Exhibit 10.48
SECOND AGREEMENT
MODIFYING TERMS OF SETTLEMENT AGREEMENT
AND AFFECTING REAL PROPERTY IN XXXXXX COUNTY
This Agreement is made and entered into this 20th day of February, 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 (the
original Settlement Agreement and Agreement Modifying Terms of Settlement
Agreement 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
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:
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1. The date through which the Port shall take no collection action with
respect to the Settlement Amount is extended to December 31, 2001.
2. The stay of the Lawsuit is extended through December 31, 2001.
3. The date through which is Stipulated Judgment shall be held by counsel
for the Port is extended to December 31, 2001 or the date of satisfaction or
payment by CMC of the Settlement Amount together with all accrued interest,
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 future performance
thereof, such amounts to be paid within 30 days from the date of request for
payment.
b. The Court shall have agreed to extend the stay of the Lawsuit through
December 31, 2001.
c. Beginning on January 1, 2001, 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 a rate equal to
1/2% over the prime rate as published in the Wall Street Journal. Interest
payments shall be made quarterly 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, 2001.
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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 each such sale or disposition and from the proceeds of
each such sale or disposition, or from other funds if the proceeds at the time
of each such sale or disposition are insufficient to do so, an amount which
bears the same proportion to the Settlement Amount as the number of acres sold
in each such sale or disposition bears to the total acreage of the Property,
until the Settlement Amount and all interest accrued thereon have been paid in
full. The payment provisions of this sub-paragraph d. shall not apply to any
sale or other disposition of the Property to CMC or any wholly-owned subsidiary
of CMC, and shall also not apply to any sale or other disposition of the
Property to any public entity other than pursuant to a condemnation or a sale or
other disposition for cash and/or other real property. Until the Settlement
Amount and all interest accrued thereon 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 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.
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DATED: February 16th, 2001. CMC Real Estate Corporation
Chicago Milwaukee Corporation, and
CMC Heartland Partners
By: Xxxxxxx X. Xxxxxxxxxxxx
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STATE OF ILLINOIS
COUNTY OF XXXX
I certify that I know or have satisfactory evidence that Xxxxxxx X.
Xxxxxxxxxxxx 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 Vice President of the above
companies to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
DATED: February 16th, 2001.
Xxxx Xxxxxxxx
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Printed Name: Xxxx Xxxxxxxx
Notary Public in and for the Sate
of Illinois
Residing at Xxxx, County, IL
My appointment expires: 08/14/04
DATED: February 20, 2001.
PORT OF TACOMA
By: Xxxxxx X. Xxxxxxxxx
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STATE OF Washington
COUNTY OF Xxxxxx
I certify that I know or have satisfactory evidence that Xxxxxx X.
Xxxxxxxxx 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 General Counsel of the Port of
Tacoma to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
DATED: February 20, 2001.
Xxxxx X. Xxxxx
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Printed Name: Xxxxx X. Xxxxx
Notary Public in and for the State of WA
Residing at Tacoma, WA
My appointment expires: 05/16/01
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