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~.' ',:" .':-" '} ~.; , pro rata share of the Excess Capacity, Allottee shall have the perpetual. exclusive right to use a sufficient amount of additional capacity in the Carter Lake Outlet Works Modification to utilize said Excess Capacity. Allottee's perpetual. exclusive right to use Excess Capacity hereunder shall be at no increased cost and shall be subject to Allottee's full compliance with all the terms. conditions and obligations hereinafter set forth. Allottee shall have the right. at its written request, to have the Excess Capacity allocated in one (1) or more additional Allotment CoIltracts. e. In the event the Pipeline has E:xcess Capacity as described in paragraph 2.d. above. PartiCipants which only participate in the Carter Lake Outlet Works Modification shall be allotted a.dditional capacity in the Carter Lake Outlet Works Modification as follows: The additional capacity allotted to a Participant which only partiCipates in the Carter Lake Outlet Works Modification will equal the total Excess Capacity allotted to Participants in the Pipeline downstream of the Carter Lake Outlet Works. as determined pursuant to paragraph 2.d. above. multiplied by the total costs paid by that PartiCipant for the Carter Lake Outlet Works Modification divided by the total costs for the Carter Lake Outlet Works Modifications paid by ParticiplUlts downstream of the Carter Lake Outlet Works Modification. f. The allocation of capacity puniuant to this Contract constitutes a vested property right for which the AJlottee has paid fair and adequate consideration. Said allocation is not in any wflY executory in nature and it is the parties' intent and the economic substance of this transaction that upon the payment of AIIottee's Construction Costs. the Allottee shall have totally performed all obligations requisite to the allocation of capacity by the SWSI' Enterprise. It is the parties' intent and belief that the prepaid vested right to capacity in the Pipeline is neither an executor)' contract nor an unexpired le::tSe and the parties Intend that the Allottee's right to capacity is not a species of property that is subject to the assumption - rejection provisions of 11 V.S.C. ~ 365 in the case of an eventual bankruptcy by the SWSP Enterprise, the District or any of its successors or assigns. g. It is possible in the future that the capacity of the Pipeline may be increased by the application of new technologies. which capacity would be above that originally constructed and allocated on Schedule B. All ex!stiIlg Participants at the time of expansion shall have a right of first refusal to participate in the construction of the increased capacity. It is the intention of SWSP Enterprise and the Allottee that all future participants in the project to lncrease capacity of the Pipeline shall pay for their share of the cost of the Pipeline adjusted through the date of the calculation as set forth below. Therefore. the cost of the . construction of the increased capacity shall be added to the original cost for construction of the Pipeline. including. General Pipeline Costs. Individual Segment Specific Costs and Non-Segment Specific Costs. plus 9 percent (9%) iIlterest, from the date the funds were expended by the Initial Participants through the date of completion of construction of the increased capacity. The total costs for each Segment as such Segments are defined on Schedule B. shall be allocated between and among the Participants in the original Pipeline and the partiCipants in the increased capacity project. Participants in the increased capaCity project shall make re1!llbursement to each of the Original Pipeline l'articipants of the amounts necessary to adjust the contributions of the original Pipeline Pan;cipants and the increased capacity PartiCipants based upon the new allocation by Segment so that all participants will have paid the same amount per unit of capacity per Segment. 4,