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SECOND AMENDMENT TO ASSIGNMENT AGREEMENT AND RELEASE
This Second Amendment to Assignment Agreement and Release ("Agreement") is
entered into effective as of March 29, 1996 (the "Effective Date") by and
between SGI International ("SGI") and Ernest P. Esztergar ("Esztergar").
RECITALS
A. SGI and Esztergar entered into an Assignment Agreement dated November
13, 1994 (the "Assignment"), by and between Esztergar and Synfuel
Genesis, Inc., a predecessor to SGI by merger.
B. Pursuant to the Assignment, Esztergar was to be paid a royalty or
certain income in accordance with the terms of the Assignment.
C. Esztergar and SGI desire to amend the Assignment and the First
Amendment dated November 13, 1994 to provide for a waiver and release
of the royalty in return for other good and valuable consideration to
be paid to Esztergar.
AGREEMENT
NOW THEREFORE, in consideration of the matters set forth in the
Recitals and for other good and valuable consideration the parties hereto agree
as follows:
1. WAIVER AND RELEASE. Esztergar agrees to waive and release all of his
past, present, and future rights (hereafter "Claims" as further
defined) to any income of any kind or any other payment to be made in
accordance with the Assignment and any amendments or modifications
thereto.
2. WARRANTY. Each of the parties hereto represent and warrant to the other
that to the extent of his or their knowledge, the recitals set forth
herein are true, correct, and accurate.
3. CLAIMS. As used herein, "Claims" shall mean any and all claims,
demands, agreements, contracts, covenants, representations, warranties,
promises, undertakings, actions, suits, causes of action, obligations,
debts, fees, costs, expenses, accounts, damages, judgments, losses,
injuries and liabilities of whatsoever kind or nature in law related to
the Assignment and only to the Assignment, whether in equity or
otherwise, present or future, known or unknown, suspected or
unsuspected, asserted or unasserted, whether against any party hereto
or not, and whether or not concealed or hidden, based upon any facts,
acts, or omissions occurring prior to the date hereof in any way
involved in or related to any of the matters which are or were the
subject of, or directly or indirectly involved with the facts relating
or comprising this Agreement.
EXHIBIT 10.3.3
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4. RELEASE. Esztergar, on behalf of himself, including assignees,
representatives, agents, or successors (collectively the "Releasors")
do hereby and forever remise, release and discharge SGI and any of its
agents or representatives, and any successors of and from any and all
Claims, and in particular any claims relating to the Assignment and
only the Assignment, which any of said Releasors have, have had, may
have had, or now have or hereafter, can shall or may have against SGI
or any of its officers, directors, representatives or successors.
5. WAIVERS. IT IS EXPRESSLY UNDERSTOOD THAT Section 1542 of the Civil Code
of California provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The provisions of Section 1542 of the Civil Code of California, if
in any way applicable to this Release, as well as any similar
provisions of the law of California or any other jurisdiction, ARE
HEREBY KNOWINGLY AND VOLUNTARILY WAIVED AND RELINQUISHED by all
parties hereto, and each of them. Each of the parties acknowledges
that he, she, or it, or his, her, or its representatives, may
hereafter discover facts in addition to or different from those
which he, she, or it now believes concerning the subject matter of
this Agreement, and that notwithstanding any such new or different
facts, this General Release shall remain in full force and effect
and shall not be challenged in any way or sought to be voided or
avoided. Such parties acknowledge and agree that this waiver is an
essential and material term of this Release without which
consideration agreed to have been given by each of the parties
would not have been delivered or agreed to by the parties. All of
the parties have been advised of their respective rights by legal
counsel regarding this Agreement and this waiver and understand and
acknowledge its significance and the consequence of the release and
waiver of Section 1542.
6. NO ADMISSIONS. The parties hereby acknowledge and agree that this is a
compromise settlement, which is not in any respect nor for any purpose
to be deemed or construed to be, or in any way to be used as evidence
of any admission or concession of any liability whatsoever on the part
of any of them or any other person, firm or corporation whatsoever.
7. FURTHER REPRESENTATIONS AND WARRANTY. Each of the parties hereto
warrants and represents that such party has not assigned or in any way
conveyed, transferred or encumbered all or any portion of the Claims or
other rights covered by this Agreement and that this Agreement has been
duly authorized, executed and delivered on behalf of each party and is
valid and enforceable against such party in accordance with its terms
and each party further acknowledges and agrees that these warranties
and representations are an essential and material term of this
Agreement without which consideration would not have been given and
delivered.
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8. ATTORNEYS FEES. Each party agrees to bear all of its own costs and
attorneys' fees and all other costs with respect to the matters
described in this Agreement.
9. GOVERNING LAW. This Agreement is made and entered into in the State of
California and is to be governed by and interpreted in accordance with
the laws of the State of California.
10. INTERPRETATION. If there is any dispute with respect to this Agreement
the interpretation of the words herein shall be made with respect to
the fair meaning of the words and not for or against any party because
one party drafted the document.
11. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have this day and year
executed and delivered this instrument.
SGI International Ernest P. Esztergar
By: /s/Joseph A. Savoca By:/s/Ernest P. Esztergar
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Joseph A. Savoca, President Ernest P. Esztergar
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