sale of the Purchased Assets and continue
in full force and effect until specifically terminated in
writing by a duly authorized officer of the Secured Party.
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8. The Secured Party warrants and represents solely the following
in connection with this secured party's sale:
(a) The Secured Party has the right under its loan
arrangements with the Borrower, and/or applicable
law, to conduct this secured party's sale; and
(b) The execution by the Secured Party of this Secured
Party's Bill of Sale has been duly authorized by all
requisite corporate action.
This Secured Party's Bill of Sale shall be governed by and construed in
accordance with the internal law of the Commonwealth of Massachusetts (without
regard to conflicts of laws principles) and is intended to take effect as a
sealed instrument.
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Executed this 27th day of February, 2003, as a sealed instrument.
"SECURED PARTY"
EASTERN BANK
By: /s/ John P. Farmen
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Name: John P. Farmen
Title: Vice President
Acknowledged, accepted, and agreed on the terms set forth herein:
"PURCHASER"
TITAN PCB EAST, INC.
By: /s/ David M. Marks
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Name: David M. Marks
Title: Chairman of the Board
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EXHIBIT "A"
To a Certain Secured Party's Bill of Sale Dated February 27, 2003 By and Between
Eastern Bank and Titan PCB East, Inc.
1. All inventory;
2. All general intangibles (including, without limitation, all trade
secrets, computer programs, customer lists, trade names, trademarks,
service marks and patents);
3. All investment property;
4. All equipment and other goods, including without, limitation machinery,
furniture, fixtures, trade fixtures and all other goods used in the
conduct of the Borrower's business that are not inventory; and
5. All books and records relating to the conduct of the Borrower's
business, in whatever media contained, excluding those relating to its
accounts and accounts receivable.
EXCLUDED ASSETS:
The following assets are specifically excluded from this Secured Party's Bill of
Sale:
All Accounts (as defined in the Uniform Commercial Code as enacted and in effect
in the Commonwealth of Massachusetts) and accounts receivable, any chattel
paper, notes or other instruments evidencing the same, payment intangibles, and
all other rights of payment, and all books and records relating to any of the
foregoing.
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