Exhibit 10.56
THIRD AGREEMENT
MODIFYING TERMS OF SETTLEMENT AGREEMENT
AND AFFECTING REAL PROPERTY IN XXXXXX COUNTY
This Agreement is made and entered into this ___ day of December, 2001, 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, and a
Second Agreement Modifying Terms Of Settlement Agreement And Affecting Real
Property In Xxxxxx County entered into the parties on February 20, 2001 (the
original Settlement Agreement, the Agreement Modifying Terms of Settlement
Agreement, and the Second Agreement Modifying Terms Of Settlement Agreement And
Affecting Real Property In Xxxxxx County, are hereinafter collectively referred
to as "Settlement Agreement");
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
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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, 2002 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, 2002 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, 2002, 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, 2002, 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 to1/2% 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, 2002.
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.
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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.
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 ___, 2001. CMC Real Estate Corporation
Chicago Milwaukee Corporation, and
CMC Heartland Partners
By:_______________________________
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STATE OF ______________ )
)ss.
COUNTY OF _____________ )
I certify that I know or have satisfactory evidence that _______________
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 ______________ of ______________ to be
the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
Dated: December ___, 2001.
-------------------------------------------
Printed Name:______________________________
Notary Public in and for the State of _____
Residing at _______________________________
My appointment expires: ___________________
DATED: December ___, 2001. PORT OF TACOMA
By:________________________________
STATE OF ______________ )
)ss.
COUNTY OF _____________ )
I certify that I know or have satisfactory evidence that _______________
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 ______________ of ______________ to be
the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
Dated: December ___, 2001.
-------------------------------------------
Printed Name:______________________________
Notary Public in and for the State of _____
Residing at _______________________________
My appointment expires: ___________________
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