**Exhibit10.19**

 

**EXECUTIONVERSION**

 

AMENDED AND RESTATED

 

FIBER SUPPLY AGREEMENT

 

by and among

 

PLUM CREEK MARKETING, INC.,

 

 

and

 

ESCANABA PAPER COMPANY

 

 

November 15, 2005

 

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**EXECUTIONVERSION**

 

**AMENDED AND RESTATED FIBER SUPPLY AGREEMENT**

** **

THIS AMENDED AND RESTATED FIBER SUPPLY AGREEMENT, (this “Agreement”)dated as November 15, 2005, by and among PLUM CREEK MARKETING, INC., aDelaware corporation (“Seller”) and ESCANABA PAPER COMPANY, a Delawarecorporation (“Buyer”), amends and restates the Fiber Supply Agreement, dated asof May 2, 2005 (the “Original Agreement”), by and between ESCANABA TIMBERLLC, a Delaware limited liability company, (“Escanaba Timber”) and Buyer.

 

**RECITALS**

** **

WHEREAS, Escanaba Timber and Buyer entered into the Original Agreement,pursuant to which Escanaba Timber sold and Buyer purchased wood fiber locatedon certain timberlands owned by Escanaba Timber;

 

WHEREAS, Escanaba Timber and Plum Creek Timberlands, L.P., a Delawarelimited partnership (“Timberlands Owner”) have entered into a Real EstatePurchase and Sale Agreement (the “Sale Agreement”), dated as of September 30,2005, pursuant to which, subject to the terms and conditions thereof, EscanabaTimber has agreed to sell and Timberlands Owner has agreed to purchase all ofthe timberlands presently owned by Escanaba Timber as described in the SaleAgreement in the Market Region (the “ET Timberlands”);

 

WHEREAS, Timberlands Owner and Seller have entered into as of the datehereof a Stumpage Agreement pursuant to which Timberland Owner hascommitted to make available to Seller from the ET Timberlands all of the woodfiber necessary for Seller to satisfy its obligations under this Agreement;

 

WHEREAS, one of the conditions to the consummation of the purchase andsale contemplated by the Sale Agreement is the assignment and assumption of allof Escanaba Timber’s rights and obligations under the Original Agreement toSeller and the amendment and restatement of the Original Agreement as providedherein, in each case effective as of the closing of the transactionscontemplated by the Sale Agreement;

 

NOW, THEREFORE, in consideration of the mutual covenants described inthis Agreement and other good and valuable consideration the receipt andsufficiency of which are acknowledged, Seller and Buyer hereby agree asfollows:

 

**ARTICLE I**

** **

**DEFINITIONS**

** **

Whenever used in this Agreement, the following terms shall have therespective meanings given to them in the provisions thereof indicated below:

 

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“AAA” shall have the meaning providedin Section 10.14(a).

 

“AF&PA” shall have the meaningprovided in the definition of “Sustainable Forest Practice Standards”.

 

“Agreement” shall have the meaning provided in the openingparagraph of this Agreement.

 

“Annual Plan” shall have the meaningprovided in Section 2.3(a).

 

“Annual Volumes” shall have themeaning provided in Section 2.3(b).

 

“Assumed Volume” shall have themeaning provided in Section 10.2(b).

 

“Aspen Pulpwood” means pulpwood fromaspen.

 

“Calendar Year” means a full year beginning on January 1and continuing through December 31 thereof.

 

“Delivery Distance” means the truckingdistance between a harvest site and a Delivery Location (which deliverylocation is within the Market Region), which is based on the zones described inArticle IV hereof.

 

“Delivered Product Price” shall havethe meaning provided in Section 4.1(a).

 

“Delivery Location” means a deliverypoint for Products purchased hereunder or Products sold by Seller to anunrelated third party within the Market Region.

 

“ET Timberlands” means the timberlandsowned by Escanaba Timber LLC on the date hereof and as legally described in theReal Estate Purchase and Sale Agreement dated September 30, 2005 by andbetween Escanaba Timber LLC and Plum Creek Timberlands, L.P.

 

“Force Majeure” shall have the meaningprovided in Section 2.4(a).

 

“Force Majeure Period” shall have themeaning provided in Section 2.4(c).

 

“Hardwood Pulpwood” means pulpwoodfrom hardwood species of timber.

 

“Hemlock Pulpwood” means pulpwood fromhemlock.

 

“Liens” shall have the meaningprovided in Section 6.2(b).

 

“Losses” shall have the meaningprovided in Section 6.2(b).

 

“Market Region” shall mean the UpperPeninsula of Michigan and the eleven air mile area of property commonly knownas the “Reciprocity Zone” in the State of Wisconsin. “Mill” shall meanBuyer’s pulp and paper mill located in Escanaba, Michigan.

 

Annex A-2

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 “MixedSoftwood Pulpwood” means all softwood pulpwood other than Pine Pulpwood andhemlock.

 

“Most Recent Price by Species” shallhave the meaning provided in Section 4.1(b).

 

“New Owner” shall have the meaningprovided in Section 10.2(b).

 

“Objection Notice” shall have themeaning provided in Section 10.2(b).

 

“Past Due” shall have the meaningprovided in Section 4.4.

 

“Person” shall have the meaningprovided in Section 10.1(b).

 

“Pine Pulpwood” means the followingspecies of timber:  Jack Pine Pulpwood,Red Pine Pulpwood, White Pine Pulpwood and Spruce Pulpwood.

 

“Price Period” shall have the meaningprovided in Section 4.1(b).

 

“Products” means Softwood Pulpwood,Hardwood Pulpwood,  Aspen Pulpwood andHemlock Pulpwood.

 

“Product Category” shall mean any oneof the following:  Hardwood Pulpwood,Aspen Pulpwood, Mixed Softwood Pulpwood, Pine Pulpwood, or Hemlock Pulpwood.

 

“Product Specifications” shall havethe meaning provided in Section 2.1.

 

“Semi-Annual Period”shall mean each January 1 through June 30 and July 1 through December 31of each calendar year throughout the Term.

 

“Semi-Annual Pricing Date”shall mean each January 7 and July 7 of each year during the Term.

 

“Softwood Pulpwood” shall mean MixedSoftwood Pulpwood, Hemlock Pulpwood and Pine Pulpwood.

 

“Sustainable Forest Practice Standards”shall mean practices substantially in compliance with standards substantiallysimilar to the Sustainable Forestry Initiative of the American Forest and PaperAssociation (the “AF&PA”) as those standards may be modified by AF&PAfrom time to time.

 

“Transfer” shall mean any sale, lease,conveyance, exchange, assignment, hypothecation, disposition, foreclosure orother transfer (excluding the granting of a mortgage or other securityagreement), directly or indirectly (whether by agreement, operation of law orotherwise), of all or any portion of the ET Timberlands.

 

“Term” shall have the meaning providedin Section 5.1.

 

Annex A-3

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“Valuation Consultant” shall meaneither George Banzhaf & Company of Milwaukee, Wisconsin orSteigerwaldt Land Services of Tomahawk, Wisconsin, or if such firms are nolonger in existence, another reputable, professionally qualified Person meetingall of the following criteria.  SuchPerson (i) is not an Affiliate of either Seller or Buyer, (ii) duringthe past two (2) years has not transacted substantial business with eitherSeller or Buyer, and (iii) does not have less than five (5) yearsexperience relating to sales of timber within the Market Region.  If Seller and Buyer are unable to agree onthe Valuation Consultant, an arbitrator selected pursuant to Section 10.14below shall select such Valuation Consultant. Seller and Buyer shall provide to the Valuation Consultant suchinformation as the Valuation Consultant shall reasonably request to facilitatethe determinations to be made by the Valuation Consultant hereunder.

 

**ARTICLE II**

** **

**PURCHASE OF PRODUCTS**

** **

Section 2.1             Purchase of Softwood Pulpwood, Hardwood Pulpwood and Aspen Pulpwood. Seller agrees to sell, and Buyer agrees to purchase, receive and payfor, in each calendar year (a “Calendar Year”), the Annual Volumes ofProducts.  All Products purchasedpursuant to this Agreement shall satisfy, respectively, the specifications forthe Products set forth in Annex A, as may be modified from time to time inaccordance with Section 2.2 (the “Product Specifications”).  For the purposes of this Agreement, a tonshall weigh two thousand (2,000) pounds.

 

Section 2.2             Modificationof Specifications.  Buyer may, fromtime to time, and upon at least two (2) months prior written notice toSeller, reasonably modify any of the Product Specifications that Buyer appliesto substantially all of its Product suppliers to the Mill.  Buyer shall not modify the ProductSpecifications to set higher standards for Seller than for any such otherProducts suppliers.  All Products sold bySeller to Buyer following the date the new specifications become effectiveshall satisfy such modified Product Specifications.  If Product Specifications are modified to sethigher standards, the Annual Volumes shall be adjusted downward as deemedreasonably necessary by Seller, and subject to Buyer’s reasonable approval, asa result of said higher standards.

 

Section 2.3             AnnualPlan.

 

(a)           Priorto September 1 of each Calendar Year during the Term, Seller shallcomplete and submit to Buyer a written delivery plan with respect to theProducts to be made available for purchase by Buyer during the next CalendarYear (the “Annual Plan”).  Said AnnualPlan shall include estimates of delivery of the Products by Delivery Distances,month and accumulated into estimated quarterly deliveries.  The Annual Plan shall set forth the quantityof Products Seller intends to make available to Buyer during the next CalendarYear, said quantities to be subject to the terms of Article III.   The parties acknowledge and agree thatEscanaba Timber submitted an Annual Plan 

 

Annex A-4

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for 2006 that includes the obligation to deliver andsell 535,000 tons of Products to Buyer (the “Original 2006 Plan”).  Pursuant to Article III hereof, Sellerand Buyer agree that the Original 2006 Plan will be amended to reduce thevolume to be sold and delivered during 2006 to 500,000 tons of Products.

 

(b)           Buyer shall within 30 days of receipt of said AnnualPlan confirm with Seller the volumes of the Products Buyer agrees to purchasefrom Seller during the next Calendar Year; provided, however, that unlessSeller agrees otherwise, Buyer must agree to purchase at least ninety percent(90%) of the volumes set forth in the Annual Plan.  Said agreed upon volumes shall then become inthe aggregate the “Annual Volumes” Buyer agrees to purchase and Seller agreesto deliver in the next Calendar Year.

 

(c)           Following adoption of each Annual Plan (or as adjustedaccording to Section 2.3(b) above), the parties shall act in goodfaith and each use their respective reasonable best efforts to implement suchAnnual Plan in accordance with its terms. Products shall be delivered throughout the Calendar Year in accordancewith the Annual Plan for such year; provided, however, thatduring any Calendar Year, Seller may vary its deliveries, and Buyer may varyits purchases of Products, subject to Section 4.2 herein, as long asvariations in delivery are immaterial and will not impair the operations of theMill or the operations of Seller on the ET Timberlands.

 

Section 2.4             ForceMajeure .

 

(a)           For the purposes of this Agreement, the term “ForceMajeure” means any cause, condition or event beyond Buyer’s and/or Seller’sreasonable control that delays or prevents either party’s performance of itsobligations hereunder, including war, acts of terrorism (which shall notinclude civil demonstrations), acts of government, acts of public enemy, riots,lightning, fires, explosions, storms, floods, infestation, power failures,other acts of God or nature, labor strikes or lockouts by employees, or otherdisputes involving either party, an involuntary ceasing of operations at theMill for a minimum of thirty (30) consecutive days, and other similar events orcircumstances; provided, however, that “Force Majeure” shall not include (i) aparty’s financial inability to perform (unless such inability is caused by ageneral suspension of payments by banks in the United States),  (ii) an act, omission or circumstancearising from the negligence or willful misconduct of the party claiming that aForce Majeure event has occurred, or (iii) adverse financial or marketconditions.  The parties shall usereasonable best efforts to mitigate the effects of the Force Majeure, and ifthe cause of Force Majeure can be minimized or remedied, both parties shall usereasonable best efforts to do so promptly.

 

(b)           Subject to the provisions of this Section 2.4,neither party shall be liable hereunder for a delay in or failure ofperformance of its obligations hereunder that is caused by Force Majeure.  If Force Majeure results in a reduction, butnot a complete cessation, of Buyer’s operations in connection with thisAgreement, Buyer shall not reduce its purchases of any Product from Seller ingreater proportion than the reduction in Buyer’s purchases of any such Productsfrom all its suppliers of pulpwood to 

 

Annex A-5

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the Mill. Notwithstanding anything contained in this Agreement to the contrary,Force Majeure (other than a general suspension of payments by banks in theUnited States) shall not excuse Buyer from its obligation to pay, pursuant tothe terms of this Agreement, Seller for any quantity of Product delivered bySeller.

 

(c)           The quantity of any Product otherwise required to bepurchased or delivered hereunder shall be reduced as a result of Force Majeurefor the period during which such Force Majeure is in effect and continuing(such period, the “Force Majeure Period”), based on the respective quantity foreach Calendar Year in which such Force Majeure is in effect, prorated (ifapplicable) for the portion of such year constituting all or part of such ForceMajeure Period.  If the Force MajeurePeriod is less than 15 days, (i) Buyer shall be required to purchase thevolume of Products not purchased during the Force Majeure Period within thenext 180 days following the end of the Force Majeure Period, and (ii) Sellershall be required to make available the volume of Products not delivered duringthe Force Majeure Period within the next 180 days following the end of theForce Majeure Period.  If the ForceMajeure Period is more than 14 days, Buyer shall not be required to purchasethe volume of Products not purchased during the Force Majeure Period, andSeller shall not be required to make available the volume of Products notdelivered during the Force Majeure Period. Notwithstanding anything contained in this Agreement to the contrary,  Seller shall have the right, but not theobligation, to sell that quantity of the Product Buyer is unable to purchasebecause of Force Majeure to any third party purchaser or purchasers in theevent Force Majeure prevents Buyer from performing hereunder.

 

(d)           Force Majeure shall not relieve a party of its obligationsor liability hereunder unless such party shall give notice (including areasonable description of such Force Majeure) to the other party as soon asreasonably possible and in any event within fifteen (15) days of the occurrenceof such Force Majeure.  Upon request, theparty whose obligations were suspended shall provide the other party with aplan for remedying the effects of such Force Majeure.  The party prevented from performing by ForceMajeure shall keep the other party advised by written notice of all mattersaffecting such Force Majeure, and the extent of the delay by reasonthereof.  Such party shall notify theother party in writing of the termination of such Force Majeure within three (3) daysafter such termination.

 

**ARTICLE III**

** **

**MINIMUM VOLUMES**

** **

Section 3.1             MinimumVolumes by Calendar Year.  Withrespect to the Products to be purchased by Buyer hereunder, Seller shall makeavailable to Buyer in the applicable Annual Plan the following minimum volumesof Products for each Calendar Year during the Term of this Agreement:

 

Annex A-6

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(a)           2005.   From the date hereof through December 31,2005, 55,000 tons of Hardwood Pulpwood; 7,000 tons of Mixed Softwood Pulpwood;and 9,000 tons of Aspen Pulpwood.

 

(b)           2006– 2016.  For the Calendar Yearsbeginning January 1, 2006 and ending December 31, 2016, 500,000 tons.

 

(c)           2017– 2019 - To the extent Buyer and Seller mutually agree to extend the Termpursuant to Section 5.2 below, for Calendar Years beginning January 1,2017 and ending December 31, 2019, 500,000 tons.

 

**ARTICLE IV**

** **

**PRICE AND DELIVERY TERM**

** **

Section 4.1             Prices.  

 

(a)           Theprice to be paid by Buyer to Seller for the Products sold and purchasedhereunder shall be the fair market value thereof as hereinafter determined (the“Delivered Product Price”).  The partiesagree that the initial Delivered Product Prices for the Products for the periodfrom the date hereof through December 31, 2005 shall be as set forth in Schedule 4.1.  The Delivered Product Prices for the Productsshall be adjusted as of January 1, 2006 and each subsequent July 1and January 1 thereafter and shall be effective for deliveries first madeon July 15 and January 15 of each calendar year.  The parties agree that the Products shall becomprised of five categories:  HardwoodPulpwood, Aspen Pulpwood, Mixed Softwood Pulpwood, Pine Pulpwood, and HemlockPulpwood (each, a “Product Category”). Each six-month calendar period described in this Section ishereinafter referred to as a “Semi-Annual Period.”

 

(b)           Notlater than January 7, 2006 and each subsequent July 7 and January 7of each Calendar Year during the Term (or on such date as the parties maymutually agree) (each, a “Semi-Annual Pricing Date”), Seller and Buyer willdetermine the Delivered Product Price for the ensuing half-year utilizing theprocess described in this Section.  On orbefore December 15, 2005 and each subsequent June 15 and December 15of each Calendar Year of the Term, Seller and Buyer will jointly and mutually agreeupon a schedule of standard haul rates by haul zone (the “Standard HaulPricing Table”).  The Standard HaulPricing Table to be effective on January 1, 2006 is as follows:

 
| **Zone** | ** ** | **Miles** | ** ** | **Haul Rate** | ** ** |
|----------|------------|-----------|------------|---------------|------------|
| 1        |       | 0-30      |       | $             | 5.64       |   |
| 2        |       | 30-60     |       | $             | 7.45       |   |
| 3        |       | 60-90     |       | $             | 9.07       |   |
| 4        |       | 90-120    |       | $             | 11.17      |   |
| 5        |       | 120-150   |       | $             | 13.09      |   |
| 6        |       | 150-180   |       | $             | 14.79      |   |
| 7        |       | 180-210   |       | $             | 16.49      |   |

 

Annex A-7

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(c)           Inaddition, not later than each Semi-Annual Pricing Date during the Term, Sellerand Buyer will each assemble a table of the volume weighted open marketdelivered prices and a table of volumes by Delivery Distance for each ProductCategory (in the case of Seller, the delivered prices Seller received fromunrelated third parties, excluding the Annual Volumes, in the immediatelypreceding Semi-Annual Period for Products produced from the ET Timberlands (orother timberlands owned by Seller or Seller’s affiliated companies in theMarket Region as of Sepember 30, 2005) and delivered in the Market Region for each Product Category and in thecase of Buyer, the prices Buyer paid to unrelated third parties, excluding theAnnual Volumes, for Products produced from within the Market Region anddelivered to any Delivery Location in the immediately preceding Semi-AnnualPeriod) (the “Delivered Price and Volume Tables”).    Buyer shall include all payments made toits suppliers of Products for purposes of its calculations hereunder except forfuel adjustments or snow bonuses, the payments for which are provided for in Section 4.1(h) hereof.  In addition, for purposes of assembling theirrespective Delivered Price and Volume Tables, each party must include theprices and volumes of any Products sold by Seller and purchased by Buyer in anySemi-Annual Period in excess of the Annual Volumes.  The prices shown in each party’s DeliveredPrice and Volume Table shall be the weighted average for all volume sold ineach Product Category and Zone during the preceding Semi-Annual Period.  An example of a Delivered Price and VolumeTable is as follows:

 

**Delivered Prices ($/ton):**

 
| **Zone** | ** ** | **Hardwood** | ** ** | **Aspen** | ** ** | **Mixed Sftwd** | ** ** | **Pine** | ** ** | **Hemlock** | ** ** |
|----------|------------|--------------|------------|-----------|------------|-----------------|------------|----------|------------|-------------|------------|
| 1        |       | $            | 30.00      |      | $          | 35.00           |       | $        | 40.00      |        | $          | 45.00 |   | $ | 25.00 |   |
| 2        |       | $            | 31.00      |      | $          | 36.00           |       | $        | 41.00      |        | $          | 46.00 |   | $ | 26.00 |   |
| 3        |       |         |       |      | $          | 37.00           |       | $        | 43.00      |        |       |   | $ | 27.00 |   |
| 4        |       | $            | 33.00      |      |       |            |       | $        | 44.00      |        | $          | 48.00 |   |   |   |
| 5        |       | $            | 35.00      |      |       |            |       | $        | 44.00      |        | $          | 50.00 |   | $ | 29.00 |   |
| 6        |       | $            | 37.00      |      | $          | 41.00           |       |     |       |        | $          | 50.00 |   | $ | 31.00 |   |
| 7        |       | $            | 39.00      |      | $          | 45.00           |       | $        | 50.00      |        | $          | 53.00 |   | $ | 33.00 |   |

 

**Volume (in tons)**

 
| **Zone** | ** ** | **Hardwood** | ** ** | **Aspen** | ** ** | **Mixed Sftwd** | ** ** | **Pine** | ** ** | **Hemlock** | ** ** |
|----------|------------|--------------|------------|-----------|------------|-----------------|------------|----------|------------|-------------|------------|
| 1        |       | 1,200        |       | 100       |       | 1,500           |       | 450      |       | 300         |       |
| 2        |       | 100          |       | 600       |       | 1,200           |       | 650      |       | 600         |       |
| 3        |       |         |       | 1,500     |       | 300             |       |     |       | 900         |       |
| 4        |       | 1,500        |       |      |       | 500             |       | 850      |       |        |       |
| 5        |       | 600          |       |      |       | 800             |       | 950      |       | 900         |       |
| 6        |       | 200          |       | 500       |       |            |       | 250      |       | 600         |       |
| 7        |       | 800          |       | 60        |       | 600             |       | 650      |       | 300         |       |

 

Annex A-8

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(d)           Wheneach party has assembled its internal Delivered Price and Volume Table, eachparty will deduct the Standard Haul Rate for each Zone from the respectiveprices for each Product Category to arrive at a pre-haul price for each ProductCategory in each Zone (the “Road Side Price”). For each Product Category, each party will then calculate a “WeightedAverage Road Side Price” by taking the sum of the volumes times the road sideprice for each haul zone, divided by the total volume delivered for eachproduct as follows:

 
| (Delivered  Price - Haul Rate) x Volume for each zone | =      | Weighted  Average Road Side     |
|-------------------------------------------------------|--------|---------------------------------|
| Total Volume in each Product Category                 |   | Price in  each Product Category |

 

For illustration purposes, using the Delivered Price and Volume Tableshown above, the calculations would be as follows:

 

Roadside Prices:

 
| **Zone** | ** ** | **Hardwood** | ** ** | **Aspen**  | ** ** | **Mixed Sftwd** | ** ** | **Pine** | ** ** | **Hemlock** | ** ** |
|----------|------------|--------------|------------|------------|------------|-----------------|------------|----------|------------|-------------|------------|
| 1        |       | $            | 24.36      |       | $          | 29.36           |       | $        | 34.36      |        | $          | 39.36 |   | $ | 19.36 |   |
| 2        |       | $            | 23.55      |       | $          | 28.55           |       | $        | 33.55      |        | $          | 38.55 |   | $ | 18.55 |   |
| 3        |       |         |       | $          | 27.93      |            | $          | 33.93    |       |        |       | $ | 17.93 |   |
| 4        |       | $            | 21.83      |       |       |            | $          | 32.83    |       | $           | 36.83      |   |   |   |
| 5        |       | $            | 21.91      |       |       |            | $          | 30.91    |       | $           | 36.91      |   | $ | 15.91 |   |
| 6        |       | $            | 22.21      |       | $          | 26.21           |       |     |       | $           | 35.21      |   | $ | 16.21 |   |
| 7        |       | $            | 22.51      |       | $          | 28.51           |       | $        | 33.51      |        | $          | 36.51 |   | $ | 16.51 |   |
| **       | ** ** | **$**        | **22.71**  | ** ** | **$**      | **27.82**       | ** ** | **$**    | **33.31**  | ** **  | **$**      | **37.28** | ** ** | **$** | **17.24** | ** ** |
|          |            |              |            |            |            |                 |            |          |            |             |            |  |  |  |  |  |  |  |  |  |  |  |

 

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**  Weighted Average RoadsidePrice by Product

 

(e)           Notlater than each Semi-Annual Pricing Date during the Term, Seller and Buyer willsubmit to the other their respective Weighted Average Road Side Price for eachof the Product Categories.  Seller’s andBuyer’s combined Weighted Average Road Side Price for each Product Categorywill be computed using a 1/3 weight for Seller’s prices and 2/3 weight forBuyer’s prices, the result of which is hereinafter referred to as the “CombinedRoad Side Average.”  The Combined RoadSide Average for each Product Category will be added to the Haul Rate in eachZone to determine the final Delivered Product Price for each Product Categoryin each Zone.

 

(f)            The foregoing notwithstanding, in the event Buyermaterially changes the sourcing of Products into its Mill (i.e., purchases fivepercent (5%) or more of the total Products used at the Mill in any Semi-AnnualPeriod (excluding the 

 

Annex A-9

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annual Volumes) from sources outside theMarket Region, or uses purchased stumpage to source twenty percent (20%)or more of the total Products Buyer uses at the Mill in any Semi-Annual Period(excluding the Annual Volumes)), the parties agree to examine the method fordetermining the fair market value for the products sold and purchasedhereunder.  If Seller notifies Buyer thatSeller reasonably believes than an adjustment to the pricing mechanism isappropriate in light of the foregoing circumstances, Seller and Buyer agree tonegotiate in good faith to determine an appropriate adjustment in Buyer’sDelivered Price and Volume Table for the relevant Price Period in an effort toaccurately reflect market data for Buyer’s purchases of Products used in itsMill operations.  In the event Seller andBuyer are unable to agree on such an adjustment within 20 days following anysuch request by Seller, Seller and Buyer shall retain the Valuation Consultantto make any such determination, which determination shall be binding upon theparties.  Buyer agrees to provide toSeller its sourcing percentages periodically upon request.

 

(g)               Notwithstanding anything herein to the contrary,Seller acknowledges and agrees that as a result of differences, by way ofexample, in product specifications or pre-sorting requirements imposed by Buyerunder this Agreement and those imposed by other purchasers of the same Productsfrom Seller, inclusion of sale prices to other purchasers of such Products withdifferent specifications, pre-sorting requirements or other similar types ofdifferences (including increased prices paid by other customers thatincorporate fuel adjustments or snow bonuses, whether or not formallycharacterized as such) in customer requirements in determining Seller’sWeighted Average Road Side Price would be inappropriate absent an adjustment tothe calculation of Seller’s Weighted Average Road Side Price. Amount to reflectthe different cost of selling the same Product with different productspecifications, pre-sorting requirements or other comparable differences inspecifications.  In the event Buyernotifies Seller of any instance where Buyer reasonably believes that such anadjustment is necessary in light of the foregoing circumstances, Buyer agreesto negotiate in good faith with Seller an appropriate adjustment in Seller’sPricing Amount for the relevant Price Period to reflect such costdifferential.  In the event Seller andBuyer are unable to agree on such an adjustment within 20 days following anysuch request by Buyer, Seller and Buyer shall retain the Valuation Consultantto make any such determination, which determination shall be binding upon theparties.

 

(h)               In addition to the other amounts payable hereunder, inthe event Buyer pays any amounts to any pulpwood supplier to any DeliveryLocation for fuel adjustments or snow bonuses, Buyer shall make comparable andcontemporaneous payments to Seller.  Anysuch payments made to Seller or any payments made to Seller from other pulpwoodcustomers (whether or not formally characterized as fuel adjustments or snowbonuses) pursuant to this Section 4.1(g) shall not be used incalculating the Delivered Price and Volume Table.

 

Section 4.2             Payor Take.  

 

(a)           Seller agrees to sell and deliver, subject to ForceMajeure,  and Buyer agrees to purchase,subject to Force Majeure, the Annual Volumes of Products 

 

Annex A-10

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to be produced under the direction of Sellerduring each Calendar Year as determined in Section 2.3 (c).  If for any Calendar Year, Seller fails forany reason other than Force Majeure to tender to Buyer at least ninety percent(90%) of the designated Annual Volumes of Products, Seller will pay Buyer at arate of $15.00 per ton multiplied by the difference between (x) ninety percent(90%) of the Annual Volumes of Products for the applicable Calendar Year minus(y) the volume of Products actually tendered by Seller during such CalendarYear, as liquidated damages and not as a penalty, and Buyer shall have nofurther claim for damages on account of such shortfall in the delivery of theAnnual Volumes.  Payment shall be made bySeller to Buyer on demand no later than fifteen (15) days from Buyer’s writtenrequest for such payment. Notwithstanding the foregoing, if adverse weather conditions during thelast ninety (90) days of any Calendar Year prevent Seller from delivering theAnnual Volumes for said Calendar Year, the payments provided for in this Section 4.2(a) shallnot apply unless and to the extent said volumes (together with any volumesrequired with respect to the first quarter of the following Calendar Year) arenot delivered on or before March 31 of the following Calendar Year.  Seller shall keep Buyer advised of any suchadverse weather conditions and Buyer’s need for additional time to deliver saidvolumes.

 

(b)           If for any Calendar Year, Buyer fails for any reasonother than Force Majeure to purchase at least ninety percent (90%) of theAnnual Volumes of Products from Seller, then Buyer shall pay Seller for theshortage at a rate of $15.00 per ton multiplied by the difference between (x)ninety percent (90%) of the Annual Volumes of Products for the applicableCalendar Year minus (y) the volume of Products actually purchased by Buyerhereunder during such Calendar Year, as liquidated damages and not as apenalty, and Seller shall have no further claim for damages on account of Buyer’sfailure to purchase the Annual Volumes. Payment shall be made by Buyer to Seller on demand no later than fifteen(15) days from Seller’s written request for such payment.

 

Section 4.3             DeliveryTerms.  All Products covered by thisAgreement shall be delivered to Buyer F.O.B. to the Mill, Buyer’s Bovine orTrout Lake woodyards or to such other locations in the Market Region as Buyerand Seller may reasonably agree (any such location, a “DeliveryLocation”).  Risk of loss and title shallpass when the Products are unloaded at the Delivery Location.

 

Section 4.4             Payment.  Buyer shall pay Seller within fifteen (15)days after the date of delivery for any Products delivered to Buyer, based uponthe volume of the Products delivered, as determined by the weight of suchProducts at the time of delivery. Payments made after fifteen (15) days from the date of delivery shall beconsidered past due (“Past Due”).  Forpayments that are Past Due, Buyer shall pay interest at a rate per annum equalto the daily prime rate as reported in the Wall Street Journal plus fourpercent (4%) for each day that the payments are Past Due.  Such interest shall be calculated daily onthe basis of a year of 365 days and the actual number of days for whichinterest is due.  If at any time duringthe Term there are any payments outstanding to Seller that are Past Due, then,in addition to any other remedies it may have hereunder, Seller may suspenddeliveries to Buyer until such time as all Past Due payments have been paid infull.  In such event, Seller shall haveno obligation to supply or make up any portion of the Annual Volumes scheduledfor delivery and not delivered 

 

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during such suspension andshall in no way be liable to Buyer for any Losses (as defined below in Section 6.2(b))or payments pursuant to Section 4.2(a) related to any shortfall indelivered volumes of Products arising out of said suspension.

 

Section 4.5             Disputes.  If the personnel designated by Buyer andSeller with operational responsibility for implementing this Agreement areunable to agree as to any matter set forth in this Article IV then suchmatter shall be addressed by the executives responsible for timberlandmanagement for Seller and wood procurement for Buyer.  If such executives are unable to agree, thensuch matter shall be determined by an arbitrator pursuant to Section 10.14.

 

Section 4.6             Compliance with ProductSpecifications.  If anyshipment of any Product fails to satisfy the applicable ProductSpecifications,   Buyer shall have theright to reject such shipment. Buyer shall notify Seller of any such rejectionas soon as reasonably possible.

 

Section 4.7             Limitation of Warranties.  EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTHIN THIS AGREEMENT, THE PRODUCTS ARE BEING SOLD “AS IS,” AND SELLER IS NOTMAKING ANY OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED,INCLUDING, IN PARTICULAR, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE (AS DEFINED IN THE DELAWARE UNIFORM COMMERCIAL CODE),ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED, DISCLAIMED AND WAIVED BY BUYER.

 

**ARTICLE V**

** **

**TERM**

** **

Section 5.1             Term.  This Agreement shall expire on December 31,2016, unless this Agreement is sooner terminated for cause pursuant to Section 9.1hereof, or unless this Agreement is extended as provided in Section 5.2(the “Term”).

 

Section 5.2             Extension of Term.               TheTerm of this Agreement may be extended for one (1) additional three (3) yearterm upon the mutual written agreement of each of Buyer and Seller, whichextension term shall commence concurrently with the expiration of the initialterm, upon the same terms and conditions as contained in this Agreement or onsuch other terms and conditions as may otherwise be agreed upon by Buyer andSeller.  

 

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**ARTICLE VI**

** **

**REPRESENTATIONS, WARRANTIES AND COVENANTS**

** **

Section 6.1             Warranty of Quality.  Seller warrants and covenants that it willact in good faith and use its reasonable best efforts to cause all Products tomeet the Product Specifications.

 

Section 6.2             Ownership of Products.  (a)  Seller warrants and covenants thatall Products delivered to Buyer will be free and clear of all Liens (as definedin Section 6.2(b) below). Seller shall protect, indemnify, defend and hold harmless Buyer againstany Losses (as defined in Section 6.2(b) below) incurred or sustainedby Buyer arising out of or resulting from any Liens applicable to any of theProducts at the time delivered by Seller.

 

(b)  The term “Liens” means any and allliens, charges, mortgages, deeds to secure debt, pledges, security interests, optionsof record, adverse claims or other encumbrances of a liquidated amount or whichare otherwise statutorily enforceable, other than liens for ad valorem taxesnot yet due and payable; provided, however, none of the aforementioned shallconstitute a “Lien” in the event the same fails to prevent Seller fromperforming any of its obligations hereunder. The term “Losses” means any and all claims, liabilities, obligations,losses, fines, costs, royalties, proceedings, deficiencies or damages (whetherabsolute, accrued, conditional or otherwise and whether or not resulting fromthird party claims) including, but not limited to, out-of-pocket expenses andreasonable actual attorneys’ and actual accountants’ fees incurred in theinvestigation or defense of any of the same or in enforcing any of theirrespective rights hereunder.

 

Section 6.3             Power and Authority;Enforceability.  Sellerrepresents and warrants that it is a corporation duly organized and validlyexisting under the laws of the State of Delaware, and that it has all requisitecorporate authority to enter into this Agreement and to perform its obligationshereunder.  Seller represents andwarrants that this Agreement has been duly authorized, executed and deliveredby Seller and constitutes the legal, valid and binding obligation of Seller,enforceable against Seller in accordance with its terms, except as may belimited by (i) bankruptcy, reorganization, insolvency, moratorium,receivership or other similar laws affecting or relating to the enforcement ofcreditors’ rights or remedies generally, and (ii) general principles ofequity (whether considered at law or in equity).

 

Section 6.4             Compliance with Laws;Maintenance of Timberlands. Seller agrees that its performance of this Agreement shall comply in allmaterial respects with applicable state and federal laws and regulations,including, but not limited to, all environmental laws and the Fair LaborStandards Act of 1938, as amended.

 

Section 6.5             Seller as IndependentContractor.  Norelationship of employer and employee, or master and servant, is intended toexist, nor shall any be construed to exist, between Buyer and Seller, orbetween Buyer and any servant, agent, 

 

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employee, subcontractor orsupplier of or to Seller as a result of the parties entering into or performingthis Agreement.  Each party hereto shallselect and pay its own servants, agents, employees, subcontractors andsuppliers, and neither such party nor any of its servants, agents, employees,subcontractors and suppliers shall be subject to any orders, supervision orcontrol of the other party hereto.  Theparties acknowledge that this Agreement does not create a partnership, jointventure or any relationship other than a contract between independent parties.

 

Section 6.6             Buyer Power andAuthority; Enforceability. Buyer represents and warrants that it is a corporation duly organizedand validly existing under the laws of the State of Delaware, and that it hasall requisite corporate authority to enter into this Agreement and to performits obligations hereunder. Buyer represents and warrants that this Agreementhas been duly authorized, executed and delivered by Buyer and constitutes thelegal, valid and binding obligation of Buyer, enforceable against Buyer inaccordance with its terms, except as may be limited by (i) bankruptcy,reorganization, insolvency, moratorium, receivership or other similar lawsaffecting or relating to the enforcement of creditors’ rights or remediesgenerally; and (ii) general principles of equity (whether considered atlaw or in equity).

 

**ARTICLE VII**

** **

**DEFAULT AND INDEMNIFICATION**

** **

Section 7.1             Indemnity.  

 

(a)           Buyer shall in no way be liable for any personalinjuries (including death), property damage or other Losses caused by,resulting from, or attributable to, Seller’s performance under this Agreement,the operation of the business of Seller or the acts of any servant, agent,employee, subcontractor or supplier of Seller in connection with this Agreement,except to the extent such Loss is finally judicially determined to have arisenout of or resulted from the negligence or intentional misconduct of any ofBuyer, its subsidiaries and other affiliates, or any of its or their respectiveservants, agents, officers, partners, directors, employees, subcontractors orsuppliers. Seller shall protect, defend, indemnify and hold harmless NewPage HoldingCorporation, NewPage Corporation, Buyer, and their respective subsidiariesand affiliates, and each of its and their respective agents, officers,partners, directors, employees, successors and assigns, from and against anyclaim, demand, cause of action, lawsuit or other Loss arising out or resultingfrom performance of this Agreement by Seller, or of any servant, agent,employee, subcontractor or supplier of or to Seller, including any Loss basedon the strict liability of Buyer except to the extent such Loss is finallyjudicially determined to have arisen out of or resulted from the negligence orintentional misconduct of any of Buyer, its subsidiaries and other affiliates(other than Seller), or any of its or their respective servants, agents,officers, partners, directors, employees, subcontractors or suppliers.

 

(b)           Seller shall in no way be liable for any personalinjuries (including death), property damage or other Losses caused by,resulting from, or 

 

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attributable to, Buyer’s performance underthis Agreement, the operation of the business of Buyer or the acts of anyservant, agent, employee, subcontractor or supplier of Buyer in connection withthis Agreement, except to the extent such Loss is finally judicially determinedto have arisen out of or resulted from the negligence or intentional misconductof any of Seller, its subsidiaries and other affiliates, or any of its or theirrespective servants, agents, officers, partners, directors, employees,subcontractors or suppliers.  Buyer shallprotect, defend, indemnify and hold harmless Seller, and its subsidiaries andother affiliates, including, but not limited to, Timberland Owner, and each ofits and their respective agents, officers, partners, directors, employees,successors and assigns, from and against any claim, demand, cause of action,lawsuit or other Loss arising out or resulting from performance of thisAgreement by Buyer, or of any servant, agent, employee, subcontractor orsupplier of or to Buyer, including any Loss based on the strict liability ofSeller, except to the extent such Loss is finally judicially determined to havearisen out of or resulted from the negligence, or intentional misconduct of anyof Seller, its subsidiaries and other affiliates, or any of its or theirrespective servants, agents, officers, partners, directors, employees,subcontractors or suppliers.

 

Section 7.2             Certain Remedies.  Notwithstanding anything in this Agreement tothe contrary, Buyer’s sole and exclusive remedies against Seller (following theexpiration of any applicable cure period) in the event that Seller breaches itsobligation to provide the Annual Volumes of Products required under thisAgreement shall be (a) to receive the payment provided pursuant to Section 4.2(a) ofthis Agreement, and (b) to terminate this Agreement pursuant to Section 9.1of this Agreement.  

 

**ARTICLE VIII**

** **

**CONSENT TO JURISDICTION**

** **

Section 8.1             Consent to Jurisdiction.  In connection with any proceeding initiatedby any party under or with respect to this Agreement and the transactionscontemplated hereby, each party hereby consents to the jurisdiction of anyUnited States Federal Court sitting in the state of Michigan havingjurisdiction in the matter.  Each partyacknowledges and agrees that any controversy that may arise under this Agreementis likely to involve complicated and difficult issues, and therefor it herebyirrevocably and unconditionally waives any right it may have to a trial by juryin respect of any litigation directly or indirectly arising out of or relatingto this Agreement, or the breach, termination or validity of this Agreement, orthe transactions contemplated by this Agreement.

 

**ARTICLE IX**

** **

**TERMINATION**

** **

Section 9.1             Termination for Cause.  This Agreement shall immediately terminate ifany one of the following events (each, a “default”) has occurred and iscontinuing on the tenth (10th) day after receipt of notice of an intent tocancel by reason of such default (each, an “Event of Default”):

 

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(a)           Breach of any term of this Agreement, which breach isnot cured within sixty (60) days after receipt of written notice thereof;

 

(b)           Insolvency or the filing by or against Seller,Timberlands Owner or Buyer of a petition in bankruptcy (which, in the event ofan involuntary bankruptcy, is not dismissed within ninety (90) days from thedate of its commencement), or appointment by a court of a temporary orpermanent receiver, trustee or custodian; or

 

(c)           If the Mill for any reason ceases all pulpingoperations for a period that exceeds twelve (12) consecutive months at any timeduring the Term.

 

Section 9.2             Effect of Termination.  Termination shall not relieve a defaultingparty of any liability to the nondefaulting party for breach of its obligationshereunder.

 

**ARTICLE X**

** **

**MISCELLANEOUS**

** **

Section 10.1           Definitions.  

 

(a)           The words “hereby,” “herein,” “hereof,” “hereunder”and words of similar import refer to this Agreement as a whole and not merelyto the specific section, paragraph or clause in which such word appears.  The word “party” or “parties” means a partyor the parties to this Agreement, unless preceded by the word “third” or unlessthe context shall otherwise expressly require. All references herein to Articles, Sections, Annexes and Exhibits shallbe deemed references to Articles and Sections of, and Annexes and Exhibits to,this Agreement unless the context shall otherwise require.  The words “include,” “includes” and “including”shall be deemed to be followed by the phrase “without limitation,” unlessalready expressly followed by such phrase or the phrase “but not limited to.”  The definitions given for terms in this Section 10.1and in Article I above shall apply equally to both the singular and pluralforms of the terms defined.  Whenever thecontext may require, any pronoun shall include the corresponding masculine,feminine and neuter forms.

 

(b)           Whenever used in this Agreement, the following termsshall have the respective meanings given to them below.

 

“Affiliate” of a Person means anyother Person directly, or indirectly through one or more intermediaries,controlling, controlled by or under common control with the first Person.  As used in this definition of the term “affiliate,”and elsewhere herein with respect to any affiliate of any Person, “control”(including the terms “controlled by” and “under common control with”) means thepossession, directly or indirectly, of the power to direct or cause thedirection of the management policies of a Person, whether through the ownershipof voting securities, by voting trust, contract or similar arrangement, astrustee or executor, or otherwise.

 

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“Person”means any individual, sole proprietorship, trust, estate, executor, legalrepresentative, unincorporated association, association, institution,corporation, company, partnership, limited liability company, limited liabilitypartnership, joint venture, government (whether national, Federal, state,county, city, municipal or otherwise, including, without limitation, anyinstrumentality, division, agency, body or department thereof) or other entity.

 

Section 10.2           Assignmentby Seller.  

 

Exceptas provided in this Section 10.2, this Agreement may not be assigned bySeller in whole or in part. Notwithstanding the foregoing, at any time during the Term, Seller mayassign this Agreement (i) to any lender or lenders as security forobligations to such lender or lenders in respect to financing arrangements ofSeller or any Affiliate thereof with such lender or lenders, or (ii) uponprior written notice to Buyer, to any Person that is and at all times remainsan Affiliate of Seller or that merges or consolidates with or into Seller orthat acquires all or substantially all of the ET Timberlands.

 

Section 10.3           Assignmentby Buyer.  

 

Except as provided in this Section 10.3,this Agreement may not be assigned by Buyer in whole or in part.  Notwithstanding the foregoing, at any timeduring the Term, Buyer may assign this Agreement (a) to any lender orlenders as security for obligations to such lender or lenders in respect offinancing arrangements of Buyer or any affiliate thereof with such lender orlenders, or (b) upon prior written notice to Seller, to any Person that isand at all times remains an Affiliate of Buyer or that merges or consolidateswith or into Buyer.  Notwithstanding theforegoing, Buyer shall be obligated, and shall be permitted under this Section 10.3,to assign this Agreement in whole to any Person that acquires all orsubstantially all of the assets or stock of Buyer.

 

Section 10.4           Notices.  All notices, requests, demands and othercommunications provided for hereunder shall be in writing and personallydelivered or sent by regular U.S. certified mail, telecopy or Federal Express(or similar type of overnight delivery) to the applicable party at the addressindicated below:

 
| If to Buyer: | Escanaba Paper Company  7100 County 426 M.5 Road  Escanaba, Michigan 49829 |
|--------------|----------------------------------------------------------------------------|

 

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| With a copy to: | James D. Okraszewski  7100 County 426 M.5 Road  Escanaba, Michigan 49829  Telecopier No.  906-789-3276  Telephone No.  906-233-2150                              |
|-----------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|            |                                                                                                                                                                       |
| and             | Mark Lukacs  7100 County 426 M.5 Road  Escanaba, Michigan 49829  Telecopier No.  906-233-3221  Telephone No.  906-233-2600                                       |
|            |                                                                                                                                                                       |
| If to Seller:   | Plum Creek Marketing, Inc.  2831 North Lincoln Road  Escanaba, Michigan 49829  Attn: Pete Madden  Telecopier No.  906-789-9076  Telephone No.  906-789-9130 |
|            |                                                                                                                                                                       |
| with a copy to: | Plum Creek Marketing, Inc.  999 Third Avenue, Suite 4300  Seattle, Washington 98104  Telecopier No.  206-467-3799  Telephone No.  206-467-3690         |

 

or, as to each party, at such other address as shall be designated bysuch party in a written notice to the other party complying as to delivery withthe terms of this Section.  Notice shallbe deemed received when (i) hand delivered; (ii) sent, after receiptof confirmation or answer back if sent by telecopy; (iii) five BusinessDays after deposit in the U.S. mails, postage prepaid, for certified mail; and (iv) oneBusiness Day after delivery to Federal Express (or similar type of overnightdelivery), properly addressed to the applicable party.

 

Section 10.5           Amendment; Waiver.  No amendment, modification or discharge ofthis Agreement, and no waiver hereunder, shall be valid or binding unless setforth in writing and duly executed by the party against whom enforcement of theamendment, modification, discharge or waiver is sought.  Any such waiver shall constitute a waiveronly with respect to the specific matter described in such writing and shall inno way impair the rights of the party granting such waiver in any other respector at any other time.  The failure ofeither party to insist in any one or more instances upon strict performance ofany of the provisions of this Agreement or take advantage of any of its rightshereunder shall not be construed as a waiver of any such provisions or therelinquishment of any such rights, but the same shall continue and remain infull force and effect.

 

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Section 10.6           Entire Agreement.  This instrument constitutes the entireagreement between the parties relating to the subject matter hereof, and thereare no agreements, understandings, conditions, representations, or warrantiesnot expressly set forth herein.

 

Section 10.7           Sovereign Law.  This Agreement shall be governed by andconstrued in accordance with the laws of the State of Michigan, withoutreference to the conflicts of laws or choice of law provisions thereof.

 

Section 10.8           Binding Agreement.  Subject to the provisions of Sections 10.2and 10.3, this Agreement shall bind and inure to the benefit of the parties andtheir respective successors and assigns.

 

Section 10.9           Headings.  The section and other headings in thisAgreement are inserted solely as a matter of convenience and for reference, arenot a part of this Agreement, and shall not be deemed to affect the meaning orinterpretation of this Agreement.

 

Section 10.10         Counterparts.  This Agreement may be executed in two or morecounterparts, each of which shall be deemed an original, and all of whichtogether shall constitute one and the same instrument.

 

Section 10.11         Annexes and Exhibits.  All annexes, attachments, schedules andexhibits to this Agreement referenced herein are incorporated herein byreference.

 

Section 10.12         Severability, etc.  Any term or provision of this Agreement thatis invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,be ineffective to the extent of such invalidity or unenforceability, withoutrendering invalid or unenforceable the remaining terms and provisions of thisAgreement or affecting the validity or unenforceability of any of the terms orprovisions of this Agreement in any other jurisdiction.  If any term or provision of this Agreement isso broad as to be invalid or unenforceable, the provision shall be interpretedto be only so broad as is valid or enforceable. Subject to the foregoing provisions of this Section 10.12, if anyterm or provision of this Agreement is invalid or unenforceable for any reason,such circumstances shall not have the effect of rendering such term orprovision invalid or unenforceable in any other case or circumstance.

 

Section 10.13         No Presumption AgainstDrafter.  Each of theparties hereto has jointly participated in the negotiation and drafting of thisAgreement.  In the event of an ambiguityor a question of intent or interpretation arises, this Agreement shall beconstrued as if drafted jointly by each of the parties hereto and nopresumptions or burdens of proof shall arise favoring any party by virtue ofthe authorship of any of the provisions of this Agreement.

 

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Section 10.14         Arbitration.  

 

(a)           All controversies, disputes, or claims arising amongthe parties in connection with, or with respect to, any provision of thisAgreement which have not been resolved within twenty (20) days after eitherBuyer, on the one hand, or Seller, on the other hand, has notified the other inwriting of such controversy, dispute or claim, shall be settled by arbitrationadministered by the American Arbitration Association (“AAA”) under itsCommercial Arbitration Rules, and judgment on the award rendered by thearbitrator(s) may be entered in any court having jurisdiction thereof.  Notwithstanding anything contained in this Section 10.14or the AAA Commercial Arbitration Rules to the contrary, any arbitratorappointed hereunder to resolve disputes shall be an attorney licensed topractice law in the United States with experience in commercial real estate andthe timber and paper industries and shall have expertise appropriate to thedispute.  In addition to theaforementioned qualifications, any arbitrator appointed hereunder to resolvedisputes arising out of any Article IV matter shall have a familiaritywith the factors taken into account in pricing wood fiber products and shallotherwise be qualified to make the pricing determinations required by Article IV.

 

(b)           Nothing herein contained shall bar the right of any ofthe parties to seek and obtain temporary injunctive relief from a court ofcompetent jurisdiction in accordance with applicable law against threatenedconduct that will cause loss or damage, pending completion of the arbitration,and the prevailing party therein shall be entitled to an award of itsreasonable attorneys’ fees and costs.

 

(c)           Notwithstanding anything contained in this Agreementto the contrary, in the event that any controversy, dispute, or claim exceeds$10,000,000, this Section 10.14 shall not apply.

 

Exceptas otherwise provided in this Agreement, this Section shall beinterpreted, governed by and enforced in accordance with the United StatesArbitration Act, 9 U.S.C. Section 1-14.

 

Section 10.15         Sustainable ForestryInitiative.  Sellershall cause the harvesting activities on the ET Timberlands to be in accordancewith the Sustainable Forestry Initiative during the Term of thisAgreement.  From time to time it may benecessary to agree upon a recognized successor or alternative standard to theSustainable Forestry Initiative, which shall be negotiated in good faith toreflect changes or developments in the evolution of widely accepted industrystandards.

 

Section 10.16         Publicity.  This Agreement is confidential and no partyshall issue press releases or engage in other types of publicity of any naturedealing with the commercial and legal details of this Agreement without theother party’s prior written approval. However, approval of such disclosure shall be deemed to be given to theextent such disclosure is required to comply with applicable laws, governmentalrules, regulations or other governmental requirements, or in connection withany financing arrangements of such party. In such event, the publishing party shall, to the extent 

 

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reasonably practicable,furnish, in advance, a copy of such proposed disclosure, to the other party.

 

Section 10.17         Estoppel Certificates.  Any party shall, at no cost to the requestingparty, from time to time, upon twenty (20) days prior request by the otherparty(ies), execute, acknowledge and deliver to the requesting party acertificate signed by an officer of the certifying party stating that thisAgreement is unmodified and in full force and effect (or, if there have beenmodifications, that this Agreement is in full force and effect as modified, andsetting forth such modifications) and the dates through which payments havebeen made, and either stating that to the knowledge of the signer of suchcertificate no default exists under this Agreement or specifying each suchdefault to which the signer has knowledge.

 

Section 10.18         Prevailing Party.  If any party brings any proceeding for thejudicial or other interpretation, enforcement, termination, cancellation orrescission of this Agreement, or for damages for the breach thereof, theprevailing party in any such proceeding or appeal thereon shall be entitled toits reasonable attorneys’ fees and court and other reasonable costs incurred,to be paid by the losing party as fixed by the court in the same or a separateproceeding, and whether or not such proceeding is pursued to decision orjudgment.  

 

Section 10.19         Original Agreement.  The parties agree that upon execution of thisAgreement by the parties hereto, the Original Agreement shall be superseded andreplaced in all respects by this Agreement and Escanaba Timber LLC is herebyreleased from any obligation accruing under the Original Agreement arisingafter the date hereof, except for the obligation to return the deposit made underSection 4.4 of the Original Agreement. 

 

[SIGNATURES ON FOLLOWING PAGE]

 

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IN WITNESSWHEREOF, the parties hereto have executed this Agreement as of the day and yearfirst above written.

 

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|   | PLUM CREEK  MARKETING INC. |
|--------|----------------------------|
|   |                       |
|   |                       |
|   | By:                        | /s/ Rick R.  Holley |   |
|   |                       | Name: Rick  R. Holley |
|   |                       | Title:  President and Chief Executive Officer |
|   |                       |   |
|   | ESCANABA  PAPER COMPANY    |
|   |                       |
|   |                       |
|   | By:                        | /s/ Peter  Vogel |   |
|   |                       |   |
|   | Name: Peter  Vogel         |
|   | Title: President           |

 

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