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Exhibit 3
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THIS DEED is made on the 11th day of November 1996
BETWEEN:
AMERICAN PHOENIX GROUP, INC.
of Suite 1260, 5 Park Plaza
Irvine, California 92714
UNITED STATES OF AMERICA
("Assignor")
and
CAPITAL FINANCE CORPORATION
(PASTORAL HOLDINGS) PTY LTD
of 459 Collins Street
Melbourne, Victoria 3000
AUSTRALIA
("Assignee")
WHERE:
A. The parties set out in the Schedule to this Deed ("Borrowers") in relation
to the respective amounts set out against their names are indebted to the
Assignor pursuant to an assignment to the Assignor of the rights under the
original loan agreements executed by the Borrowers ("Loan Agreements").
B. The Loan Agreements constitute evidence of monies owed by the Borrowers to
the Assignor ("Debt").
C. The Assignor has agreed to assign its right title and interest in the Loan
Agreements to the Assignee and the Assignee has agreed to accept the
assignment.
NOW THIS DEED WITNESSES AS FOLLOWS THAT:-
1. Definitions and Interpretation
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1.1 Words importing the singular number include the plural and vice-versa
and words importing any gender include all other genders.
1.2 Headings are for reference only and shall not effect the construction
of this Deed.
1.3 A reference to a party if more than one is to them jointly and
severally.
1.4 Any reference to a statute ordinance code or other law, includes all
regulations and other instruments and all consolidations, amendments,
re-enactments or replacements.
1.5 All Schedules are included as part of this Deed.
1.6 Any reference to "dollars" or "$" is a reference to United States
currency.
1.7 The following words shall have meaning give to them:-
"Assignee" means Capital Finance Corporation (Pastoral Holdings) Pty
Ltd of 459 Collins Street, Melbourne, Victoria 3000, Australia.
"Assignor" means American Phoenix Group, Inc. of 5 Park Plaza, Suite
1260, Irvine, California 92714, United States of America.
"Borrowers" means the parties set out in the Schedule to this Deed.
"Debt" means monies owed by the Borrowers to the Assignor.
"Loan Agreements" means an assignment to the Assignor of the rights
under the original loan agreements executed by the Borrowers.
2. Assignment
In consideration of the payment of USD EIGHT MILLION SIX HUNDRED THOUSAND
DOLLARS (USD $ 8,600,000), the Assignor as beneficial owner assigns the
Assignee absolutely all of the Assignor's right, title and interest in the
Loan Agreements together with all interest which has accrued from September
1, 1996 or which may accrue in the future under the Loan Agreements.
3. Payment
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The parties agree that the consideration for the assignment shall be paid
by the Assignee to the Assignor as follows:-
3.1 USD FIVE HUNDRED THOUSAND DOLLARS (USD $500,000) on or before December
1, 1996.
3.2 USD THREE MILLION DOLLARS (USD $3,000,000) on or before December 15,
1996.
3.3 USD TWO MILLION DOLLARS (USD $2,000,000) on or before January 31,
1997.
3.4 USD THREE MILLION ONE HUNDRED THOUSAND DOLLARS (USD $3,100,000) on or
before February 28, 1997.
4. Covenants
The Assignor covenants with the Assignee as follows that :-
4.1 The Debt is still due and owing in full.
4.2 The Assignor has the full power to assign the Loan Agreement to the
Assignee.
4.3 The assignment of the Loan Agreement under this Deed shall be taken by
the Assignee free and clear of any mortgages, pledges, liens, charges
or any other encumbrances or claims or interest of any other persons
other than the charge to First For Finance Pty Ltd details of which
the Assignee is aware.
4.4 The Assignor shall do all acts and things including without limitation
the execution of all such documents as may be reasonably required by
the Assignee to give effect to the assignment contemplated by this
Deed.
5. Termination
The Assignee acknowledges that the Assignor shall be entitled to terminate
this Deed immediately by notice in writing to the Assignee upon the
happening of any of the following acts:-
5.1 The Assignee committing or permitting to occur any persistent breach
or default in the due and punctual observance and performance of any
of its covenants, duties and obligations, or any of the covenants,
duties or obligations to be performed by a consultant appointed by the
Assignee.
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5.2 The Assignee makes or has made or appointed in relation to it or is:-
5.2.1 An order for its winding up (except for the sole purpose of
reconstruction or amalgamation).
5.2.2 An order for the appointment of a provisional liquidator.
5.2.3 An assignment for the benefit of or composition with its
creditors.
5.2.4 Unable to pay its debts within the meaning of the Law.
5.2.5 An official manager or receiver is appointed pursuant to the
Law.
5.3 The Assignee if a natural person dies, or is, or becomes incapable of
managing its own affairs.
5.4 A trustee in bankruptcy is appointed of the Assignee or a composition
is made with its creditors.
5.5 Any execution or process of the court is issued against or levied upon
the Assignee for a sum of more than TEN THOUSAND DOLLARS ($10,000).
6. Default
If the Assignee defaults in any payment due to the Assignor then in
addition to the rights contained in the previous clause the full amount due
to the Assignor becomes immediately payable and the Assignor may
immediately issue proceedings for recovery of the fully amount.
7. Further Assurances
The parties shall, and shall use their respective reasonable endeavors to
procure from themselves and from any necessary third parties to do, execute
and perform all such further deeds, documents assurances, acts and things
as may be necessary or desirable to give full effect to the provisions of
this Deed without limiting the generality of the foregoing, any
re-execution or amendment of this Deed so as to bind the parties to the
terms and conditions stated in this Deed.
8. Entire Agreement
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This Deed constitutes the entire agreement between the parties with respect
to the matters dealt with in this Deed and supersedes any previous
agreement between the parties in relation to such matters.
9. Variations
No variation, modification, waiver or amendment of any provision of this
Deed, nor consent to any departure by any party to this Deed shall in any
event be of any force or effect unless the same shall be confirmed in
writing (in one or more copies), signed by the parties, and then such
variation, modification, waiver or consent shall be effective only the
extent for which it may be made or given.
10. Waiver
10.1 No failure to exercise and no delay in exercising on the part of the
Assignor any right, power or privilege under this Deed shall operate
as a waiver nor shall any sign or partial exercise of any right, power
or privilege preclude any other or further exercise or the exercise of
any other right, power or privilege.
10.2 The rights and remedies provided in this Deed are cumulative and not
exclusive of any rights or remedies otherwise provided by law.
11. Notices
11.1 Any notice, demand or other communication given or made under this
Deed shall be in writing and shall be deemed duly given or made if
delivered or sent by post, or facsimile transmission to the address of
the parties set out in this Deed. Any party may change its address or
facsimile transmission numbers for the purposes of this Deed by giving
notice in writing of such change to the other party.
11.2 Any notice, demand or other communication shall be deemed, in the
absence of proof to the contrary, to have been received by the party
to whom it was sent:
11.2.1 In the case of hand delivery, upon the date of such delivery.
11.2.2 In the case of prepaid post, on the second day next following
the date of dispatch.
11.2.3 In the case of facsimile transmissions, at the time of
transmission, provided that, following the transmission, the
sender receives the transmission confirmation report.
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Unless in any such case it would be deemed to have been received on a
day which is not a business day in the place where addressed, or after
5:00 p.m. on a business day, in which event it shall be deemed to have
been received on the next business day.
12. Inurement
The provisions of this Deed shall enure for the benefit of and be binding
upon the parties and upon their respective successors.
13. Severability
Notwithstanding that any provision of this Deed may prove to be illegal or
unenforceable pursuant to any statute or rule of law or for any other
reason those provisions are deemed omitted without affecting the legality
of the remaining provisions and, the remaining provisions of this Deed
shall continue in full force and effect.
14. Power of Attorney
The parties agree as follows:-
14.1 The Assignor for valuable consideration (the receipt of which is
acknowledged) irrevocably appoints the Assignee as the attorney of the
Assignor in the name of the Assignor to:-
14.1.1 Demand, sue for receive and give effectual discharges for the
Debt.
14.1.2 Conduct any legal proceedings in relation to the Debt including
proceedings on appeal as effectually as the Assignor could or
might.
14.1.3 For any purpose from time to time appoint any substitute
delegate or sub attorney.
14.2 The Assignee shall indemnify the Assignor against all costs and
expenses incurred in connection with anything done by the Assignee as
the attorney of the Assignor pursuant to this clause.
15. Governing Law
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This Deed shall be governed by and construed in accordance with the laws of
Victoria, Australia and the parties submit to the non-exclusive
jurisdiction of its courts.
IN WITNESS this Deed has been executed on the date first written
SIGNED for and on behalf of )
AMERICAN PHOENIX GROUP )
INC in the presence of: ) ____________________________________
Signature
____________________________________ ____________________________________
Signature of Witness Name
____________________________________ ____________________________________
Name of Witness (BLOCK LETTERS) Position
SIGNED for and on behalf of )
CAPITAL FINANCE CORPORATION )
(PASTORAL HOLDINGS) PTY LTD )
in the presence of: ) ____________________________________
Signature
____________________________________ ____________________________________
Signature of Witness Name
____________________________________ ____________________________________
Name of Witness (BLOCK LETTERS) Position
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PROMISSORY NOTE
$8,600,000 USD
FOR VALUE RECEIVED, undersigned Capital Finance Corporation (Pastoral Holdings)
Pty Ltd of 459 Collins Street, Melbourne Victoria 3000 Australia ("Maker")
promises to pay to the order of American Phoenix Group, Inc. of Suite 1260, 5
Park Plaza, Irvine, California 92714 United States of America ("Holder") at such
place as the Holder may designate in writing to the undersigned the principal
sum of $8,600,000 (Eight Million Six Hundred Thousand United States Dollars)
together with interest on the principal sum from date of this Promissory Note
until paid, at the rate 0.0% (zero percent) per annum as follows:
1. one (1) instalment of principal in the amount of $500,000 (Five Hundred
Thousand United States Dollars) to be effected on or before 1 December
1996,
2. one (1) instalment of principal in the amount of $3,000,000 (Three Million
United States Dollars) to be effected on or before 15 December 1996,
3. one (1) instalment of principal in the amount of $2,000,000 (Two Million
United States Dollars) to be effected on or before 31 January 1997,
4. one (1) instalment of principal in the amount of $3,100,000 (Three Million
One Hundred Thousand United States Dollars) to be effected on or before 28
February 1997,
unless extended by the mutual written consent of the parties. The entire
principal amount shall be paid on that date.
Payments shall be applied first to any accrued interest and the balance to
principal.
All or any part of the principal sum may be prepaid at any time and from time to
time without penalty.
In the event of any default by the undersigned in the payment of principal or
interest when due or in the event of the suspension of actual business,
insolvency, assignment for the benefit of creditors, adjudication of bankruptcy,
or appointment of a receiver, of or against the undersigned, the unpaid balance
of the principal sum of this Promissory Note shall at the option of the holder
become immediately due and payable.
The Maker and all other persons who may become liable for the payment of this
Promissory Note severally waive demand, presentment, protest, note of dishonor
or nonpayment, notice
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of protest, and any and all lack of diligence or delays in collection which may
occur, and expressly consent and agree to each and any extension or postponement
of time of payment of this Promissory Note from time to time at or after
maturity or other indulgence, and waive all notice of such.
This Promissory Note may be assigned by either party giving to the other notice
in writing of the assignment.
In case suit or action is instituted to collect this note, or any portion of
this note, the Maker promises to pay such additional sum, as the court may deem
reasonable, legal fees in said proceedings.
This note is made and executed under, and is in all respects by the laws of the
State of Victoria, Australia, however the parties agree to submit to the
jurisdiction of the State of California in the United States of America.
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