Exhibit 10.65
FOURTH AGREEMENT
MODIFYING TERMS OF SETTLEMENT AGREEMENT
AND AFFECTING REAL PROPERTY IN XXXXXX COUNTY
This Agreement is made and entered into this 19th day of December, 2002, by
and between the Port of Tacoma, a Washington municipal corporation, hereinafter
referred to as the "Port", and CMC Real Estate Corporation, a Wisconsin
Corporation, Chicago Milwaukee Corporation, a Delaware Corporation, and CMC
Heartland Partners, a Delaware General Partnership with Heartland Technology,
Inc., a Delaware Corporation, and Heartland Partners, LP, a Delaware limited
partnership, as its general partners, hereinafter collectively referred to as
"CMC". The above are collectively referred to as the "parties".
WHEREAS, the Port and CMC are parties to a Settlement Agreement entered
into on October 1, 1998 with respect to a lawsuit filed by the Port against CMC
in the United States District Court for the Western District of Washington at
Tacoma under Xxxx Xx. X00-0000 XXX, and modified by an Agreement Modifying Terms
Of Settlement Agreement entered into by the parties on July 15, 1999, a Second
Agreement Modifying Terms Of Settlement Agreement And Affecting Real Property In
Xxxxxx County entered into by the parties on February 20, 2001, and a Third
Agreement Modifying Terms Of Settlement Agreement And Affecting Real Property In
Xxxxxx County entered into by the parties on January 25, 2002 (the original
Settlement Agreement, the Agreement Modifying Terms of Settlement Agreement, the
Second Agreement Modifying Terms Of Settlement Agreement And Affecting Real
Property In Xxxxxx County, and the Third Agreement Modifying Terms Of Settlement
Agreement And Affecting Real Property In Xxxxxx County are hereinafter
collectively referred to as "Settlement Agreement");
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WHEREAS, CMC has requested the Port to further modify the terms of the
parties' Settlement Agreement to further extend the time for payment of the
Settlement Amount; and
WHEREAS, the Port is willing to accommodate CMC's request for modification
of the Settlement Agreement upon certain terms and conditions as set forth in
this Agreement, which terms and conditions are acceptable to and agreed to by
CMC;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants set forth herein, the legal sufficiency of which is acknowledged, the
parties agree as follows:
1. The date through which the Port shall take no collection action
with respect to the Settlement Amount is extended to December 31, 2003
or the date of a sale or other disposition of all or any part of the
Property described in paragraph 4(d) below, whichever occurs first.
2. The date through which the Lawsuit shall be stayed is extended to
December 31, 2003 or the date of a sale or other disposition of all or
any part of the Property described in paragraph 4(d) below, whichever
occurs first.
3. The date through which the Stipulated Judgment shall be held by counsel
for the Port is extended to December 31, 2003, or the date of a sale
or other disposition of all or any part of the Property described in
paragraph 4(d) below, or the date of the satisfaction or payment by
CMC of the Settlement Amount together with all accrued interest, costs,
and attorney fees, whichever occurs first.
4. The extensions set forth above are subject to the following terms and
conditions:
a. CMC shall pay to Xxxxxxxxx Law Group PLLC, attorneys for the Port
in this matter, the attorney fees and costs incurred by the Port in
connection with this further modification of the Settlement
Agreement and the performance thereof, such amounts to be paid
within 30 days from the date of request for payment.
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b. The Court shall have agreed to extend the stay of the Lawsuit in
accordance with paragraph 2 above.
c. Beginning on January 1, 2003, and continuing thereafter until the
Settlement Amount is satisfied or paid in full, whichever occurs
first, the unpaid balance of the Settlement Amount shall accrue
interest at 7.5% per year or a rate equal to 1/2% over the prime
rate as published in the Wall Street Journal, whichever is greater.
CMC shall make quarterly interest payments to the Port on or before
the last day of each quarter. The interest rate applicable during
each quarter shall be determined as of the first day of such
quarter, beginning with January 1, 2003.
d. Upon any sale or other disposition of all or any part of the
approximately 177 acres of real property, presently owned by CMC
Heartland Partners IV, LLC, a Delaware limited liability company
that is a wholly-owned subsidiary of CMC, located in Fife,
Washington, the legal description of which is contained in Exhibit
A hereto (referred to herein as the "Property"), prior to the
Settlement Amount having been satisfied or paid in full, the Port
shall be paid at the time of such sale or other disposition, and
from the proceeds of such sale or other disposition or from other
funds if the proceeds at the time of such sale or other disposition
are insufficient to do so, an amount equal to the entire unpaid
balance of the Settlement Amount and all interest accrued thereon,
together with all attorney fees and costs incurred by the Port in
connection with this further modification of the Settlement
Agreement and the performance thereof. For purposes of this
Agreement, the date of a "sale or other disposition" means the
date of closing or the date of transfer of the beneficial use of,
or any other interest in or to, all or any part of the Property,
whichever occurs first, in any sale or other disposition of all or
any part of the Property. Until the Settlement Amount and all
interest accrued thereon, together with all attorney fees and costs
incurred by the Port in connection with this further modification
of the Settlement Agreement and the performance thereof, have been
paid in full, CMC shall on the last day of each quarter deliver to
the Port a certified statement signed by an officer of CMC,
describing the status of the Property and all activity related to
all pending or proposed sales or other dispositions of all or any
part of the Property during that quarter. In addition, until the
Settlement Amount and all interest accrued thereon, together with
all attorney fees and costs incurred by the Port in connection with
this further modification of the Settlement Agreement and the
performance thereof, have been paid in full, CMC shall instruct
the escrow agent involved in any sale or other disposition of all
or any part of the Property to deliver to the Port such information
as may be requested by the Port regarding any such transaction, and
to disburse to the Port the amounts required by this Agreement and
otherwise close such transaction in accordance with the terms of
this Agreement.
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5. Except as modified herein, all terms of the Settlement Agreement,
including the definitions stated therein, shall remain the same and
shall continue in full force and effect.
DATED: December 12, 2002. CMC Real Estate Corporation
Chicago Milwaukee Corporation, and
CMC Heartland Partners
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------
STATE OF Illinois )
)ss.
COUNTY OF Xxxx )
I certify that I know or have satisfactory evidence that
X.X. Xxxxxxx is the person who appeared before me, and said person
acknowledged that s/he signed this instrument, on oath stated that s/he was
authorized to execute the instrument and acknowledged it as the
President of CMC to be the free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
Dated: December 12, 2002.
/s/ Xxxxxxxx Xxxxxxx
-----------------------
Printed Name: Xxxxxxxx Xxxxxxx
Notary Public in and for the State of Illinois
Residing at Midlothian, Il
My appointment expires: 2-19-2004
DATED: December 19, 2002. PORT OF TACOMA
By: /s/ Xxxx Xxxxxxxx
------------------------
STATE OF Washington )
)ss.
COUNTY OF Xxxxxx )
I certify that I know or have satisfactory evidence that
Xxxx Xxxxxxxx is the person who appeared before me, and said person
acknowledged that s/he signed this instrument, on oath stated that s/he was
authorized to execute the instrument and acknowledged it as the
President of Port of Tacoma to be the free and voluntary act of
such party for the uses and purposes mentioned in the instrument.
Dated: December 19, 2002.
/s/ X.X. Xxxxx
------------------------------------------
Printed Name: X.X. Xxxxx
Notary Public in and for the State of Washington
Residing at Tacoma
My appointment expires: 12-15-03
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