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Exhibit (10J)
ASSIGNMENT
THIS ASSIGNMENT is made this 16th day of April, 1997 by and between First
Union Management, Inc., a Delaware corporation ("FUMI"), and 3355489 Canada
Inc., a Canadian corporation ("Holdco 1").
WHEREAS, FUR was party to that certain Share Purchase Agreement dated as
of February 18, 1997 among FUR, Impark Investments Inc., the persons listed on
Schedule 1 thereto and certain others (as amended through the date hereof, the
"Share Purchase Agreement"); and
WHEREAS, FUR has assigned its rights and obligations under the Share
Purchase Agreement to FUMI and FUMI has accepted such assignment pursuant to an
Assignment dated March 27, 1997 between FUR and FUMI (the "Assignment");
WHEREAS, FUMI desires to assign its rights and obligations under the
Assignment to Holdco 1 and Holdco 1 desires to accept such assignment;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each party, the parties hereby
agree as follows:
1. Terms used herein commencing with initial capital letters and not
otherwise defined shall have the respective meanings ascribed thereto in
the Share Purchase Agreement.
2. In consideration of assuming all obligations under the Promissory Note
issued by FUMI to FUR in the amount of $4,659,125.08, FUMI hereby assigns
to Holdco 1 all rights, title, benefits, interest, liabilities and
obligations under the Assignment and any other documents related thereto
to which any of the Vendors and FUMI are parties or which have been
executed by any of them for the benefit of FUMI (collectively, the
"Documents").
3. Holdco 1 hereby accepts the within assignment to it of the rights, title,
benefits and interest of FUMI (the "Rights") and hereby covenants and
agrees with FUMI that it shall and will, from time to time, and at all
times hereafter be bound by, observe, perform and fulfil each and every
covenant, proviso, obligation, term and condition on the part of FUMI in
the Documents relating to the acquisition of the Purchased Shares and the
payment of the Purchase Price therefor to the same extent as if Holdco 1
had been originally named as a party to the Documents in the place
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and stead of FUMI in so far as the Documents relate to the acquisition of
the Purchased Shares.
4. Holdco 1 shall be entitled to hold and enforce all of the Rights in, to
and under the Documents (including, without limitation, under the Escrow
Agreement).
5. All references to "Purchaser" in the Documents shall be deemed to include
Holdco 1 insofar as is necessary to give effect to the assignment of the
Rights in, to and under the Documents effected hereby and, for greater
certainty, any Loss suffered by Holdco 1 shall be deemed to be a Loss
suffered by Purchaser for purposes of Article 11 of the Purchase
Agreement.
6. FUMI further covenants to do all such acts and execute all such documents
as may be reasonably necessary or desirable to secure the vesting in
Holdco 1 of all rights assigned to Holdco 1 hereunder.
7. This Assignment shall be governed by and construed in accordance with the
laws of the State of Ohio.
8. This Assignment is for the benefit of Holdco 1 and its subsidiaries and
may be assigned by Holdco 1 to any of its direct or indirect subsidiaries.
9. This Assignment constitutes the entire agreement between the parties with
respect to the subject matter hereof. No amendment or waiver of any
provision of this Assignment shall be binding on any party unless
consented to in writing by such party.
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IN WITNESS WHEREOF, this Assignment has been duly executed by the
authorized officers of the parties hereto.
FIRST UNION MANAGEMENT, INC.
By: /s/ Authorized Signer
_______________________________
Name: _______________________________
Title: _______________________________
3355489 CANADA INC.
By: /s/ Authorized Signer
_______________________________
Name: _______________________________
Title: _______________________________
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ALLONGE TO DEMAND PROMISSORY NOTE
3355489 Canada Inc. assumes all obligations and rights of First Union
Management, Inc. ("FUMI") under the Demand Promissory Note in the amount of U.S.
$4,659,125.08 dated March 27, 1997 issued by FUMI and payable to the order of
First Union Real Estate Equity and Mortgage Investments.
Dated: April 17, 1997 3355489 CANADA INC.
By:__________________________
Name:________________________
Title:_______________________
Accepted and Agreed:
FIRST UNION REAL ESTATE EQUITY
AND MORTGAGE INVESTMENTS
By:___________________________
Name:_________________________
Title:________________________
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ALLONGE TO DEMAND PROMISSORY NOTE
3357392 Canada Inc. assumes all obligations and rights of 3355489
Canada Inc. under the Demand Promissory Note in the amount of U.S. $4,659,125.08
dated March 27, 1997 issued by FUMI and assumed be 3355489 Canada Inc. and
payable to the order of First Union Real Estate Equity and Mortgage Investments.
Dated: April 17, 1997 3357392 CANADA INC.
By:__________________________
Name:________________________
Title:_______________________
Accepted and Agreed:
FIRST UNION REAL ESTATE EQUITY
AND MORTGAGE INVESTMENTS
By:___________________________
Name:_________________________
Title:________________________