EXHIBIT 10.19
AMENDMENT No. 3
AND
ADDENDUM
TO
ASSET PURCHASE AGREEMENT
This AMENDMENT NO. 3 AND ADDENDUM TO ASSET PURCHASE AGREEMENT (this
"Amendment") is made and entered into as of this 4th day of October, 2002, by
and between VT Halter Marine, Inc., a Delaware corporation (the "Buyer"), on the
one hand, and Xxxxxx Xxxxxxx Halter, Inc., a Mississippi corporation, Halter
Marine, Inc., a Nevada corporation, Halter Marine, Inc., a Louisiana
corporation, Halter Gulf Repair, Inc., a Delaware corporation, Halter Marine
Services, Inc., a Mississippi corporation, Halter Marine Gulfport, Inc., a
Nevada corporation, Gulf Coast Fabrication, Inc., a Mississippi corporation, and
Halter Marine Pascagoula, Inc., a Delaware corporation, Debtors-in-Possession
(collectively the "Seller") under jointly administered Case No. 01-52173 in the
United States Bankruptcy Court in the Southern District of Mississippi filed on
April 19, 2001. (All capitalized terms used but not defined herein shall have
the same definitions for such terms as set forth in the Purchase Agreement
referred to below.)
WHEREAS, Vision Technologies Kinetics, Inc., a Delaware corporation
("VTK"), and Seller entered into that certain Asset Purchase Agreement, made and
entered into as of July 23, 2002, as amended (the "Purchase Agreement"),
pursuant to which Seller agreed to sell, and VTK agreed to buy, substantially
all of the assets used in connection with the Business; and
WHEREAS, VTK has assigned its rights, effective August 23, 2002, under the
Agreement to the Buyer hereunder; and
WHEREAS, Buyer and Seller hereby desire to resolve and settle any and all
issues remaining as stated herein between Seller and Buyer as of the date
hereof; and
WHEREAS, Buyer and Seller desire to amend the Purchase Agreement to clarify
certain matters therein;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Settlement Matters. In consideration of any and all issues remaining as
stated herein between Seller and Buyer as of the date hereof, Seller and Buyer
hereby agree as follows:
(a) Subject to the Seller's and Buyer's agreement in Paragraph 1(m)
hereof, the Purchase Price shall be reduced by $800,000 for the resolution
of all issues.
(b) Buyer shall at no time assert any claim or cause of action of any
kind, or seek any reduction in the Purchase Price, as a result of the past,
present or future condition of the particular bulkhead located at Seller's
shipyard in the southeastern area of the Pascagoula, Mississippi property
near the 300-ton stiff-leg crane.
(c) Buyer shall at no time assert any claim or cause of action of any
kind, or seek any additional reduction in the Purchase Price, with respect
to the Intangible Property as stated herein in Appendix A, and such
Intangible Property shall be transferred from Seller to the Buyer at the
Closing "as is" and "with all faults".
(d) At no additional cost and at a time or times mutually convenient
for Buyer and Seller, Buyer shall have the right to enter in, cross over,
and freely move about the Three Rivers Facility, including, without
limitation, the pier and the adjoining waterway on or near the Three Rivers
Facility, as may be necessary or convenient solely in order for the Buyer
and its representatives for a period of ninety (90) days after the Closing
Date to take delivery (during such ninety-day period) of any or all items
of Personal Property (together with the cranes, whether or not such cranes
constitute personal property) at the Three Rivers Facility; provided,
however, that Buyer shall incur all cost for removal of such Personal
Property and such removal shall be accomplished without any damage or
destruction to Seller's building or other property located on the Three
Rivers Facility.
(e) Buyer and Seller shall enter into the First Amended and Restated
Agreement (Pasha Project) attached hereto as Appendix B (the "Pasha
Agreement").
(f) Seller shall prepare and deliver to Buyer prior to the Closing
Date, and on or before three (3) business days after the Closing Date
Seller shall file, a motion to assign, and alternatively to assume and
assign, to Buyer that certain Agreement dated as of February 17, 2000, by
and between ULJANIK Brodogradiliste d.d. and Halter Marine, Inc., (the
"Uljanik Agreement"), with notice provided as required by Bankruptcy Court
order and/or the Bankruptcy Code and Bankruptcy Rules, and shall thereafter
seek a prompt hearing on such motion, and upon entry of an order, if any,
granting such motion, to promptly transfer and/or assign all of Seller's
rights, title and interests in the Uljanik Agreement to the Buyer for a
consideration of one dollar ($1) only, subject to the payment of any "cure
amounts", if any, due in respect of such agreement, which amounts shall be
paid by such party as determined by the Bankruptcy Court, provided, that if
the Bankruptcy Court determines that a cure amount shall be paid by Buyer,
then Buyer shall retain the option to have the Uljanik Agreement assigned
to Buyer (and if Buyer declines to have the Uljanik Agreement assigned to
Buyer, then Seller shall not assume the Uljanik Agreement), all of the
foregoing being without prejudice to any rights of third parties to seek or
require an assignment and assumption of the Uljanik Agreement.
(g) Seller agrees to amend the Approval Order (the "Amended Approval
Order") to remove the $2 million valuation of Travelers Casualty and Surety
Company of America's "Interest" in the Property being transferred to Buyer.
(h) Seller shall prepare and deliver to Buyer prior to the Closing
Date, and on or before three (3) business days after the Closing Date
Seller shall file, a motion under Section 365 of the Bankruptcy Code
seeking the assumption and assignment of the following Other Contracts
listed on Exhibit "A-3" attached to the Purchase Agreement:
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(i) Confidential Proprietary Information Agreement, dated as of
October 6, 1999, by and between FGHI and Kaman Aerospace
International Corporation (SH-2G Helicopter). (Index # 1,621).
(ii) Confidentiality Agreement, dated as of September 17, 1992, by and
between Halter Marine, Inc. and Lockheed Xxxxxxx. (Index #1,652).
(iii) Confidentiality and Non-Disclosure Agreement, dated as of April
19, 1999, by and between Halter Marine, Inc. and The University
of Stellenbosch. (Index # 1,260).
(i) On the Closing Date, Seller and Buyer each agree to execute
appropriate assignment documents of the following Other Contract listed on
Exhibit "A-3" attached to the Purchase Agreement and to have all
obligations under such Other Contract assumed by Buyer; and the parties
further agree to seek the novation of such Other Contract by the
counterparties thereto and to substitute Buyer for any Seller as a party
thereunder, where such third party consent is necessary to do so: Binding
Letter of Commitment, dated as of August 28, 2001, by and between
Non-Proliferation Trust Inc. and Halter Marine, Inc. (Index # 1,253).
(j) Seller warrants that all necessary notices as required by the
Purchase Agreement, other than the agreements described in Paragraphs 1(f),
1(h) and 1(i) above, have been sent.
(k) Unless Buyer instructs Seller otherwise prior to Seller's removal,
Seller shall remove on or before three (3) business days after the Closing
Date any property belonging to the Manifest Group and XxXxxxxxx Oil
Company.
(l) The Seller warrants that only the following parties may assert an
interest, lien or claim in or to the Vessel (as such term is defined in the
Pasha Agreement): (i) Pasha Hawaii Transport Lines LLC, (ii) Travelers
Casualty and Surety Company of America, (iii) Foothill Capital Corporation,
(iv) MARAD and (v) Hamworthy KSE. To the best of Seller's knowledge and
belief after reasonable inquiry, Seller is aware of the parties that may
assert an interest, lien or claim in or to the Vessel, the Inventory or the
Excluded Inventory (as each such term is defined in the Pasha Agreement),
with secured claim amounts in excess of $100,000 as set forth in the
attached Appendix C.
(m) Unless specifically stated in Paragraphs 1(b) through 1(k) hereof,
nothing herein shall be deemed to be a waiver of any of either the Seller's
or the Buyer's rights, interests and claims under the Purchase Agreement.
(n) At such time as the Amended Approval Order becomes final and
non-appealable, or upon Buyer's earlier waiver of such condition precedent,
the Closing shall occur as stipulated under the Purchase Agreement (and the
transaction documents contemplated by the Purchase Agreement shall be dated
as of the Closing Date), and Buyer shall pay the Purchase Price, as
adjusted pursuant to this Amendment and the
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terms of the Purchase Agreement, to Seller and/or the applicable escrow
agents or title company on the Closing Date, or as mutually agreed.
2. Amendments.
(a) Exhibit "A-1" to the Purchase Agreement is hereby amended by deleting
the following therefrom: "3. Lease Agreement dated August 25, 1997, between
Halter Marine, Inc. as Lessee and the Board of Education of the Xxxxxxxx County
School District, Mississippi covering 3.65 acres in the Southeast Quarter of
Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxxxxxx Xxxxxx, Xxxxxxxxxxx (10220
Three Rivers, Gulfport, Mississippi) [Index Number 1,311]".
(b) Section 8.8 of the Purchase Agreement is hereby amended by deleting
clause (ii) in its entirety and substituting the following therefore: "(ii)
shall have caused replacement bonds to have been issued in favor of NOAA and
held by Buyer's agent, Xxxxxx, Xxxxxxx & Xxxxxxxx LLP from and after the Closing
Date, until Buyer or Seller has been advised by NOAA that NOAA is prepared to
execute a novation agreement in respect of such NOAA contract, at which time
Buyer has instructed, and will continue to instruct, Xxxxxx, Xxxxxxx & Xxxxxxxx
LLP to deliver such bonds to NOAA upon the time of execution and delivery of the
novation agreement, and Buyer shall cooperate with Seller to cause the release,
as of the date of novation of the NOAA contract, of Seller's surety provided to
NOAA with respect to such Other Contract (including Seller's letter of credit
and cash escrow)".
(c) Section 10.14 of the Purchase Agreement is hereby amended by deleting
the phrase "Section 10.14 above" and replacing it with the following: "Section
10.13 above".
(d) Section 9.1 of the Purchase Agreement is hereby amended by deleting the
phrase "Section 10.2" and replacing it with the following: "Section 10.1".
(e) Section 1.1.7 of the Purchase Agreement regarding the Xxxxxx-Xxxxxxxxx
Joint Venture is hereby amended by adding to the end of said Section the
following:
"Sellers commercially reasonable efforts shall be undertaken
subsequent to the Closing and shall include consulting with the Buyer
and the Creditors' Committee with respect to the Estates' options and
intentions with respect to a sale, abandonment, or reorganization of
Xxxxxx Xxxxxxx Halter, Inc., and its subsidiaries and affiliates which
are debtors in the pending Chapter 11 cases, and in particular such
entities that hold a membership or other interest in the HBJV, prior
to filing an amended plan of reorganization which provides for such
sale, abandonment or reorganization."
(f) Section 3.7.2 of the Purchase Agreement is hereby amended by deleting
the last sentence thereof and substituting the following therefor: "For purposes
of compensating Buyer for a Loss as to Personal Property, the Specified Amount,
as defined in Section 2.1.4, shall be the sole determinant of the amount of the
Loss as to
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such Personal Property. For purposes of compensating Buyer for a Loss as to any
Real Property or Inventory, the replacement cost of such Property shall be the
sole determinant of the amount of the Loss as to such Property."
(g) Section 9.3 of the Purchase Agreement is hereby amended by renaming the
Section "Transfer of Title to Property" and adding to the end of said Section
the following:
"Subsequent to the Closing, Seller shall (a) execute, deliver and
acknowledge such further bills of sale, endorsements, assignments, and
other good and sufficient instruments of sale, transfer, assignment
and conveyance and such further consents, certifications, affidavits,
applications and assurances as the Buyer may reasonably request in
order to vest in the Buyer all right, title and interest in the
Property or otherwise to consummate and make effective the
transactions contemplated by this Agreement, (b) in the event that on
or after the Closing Date, Seller receives any mail, courier package,
telegraph message, facsimile transmission, receipt, office action or
other document from the United States Patent & Trademark Office,
United States Copyright Office, any other government agency or
otherwise, that relates to the Property, such documents shall be
forwarded promptly after the date of receipt thereof to the Buyer at
the location specified as the Buyer's address for notice in Section
10.2 hereof, and (c) immediately direct or forward to the Buyer any
third party telephone call that relates to the Property."
(h) Exhibit "A-4.6" to the Purchase Agreement, as amended by Amendment No.
1 to the Purchase Agreement, dated July 23, 2002, is hereby further amended by
being replaced in its entirety by a new Exhibit "A-4.6", which is set forth on
Appendix D attached hereto and made a part hereof for all purposes.
(i) Section 1.1.3 of the Purchase Agreement is hereby amended by adding to
the end of said Section the following:
"With respect to any items of Personal Property that are located at
the Three Rivers Facility, Buyer shall have the right for ninety (90)
days after the Closing Date to take delivery of any or all of such
items of Personal Property at Buyer's cost and without damage to any
property owned by Seller on or at the Three Rivers Facility, and in
the event any of such Personal Property remains at the Three Rivers
Facility after the 90-day period expires, then Seller shall be
entitled to dispose of such remaining Personal Property in any way it
determines."
(j) Exhibit "A-3" to the Purchase Agreement is hereby amended by deleting
the following therefrom: "209. Agreement dated as of February 17, 2000, by and
between ULJANIK Brodogradiliste d.d. and Halter Marine Inc.".
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(k) In addition to any other adjustments to the Purchase Price provided for
in the Purchase Agreement, the Purchase Price shall be reduced by Eight Hundred
Thousand Dollars ($800,000).
3. Continuation of Purchase Agreement. Except as modified by this
Amendment, the Purchase Agreement shall continue in full force and effect.
4. Counterparts. This Amendment may be signed in counterparts and may be
executed by the exchange of facsimile signature pages.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 3
and Addendum to Asset Purchase Agreement as of the day and year first above
written.
VT HALTER MARINE, INC.
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Authorized Representative
By: /s/ Lim Xxxx Xxxx
----------------------------------------------
Name: Lim Xxxx Xxxx
Title: Authorized Representative
XXXXXX XXXXXXX HALTER, INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President-Administration
HALTER MARINE, INC., a Nevada corporation
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President-Administration
HALTER MARINE, INC., a Louisiana corporation
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President-Administration
HALTER MARINE SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President-Administration
HALTER MARINE GULFPORT, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President-Administration
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HALTER MARINE PASCAGOULA, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President-Administration
GULF COAST FABRICATION, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President-Administration
HALTER GULF REPAIR, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President-Administration
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APPENDIX A
Pending Patent Applications
Patent Name Country Application Number
----------- ------- ------------------
1. Bow Thruster Utility United States SN 09/626,893
2. Low Wake Foil Assisted Vessel Utility United States SN 09/615,251
3. Method for Adding a Second Hull to a Vessel Utility United States SN 09/709,911
4. Multiple Line Marine Handling Device Utility United States SN 09/666,873
5. Fast Fire Boat United States SN 09/733,127
6. Articulated Tug Barge United States SN 09/766,092
Registered Trademarks and Pending Application
Trademark Name Country Reg. Number
-------------- ------- -----------
1. KING COBRA United States USSN 76/099.590
Pending
2. XFPB United States USSN 76/099.589
Pending
3. HALTER XXXX X. United States USSN 76/099.587
Pending
4. SEAFLIGHT United States USSN 76/099.586
Pending
APPENDIX B
FIRST AMENDED AND RESTATED AGREEMENT (PASHA PROJECT)
APPENDIX C
PARTIES
Pasha Hawaii Transport Lines LLC
Travelers Casualty and Surety Company of America
Foothill Capital Corporation
MARAD
Hamworthy KSE
APPENDIX D
LEGAL DESCRIPTION
Port Bienville
Xxxxxxx County, MS.
TRACT I
(Halter Marine, Inc.)
Lots 30 through 37, inclusive, PORT BIENVILLE INDUSTRIAL PARK, according to the
map or plat thereof on file and of record in the office of the Chancery Clerk of
Xxxxxxx County, Mississippi, in Plat Book 5, page 2-4 thereof, together with the
right to dredge from the Harbor Limits Line to the existing industrial canal and
all riparian rights pertaining thereto.
LESS AND EXCEPT, that parcel of property conveyed to Xxxxxxx County,
Mississippi, by deed dated August 29, 2002, and depicted as Parcel "A" (being
approximately 7.292 acres more or less and a part of Xxx 00 xxx xxx xx Xxx 00,
Xxxx Xxxxxxxxx Subdivision, on file as Book 5, Pages 2-4, Xxxxxxx County,
Mississippi) on the plat of survey dated May 9-15, 2002, prepared by Xxxxx
Xxxxxxx Gilleon, P.L.S. 2590 of Wink, Incorporated, being more fully described
as follows:
BEGIN at an iron rod at the Northeast corner of the aforementioned Lot 37 and
run South 01 degree 12 minutes 58 seconds East along the east line of said Lot
37 for 663.50 feet to an iron rod at the Southeast corner of said Lot 37; thence
run South 88 degrees 47 minutes 02 seconds West along the south line of said
Lots 37 and 36 for 478.76 feet to an iron rod; thence run North 01 degree 12
minutes 58 seconds West for 663.50 feet to an iron rod on the north line of said
Lot 36; thence run North 88 degrees 47 minutes 02 seconds East along the north
line of said Lots 36 and 37 for 478.76 feet back to the POINT OF BEGINNING,
containing 317,657 square feet, or 7.292 acres.
TRACT II
(Gulf Coast Fabrication, Inc.)
Property 1.
Lots 40, 41 and 42 of the Port Bienville Industrial Park Plat, Xxxxxxx County,
Mississippi, as per subdivision plat dated October 5, 1975 prepared by Fromberg
Engineers for the Xxxxxxx County Port and Harbor Commission and recorded in Plat
Book 5, pages 2-4 of the Deed Records of Xxxxxxx County, Mississippi.
Property 2.
All that certain parcel of land being a portion of Lot 43 and a portion of Xxx
00 xx xxx Xxxx Xxxxxxxxx Subdivision, as recorded in Book 5, Pages 2 through 4,
dated January 21, 1975, in the Chancery Clerk's Office, Xxxxxxx County,
Mississippi, being more fully described as follows:
Appendix D-Page 1
Commencing at the section corner common to section 24 and 25, T9S, R16W, and
Sections 00 xxx 00, X0X, X00X; thence West 2,275.00 feet to a monument; thence
North 50 degrees, 15 minutes, 32 seconds West 1,218.72 feet to the Northeast
corner of Lot 48 of said Subdivision; thence North 44 degrees, 22 minutes, 27
seconds East 2,388.56 feet to a point; thence North 00 degrees, 41 minutes, 16
seconds East 572.18 feet to a point; thence South 88 degrees, 47 minutes, 02
seconds West 1,122.00 feet to the point of beginning; from the point of
beginning proceed South 01 degree, 12 minutes, 58 seconds East 100.00 feet to a
point; thence South 88 degrees, 47 minutes, 02 seconds West 328.50 feet to a
point; thence North 01 degree, 12 minutes, 58 seconds West 400.00 feet to a
point; thence North 88 degrees, 47 minutes, 02 seconds East 328.50 feet to a
point; thence South 01 degree, 12 minutes, 58 seconds East 300.00 feet to the
point of beginning; containing in all 3.02 acres of land, more or less.
Property 3.
A part of Xxx 00 xx Xxxx Xxxxxxxxx Xxxxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxx,
depicted as Parcel "B" (being approximately 7.718 acres more or less and a part
of Xxx 00 Xxxx Xxxxxxxxx Subdivision, on file as Book 5, Pages 2-4 Xxxxxxx
County, Mississippi) on the plat of survey dated May 15, 2002, prepared by Xxxxx
X. Xxxxxxx, P.L.S. 2590 of Wink, Incorporated, and being more particularly
described as follows:
COMMENCE at an iron pipe at the southeast corner of Xxx 00, Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxx, as per the map or plat thereof on file
in Plat Book 5, Pages 2 through 4 at the office of the Chancery Clerk at the
Court House in Bay St. Louis, Xxxxxxx County, Mississippi and run South 01
degree 12 minutes 58 seconds East along a projection of the east line of said
Lot 43 for 100.00 feet to an iron rod for the POINT OF BEGINNING.
From said POINT OF BEGINNING run South 01 degree 12 minutes 58 seconds East
along a projection of the east line of said Lot 43 for 100.00 feet to an iron
rod on the north line of Lot 36 of said Port Bienville Subdivision: thence run
South 88 degrees 47 minutes 02 seconds West along the north line of Lots 30
through 36 of said subdivision for 1962.42 feet to an iron rod at the northwest
corner of Lot 30 of said subdivision; thence run North 48 degrees 19 minutes 52
seconds East for 308.25 feet to an iron rod at the southwest corner of Lot 40 of
said subdivision: thence run North 88 degrees 47 minutes 02 seconds East along
the south line of Lots 40, 41 and 42 for 1399.31 feet to an iron rod at the
southeast corner of said Lot 42: thence run South 01 degree 12 minutes 58
seconds East along a projection of the east line of said Lot 42 for 100.00 feet:
thence run North 88 degrees 47 minutes 02 seconds East for 328.50 feet back to
the POINT OF BEGINNING, containing 336,181 square feet, or 7.718 acres.
Property 4.
A part of Xxx 00 xx Xxxx Xxxxxxxxx Xxxxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxx,
depicted as Parcel "C" (being approximately 3.131 acres more or less and a part
of Xxx 00 Xxxx Xxxxxxxxx Subdivision, on file as Book 5, Pages 2-4 Xxxxxxx
County, Mississippi) on the plat of survey dated May 15, 2002, prepared by Xxxxx
X. Xxxxxxx, P.L.S. 2590 of Wink, Incorporated, and being more particularly
described as follows:
Appendix D-Page 2
COMMENCE at an iron pipe at the southeast corner of the aforementioned Lot 43,
and run North 01 degree 12 minutes 58 seconds East along the east line of said
Lot 43 for 300.00 feet to an iron rod for the POINT OF BEGINNING.
From said POINT OF BEGINNING run South 88 degrees 47 minutes 02 seconds West for
328.50 feet to an iron rod on the west line of said Lot 43; thence run North 01
degree 12 minutes 58 seconds West along the west line of said Lot 43 for 438.50
feet to an iron rod at the northwest corner of said Lot 43; thence run North 88
degrees 47 minutes 02 seconds East along the north line of said Lot 43, for
188.88 feet to an iron rod; thence run South 46 degrees 12 minutes 52 seconds
East along the north line of said Lot 43 for 106.07 feet to an iron rod; thence
run North 88 degrees 47 minutes 02 seconds East along the north line of said Lot
43 for 64.62 feet to an iron rod at the northeast corner of said Lot 43; thence
run South 01 degree 12 minutes 58 seconds East along the east line of said Lot
43 for 363.50 feet back to the POINT OF BEGINNING, containing 136,389 square
feet, or 3.131 acres.
Appendix D-Page 3
