Exhibit 10.49
AGREEMENT
MODIFYING TERMS OF SETTLEMENT AGREEMENT
AND AFFECTING REAL PROPERTY IN XXXXXX COUNTY
This Agreement is made and entered into this 28th day of June, 1999, 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 Unites States District Court for the Western District of
Washington at Tacoma under Xxxx Xx. X00-0000 XXX;
WHEREAS, CMC has requested the Port to modify the terms of the parties'
Settlement Agreement to extend the time for the 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, 2000.
2. The stay of the Lawsuit is extended through December 31, 2000.
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3. The date through which the Stipulated Judgement shall be held by
counsel for the Port is extended to December 31, 2000 or other 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. On or before June 30, 1999, CMC shall pay $35,750 in cash to the
Port, such payment being for interest accrued on the Settlement Amount from
January 1, 1999 through June 30, 1999 pursuant to the terms of the Settlement
Agreement.
b. Within 30 business days after the date of request by the Port, CMC
shall pay in cash to the Port the amount requested by the Port for the actual
and reasonable attorney fees and costs incurred by the Port in connection
with the modification of the Settlement Agreement.
c. On or before July 30, 1999, the court shall have agreed to extend
the stay of the Lawsuit through December 31, 2000.
d. Beginning on July 1, 1999, 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 July 1, 1999.
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e. 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
e. 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: June 28, 1999. CMC Real Estate Corporation
Chicago Milwaukee Corporation, and
CMC Heartland Partners
By: Xxxxx Xxxxxxxx
--------------
STATE OF ILLINOIS )
)ss.
COUNT OF XXXX )
I certify that I know or have satisfactory evidence that Xxxxx Xxxxxxxx
is the person who appeared before me, and said person acknowledged that he
signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the President of the above entities to be
the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
DATED: June 28, 1999.
Xxxxxxxx Xxxxxxx
----------------------------------
Printed Name: Xxxxxxxx Xxxxxxx
Notary Public in and for the State
of Illinois
Residing at Xxxx County
My appointment expires: 2/19/2000
DATED: July 15, 1999. PORT OF TACOMA
By: Xxxxx Xxxxxxx
--------------------------------
STATE OF WASHINGTON )
)ss.
COUNT OF XXXXXX )
I certify that I know or have satisfactory evidence that Xxxxx 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 Port of Tacoma to be
the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
DATED: July 15, 1999.
Xxxxxx X. Xxxxx
-----------------------------------
Printed Name: Xxxxxx X. Xxxxx
Notary Public in and for the State
of WA
Residing at Tacoma
My appointment expires: 7/7/2002
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