Crude Tall Oil Supply Agreement between Ingevity Corporation and Georgia-Pacific LLC, dated as of March 8, 2018

THIS CRUDE TALL OIL SUPPLY AGREEMENT (this “Agreement”) is made and entered into as of March 8, 2018, by and between Georgia-Pacific LLC, a Delaware limited liability company (“Seller”), on behalf itself and on behalf of its direct and indirect subsidiaries, and Ingevity Corporation, a Delaware corporation (“Buyer”).

WHEREAS, Seller produces crude tall oil (as further described on Exhibit A, “CTO”) at certain of its mills derived from Black Liquor Soap Skimmings (“BLSS”) produced and originating at the Mills (as defined in Section 1(A));

WHEREAS, Seller and Buyer have negotiated the terms set forth herein on an arm’s length basis to reflect market terms for the purchase and sale of CTO;

WHEREAS, Seller has a commercial interest in ensuring a long-term purchase agreement for the production of its CTO and Buyer has a commercial interest in maintaining consistent and long-term supply of CTO; and

WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase, Seller’s production of CTO based on the percentage output of such production at such mills as set forth on Exhibit A.

NOW, THEREFORE, in consideration of the covenants and agreements herein contained, and other good and valuable considerations, the receipt of which are hereby acknowledged, and subject to terms, provisions and conditions set forth herein, the parties hereto agree as follows:

 

Seller agrees to sell to Buyer, and Buyer agrees to purchase and receive from Seller, except as otherwise set forth herein, CTO produced and originating at the Mills, upon the terms and conditions set forth herein:

Seller will provide Buyer with at least thirty (30) days prior written notice if any Mill will use (i) phosphorus-derived additives or (ii) anthraquinone, in each case in the pulping process that produces BLSS for CTO to be sold to Buyer hereunder (such notice, a “Process Change Notice”). Seller shall not provide CTO to Buyer from any Mill which utilizes any co-products derived from any sulfite pulping mill which may result in contaminated CTO.

i.     Quality parameters are set on an individual Mill basis. References below to “Moisture Content,” “Acid Number,” “Hexane Insolubles,” and “Soap Number,” are references to such terms associated with various Specifications as further described in Exhibit A. If at the end of a calendar quarter, the WQA of CTO quality

of any particular Mill does not meet or (a) exceed the minimum Specification, or (b) be less than the maximum Specification (as applicable “Below Standard Product”), then Seller will provide a credit to Buyer on the next applicable invoice (or, if the Agreement has been terminated, reimburse Buyer) as follows:

1.    Acid Number of CTO. Seller will provide a credit for the tons of Below Standard Products sold to Buyer during such calendar quarter based on the amount that the Mill-specific WQA is below the applicable Acid Number minimum Specification. The following calculation will apply: (Mill WQA Acid Number - Mill Acid Number Specification) divided by the Mill Acid Number Specification multiplied by the then-current CTO purchase price, multiplied by the tons delivered during the calendar quarter from the Mill = allowed $ credit. For example, if a Mill sells 1,000 tons of CTO at a hypothetical purchase price of $10 per ton with a WQA Acid Number of 160 and a Mill Acid Number Specification of 165, the credit would be: ((165-160)/165)* $10 * 1,000 tons = $303.03.

2.    Moisture Content. Seller will provide a credit for excess moisture included with CTO sold to Buyer during such calendar quarter as follows: The credit shall be based on the amount that the WQA is above the Specification maximum limit for each specific Mill. For example, if a specific Mill sells 1,000 tons that had a CTO Moisture Content WQA of thirteen percent (13%) and a moisture Specification of two percent (2%), then Seller will provide a Below Standard Product credit equal to (13% - 2%) * 1000 = 110 tons multiplied by the then-current purchase price of CTO as described in Exhibits C and E hereto.

3.    Hexane Insolubles. Seller will provide a credit equal to eight percent (8%) of the purchase price for the tons of Below Standard Product sold to Buyer during such calendar quarter by the specific Mill if the WQA of Hexane Insolubles exceeds the Specification for such Mill.

 

4.    Soap Number of CTO. Seller will provide a credit equal to eight percent (8%) of the purchase price for the tons of Below Standard Product sold to Buyer during such calendar quarter by the specific Mill if the WQA of the Soap Number exceeds the Specification for that Mill.

ii.    If Seller provides a C of A, then Buyer has the right to do its own testing to validate Seller’s testing accuracy. If Seller does not provide a C of A, Seller has the right to do its own testing on any retained samples or on samples which may be provided by Buyer at Seller’s reasonable request; provided that no request for samples on CTO delivered in any calendar quarter more than thirty (30) days following the end of such calendar quarter. In the event of a discrepancy, a mutually acceptable third-party laboratory will be used to settle the discrepancy. Each party agrees to: (a) accept the values provided by the third party laboratory and (b) pay half of such laboratory’s costs. Seller shall retain all samples for a period of thirty (30) days beyond the end of the calendar quarter in which the related CTO loads are delivered.

iii.    Buyer shall take all Below Standard Products from the Mills. In the event that Seller provides an individual load or loads of Below Standard Products with one or more Negative Impacts (as defined below), Buyer may at its option process in good faith such loads of Below Standard Products with one or more Negative Impacts and the Specifications shall be used in the WQA calculation and will be subject to the remedies for Below Standard Products in accordance with the terms set forth herein. If Buyer decides not to process such load or loads of Below Standard Products with one or more Negative Impacts, Seller in its discretion shall then do one of the following: (a) take back such load(s) with Seller reimbursing Buyer for its reasonable freight costs and third party demurrage charges actually incurred; (b) instruct Buyer to dispose of such loads with Seller reimbursing Buyer for its actual and reasonable costs incurred for such disposal; or (c) if Buyer provides in writing the actual and reasonable costs it would incur to accept and process such load(s), then Seller may, in its sole discretion, agree to cover such costs and then allow Buyer to proceed with processing such load(s). In the event Seller elects in its sole discretion to pursue either of the foregoing options (a) or (b), Buyer shall have no responsibility for payment to Seller for such load(s). For purposes of this section, a “Negative Impact” refers to (a) a Below Standard Product failing to meet any Negative Impact specification as set forth on Exhibit A or (b) a Product that includes a new additive as a result of any temporary or permanent process change at Seller’s Mill or Mills, such as a pulping agent or processing third party BLSS containing a pulping agent, which would result in abnormal plugging, fouling, or buildup in Buyer’s production system so as to interfere with Buyer’s standard production process.

supply quantities of CTO evenly throughout each calendar quarter; provided, however, that Buyer acknowledges that Mill outputs may vary significantly within any given calendar quarter. Seller shall acidulate the entire BLSS output from the Mills except to the extent any Mill is unable to acidulate such BLSS due to a maintenance or unplanned outage of such Mill’s acidulation equipment. If such maintenance outage extends for a period of more than 14 days but such Mill otherwise continues to operate during this period, then Buyer may in consultation with Seller purchase and timely remove BLSS from such Mill at the price calculated in accordance with Exhibit B. As used in this Agreement, a “ton” shall mean 2,000 pounds.

Buyer shall pay Seller for CTO shipped to Buyer in any given calendar quarter at the prices calculated in accordance with Exhibit B, F.O.B. the Mills.

Buyer and Seller agree to work together in good faith to try to improve quality and quantity of CTO available for sale. Buyer agrees to make reasonable technical assistance available for CTO production, recovery and optimization issues. Furthermore, Buyer and Seller agree to meet (telephonically or in person) at least once during each six-month period during the Term to review mutual Mill CTO recovery efforts, projected output by Mill and Buyer’s demand to monitor volume obligations and mitigation strategies.

in which case Seller shall be released from its supply obligations hereunder only to the extent of such third-party sale subject to the Logistics Failure Notice, and Buyer shall pay any shortfall between the net price paid by such third-party and the price Seller would have received from Buyer had Buyer timely taken delivery of such CTO. Seller shall fully utilize available storage capacity at the applicable Mill before arranging for additional storage, transporting CTO off-site or selling or transferring to a third party. In addition, Seller shall cause each Mill to maintain at least the amount CTO storage capacity as set forth on Exhibit C.

Seller shall invoice Buyer upon shipment of CTO, and Buyer shall pay each invoice within thirty (30) days of the invoice date.

Seller represents and warrants to Buyer, that (a) the CTO shall satisfy the Specification requirements set forth in Section 1(B), (b) Seller will convey good and marketable title to the CTO free and clear of any liens and encumbrances, and (c) Seller shall manufacture the CTO in accordance with all applicable laws, rules and regulations. Seller MAKES NO OTHER WARRANTIES, OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

  

Either party shall be excused to the extent that its performance is prevented or delayed by any circumstance reasonably beyond its control, including, but not limited to, delays arising out of acts of God, war, terrorism, acts or orders of a government, agency or instrumentality thereof, embargoes, strikes or other concerted acts of workmen (whether of Seller or other persons), or any other causes, circumstances or contingencies within or without the United States of America, which are beyond such party’s reasonable control (each a “Force Majeure Event”). The affected party shall promptly notify the other party of the nature and estimated duration of the event and work to resolve such event. Notwithstanding any events operating to excuse the performance by either party, this Agreement shall continue in full force for the remainder of the Term; provided, however, the non-affected party shall have the right to terminate this Agreement if such event continues for at least sixty (60) days and, if the affected party is the Seller, then such termination shall be effective only as it relates to the Mill(s) impacted by such Force Majeure Event. During any Force Majeure Event that causes Buyer to be unable to satisfy its obligations under this Agreement to purchase and timely remove quantities CTO from any Mill, Seller may transfer or sell such quantities to another party, in which case Seller shall be released from its supply obligations hereunder to the extent of such third-party transfer or sale until such Force Majeure Event is no longer in effect.

This Agreement may not be assigned either voluntarily or involuntarily by either party without first obtaining the written consent of the other party thereto which consent shall not be unreasonably delayed, conditioned, or withheld; provided, however, that either party may assign or otherwise transfer all of its rights and obligations under this Agreement to any entity controlling, controlled by or under common control with such party, upon prior written notice to the other party. For purposes of this Section 12, an assignment shall be deemed to include: (a) a sale of all or substantially all of the assets of a party; (b) a sale of more than fifty (50%) percent of the equity of a party or (c) a merger, consolidation or amalgamation of a party into or with any other person or entity. In each case of assignment the entity to which the Agreement is assigned shall accept all the duties and obligations of the assigning party hereunder.

Buyer shall pay all sales, use, excise and similar taxes which are required by applicable law to be paid by Buyer in connection with the sale of CTO from Seller to Buyer under this Agreement.

Any notice which a party hereto is required to give or may desire to give in connection with this Agreement shall be in writing and shall either be (a) delivered in person, (b) sent standard overnight courier or (c) mailed, registered or certified mail, return receipt requested, postage prepaid and addressed to the attention of the party intended as the recipient at the address listed below. All such notices shall be deemed to have been received (x) upon the date of delivery, if hand delivered, sent by overnight delivery; or (y) on the third business day after deposit in a regularly maintained receptacle for the deposit of United States mail if mailed, registered or certified mail, return receipt requested, postage prepaid and addressed as specified below.

    

    

Any party receiving Confidential Information (as defined below) from the other party shall maintain the confidential and proprietary status of such Confidential Information, keep such Confidential Information and each part thereof within its possession or under its control sufficient to prevent any activity with respect to the Confidential Information that is not specifically authorized by this Agreement, use commercially reasonable efforts, in each case, to prevent the disclosure of any Confidential Information to any other person or entity, and use commercially reasonable efforts to ensure that such Confidential Information is used only for those purposes specifically authorized herein; provided, however, that such restrictions shall not apply to any Confidential Information which is (a) independently developed by, or already in possession of, the receiving party, (b) in the public domain at the time of its receipt or thereafter becomes part of the public domain through no fault of the receiving party, (c) to receiving party’s knowledge, received without an obligation of confidentiality from a third party having the right to disclose such information, (d) released from the restrictions of this Section 15 by the express written consent of the other party hereto, or (e) compelled to be disclosed by law or pursuant to a court order (the disclosing party shall, however, use commercially reasonable efforts to obtain confidential treatment of any such disclosure). “Confidential Information” shall mean: (x) the terms and conditions of this Agreement and (y) all information and records relating to the operation of each other’s business, including, without limitation, trade secrets, technical information, development, production, sales, marketing, pricing and financial details related to the refining of CTO. Each party shall, upon the other party’s written request, return or destroy all Confidential Information of the other party within thirty (30) days following the termination of this Agreement for any reason.

This Agreement shall be construed under and in accordance with the laws of the state of Delaware. The parties expressly reject the applicability to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods. Any legal action arising out of or concerning a dispute, controversy or claim pursuant to, in connection with or in relation to this Agreement, shall be subject to the exclusive jurisdiction of, the U.S. District Court for Delaware, or the Circuit Court of the County of New Castle, Delaware. Each party expressly submits to the venue and jurisdiction of the foregoing courts, and further agrees that, in the event of any action or suit as to any matters of dispute among the parties,

service of process may be made upon the other parties by mailing a copy of the summons and/or complaint to such other party at the address set forth in Section 15. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Except as otherwise expressly provided herein, the failure or delay by either party to exercise any of its rights hereunder shall not be construed to be a waiver of any of such rights. The provisions of this Agreement may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by both parties. No waiver of any performance required under this Agreement shall be deemed a waiver of future compliance with all of the terms hereof.

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. A signature sent by electronic mail pdf or facsimile transmission shall be as valid and binding upon the party as an original signature of such party.

This Agreement constitutes the entire Agreement between the parties hereto with respect to the subject matter hereof and there are no understandings, representations or warranties of any kind whatsoever except as expressly herein set forth. All modifications to this Agreement shall be in writing and signed by Buyer and Seller. A failure to exercise any right hereunder with respect to any breach shall not constitute a waiver of such right with respect to any subsequent breach.