ASSIGNMENT OF LICENSES,
PERMITS AND CONTRACTS
THIS ASSIGNMENT OF LICENSES, PERMITS AND CONTRACTS
("Assignment") is made as of the 3rd day of August, 1998, by EL CONQUISTADOR
PARTNERSHIP, L.P., a Delaware limited partnership, having its principal place of
business at 1000 El Conquistador Avenue, Las Croabas, Puerto Rico 00738
("Assignor"), to CITICORP REAL ESTATE, INC., a Delaware corporation, having an
address at 599 Lexington Avenue, New York, NY 10043 ("Assignee").
RECITALS:
A. Assignee is the owner and holder of certain reimbursement
obligations in the principal amount of $90,000,000 (collectively, the
"Reimbursement Obligations") which are outstanding pursuant to a Letter of
Credit and Reimbursement Agreement, dated as of February 7, 1991, by and between
The Bank of Tokyo-Mitsubishi, Ltd. (f/k/a The Mitsubishi Bank, Limited)
("Mitsubishi") and the Assignor (as heretofore amended and as amended on the
date hereof by the Modification Agreement (as hereinafter defined), the
"Reimbursement Agreement").
B. The Reimbursement Obligations are secured, in part, by
certain Collateral Pledge Agreements more particularly described in the
Reimbursement Agreement (collectively, the "Security Instruments") and by
certain other notes, deeds of mortgage, assignments, guaranties and other
documents and instruments executed in connection with the Reimbursement
Agreement (including the Modification Agreement) or otherwise with respect to
the Reimbursement Obligations (collectively, the "Other Security Documents").
C. At the request of Assignor and pursuant to the terms of
that certain Assignment and Modification Agreement, dated as of even date
herewith, by and among the Assignee, the Assignor, Mitsubishi and certain other
parties (the "Modification Agreement"), the term for payment of the
Reimbursement Obligations is being extended and certain terms and provisions of
the Reimbursement Agreement, the Security Instruments and the Other Security
Documents, among other things, are being amended and modified at the request of
the Assignor (the Reimbursement Agreement, the Security Instruments, the Other
Security Documents and each of the other documents evidencing, securing or
otherwise relating to the Reimbursement Obligations or any of the foregoing
documents are hereinafter sometimes collectively referred to as the "Loan
Documents").
D. Assignee requires as a condition to its entering into the
Modification Agreement and modifying the Reimbursement Obligations that Assignor
enter into this Agreement as additional security for all of Assignor's
obligations under the Reimbursement Agreement, the Security Instruments and the
other Loan Documents.
AGREEMENT:
For good and valuable consideration the parties hereto agree
as follows:
1. Assignment of the Agreements. As additional collateral
security for the Loan and the observance and performance by Assignor of the
terms, covenants and conditions of the Reimbursement Agreement, the Security
Instrument and the Other Security Documents on the part of Assignor to be
observed or performed, Assignor hereby transfers, sets over and assigns to
Assignee all of Assignor's right, title and interest in and to the Agreements.
2. Assignor's Covenants. Assignor hereby covenants with
Assignee that during the term of this Assignment: (a) Assignor shall fulfill and
perform each and every material term, covenant and provision of the Agreements
to be fulfilled or performed by Assignor thereunder, if any, (b) Assignor shall,
in the manner provided for in this Assignment, give prompt notice to Assignee of
any notice of default received by Assignor under any of the material Agreements,
together with a complete copy of any such notice, (c) Assignor shall enforce,
short of termination thereof, the performance and observance of each and every
material term, covenant and provision of the Agreements to be performed or
observed, if any and (d) Assignor shall not terminate or amend any of the terms
or provisions of any of the Agreements, except as may be permitted pursuant to
the terms of the Agreements and done in the ordinary course of business, without
the prior written consent of Assignee, which consent may be withheld by Assignee
in Assignee's sole discretion. In the event Assignor has terminated an
Agreement, Assignor may elect to enter into another Agreement containing terms
and conditions no less favorable to Assignor than the terminated Agreement or
elect not to enter into another Agreement, provided, however, that Assignor
agrees to assume all obligations under the Agreement being terminated to the
extent that such obligations are required to be performed in connection with the
operations of the Property as presently being conducted.
3. Governing Law. This Assignment shall be deemed to be
governed, construed, applied and enforced in accordance with the laws of the
Commonwealth of Puerto Rico and the applicable laws of the United States of
America.
4. Notices. All notices or other written communications
hereunder shall be deemed to have been properly given and become effective as
provided in the Reimbursement Agreement.
5. No Oral Change. This Assignment, and any provisions hereof,
may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Assignor or
Assignee, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
6. Liability. If Assignor consists of more than one person,
the obligations and liabilities of each such person hereunder shall be joint and
several. This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective successors and assigns forever.
7. Inapplicable Provisions. If any term, covenant or condition
of this Assignment is held to be invalid, illegal or unenforceable in any
respect, this Assignment shall be construed without such provision.
8. Headings, etc. The headings and captions of various
paragraphs of this Assignment are for convenience of reference only and are not
to be construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
9. Duplicate Originals; Counterparts. This Assignment may be
executed in any number of duplicate originals and each duplicate original shall
be deemed to be an original. This Assignment may be executed in several
counterparts, each of which counterparts shall be deemed an original instrument
and all of which together shall constitute a single Assignment. The failure of
any party hereto to execute this Assignment, or any counterpart hereof, shall
not relieve the other signatories from their obligations hereunder.
10. Number and Gender. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
11. Miscellaneous. (a) Wherever pursuant to this Assignment
(i) Assignee exercises any right given to it to approve or disapprove, (ii) any
arrangement or term is to be satis factory to Assignee, or (iii) any other
decision or determination is to be made by Assignee, the decision of Assignee to
approve or disapprove, all decisions that arrangements or terms are satis
factory or not satisfactory and all other decisions and determinations made by
Assignee, shall be in the sole and absolute discretion of Assignee and shall be
final and conclusive, except as may be otherwise expressly and specifically
provided herein.
(b) Wherever pursuant to this Assignment it is provided that
Assignor pay any costs and expenses, such costs and expenses shall include, but
not be limited to, reasonable legal fees and disbursements of Assignee, whether
retained firms, the reimbursement for the expenses of in-house staff or
otherwise.
IN WITNESS WHEREOF Assignor has executed this Assignment as of
the date and year first written above.
ASSIGNOR:
EL CONQUISTADOR PARTNERSHIP L.P., a
Delaware limited partnership
By: Conquistador Holding, Inc., a Delaware
corporation, its general partner
By: /s/ Larry M. Vitale
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Name: Larry M. Vitale
Title: Vice President
STATE OF FLORIDA )
) ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 2nd day of
August, 1998, by Larry M. Vitale, as Vice President of EL CONQUISTADOR
PARTNERSHIP L.P., a Delaware limited partnership, on behalf of the limited
partnership. He is personally known to me or has produced a driver's license as
identification.
/s/ Olga L. Duque
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Notary Public
My commission expires:
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SCHEDULE A
Description of Certain Agreements,
Permits and Contracts