OF KENNETH NELSON, AND THE QUESTION WAS ON PAGE 3 OF THIS TRANSCRIPT: "WELL, SO THE PRICE, IF THE CLOSING WERE TO HAPPEN TOMORROW" - - AND THEY'RE TALKING ABOUT THIS SETTLEMENT - - "OR NEXT WEEK, WHENEVER, IT'S $1.7 MILLION; IS THAT CORRECT?" "ANSWER: I BELIEVE" - - THIS IS NELSON'S ANSWER - - "I BELIEVE THAT METRIC'S BREACH HAS EXCUSED THE
PERFORMANCE OF THE OTHER PARTIES TO THE SETTLEMENT AGREEMENT." LATER ON PAGE 4 - - THE COURT: WELL, LET ME - - I GOT TO - - MR. BAKER: LET ME JUST PUT IT ON THE RECORD, IF I MIGHT, YOUR HONOR. THE COURT: COUNSEL, I GOT TO MOVE THIS ALONG A LITTLE BIT. ANYBODY IN WISCONSIN HERE, DO YOU KNOW ABOUT THIS, AND WHAT'S THE ANSWER TO IT? MR. CHERNOF: FRANKLY, I CERTAINLY DON'T. MS. SCHLICHT: YOUR HONOR, THIS IS JANE SCHLICHT. I OBVIOUSLY WAS NOT AT THAT TRIAL. THE COURT: MR. NELSON WAS THERE. WHAT DO YOU HAVE TO SAY, MR. NELSON? MR. NELSON: THIS IS KEN NELSON. MY UNDERSTANDING IS THAT METRIC REFUSED TO BUY THE LAND THEREBY BREACHING THE AGREEMENT, AND, AS I UNDERSTAND IT - - YOU KNOW, I'M NOT A LAWYER - - THAT MEANS THAT PERFORMANCE OF THE OTHER PARTIES IS EXCUSED. THE COURT: ARE YOU GOING TO PERFORM? MR. NELSON: WELL, IF A COURT FINDS THAT THERE WAS NO BREACH BY METRIC. THE COURT: THAT'S WHAT THE WHOLE PURPOSE OF THIS HEARING IS. AT THE TIME WE'RE DONE HERE, WE'RE GOING TO ENFORCE THE SETTLEMENT. SO WHAT I HAVE SEEN SO FAR IS THAT PEOPLE ARE ARGUING ABOUT THE TERMS, AND WE'RE AT THAT POINT, AND I'M ENFORCING THE SETTLEMENT. I DON'T THINK ANYBODY HAS BREACHED ANYTHING YET. IT WILL BE ONCE I DO AN ORDER, AND IF THE PROPERTY ISN'T TRANSFERRED, AND ALL OF THE THINGS THAT ARE NEEDED TO CLOSE IT AREN'T ACCEPTED, THEN WE HAVE A DIFFERENT PROBLEM. BUT, MR. NELSON, ARE YOU GOING TO CLOSE THIS DEAL? MR. NELSON: I STICK WITH MY PREVIOUS ANSWER, YOUR HONOR. THE COURT: THAT DOESN'T COUNT. ARE YOU GOING TO CLOSE THIS DEAL? MR. NELSON: IF YOU DETERMINE - - IF YOU PROPERLY DETERMINE THAT METRIC'S ACTIONS HAVE NOT BEEN A BREACH, I DON'T SEE THAT I HAVE ANY CHOICE.
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THE COURT: MS. SCHLICHT, WHAT DO YOU HAVE TO SAY ABOUT THAT?
MS. SCHLICHT: ARE YOU ADDRESSING ME, YOUR HONOR? THE COURT: YES. MS. SCHLICHT: OUR POSITION HAS BEEN THAT THIS SETTLEMENT WAS REACHED IN MARCH OF 1993, AND IT WAS METRIC THAT BEGAN THIS LONG JOURNEY OF NOT WANTING TO PERFORM. THAT'S WHY WE COMMENCED THE ACTION IN WISCONSIN. AND HOW WE GOT ON THIS TOPIC IS MR. BAKER SAYING THAT HE IS - - HIS CLIENT IS NOT OBLIGATED TO BOTH TO PERFORM AND TO ANSWER FOR DAMAGES. WE DISAGREE AS TO METRIC'S LIABILITY. THE FACT OF THE MATTER IS, IT'S NOW BEEN MORE THAN TWO YEARS SINCE THIS SETTLEMENT HAD BEEN REACHED, AND MR. NELSON