Common use of Capacity Expansion Clause in Contracts

Capacity Expansion. In the event that THPP proposes the construction or acquisition of any new pipeline with an intrastate North Dakota origin point which connects to the Pipeline System, the return to service of any pipeline with an intrastate North Dakota origin which connects to the Pipeline System inactive on the Commencement Date or the expansion or enhancement of the Available Capacity on any currently existing Segment (any of the foregoing, a “Capacity Expansion”), then: (A) THPP shall provide written notice to TRMC at least 180 days prior to the projected date of completion and first usable service for such Capacity Expansion (“Capacity Expansion Completion Date”), describing in reasonable detail the proposed Capacity Expansion and the projected timetable for such Capacity Expansion, including the projected Capacity Expansion Completion Date; (B) TRMC shall have the option, exercisable by written notice to THPP within 60 days after TRMC’s receipt of a Capacity Expansion Notice, to reserve up to 70% of such Capacity Expansion; and (C) in the event that TRMC so elects to reserve a portion of such Capacity Expansion, then (1) THPP shall provide TRMC with such periodic updates and information with respect to the Capacity Expansion as TRMC shall reasonably request and (2) on the actual Capacity Expansion Completion Date, the Minimum Throughput Commitment and Reserved Capacity for the affected Segments shall be increased by the number of bpd of the Capacity Expansion TRMC has elected to reserve. For any Capacity Expansion requiring the filing of any new tariff with the NDPSC, the provisions of Section 5(e)(ii) shall apply to the determination of the Committed Tariff Rate applicable to TRMC’s reserved portion of such Capacity Expansion. The proration provisions of the Rules Tariff shall apply so as to provide TRMC with priority for the adjusted Reserved Capacity as a shipper under a Committed Tariff, and TRMC shall be subject to proration as a shipper under an Uncommitted Tariff with respect to any portion of a Capacity Expansion not reserved by TRMC pursuant to this Section 2(b)(ii). Notwithstanding the foregoing, consistent with the terms of Section 2(a)(ii) above, unless otherwise expressly agreed in writing by TRMC, no Capacity Expansion shall (Y) reduce or restrict the right and ability of TRMC to ship at least the Minimum Throughput Commitment in the aggregate across all Segments from North Dakota origin points nominated by TRMC to the Pipeline System hub at ▇▇▇▇ Center for further delivery to the Mandan Refinery or (Z) reduce the Available Capacity on the ▇▇▇▇ Center-to-Mandan Segment below 70,000 bpd, or TRMC’s Reserved Capacity on such Segment. Nothing contained herein shall require THPP to divulge any information concerning any other shipper that is confidential shipper information or otherwise Confidential Information of THPP or any third party. The provisions of Section 17 shall apply to all such Confidential Information.

Capacity Expansion. (a) Upon execution of this AGREEMENT, NASTECH shall [***]. The parties hereby agree that the existing capacity of the [***] is [***] UNITS per year. In the event a LONG RANGE PLAN indicates that THPP proposes MERCK's requirements for UNITS will require at least [***], the construction or parties shall meet to discuss in good faith alternatives to increase the capacity of the [***], including, without limitation, the acquisition and installation of larger and/or more efficient equipment, and NASTECH shall implement any plan mutually agreed upon by the parties. In the event a LONG RANGE PLAN indicates that MERCK's requirements for UNITS will require at least [***] (the "CAPACITY EXPANSION TRIGGER"), NASTECH shall take the necessary actions to acquire a new pipeline with an intrastate North Dakota origin point which connects facility for the MANUFACTURE of PRODUCT, including, without limitation, acquiring, constructing and/or renovating the facility, purchasing, installing and validating MANUFACTURING equipment, and ensure that the new facility is in a qualified and validated state appropriate for inclusion as a MANUFACTURING site for PRODUCT as required by the applicable REGULATORY AUTHORITY (the "CAPACITY EXPANSION"), subject to the Pipeline System, the return to service of any pipeline with an intrastate North Dakota origin which connects to the Pipeline System inactive on the Commencement Date or the expansion or enhancement of the Available Capacity on any currently existing Segment provisions set forth below: (any of the foregoing, a “Capacity Expansion”), then: (Ai) THPP shall provide written notice to TRMC MERCK will notify NASTECH at least 180 days [***] months prior to the projected date of completion and first usable service for such Capacity Expansion anticipated CAPACITY EXPANSION TRIGGER (“Capacity Expansion Completion Date”), describing in reasonable detail the proposed Capacity Expansion and the projected timetable for such Capacity Expansion, including the projected Capacity Expansion Completion Date; "EXPANSION NOTICE") based on its LONG RANGE FORECASTS. (Bii) TRMC shall have the option, exercisable by written notice to THPP within 60 days after TRMC’s Upon receipt of a Capacity Expansion Noticethe EXPANSION NOTICE, NASTECH shall, in consultation with MERCK, develop plans and schedules for the CAPACITY EXPANSION, at its own costs and expense (the "EXPANSION PLAN"). NASTECH shall submit the EXPANSION PLAN to reserve up to 70% MERCK for review and approval within [***] months after its receipt of such Capacity Expansion; and the EXPANSION NOTICE; (Ciii) in the event that TRMC so elects to reserve a portion of such Capacity Expansion, then (1) THPP MERCK shall provide TRMC NASTECH with such periodic updates and information with respect to the Capacity Expansion as TRMC shall reasonably request and (2) on the actual Capacity Expansion Completion Date, the Minimum Throughput Commitment and Reserved Capacity for the affected Segments shall be increased by the number of bpd of the Capacity Expansion TRMC has elected to reserve. For any Capacity Expansion requiring the filing of any new tariff with the NDPSC, the provisions of Section 5(e)(ii) shall apply to the determination of the Committed Tariff Rate applicable to TRMC’s reserved portion of such Capacity Expansion. The proration provisions of the Rules Tariff shall apply so as to provide TRMC with priority for the adjusted Reserved Capacity as a shipper under a Committed Tariff, and TRMC shall be certain financing [***] subject to proration as a shipper under an Uncommitted Tariff with respect to any portion of a Capacity Expansion not reserved by TRMC pursuant to this Section 2(b)(ii). Notwithstanding the foregoing, consistent and documented in accordance with the terms of financing stated in Section 2(a)(ii3.7 of the LICENSE AGREEMENT. NASTECH shall use [***], as contemplated and provided for in the plans developed pursuant to Clause (ii) above, and shall complete [***] in accordance with the timeline set forth in the EXPANSION PLAN. [*CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK [***], HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] (iv) Notwithstanding anything to the contrary herein, NASTECH agrees that MERCK shall not be obligated to provide the EXPANSION LOAN to NASTECH prior to [***] unless otherwise expressly agreed in writing to by TRMCMERCK. (b) Before [***], no Capacity Expansion NASTECH shall (Y) reduce or restrict not use the right expanded capacity to manufacture [***]. After [***], NASTECH shall continue to reserve sufficient capacity for the MANUFACTURE of PRODUCT, and ability of TRMC to ship at least the Minimum Throughput Commitment in the aggregate across all Segments from North Dakota origin points nominated by TRMC shall give [***] to the Pipeline System hub MANUFACTURE of PRODUCT at ▇▇▇▇ Center for further delivery to the Mandan Refinery or (Z) reduce the Available Capacity on the ▇▇▇▇ Center-to-Mandan Segment below 70,000 bpd, or TRMC’s Reserved Capacity on such Segment. Nothing contained herein shall require THPP to divulge any information concerning any other shipper that is confidential shipper information or otherwise Confidential Information of THPP or any third party. The provisions of Section 17 shall apply to all such Confidential Informationtimes.