Common use of Excess Amount Clause in Contracts

Excess Amount. I. If the Tobacco Product Manufacturer establishes that the amount required to be placed into escrow in a particular Sales Year for the applicable Beneficiary State was, depending on the law of such Beneficiary State, greater than either: (aa) that State’s allocable share of the total payments that the Tobacco Product Manufacturer would have been required to make in that year had it been a Participating Manufacturer under the MSA (as determined pursuant to section IX(i)(2) of the MSA, and before any adjustments or offsets described in Section IX(i)(3) of that Agreement other than the Inflation Adjustment); or (bb) the MSA payments, as determined pursuant to Section IX(i)(1) of that Agreement including after final determination of all adjustments, that the Tobacco Product Manufacturer would have been required to make on account of such Units Sold in the Beneficiary State had it been a Participating Manufacturer under the MSA (in either case the difference being referred to herein as the “Excess Amount”), such Excess Amount shall be released and revert back to the Tobacco Product Manufacturer. This withdrawal is calculated based upon Sales Year, not Deposit Date. II. To the extent established, the Escrow Agent shall pay the Excess Amount to the Tobacco Product Manufacturer upon the joint written instruction of the Tobacco Product Manufacturer and the Attorney General or the Attorney General’s Designee of the applicable Beneficiary State as set forth in Section 6 or upon entry of a final binding, non-appealable order of a court of competent jurisdiction handling such matter after any appeal or any right of appeal has been exhausted. III. The Tobacco Product Manufacturer shall submit in writing to the Attorney General for the applicable Beneficiary State the Tobacco Product Manufacturer’s calculation establishing the Excess Amount. If the applicable Beneficiary State and the Tobacco Product Manufacturer cannot agree on the existence of an Excess Amount or the calculation of the Excess Amount, the dispute shall be resolved in a court of competent jurisdiction located in the applicable Beneficiary State, or if the laws of any Beneficiary State so require, then under the applicable Administrative Procedures Act of that Beneficiary State.