Potential Valuation Adjustment Clause Samples

Potential Valuation Adjustment. If there are material reductions in the scope of the Refurbishment Plan, the Members will meet and discuss in good faith this provision. To the extent that the cost to refurbish the Coke Batteries is less than $160,000,000, the Company shall distribute to the Members the amounts by which the cost to refurbish the Coke Batteries is less than $160,000,000 based on the Member’s proportional aggregate committed capital contributions to the Company (measured at face value for cash and financial book value for property other than cash, as further described in Schedule 3.3). The amount distributed to a Party pursuant to this Section 3.3 shall be less any amounts that such Party has failed to contribute to the Company in accordance with the terms of this Agreement. Such distributions shall have no effect on WPSC’s or SCL’s Membership Interest other than reductions in the Capital Accounts in the amount of such distributions. Any disputes between WPSC and SCL relating to whether the cost to refurbish the Coke Batteries is less than $160,000,000 shall not be subject to the dispute resolution provisions contained in Article XIII, but shall be resolved promptly by an independent engineering firm mutually agreeable and reasonably acceptable to WPSC and SCL. The independent engineering firm shall have substantial experience in repairing and refurbishing coke plant facilities. All fees and expenses for the independent engineering firm shall be paid by the non-prevailing Member or, if each Member prevails in some or all of such Member’s claims, the costs of the independent engineering firm shall be split equally between the Members. To the extent that the Members are unable to agree on an independent engineering firm, such firm shall be appointed by the arbitrators pursuant to Section 13.5 of this Agreement.