Item 14 (10) (G)
THIS SECURITY WAS ISSUED ON APRIL 25, 1994 (THE "ISSUE DATE") AT AN
ISSUE PRICE OF $__________ FOR EACH $1,000 IN PRINCIPAL AMOUNT. UNDER THE
INTERNAL REVENUE CODE AND PROPOSED TREASURY REGULATIONS, ALL INTEREST PAYMENTS
ON THIS SECURITY ARE TO BE TREATED AS PART OF THE STATED REDEMPTION PRICE AT
MATURITY, THEREBY CAUSING THIS SECURITY TO HAVE ORIGINAL ISSUE DISCOUNT ("OID").
ACCORDINGLY, (i) THE TOTAL AMOUNT OF OID FOR EACH $1,000 IN PRINCIPAL AMOUNT OF
THIS SECURITY IS $__________ AND (ii) THE YIELD TO MATURITY FOR PURPOSES OF
ALLOCATING OID IS ___% COMPOUNDED ANNUALLY.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATED SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, OR
TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH. THIS NOTE IS ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE SHAREHOLDERS AGREEMENT
DATED AS OF APRIL 25, 1994, COPIES OF WHICH WILL BE FURNISHED BY CULBRO
CORPORATION AND ANY SUCCESSOR THERETO UPON REQUEST AND WITHOUT CHARGE.
10% Exchangeable Note Due 1998
Culbro Corporation, a New York corporation (the "Issuer"), for value
received hereby promises to pay to MS Distribution, Inc. ("MSD") and its
successors, transferees and assigns by wire transfer of immediately available
funds to an account (the "Bank Account") designated by MSD by notice to the
Issuer the principal sum of Fifteen Million Dollars ($15,000,000) on August 19,
1998, and to pay interest, by wire transfer of immediately available funds to
the Bank Account on August 19, 1998, on the unpaid principal sum hereof
outstanding at the rates per annum set forth below, from April 25, 1994;
PROVIDED that in lieu of payment of such principal and interest by wire transfer
immediately available funds, the obligations of the Issuer under this Note shall
be satisfied in full upon (and the Issuer shall always have the right to so
satisfy such obligations by) an exchange of the Notes for the EW Series B
Preferred Stock (as defined below) pursuant to Section 3 if such exchange
results in the transfer to the Holders (as defined below) of beneficial
ownership and physical possessions of the EW Series B Preferred Stock plus an
amount equal to accrued interest on the Notes.
This Note shall bear interest, commencing on the date hereof, at a
rate per annum equal to 10%. If all or any portion of the principal amount
hereof or interest hereon is not paid when due (whether upon acceleration,
redemption, at maturity or otherwise), then in each such case the overdue amount
shall bear interest ("Overdue Interest") at the rate of 12% per annum,
compounded quarterly, which Overdue Interest shall accrue from the date such
overdue amount was due to the date payment of such amount has been made or duly
provided for. All such Overdue Interest shall be payable on demand.
Interest on this Note accrued for any period less than a full year
shall be computed on the basis of an annual rate of 10.0% and a 365-day and the
actual number of days in such partial year.
Notwithstanding anything herein to the contrary, all payments of
principal and interest to be made by Culbro under this Note, and all costs of
enforcement and collection, shall be required to be made or satisfied only out
of the EW Series B Preferred Stock, dividends or distributions with respect
thereto, income thereon and proceeds thereof. The Holder, by acceptance of this
Note, agrees that, insofar as Culbro or any of its shareholders, officers,
directors, employees and agents are concerned, it will look to the EW Series B
Preferred Stock, dividends or distributions with respect thereto and any income
and proceeds therefrom and no recourse or assertion of personal liability shall
be had for the payment of the principal or interest under this Note against
Culbro or any shareholder, officer, director, agent, employee thereof, any legal
representative, heir, estate, successor or assignee of Culbro or against any
property, assets or funds other than the EW Series B Preferred Stock, dividends
or distributions with respect thereto or income thereon or proceeds thereof.
Nothing in this paragraph shall be construed to limit in any way the remedies
available against Culbro or Ew under the Securities Purchase Agreement, the
Shareholders Agreement or any other agreement referred to therein or entered
into in connection therewith.
The holder of this Note agrees, for the benefit of (i) the lenders
under the Amended and Restated Credit Agreement dated as of February 19, 1993,
as amended, among the Issuer and the several lenders parties thereto and
Chemical Bank, as agent, and (ii) the holders of the Issuer's 9.56% Series B
Senior Notes Due 1994, 9.87% Series C Senior Notes Due 1998 and 9.93% Series D
Notes Due 1998, all issued pursuant to that certain Amended and Restated Note
Purchase Agreement dated as of February 19, 1993, as amended, among the Issuer
and the several note purchasers identified in Schedule I thereto, that in the
event any voluntary or involuntary proceeding under Chapter 11 of the United
States Bankruptcy Code, as amended, shall be filed by or against the Issuer, the
holder of this Note will in a timely manner duly elect the application of the
provisions of Section 1111(b)(2) of such Code to any claim for payment arising
out of this Note, to the extent permitted by Section 1111(b)(1) thereof.
This Note is the duly authorized note of the Issuer (the "Note")
referred to in the Securities Purchase Agreement dated as of April 18, 1994
between the Issuer and MSD. the Note is transferable and assignable by MSD or
any transferee of MSD to one or more purchasers; PROVIDED that such transfer or
assignment is made in compliance with the Securities Act of 1933, as amended,
and any applicable state and foreign securities laws; and PROVIDED FURTHER that
this Note shall not be transferred to any Person which is not an Affiliate of
MSD without the prior consent of Chemical Bank, as agent under the Credit
Agreement dated as of February 19, 1993 among the Issuer, the Financial
Institutions signatory thereto and Chemical Bank, as amended, unless such Person
holds at least 10% of the Common Stock of EW outstanding at the time of such
transfer. This Note is subject to certain restrictions set forth in the
Shareholders Agreement (the "Shareholders Agreement") dated as of the date
hereof among the Issuer and the other parties thereto. Culbro has secured its
obligations hereunder pursuant to the Custody and Pledge Agreement (the "Custody
and Pledge Agreement") dated as of the date hereof.
The Issuer agrees to issue to MSD or any transferee of MSD from time
to time a replacement Note or Notes in the form hereof and in such denominations
as such Person may request to facilitate such transfers and assignments.
References to "Notes" shall include the Note or Notes issued following a
transfer or assignment of this Note in whole or in part to more than one
purchaser. In addition, after delivery of an indemnity in form and substance
satisfactory to the Issuer, the Issuer also agrees to issue a replacement Note
if this Note has been lost, stolen, mutilated or destroyed.
The Issuer shall keep at its principal office a register (the
"Register") in which shall be entered the name and address of the registered
holder of this Note and of all transfers of this Note. References to the
"Holder" (or "Holders") shall mean the Person (or Persons) listed in the
Register as the payee of the Notes. The ownership of this Note shall be proven
by the Register. For the purpose of paying any amount owing under this Note,
the Issuer shall be entitled to rely on the name and address in the Register and
notwithstanding anything to the contrary contained in this Note, no Event of
Default shall occur under Section
2.1(a) if payment is made in accordance with the name and address contained in
Section 1. CERTAIN TERMS DEFINED. The following terms for all
purposes of this Note shall have the respective meanings specified below. The
terms defined in this Section 1 include the plural as well as the singular.
"ACCELERATED EXCHANGE EVENT" means the occurrence of any of the
(i) any Series B Redemption Event; or
(ii) failure on the part of the Issuer to observe or perform any
of the covenants or agreements of the Issuer contained in the Custody
and Pledge Agreement;
(iii) the Security Interest (as defined in the Custody and
Pledge Agreement) shall fail to constitute a valid and perfected first
priority Lien or Culbro or any third party shall so assert in writing;
(iv) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
the Issuer or for any substantial part of the property of the Issuer
or ordering the winding up or liquidation of the affairs of the
(v) commencement by the Issuer of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the issuer or for any
substantial part of the property of the Issuer, or the Issuer shall
make the general assignment for the benefit of creditors; or
(vi) any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Issuer; or
(vii) (A) failure by the Issuer or any of its Subsidiaries
(including without limitation EW) to make any payment in respect of
any Material Debt when due or within any applicable grace period or
occurrence of any event or condition which (x) results in the
acceleration of the maturity of any Material Debt or (y) enables (or,
with the giving of notice or lapse of time or both, would enable) the
holder of such Material Debt or any Person acting on such holder's
behalf to accelerate the maturity thereof, which failure in the case
of clause (y) above shall be continuing and not waived by the holders
of such Material Debt for a period of 30 days; or
(viii) Culbro Net Worth shall be less than $60 million; or
(ix) any sale, exchange or conveyance of all or substantially
all of the assets, properties or business of the Issuer; or
(x) any merger or consolidation other than any merger in which
(w) the Issuer is the surviving company in such merger and such
company shall have the certificate of incorporation and bylaws of the
issuer, (x) immediately following such merger, the only shareholders
of the surviving company shall be the shareholders of the Issuer
immediately prior to such merger and their relative equity interest
shall remain unchanged, (y) Culbro Net Worth immediately following
such merger shall be at least equal to the Culbro Net Worth
immediately prior to such merger and (z) no Default shall have
occurred and be continuing immediately following such merger; or
(xi) any Recapitalization.
"ACCELERATION NOTICE" shall have the meaning set forth in Section
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with,
such Person; PROVIDED that neither MSD nor any Affiliate of MSD shall be an
Affiliate of the Issuer.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day
on which commercial banks in the City of New York are authorized by law to
"CULBRO NET WORTH" means at any date the consolidated shareholder's
equity of the issuer and its Subsidiaries determined as of such date.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations, including accrued and unpaid interest and premium, of such Person
money, (ii) all obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments, (iii) all obligations of such Person in respect of
letters of credit, bankers' acceptance or other similar instruments (or
reimbursement obligations with respect thereto), (iv) all obligations of such
person to pay the deferred purchase price of property or services, except Trade
Payables, (v) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (vi) all Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person, and (vii) all Debt of others Guaranteed by such
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"EVENT OF DEFAULT" shall have the meaning set forth in Section 2.1.
"EXCHANGE NOTICE" shall have the meaning set forth in Section 3.
"EW" means the Eli Witt Company, a Delaware corporation.
"EW SERIES B PREFERRED STOCK" means the Series B Preferred Stock, par
value $0.01 per share, of EW.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt of such other Person (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement conditions or
otherwise) or (ii) entered into for the purpose of assuring in any other manner
the obligee of such Debt for the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); PROVIDED that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
purposes of this Note, the Issuer shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capitalized lease or other title
retention agreement relating to such asset.
"MATERIAL DEBT" means (i) all Debt of the Issuer and/or one or more
of its Subsidiaries owing to MSD or its Affiliates (other than the Notes) and
(ii) any other Debt (other than (a) the Notes, (b) Debt of the Issuer owed to
any Subsidiary or (c) Debt of any Subsidiary owed to the Issuer or any other
Subsidiary) of the Issuer and/or one or more of its Subsidiaries, arising in
one or more related or unrelated transactions exceeding $3,000,000 in the
"PERSON" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"RECAPITALIZATION" means any reorganization, recapitalization,
reclassification, spin-off, partial or complete liquidation, dividend (other
than regular quarterly dividends in any amount not to exceed $.20 per share of
common stock of the Issuer paid after the Closing Date), split-up, repurchase by
the Issuer of its capital stock (other than repurchases in one transaction or a
series of transactions for aggregate consideration not to exceed $4,000,000),
distribution to stockholders or combination of the securities of the Issuer or
any other change (other than a change which is immaterial) in capital structure
of the Issuer.
"REQUIRED HOLDERS" means, as of any date, holders of at least 50% of
the total principal amount of Notes outstanding on such date.
"SERIES B REDEMPTION EVENT" means the events described in clauses
(ii) through (vi) of the definition of "Series B Redemption Event" set forth in
the Shareholders Agreement.
"SUBSIDIARY" means any entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly
or indirectly owned by the Issuer.
"TRADE PAYABLES" means accounts payable or any other indebtedness or
monetary obligations to trade creditors created or assumed by the Issuer or any
of the issuer in the ordinary course of business in connection with the
obtaining of materials or services.
Section 2. EVENTS OF DEFAULT AND REMEDIES.
SECTION 2.1. EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY;
WAIVER OF DEFAULT. In case one or more of the following events ("Events of
Default") shall have occurred and be continuing;
(a) default in the payment of all or any part of the principal of or
interest on any of the Notes as and when the same shall become due and payable,
at maturity, upon any redemption, by acceleration or otherwise; or
(b) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer contained in the
Notes (other than those covered by clause (a) above) which failure shall have
continued for a period of 30 days after written notice thereof has been given to
the Issuer; or
(c) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Issuer or for any substantial part of
the property of the Issuer or ordering the winding up or liquidation of the
affairs of the Issuer; or
(d) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Issuer or for any substantial part of the property of the Issuer, or the
Issuer shall make any general assignment for the benefit of creditors; or
(e) any Accelerated Exchange Event (other than an Accelerated
Exchange Event described in clause (iv) or (v) of the definition thereof);
then, and in each and every such case (other than an Event of Default specified
in Section 2.1(c) or 2.1(d) hereof), the Required Holders, by notice in writing
to the Issuer (the "Acceleration Notice"), may declare the aggregate principal
amount of the Notes and the interest accrued thereon to be due and payable
immediately, and upon any such
declaration the same shall become immediately due and payable; PROVIDED that if
an Event of Default specified in Section 2.1(c) or 2.1(d) occurs, the aggregate
principal of and accrued interest on the Notes shall become and be immediately
due and payable without any declaration or other act on the part of the Holders.
Section 2.2. POWER AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT. No right or remedy herein conferred upon or reserved to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Holders to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of any such
Event of Default or an acquiescence therein; and every power and remedy given by
this Note or by law may be exercised from time to time, and as often as shall be
deemed expedient, by the Holders.
Section 2.3. WAIVER OF PAST DEFAULTS. The Required Holders may
waive any past Default and its consequences. In the case of any such waiver,
the Issuer and the Holders shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred for every purpose of the Notes; but
no such waiver shall extent to any subsequent or other Default or impair any
right consequent thereon.
3. EXCHANGE. (a) The Notes shall be exchangeable into EW
Series B Preferred Stock, in whole or from time to time in part, (i) at the
option of the Required Holders at any time following April 25, 1998 and (ii) at
the option of the Issuer at any time following July 1, 1998.
(b) The Notes shall be automatically exchanged, in whole and not in
part, into the EW Series B Preferred Stock immediately prior to the earliest to
occur of (i) August 19, 1998, (ii) any redemption in full of the EW Series B
Preferred Stock or (iii) any Accelerated Exchange
Event. In addition, the Notes shall be automatically exchanged into EW Series B
Preferred Stock from time to time in part immediately prior to any partial
redemption of the EW Series B Preferred stock. Any exchange pursuant to this
Section 3(b) shall occur automatically, without further action on the part of
the Holders or the Issuer. Holders of outstanding Notes automatically shall
become the beneficial owners of the number of shares of the EW Series B
Preferred Stock determined pursuant to Section 3(b) and the Notes or portion
thereof so exchanged shall be canceled concurrently with such exchange.
(c) Any exchange pursuant to this Section 3 shall be for Notes having
an aggregate principal amount which shall bear the same proportion, as nearly as
may be, to the total principal amount of all of the Notes then outstanding as
the number of shares of EW Series B Preferred Stock being redeemed bears to the
total number of shares of EW Series B Preferred Stock outstanding immediately
prior to such exchange. Any exchange of less than all of the Notes shall be
applied pro rata among the Notes according to the principal amounts thereof.
(d) An amount equal to all interest on the aggregate principal amount
of Notes being exchanged pursuant to this Section 3, accrued to the date fixed
for exchange, shall be paid to the Holders on the date fixed for exchange.
(e) (i) At least 30 but not more than 60 days prior to the date
fixed or anticipated for any exchange of the Notes or the date of any event
which, pursuant to Section 3(b), would result in any such exchange, the Required
Holders (in the case of any exchange pursuant to Section 3(a)(i)) or the Issuer
(in the case of any exchange pursuant to Section 2(a)(ii) or 3(b)) shall give
written notice of such exchange (the "Exchange Notice") by first class mail,
postage prepaid, to the Issuer and to all Holders; PROVIDED that notwithstanding
the foregoing, if the Issuer received less than 30 days' prior notice of a
redemption described in Section 3(b)(ii) or an event described in Section
3(b)(iii), the Issuer shall notify the Holders of the resulting exchange
immediately upon receipt of such notice by the Issuer. In the case of any
exchange pursuant to Section 3(b), an Exchange Notice shall be sent to each
Holder at such Holder's address as the same appears on the Register. Each
Exchange Notice shall state:
(A) whether all or a portion of the Notes are to be exchanged,
the total principal amount of the Notes being exchanged and the amount
of accrued interest thereon;
(B) the portion of the Notes held by the holder to be exchanged;
(C) the date fixed for exchange and, in the case of Section
3(b), the circumstances giving rise to such exchange.
Neither the failure to give such Exchange Notice nor any deficiency in such
Exchange Notice shall affect the validity or the occurrence of such exchange.
(ii) On or before the date fixed for exchange (or promptly
following receipt by the Holder of an Exchange Notice from the Issuer,
if later), each Holder shall surrender the Notes to the Issuer in the
manner and at the place designated by the Issuer by notice in writing
to the Holders, and each Note shall be canceled and retired. In the
event that only a portion of the Notes outstanding are exchanged, a
new Note shall be issued representing the unexchanged portion of such
Note and interest shall continue to accrue in respect of such
unexchanged Notes in accordance with the provisions hereof until such
time as they are exchanged. Notwithstanding the foregoing, failure to
comply with the provisions of this Section shall not affect the
validity of any such exchange.
(iii) Unless the Issuer defaults in its obligations pursuant to
this Section 3 notwithstanding that any of the Notes so called for
exchange shall not have been surrendered for cancellation, all rights
of the Holders of such Notes so exchanged shall cease with respect to
the Notes on such date (except the right to receive from the Issuer
the EW Series B Preferred Stock deliverable on such exchange as
provided below and any other amounts, including without limitation
accrued interest, payable pursuant to Section 3), and the person
entitled to receive the EW Series B Preferred Stock deliverable upon
exchange shall be treated for all purposes as the registered holder of
such EW Series B Preferred Stock as of the date which coincides with
the date of exchange and such shares of EW Series B Preferred Stock
shall be delivered to such Holder or Holders pursuant to the terms of
the Custody and Pledge Agreement dated as of the date hereof.
(iv) The Issuer shall pay any and all transfer taxes that may be
payable in respect of the delivery of the EW Series B Preferred Stock
in exchange for the Notes. The Issuer shall not, however, be required
to pay any tax which may be payable in respect of any transfer
involved in the delivery of the EW Series B
Preferred Stock in a name other than that in which the Notes so
exchanged were registered.
(v) If the Issuer receives any payment or distribution in
respect of the EW Series B Preferred Stock to which the Holders are
otherwise entitled pursuant to the terms hereof, such payment or
distribution shall be held in trust for the benefit of, and shall be
paid over or delivered to, the Holders for application pursuant to the
(f) Notwithstanding anything herein to the contrary, the Issuer may
satisfy its obligations under this Section 3 by delivering to the Holders on the
date fixed for exchange, in lieu of EW Series B Preferred Stock, an amount in
cash equal to the principal amount of the Notes so exchanged, together with
accrued interest thereon.
Section 4.1. MODIFICATION OF NOTES. The Notes may be modified with
the written consent of the Required Holders. The Required Holders may waive
compliance by the Issuer of any provision of the Notes. As long as the Credit
Agreement is in effect, the parties hereto agree that any attempt to amend or
modify this Note shall be ineffective without the consent of Chemical Bank, as
Agent under the Credit Agreement.
Section 5.2. MISCELLANEOUS. (a) The Issuer shall not offer, sell,
assign, transfer or otherwise dispose of all or any part of the EW Series B
Preferred Stock other than pursuant to the Custody and Pledge Agreement.
(b) THIS NOTE SHALL BE GOVERNED BY AND BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW
RULES OF SUCH STATE. The Issuer hereby waives presentment, demand, notice,
protest and all other demands and notices in connection with the delivery,
acceptance, performance and enforcement of this Note, except as specifically
provided herein, and assent to extensions of the time of payment, or forbearance
or other indulgence without notice. The Holder by acceptance of the Note agrees
to be bound by the provisions of this Note. The Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 6.1. WAIVER OF JURY TRIAL. Culbro hereby irrevocably waives
any and all right to trial by jury in any legal proceeding arising out of or
related to the Notes.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed as of this 25th day of April, 1994.
By: /S/ S. ROSS WOLLEN
Senior Vice President