Exhibit 3
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Agreement"), dated as of December 20,
2001, between XX XXXXXX XXXXX BANK (formerly known as The Chase Manhattan Bank)
(the "Bank") and SIXTH AVENUE ASSOCIATES LLC, a Delaware limited liability
company ("SAA").
WHEREAS, Equistar Consolidated Holdings, LLC ("Equistar") has issued to the
order of the Bank that certain Grid Demand Promissory Note (Libor/Prime), dated
as of September 27, 2000 (the "Note") in an aggregate principal amount equal to
the loans referred to below.
WHEREAS, pursuant to the Note, the Bank has made loans to Equistar in an
aggregate principal amount outstanding on the date hereof of $22,000,000,
together with accrued interest unpaid on the date hereof of $56,833.34 (the
"Loans").
WHEREAS, in support of repayment of the Loans, Xxxxxxx X. Xxxxxx ("Xxx.
Xxxxxx") has pledged and granted a security interest in certain collateral
pursuant to a Collateral Agreement dated as of November 1, 2000 (the "Eweson
Equistar Collateral Agreement"), by Mrs. Eweson to the Bank.
WHEREAS, in support of repayment of the Loans, Universal Equities
Consolidated, LLC ("Universal") has pledged and granted a security interest in
5,110,938 shares of common stock of Emex Corporation (formerly known as Hawks
Industries, Inc.) pursuant to a Collateral Agreement dated as of September 29,
2000, as amended to date (the "Universal Emex Collateral Agreement"), by
Universal to the Bank.
WHEREAS, in support of repayment of the Loans, Thorn Tree Resources, LLC
("TTR") has pledged and granted a security interest in 11,085,938 shares of
common stock of Emex Corporation (formerly known as Hawks Industries, Inc.)
pursuant to a Collateral Agreement dated as of September 29, 2000, as amended to
date (the "TTR Emex Collateral Agreement", and together with the Universal Emex
Collateral Agreement, the "Emex Collateral Agreements"), by TTR to the Bank.
WHEREAS, contemporaneous with the transactions contemplated by this
Assignment Agreement and at the request of SAA, the Bank will terminate the
Eweson Equistar Collateral Agreement, and release Mrs. Eweson from all
Liabilities in connection with the Eweson Equistar Collateral Agreement.
WHEREAS, the Bank desires to sell and assign, and SAA desires to buy and
accept, all of the Bank's right, title and interest to and in the Loans, Note,
and Emex Collateral Agreements. Capitalized terms used in the Note and the
Eweson Equistar Collateral Agreement, but not defined herein, have the meanings
set forth in the Note and the Eweson Equistar Collateral Agreement.
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NOW, THEREFORE, in consideration of the premises, the parties hereto hereby
agree as follows:
1. In consideration of the payment by SAA to the Bank of $22,000,000, being
the aggregate principal amount outstanding on the date hereof of the Loans, and
of $56,833.34, being the aggregate unpaid accrued interest on the Loans, receipt
of which payment is hereby acknowledged by the Bank, (a) the Bank hereby sells
and assigns to SAA, and SAA hereby buys and accepts from the Bank, all of the
Bank's right, title and interest in and to the Loans, Note, Emex Collateral
Agreements and all other Facility Documents if any, other than the Eweson
Equistar Collateral Agreement, (b) the Bank hereby delivers to SAA the Note
outstanding on the date hereof indorsed by the Bank to the order of SAA without
recourse, and (c) the Bank hereby delivers to SAA a cancellation letter, in
substantially the form of Annex A attached hereto (the "Cancellation Letter"),
delivered by the Bank to Mrs. Eweson pursuant to which the Bank terminates the
Eweson Equistar Collateral Agreement and releases Mrs. Eweson from all
Liabilities in connection with the Eweson Equistar Collateral Agreement.
2. The Bank hereby instructs Equistar to make all payments (including,
without limitation, all payments of principal and interest) under the Note and
the other Facility Documents to SAA at x/x Xxxxxxx Xxxxxxxxxx Xxx. 00xx Xxxxx,
0000 Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxx X.
Xxxxx, and the Bank hereby agrees that, if any such payments are paid to or
otherwise received by the Bank, the Bank will immediately re-transfer such
payments to SAA at x/x Xxxxxxx Xxxxxxxxxx Xxx. 00xx Xxxxx, 0000 Avenue of the
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxx X. Xxxxx.
3. The Bank (i) represents and warrants that it is the legal and beneficial
owner of all the interests being sold and assigned by it to SAA hereunder and
that such interests are free and clear of any adverse claim created or incurred
by the Bank; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Note or any other Facility Document or any
other instrument or document furnished pursuant thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Note or any other Facility Document or any other instrument or document
furnished pursuant thereto, or the perfection, priority or value of any
ownership interest or security interest created or purported to be created under
the Note or any other Facility Document; and (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of Equistar or the performance or observance by Equistar of any of its
obligations under the Note or any other Facility Document or any other
instrument or document furnished pursuant thereto.
4. Effective immediately, (i) SAA shall be a party to the Note and the Emex
Collateral Agreements and have the rights and obligations of the Bank
thereunder, and (ii) the Bank shall relinquish its rights and be released from
its obligations under the Note and the Emex Collateral Agreements, and the Bank
shall cease to be a party thereto.
5. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
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6. This Agreement may be executed by one or more counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date and year first written above.
XX XXXXXX CHASE BANK
By:
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Name:
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Title:
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SIXTH AVENUE ASSOCIATES LLC
By:
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Name:
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Title:
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By:
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Name:
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Title:
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