Exhibit 10.9
RELATIONSHIP AGREEMENT
This AGREEMENT, dated as of November 9, 2001, is by and among ARJO
▇▇▇▇▇▇▇ APPLETON p.l.c. ("AWA"), ARJO ▇▇▇▇▇▇▇ (BERMUDA) HOLDINGS LIMITED ("AWA
--- ---
Sub" and, together with AWA, the "AWA Parties"), PAPERWEIGHT DEVELOPMENT CORP.
--- -----------
("PDC"), PDC CAPITAL CORPORATION ("PDC Sub" and, together with PDC, the "PDC
--- ------- ---
Parties") and ARJO ▇▇▇▇▇▇▇ APPLETON (BERMUDA) LIMITED ("Bermuda").
------- -------
PRELIMINARY STATEMENTS:
(1) AWA is the sole holder of all of the issued and outstanding Class
A Common Shares of AWA Sub.
(2) PDC is the sole stockholder of PDC Sub.
(3) AWA Sub is the legal and beneficial owner of 800 Class A Common
Shares and 1000 Class B Preference Shares of Bermuda (the "AWA Sub Bermuda
---------------
Securities").
----------
(4) PDC Sub is the legal and beneficial owner of 200 Class A Common
Shares and 1 Class C Preference Share of Bermuda (the "PDC Sub Bermuda
---------------
Securities").
----------
(5) AWA, PDC, New Appleton LLC and Appleton Papers Inc. ("API") are
parties to that certain ▇▇▇ ▇▇▇ River Environmental Indemnity Agreement, dated
November 9, 2001 (the "AWA Indemnity Agreement").
-----------------------
(6) AWA and Bermuda are parties to that certain Assignment and
Assumption Deed, dated November 9, 2001 (the "Assumption Deed").
---------------
(7) The parties wish to enter into this Agreement to set out certain
mutual agreements concerning the activities of Bermuda and the satisfaction of
claims under the Assumption Deed and the AWA Indemnity Agreement.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
SECTION 1. Definitions.
-----------
(a) "Administrative Agent" means Toronto Dominion (Texas), Inc. or its
--------------------
successor as administrative agent pursuant to the Credit Agreement.
(b) "Credit Agreement" means that certain Credit Agreement, dated as
----------------
of November 9, 2001, by and among PDC, API, the several banks and other
financial institutions or entities from time to time parties thereto, Bear
▇▇▇▇▇▇▇ & Co. Inc., as sole lead arranger and sole bookrunner, Bear ▇▇▇▇▇▇▇
Corporate Lending Inc., as syndication agent, U.S. Bank National Association
d/b/a Firstar Bank N.A. and LaSalle Bank National Association, each as
documentation agent, M&I ▇▇▇▇▇▇▇▇ & Ilsely Bank, as managing agent, Associated
Bank, N.A., and the Administrative Agent, together with any amendments or
modifications thereto.
(c) "Trustee" means (i) AWA, any subsequent holder of more than fifty
-------
percent (50%) of the outstanding principal amount of the $250,000,000 senior
subordinated note issued by API on the date hereof (the "Senior Subordinated
-------------------
Note") or a designee thereof and (ii) the trustee under an indenture providing
----
for the issuance of senior subordinated notes by API, the proceeds of which are
used alone or together with other funds to repay the Senior Subordinated Note
(the "New Notes") in whole.
---------
(d) Other capitalized terms used in this Agreement not otherwise defined
herein shall have the meanings set forth in the AWA Indemnity Agreement.
SECTION 2. Prohibition of Certain Activities.
---------------------------------
(a) Except with the prior written consent of AWA, and, at a time that AWA
is required to maintain the Acceptable Protection Coverage, of the
Administrative Agent and the Trustee, PDC shall not:
(i) transfer, whether voluntarily or involuntarily, any of the equity
securities of PDC Sub (collectively, the "PDC Sub Equity Securities");
-------------------------
(ii) grant, whether voluntarily or involuntarily, any option or right,
or enter into any agreement, that (A) calls for the issuance, sale or other
disposition of any PDC Sub Equity Securities or (B) relates to the voting or
control of any PDC Sub Equity Securities;
(iii) create or permit to exist any pledge, lien, fixed or floating
charge or other encumbrance over any PDC Sub Equity Securities; or
(iv) vote as a stockholder of PDC Sub in favor of, or otherwise
permit, (A) any assignment by PDC Sub for the benefit of creditors, the
appointment of a receiver for the assets of PDC Sub or the filing of any
petition or application concerning PDC Sub under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or regulation,
(B) the issuance of additional equity securities by PDC Sub, (C) the amendment
of the Certificate of Incorporation or Bylaws of PDC Sub (collectively, the "PDC
---
Sub Constitutional Documents"), or (D) the taking of any act outside the
----------------------------
corporate powers of PDC Sub, as reflected in the PDC Sub Constitutional
Documents.
(b) Except with the prior written consent of PDC, and, at a time
that AWA is required to maintain the Acceptable Protection Coverage, of the
Administrative Agent and the Trustee, AWA shall not:
(i) transfer, whether voluntarily or involuntarily, any of the equity
securities of AWA Sub (collectively, the "AWA Sub Equity Securities");
-------------------------
(ii) grant, whether voluntarily or involuntarily, any option or right,
or enter into any agreement, that (A) calls for the issuance, sale or other
disposition of any AWA Sub Equity Securities or (B) relates to the voting or
control of any AWA Sub Equity Securities;
2
(iii) create or permit to exist any pledge, lien, fixed or floating
charge or other encumbrance over any AWA Sub Equity Securities; or
(iv) vote as a stockholder of AWA Sub in favor of, or otherwise
permit, (A) any assignment by AWA Sub for the benefit of creditors, the
appointment of a receiver for the assets of AWA Sub or the filing of any
petition or application concerning AWA Sub under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or regulation,
(B) the issuance of additional equity securities by AWA Sub, (C) the amendment
of the Memorandum of Association or Bye-Laws of AWA Sub (the "AWA Sub
-------
Constitutional Documents") or (D) the taking of any act outside the corporate
------------------------
powers of AWA Sub, as reflected in the AWA Sub Constitutional Documents.
(c) Except with the prior written consent of AWA, and, at a time that AWA
is required to maintain the Acceptable Protection Coverage, of the
Administrative Agent and the Trustee, PDC Sub shall not, and PDC shall cause PDC
Sub not to:
(i) transfer, whether voluntarily or involuntarily, the PDC Sub
Bermuda Securities;
(ii) grant, whether voluntarily or involuntarily, any option or right,
or enter into any agreement, that (A) calls for the issuance, sale or other
disposition of any PDC Sub Bermuda Securities or (B) relates to the voting or
control of any PDC Sub Bermuda Securities; or
(iii) create or permit to exist any pledge, lien, fixed or floating
charge or other encumbrance over the PDC Sub Bermuda Securities.
(d) Except with the prior written consent of PDC, and, at a time that AWA
is required to maintain the Acceptable Protection Coverage, of the
Administrative Agent and the Trustee, AWA Sub shall not, and AWA shall cause AWA
Sub not to:
(i) transfer, whether voluntarily or involuntarily, the AWA Sub
Bermuda Securities;
(ii) grant, whether voluntarily or involuntarily, any option or right
or enter into any agreement that (A) calls for the issuance, sale or other
disposition of any AWA Sub Bermuda Securities or (B) relates to the voting or
control of any AWA Sub Bermuda Securities; or
(iii) create or permit to exist any pledge, lien, fixed or floating
charge or other encumbrance over the AWA Sub Bermuda Securities.
(e) Except with the prior written consent of PDC and AWA, and, at a time
that AWA is required to maintain the Acceptable Protection Coverage, of the
Administrative Agent and the Trustee, neither PDC Sub nor AWA Sub shall vote as
a stockholder of Bermuda in favor of, or otherwise permit:
3
(i) any assignment by Bermuda for the benefit of creditors, the
appointment of a receiver for the assets of Bermuda or the filing of any
petition or application concerning Bermuda under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or regulation;
(ii) the voluntary or involuntary transfer by Bermuda of Indemnity
Claim Insurance Policy No. 5295316 (the "Policy") issued by Commerce & Industry
------
Insurance Company (the "Insurer");
-------
(iii) the commutation of the Policy pursuant to Section 3(6) of the
Policy without the presentation to the Insurer of certificates of the
Administrative Agent and the Trustee as to the discharge of certain indebtedness
of PDC and its Subsidiaries substantially in the forms attached hereto as
Exhibit A-1 and A-2 respectively;
----------- ---
(iv) the amendment of or waiver of any right under the Policy other
than (A) a change of notice address or (B) to cure any ambiguity, omission,
defect or inconsistency in the Policy;
(v) the issuance of additional equity securities by Bermuda to a
party other than AWA Sub, PDC Sub or a third party holder of its Class D
Preference Shares;
(vi) the amendment of the Memorandum of Association or Bye-laws of
Bermuda;
(vii) the grant, whether voluntarily or involuntarily, of any option
or right, or enter into any agreement, that calls for the sale or other
disposition of the Policy; or
(viii) the creation or continued existence of any pledge, lien, fixed
or floating charge or other encumbrance over the Policy, except pursuant to the
Collateral Assignment from Bermuda to PDC, API and New Appleton LLC dated as of
the date hereof.
(f) PDC Sub and AWA Sub shall cause Bermuda actively to contest any
petition or application filed against it under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or regulation.
(g) Neither AWA nor Bermuda shall permit the assignment of any rights or
obligations under the Assumption Deed without the prior written approval of (i)
at a time that AWA is obliged to maintain the Acceptable Protection Coverage, of
the Administrative Agent and, if such consent is required pursuant to Section 2
(h), of the Trustee or (ii) at all other times, PDC.
(h) In the event that the consent of the Trustee is required under this
Section 2 or Section 9, or if there is proposed any amendment, modification,
waiver or alteration of terms (other than the Economic Terms (as defined below))
of this Agreement, the Policy, or the Assumption Deed, the prior written consent
of the Trustee shall also be required, and in either case the Trustee shall be
provided with 30 days prior written notice of the proposed amendment,
modification, waiver, alteration or other action to be taken, describing the
same in reasonable detail and providing any related documentation for the
proposed implementation thereof, together with the following, in each case in
form and substance satisfactory to the Trustee:
4
(i) a legal opinion from counsel acceptable to the Trustee, to the
effect that the proposed action, amendment, modification, waiver or alteration
will not have any adverse effect on the legal rights of the policyholder under
the Policy or the legal rights of API and PDC under the AWA Indemnity Agreement,
the PDC Indemnity Agreement, the Assumption Deed or this Agreement, and does not
have an adverse effect on the then remoteness of AWA Sub and Bermuda from AWA
and its other affiliates for bankruptcy, substantive consolidation or similar
purposes;
(ii) officer's certificates on behalf of PDC, certifying that it
believes that the proposed action, amendment, modification, waiver or alteration
is not adverse to the policyholder, PDC or API;
(iii) an opinion from an investment bank of recognized national
standing, to the effect that the proposed action, amendment, modification,
waiver or alteration is not adverse, from a financial point of view, to the
policyholder or to the holders of the Notes and would not, in such investment
bank's opinion, result in any adverse effect on the trading or price of the
Notes; and
(iv) any additional opinions or certificates that the Trustee
determines may reasonably be required given the circumstances of any proposed
action, amendment, modification, waiver or alteration;
provided, however that the Trustee shall not be requested to approve and shall
not approve any amendment, modification, waiver or alteration of the
requirements of this Section 2(h) or of any of the following terms (the
"Economic Terms") of this Agreement, the Policy or the Assumption Deed: (i)
--------------
Section I - Insuring Agreement, Section II - Limits of Insurance, Section III -
Conditions (other than Sections 3.d., 8, 9, 18 and 20 thereof) and all related
definitions of the Policy; (ii) any provisions of the Assumption Deed; (iii)
requirements for certificates of approval from the Trustee or other lenders in
this Agreement or the Policy; (iv) the identity of the insurer under the Policy;
and (v) changes in the jurisdiction of organization of the policyholder under
the Policy to any jurisdiction other than a jurisdiction set forth on Exhibit B
---------
hereto; it being agreed that any amendment, modification, waiver or alteration
of any of the Economic Terms shall require the prior consent of the holders of
the majority in aggregate principal amount of the then outstanding New Notes.
Notwithstanding the foregoing, the consent of the Trustee shall not be required
if AWA is the sole holder of the Senior Subordinated Note.
(i) Any purported action in violation of this Section 2 shall be null and
void and of no force and effect whatsoever.
SECTION 3. Satisfaction of Obligations Under Assumption Deed.
-------------------------------------------------
(a) Without limiting Bermuda's obligations under the Assumption Deed, to
the extent that funding under the Policy is available in respect of obligations
of AWA to PDC under the AWA Indemnity Agreement, Bermuda shall apply such
proceeds by making payment directly to PDC or API or to vendors or other third
persons entitled to payment thereof, in each case in a manner consistent with
the terms of the AWA Indemnity Agreement, in satisfaction of its
5
obligations under the Assumption Deed and the obligations of AWA under the AWA
Indemnity Agreement.
(b) With respect to all other amounts payable by Bermuda pursuant to the
terms of the Assumption Deed, i.e. other than in satisfaction of AWA's
obligations to PDC under the AWA Indemnity Agreement, Bermuda shall make such
payments to AWA or such other person as AWA may designate from time to time;
provided that in the event of a default by AWA in the payment of its
indemnification obligations under Section Error! Reference source not found.
hereof, no payments shall be made to AWA or its designee until such obligations
have been satisfied in full.
(c) Bermuda shall use commercially reasonable efforts to collect funds
under the Policy as promptly as amounts are available for payment under the
terms of the Policy.
(d) In the event AWA has not made or caused to be made a payment under the
AWA Indemnity when due and payable (a "Late Payment"), PDC or PDC Sub may
------------
unilaterally cause Bermuda to make, and Bermuda agrees to make, such Indemnity
Claims (as defined in the Policy) and submit such Invoice Approval Packages (as
defined in the Policy) as PDC may deem appropriate to procure the Insurer's
payment of such Late Payment (so long as in accordance with the terms of the
Policy).
SECTION 4. Tax Treatment.
-------------
(a) For so long as AWA continues to satisfy its obligation, if any, to
indemnify the PDC Parties in accordance with subsection Error! Reference source
not found.Error! Reference source not found., (i) the parties agree to cause
Bermuda to be classified as a partnership for United States federal income tax
purposes and (ii) PDC agrees that it shall, and shall cause PDC Sub to, report
all of the U.S. taxable income reportable by Bermuda in connection with its
ownership of the Policy. In the event AWA fails to satisfy its obligation to
indemnify PDC Parties in accordance with clause Error! Reference source not
found., PDC or PDC Sub may unilaterally cause Bermuda to revoke its election to
be classified as a partnership for United States federal income tax purposes and
PDC shall be relieved of its obligation to report in accordance with clause (ii)
above.
(b) AWA shall cause Bermuda to provide to PDC, a reasonable time prior to
the due date for the filing thereof, written notice of U.S. taxable income to be
reported consistent with clause Error! Reference source not found., including
information sufficient to enable PDC to comply with its tax reporting
obligations.
(c) AWA hereby covenants to indemnify and hold harmless the PDC Parties
from and against any and all increases in Taxes of a PDC Party or another Member
of the Buyers' Group (as defined in the AWA Indemnity Agreement) which in any
way relate to or arise from Bermuda, including Taxes arising from the receipt of
any indemnification payment hereunder.
(d) AWA's indemnity set forth in clause Error! Reference source not found.
shall be governed, to the extent appropriate in the context, by the procedural
provisions set forth in Sections 4.1 and 5.1 of the AWA Indemnity Agreement. By
way of illustration and without limitation of the foregoing:
6
(i) AWA shall make payments to the PDC parties prior to the time that
the PDC Parties are obligated to pay indemnified Taxes, so that the PDC Parties
are never out of pocket in respect thereof.
(ii) The PDC Parties shall provide to AWA for AWA's review, a
reasonable time prior to filing, copies of the PDC Parties' tax returns
reporting taxable income in respect of the Bermuda.
(iii) The Parties shall cooperate in respect of Bermuda tax matters as
provided in Section 5.1.5 of the AWA Indemnity Agreement.
(e) If there shall be any change in United States, United Kingdom or
Bermuda tax law, regulation or ratings relevant to the relationships described
in this Agreement, or a change in any party's tax status, at the request of
either the PDC Parties or AWA, the parties shall negotiate in good faith to
amend (in accordance with Sections Error! Reference source not found. and 9
hereof) the relationships and tax treatment summarized herein.
SECTION 5. Representations and Warranties.
------------------------------
(a) The AWA Parties, jointly and severally, represent and warrant that (i)
AWA is the sole stockholder of AWA Sub and (ii) attached hereto as Exhibit 5(a)
------------
are true, complete and correct copies of the AWA Sub Constitutional Documents.
(b) The PDC Parties, jointly and severally, represent and warrant that (i)
PDC is the sole stockholder of PDC Sub and (ii) attached hereto as Exhibit 5(b)
------------
are true, complete and correct copies of the PDC Sub Constitutional Documents.
SECTION 6. Payment of Certain Obligations.
------------------------------
(a) AWA shall provide AWA Sub, and AWA and AWA Sub shall provide Bermuda,
with sufficient funds to meet its statutory and other ordinary course
obligations.
(b) PDC shall provide PDC Sub with sufficient funds to meet its statutory
and other ordinary course obligations.
SECTION 7. Access to Books and Records. To the extent permitted by
---------------------------
antitrust and other applicable laws, the parties shall allow each other
reasonable access to their books and records, and to personnel having knowledge
of the whereabouts and/or contents of their books and records, for purposes of
confirming compliance with the terms of this Agreement. Any such access to and
review shall be permitted and conducted only during normal business hours and
upon reasonable notice. Each party shall be entitled to recover its
out-of-pocket costs (including, without limitation, copying costs and a
reasonable charge for employee time) incurred in providing their books and
records and/or personnel. The requesting party shall hold in confidence all
confidential information identified as such by the disclosing party or any of
its officers, agents, representatives or employees; provided, however, that
-------- -------
information that (i) was in the public domain; (ii) was in fact known to the
requesting party prior to disclosure by the disclosing party or its officers,
agents, representatives or employees; (iii) becomes known to the requesting
party from or through a third party not under an obligation of non-disclosure to
the
7
disclosing party; or (iv) any party is required by law, rule or regulation (of
any applicable stock or securities exchange or otherwise) or otherwise deems
necessary and proper to disclose in connection with the filing of any tax return
or other document required to be filed with, or as required by, any governmental
authority, shall not be deemed to be confidential information. In addition, the
parties agree that confidential information shall not be used for any purpose
other than the specific purpose for which it was supplied.
SECTION 8. Dispute Resolution.
------------------
(a) The AWA Parties, on the one hand, and the PDC Parties, on the other
hand, shall attempt in good faith to resolve any dispute or difference between
or among the parties arising out of or relating to this Agreement promptly by
negotiation between executives of the relevant parties who have authority to
settle the controversy within fifteen (15) days after delivery of a notice of a
dispute by one or more parties to the others. All negotiations pursuant to this
Section 8Error! Reference source not found. are confidential and shall be
treated as compromise and settlement negotiations for purposes of applicable
rules of evidence.
(b) Any dispute or difference between or among the parties arising out of
or relating to this Agreement which has not been resolved by negotiation
pursuant to Section 8(a) within fifteen (15) days as therein provided, shall be
settled by arbitration in accordance with the CPR Rules of Non-Administered
Arbitration in effect on the date of this Agreement, by a mutually acceptable
single arbitrator designated by the respective parties. If the parties are
unable to agree on an arbitrator within fifteen (15) days following the
expiration of the negotiation period described in Section 8(a), an arbitrator
shall be selected by the Center for Public Resources pursuant to the procedures
set forth in its Rule 6.4.b or by such other procedures as the parties may
elect. In order to expedite the process of selecting an arbitrator, the parties
shall use their best efforts to agree upon a standby arbitrator and an alternate
within thirty (30) days following the effective date of this Agreement, and
within thirty (30) days following the resignation or inability of any such
standby arbitrator or alternate to serve. The arbitration shall be governed by
the Federal Arbitration Act, 9 U.S.C. (S)(S) 1-16, and judgment upon the award
rendered by the arbitrator may be entered by any court having jurisdiction
thereof. The place of arbitration shall be New York, New York. The language of
the arbitration shall be English. The arbitration shall be governed by the law
of the State of New York. The arbitrator is not empowered to award damages in
excess of compensatory damages and each party expressly waives and foregoes any
right to punitive, exemplary or similar damages unless a statute requires that
compensatory damages be increased in a specified manner. Following the final
arbitration hearings, which shall be completed within thirty (30) days following
the later of (i) the designation of the arbitrator and (ii) the expiration of
the negotiation period described in Section 8(a) unless otherwise mutually
agreed by the parties to the dispute, the arbitrator shall promptly deliver a
written decision with respect to the dispute to each of the parties, who shall
promptly act in accordance therewith. Each party agrees that any decision of the
arbitrator shall be final, conclusive and binding and that they will not contest
any action by any other party thereto in accordance with a decision of the
arbitrator. It is specifically understood and agreed that any party may enforce
any award rendered pursuant to the arbitration provisions of this Section 8(a)
by bringing suit in any court of competent jurisdiction.
8
(c) All reasonable fees, costs and expenses (including attorneys' fees and
expenses) incurred by the party that prevails in any such arbitration commenced
pursuant to Section 8(b) or any judicial action or proceeding seeking to enforce
the agreement to arbitrate disputes as set forth in Section 8(b) or seeking to
enforce any order or award of any arbitration commenced pursuant to this Section
8 may be assessed (in whole or in part) against the party or parties that do not
prevail in such arbitration in such manner as the arbitrator or the court in
such judicial action, as the case may be, may determine to be appropriate under
the circumstances. All costs and expenses attributable to the arbitrator shall
be allocated among the parties to the arbitration in such manner as the
arbitrator shall determine to be appropriate under the circumstances.
(d) The parties hereto shall take all required steps in order to avoid any
inconsistencies between the resolutions of disputes hereunder and resolutions of
disputes under the AWA Indemnity Agreement including, without limitation, the
consolidation of any dispute resolution procedures.
SECTION 9. Amendment; Assignment. This Agreement may not be amended,
---------------------
modified or assigned except at a time that AWA is required to maintain the
Acceptable Protection Coverage, with the written approval of the Administrative
Agent and the Trustee pursuant to Section 2(h) Any purported amendment,
modification or assignment that is not in compliance with the preceding sentence
shall be null and void and of no force and effect whatsoever. Subject to the
foregoing, this Agreement shall inure to the benefit of the parties' respective
successors and assigns.
SECTION 10. Governing Law; Consent to Jurisdiction. THIS AGREEMENT SHALL BE
--------------------------------------
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. FOR THE LIMITED PURPOSE OF
ENFORCEMENT OF AN ARBITRAL JUDGMENT IN ACCORDANCE WITH SECTION 8(b), EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK OR THE COURTS OF THE UNITED
STATES OF AMERICA LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK FOR ANY ACTIONS,
SUITS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING
ARISING OUT OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN THE
COURTS OF THE STATE OF NEW YORK OR THE COURTS OF THE UNITED STATES OF AMERICA
LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK AND HEREBY FURTHER IRREVOCABLY AND
UNCONDITIONALLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY
SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
SECTION 11. Notices.
-------
(a) All communications provided for hereunder shall be in writing and shall
be deemed to be given when delivered in person or by private courier with
receipt, when telefaxed and received, and,
9
If to any PDC Party:
Paperweight Development Corp.
c/o Appleton Papers Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇,
Vice President, Law and
Public Affairs and
General Counsel
with copies to:
▇▇▇▇▇▇▇ & ▇▇▇▇, S.C.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
State Street Bank and Trust Company
Trustee of the ESOP Component of the
Appleton Papers Retirement Saving ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (617)
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Day ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
If to any AWA Party:
Arjo ▇▇▇▇▇▇▇ Appleton plc
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Facsimile: 011-44-1256-796075
10
Attention: Company Secretary
and
AWA Group Services SAS
Washington Plaza
▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Cedex 08
FRANCE
Facsimile: 011-33-1-5669-3963
Attention: Director of Legal Affairs
with a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
or to such other address as any such party shall designate by written notice to
the other parties hereto.
(b) Without limiting the generality of Section 11(a), AWA Sub and PDC Sub
hereby agree that any notices given or received by the party identified above on
behalf of them shall be deemed given and received by each of them and that,
pursuant thereto, the other parties may rely upon the applicability of any such
notice as being binding upon, and applicable to each of them.
SECTION 12. Third Party Beneficiary. The Administrative Agent, on behalf of
-----------------------
the lenders pursuant to the Credit Agreement, and the Trustee, on behalf of the
holders of the Senior Subordinated Note or the New Notes, are third party
beneficiaries of this Agreement with full rights and remedies under or by reason
of this Agreement as if parties hereto. Other than the parties hereto and their
respective successors and permitted assigns and except as specifically set forth
in the preceding sentence, nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any other person any
rights or remedies under or by reason of this Agreement.
SECTION 13. Conflict with Bermuda Bye-Laws. In the event of an
------------------------------
inconsistency between any term of this Agreement and the Bye-Laws of Bermuda,
the provisions of this Agreement shall control.
11
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ARJO ▇▇▇▇▇▇▇ APPLETON p.l.c. PAPERWEIGHT DEVELOPMENT CORP.
By: /s/ Luca PaVeri-Fontana By: /s/ ▇▇▇▇ ▇▇▇▇
Name: Luca PaVeri-Fontana Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director Title: President & Chief
Executive Officer
ARJO ▇▇▇▇▇▇▇ (BERMUDA) HOLDINGS LIMITED PDC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director Title: President
ARJO ▇▇▇▇▇▇▇ (BERMUDA) LIMITED
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
12