EXHIBIT 10.71
QUITCLAIM BILL OF SALE
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THIS QUITCLAIM BILL OF SALE, between Foothill Capital Corporation, a
California corporation ("Foothill") and National Manufacturing Technologies,
Inc., a California corporation ("NMT"), is made with reference to the following
facts which are incorporated herein:
A. Foothill holds a security interest in certain personal property of
Escon Tool & Manufacturing Company, Inc., a California corporation, ("Escon") as
described on the attached UCC-1 Financing Statement (the "Collateral").
B. Subject to the terms and conditions below, and for the purchase price of
Eight Hundred Forty Thousand Dollars ($840,000.00) (the "Purchase Price"),
Foothill wishes to foreclose by private sale, its security interest in the
Collateral in accordance with Section 9504 of the California Uniform Commercial
Code (the "UCC"), and Buyer wishes to acquire all of Foothill's interest in the
Collateral.
NOW, THEREFORE, in consideration of the Purchase Price, receipt of which is
hereby acknowledged by Foothill, Foothill does hereby sell and transfer all of
its right, title and interest in the Collateral to Buyer pursuant to UCC Section
9504. The sale and transfer is made upon the following terms and conditions:
1. Exclusion of Warranties Under UCC Sections 2315 and 2316 (Implied
Warranty of Fitness For a Particular Purpose), UCC Sections 2314 and 2316
(Implied Warranty of Merchantability and Usage of Trade), and UCC Section 2312
(Implied Warranty of Title and Against Infringement).
1.1 THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF
THE FACE HEREOF. FOOTHILL IS NOT A MERCHANT, MANUFACTURER, DISTRIBUTOR OR
DEALER WITH RESPECT TO THE COLLATERAL. FOOTHILL MAKES NO REPRESENTATIONS OR
WARRANTIES WITH RESPECT TO MERCHANTABILITY, VALUE, CONDITION, FITNESS FOR ANY
PURPOSE OF THE COLLATERAL.
1.2 BUYER HEREBY ACKNOWLEDGES AND AFFIRMS THAT BEFORE ENTERING
INTO THIS SALE, BUYER HAS EXAMINED THE COLLATERAL AS FULLY AS IT DESIRED
AND IS RELYING UPON ITS OWN EXPERTISE AND EVALUATION OF THE COLLATERAL IN
PURCHASING FOOTHILL'S INTEREST IN SAME.
1.3 BUYER ACKNOWLEDGES THAT THE COLLATERAL IS SOLD "AS IS," "WHERE
IS" AND "WITH ALL FAULTS" AND FOOTHILL MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESSED OR IMPLIED, AND ISSUES NO GUARANTIES OF ANY KIND OR NATURE WITH
RESPECT TO THE COLLATERAL. FOOTHILL MAKES NO REPRESENTATIONS OR WARRANTIES WITH
RESPECT TO TITLE OR INFRINGEMENT OR ANY ISSUE REGARDING "HAZARDOUS WASTE," ALL
OF WHICH IS A RISK ASSUMED BY NMT. FOR PURPOSES HEREOF, "HAZARDOUS WASTE" IS
DEFINED AS SUCH SUBSTANCES THAT ARE DEEMED "HAZARDOUS" UNDER ANY FEDERAL, STATE,
OR LOCAL STATUTE OR REGULATION.
1.4 Foothill represents and warrants that the consummation of this
Agreement and upon the foreclosure of its security interest (assuming NMT has
acted in good faith), NMT will have acquired all rights of Escon in the
Collateral and Foothill's security interest in the Collateral will be discharged
as will any security interest or lien subordinate to Foothill's. Foothill
represents that it has complied with the foreclosure requirements of the
California UCC.
2. Condition Precedent. This Bill of Sale shall not be effective until
and unless Foothill receives the Purchase Price.
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3. Indemnifications Regarding Sales Tax. Buyer hereby agrees to pay
all sales taxes levied because of the sale and hereby indemnifies Foothill for
all taxes, levies, charges and penalties.
4. NMT acknowledges that 25 days prior notice of this sale is not being
given to the Internal Revenue Service ("IRS"), who has filed a lien in the
California Secretary of State's office on or about July 19, 2000, and in San
Diego County on or about July 7, 2000. NMT assumes the risk that the failure to
give the 25 day notice did not extinguish the lien of the IRS against the
Collateral and hereby indemnifies Foothill from any such claim by the IRS,
including Foothill's reasonable attorneys fees. Nothing set forth herein is an
admission that such notice was necessary and the parties contend to the
contrary, since the sale is occurring within 30 days of the proper recordation
by the IRS of its lien as required by Section 7425(c) of the Internal Revenue
Code.
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5. Integrated Agreement. This agreement is the final and exclusive
expression of the agreement of Foothill and Buyer and no course of dealing or
usage of trade or course of performance shall be relevant to explain or
supplement any term expressed herein.
6. Miscellaneous. This agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto. This agreement shall be construed in accordance with and
governed by the laws of the State of California. This agreement may be executed
in any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument.
6.1 In the event of a dispute regarding the terms of this
Agreement, the prevailing party may recover its reasonable costs and its
attorneys fees.
6.2 This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
6.3 Venue; Jurisdiction; Jury Trial Waiver. Foothill and NMT, and
each of them, hereby:
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6.3.1 Consent to the jurisdiction of any state or federal court
located in California;
6.3.2 Agree that the exclusive venue of any proceeding respecting
this Agreement, the rights and obligations of the parties under this Agreement,
and of any dispute between Foothill and NMT, shall be a court of competent
jurisdiction located in Los Angeles County, California; and
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6.3.3 IRREVOCABLY WAIVE THEIR RIGHT TO A JURY TRIAL IN ANY ACTION
OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THE CREDIT
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE INDEBTEDNESS. THE FOREGOING WAIVER
OF TRIAL BY JURY IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY FOOTHILL
AND NMT, AND EACH OF THEM ACKNOWLEDGES THAT FOOTHILL NOR ANY PERSON ACTING ON
BEHALF OF FOOTHILL HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF
TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. FOOTHILL AND NMT
FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED IN THE NEGOTIATION AND
EXECUTION OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT
LEGAL COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. FOOTHILL AND NMT FURTHER
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE MEANING AND RAMIFICATION OF
THIS PROVISION.
IN WITNESS WHEREOF, the parties have executed this instrument this 17th day
of August, 2000.
"Foothill"
By:/s/ Juan Barrera
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Juan Barrera
Its: Assistant Vice President
"NMT," a California Corporation
By: /s/ Patrick W. Moore
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Print Name: Patrick W. Moore
Its: CEO
