Exhibit 10.22


 


EXECUTION
COPY


 


AMENDED AND RESTATED


 


FIBER SUPPLY AGREEMENT


 


By and between


 


CYPRESS CREEK, LLC


 


 


and


 


WICKLIFFE PAPER COMPANY


 


 


December 16, 2005


 


 


 





















 


 


EXECUTION
COPY


 


AMENDED
AND 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 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 located on certain timberlands owned by Escanaba Timber;


 


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


 


WHEREAS, one of the conditions to the
consummation of the purchase and sale contemplated by the Sale Agreement is the
assignment and assumption of all of Escanaba Timber’s rights and obligations
under the Original Agreement to Seller and the amendment and restatement of the
Original Agreement as provided herein, in each case effective as of the closing
of the transactions contemplated by the Sale Agreement;


 


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


 


ARTICLE I


 


DEFINITIONS


 


Whenever used in this Agreement, the
following terms shall have the respective meanings given to them in the provisions
thereof 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 opening
paragraph 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 this
Agreement.


 


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


 


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


 


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


 


“Fair Market Timber Value Mechanism” shall mean the following
procedure used to determine the Fair Market Timber Value of each type of
Qualifying Timber hereunder.  Either
Seller or Buyer may initiate commencement of the Fair Market Timber Value
Mechanism by notice to the other (a “Mechanism Notice”).  Not later than ten (10) days following
receipt of a Mechanism Notice, Seller and Buyer shall agree on the Valuation
Consultant.  Not later than thirty (30)
days following selection of the Valuation Consultant, each of Seller, Buyer and
the Valuation Consultant shall submit to the others not less than six (6) Qualifying
Sales relating to the then applicable Fair Market Timber Value
determination.  The Fair Market Timber
Value of the Qualifying Timber at issue shall be (a) the sum of (i) the
average price per ton of all Qualifying Sales submitted by Seller, plus (ii) the
average price per ton of all Qualifying Sales submitted by Buyer, plus (iii) the
average price per ton of all Qualifying Sales submitted by the Valuation
Consultant, (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 of
timber.


 


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


 


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


 





















 


 “Liens” shall have the
meaning 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 within
one hundred forty (140) miles of the Mill.


 


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


 


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


 


“Natural Hardwood” means Hardwood Pulpwood from timber stands
that 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 stands
that are artificially regenerated.


 


“Products” means Pine Pulpwood and Hardwood Pulpwood.


 


“Product Price” shall mean the per ton price for each Product as
set forth on Schedule 4.1(a) attached hereto (the “Base Price”)
adjusted up or down on a quarterly basis beginning January 1, 2006.  An example of the quarterly price adjustment
mechanism is set forth on Schedule 4.1(b) to this Agreement.  On each Base Price Adjustment Date during the
Term of this Agreement, the Base Price for the applicable Product shall be
adjusted to equal the Fair Market Timber Value for such 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 to each Product until the Base
Price is adjusted on the next Base Price Adjustment Date.


 


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


 


“Pulpwood” means Hardwood Pulpwood and Pine Pulpwood.


 


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


 





















 


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


 


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


 


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


 


“Timberlands” shall mean all timberland properties purchased by
Seller under the Sale Agreement (defined in the foregoing recitals) and located
in 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 comparable publication 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 or
indirectly (whether by agreement, operation of law or otherwise), of all or any
portion 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, professionally
qualified 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) during
the past two (2) years has not transacted substantial business with either
Seller or Buyer, and (iii) does not have less than five (5) years
experience relating to sales of timber within the Market Region.  If Seller and Buyer are unable to agree on
the Valuation Consultant, an arbitrator selected pursuant to Section 10.14
below shall select such Valuation Consultant. 
Seller and Buyer shall provide to the Valuation Consultant such
information as the Valuation Consultant shall reasonably request to facilitate
the determinations to be made by the Valuation Consultant hereunder.


 


“Zone” shall mean the zone designated in TMS as Tennessee Area
2.


 


ARTICLE II


 


PURCHASE
OF PRODUCTS


 


Section 2.1             Purchase
of Softwood Pulpwood and Hardwood Pulpwood. 
Seller agrees to sell, and Buyer agrees to purchase, receive and pay
for, in each calendar year (a “Calendar Year”), the Annual Volumes, as defined
herein, of Pine Pulpwood and Hardwood Pulpwood. 
All Pine Pulpwood and Hardwood Pulpwood purchased pursuant to this
Agreement shall satisfy, respectively, the specifications for the Products set
forth in Schedule 2.1, as may be modified from time to time in accordance 


 





















 


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


 


Section 2.2             Modification
of Specifications..  Buyer may, from
time to time, and upon at least two (2) months prior written notice to
Seller, reasonably modify any of the Product Specifications that Buyer applies
to substantially all of its Product suppliers to the Mill.  Buyer shall not modify the Product
Specifications to set higher standards for Seller than for any such other
Products suppliers.  All Products sold by
Seller to Buyer following the date the new specifications become effective
shall satisfy such modified Product Specifications.  If Product Specifications are modified to set
higher standards, the Annual Volumes shall be adjusted downward as deemed
reasonably necessary by Seller, and subject to Buyer’s reasonable approval, as
a result of said higher standards.


 


Section 2.3             Annual
Plan.


 


(a)           Seller
shall on the date hereof and prior to September 1 of each Calendar Year
during the Term, complete and submit to Buyer a written delivery plan with
respect to the Products to be made available for purchase by Buyer during the
next Calendar Year (the “Annual Plan”). 
Said Annual Plan 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 quantity of Products Seller intends to make available to Buyer during
the next Calendar Year, said quantities to be subject to the terms of Article III.


 


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


 


(c)           Buyer
shall within 30 days of receipt of said Annual Plan confirm with Seller the
volumes of the Products Buyer agrees to purchase from Seller during the next
Calendar Year; provided, however, that unless Seller 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 in the aggregate the “Annual Volumes” Buyer agrees to
purchase and Seller agrees to deliver in the next Calendar Year.


 


(d)           Following
adoption 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


 





















 


respective commercially reasonable efforts to implement such Annual
Plan in accordance with its terms. 
Products shall be delivered throughout the Calendar Year in accordance
with the Annual Plan for such 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 are immaterial and will not impair the operations of the
Mill or the operations of Seller on the Timberlands.


 


Section 2.4             Force
Majeure.  


 


(a)           For
the purposes of this Agreement, the term “Force Majeure” means any cause,
condition or event beyond Buyer’s and/or Seller’s reasonable control that
delays or prevents either party’s performance of its obligations hereunder,
including war, acts of terrorism (which shall not include 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 other disputes
involving either party, adverse financial or market conditions, an involuntary
ceasing of operations at the Mill for a minimum of thirty (30) consecutive
days, and other similar events or circumstances; provided, however, that “Force
Majeure” shall not include (i) a party’s financial inability to perform
(unless such inability is caused by a general suspension of payments by banks
in the United States), or (ii) an act, omission or circumstance arising
from the negligence or willful misconduct of the party claiming that a Force
Majeure event has occurred.  The parties
shall use commercially reasonable efforts to mitigate the effects of the Force
Majeure, and if the cause of Force Majeure can be minimized or remedied, both
parties shall use reasonable best efforts to do so promptly.


 


(b)           Subject
to the provisions of this Section 2.3, neither party shall be liable
hereunder for a delay in or failure of performance of its obligations hereunder
that is caused by Force Majeure.  If
Force Majeure results in a reduction, but not a complete cessation, of Buyer’s
operations in connection with this Agreement, Buyer shall not reduce its
purchases of any Product from Seller in greater proportion than the reduction
in Buyer’s purchases of any such Products from all its suppliers of pulpwood to
the Mill.  Notwithstanding anything
contained in this Agreement to the contrary, Force Majeure (other than a
general suspension of payments by banks in the United States) shall not excuse
Buyer from its obligation to pay, pursuant to the terms of this Agreement,
Seller for any quantity of Product delivered by Seller.


 


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


 





















 


following the end of the Force Majeure Period.  If the Force Majeure Period is more than 14
days, Buyer shall not be required to purchase the volume of Products not
purchased during the Force Majeure Period, and Seller shall not be required to
make available the volume of Products not delivered 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 of the Product Buyer is unable to purchase
because of Force Majeure to any third party purchaser or purchasers in the
event Force Majeure prevents Buyer from performing hereunder.


 


(d)           Force
Majeure shall not relieve a party of its obligations or liability hereunder
unless such party shall give notice (including a reasonable description of such
Force Majeure) to the other party as soon as reasonably possible and in any
event within fifteen (15) days after the occurrence of such Force Majeure.  Upon request, the party whose obligations
were suspended shall provide the other party with a plan for remedying the
effects of such Force Majeure.  The party
prevented from performing by Force Majeure shall keep the other party advised
by written notice of all matters affecting such Force Majeure, and the extent
of the delay by reason thereof.  Such
party shall notify the other party in writing of the termination of such Force
Majeure within ten (10) days after such termination.


 


ARTICLE III


 


QUANTITY
AND PRODUCT MIX


 


Section 3.1             Minimum
Volumes by Calendar Year.  With
respect to the Products to be purchased by Buyer hereunder, Seller shall make
available to Buyer in the applicable Annual Plan the following Minimum Volumes
of Products for each Calendar Year during the Term of this Agreement:


 


(a)           2006
– 2016.  For the Calendar Years
beginning January 1, 2006 and ending December 31, 2016, not less than
the 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 Term
pursuant to Section 5.2 below, for Calendar Years beginning January 1,
2017 and ending December 31, 2019, the mix of Products Seller shall make
available to Buyer shall be as follows:


 




	
  Pine Pulpwood:

  	
  not less than 30,000 tons

  






 


Section 3.2             Adjustments
to Product Mix.


 


Seller and Buyer acknowledge and agree that
Seller may from time to time request modifications to the Product mix set forth
above during any Calendar Year as a result of its temporary inability to
satisfy such Product mix due to adverse weather or similar conditions.  So long as the aggregate total volume of all
Products required to be delivered for the Calendar Year is not reduced, and so
long as the Buyer’s operations would not be adversely affected in any material
respect as a result thereof, Buyer agrees to grant such requests.


 


Section 3.3             Harvest
Volume Variances.


 


Following the submission by the Seller of the
Annual 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) in
respect of such Calendar Year regardless of whether Buyer actually receives the
volumes contemplated by Section 3.1(a) where harvesting shortfalls
arise from (i) variances between actual timber volume and the inventory
volumes of such timber tracts used to calculate the volumes in the Annual Plan;
or (ii) operational constraints associated with Seller’s adherence to
Sustainable Forestry Practice Standards or applicable Forestry Best Management
Practices, whether voluntary or as promulgated by the applicable Department of
Agriculture Division of Forestry or any successor agency or standards thereto.
In the event that Buyer’s harvest volumes exceed the minimum volume
requirements for any Harvest Year as specified in Section 3.1(a), such
excess harvest volume shall directly offset the corresponding volume
requirement for the subsequent Calendar Year.


 


ARTICLE IV


 


PRICE
AND DELIVERY TERM


 


Section 4.1             Prices.  


 


(a)           The
initial Product Prices shall be as set forth in Schedule 4.1(a).  Products delivered by Seller to Buyer will be
paid for at the Product Prices outlined in Schedule 4.1(a), as adjusted
pursuant to Section 4.1(b), based on the Delivery Distance.  Such Product Prices for the Pulpwood Products
shall 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)           The
Product Prices for the Products set forth on Schedule 4.1 (a) shall
be adjusted as provided in the definition of Product Prices herein, and based
on the formula set forth on Schedule 4.1(b) attached hereto.


 


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


 


Section 4.2             Pay
or Take.  


 


(a)           Seller
agrees to sell and deliver, subject to Force Majeure and Section 3.3, and
Buyer agrees to purchase, subject to Force Majeure and Section 3.3, the
Annual Volumes of Products to be produced under the direction of Seller during
each Calendar Year as determined in Article II.  If for any Calendar Year, Seller fails for
any 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 a
rate 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 Calendar
Year, as liquidated damages and not as a penalty, and Buyer shall have no
further claim for damages on account of such shortfall in the delivery of the
Annual Volumes.  Payment shall be made by
Seller to Buyer on demand no later than fifteen (15) days from Buyer’s written
request for such payment. 
Notwithstanding the foregoing:  (i) if
adverse weather conditions during the last ninety (90) days of any Calendar
Year prevent Seller from delivering the Annual Volumes of Natural Hardwood or
Pine Pulpwood for said Calendar Year, the payments provided for in this Section 4.2(a) shall
not apply unless and to the extent said volumes (together with any volumes
required with respect to the first quarter of the following Calendar Year) are
not delivered on or before March 31 of the following Calendar Year, and (ii) if
adverse weather conditions during any Calendar Year prevent Seller from
delivering the Annual Volumes of Plantation Hardwood for said Calendar Year,
the payments provided for in this Section 4.2(a) shall not apply
unless and to the extent said volumes (together with any volumes required with
respect to the following Calendar Year) are not delivered on or before December 31
of the following Calendar Year.  Seller
shall keep Buyer advised of any such adverse weather conditions and Seller’s
need for additional time to deliver said volumes.


 


(b)           If
for any Calendar Year, Buyer fails for any reason other than Force Majeure to
purchase at least ninety percent (90%) of the Annual Volumes of Products from
Seller, then Buyer shall pay Seller for the shortage 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 applicable Calendar Year minus (y) the volume of
Products actually purchased by Buyer hereunder during such Calendar Year, as
liquidated damages and not as a penalty, and Seller shall have no further claim
for damages on account of Buyer’s failure 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.


 





















 


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


 


Section 4.3             Delivery
Terms.  All Products covered by this
Agreement shall be delivered to Buyer F.O.B. to the Mill or to such other
locations in the Market Region as Buyer may direct upon reasonable advance
notice to Seller.  Risk of loss and title
shall pass when the Products are unloaded at the Mill or the applicable
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 upon
the weight of such Products at the time of delivery.  Payments made after fifteen (15) days from
the date of delivery shall be considered past due (“Past Due”).  For payments that are Past Due, Buyer shall
pay interest at a rate per annum equal to the daily prime rate as reported in
the Wall Street Journal plus four percent (4%) for each day that the payments
are Past Due.  Such interest shall be
calculated daily on the basis of a year of 365 days and the actual number of
days for which interest is due.  If at
any time during the 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 suspend deliveries to Buyer until such time as all Past Due payments have
been paid in full.  In such event, Seller
shall have no obligation to supply or make up any portion of the Annual Volumes
scheduled for delivery and not delivered during such suspension and shall 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 in
delivered volumes of Products arising out of said suspension.


 


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


 


Section 4.6             Compliance
with Product Specifications.  If any
shipment of any Product fails to satisfy the applicable Product Specifications,
Buyer shall have the right to reject such shipment. Buyer shall notify Seller
of any such rejection as soon as reasonably possible.


 


Section 4.7             Limitation
of Warranties.  EXCEPT FOR THE
WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS ARE BEING SOLD “AS
IS,” AND SELLER IS NOT MAKING ANY OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY,
EXPRESS OR IMPLIED, INCLUDING, IN PARTICULAR, ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR 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 9.1
hereof, or unless this Agreement is extended as provided in Section 5.2
(the “Term”). 


 


Section 5.2             Extension
of Term.  Provided that Buyer shall
not then be in default under this Agreement, the Term of this Agreement may be
extended at the option of Buyer for one (1) additional three (3) year
term, which extension term shall commence concurrently with the expiration of
the initial term, upon the same terms and conditions as contained in this
Agreement.  In the event that Buyer
desires to extend this Agreement pursuant to the above extension option, it
shall give written notice of such desire to extend the Term to Seller no later
than January 1, 2016.


 


ARTICLE VI


 


REPRESENTATIONS,
WARRANTIES AND COVENANTS


 


Section 6.1             Warranty
of Quality.  Seller warrants and
covenants that it will act in good faith and use its commercially reasonable
efforts to cause all Products to meet the Product Specifications.


 


Section 6.2             Ownership
of Products.  (a)  Seller
warrants and covenants that all Products delivered to Buyer will be free and
clear of all Liens (as defined in Section 6.2(b) below).  Seller shall protect, indemnify, defend and
hold 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 Liens
applicable to any of the Products at the time delivered by Seller.


 


(b)  The term “Liens” means any and all
liens, charges, mortgages, deeds to secure debt, pledges, security interests,
options of record, adverse claims or other encumbrances of a liquidated amount
or which are otherwise statutorily enforceable, other than liens for ad valorem
taxes not yet due and payable; provided, however, none of the aforementioned
shall constitute a “Lien” in the event the same fails to prevent Seller from
performing any of its obligations hereunder. 
The term “Losses” means any and all claims, liabilities, obligations,
losses, fines, costs, royalties, proceedings, deficiencies or damages (whether
absolute, accrued, conditional or otherwise and whether or not resulting from
third party claims) including, but not limited to, out-of-pocket expenses and
reasonable actual attorneys’ and actual accountants’ fees incurred in the
investigation or defense of any of the same or in enforcing any of their
respective rights hereunder.


 





















 


Section 6.3             Power
and Authority; Enforceability. 
Seller represents and warrants that it is a limited liability
partnership duly organized and validly existing under the laws of the State of
Kentucky, and that it has all requisite corporate authority to enter into this
Agreement and to perform its obligations hereunder.  Seller represents and warrants that this
Agreement has been duly authorized, executed and delivered by Seller and
constitutes the legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, except as may be limited by (i) bankruptcy,
reorganization, insolvency, moratorium, receivership or other similar laws
affecting or relating to the enforcement of creditors’ rights or remedies
generally, and (ii) general principles of equity (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 all
material respects with applicable state and federal laws and regulations,
including, but not limited to, all environmental laws and the Fair Labor
Standards Act of 1938, as amended.


 


Section 6.5             Seller
as Independent Contractor.  No
relationship of employer and employee, or master and servant, is intended to
exist, nor shall any be construed to exist, between Buyer and Seller, or
between Buyer and any servant, agent, employee, subcontractor or supplier of or
to Seller as a result of the parties entering into or performing this
Agreement.  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 Agreement does not create a partnership, joint
venture or any relationship other than a contract between independent parties.


 


Section 6.6             Buyer
Power and Authority; Enforceability. 
Buyer represents and warrants that it is a corporation duly organized
and validly existing under the laws of the State of Delaware, and that it has
all requisite corporate authority to enter into this Agreement and to perform
its obligations hereunder. Buyer represents and warrants that this Agreement
has been duly authorized, executed and delivered by Buyer and constitutes the
legal, valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms, except as may be limited by (i) bankruptcy,
reorganization, insolvency, moratorium, receivership or other similar laws
affecting or relating to the enforcement of creditors’ rights or remedies generally;
and (ii) general principles of equity (whether considered at law or in
equity).


 


ARTICLE VII


 


DEFAULT
AND INDEMNIFICATION


 


Section 7.1             Indemnity.


 


(a)           Buyer
shall in no way be liable for any personal injuries (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 arisen out of or resulted from
the negligence or intentional misconduct of any of Buyer, its subsidiaries and
other affiliates, or any of its or their respective servants, agents, officers,
partners, directors, employees, subcontractors or suppliers. Seller shall
protect, defend, indemnify and hold harmless NewPage Holding Corporation,
NewPage Corporation, Buyer, and their respective subsidiaries and
affiliates, 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 from
performance of this Agreement by Seller, or by any servant, agent, employee,
subcontractor or supplier of or to Seller, including any Loss based on the
strict liability of Buyer except to the extent such Loss is finally judicially
determined to have arisen out of or resulted from the negligence or intentional
misconduct 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 personal injuries (including death), property
damage or other Losses caused by, resulting from, or attributable to,  Buyer’s performance under this Agreement, the
operation of the business of Buyer or the acts of any servant, agent, employee,
subcontractor or supplier of Buyer in connection with this Agreement, except to
the extent such Loss is finally judicially determined to have arisen out of or
resulted from the negligence or intentional misconduct of any of Seller, its
subsidiaries and other affiliates, or any of its or their respective servants,
agents, officers, partners, directors, employees, subcontractors or
suppliers.  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 of
action, lawsuit or other Loss arising out or resulting from performance of this
Agreement by Buyer, or by any servant, agent, employee, subcontractor or
supplier of or to Buyer, including any Loss based on the strict liability of
Seller, except to the extent such Loss is finally judicially determined to have
arisen out of or resulted from the negligence, or intentional misconduct of any
of Seller, its subsidiaries and other affiliates, or any of its or their
respective servants, agents, officers, partners, directors, employees,
subcontractors or suppliers.


 


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


 





















 


ARTICLE VIII


 


CONSENT
TO JURISDICTION


 


Section 8.1             Consent
to Jurisdiction.  In connection with
any proceeding initiated by either party under or with respect to this
Agreement and the transactions contemplated hereby, each party hereby consents
to the jurisdiction of any United States Federal Court sitting in the State of
Kentucky having jurisdiction in the matter. 
Each party acknowledges and agrees that any controversy that may arise
under this Agreement is likely to involve complicated and difficult issues, and
therefor it hereby irrevocably and unconditionally waives any right it may have
to a trial by jury in respect of any litigation directly or indirectly arising
out of or relating to this Agreement, or the breach, termination or validity of
this Agreement, or the transactions contemplated by this Agreement.


 


ARTICLE IX


 


TERMINATION


 


Section 9.1             Termination
for Cause.  This Agreement shall
immediately terminate upon election by the nondefaulting party if any one of
the following events (each, a “default”) has occurred and is continuing upon
the expiration of the cure or dismissal period specified below (each, an “Event
of Default”):


 


(a)           Breach
by Seller or Buyer of any term of this Agreement, which breach is not cured
within sixty (60) days after receipt of written notice thereof; from the
nondefaulting party


 


(b)           Insolvency
or 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 a
temporary or permanent receiver, trustee or custodian; or


 


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


 


Section 9.2             Effect
of Termination.  Termination shall
not relieve a defaulting party of any liability to the nondefaulting party for
breach of its obligations hereunder.


 





















 


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 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 this
Agreement, unless preceded by the word “third” or unless the context shall
otherwise expressly require.  All
references herein to Articles, Sections, Annexes and Exhibits shall be 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,” unless
already expressly followed by such phrase or the phrase “but not limited to.”  The definitions given for terms in this Section 10.1
or in Article I shall apply equally to both the singular and plural forms
of the terms defined.  Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.


 


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


 


“Affiliate” of a Person means any
other 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 the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a Person, whether through the ownership
of voting securities, by voting trust, contract or similar arrangement, as
trustee or executor, or otherwise.


 


“Person” means any individual, sole
proprietorship, trust, estate, executor, legal representative, unincorporated
association, 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 or
department thereof) or other entity.


 


Section 10.2           Assignment
by Seller.  


 


(a)           Except
as provided in this Section 10.2, this Agreement may not be assigned by
Seller in whole or in part. 
Notwithstanding the foregoing, at any time during the Term, Seller may
assign this Agreement (i) to any lender or lenders as security for
obligations to such lender or lenders in respect to financing arrangements of
Seller or any Affiliate thereof with such lender or lenders, or (ii) upon
prior written notice to Buyer, to any Person that is and at all times remains
an Affiliate of Seller or that merges or consolidates with or into Seller or
that acquires all or substantially all of the Timberlands.


 


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


 





















 


Timberlands shall be made subject to the terms of this Agreement and
the obligation to supply the applicable portion of timber volumes required
hereunder.  Upon any sale of a portion of
the Timberlands, the purchaser of said portion of the Timberlands (“New Owner”)
shall assume the obligation to supply a portion of the timber volumes to be
supplied hereunder, said portion of the timber volumes (“Assumed Volume”) to be
agreed to by Seller and said New Owner, subject to Buyer’s consent to such
volume allocation, which consent shall not be unreasonably withheld or
delayed.  Upon such assumption by said
New Owner, Seller’s obligations to supply Products hereunder shall be reduced
by the volumes assumed by said New Owner, and Seller shall thereafter have no
obligation or liability with respect to said assumed volumes or with respect to
the portion of the Timberlands so conveyed. 
At the request of Seller, upon any such sale to a New Owner Buyer shall
execute 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 a
separate fiber supply agreement on the same terms and conditions as contained
in this Agreement (or such other terms as Buyer and such New Owner shall
mutually agree) except for the portion of the Timberlands covered thereby and
the volume of Products to be supplied thereunder.  In the event Buyer objects to any proposed
Assumed Volume, Buyer shall provide written notice of the same to Seller within
fifteen (15) days of notice to Buyer of said proposed Assumed Volume (“Objection
Notice”), said Objection Notice to include a detailed explanation of the basis
for said objection.  Failure by Buyer to
timely provide said Objection Notice shall be deemed to constitute the consent
of Buyer to said proposed Assumed Volume. 
In the event Buyer timely provides an Objection Notice, Seller shall
have the option of (i) revising said proposed Assumed Volume, in which
case Buyer shall have the further right to object by providing a new Objection
Notice as provided above or (ii) retaining the Valuation Consultant to
determine whether the proposed Assumed Volume is reasonable.  In the event the Valuation Consultant is so
retained and determines that said proposed Assumed Volume is reasonable, Buyer
shall be deemed to have consented to said Assumed Volume and shall pay all
costs and expenses of said Valuation Consultant.  Otherwise, said costs and expenses shall be
paid by Seller.  Notwithstanding the
foregoing, Seller may convey during the Term hereof up to 8,000 acres of the
Timberlands free and clear of the obligations of this Agreement (the “Exempt
Acres”), provided that Seller is able to supply the volume of Products required
to be supplied hereunder from the remaining portion of the Timberlands.  Buyer agrees to execute any and all
documentation requested by Seller in order to evidence the release of the
Exempt Acres from this Agreement.


 


Section 10.3           Assignment
by 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 time
during the Term, Buyer may assign this Agreement (a) to any lender or
lenders as security for obligations to such lender or lenders in respect of
financing arrangements of Buyer or any affiliate thereof with such lender or
lenders, or (b) upon prior written notice to Seller, to any Person that is
and at all times remains an Affiliate of Buyer or that merges or consolidates
with or into Buyer or that acquires all or substantially all of the assets or
stock of Buyer and in the case of an acquisition of all or substantially all of
the assets of


 





















 


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


 


Section 10.4.  Notices. 
All notices, requests, demands and other communications provided for
hereunder shall be in writing and personally delivered or sent by regular U.S.
certified mail, telecopy or Federal Express (or similar type of overnight
delivery) to the applicable party at the address indicated 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 each party, at such other address as shall be designated by
such party in a written notice to the other party complying as to delivery with
the terms of this Section.  Notice shall
be deemed received when (i) hand delivered; (ii) sent, after receipt
of confirmation or answer back if sent by telecopy; (iii) five Business
Days after deposit in the U.S. mails, postage prepaid, for certified mail; and (iv) one
Business Day 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 be valid or
binding unless


 





















 


set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought.  Any such waiver shall constitute a waiver
only with respect to the specific matter described in such writing and shall in
no way impair the rights of the party granting such waiver in any other respect
or at any other time.  The failure of
either party to insist in any one or more instances upon strict performance of
any of the provisions of this Agreement or take advantage of any of its rights
hereunder shall not be construed as a waiver of any such provisions or the
relinquishment of any such rights, but the same shall continue and remain in
full force and effect.


 


Section 10.6           Entire
Agreement.  This instrument
constitutes the entire agreement between the parties relating to the subject
matter hereof, and there are no agreements, understandings, conditions,
representations, or warranties not expressly set forth herein.


 


Section 10.7           Sovereign
Law.  This Agreement shall be
governed 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           Binding
Agreement.  Subject to the provisions
of Sections 10.2 and 10.3, this Agreement shall bind and inure to the benefit
of the parties and their respective successors and assigns.


 


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


 


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


 


Section 10.11         Annexes
and Exhibits.  All annexes, attachments,
schedules and exhibits to this Agreement referenced herein are incorporated
herein by reference.


 


Section 10.12         Severability,
etc.  Any term or provision of this
Agreement that is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability, without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
unenforceability of any of the terms or provisions of this Agreement in any
other jurisdiction.  If any term or
provision of this Agreement is so broad as to be invalid or unenforceable, the
provision shall be interpreted to be only so broad as is valid or enforceable.  Subject to the foregoing provisions of this Section 10.12,
if any term or provision of this Agreement is invalid or unenforceable for any
reason, such circumstances shall not have the effect of rendering such term or
provision invalid or unenforceable in any other case or circumstance.


 





















 


Section 10.13         No
Presumption Against Drafter.  Each of
the parties hereto has jointly participated in the negotiation and drafting of
this Agreement.  In the event of an
ambiguity or a question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by each of the parties hereto and no
presumptions or burdens of proof shall arise favoring any party by virtue of
the authorship of any of the provisions of this Agreement.


 


Section 10.14         Arbitration.


 


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


 


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


 


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


 


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


 


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


 





















 


Section 10.16         Option
to Convert to Stumpage Agreement. 
At any time during the Term of this Agreement, upon not less than one
hundred twenty (120) days prior written notice from Seller to Buyer, Seller
shall have the one-time option to convert this 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 the agreement attached hereto
as Schedule 10.16 (the “Stumpage Agreement”).  The Base Prices for such Stumpage Agreement
shall be the fair market value of the Products on the Conversion Date, as
reasonably and mutually agreed to by Buyer and Seller.  If the parties are unable to agree on said
Base Prices, said Base Prices shall be determined by the Valuation Consultant.


 


Section 10.17         Memorandum
of Contract.  At the request of any
party hereto, a Memorandum of this Agreement shall be recorded in the recording
offices of each and every County in which the Timberlands are located.


 


Section 10.18         Publicity.  This Agreement is confidential and no party
shall issue press releases or engage in other types of publicity of any nature
dealing with the commercial and legal details of this Agreement without the
other party’s prior written approval. 
However, approval of such disclosure shall be deemed to be given to the
extent such disclosure is required to comply with applicable laws, governmental
rules, regulations or other governmental requirements; in connection with any
financing arrangements of such party; in connection with the sale of any
portion of the Timberlands by Seller; or in connection with any dispute
resolution procedures of litigation hereunder. In such event, the publishing
party shall, to the extent reasonably practicable, furnish, in advance, a copy
of such proposed disclosure, to the other party.


 


Section 10.19         Estoppel
Certificates.  Either party shall, at
no cost to the requesting party, from time to time, upon twenty (20) days prior
request by the other party, execute, acknowledge and deliver to the requesting
party a certificate signed by an officer of the certifying party stating that
this Agreement is unmodified and in full force and effect (or, if there have
been modifications, that this Agreement is in full force and effect as
modified, and setting forth such modifications) and the dates through which
payments have been made, and either stating that to the knowledge of the signer
of such certificate no default exists under this Agreement or specifying each
such default to which the signer has knowledge.


 


Section 10.20         Prevailing
Party.  If either party brings any
proceeding for the judicial or other interpretation, enforcement, termination,
cancellation or rescission of this Agreement, or for damages for the breach
thereof, the prevailing party in any such proceeding or appeal thereon shall be
entitled to its 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
separate proceeding, and whether or not such proceeding is pursued to decision
or judgment.  


 


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


 





















 


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


 





















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of 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