Barr Laboratories, Inc.
_____________________________________
AMENDMENT NUMBER ONE
_____________________________________
Dated as of March 1, 1996
10.15% Senior Secured Notes due June 28, 2001
AMENDMENT NUMBER ONE
AMENDMENT NUMBER ONE (this "Agreement"), dated as of March
1, 1996, among BARR LABORATORIES, INC. (together with its
successors and assigns, the "Company"), a New York corporation,
and the Persons identified as "Holders" on the signature pages
hereof that have delivered an executed signature page
(collectively, the "Holders").
RECITALS:
A. The Company entered into those certain separate Note
Purchase Agreements, each dated as of June 28, 1991
(collectively, as in effect immediately prior to the date hereof,
the "Existing Note Purchase Agreement" and, as amended hereby,
the "Amended Note Purchase Agreement"), with each of Connecticut
General Life Insurance Company, Life Insurance Company of North
America, CIGNA Property and Casualty Insurance Company and
American Life & Casualty Insurance Company (individually, a
"Purchaser" and collectively, the "Purchasers"), pursuant to
which the Company issued and sold to the Purchasers and the
Purchasers purchased from the Company, Twenty Million Dollars
($20,000,000) in aggregate principal amount of the Company's
Senior Secured Notes due June 28, 2001 (collectively, as amended
from time to time, the "Notes").
B. The Company has requested that the holders of the Notes
agree to, among other things, amend certain provisions of the
Existing Note Purchase Agreement as further set forth herein,
which requested amendment requires the consent of the Majority
Holders of the Notes.
C. Subject to the terms and conditions set forth in this
Agreement, the Company and the Holders are willing to agree to
amend the Existing Note Purchase Agreement in the manner
specified on Exhibit A hereto and as more particularly set forth
herein.
AGREEMENT:
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the
Holders agree as follows:
1. WARRANTIES AND REPRESENTATIONS.
To induce the Holders to enter into this Agreement, the
Company warrants and represents to the Holders that as of the
Effective Date (as hereinafter defined):
1 Authorization, Execution and Enforceability.
The execution and delivery by the Company of this Agreement
and the performance of its obligations under the Amended Note
Purchase Agreement and the Security Documents have been duly
authorized by all necessary action on the
part of the Company.
Each of the Amended Note Purchase Agreement and the Security
Documents constitutes a valid and binding obligation of the
Company, enforceable in accordance with its respective terms,
except that the enforceability thereof may be:
(a) limited by bankruptcy, insolvency or other similar laws
affecting the enforceability of creditors' rights generally; and
(b) subject to the availability of equitable remedies.
2 No Conflicts, etc.
The execution and delivery by the Company of this Agreement
and the performance by the Company of its obligations under the
Amended Note Purchase Agreement and the Security Documents do not
conflict with, result in any breach in any of the provisions of,
constitute a default under, violate or result in the creation of
any Lien upon any Property of the Company or any Subsidiary under
the provisions of:
(a) any charter document, agreement with shareholders or
bylaws of the Company or any Subsidiary;
(b) any agreement, instrument or conveyance by which the
Company or any Subsidiary or any of their respective Properties
may be bound or affected; or
(c) any statute, rule or regulation or any order, judgment
or award of any court, tribunal or arbitrator by which the
Company or any Subsidiary or any of their respective Properties
may be bound or affected.
3 Security Interests.
The Liens of the Holders in the Collateral (as defined in
the Trust Indenture) previously granted to the Security Trustee
remain valid, enforceable and perfected as of the date hereof and
the Collateral is subject to no other Liens not otherwise
permitted under the Amended Note Purchase Agreement and the
Security Documents.
4 Existence of Defaults.
After giving effect to the Amendment, no condition exists
that would constitute a Default or an Event of Default under the
Amended Note Purchase Agreement.
5 Disclosure.
Neither this Agreement nor any written statement furnished
by the Company to the Holders in connection herewith contains any
untrue statement of a material fact or omits a material fact
necessary to make the statements contained therein or herein not
misleading.
2. AMENDMENT WITH RESPECT TO EXISTING NOTE PURCHASE AGREEMENT;
AFFIRMATION.
1 Amendment.
The Company and, subject to the satisfaction of the
conditions set forth in Section 3 hereof, the Holders, each
hereby consent and agree that the Existing Note Purchase
Agreement is hereby amended in the manner specified in Exhibit A
to this Agreement (such amendment provided for in such Exhibit is
herein referred to as the "Amendment").
2 Affirmation of Obligations under Documents.
The Company hereby acknowledges and affirms all of its
obligations under the terms of the Amended Note Purchase
Agreement and the Security Documents.
3 Scope of Amendment.
Except as expressly set forth in this Agreement, no
provision of the Existing Note Purchase Agreement, any Security
Document or any other agreement, document or instrument shall be
deemed to have been amended hereby. No Default or Event of
Default, or right, remedy, or power consequent thereon, whether
as provided in the Existing Note Purchase Agreement, the Amended
Note Purchase Agreement, any Security Document or by law, shall
be deemed to have been waived or affected hereby.
3. CONDITIONS TO EFFECTIVENESS OF AMENDMENT.
This Amendment shall not become effective until all of the
following conditions precedent shall have been satisfied in full
(the date of such satisfaction being herein referred to as the
"Effective Date"):
1 Execution and Delivery of this Agreement.
The Company and Holders constituting Majority Holders shall
have executed and delivered to each other an original counterpart
of this Agreement.
2 No Defaults; Warranties and Representations True.
After giving effect to the Amendment, no Default or Event of
Default shall exist and the warranties and representations set
forth in Section 1 hereof shall be true and correct.
3 Proceedings Satisfactory.
All proceedings taken in connection with this Agreement and
all documents and papers relating thereto shall be reasonably
satisfactory to the Holders. The Holders shall have received
copies of such documents and papers as they may reasonably
request in connection therewith, all in form and substance
reasonably satisfactory to the Holders.
4 Expenses.
The Company shall have paid all costs and expenses of the
Holders relating to this Agreement in accordance with Section 4.6
hereof.
4. MISCELLANEOUS.
1 Terms Defined.
Terms used herein and not otherwise defined herein shall
have the respective meanings specified in the Amended Note
Purchase Agreement. A violation of this Agreement (including
without limitation, a material misrepresentation of any warranty
or representation contained herein) shall constitute an "Event of
Default" thereunder.
2 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, AND GOVERNED BY, INTERNAL CONNECTICUT LAW.
3 Duplicate Originals.
Two or more duplicate originals of this Agreement may be
signed by the parties, each of which shall be an original but all
of which together shall constitute one and the same instrument.
This Agreement may be executed in one or more counterparts and
shall be effective when at least one counterpart shall have been
executed by each party hereto, and each set of counterparts that,
collectively, show execution by each party hereto shall
constitute one duplicate original.
4 Waivers and Amendments.
Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, or by any action or
inaction, but only by an
instrument in writing signed by the
party against which enforcement of the change, waiver, discharge
or termination is sought.
5 Section Headings.
The titles of the Sections hereof appear as a matter of
convenience only, do not constitute a part of this Agreement and
shall not affect the construction hereof.
6 Costs and Expenses.
On the Effective Date, the Company shall pay all costs and
expenses of the Holders relating to this Agreement, including,
but not limited to, the statement for reasonable fees and
disbursements of their special counsel presented to the Company
on the Effective Date. The Company will also pay, upon receipt
thereof, each additional statement for reasonable fees and
disbursements of the Holders' special counsel rendered after the
Effective Date in connection with this Agreement, the Amended
Note Purchase Agreement or the Security Documents.
7 Survival.
All warranties, representations, certifications and
covenants made by the Company in this Agreement and in each of
the Security Documents or in any certificate or other instrument
delivered pursuant to this Agreement or any of the Security
Documents shall be considered to have been relied upon by the
Holders and shall survive the execution and delivery of this
Agreement, regardless of any investigation made by or on behalf
of the Holders. All statements in any such certificate or other
instrument shall constitute warranties and representations of the
Company under this Agreement or such Security Document.
8 Time of Essence.
Time is and shall be of the essence in the satisfaction of
all the conditions set forth in Section 3 of this Agreement.
[Remainder of page intentionally blank; next page is signature p
age.]
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed on its behalf by a duly authorized
officer or agent thereof.
Company: BARR LABORATORIES, INC.
By /s/Paul M. Bisaro
Name: Paul M Bisaro
Title:Chief Financial Officer
General Counsel and Secretary
Holder: CONNECTICUT GENERAL LIFE
INSURANCE COMPANY *
By CIGNA Investments, Inc.
By:/s/Stephen A. Osborne
Name: Stephen A. Osborne
Title: Managing Director
Holder: LIFE INSURANCE COMPANY OF
NORTH AMERICA *
By CIGNA Investments, Inc.
By:/s/Stephen A. Osborne
Name: Stephen A. Osborne
Title: Managing Director
Holder: CIGNA PROPERTY AND CASUALTY
INSURANCE COMPANY *
By CIGNA Investments, Inc.
By:/s/Stephen A. Osborne
Name: Stephen A. Osborne
Title: Managing Director
Holder: AMERICAN LIFE & CASUALTY
INSURANCE
COMPANY
By:/s/Gary F. Greaves
Name: Gary F. Greaves
Title: Vice President
EXHIBIT A
AMENDMENT TO EXISTING NOTE PURCHASE AGREEMENT
5. Section 10. The definition of the term "Restricted
Investment" in Section 10 of the Existing Note Purchase Agreement
is hereby amended by replacing clause (i) of such definition and
the remainder of the text following such clause with the
following:
" (i) Investments listed on Annex 3
to this Agreement;
(j) Investments of up to
$6,000,000 in the equity of Fermic S.A. or one of
its affiliates (Fermic S.A. or such affiliate
being the owner of a fermentation facility in
Mexico); and
(k) Investments in so-called
market auction securities rated Aa2 or higher by
Moody's Investors Service, Inc. or AA or higher by
Standard & Poor's Corporation and which have a
reset date not more than three hundred sixty-five
(365) days from the date of acquisition thereof.
Investments shall be valued at cost less any
return of capital through the sale or liquidation
thereof or other return of capital thereon, net of the
expenses of any such sale or liquidation or any such
return of capital."
Barr Laboratories, Inc.
_____________________________________
AMENDMENT NUMBER TWO
_____________________________________
Dated as of March 15, 1996
10.15% Senior Secured Notes due June 28, 2001
AMENDMENT NUMBER TWO
AMENDMENT NUMBER TWO (this "Agreement"), dated as of March
15, 1996, among BARR LABORATORIES, INC. (together with its
successors and assigns, the "Company"), a New York corporation,
and the Persons identified as "Holders" on the signature page
hereof (collectively, the "Holders").
RECITALS:
A. The Company entered into those certain separate Note
Purchase Agreements, each dated as of June 28, 1991
(collectively, as in effect immediately prior to the date hereof,
the "Existing Note Purchase Agreement" and, as amended hereby,
the "Amended Note Purchase Agreement"), with each of Connecticut
General Life Insurance Company, Life Insurance Company of North
America, CIGNA Property and Casualty Insurance Company and
American Life & Casualty Insurance Company (individually, a
"Purchaser" and collectively, the "Purchasers"), pursuant to
which the Company issued and sold to the Purchasers and the
Purchasers purchased from the Company, Twenty Million Dollars
($20,000,000) in aggregate principal amount of the Company's
Senior Secured Notes due June 28, 2001 (collectively, as amended
from time to time, the "Notes").
B. The Holders are the registered holders of one hundred
percent (100%) of the Notes outstanding on the date hereof.
C. The Company has requested that it be permitted to
prepay in full all of the Notes held by American Life & Casualty
Insurance Company (the "Selling Noteholder"), such prepayment to
be made on terms and subject to the conditions set forth herein.
D. The Company has requested that, in connection with the
proposed prepayment of all of the Notes held by the Selling
Noteholder, and in order to permit such prepayment, the Holders
agree to the amendment of certain provisions of the Existing Note
Purchase Agreement, and waive the application of certain other
provisions of the Existing Note Purchase Agreement, all as
further set forth herein, which requested amendment and waiver
will require the consent all of the holders of the Notes.
E. Subject to the terms and conditions set forth in this
Agreement, the Company and the Holders are willing to permit the
prepayment of all of the Notes held by the Selling Noteholder and
the irrevocable cancellation thereof, and in connection therewith
are willing to amend the Existing Note Purchase Agreement and to
waive the application of certain provisions of the Existing Note
Purchase Agreement, all as more particularly set forth herein.
AGREEMENT:
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the
Holders agree as follows:
1. WARRANTIES AND REPRESENTATIONS.
To induce the Holders to enter into this Agreement, the
Company warrants and represents to the Holders that as of the
Effective Date (as hereinafter defined):
1 The Notes.
As of the Effective Date and immediately prior to giving
effect to the payment of the Prepayment Amount (as determined in
accordance with Exhibit A) to the Selling Noteholder, the
aggregate principal amount of the Notes outstanding is equal to
$20,000,000, and the aggregate principal amount of Notes held by
the Selling Noteholder is equal to $2,000,000.
2 Material Adverse Effect; Disclosure.
(a) Since June 30, 1995 there has been no change in the
business, prospects, profits, Properties or condition (financial
or otherwise) of the Company or any Subsidiary except changes in
the ordinary course of business that, in the aggregate, have not
had a material adverse effect on the business, prospects,
profits, Properties or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, or the ability of
the Company to perform any of its obligations set forth in the
Amended Note Purchase Agreement and the Security Documents.
(b) Neither this Agreement nor any written statement
furnished by the Company to the Holders in connection herewith
contains any untrue statement of a material fact or omits a
material fact necessary to make the statements contained therein
or herein not misleading. There is no fact that the Company has
not disclosed to each Holder in writing that has had or, so far
as the Company can now reasonably foresee, could reasonably be
expected to have, a material adverse effect on the business,
prospects, profits, Properties or condition (financial or
otherwise) of the Company and the Subsidiaries, taken as a whole,
or the ability of the Company to perform any of its obligations
set forth in the Amended Note Purchase Agreement and the Security
Documents.
3 Authorization, Execution and Enforceability.
The execution and delivery by the Company of this Agreement
and the performance by the Company of its obligations under this
Agreement (including, without limitation, the proposed prepayment
of the Notes held by the Selling Noteholder), the Amended Note
Purchase Agreement and each of the Security Documents have been
duly authorized by all necessary action on the part of the
Company. Each of this Agreement, the Amended Note Purchase
Agreement and the Security Documents constitutes a valid and
binding obligation of the Company, enforceable in accordance with
its respective terms, except that the enforceability thereof may
be:
(a) limited by bankruptcy, insolvency or other similar laws
affecting the enforceability of creditors' rights generally; and
(b) subject to the availability of equitable remedies.
4 No Conflicts, etc.
The execution and delivery by the Company of this Agreement
and the performance by the Company of its obligations under this
Agreement, the Amended Note Purchase Agreement and each of the
Security Documents do not conflict with, result in any breach in
any of the provisions of, constitute a default under, violate or
result in the creation of any Lien upon any Property of the
Company or any Subsidiary under the provisions of:
(a) any charter document, agreement with shareholders or
bylaws of the Company or any Subsidiary;
(b) any agreement, instrument or conveyance by which the
Company or any Subsidiary or any of their respective Properties
may be bound or affected; or
(c) any statute, rule or regulation or any order, judgment
or award of any court, tribunal or arbitrator by which the
Company or any Subsidiary or any of their respective Properties
may be bound or affected.
5 Security Interests.
The Liens of the Holders in the Collateral (as defined in
the Trust Indenture) previously granted to the Security Trustee
remain valid, enforceable and perfected as of the date hereof and
the Collateral is subject to no other Liens not otherwise
permitted under the Amended Note Purchase Agreement and the
Security Documents.
6 Existence of Defaults.
Immediately prior to, and immediately after giving effect
to, the Amendments, no condition exists that would constitute a
Default or an Event of Default under the Existing Note Purchase
Agreement or the Amended Note Purchase Agreement.
2. AMENDMENTS WITH RESPECT TO EXISTING NOTE PURCHASE AGREEMENT;
AFFIRMATION.
1 Amendments.
The Company and, subject to the satisfaction of the
conditions set forth in Section 3 hereof, the Holders, each
hereby consent and agree that:
(a) compliance by the Company with Section 5 of the
Existing Note Purchase Agreement and the Amended Note Purchase
Agreement is waived to the extent (and only to the extent)
necessary to permit the payment of the Prepayment Amount to the
Selling Noteholder in accordance with the terms and conditions
set forth in this Agreement (including, without limitation, those
set forth in Section 3); and
(b) Section 5.1(a) of the Existing Note Purchase Agreement
is hereby amended by replacing each reference to "Four Million
Dollars ($4,000,000)" therein with a reference to "Three Million
Six Hundred Thousand Dollars ($3,600,000)"
(collectively, such amendments and waivers, together with those
provided for in Exhibit A, are herein collectively referred to as
the "Amendments").
2 Affirmation of Obligations under Security Documents.
The Company hereby acknowledges and affirms all of its
obligations under the terms of the Amended Note Purchase
Agreement and the Security Documents.
3 Scope of Amendment.
Except as expressly set forth in this Agreement, no
provision of the Existing Note Purchase Agreement, any Security
Document or any other agreement, document or instrument shall be
deemed to have been amended hereby. No Default or Event of
Default, or right, remedy, or power consequent thereon, whether
as provided in the Existing Note Purchase Agreement, the Amended
Note Purchase Agreement, any Security Document, any other
agreement, document or instrument, or by law to any holder of
Notes, shall be deemed to have been waived or affected hereby.
3. CONDITIONS TO EFFECTIVENESS OF AMENDMENTS.
The Amendments shall not become effective until all of the
following conditions precedent shall have been satisfied in full
(the date of such satisfaction being herein referred to as the
"Effective Date"):
1 Execution and Delivery of this Agreement.
The Company and the Holders shall have executed and
delivered to each other an original counterpart of this
Agreement.
2 No Defaults; Warranties and Representations True.
After giving effect to the Amendments, no Default or Event
of Default shall exist and the warranties and representations set
forth in Section 1 hereof shall be true and correct.
3 Proceedings Satisfactory.
All proceedings taken in connection with this Agreement and
all documents and papers relating thereto shall be reasonably
satisfactory to the Holders. The Holders shall have received
copies of such documents and papers as they may reasonably
request in connection therewith, all in form and substance
reasonably satisfactory to the Holders.
4 Payment of Prepayment Amount; Cancellation of Notes.
The Company shall have paid, on or before March 15, 1996, an
amount equal to the Prepayment Amount in respect of the Notes
held by the Selling Noteholder, and all of such Notes shall have
been delivered to the Company and cancelled and no Notes shall be
permitted to be issued in replacement or substitution therefor.
5 Expenses.
The Company shall have paid all costs and expenses of the
Holders relating to this Agreement in accordance with Section 4.6
hereof.
4. MISCELLANEOUS.
1 Terms Defined.
Terms used herein and not otherwise defined herein shall
have the respective meanings specified in the Amended Note
Purchase Agreement. A violation of this Agreement (including
without limitation, a material misrepresentation of any warranty
or representation contained herein) shall constitute an "Event of
Default" thereunder.
2 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, AND GOVERNED BY, INTERNAL CONNECTICUT LAW.
3 Duplicate Originals.
Two or more duplicate originals of this Agreement may be
signed by the parties, each of which shall be an original but all
of which together shall constitute one and the same instrument.
This Agreement may be executed in one or more counterparts and
shall be effective when at least one counterpart shall have been
executed by each party hereto, and each set of counterparts that,
collectively, show execution by each party hereto shall
constitute one duplicate original.
4 Waivers and Amendments.
Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, or by any action or
inaction, but only by an instrument in writing signed by the
party against which enforcement of the change, waiver, discharge
or termination is sought.
5 Section Headings.
The titles of the Sections hereof appear as a matter of
convenience only, do not constitute a part of this Agreement and
shall not affect the construction hereof.
6 Costs and Expenses.
On the Effective Date, the Company shall pay all costs and
expenses of the Holders relating to this Agreement, including,
but not limited to, the statement for reasonable fees and
disbursements of their special counsel presented to the Company
on the Effective Date. The Company will also pay, upon receipt
thereof, each additional statement for reasonable fees and
disbursements of the Holders' special counsel rendered after the
Effective Date in connection with this Agreement, the Amended
Note Purchase Agreement or the Security Documents.
7 Survival.
All warranties, representations, certifications and
covenants made by the Company in this Agreement, in the Amended
Note Purchase Agreement and in each of the Security Documents or
in any certificate or other instrument delivered pursuant to this
Agreement, the Amended Note Purchase Agreement or any of the
Security Documents shall be considered to have been relied upon
by the Holders and shall survive the execution and delivery of
this Agreement, regardless of any investigation made by or on
behalf of the Holders. All statements in any such certificate or
other instrument shall constitute warranties and
representations
of the Company under this Agreement, the Amended Note Purchase
Agreement or such Security Document.
8 Time of Essence.
Time is and shall be of the essence in the satisfaction of
all the conditions set forth in Section 3 of this Agreement.
[Remainder of page intentionally blank; next page is signature p
age.]
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed on its behalf by a duly authorized
officer or agent thereof.
Company: BARR LABORATORIES, INC.
By /s/William T. McKee
Name: William T. McKee
Title: Treasurer
Holder: CONNECTICUT GENERAL LIFE
INSURANCE COMPANY *
By CIGNA Investments, Inc.
By: /s/Stephen A. Osborne
Name: Stephen A. Osborne
Title:Managing Director
Holder: LIFE INSURANCE COMPANY OF
NORTH AMERICA *
By CIGNA Investments, Inc.
By: /s/Stephen A. Osborne
Name: Stephen A. Osborne
Title:Managing Director
Holder: CIGNA PROPERTY AND CASUALTY
INSURANCE COMPANY *
By CIGNA Investments, Inc.
By: /s/Stephen A. Osborne
Name: Stephen A. Osborne
Title:Managing Director
Holder: AMERICAN LIFE & CASUALTY
INSURANCE
COMPANY
By:/s/Gary F Greaves
Name: Gary F. Greaves
Title: Vice President
EXHIBIT A
DETERMINATION OF PREPAYMENT AMOUNT
5. Prepayment Amount. The Prepayment Amount shall be
equal to the aggregate principal amount of Notes held by American
Life & Casualty Insurance Company immediately prior to the
Effective Date (which principal amount of Notes the Company
represents and warrants to be equal to $2,000,000), together with
interest accrued thereon to the date of prepayment and together
with the Modified Make-Whole Amount (as such term is defined
below) calculated with respect to such principal amount of Notes
as of the date of prepayment.
As used herein:
Modified Make-Whole Amount -- shall have the meaning
ascribed to the term "Make-Whole Amount" in the Amended Note
Purchase Agreement, provided that the Modified Make-Whole
Amount shall be determined as though the reference to "fifty
one-hundredths percent (0.50%) per annum" in clause (b) of
the definition of "Make-Whole Discount Rate" were a
reference to "one and twenty-five one-hundredths percent
(1.25%) per annum".
Barr Laboratories, Inc.
_____________________________________
AMENDMENT NUMBER THREE
_____________________________________
Dated as of April 1, 1996
10.15% Senior Secured Notes due June 28, 2001
AMENDMENT NUMBER THREE
AMENDMENT NUMBER THREE (this "Agreement"), dated as of April
1, 1996, among BARR LABORATORIES, INC. (together with its
successors and assigns, the "Company"), a New York corporation,
and the Persons identified as "Holders" on the signature page
hereof (collectively, the "Holders").
RECITALS:
A. The Company entered into those certain separate Note
Purchase Agreements, each dated as of June 28, 1991
(collectively, as in effect immediately prior to the date hereof,
the "Existing Note Purchase Agreement" and, as amended hereby,
the "Amended Note Purchase Agreement"), with each of Connecticut
General Life Insurance Company, Life Insurance Company of North
America, CIGNA Property and Casualty Insurance Company and
American Life Casualty Insurance Company (individually, a
"Purchaser" and collectively, the "Purchasers"), pursuant to
which the Company issued and sold to the Purchasers and the
Purchasers purchased from the Company, Twenty Million Dollars
($20,000,000) in aggregate principal amount of the Company's
Senior Secured Notes due June 28, 2001 (collectively, as amended
from time to time, the "Notes").
B. Simultaneously with the execution of the Existing Note
Purchase Agreement, the Company entered into that certain Trust
Indenture, dated as of June 28, 1991 (as in effect immediately
prior to the date hereof, the "Existing Trust Indenture" and, as
amended hereby, the "Amended Trust Indenture"), with State Street
Bank and Trust Company of Connecticut, N.A. (the "Security
Trustee"), pursuant to which the Company granted to the Security
Trustee a security interest in certain Property of the Company to
secure the payment by the Company of the Secured Obligations (as
defined in the Existing Trust Indenture) and the performance of
the Secured Undertakings (as defined in the Existing Trust
Indenture).
C. The Holders are the registered holders of one hundred
percent (100%) of the Notes outstanding on the date hereof.
D. The Company has requested that the Holders agree to,
among other things, amend certain provisions of the Existing Note
Purchase Agreement and the Existing Trust Indenture as further
set forth herein, which requested amendments require the consent
of the holders of the Notes and the Security Trustee.
E. Subject to the terms and conditions set forth in this
Agreement, the Company, the Holders and the Security Trustee are
willing to agree to amend the Existing Note Purchase Agreement
and the Existing Trust Indenture, all in the manner specified on
certain Exhibits hereto and as more particularly set forth
herein.
F. The Amended Note Purchase Agreement and the Amended
Trust Indenture are sometimes herein referred to as the "Amended
Financing Documents."
AGREEMENT:
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the
Holders agree as follows:
1. WARRANTIES AND REPRESENTATIONS.
To induce the Holders to enter into this Agreement, the
Company warrants and represents to the Holders that as of the
Effective Date (as hereinafter defined):
1 Material Adverse Effect; Disclosure.
(a) Since June 30, 1995 there has been no change in the
business, prospects, profits, Properties or condition (financial
or otherwise) of the Company or any Subsidiary except changes in
the ordinary course of business that, in the aggregate, have not
had a material adverse effect on the business, prospects,
profits, Properties or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, or the ability of
the Company to perform any of its obligations set forth in the
Amended Note Purchase Agreement and the Security Documents.
(b) Neither this Agreement nor any written statement
furnished by the Company to the Holders in connection herewith
contains any untrue statement of a material fact or omits a
material fact necessary to make the statements contained therein
or herein not misleading. There is no fact that the Company has
not disclosed to each Holder in writing that has had or, so far
as the Company can now reasonably foresee, could reasonably be
expected to have, a material adverse effect on the business,
prospects, profits, Properties or condition (financial or
otherwise) of the Company and the Subsidiaries, taken as a whole,
or the ability of the Company to perform any of its obligations
set forth in the Amended Note Purchase Agreement and the Security
Documents.
2 Authorization, Execution and Enforceability.
The execution and delivery by the Company of this Agreement
and the performance of its obligations under each of the Amended
Financing Documents have been duly authorized by all necessary
action on the part of the Company. Each of the Amended Financing
Documents constitutes a valid and binding obligation of the
Company, enforceable in accordance with its respective terms,
except that the enforceability thereof may be:
(a) limited by bankruptcy, insolvency or other similar laws
affecting the enforceability of creditors' rights generally; and
(b) subject to the availability of equitable remedies.
3 No Conflicts, etc.
The execution and delivery by the Company of this Agreement
and the performance by the Company of its obligations under each
of the Amended Financing Documents do not conflict with, result
in any breach in any of the provisions of, constitute a default
under, violate or result in the creation of any Lien upon any
Property of the Company or any Subsidiary under the provisions
of:
(a) any charter document, agreement with shareholders or
bylaws of the Company or any Subsidiary;
(b) any agreement, instrument or conveyance by which the
Company or any Subsidiary or any of their respective Properties
may be bound or affected; or
(c) any statute, rule or regulation or any order, judgment
or award of any court, tribunal or arbitrator by which the
Company or any Subsidiary or any of their respective Properties
may be bound or affected.
4 Security Interests.
The Liens of the Holders in the Collateral (as defined in
the Amended Trust Indenture) previously granted to the Security
Trustee remain valid, enforceable and perfected as of the date
hereof and the Collateral is subject to no other Liens not
otherwise permitted under the Amended Financing Documents and the
Security Documents, as amended.
5 Existence of Defaults.
After giving effect to the Amendments, no condition exists
that would constitute a Default or an Event of Default under the
Amended Note Purchase Agreement.
6 Disclosure.
Neither this Agreement nor any written statement furnished
by the Company to the Holders in connection herewith contains any
untrue statement of a material fact or omits a material fact
necessary to make the statements contained therein or herein not
misleading.
2. AMENDMENTS WITH RESPECT TO EXISTING NOTE PURCHASE AGREEMENT
AND EXISTING TRUST INDENTURE; AFFIRMATION.
1 Amendments.
The Company and, subject to the satisfaction of the
conditions set forth in Section 3 hereof, the Holders, each
hereby consent and agree that:
(a) the Existing Note Purchase Agreement is hereby amended
in the manner specified in Exhibit A1 to this Agreement; and
(b) the Existing Trust Indenture is hereby amended in the
manner specified in Exhibit A2 to this Agreement; and
(collectively, such amendments provided for in such Exhibits are
herein referred to as the "Amendments").
2 Affirmation of Obligations under Financing Documents.
The Company hereby acknowledges and affirms all of its
obligations under the terms of the Amended Note Purchase
Agreement, the Amended Trust Indenture and the other Security
Documents.
3 Scope of Amendment.
Except as expressly set forth in this Agreement, no
provision of the Existing Note Purchase Agreement, the Notes, the
Existing Trust Indenture or any other agreement, document or
instrument shall be deemed to have been amended hereby. No
Default or Event of Default, or right, remedy, or power
consequent thereon, whether as provided in the Existing Note
Purchase Agreement, the Notes, the Existing Trust Indenture, the
Amended Note Purchase Agreement, the Amended Trust Indenture, or
by law, to any holder of Notes, shall be deemed to have been
waived or affected hereby.
3. CONDITIONS TO EFFECTIVENESS OF AMENDMENTS.
The Amendments shall not become effective until all of the
following conditions precedent shall have been satisfied in full
(the date of such satisfaction being herein referred to as the
"Effective Date"):
1 Execution and Delivery of this Agreement.
The Company and the Holders shall have executed and
delivered to each other and the Security Trustee an original
counterpart of this Agreement, and the Security Trustee shall
have executed and delivered to the Company and each of the
Holders the "Security Trustee's Consent and Agreement" attached
to this Agreement.
2 No Defaults; Warranties and Representations True.
After giving effect to the Amendments, no Default or Event
of Default shall exist and the warranties and representations set
forth in Section 1 hereof shall be true and correct.
3 Proceedings Satisfactory.
All proceedings taken in connection with this Agreement and
all documents and papers relating thereto shall be reasonably
satisfactory to the Holders. The Holders shall have received
copies of such documents and papers as they may reasonably
request in connection therewith, all in form and substance
reasonably satisfactory to the Holders.
4 Expenses.
The Company shall have paid all costs and expenses of the
Holders relating to this Agreement in accordance with Section 5.6
hereof.
4. DIRECTION TO SECURITY TRUSTEE.
Each of the Holders, by its execution and delivery hereof,
hereby requests and directs the Security Trustee to
(a) consent and agree to the amendments to the Existing
Trust Indenture and such other agreements to which it is a party,
as such amendments are described herein, by executing and
delivering the "Security Trustee's Consent and Agreement"
attached to this Agreement;
(b) execute and deliver a "Release, Consent and
Acknowledgement" substantially in the form of Exhibit B attached
to this Agreement; and
(c) execute and deliver four Uniform Commercial Code
financing statement partial releases, one each for filing with
respect to (i) financing statement number 133450 (New York
Secretary of State), (ii) financing statement 91-1896 (Rockland
County, New York), (iii) financing statement 1404418 (New Jersey
Secretary of State) and (iv) financing statement 002494 (Bergen
County, New Jersey), each substantially in the respective forms
set forth on Exhibit C attached to this Agreement.
5. MISCELLANEOUS.
1 Terms Defined.
Terms used herein and not otherwise defined herein shall
have the respective meanings specified in the Amended Note
Purchase Agreement. A violation of this Agreement (including
without limitation, a material misrepresentation of any warranty
or representation contained herein) shall constitute an "Event of
Default" thereunder.
2 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, AND GOVERNED BY, INTERNAL CONNECTICUT LAW.
3 Duplicate Originals.
Two or more duplicate originals of this Agreement may be
signed by the parties, each of which shall be an original but all
of which together shall constitute one and the same instrument.
This Agreement may be executed in one or more counterparts and
shall be effective when at least one counterpart shall have been
executed by each party hereto, and each set of counterparts that,
collectively, show execution by each party hereto shall
constitute one duplicate original.
4 Waivers and Amendments.
Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, or by any action or
inaction, but only by an instrument in writing signed by the
party against which enforcement of the change, waiver, discharge
or termination is sought.
5 Section Headings.
The titles of the Sections hereof appear as a matter of
convenience only, do not constitute a part of this Agreement and
shall not affect the construction hereof.
6 Costs and Expenses.
On the Effective Date, the Company shall pay all costs and
expenses of the Holders relating to this Agreement, including,
but not limited to, the statement for reasonable fees and
disbursements of their special counsel presented to the Company
on the Effective Date. The Company will also pay, upon receipt
thereof, each additional statement for reasonable fees and
disbursements of the Holders' special counsel rendered after the
Effective Date in connection with this Agreement or the Amended
Financing Documents.
7 Survival.
All warranties, representations, certifications and
covenants made by the Company in this Agreement and in each of
the Amended Financing Documents or in any certificate or other
instrument delivered pursuant to this Agreement or any of the
Amended Financing Documents shall be considered to have been
relied upon by the Holders and shall survive the execution and
delivery of this Agreement, regardless of any investigation made
by or on behalf of the Holders. All statements in any such
certificate or other instrument shall constitute warranties and
representations of the Company under this Agreement or such
Amended Financing Document.
8 Time of Essence.
Time is and shall be of the essence in the satisfaction of
all the conditions set forth in Section 3 of this Agreement.
[Remainder of page intentionally blank; next page is signature p
age.]
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed on its behalf by a duly authorized
officer or agent thereof.
Company: BARR LABORATORIES, INC.
By /s/William T. McKee
Name: William T McKee
Title:Treasurer
Holder: CONNECTICUT GENERAL LIFE
INSURANCE COMPANY*
By CIGNA Investments, Inc.
By: /s/Stephen A. Osborne
Name: Stephen A. Osborne
Title:Managing Director
Holder: LIFE INSURANCE COMPANY OF
NORTH AMERICA *
By CIGNA Investments, Inc.
By: /s/Stephen A. Osborne
Name: Stephen A. Osborne
Title:Managing Director
Holder: CIGNA PROPERTY AND CASUALTY
INSURANCE COMPANY *
By CIGNA Investments, Inc.
By: /s/Stephen A. Osborne
Name: Stephen A. Osborne
Title:Managing Director
SECURITY TRUSTEE'S CONSENT AND AGREEMENT
The Security Trustee hereby consents and agrees to the
amendments and modifications to the Existing Trust Indenture and
the other amendments and modifications provided for by this
Agreement.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Security Trustee
By________________________________
Name:
Title:
EXHIBIT A1
AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT
6. Section 7.10(a). Section 7.10(a) of the Existing Note
Purchase Agreement is hereby amended by renumbering clause (vii)
and clause (viii) thereof as clause (viii) and clause (ix),
respectively, and inserting a new clause (vii) to read in its
entirety as follows:
" (vii) 1996 Grandfathered Purchase Money
Liens;"
7. Section 8.1. Section 8.1 of the Existing Note Purchase
Agreement is hereby amended by deleting the expression "and"
following the semicolon at the end of clause (j) thereof,
renumbering clause (k) thereof as clause (l), and inserting a new
clause (k) to read in its entirety as follows:
" (k) Notice of Certain Advances -- with
reasonable promptness, a copy of each request for an
advance or other funding of Permitted Purchase Money
Indebtedness (as such term is defined in the Trust
Indenture), with all attachments and accompanying
information, and containing a description of the
Property purchased or to be purchased therewith
(including, without limitation, serial numbers or other
similar identification of such Property) and providing
the location thereof; and"
8. Section 10. Section 10 of the Existing Note Purchase
Agreement is hereby amended by adding the following defined
terms, each to be placed in its respective appropriate
alphabetical position within such Section:
" Amendment Number Three -- means Amendment Number Three
dated as of April 1, 1996 to the Note Purchase Agreement and
the Trust Indenture."
" 1996 Grandfathered Purchase Money Liens -- means Liens
on Property acquired by the Company during the period from
June 1, 1995 to April 15, 1996, which Liens secure
"Permitted Purchase Money Indebtedness" (as such term is
defined in the Trust Indenture), and which Property is
described on Exhibit C of Exhibit B to Amendment Number
Three."
EXHIBIT A2
AMENDMENTS TO EXISTING TRUST INDENTURE
9. Second "Whereas" Clause. Clause (b) of the second
appearing "whereas" clause in the Recitals of the Existing Trust
Indenture is hereby amended and restated in its entirety to read
as follows:
" (b) all of its machinery and equipment
(including, without limitation, the books, records,
warranties and computer disks, tapes and software in
connection therewith), furniture, furnishings,
appliances, apparatus, tools, parts and supplies
wherever located, including, without limitation, all of
its machinery, equipment, furniture, furnishings,
appliances, apparatus and tools located in or on, or
attached to, the Mortgaged Real Property and/or the
Improvements, except as otherwise specified in Section
2 hereof."
10. Section 1. Section 1 of the Existing Trust Indenture
is amended by adding each of the following definitions, in its
appropriate alphabetical position, to read as follows:
" Exempt Property -- means, at any time, all Property of
the Company of the types described in clause (a) and clause
(b) of Section 2, to the extent that such Property is (i)
purchased or otherwise acquired for use in the New Facility
or (ii) is moved from the Company's facility in Northvale,
New Jersey for use in the New Facility (it being understood
that no Property moved from the Company's facility in
Pomona, New York shall constitute Exempt Property)."
" New Facility -- means the pharmaceutical manufacturing
facility of the Company located in Forrest, Virginia."
" Permitted Purchase Money Indebtedness -- means
indebtedness incurred by the Company through advances
aggregating no more than $18,750,000 pursuant to one or more
credit facilities (including, without limitation, that Loan
and Security Agreement dated as of April 12, 1996, between
the Company and BA Leasing & Capital Corporation), which
indebtedness is secured by a Lien on Property of the Company
(other than Property consisting of plumbing, electrical or
HVAC fixtures or other similar Property) acquired with such
indebtedness at a purchase price not in excess of the amount
of such indebtedness, so long as such Lien extends to no
other Property and secures no other indebtedness."
11. Section 2. Section 2 of the Existing Trust Indenture
is hereby amended and restated in its entirety to read as
follows:
" 2. GRANT OF SECURITY.
The Company hereby grants to the Security Trustee a
continuing security interest in all of the Property of the
Company specified below in this Section 2 (whether now in
existence or hereafter acquired or wherever the same may be
located) for the purpose of securing payment by the Company
of the Secured Obligations and the performance by the
Company of the Secured Undertakings:
do we need to carve out the property subject to the BA facility,
or is our release with them sufficient?
(a) all machinery, equipment, appliances,
and apparatus, other than such items constituting
Exempt Property,
(b) all furniture, fixtures, fittings,
furnishings, tools, parts and supplies, other than such
items constituting Exempt Property,
(c) all bonds and amounts placed in escrow
with the Security Trustee in accordance with the
provisions of Section 3.4(b) or Section 3.5(b) hereof,
and
(d) all books, records, warranties and
computer disks, tapes and software used in connection
with the Property described in clause (a) and clause
(b) above, together with all of the Company's right,
title and interest in, to and under products and
proceeds of the foregoing (including, without
limitation, proceeds of insurance covering the
foregoing, all proceeds from the disposition of any of
the foregoing and all proceeds from any indemnity,
warranty or guaranty payable by reason of loss of,
damage to or otherwise with respect to any of the
foregoing) and all of the Company's right, title and
interest in, to and under any replacements or
substitutions of, or accessions to, the foregoing."
12. Section 3.9(e). Section 3.9(e) of the Existing Trust
Indenture is hereby amended by replacing each reference to
"Section 7.11" of the Note Purchase Agreement (whether such
reference is to the entirety of Section 7.11 or to a clause
therein) with a reference to "Section 7.10".
13. Section 3.9(e). Section 3.9(e) of the Existing Trust
Indenture is hereby amended by deleting clause (iv) thereof and
replacing it with the following expression:
"(iv) no Liens permitted by Section 7.10(a)(vi) or
Section 7.10(a)(vii) shall be permitted to encumber the
Collateral other than Liens securing Permitted Purchase
Money Indebtedness outstanding at such time."
EXHIBIT B
[FORM OF CONSENT]
RELEASE, CONSENT AND ACKNOWLEDGMENT
Reference is made to that certain Loan and Security Agreement
Number 950196 by and between BA LEASING & CAPITAL CORPORATION
("Lender") and BARR LABORATORIES, INC., ("Borrower"), dated as of
April 12, 1996 ("Agreement"), and to the Collateral (defined
below).
(a) State Street Bank and Trust Company of Connecticut,
N.A., as Security Trustee under the Trust Indenture dated as of
June 28, 1991 (as amended, the "Trust Indenture"), between Barr
Laboratories, Inc. and State Street Bank and Trust Company of
Connecticut, N.A. (as Security Trustee thereunder, the
"Creditors' Representative"), has an interest as, inter alia,
mortgage holder in the real property described in Exhibit B (the
"Real Property").
(b) The Agreement provides, inter alia, for the grant of a
security interest by Borrower in the Collateral, which is or may
be located upon the Real Property.
(c) Lender, as a condition to entering into the Agreement,
requires that the Creditors' Representative, on behalf of the
holders of the Notes (defined below), enter into this agreement
with the Lender.
NOW, THEREFORE, for a good and sufficient consideration,
receipt of which is hereby acknowledged, the Creditors'
Representative and the Lender hereby agree as follows:
14. The Creditors' Representative hereby consents to the
placement of Collateral on the Real Property.
15. The Collateral shall be considered to be personal
property and shall not be considered part of the Real Property
regardless of whether or by what means it is or may become
attached or affixed to the Real Property.
16. Neither the Creditors' Representative nor the holders
of the Notes will claim any interest in the Collateral.
17. The Creditors' Representative hereby releases and
waives any right, title or interest, including without limitation
any security interest arising under the Trust Indenture or that
certain Mortgage, Assignment of Rents and Security Agreement
dated as of June 28, 1991, by the Borrower to the Creditors'
Representative, it may now have or hereafter acquire in the
Collateral.
18. If the Creditors' Representative (for itself or on
behalf of the holders of the Notes) is in possession, or is
entitled to be in possession, of the Real Property, it will
permit Lender to enter upon the Real Property for the purpose of
exercising its rights with respect to the Collateral under
the
terms of the Agreement, or otherwise as permitted by law with
respect to the Collateral, including, without limitation, the
right to remove the Collateral from the Real Property, without
charge by the Creditors' Representative (other than with respect
to actual out-of-pocket expenses incurred in connection with
providing to the Lender such access to, and allowing usage of,
the Real Property); provided that the Lender agrees in writing to
(1) conduct any such removal in a reasonable and prudent manner,
(2) repair any damage to the Real Property or any other property
in which the Creditors' Representative may have an interest that
is caused by or incidental to the activities of the Lender
(including the repair of damage to improvements located on the
Real Property caused by the Lender's removal of Collateral) and
(3) hold the Creditors' Representative (and the holders of the
Notes) harmless and to indemnify each of them with respect to any
and all losses, obligations, damages and other liabilities that
they, the Real Property or any other property in which they have
an interest may suffer or incur as a result of the Lender's
activities on the Real Property. The Creditors' Representative
(for itself or on behalf of the holders of the Notes) will not
object to the entry by the Lender onto the Real Property for the
purpose of exercising the Lender's rights with respect to the
Collateral at any time during which it is not in possession, or
otherwise entitled to be in possession, of the Real Property.
19. Creditors' Representative acknowledges that the Lender
expects to fund the acquisition by Borrower from time to time of
additional equipment constituting Collateral, and agrees that the
Borrower's granting of liens in the Collateral to the Lender do
not violate Section 7.10(a) of the Note Purchase Agreement
(defined below) or Section 3.9(e)(iv) of the Trust Indenture.
20. The Creditors' Representative agrees for the benefit of
the Lender to execute such Uniform Commercial Code financing
statement releases with respect to the release of its interest,
if any, in the Collateral as are necessary to give effect to the
agreement evidenced hereby (it being understood that the filing
of any such financing statement releases shall be conducted by
the Lender at its own expense).
21. This agreement shall be binding upon the heirs,
successors and assigns of the Creditors' Representative and the
holders of the Notes, provided, that the consent granted pursuant
to paragraph 5 above shall not be binding on future owners or
holders of the Real Property taking their interest as a result of
a foreclosure or other enforcement action with respect to the
Real Property.
22. All of the understandings, agreements, representations
and warranties contained herein are solely for the benefit of the
Creditors' Representative, the holders of the Notes and the
Lender, and their respective successors and assigns, and there
are no other parties, including the Borrower, who are intended to
be benefited, in any manner, by this consent.
23. Nothing contained in this consent is intended to affect
or limit, in any manner, the security interest that each of the
parties hereto has in any and all of the assets of the Borrower,
whether tangible or intangible, insofar as the rights of the
Borrower and third parties are involved. The parties hereto
specifically reserve any and all of their respective rights,
security interests and rights to assert security interests as
against the Borrower and any third parties.
24. This consent relates only to security interests in the
Collateral and the Real Property, and shall not affect any other
security interest or right of repayment that the Lender, the
Creditors' Representative or the holders of the Notes may have.
25. As used herein, the following capitalized terms are
assigned the following meanings:
Collateral -- means the property described on the attached
Exhibit A (to the extent that such property is acquired by the
Borrower on or after the date hereof) and the attached Exhibit C,
to the extent that
(a) such property does not consist of plumbing, electrical
or HVAC fixtures, or other similar property,
(b) such property was acquired with indebtedness incurred
by the Borrower pursuant to the Agreement through advances
aggregating no more than $18,750,000,
(c) such property secures the payment of such indebtedness
under the Agreement and secures no other indebtedness and
(d) such property was acquired with such indebtedness under
the Agreement at a purchase price for all such property not in
excess of the aggregate amount of such indebtedness under the
Agreement.
Note Purchase Agreement -- means that certain Note Purchase
Agreement dated as of June 28, 1991, between the Borrower and the
persons listed on Annex 1 thereto, as amended from time to time.
Notes -- means the Borrower's 10.15% Senior Secured Notes
issued pursuant to the Note Purchase Agreement, as amended from
time to time.
IN WITNESS WHEREOF, the undersigned have executed this
consent as of April __, 1996.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, N.A.,
as Security Trustee
By________________________________
Name:
Title:
BA LEASING & CAPITAL
CORPORATION
By________________________________
Name:
Title:
EXHIBIT A to Release, Consent and Acknowledgment
26. New personal property used in the production,
processing and manufacture of pharmaceutical products identified
as Collateral pursuant to the Agreement.
37.
27. All purchase orders and agreements, deposits, progress
payments or the like related to item 1 above.
28. All log books, manuals, maintenance programs,
documentation or other information related to items 1 and 2
above.
29. All warranties or other rights arising from any source
related to items 1, 2 and 3 above.
30. All proceeds including insurance proceeds of any of
items 1, 2, 3 or 4 above.
EXHIBIT B to Release, Consent and Acknowledgment
Real Property
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING
AND BEING IN THE TOWN OF HAVERSTRAW, COUNTY OF ROCKLAND AND STATE
OF NEW YORK, BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT A MONUMENT SET IN THE WESTERLY SIDE OF QUAKER ROAD,
WHERE THE SAME IS INTERSECTED BY THE SOUTHERLY LINE OF LANDS NOW
OR FORMERLY OF HIGH TOR PROPERTIES, INC.;
THENCE ALONG SAID LANDS NORTH 81 DEGREES 04' 03" WEST 2198.71
FEET TO A STONE WALL AND LANDS NOW OR FORMERLY OF ZUBIAURRE;
THENCE ALONG SAID LANDS AND ALONG LANDS NOW OR FORMERLY OF
ZARATE, SOUTH 18 DEGREES 23' 19" WEST 195.71 FEET TO A POINT;
MARKED BY A CROSS CUT IN SAID STONE WALL AND LANDS NOW OR
FORMERLY OF SKY;
THENCE PARTLY ALONG SAID LANDS NOW OR FORMERLY OF SKY, SOUTH 22
DEGREES 37" 28" WEST 95.00 FEET TO A POINT;
THENCE STILL ALONG LANDS NOW OR FORMERLY OF SKY AND ALONG LANDS
NOW OR FORMERLY OF HEAVNER, LANDS NOW OR FORMERLY OF PROSELLER
AND LANDS NOW OR FORMERLY OF DEISROTH, SOUTH 18 DEGREES 05" 22"
WEST 734.44 FEET TO LANDS NOW OR FORMERLY OF MARCZAM;
THENCE ALONG SAID LANDS NOW OR FORMERLY OF MARCZAN, THE FOLLOWING
COURSE AND DISTANCES;
SOUTH 81 DEGREES 05' 12" EAST 1104.70 FEET TO A POINT AND LANDS
NOW OR FORMERLY OF MOUNT IVY SAND AND GRAVEL COMPANY;
THENCE ALONG SAID LANDS NOW OR FORMERLY OF MOUNT IVY SAND AND
GRAVEL COMPANY, NORTH 8 DEGREES 57' 51" EAST 500.00 FEET, SOUTH
81 DEGREES 03' 39" EAST 1220.00 FEET AND SOUTH 8 DEGREES 51' 17"
WEST 259.36 FEET AND SOUTH 81 DEGREES 29' 03" EAST 226.32 FEET TO
A MONUMENT SET IN SAID LANDS;
THENCE NORTH 8 DEGREES 18' 22" WEST 220.37 FEET AND NORTH 12
DEGREES 21' 57" EAST 131.79 TO A POINT AND THE WESTERLY SIDE OF
QUAKER ROAD;
THENCE ALONG THE WESTERLY SIDE OF QUAKER ROAD, NORTH 7 DEGREES
18' 02" WEST 443.58 FEET TO THE POINT OR PLACE OF BEGINNING.
EXHIBIT C to Release, Consent and Acknowledgment
[Omitted from form]
EXHIBIT C
FORM OF UCC-3 FINANCING STATEMENTS
_______________________________