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EXHIBIT 10.19
COMPANY SECURITY AGREEMENT
This Company Security Agreement ("Security Agreement"), dated
as of November 1, 1985, is executed by RADIATION STERILIZERS, INCORPORATED, a
California corporation ("Debtor"), in favor of and for the equal and ratable
benefit of ▇▇▇▇▇ FARGO BANK, N.A., a national banking association ("Bank") and
BANK ONE TRUST COMPANY, N.A., a national banking association ("Bond Trustee"),
as assignee of all right, title and interest of the Trinity River Industrial
Development Authority, a non-profit industrial development corporation
("Issuer"), in and to that certain Series 1985A Loan Agreement (the "Series A
Loan Agreement"), dated as of the date hereof between Debtor and Issuer, for the
benefit of the holders of the Trinity River Industrial Development Authority
Variable Rate Demand Industrial Development Revenue Bonds (Radiation
Sterilizers, Incorporated Project), Series 1985A (the "Series A Bonds") issued
pursuant to that certain Trust Indenture (the "Trust Indenture") dated as of the
date hereof, between Issuer and Bond Trustee. Bank and Bond Trustee are
collectively referred to herein as "Secured Party." This Security Agreement is
executed in conjunction with that certain Series A Reimbursement Agreement of
even date herewith between Debtor and Bank (the "Series A Reimbursement
Agreement") and the Series A Loan Agreement, both of which agreements relate to
the Properties (as defined below). Capitalized terms used and not defined herein
shall have the meanings set forth for them in the Series A Reimbursement
Agreement.
1. Assignment. For valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor hereby grants and assigns
to Secured Party, as security for the Obligations (as defined below), all of
Debtor's right, title and interest, whether now existing or hereafter arising,
in and to the personal property described in Schedule "l," attached hereto and
incorporated herein by this reference (collectively, the "Collateral").
2. Obligations Secured. This Security Agreement secures the
prompt payment and performance of each of the following obligations
(collectively, the "Obligations"):
2.1 All obligations of Debtor to Bank under the Loan
Documents, including without limitation (a) Debtor's reimbursement obligations
in connection with that certain Series A Letter of Credit (the "Series A Letter
of Credit") in the amount of $2,198,596.00, being issued by Bank
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pursuant to the Series A Reimbursement Agreement, (b) all of the interest
accruing from time to time as set forth in the Series A Reimbursement Agreement,
and (c) all obligations contained in this Security Agreement.
2.2 The payment by RSI to Bond Trustee of the principal of,
and accrued interest on, the Series A Bonds.
2.3 All other obligations of RSI to Bank or Bond Trustee
that are evidenced by a document, executed at Bank's request, which states that
it is secured by this Security Agreement.
2.4 All renewals, extensions, supplements and other
modifications of any of the foregoing, including without limitation
modifications that are evidenced by new or additional documents or that change
the rate of interest on any Obligation.
The word "obligation" is used herein in its most comprehensive sense and
includes all present and future indebtedness, liabilities, undertakings,
covenants and conditions, whether voluntary or involuntary, absolute or
contingent, liquidated or unliquidated, determined or undetermined, earned or
unearned, and due or not due.
3. Representations and Warranties. Debtor represents and
warrants that:
(a) Debtor has, or upon acquisition will have, and at all
times will maintain, good and marketable title to all of the Collateral, free
and clear of any security interest, mortgage, adverse claim, pledge, lien,
charge, default, defense, condition precedent or encumbrance, except as created
in favor of Secured Party or as permitted by Secured Party in writing; and
(b) Debtor has not previously assigned or encumbered
Debtor's interest in, or rights to, any of the Collateral, and no financing
statement (or other notice of any lien, security interest or encumbrance)
covering any of the Collateral is on file with any governmental official or
authority or has been delivered to any other person or entity except as
permitted by Secured Party in writing; and
(c) all information given to Secured Party by Debtor, or at
Debtor's request or instruction, with respect
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to the Collateral is accurate and contains no material misrepresentation or
omission; and
(d) that portion of the Collateral consisting of
instruments, contracts, chattel paper, documents or governmental licenses,
permits or approvals, is genuine and complies with all applicable laws
concerning form, content and manner of preparation and execution; and
(e) all parties to any of the Collateral consisting of
instruments, contracts, chattel paper, documents or governmental licenses,
permits or approvals, are bound as they appear to be under such Collateral; and
(f) Debtor's principal place of business is located at ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
4. Use. None of the Collateral shall be used for any unlawful
purpose, for hire or in any way which would limit or void any insurance required
to be maintained under this Security Agreement.
5. Collateral Protection. Debtor, at its expense, shall
warrant and defend title to the Collateral against the claims of all third
parties, and shall from time to time execute and deliver all further instruments
and contracts, and take all further action, that is necessary or appropriate (or
that Secured Party from time to time reason-ably deems necessary or appropriate)
to: (i) create, perfect, protect and maintain the security interests
contemplated by this Security Agreement; (ii) facilitate the performance of this
Security Agreement; (iii) secure or facilitate Secured Party's exercise of its
rights and remedies; (iv) evaluate the worth, condition and amount or extent of
the Collateral; (v) evaluate Debtor's performance of this Security Agreement;
(vi) determine the nature and source of prior or subsequent security interests,
mortgages, adverse claims, pledges, liens, charges or encumbrances on or
affecting any of the Collateral; and, (vii) maintain, preserve and protect the
Collateral and keep the Collateral in good and salable condition in accordance
with standards and practices generally adhered to by users or owners of personal
property similar in nature to the Collateral.
6. Perfection of Security Interest. Debtor covenants and
agrees that Debtor shall do and perform all acts and things necessary or
appropriate (or which Secured Party reasonably deems necessary or appropriate)
to perfect, or to give
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any necessary or desirable notice of, Secured Party's security interest in the
Collateral. Debtor further covenants and agrees to obtain appropriate consents
from all persons and entities whose consents may be necessary or desirable to
vest Secured Party with a valid and enforceable security interest in the
Collateral. Prior to delivering any Collateral to any bailee under any
circumstance whatsoever, Debtor shall notify Secured Party of such intention.
7. Notice of Action. Debtor covenants and agrees to notify
Secured Party immediately of any legal process levied against any of the
Collateral or any other event which affects the value, use or possession of the
Collateral or any of the rights of Debtor or Secured Party in relation to any of
the Collateral.
8. Miscellaneous Rights of Secured Party. At any time without
notice and at the expense of Debtor, Secured Party may, but shall not be
obligated to, do any or all of the following:
(a) notify any person obligated on any of the Collateral of
Secured Party's rights under this Security Agreement and enforce any or all such
rights;
(b) insure, protect, defend and preserve the Collateral or
any rights or interests of Secured Party with regard to any of the Collateral,
including without limitation the filing and prosecution of any third party claim
or other legal action or proceeding which Secured Party deems necessary to
protect any of Secured Party's rights, interests or priorities with respect to
any of the Collateral;
(c) inspect the Collateral during normal business hours;
and
(d) endorse, collect and receive any right to payment of
money owing to Debtor under any account, chattel paper, contract, deposit
account, document, general intangible, instrument or proceeds thereof which is
part of the Collateral.
Secured Party shall have no duty or obligation whatsoever to make or give any
presentments, demands for performance, notices of nonperformance, notices of
protest or notices of dishonor in connection with any of the Collateral or to
take any other action to preserve, protect or defend any right, title or
interest of Debtor or Secured Party with respect to any of the Collateral or to
preserve any value or utility of any of the Collateral.
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9. Collateral Designation Statement. Secured Party may at any
time, and from time to time, require Debtor to deliver to Secured Party
statements certified by Debtor describing with particularity all Collateral then
subject to this Security Agreement; the precise location of such Collateral and
any other security interests, mortgages, claims, pledges, liens, charges or
encumbrances to which any of such Collateral may be subject.
10. Power of Attorney. Debtor hereby irrevocably appoints
Secured Party as Debtor's attorney-in-fact (such agency being coupled with an
interest) and as such attorney in-fact Secured Party may, without the obligation
to do so, in Secured Party's name or in the name of Debtor, prepare, execute and
file or record financing statements, continuation statements, applications for
registration and like papers necessary or desirable to create, perfect or
preserve any of Secured Party's security interests and rights in or to any of
the Collateral, and take after the occurrence of an "Event of Default" (as
hereinafter defined), any other action specified in Subsections 14(b)(i) -----
through (viii) inclusive hereof; provided that Secured Party as such
attorney-in-fact shall only be accountable for such funds as are actually
received by Secured Party.
11. Handling of Collateral. Except as otherwise provided in
this Security Agreement or any document evidencing obligations secured hereby,
as amended from time to time, so long as no default exists under this Security
Agreement and no default or event of default exists under any document
evidencing obligations secured hereby, Debtor may, subject to Secured Party's
rights under Section 8 hereof, possess, use, move, transfer or - dispose of any
of the Collateral in the ordinary course of Debtor's business and in accordance
with the Series A Reimbursement Agreement.
12. Miscellaneous Undertakings. Debtor, at its sole cost and
expense, agrees to:
(a) pay, discharge and perform all obligations secured by
this Security Agreement when due; and
(b) pay all expenses, including without limitation
attorneys' fees and court costs, incurred by Secured Party in connection with
the creation, perfection, preservation, or enforcement of any of the security
interests granted under this Security Agreement, the defense of the Collateral
or the exercise by Secured Party of the rights, powers or
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remedies granted to Secured Party under this Security Agreement, by law or
otherwise.
13. Default. The occurrence of any of the following events
shall constitute an "Event of Default" under this Security Agreement:
(a) the occurrence of any "Event of Default" described in
the Series A Reimbursement Agreement; or
(b) any default of any Obligation; or
(c) Debtor's failure to promptly pay any amount owing to
Bond Trustee which relates to the principal amount of, or the accrued interest
on, any Series A Bond; or
(d) any default of any other obligation now or hereafter
secured by this Security Agreement.
14. Secured Party's Rights on Default. Upon the occurrence of
an Event of Default under this Security Agreement and so long as such Event of
Default continues, all amounts and obligations secured by this Security
Agreement shall be immediately due and payable and, in addition to exercising
any other rights and remedies granted to Secured Party under the Loan Documents,
the applicable Uniform Commercial Code, as amended or recodified from time to
time (the UCC), or otherwise by law:
(a) Secured Party may do any or all of the following:
(i) enter upon any of the Properties (or other place
where any of the Collateral may be located) without prior notice
to Debtor and take possession of, assemble, sell, dispose,
collect and move any or all of the Collateral, or render such
Collateral unusable, and store any of the Collateral at locations
acceptable to Secured Party, at Debtor's expense;
(ii) upon written notice, require Debtor to assemble
any or all of the Collateral and make it available at a mutually
convenient place designated by Secured Party so as to permit
Secured Party to take possession of, move, store, sell or dispose
of such Collateral;
(iii) sell, assign and deliver (at Debtor's place of
business or any other place permitted by law)
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all or any part of the Collateral at public or private sales, for
cash or on credit, to a wholesaler, retailer or user of each type
of Collateral or at public auction, each of which Debtor agrees
constitute commercially reasonable methods of disposing of the
Collateral since differences in the sales prices generally
realized in the different kinds of sales are ordinarily offset by
the difference in the speed, costs and credit risks of such
sales;
(iv) bid and become purchaser at any public sale or
auction of the Collateral; and
(v) apply any Collateral or other security available
for satisfaction of obligations secured by this Security
Agreement to the payment of: expenses incurred by Secured Party
in connection with any use, sale, transfer or delivery of such
Collateral; any other costs, charges, reasonable attorneys' fees,
or other expenses incurred by Secured Party in connection with
the Loan Documents or the Bond Documents, and any other
obligations of Debtor to Secured Party that are secured by this
Security Agreement, in such order, priority and manner as Secured
Party in its sole discretion may determine; and
(b) Secured Party may, either in Secured Party's name or as
Debtor's attorney-in-fact, for the account of Debtor and at Debtor's expense, do
any or all of the following:
(i) operate, consume, sell or dispose of the Collateral
as Secured Party deems appropriate for the purpose of performing
any or all of the obligations secured by this Security Agreement;
(ii) enter into any extension, reorganization, deposit,
merger or consolidation, settlement or compromise or any other
agreement relating to or affecting any of the Collateral, and in
connection therewith Secured Party may (A) sell, transfer or
dispose of, release, discharge or deposit or surrender control of
any of the Collateral; (B) accept other property in exchange for
any of the Collateral; (C) take such action as Secured Party may
deem proper; and (D) apply any money or property received in
exchange for any of the Collateral to any of the obligations
secured by this Security Agreement;
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(iii) make any compromise or settlement which Secured
Party may deem desirable or proper with respect to any of the
Collateral or any controversies or disputes relating to the
Collateral, and release any of the Collateral and any persons
liable on any of the Collateral;
(iv) endorse, deliver evidences of title, receive,
enforce and collect by legal action or otherwise all indebtedness
and obligations now or hereafter owing in connection with or on
account of any or all of the Collateral;
(v) perform any of the obligations secured by this
Security Agreement;
(vi) enforce, adjust and receive payment or performance
in connection with any insurance claims, claims for breach of
warranty, claims under any letters of credit, instruments,
documents, chattel paper or contracts and similar matters
concerning any of the Collateral;
(vii) exercise any and all other rights, powers and
remedies which Debtor would have, but for this Security
Agreement, in connection with the Collateral; and
(viii) sell or dispose of all or part of the Collateral
consisting of instruments that are "securities" under applicable
law at one or more private sales to a restricted group of
purchasers who will be obligated to agree, among other things, to
acquire any such securities for their own account, for investment
and not with a view to distribution or resale thereof. Debtor
acknowledges that any such private sales may be at prices and on
terms less favorable to Secured Party than those of public sales,
and agrees that such private sales shall be deemed to have been
made in a commercially reasonable manner and that Secured Party
has no obligation to delay sale of any such securities to permit
the issuer thereof to register such securities for public sale
under applicable law.
15. No Responsibility. Debtor acknowledges that Secured Party
has no responsibility for, and does not assume any of, Debtor's obligations or
duties under any agreement, instrument, general intangible or other contract or
obligation which is part of the Collateral or any obligation relating to the
acquisition, preparation or holding of the Collateral.
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16. Notices. All notices which any party hereto may desire or
may be required to give to any other party hereto shall be given in accordance
with Section 12.11 of the Series A Reimbursement Agreement.
17. Attorneys' Fees. Debtor shall be liable for and agrees to
pay the expenses incurred by Secured Party in enforcing this Security Agreement
against Debtor, including without limitation attorneys' fees. If Debtor shall
become subject to any case or proceeding under the Bankruptcy Reform Act, as
amended or recodified from time to time, Debtor shall pay to Secured Party on
demand all attorneys' fees, costs and expenses which Secured Party may incur to
obtain relief from any provision of the Act which delays or otherwise impairs
Secured Party's exercise of any right or remedy under this Security Agreement or
any of the Loan Documents or to obtain adequate protection or assurance for any
of Secured Party's rights in connection with the Collateral.
18. Heirs, Successors and Assigns. Subject to the limitations
contained elsewhere in this Security Agreement and the Loan Documents, the terms
of this Security Agreement shall be binding upon and inure to the benefit of the
heirs, successors and assigns of Debtor and Secured Party. There shall be no
third party beneficiaries of this Security Agreement.
19. Time. Time is of the essence of each term of this Security
Agreement.
20. Headings. All headings appearing in this Security
Agreement are for convenience only and shall be disregarded in construing this
Security Agreement.
21. Choice of Law. This Security Agreement shall be governed
by, and construed in accordance with, the laws of the State of Texas, except
that the laws of the state in which certain is located shall govern the
creation, perfection, and enforcement of the liens created hereby in connection
with such personal property.
22. Miscellaneous. The rights and remedies of Secured Party
under this Security Agreement are cumulative and no exercise of any right or
remedy shall preclude the exercise of any other right or remedy or the later
exercise of the same right or remedy. Waivers and approvals under this Security
Agreement shall be in writing and, unless otherwise expressly stated, waivers
and approvals shall apply only to the specific circumstance addressed.
Notwithstanding any
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other provision of this Security Agreement, Secured Party shall not be deemed to
have accepted any property other than cash in satisfaction of any obligation of
Debtor to Secured Party unless Secured Party shall make an express written
election of said remedy under UCC Section 9505, as amended or recodified from
time to time, or other applicable law. Secured Party may designate an agent or
independent contractor to exercise any of Secured Party's rights hereunder. Any
married person who executes this Security Agreement as Debtor hereby expressly
agrees that recourse may be had against his or her separate property for all his
or her indebtedness to Secured Party that is secured by this Security Agreement.
23. Integration. This Security Agreement contains or expressly
incorporates by reference the entire and exclusive agreement of the parties with
respect to the matters contemplated herein and supersedes all prior negotiations
related thereto, and this Security Agreement shall not be amended or modified in
any way except by a written instrument which is executed by all parties hereto.
24. Exercise of Rights and Remedies. Until the first to occur
of (a) the expiration of the Series A Letter of Credit or (b) a material default
by Bank of its obligations under the Series A Letter of Credit, the following
shall apply:
24.1 Bond Trustee shall not have the right to exercise or
implement any right or remedy provided to Secured Party hereunder without first
obtaining Bank's written consent thereto.
24.2 In the event of a disagreement between Bond Trustee
and Bank as to the exercise or implementation
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of any such right or remedy, the decision of Bank shall control.
In witness whereof, Debtor has caused this Security Agreement
to be duly executed as of the date first written above.
"Debtor":
RADIATION STERILIZERS, INCORPORATED
a California corporation
By /s/ ▇▇▇▇ ▇▇▇▇, President
---------------------------
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SCHEDULE 1
(a) All present and future accounts, general intangibles,
chattel paper, contract rights, deposit accounts, instruments and documents, now
or hereafter relating or arising with respect to the real properties described
in Exhibits "A-1" through "A-3" attached hereto and incorporated herein by this
reference (the "Properties") and/or the use thereof or any improvements thereto,
including without limitation: (i) all rights to the payment of money, including
escrow proceeds arising out of the sale or other disposition of all or any
portion of any of the Properties; (ii) all plans, specifications and drawings
relating to the development of any of the Properties and/or any construction
thereon; (iii) all use permits, occupancy permits, construction and building
permits, and all other permits and approvals required by any governmental or
quasi-governmental authority in connection with the development, construction,
use, occupancy or operation of any of the Properties, (iv) any and all
agreements relating to the development, construction, use, occupancy and/or
operation of any of the Properties between Debtor and any contractor,
subcontractor, project manager or supervisor, architect, engineer, laborer or
supplier of materials; (v) all lease or rental agreements; (vi) all names under
which any of the Properties are now or hereafter known and all rights to carry
on business under any such names or any variant thereof; (vii) all trademarks
relating to any of the Properties and/or the development, construction, use,
occupancy or operation thereof; (viii) all goodwill relating to any of the
Properties and/or the development, construction, use, occupancy or operation
thereof; (ix) all insurance proceeds and condemnation awards arising out of or
incidental to the ownership, development, construction, use, occupancy or
operation of any of the Properties; (x) all reserves, deferred payments,
deposits, refunds, cost savings, bonds, insurance policies and payments of any
kind relating to any of the Properties; (xi) all loan commitments issued to
Debtor in connection with any sale or financing of any of the Properties; (xii)
all shares of stock or other evidence of ownership of any part of or interest in
any of the Properties that are owned by Debtor in common with others; and (xiii)
all supplements, modifications and amendments to the foregoing,
(b) All accounts receivable arising out of income-producing
operations on any of the Properties.
(c) All fixtures located upon or within any of the Properties
or now or hereafter attached to, installed in, or used or intended for use in
connection with any of
Schedule "l"
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the Properties, including without limitation any and all partitions, generators,
screens, awnings, boilers, furnaces, pipes, plumbing, elevators, cleaning, call
and sprinkler systems, fire extinguishing apparatus and equipment, water tanks,
heating, ventilating, air conditioning and air cooling equipment, and gas and
electric machinery and equipment.
(d) All present and future accessories, additions,
attachments, replacements and substitutions of or to any or all of the
foregoing.
(e) All proceeds and products of any or all of the foregoing,
including without limitation all monies, deposit accounts, insurance proceeds
and other tangible or intangible property received upon a sale or other
disposition of any of the foregoing.
Schedule "1"
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EXHIBIT "A-l"
LEGAL DESCRIPTION
All that certain real property, together with all appurtenances thereto
and all improvements now or hereafter located thereon, situated in the City of
Atlanta, County of DeKalb, State of Georgia, and described as follows:
BEGINNING at an iron pin found on the easterly right-of-way line of
Mellon Court (having a 60-foot right-of-way), which iron pin is located
1,460.80 feet northerly, as measured along the easterly right-of-way
line of Mellon Court, from the corner formed by the intersection of the
easterly right-of-way line of Mellon Court with the northerly
right-of-way line of Dividend Drive (having a 60-foot right-of-way);
running thence north 00 degrees 01 minute 10 seconds west along the
easterly right-of-way line of Mellon Court, a distance of 95.04 feet to
an iron pin set; running thence northeasterly, northerly and
northwesterly along the southeasterly, easterly and northeasterly
right-of-way line of the terminus of the cul-de-sac of Mellon Court, an
arc distance of 114.90 feet to an iron pin set (said arc having a
radius of 60.00 feet and being subtended by a chord line having a
bearing of north 05 degrees 09 minutes 38 seconds east and a chord
length of 98.13 feet); thence leaving the northeasterly right-of-way
line of the terminus of the cul-de-sac of Mellon Court and running
north 57 degrees 04 minutes 55 seconds east, a distance of 41.09 feet
to an iron pin set; running thence north 89 degrees 49 minutes 55
seconds east, `a distance of 265.00 feet to an iron pin set; running
thence south 00 degrees 43 minutes 00 seconds west, a distance of
215.00 feet to an iron pin located on the northerly line of property
now or formerly owned by Activation, Inc.; running thence south 89
degrees 49 minutes 55 seconds west along the northerly line of said
Activation, Inc. Property, a distance of 305.60 feet to the iron pin
found on the easterly right-of-way line of Mellon Court, which iron pin
marks the point of beginning; and being a tract of land containing
1.452 acres according to a plat of survey prepared for Radiation
Sterilizers, Inc. by Tri County Land Surveying and ▇▇▇▇▇▇ & Associates
Engineers, and certified to by ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇, Georgia Registered
Land Surveyor No. 1692, dated October 7, 1983 and last revised October
31, 1983.
EXHIBIT "A-1"
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EXHIBIT "A-2"
LEGAL DESCRIPTION
All that certain real property, together with all
appurtenances thereto and all improvements now or hereafter located thereon,
situated in the City of Fort Worth, County of Tarrant, State of Texas, and
described as follows:
▇▇▇ ▇▇-▇-▇-▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, an Addition to the
City of Fort Worth, Tarrant County, Texas, according to plat recorded
in Volume 388-183 Page 44, Deed Records of Tarrant County, Texas.
Exhibit "A-2"
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EXHIBIT "A-3"
LEGAL DESCRIPTION
All that certain real property, together with all
appurtenances thereto and all improvements now or hereafter located thereon,
situated in the Township of Orange, County of Delaware, State of Ohio, and
described as follows:
Being Lot Number Six Hundred Ninety-Six (696), in GREEN ▇▇▇▇▇▇▇
CORPORATE PARK, PHASE I, as the same is numbered and delineated upon
the recorded plat thereof, of record in Plat Book 16, page 107,
Recorder's Office, Delaware County, Ohio.
EXHIBIT "A-3"
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