**Exhibit 10.20**

 

**EXECUTIONCOPY**

 

AMENDED AND RESTATED

 

FIBER SUPPLY AGREEMENT

 

By and between

 

CYPRESS CREEK, LLC

 

 

and

 

WICKLIFFE PAPER COMPANY

 

 

December 16, 2005

 

 

 

----

 

**EXECUTIONCOPY**

** **

**AMENDEDAND RESTATED FIBER SUPPLY AGREEMENT**

 

THIS AMENDED AND RESTATED FIBER SUPPLY AGREEMENT,(this “Agreement”) dated as December 16, 2005, by and among CYPRESS CREEK,LLC (“Seller”) and WICKLIFFE PAPER COMPANY, a Delaware corporation (“Buyer”),amends and restates the Fiber Supply Agreement, dated as of May 2, 2005(the “Original Agreement”), by and between ESCANABA TIMBER LLC, a Delawarelimited liability company, (“Escanaba Timber”) and Buyer.

 

**RECITALS**

 

WHEREAS, Escanaba Timber and Buyer enteredinto the Original Agreement, pursuant to which Escanaba Timber sold and Buyerpurchased wood fiber located on certain timberlands owned by Escanaba Timber;

 

WHEREAS, Escanaba Timber and E&C LandCo., LLP, a Kentucky limited liability partnership (“E&C”), an affiliate ofSeller, have entered into a Real Estate Purchase and Sale Agreement (the “SaleAgreement”), dated as of November 10, 2005, pursuant to which, subject tothe terms and conditions thereof, Escanaba Timber has agreed to sell andE&C has agreed to purchase all of the Timberlands as described in the SaleAgreement;

 

WHEREAS, one of the conditions to theconsummation of the purchase and sale contemplated by the Sale Agreement is theassignment and assumption of all of Escanaba Timber’s rights and obligationsunder the Original Agreement to Seller and the amendment and restatement of theOriginal Agreement as provided herein, in each case effective as of the closingof the transactions contemplated by the Sale Agreement;

 

NOW, THEREFORE, in consideration of themutual covenants described in this Agreement and other good and valuableconsideration the receipt and sufficiency of which are acknowledged, Seller andBuyer hereby agree as follows:

 

**ARTICLE I**

 

**DEFINITIONS**

 

Whenever used in this Agreement, thefollowing terms shall have the respective meanings given to them in the provisionsthereof indicated below:

 

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

 

“AF&PA” shall have the meaning provided 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 meaning provided in Section 2.2(a).

 

“Annual Volumes” shall have the meaning provided in Section 2.2(c).

 

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

 

“Base Price Adjustment Date” shall mean January 1, 2006,and each subsequent second anniversary from such date during the Term of thisAgreement.

 

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

 

“Delivery Distance” means the trucking distance between Seller’sharvest site and the Buyer’s delivery location (which delivery location iswithin the Market Region).

 

“Fair Market Timber Value” shall mean the then current fairmarket value of a Product as mutually determined by Buyer and Seller.  If Buyer and Seller are unable to reachmutual determination, then the applicable Fair Market Timber Value shall bedetermined in accordance with the Fair Market Timber Value Mechanism.

 

“Fair Market Timber Value Mechanism” shall mean the followingprocedure used to determine the Fair Market Timber Value of each type ofQualifying Timber hereunder.  EitherSeller or Buyer may initiate commencement of the Fair Market Timber ValueMechanism by notice to the other (a “Mechanism Notice”).  Not later than ten (10) days followingreceipt of a Mechanism Notice, Seller and Buyer shall agree on the ValuationConsultant.  Not later than thirty (30)days following selection of the Valuation Consultant, each of Seller, Buyer andthe Valuation Consultant shall submit to the others not less than six (6) QualifyingSales relating to the then applicable Fair Market Timber Valuedetermination.  The Fair Market TimberValue of the Qualifying Timber at issue shall be (a) the sum of (i) theaverage price per ton of all Qualifying Sales submitted by Seller, plus (ii) theaverage price per ton of all Qualifying Sales submitted by Buyer, plus (iii) theaverage price per ton of all Qualifying Sales submitted by the ValuationConsultant, (b) divided by three.

 

“Force Majeure” shall have the meaning provided in Section 2.3(a).

 

“Force Majeure Period” shall have the meaning provided in Section 2.3(c).

 

“Hardwood Pulpwood” means pulpwood from hardwood species oftimber.

 

“KY bottomlands” shall mean all Timberlands located in Ballard,Carlisle, Fulton and Hickman Counties, Kentucky.

 

“KY uplands” shall mean all Timberlands owned by Seller andlocated in Crittendon, Livingston, Lyon and Trigg Counties, Kentucky.

 

----

 

 “Liens” shall have themeaning provided in Section 6.2(b).

 

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

 

“Market Region” shall mean all areas which are located withinone hundred forty (140) miles of the Mill.

 

“Mill” shall mean Buyer’s pulp and paper mill located inWickliffe, Kentucky.

 

“Minimum Volumes” shall have the meaning provided in Section 2.2(b).

 

“Natural Hardwood” means Hardwood Pulpwood from timber standsthat are naturally regenerated.

 

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

 

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

 

“Past Due” shall have the meaning provided in Section 4.4.

 

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

 

“Pine Pulpwood” shall mean pulpwood from pine species of timber.

 

“Plantation Hardwood” means Hardwood Pulpwood from timber standsthat are artificially regenerated.

 

“Products” means Pine Pulpwood and Hardwood Pulpwood.

 

“Product Price” shall mean the per tonprice for each Product as set forth on Schedule 4.1(a) attachedhereto (the “Base Price”) adjusted up or down on a quarterly basisbeginning January 1, 2006.  Anexample of the quarterly price adjustment mechanism is set forth on Schedule 4.1(b) tothis Agreement.  On each Base PriceAdjustment Date during the Term of this Agreement, the Base Price for theapplicable Product shall be adjusted to equal the Fair Market Timber Value forsuch Product on the applicable Base Price Adjustment Date.  On each such Base Price Adjustment Date a new“Base Price” shall be used in determining the Product Price with respect toeach Product until the Base Price is adjusted on the next Base Price AdjustmentDate.

 

“Product Specifications” shall have the meaning provided in theintroductory paragraph of Article II.

 

“Pulpwood” means Hardwood Pulpwood and Pine Pulpwood.

 

“Qualifying Sales” shall mean per unit (as opposed to lump sum) salesof the type of Qualifying Timber at issue made during the six monthsimmediately prior to the six month period in which the applicable Base PriceAdjustment Date occurs, provided such sales (i) are made within the MarketRegion, and (ii) involve not less than 2,000 tons of the type ofQualifying Timber at issue as to each such sale.

 

----

 

“Qualifying Timber” shall mean Products which meets or exceedsthe specifications set forth in Schedule 2.1 to this Agreement.

 

“Sustainable Forest Practice Standards” shall mean practicessubstantially in compliance with standards substantially similar to theSustainable Forestry Initiative of the American Forest and Paper Association(the “AF&PA”) as those standards may be modified by AF&PA from time totime.

 

“Term” shall have the meaning provided in Section 5.1.

 

“Timberlands” shall mean all timberland properties purchased bySeller under the Sale Agreement (defined in the foregoing recitals) and locatedin the States of Illinois, Missouri and Ballard, Carlisle, Crittendon, Fulton,Hickman, Livingston, Lyon and Trigg Counties, Kentucky.

 

“TMS” shall mean the publication known as Timber Mart South, or in the event TMS is no longer published, a comparablepublication mutually acceptable to Seller and Buyer.

 

“Transfer” shall mean any sale, lease, conveyance, exchange,assignment, hypothecation, disposition, foreclosure or other transfer(excluding the granting of a mortgage or other security agreement), directly orindirectly (whether by agreement, operation of law or otherwise), of all or anyportion of the Timberlands.

 

“Valuation Consultant” shall mean either Sizemore &Sizemore of Tallassee, Alabama or Larson & McGowin of Mobile, Alabama,or if such firms are no longer in existence, another reputable, professionallyqualified Person meeting all of the following criteria.  Such Person (i) is not an “Affiliate”(as defined in Section 10.1 (b) below) 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.

 

“Zone” shall mean the zone designated in TMS as Tennessee Area2.

 

**ARTICLE II**

 

**PURCHASEOF PRODUCTS**

 

Section 2.1             Purchaseof Softwood Pulpwood and Hardwood Pulpwood.  Seller agrees to sell, and Buyer agrees topurchase, receive and pay for, in each calendar year (a “Calendar Year”), theAnnual Volumes, as defined herein, of Pine Pulpwood and Hardwood Pulpwood.  All Pine Pulpwood and Hardwood Pulpwoodpurchased pursuant to this Agreement shall satisfy, respectively, thespecifications for the Products set forth in Schedule 2.1, as may bemodified from time to time in accordance 

 

----

 

with Section 2.2(the “Product Specifications”).  For thepurposes of this Agreement, a ton shall weigh two thousand (2,000) pounds.

 

Section 2.2             Modificationof Specifications.. Buyer may, from time to time, and upon at least two (2) monthsprior written notice to Seller, reasonably modify any of the ProductSpecifications that Buyer applies to substantially all of its Product suppliersto the Mill.  Buyer shall not modify theProduct Specifications to set higher standards for Seller than for any suchother Products suppliers.  All Productssold by Seller to Buyer following the date the new specifications becomeeffective shall 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)           Sellershall on the date hereof and prior to September 1 of each Calendar Yearduring the Term, complete and submit to Buyer a written delivery plan withrespect to the Products to be made available for purchase by Buyer during thenext Calendar Year (the “Annual Plan”). Said Annual Plan shall include estimates of delivery of the Products byDelivery Distances, month and accumulated into estimated quarterlydeliveries.  The Annual Plan shall setforth the quantity of Products Seller intends to make available to Buyer duringthe next Calendar Year, said quantities to be subject to the terms of Article III.

 

(b)           Subjectto Seller’s obligation to offer at least the minimum volumes required to be offeredto Buyer pursuant to Section 3.1 below (the “Minimum Volumes”):  (i) all Pulpwood volumes projected to beharvested from the Timberlands in the applicable Calendar Year shall be madeavailable in said Annual Plan for Calendar Years 2006 through 2010; (ii) ninetypercent (90%) of all Pulpwood volumes projected to be harvested from theTimberlands in the applicable Calendar Year shall be made available in saidAnnual Plan for Calendar Years 2011 through 2013; and (iii) eighty-fivepercent (85%) of all Pulpwood volumes projected to be harvested from theTimberlands in the applicable Calendar Year shall be made available in saidAnnual Plan for Calendar Years 2014 through 2016, and, if the Term is extendedpursuant to Section 5.2 below, for Calendar Years 2017 through 2019.

 

(c)           Buyershall within 30 days of receipt of said Annual Plan confirm with Seller thevolumes of the Products Buyer agrees to purchase from Seller during the nextCalendar Year; provided, however, that unless Seller agrees otherwise, Buyermust agree to purchase at least ninety percent (90%) of the volumes set forthin the Annual Plan.  Said agreed uponvolumes shall then become in the aggregate the “Annual Volumes” Buyer agrees topurchase and Seller agrees to deliver in the next Calendar Year.

 

(d)           Followingadoption of each Annual Plan (or as adjusted according to Section 2.3(c) above),the parties shall act in good faith and each use their

 

----

 

respectivecommercially reasonable efforts to implement such Annual Plan in accordancewith its terms.  Products shall bedelivered throughout the Calendar Year in accordance with the Annual Plan forsuch year; provided, however, that during any Calendar Year,Seller may vary its deliveries, and Buyer may vary its purchases of Products,subject to Section 4.2 herein, as long as variations in delivery areimmaterial and will not impair the operations of the Mill or the operations ofSeller on the Timberlands.

 

Section 2.4             ForceMajeure.  

 

(a)           Forthe purposes of this Agreement, the term “Force Majeure” means any cause,condition or event beyond Buyer’s and/or Seller’s reasonable control thatdelays or prevents either party’s performance of its obligations hereunder,including war, acts of terrorism (which shall not include civildemonstrations), acts of government, acts of public enemy, riots, lightning,fires, explosions, storms, floods, infestation, power failures, other acts ofGod or nature, labor strikes or lockouts by employees, or other disputesinvolving either party, adverse financial or market conditions, an involuntaryceasing of operations at the Mill for a minimum of thirty (30) consecutivedays, and other similar events or circumstances; provided, however, that “ForceMajeure” shall not include (i) a party’s financial inability to perform(unless such inability is caused by a general suspension of payments by banksin the United States), or (ii) an act, omission or circumstance arisingfrom the negligence or willful misconduct of the party claiming that a ForceMajeure event has occurred.  The partiesshall use commercially reasonable efforts to mitigate the effects of the ForceMajeure, and if the cause of Force Majeure can be minimized or remedied, bothparties shall use reasonable best efforts to do so promptly.

 

(b)           Subjectto the provisions of this Section 2.3, neither party shall be liablehereunder for a delay in or failure of performance of its obligations hereunderthat is caused by Force Majeure.  IfForce Majeure results in a reduction, but not a complete cessation, of Buyer’s operationsin connection with this Agreement, Buyer shall not reduce its purchases of anyProduct from Seller in greater proportion than the reduction in Buyer’spurchases of any such Products from all its suppliers of pulpwood to theMill.  Notwithstanding anything containedin this Agreement to the contrary, Force Majeure (other than a generalsuspension of payments by banks in the United States) shall not excuse Buyerfrom its obligation to pay, pursuant to the terms of this Agreement, Seller forany quantity of Product delivered by Seller.

 

(c)           Thequantity of any Product otherwise required to be purchased or deliveredhereunder shall be reduced as a result of Force Majeure for the period duringwhich such Force Majeure is in effect and continuing (such period, the “ForceMajeure Period”), based on the respective quantity for each Calendar Year inwhich such Force Majeure is in effect, prorated (if applicable) for the portionof such year constituting all or part of such Force Majeure Period.  If the Force Majeure Period is less than 15days, (i) Buyer shall be required to purchase the volume of Products notpurchased during the Force Majeure Period within the next 180 days followingthe end of the Force Majeure Period, and (ii) Seller shall be required tomake available the volume of Products not delivered during the Force MajeurePeriod within the next 180 days 

 

----

 

following the endof the Force Majeure Period.  If theForce Majeure Period is more than 14 days, Buyer shall not be required topurchase the volume of Products not purchased during the Force Majeure Period,and Seller 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 the obligation, to sell that quantity ofthe Product Buyer is unable to purchase because of Force Majeure to any thirdparty purchaser or purchasers in the event Force Majeure prevents Buyer fromperforming hereunder.

 

(d)           ForceMajeure shall not relieve a party of its obligations or liability hereunderunless such party shall give notice (including a reasonable description of suchForce Majeure) to the other party as soon as reasonably possible and in anyevent within fifteen (15) days after the occurrence of such Force Majeure.  Upon request, the party whose obligationswere suspended shall provide the other party with a plan for remedying theeffects of such Force Majeure.  The partyprevented from performing by Force Majeure shall keep the other party advisedby written notice of all matters affecting such Force Majeure, and the extentof the delay by reason thereof.  Suchparty shall notify the other party in writing of the termination of such ForceMajeure within ten (10) days after such termination.

 

**ARTICLE III**

 

**QUANTITYAND PRODUCT MIX**

 

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:

 

(a)           2006– 2016.  For the Calendar Yearsbeginning January 1, 2006 and ending December 31, 2016, not less thanthe volumes in thousands of tons by year in the following table:

 
| **Year  Source**             | ** ** | **2006** | ** ** | **2007** | ** ** | **2008** | ** ** | **2009** | ** ** | **2010** | ** ** | **2011** | ** ** | **2012** | ** ** | **2013** | ** ** | **2014** | ** ** | **2015** | ** ** | **2016** | ** ** |
|------------------------------|------------|----------|------------|----------|------------|----------|------------|----------|------------|----------|------------|----------|------------|----------|------------|----------|------------|----------|------------|----------|------------|----------|------------|
| (i)Plantation  Hardwood      |       | 50       |       | 30       |       | 30       |       | 30       |       | 25       |       | 25       |       | 25       |       | 25       |       | 25       |       | 25       |       | 25       |       |
| (ii) Pine  Pulpwood     |       | 30       |       | 30       |       | 30       |       | 30       |       | 30       |       | 30       |       | 30       |       | 30       |       | 30       |       | 30       |       | 30       |       |
| (iii) Natural  Hardwood |       | 11       |       | 11       |       | 11       |       | 11       |       | 10       |       | 8        |       | 7        |       | 2        |       | 2        |       | 2        |       | 2        |       |

 

----

 

(b)           2017– 2019 - To the extent Buyer exercises its option to extend the Termpursuant to Section 5.2 below, for Calendar Years beginning January 1,2017 and ending December 31, 2019, the mix of Products Seller shall makeavailable to Buyer shall be as follows:

 

| Pine Pulpwood: | not less than 30,000 tons |
|----------------|---------------------------|

 

Section 3.2             Adjustmentsto Product Mix.

 

Seller and Buyer acknowledge and agree thatSeller may from time to time request modifications to the Product mix set forthabove during any Calendar Year as a result of its temporary inability tosatisfy such Product mix due to adverse weather or similar conditions.  So long as the aggregate total volume of allProducts required to be delivered for the Calendar Year is not reduced, and solong as the Buyer’s operations would not be adversely affected in any materialrespect as a result thereof, Buyer agrees to grant such requests.

 

Section 3.3             HarvestVolume Variances.

 

Following the submission by the Seller of theAnnual Plan for a given Calendar Year in accordance with Section 2.2(a),Seller and Buyer shall be deemed to have satisfied the volume requirements of Section 3.1(a) inrespect of such Calendar Year regardless of whether Buyer actually receives thevolumes contemplated by Section 3.1(a) where harvesting shortfallsarise from (i) variances between actual timber volume and the inventoryvolumes of such timber tracts used to calculate the volumes in the Annual Plan;or (ii) operational constraints associated with Seller’s adherence toSustainable Forestry Practice Standards or applicable Forestry Best ManagementPractices, whether voluntary or as promulgated by the applicable Department ofAgriculture Division of Forestry or any successor agency or standards thereto.In the event that Buyer’s harvest volumes exceed the minimum volumerequirements for any Harvest Year as specified in Section 3.1(a), suchexcess harvest volume shall directly offset the corresponding volumerequirement for the subsequent Calendar Year.

 

**ARTICLE IV**

 

**PRICEAND DELIVERY TERM**

 

Section 4.1             Prices.  

 

(a)           Theinitial Product Prices shall be as set forth in Schedule 4.1(a).  Products delivered by Seller to Buyer will bepaid for at the Product Prices outlined in Schedule 4.1(a), as adjustedpursuant to Section 4.1(b), based on the Delivery Distance.  Such Product Prices for the Pulpwood Productsshall be adjusted on a quarterly basis throughout the Term beginning as of January 1,2006 based on the adjustment mechanism set forth in Section 4.1(b).

 

----

 

(b)           TheProduct Prices for the Products set forth on Schedule 4.1 (a) shallbe adjusted as provided in the definition of Product Prices herein, and basedon the formula set forth on Schedule 4.1(b) attached hereto.

 

(c)           Inaddition to the other amounts payable hereunder, in the event Buyer pays anyamounts to any pulpwood supplier to the Mill for fuel adjustments or snowbonuses, Buyer shall make comparable and contemporaneous payments to Seller.

 

Section 4.2             Payor Take.  

 

(a)           Selleragrees to sell and deliver, subject to Force Majeure and Section 3.3, andBuyer agrees to purchase, subject to Force Majeure and Section 3.3, theAnnual Volumes of Products to be produced under the direction of Seller duringeach Calendar Year as determined in Article II.  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:  (i) ifadverse weather conditions during the last ninety (90) days of any CalendarYear prevent Seller from delivering the Annual Volumes of Natural Hardwood orPine Pulpwood 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, and (ii) ifadverse weather conditions during any Calendar Year prevent Seller fromdelivering the Annual Volumes of Plantation Hardwood for said Calendar Year,the payments provided for in this Section 4.2(a) shall not applyunless and to the extent said volumes (together with any volumes required withrespect to the following Calendar Year) are not delivered on or before December 31of the following Calendar Year.  Sellershall keep Buyer advised of any such adverse weather conditions and Seller’sneed for additional time to deliver said volumes.

 

(b)           Iffor any Calendar Year, Buyer fails for any reason other than Force Majeure topurchase at least ninety percent (90%) of the Annual Volumes of Products fromSeller, then Buyer shall pay Seller for the shortage at a rate of $15.00 perton multiplied by the difference between (x) ninety percent (90%) of the AnnualVolumes of Products for the applicable Calendar Year minus (y) the volume ofProducts actually purchased by Buyer hereunder during such Calendar Year, asliquidated damages and not as a penalty, and Seller shall have no further claimfor damages on account of Buyer’s failure to purchase the Annual Volumes.  Payment shall be made by Buyer to Seller ondemand no later than fifteen (15) days from Seller’s written request for suchpayment.

 

----

 

(c)           Subjectto the terms of Section 3.2 above, any payments made pursuant to this Section 4.2shall be calculated separately for Pine Pulpwood and Hardwood Pulpwood.  If this Agreement is in termination at a timeother than the beginning or end of a Calendar Year, the Annual Volumes forpurposes of calculating such shortage payment for either party will be proratedequitably.

 

Section 4.3             DeliveryTerms.  All Products covered by thisAgreement shall be delivered to Buyer F.O.B. to the Mill or to such otherlocations in the Market Region as Buyer may direct upon reasonable advancenotice to Seller.  Risk of loss and titleshall pass when the Products are unloaded at the Mill or the applicabledelivery 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 weight of such Products at the time of delivery.  Payments made after fifteen (15) days fromthe date of delivery shall be considered past due (“Past Due”).  For payments that are Past Due, Buyer shallpay interest at a rate per annum equal to the daily prime rate as reported inthe Wall Street Journal plus four percent (4%) for each day that the paymentsare Past Due.  Such interest shall becalculated daily on the basis of a year of 365 days and the actual number ofdays for which interest is due.  If atany time during the Term there are any payments outstanding to Seller that arePast Due, then, in addition to any other remedies it may have hereunder, Sellermay suspend deliveries to Buyer until such time as all Past Due payments havebeen paid in full.  In such event, Sellershall have no obligation to supply or make up any portion of the Annual Volumesscheduled for delivery and not delivered during such suspension and shall in noway 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             Compliancewith Product Specifications. If any shipment of any Product fails to satisfy the applicable ProductSpecifications, Buyer shall have the right to reject such shipment. Buyer shallnotify Seller of any such rejection as soon as reasonably possible.

 

Section 4.7             Limitationof Warranties.  EXCEPT FOR THEWARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS ARE BEING SOLD “ASIS,” AND SELLER IS NOT MAKING ANY OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY,EXPRESS OR IMPLIED, INCLUDING, IN PARTICULAR, ANY WARRANTY OF MERCHANTABILITYOR FITNESS FOR A PARTICULAR PURPOSE (AS

 

----

 

DEFINED IN THE DELAWARE UNIFORM COMMERCIAL CODE), ALL OF WHICH AREHEREBY EXPRESSLY EXCLUDED, DISCLAIMED AND WAIVED BY BUYER.

 

**ARTICLE V**

 

**TERM**

 

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

 

Section 5.2             Extensionof Term.  Provided that Buyershall not then be in default under this Agreement, the Term of this Agreementmay be extended at the option of Buyer for one (1) additional three (3) yearterm, which extension term shall commence concurrently with the expiration ofthe initial term, upon the same terms and conditions as contained in thisAgreement.  In the event that Buyerdesires to extend this Agreement pursuant to the above extension option, itshall give written notice of such desire to extend the Term to Seller no laterthan January 1, 2016.

 

**ARTICLE VI**

 

**REPRESENTATIONS,WARRANTIES AND COVENANTS**

 

Section 6.1             Warrantyof Quality.  Seller warrantsand covenants that it will act in good faith and use its commerciallyreasonable efforts to cause all Products to meet the Product Specifications.

 

Section 6.2             Ownershipof Products.  (a)  Sellerwarrants and covenants that all Products delivered to Buyer will be free andclear of all Liens (as defined in Section 6.2(b) below).  Seller shall protect, indemnify, defend andhold harmless Buyer against any Losses (as defined in Section 6.2(b) below)incurred or sustained by Buyer arising out of or resulting from any Liensapplicable to any of the Products at the time delivered by Seller.

 

(b)  The term “Liens” means any and allliens, charges, mortgages, deeds to secure debt, pledges, security interests,options of record, adverse claims or other encumbrances of a liquidated amountor which are otherwise statutorily enforceable, other than liens for ad valoremtaxes not yet due and payable; provided, however, none of the aforementionedshall constitute 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.  Seller represents and warrants that it is alimited liability partnership duly organized and validly existing under thelaws of the State of Kentucky, and that it has all requisite corporateauthority 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             Compliancewith Laws; Maintenance of Timberlands.  Seller agrees that its performance of thisAgreement shall comply in all material respects with applicable state andfederal laws and regulations, including, but not limited to, all environmentallaws and the Fair Labor Standards Act of 1938, as amended.

 

Section 6.5             Selleras Independent Contractor.  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, employee, subcontractor or supplier of orto Seller as a result of the parties entering into or performing thisAgreement.  Each party hereto shall select and pay its own servants, agents, employees,subcontractors and suppliers, and neither such party nor any of its servants, agents,employees, subcontractors and suppliers shall be subject to any orders,supervision or control of the other party hereto.  The parties acknowledge that this Agreementdoes not create a partnership, joint venture or any relationship other than acontract between independent parties.

 

Section 6.6             BuyerPower and Authority; 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 remedies generally;and (ii) general principles of equity (whether considered at law or inequity).

 

**ARTICLE VII**

 

**DEFAULTAND INDEMNIFICATION**

 

Section 7.1             Indemnity.

 

(a)           Buyershall in no way be liable for any personal injuries (including death), propertydamage or other Losses caused by, resulting from, or attributable to, Seller’sperformance under this Agreement, the operation of the business

 

----

 

of Seller or the acts of any servant, agent, employee, subcontractor orsupplier of Seller in connection with this Agreement, except to the extent suchLoss is finally judicially determined to have arisen out of or resulted fromthe negligence or intentional misconduct of any of Buyer, its subsidiaries andother affiliates, or any of its or their respective servants, agents, officers,partners, directors, employees, subcontractors or suppliers. Seller shallprotect, defend, indemnify and hold harmless NewPage Holding Corporation,NewPage Corporation, Buyer, and their respective subsidiaries andaffiliates, and each of its 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 of or resulting fromperformance of this Agreement by Seller, or by any servant, agent, employee,subcontractor or supplier of or to Seller, including any Loss based on thestrict liability of Buyer except to the extent such Loss is finally judiciallydetermined to have arisen out of or resulted from the negligence or intentionalmisconduct 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)           Sellershall in no way be liable for any personal injuries (including death), propertydamage or other Losses caused by, resulting from, or attributable to,  Buyer’s performance under this Agreement, theoperation of the business of Buyer or the acts of any servant, agent, employee,subcontractor or supplier of Buyer in connection with this Agreement, except tothe extent such Loss is finally judicially determined to have arisen out of orresulted from the negligence or intentional misconduct of any of Seller, itssubsidiaries and other affiliates, or any of its or their respective servants,agents, officers, partners, directors, employees, subcontractors orsuppliers.  Buyer shall protect, defend,indemnify and hold harmless Seller, and its subsidiaries and other affiliates,and each of its and their respective agents, officers, partners, directors,employees, successors and assigns, from and against any claim, demand, cause ofaction, lawsuit or other Loss arising out or resulting from performance of thisAgreement by Buyer, or by 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             CertainRemedies.  Notwithstanding anythingin this Agreement to the contrary, Buyer’s sole and exclusive remedies againstSeller (following the expiration of any applicable cure period) in the eventthat Seller breaches its obligation to provide the Annual Volumes of Productsrequired under this Agreement shall be (a) to receive the payment providedpursuant to Section 4.2(a) of this Agreement, and (b) toterminate this Agreement pursuant to Section 9.1 of this Agreement.

 

----

 

**ARTICLE VIII**

 

**CONSENTTO JURISDICTION**

 

Section 8.1             Consentto Jurisdiction.  Inconnection with any proceeding initiated by either party under or with respectto this Agreement and the transactions contemplated hereby, each party herebyconsents to the jurisdiction of any United States Federal Court sitting in theState of Kentucky having jurisdiction in the matter.  Each party acknowledges and agrees that anycontroversy that may arise under this Agreement is likely to involvecomplicated and difficult issues, and therefor it hereby irrevocably andunconditionally waives any right it may have to a trial by jury in respect ofany litigation directly or indirectly arising out of or relating to thisAgreement, or the breach, termination or validity of this Agreement, or thetransactions contemplated by this Agreement.

 

**ARTICLE IX**

 

**TERMINATION**

 

Section 9.1             Terminationfor Cause.  This Agreementshall immediately terminate upon election by the nondefaulting party if any oneof the following events (each, a “default”) has occurred and is continuing uponthe expiration of the cure or dismissal period specified below (each, an “Eventof Default”):

 

(a)           Breachby Seller or Buyer of any term of this Agreement, which breach is not curedwithin sixty (60) days after receipt of written notice thereof; from thenondefaulting party

 

(b)           Insolvencyor the filing by or against Seller or Buyer of a petition in bankruptcy (which,in the event of an involuntary bankruptcy, is not dismissed within ninety (90)days from the date of its commencement), or appointment by a court of atemporary or permanent receiver, trustee or custodian; or

 

(c)           Ifthe Mill for any reason ceases all pulping operations for a period that exceedstwelve (12) consecutive months at any time during the Term.

 

Section 9.2             Effectof Termination.  Terminationshall not relieve a defaulting party of any liability to the nondefaultingparty for breach of its obligations hereunder.

 

----

 

**ARTICLE X**

 

**MISCELLANEOUS**

 

Section 10.1           Definitions.  

 

(a)           Thewords “hereby,” “herein,” “hereof,” “hereunder” and words of similar importrefer to this Agreement as a whole and not merely to the specific section,paragraph or clause in which such word appears. The word “party” or “parties” means a party or the parties to thisAgreement, unless preceded by the word “third” or unless the context shallotherwise expressly require.  Allreferences herein to Articles, Sections, Annexes and Exhibits shall be deemedreferences to Articles and Sections of, and Annexes and Exhibits to, thisAgreement 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 10.1or in Article I shall apply equally to both the singular and plural formsof the terms defined.  Whenever thecontext may require, any pronoun shall include the corresponding masculine,feminine and neuter forms.

 

(b)           Wheneverused in this Agreement, the following terms shall have the respective meaningsgiven to them below.

 

“Affiliate” of a Person means anyother Person directly, or indirectly through one ormore intermediaries, controlling, controlled by or under common control withthe first Person.  As used in thisdefinition of the term “affiliate,” and elsewhere herein with respect to anyaffiliate of any Person, “control” (including the terms “controlled by” and “undercommon control with”) means the possession, directly or indirectly, of thepower to direct or cause the direction of the management policies of a Person,whether through the ownership of voting securities, by voting trust, contractor similar arrangement, as trustee or executor, or otherwise.

 

“Person” means any individual, soleproprietorship, trust, estate, executor, legal representative, unincorporatedassociation, association, institution, corporation, company, partnership,limited liability company, limited liability partnership, joint venture,government (whether national, Federal, state, county, city, municipal or otherwise,including, without limitation, any instrumentality, division, agency, body ordepartment thereof) or other entity.

 

Section 10.2           Assignmentby Seller.  

 

(a)           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 Timberlands.

 

(b)           Notwithstandingany other provision of this Agreement to the contrary, Buyer and Selleracknowledge and agree that Seller shall not be prohibited from selling all orany portion of the Timberlands, provided that any such sale of the

 

----

 

Timberlands shall be made subject to the terms of this Agreement andthe obligation to supply the applicable portion of timber volumes requiredhereunder.  Upon any sale of a portion ofthe Timberlands, the purchaser of said portion of the Timberlands (“New Owner”)shall assume the obligation to supply a portion of the timber volumes to besupplied hereunder, said portion of the timber volumes (“Assumed Volume”) to beagreed to by Seller and said New Owner, subject to Buyer’s consent to suchvolume allocation, which consent shall not be unreasonably withheld ordelayed.  Upon such assumption by saidNew Owner, Seller’s obligations to supply Products hereunder shall be reducedby the volumes assumed by said New Owner, and Seller shall thereafter have noobligation or liability with respect to said assumed volumes or with respect tothe portion of the Timberlands so conveyed. At the request of Seller, upon any such sale to a New Owner Buyer shallexecute an amendment to this Agreement acknowledging the foregoing.  Furthermore, upon request of Seller or Buyer,upon such sale to a New Owner, Buyer and such New Owner shall enter into aseparate fiber supply agreement on the same terms and conditions as containedin this Agreement (or such other terms as Buyer and such New Owner shallmutually agree) except for the portion of the Timberlands covered thereby andthe volume of Products to be supplied thereunder.  In the event Buyer objects to any proposedAssumed Volume, Buyer shall provide written notice of the same to Seller withinfifteen (15) days of notice to Buyer of said proposed Assumed Volume (“ObjectionNotice”), said Objection Notice to include a detailed explanation of the basisfor said objection.  Failure by Buyer totimely provide said Objection Notice shall be deemed to constitute the consentof Buyer to said proposed Assumed Volume.  In the event Buyer timely provides anObjection Notice, Seller shall have the option of (i) revising saidproposed Assumed Volume, in which case Buyer shall have the further right toobject by providing a new Objection Notice as provided above or (ii) retainingthe Valuation Consultant to determine whether the proposed Assumed Volume isreasonable.  In the event the ValuationConsultant is so retained and determines that said proposed Assumed Volume isreasonable, Buyer shall be deemed to have consented to saidAssumed Volume and shall pay all costs and expenses of said ValuationConsultant.  Otherwise, said costs andexpenses shall be paid by Seller. Notwithstanding the foregoing, Seller may convey during the Term hereofup to 8,000 acres of the Timberlands free and clear of the obligations of thisAgreement (the “Exempt Acres”), provided that Seller is able to supply thevolume of Products required to be supplied hereunder from the remaining portionof the Timberlands.  Buyer agrees toexecute any and all documentation requested by Seller in order to evidence therelease of the Exempt Acres from this Agreement.

 

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 or that acquires all or substantially all of the assets orstock of Buyer and in the case of an acquisition of all or substantially all ofthe assets of

 

----

 

Buyer, in writing, assumes all obligations of the Buyer hereunder, acopy of such assumption agreement to be promptly delivered to Seller.

 

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 (orsimilar type of overnight delivery) to the applicable party at the addressindicated below:

 
| If to Buyer:    | Wickliffe Paper Company

1724 Westvaco Road

Wickliffe, Kentucky  42087                                                                                |
|-----------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------|
|            |                                                                                                                                                        |
| With a copy to: | Bernie F. Coyle

3901 Mayfield Road

Wickliffe, Kentucky  42087

Telecopier No.  270-335-6240

Telephone No.  270-335-6241                   |
|            |                                                                                                                                                        |
| and             | Greg Hansrote

1724 Westvaco Road

Wickliffe, Kentucky  42087

Telecopier No.  270-335-4110

Telephone No.  270-335-4587                     |
|            |                                                                                                                                                        |
| If to Seller:   | Cypress Creek, LLC  450 Pryor Boulevard  P.O. Box 409  Sturgis, Kentucky 42459  Attn:  Vickie A. Davis, Esq.                                 |
|            |                                                                                                                                                        |
| With a copy to: | Chorey, Taylor & Feil  The Lenox Building, Suite 1700  3399 Peachtree Road, NE  Atlanta, Georgia 30326  Attn:  John E. Taylor, Esq. |

 

or, as to eachparty, at such other address as shall be designated by such party in a writtennotice to the other party complying as to delivery with the terms of thisSection.  Notice shall be deemed receivedwhen (i) hand delivered; (ii) sent, after receipt of confirmation oranswer back if sent by telecopy; (iii) five Business Days after deposit inthe U.S. mails, postage prepaid, for certified mail; and (iv) one BusinessDay after delivery to Federal Express (or similar type of overnight delivery),properly addressed to the applicable party.

 

Section 10.5           Amendment;Waiver.  No amendment,modification or discharge of this Agreement, and no waiver hereunder, shall bevalid or binding unless

 

----

 

set forth inwriting 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.

 

Section 10.6           EntireAgreement.  This instrumentconstitutes the entire agreement between the parties relating to the subjectmatter hereof, and there are no agreements,understandings, conditions, representations, or warranties not expressly setforth herein.

 

Section 10.7           SovereignLaw.  This Agreement shall begoverned by and construed in accordance with the laws of the State of Kentucky,without reference to the conflicts of laws or choice of law provisions thereof.

 

Section 10.8           BindingAgreement.  Subject to theprovisions of Sections 10.2 and 10.3, this Agreement shall bind and inure tothe benefit of the parties and their 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         Annexesand Exhibits.  All annexes, attachments,schedules and exhibits to this Agreement referenced herein are incorporatedherein by reference.

 

Section 10.12         Severability,etc.  Any term or provision ofthis Agreement that is invalid or unenforceable in any jurisdiction shall, asto that jurisdiction, be ineffective to the extent of such invalidity orunenforceability, without rendering invalid or unenforceable the remainingterms and provisions of this Agreement or affecting the validity orunenforceability of any of the terms or provisions of this Agreement in anyother jurisdiction.  If any term orprovision of this Agreement is so broad as to be invalid or unenforceable, theprovision shall be interpreted to be only so broad asis valid or enforceable.  Subject to theforegoing provisions of this Section 10.12, if any term or provision ofthis Agreement is invalid or unenforceable for any reason, such circumstancesshall not have the effect of rendering such term or provision invalid orunenforceable in any other case or circumstance.

 

----

 

Section 10.13         NoPresumption Against Drafter.  Each ofthe parties hereto has jointly participated in the negotiation and drafting ofthis Agreement.  In the event of anambiguity or a question of intent or interpretation arises, this Agreementshall be construed 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.

 

Section 10.14         Arbitration.

 

(a)           Allcontroversies, disputes, or claims arising among the parties in connectionwith, or with respect to, any provision of this Agreement which have not beenresolved within twenty (20) days after either Buyer, on the one hand, orSeller, on the other hand, has notified the other in writing of suchcontroversy, dispute or claim, shall be settled by arbitration administered bythe American Arbitration Association (“AAA”) under its Commercial ArbitrationRules, and judgment on the award rendered by the arbitrator(s) may be entered inany court having jurisdiction thereof. Notwithstanding anything contained in this Section 10.14 or the AAACommercial Arbitration Rules to the contrary, any arbitrator appointedhereunder to resolve disputes shall be an attorney licensed to practice law inthe United States with experience in commercial real estate and the timber andpaper industries and shall have expertise appropriate to the dispute.  In addition to the aforementionedqualifications, any arbitrator appointed hereunder to resolve disputes arisingout of any Article IV matter shall have a familiarity with the factorstaken into account in pricing wood fiber products and shall otherwise bequalified to make the pricing determinations required by Article IV.

 

(b)           Nothingherein contained shall bar the right of any of the parties to seek and obtaintemporary injunctive relief from a court of competent jurisdiction inaccordance with applicable law against threatened conduct that will cause lossor damage, pending completion of the arbitration, and the prevailing partytherein shall be entitled to an award of its reasonable attorneys’ fees andcosts.

 

(c)           Notwithstandinganything contained in this Agreement to the contrary, in the event that anycontroversy, dispute, or claim exceeds $10,000,000, this Section 10.14shall not apply.

 

Except as otherwise provided in thisAgreement, this Section shall be interpreted, governed by and enforced inaccordance with the United States Arbitration Act, 9 U.S.C. Section 1-14.

 

Section 10.15         SustainableForestry Initiative.  Sellershall continue to manage the Timberlands in accordance with the SustainableForestry Initiative during the Term of this Agreement.  From time to time it may be necessary toagree upon a recognized successor or alternative standard to the SustainableForestry Initiative, which shall be negotiated in good faith to reflect changesor developments in the evolution of widely accepted industry standards.

 

----

 

Section 10.16         Optionto Convert to Stumpage Agreement.  At any time during the Term of thisAgreement, upon not less than one hundred twenty (120) days prior writtennotice from Seller to Buyer, Seller shall have the one-time option to convertthis Agreement from a delivered wood agreement to a stumpage agreement.  Upon such conversion (the “Conversion Date”),the parties shall enter into a new agreement substantially in the form of theagreement attached hereto as Schedule 10.16 (the “Stumpage Agreement”).  The Base Prices for such Stumpage Agreementshall be the fair market value of the Products on the Conversion Date, asreasonably and mutually agreed to by Buyer and Seller.  If the parties are unable to agree on saidBase Prices, said Base Prices shall be determined by the Valuation Consultant.

 

Section 10.17         Memorandumof Contract.  At the requestof any party hereto, a Memorandum of this Agreement shall be recorded in therecording offices of each and every County in which the Timberlands arelocated.

 

Section 10.18         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 the extentsuch disclosure is required to comply with applicable laws, governmental rules,regulations or other governmental requirements; in connection with anyfinancing arrangements of such party; in connection with the sale of anyportion of the Timberlands by Seller; or in connection with any disputeresolution procedures of litigation hereunder. In such event, the publishingparty shall, to the extent reasonably practicable, furnish, in advance, a copyof such proposed disclosure, to the other party.

 

Section 10.19         EstoppelCertificates.  Either party shall, atno cost to the requesting party, from time to time, upon twenty (20) days priorrequest by the other party, execute, acknowledge and deliver to the requestingparty a certificate signed by an officer of the certifying party stating thatthis Agreement is unmodified and in full force and effect (or, if there havebeen modifications, that this Agreement is in full force and effect asmodified, and setting forth such modifications) and the dates through whichpayments have been made, and either stating that to the knowledge of the signerof such certificate no default exists under this Agreement or specifying eachsuch default to which the signer has knowledge.

 

Section 10.20         PrevailingParty.  Ifeither party brings any proceeding for the judicial or other interpretation,enforcement, termination, cancellation or rescission of this Agreement, or fordamages for the breach thereof, the prevailing party in any such proceeding orappeal thereon shall be entitled to its reasonable attorneys’ fees and courtand other reasonable costs incurred, to be paid by the losing party as fixed bythe court in the same or a separate proceeding, and whether or not suchproceeding is pursued to decision or judgment. 

 

Section 10.21         OriginalAgreement.  The parties agreethat upon execution of this Agreement by the parties hereto, the OriginalAgreement shall be superseded and replaced in all respects by this Agreementand Escanaba Timber is hereby released from

 

----

 

any obligationaccruing under the Original Agreement, except for the obligation to return thedeposit made under Section 4.4 of the Original Agreement.

 

----

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement asof the day and year first above written.

 
|   | CYPRESS  CREEK, LLC      |
|--------|--------------------------|
|   |                     |
|   |                     |
|   | By:                      | /s/ William  J. Cavins |   |
|   |                     | William J.  Cavins, member of the Board of Directors |
|   |                     |     as  Manager |
|   |                     |
|   |                     |
|   | WICKLIFFE  PAPER COMPANY |
|   |                     |
|   |                     |
|   | By:                      | /s/ Gary  E. Ervin |   |
|   |                     | Gary E.  Ervin, member of Board of Directors |
|   |                     |     as  Manager |

 

----