Common use of Capacity Rights Clause in Contracts

Capacity Rights. 2.2.1 Subject to the terms and provisions of this Agreement, each calendar year, the Owners shall have the following rights of usage of the Shared Facilities (“Capacity Rights”): a. with respect to the “G-1” Unit, Infineum shall have [*****] of the Available Time for such “G-1” Unit during the calendar year and Shell the remaining [*****]; b. with respect to the “G-2” Unit, Infineum shall have [*****] of the Available Time for such “G-2” Unit during the calendar year and Shell the remaining [*****]; c. with respect to the hydrogen plant, Infineum shall have [*****] of the time such hydrogen plant is available for usage during the calendar year and Shell the remaining [*****]; d. with respect to Shared Facilities other than the “G-1” Unit, the “G-2” Unit and the hydrogen plant, each Owner shall have the right to use such assets provided such use does not limit use by the other Owner; and e. with respect to the warehouse and any other Shared Facilities (other than the “G-1” Unit, the “G-2” Unit and the hydrogen plant) where use by one Owner limits use by the other Owner, the Owners shall share the use of such assets in accordance with their relative ownership interests in such Shared Facilities; that is, [*****] for Infineum and [*****] for Shell. [*****] [Confidential Treatment Requested] Material separately filed with the Securities and Exchange Commission 2.2.2 Owners will share time lost because of scheduled maintenance and inspection shutdowns other than preparation or clean-up, and unscheduled shutdowns exceeding forty-eight (48) hours in any seventy-two (72) hour period, pro rata to their Capacity Rights with respect to the Shared Facility in question. Any unscheduled shutdowns not exceeding forty-eight (48) hours in any seventy-two (72) hour period shall be for the sole account of the Owner whose Capacity Rights are being used at the time of the unscheduled shutdown. 2.2.3 In the event that either Owner desires temporary Capacity Usage of any Shared Facility greater than its Capacity Right in such Shared Facility allows, and the other Owner has Eligible Spare Capacity, then the other Owner shall make such Eligible Spare Capacity available. Eligible Spare Capacity controlled by Infineum shall be deemed to be taken first from the individual interests leased by Infineum from Shell, and only after all such leased undivided interest is exhausted, from the undivided interests owned by Infineum. In exchange for Eligible Spare Capacity the first Owner shall pay the other Owner (i) a prorated share of the Fixed Costs for the Facilities in question (based on the ratio of the spare capacity utilized by the first Owner to the total Capacity Rights of both Owners in the Facilities in question), (ii) a prorated share of the depreciation or amortization deduction (based on the NBV of the other Owner’s interest in the Facilities in question, provided that the payment shall be zero when the NBV is zero), and (iii) a prorated capital charge calculated for any fiscal year based on the NBV of the other Owner’s interest in the Facilities in question, provided that the payment shall be zero when the NBV is zero. In the case of Eligible Spare Capacity taken from Infineum’s leased interests, the depreciation and capital charge elements will not be charged, and a pro-rata portion of the lease payment that Infineum pays in respect of such interests shall be repaid by Shell. For the period from Commencement Date until the end of the calendar year, and for the four (4) successive calendar years thereafter, the rate to be used for calculating the capital charge as described in the previous sentence shall be twelve percent (12%) per annum. For each five (5) year period thereafter, the Owners shall agree on an applicable rate prior to the beginning of such five (5) year period. If and to the extent the other Owner would need the capacity initially made available to the first Owner for its own operations, the other Owner would be under no obligation to continue to make such capacity available to the first Owner under this Article 2.2.3 and such other Owner shall not be liable to the first Owner for any Loss resulting from such discontinuation. 2.2.4 In order to determine whether spare capacity of an Owner is Eligible Spare Capacity or Ineligible Spare Capacity for purposes of Article 2.2.3, such Owner shall be deemed to have first utilized any Capacity Rights it may have at the Commencement Date, any Capacity Rights it may have acquired from the other Owner following the Commencement Date and any Capacity Rights that result from any Capital Improvement to the Shared Facilities that is made following the Commencement Date as to which such Owner has participated in accordance with Article 2.4.2, subject in each case to any reductions of such Capacity Rights that may have occurred, and to have last utilized any Capacity Rights such Owner may have that result from any Capital Improvement to the Shared Facilities that is made following the Commencement Date as to which the other Owner has elected not to participate by not approving such Capital Improvement pursuant to Article 2.4.2. 2.2.5 In the event that either Owner desires, on a permanent basis or for a stated period, Capacity Usage of any Shared Facility greater than its Capacity Right in such Shared Facility allows, and the other Owner has and/or anticipates that it will have in the future or for the stated period, spare capacity with respect to such Shared Facility, the Owners shall negotiate in good faith a purchase by the first Owner on a permanent basis or for a stated temporary period, of all or portion of the other Owner’s Capacity Right (and in case where such purchase is not for a temporary period, the corresponding ownership interest of the other Owner) in such Shared Facility at mutually agreed upon price and terms. Alternatively, or if the Owners cannot reach agreement on such purchase, the Owner desiring to expand capacity may do so by causing a Capital Improvement to be made in accordance with Article 2.4. 2.2.6 This Agreement amends by contract the possessory and use rights of Infineum to the Facilities as granted under the Easement Agreement (With Limited Possessory Rights) dated as of October 1,1998 between SOC and Infineum.

Capacity Rights. 2.2.1 Subject to the terms and provisions of this Agreement, each calendar year, the Owners shall have the following rights of usage of the Shared Facilities (“Capacity Rights”): a. with respect to the “G-1” Unit, Infineum shall have [*****] [Confidential Treatment Required] of the Available Time for such “G-1” Unit during the calendar year and Shell the remaining [*****] [Confidential Treatment Required]; b. with respect to the “G-2” Unit, Infineum shall have [*****] [Confidential Treatment Required] of the Available Time for such “G-2” Unit during the calendar year and Shell the remaining [*****] [Confidential Treatment Required]; c. with respect to the hydrogen plant, Infineum shall have [*****] [Confidential Treatment Required] of the time such hydrogen plant is available for usage during the calendar year and Shell the remaining [*****] [Confidential Treatment Required]; d. with respect to Shared Facilities other than the “G-1” Unit, the “G-2” Unit and the hydrogen plant, each Owner shall have the right to use such assets provided such use does not limit use by the other Owner; and e. with respect to the warehouse and any other Shared Facilities (other than the “G-1” Unit, the “G-2” Unit and the hydrogen plant) where use by one Owner limits use by the other Owner, the Owners shall share the use of such assets in accordance with their relative ownership interests in such Shared Facilities; that is, [*****] [Confidential Treatment Required] for Infineum and [*****] for Shell. [*****] [Confidential Treatment RequestedRequired] Material separately filed with the Securities and Exchange Commissionfor Shell. 2.2.2 Owners will share time lost because of scheduled maintenance and inspection shutdowns other than preparation or clean-up, and unscheduled shutdowns exceeding forty-eight (48) hours in any seventy-two (72) hour period, pro rata to their Capacity Rights with respect to the Shared Facility in question. Any unscheduled shutdowns not exceeding forty-eight (48) hours in any seventy-two (72) hour period shall be for the sole account of the Owner whose Capacity Rights are being used at the time of the unscheduled shutdown. 2.2.3 In the event that either Owner desires temporary Capacity Usage of any Shared Facility greater than its Capacity Right in such Shared Facility allows, and the other Owner has Eligible Spare Capacity, then the other Owner shall make such Eligible Spare Capacity available. Eligible Spare Capacity controlled by Infineum shall be deemed to be taken first from the individual interests leased by Infineum from Shell, and only after all such leased undivided interest is exhausted, from the undivided interests owned by Infineum. In exchange for Eligible Spare Capacity the first Owner shall pay the other Owner (i) a prorated share of the Fixed Costs for the Facilities in question (based on the ratio of the spare capacity utilized by the first Owner to the total Capacity Rights of both Owners in the Facilities in question), (ii) a prorated share of the depreciation or amortization deduction (based on the NBV of the other Owner’s interest in the Facilities in question, provided that the payment shall be zero when the NBV is zero), and (iii) a prorated capital charge calculated for any fiscal year based on the NBV of the other Owner’s interest in the Facilities in question, provided that the payment shall be zero when the NBV is zero. In the case of Eligible Spare Capacity taken from Infineum’s leased interests, the depreciation and capital charge elements will not be charged, and a pro-rata portion of the lease payment that Infineum pays in respect of such interests shall be repaid by Shell. For the period from Commencement Date until the end of the calendar year, and for the four (4) successive calendar years thereafter, the rate to be used for calculating the capital charge as described in the previous sentence shall be twelve percent (12%) per annum. For each five (5) year period thereafter, the Owners shall agree on an applicable rate prior to the beginning of such five (5) year period. If and to the extent the other Owner would need the capacity initially made available to the first Owner for its own operations, the other Owner would be under no obligation to continue to make such capacity available to the first Owner under this Article 2.2.3 and such other Owner shall not be liable to the first Owner for any Loss resulting from such discontinuation. 2.2.4 In order to determine whether spare capacity of an Owner is Eligible Spare Capacity or Ineligible Spare Capacity for purposes of Article 2.2.3, such Owner shall be deemed to have first utilized any Capacity Rights it may have at the Commencement Date, any Capacity Rights it may have acquired from the other Owner following the Commencement Date and any Capacity Rights that result from any Capital Improvement to the Shared Facilities that is made following the Commencement Date as to which such Owner has participated in accordance with Article 2.4.2, subject in each case to any reductions of such Capacity Rights that may have occurred, and to have last utilized any Capacity Rights such Owner may have that result from any Capital Improvement to the Shared Facilities that is made following the Commencement Date as to which the other Owner has elected not to participate by not approving such Capital Improvement pursuant to Article 2.4.2. 2.2.5 In the event that either Owner desires, on a permanent basis or for a stated period, Capacity Usage of any Shared Facility greater than its Capacity Right in such Shared Facility allows, and the other Owner has and/or anticipates that it will have in the future or for the stated period, spare capacity with respect to such Shared Facility, the Owners shall negotiate in good faith a purchase by the first Owner on a permanent basis or for a stated temporary period, of all or portion of the other Owner’s Capacity Right (and in case where such purchase is not for a temporary period, the corresponding ownership interest of the other Owner) in such Shared Facility at mutually agreed upon price and terms. Alternatively, or if the Owners cannot reach agreement on such purchase, the Owner desiring to expand capacity may do so by causing a Capital Improvement to be made in accordance with Article 2.4. 2.2.6 This Agreement amends by contract the possessory and use rights of Infineum to the Facilities as granted under the Easement Agreement (With Limited Possessory Rights) dated as of October 1,1998 between SOC and Infineum.