Common use of Set Off Right Clause in Contracts

Set Off Right. Notwithstanding any provision of this Agreement to the contrary, the parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent shall have the right, but not the obligation, from time to time to set off any indemnification payments alleged by Parent to be owed by the Equityholders to the Parent Indemnified Parties at such time pursuant to Article IX against any Milestone Payment that is owed and has not yet been paid; provided that the aggregate amount that Parent may set off as of a given time for indemnification payments owed by the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) in respect of breaches of the Specified IP Representations and other non-Fundamental Representations shall not exceed the Specified Liability Limit as of such time; provided, further that for the avoidance of doubt, Parent’s right to set off indemnification payments owed by the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) shall in each case be subject to Parent having delivered notice of such claim to the Equityholders’ Representative in accordance with the applicable provisions of Article IX within the applicable survival period specified in Section 9.1. If it is finally resolved through negotiation or final, non-appealable decision of a court of competent jurisdiction that all or a portion of any amount set off by Parent was not entitled to be set off by Parent, then Parent shall promptly pay the amount Parent was not entitled to set off to the Equityholders’ Representative or its designated agent plus interest accruing from and including the date such amount was withheld from the applicable Milestone Payment but excluding the date of payment at a rate per annum equal to (a) the prime rate as published in the Wall Street Journal, Eastern Edition in effect from time to time during such period plus (b) one percent (1%).

Set Off Right. Notwithstanding any provision of this Agreement Subject to the contrarySection 9.05(a), the parties Parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent and its Affiliates shall have the right, but not the obligation, from time to time to set off up to seventy five percent (75%) of the Sales Earnout, if payable pursuant to Section 2.08, against any indemnification payments alleged by Parent to be amounts owed at such time by the Equityholders to the Company, Parent, or the Surviving Corporation (or any of their Affiliates) hereunder, including amounts payable in respect of one or more claims for indemnification by any Parent Indemnified Parties at such time Party pursuant to Article IX against any Milestone Payment that is owed and has not yet been paidhereof; provided that the aggregate amount that claim for indemnification is asserted prior to the required payment of the Sales Earnout pursuant to Section 2.08(a). If Parent may elects to exercise its right of set off as of a given time for indemnification payments owed by the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) in respect of breaches of the Specified IP Representations and other non-Fundamental Representations hereunder, it shall not exceed the Specified Liability Limit as of such time; provided, further that for the avoidance of doubt, Parent’s right to set off indemnification payments owed by the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) shall in each case be subject to Parent having delivered notice of such claim to give the Equityholders’ Representative written notice of such election (the “Set Off Notice”), which Set Off Notice shall include the amount(s) to be set off from the Sales Earnout and a reasonable description of the circumstances giving rise to Parent’s entitlement to such set off. The Equityholders’ Representative shall have thirty (30) calendar days after receipt of such Set Off Notice to review such Set Off Notice and, during such thirty (30)-day period, Equityholders’ Representative and Parent shall negotiate in good faith to resolve any discrepancies in the set off amount proposed by Parent. If the Equityholders’ Representative and Parent are unable to so agree on the set off amount proposed by Parent during such thirty (30)-day period, the Parent and Equityholders’ Representative shall resolve such dispute in accordance with the applicable provisions of Article IX within the applicable survival period specified procedure described in Section 9.112.11. If it is finally resolved through negotiation or finalNotwithstanding anything to the contrary in this Agreement, non-appealable decision of a court of competent jurisdiction that all or a portion of any Parent shall be entitled to withhold and retain the amount set off by Parent was not entitled to be set off by Parent, then Parent shall promptly pay described in the Set Off Notice until any pending disputes as to the amount Parent was not entitled to be set off to are resolved in accordance with the Equityholders’ Representative or its designated agent plus interest accruing from and including the date such amount was withheld from the applicable Milestone Payment but excluding the date of payment at a rate per annum equal to (a) the prime rate as published in the Wall Street Journal, Eastern Edition in effect from time to time during such period plus (b) one percent (1%)preceding sentences.

Set Off Right. Notwithstanding any provision of this Agreement to the contrary, the parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent shall have the right, but not the obligation, from time to time to set off any amounts owed at such time by (i) the Escrow Agent on behalf of the Company Shareholders, the other Persons set forth on Schedule A hereto or KLO Shareholders to the Company or Parent (or any of their Affiliates) hereunder, including indemnification payments alleged to be paid by the Company Indemnifying Parties as set forth in Article XII hereof, or (ii) any Company Shareholder or KLO Shareholder pursuant to its respective Release Agreement against any (A) Contingent Purchase Price Payment required to be paid by Parent to be the Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders pursuant to this Agreement, (B) payments owed by the Equityholders to the Parent Indemnified Parties at such time X. Xxxxxx pursuant to Article IX against any Milestone Payment that is owed and has not yet been paid; provided that the aggregate amount that Parent may set off as of a given time for V hereof or (C) indemnification payments owed required to be paid by the Equityholders to the Parent Indemnified Indemnifying Parties pursuant to Sections 9.2(a) and 9.2(b) in respect of breaches of the Specified IP Representations and other non-Fundamental Representations shall not exceed the Specified Liability Limit as of such timeArticle XII hereof; provided, further however, that for the avoidance of doubt, Parent’s right any set-off pursuant to set off indemnification clause (ii) with respect to a Company Shareholder or KLO Shareholder shall be applied only against payments owed to such Company Shareholder or KLO Shareholder and no other Company Shareholder or KLO Shareholder. If Parent elects to exercise its set-off rights hereunder against any amounts required to be paid by the Equityholders Parent to the Parent Indemnified Parties Company Shareholders, the other Persons set forth on Schedule A hereto or KLO Shareholders pursuant to Sections 9.2(a) and 9.2(b) this Agreement, it shall in each case be subject to Parent having delivered give the Seller Representative written notice of such claim to election (the Equityholders’ Representative in accordance with “Set-Off Notice”), which Set-Off Notice shall include the applicable provisions of Article IX within the applicable survival period specified in Section 9.1. If it is finally resolved through negotiation or final, non-appealable decision of a court of competent jurisdiction that all or a portion of any amount set off by Parent was not entitled to be set off by and a reasonable description of the circumstances giving rise to Parent’s entitlement to such set-off. The Seller Representative shall have thirty (30) days after receipt of such Set-Off Notice to review such Set-Off Notice (the “Set-Off Review Period”), and in the event that the Seller Representative has any objections or challenges to the exercise of the set-off right of Parent, then the Seller Representative shall submit a single written notice of set-off dispute (“Notice of Set-Off Dispute”) to Parent during such Set-Off Review Period, specifying in reasonable detail the nature of any asserted objections or challenges. In the event of any such dispute, the Seller Representative and Parent shall negotiate in good faith to resolve such dispute for thirty (30) days after receipt by Parent of the Notice of Set-Off Dispute. If the Seller Representative and Parent are unable to resolve such dispute within such 30-day period, the amount payable by Parent to the Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders shall automatically, pending a final determination, be reduced by the amount set forth in the Set-Off Notice. In the event that there is a final determination that the Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders did not owe the Company or Parent (or any of their Affiliates) the amount that has been set off, Parent shall promptly pay the amount Parent was not entitled to set off to the EquityholdersCompany Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders, as the case may be, all such amounts that are so determined to have been incorrectly set off. For purposes of this Section 3.5, a determination shall be final if any and all appeals therefrom shall have been resolved or if thirty (30) days shall have passed from the rendering of such determination (or of any determination of appeal therefrom) and no party shall have commenced any appeal therefrom. In the case of any such set-off by Parent pursuant to this Section 3.5, the Company Shareholders’ Representative or its designated agent plus the KLO Shareholders’ obligation to make such payment (or any portion thereof) shall be deemed satisfied and discharged to the extent of such set-off. The exercise of such right of set-off by Parent in good faith, whether or not finally determined to be justified, will not constitute a breach under this Agreement; provided, however, that if the exercise of such right of set-off by Parent is finally determined to be unjustified or incorrectly set-off, any amounts required to be paid by Parent to the Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders pursuant to this Agreement shall bear interest accruing at an annual rate of 5% from and including the date on which such amount payment was withheld from the applicable Milestone Payment but excluding due and payable until the date payment of payment at a rate per annum equal to (a) same is actually received by the prime rate Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders, as published in the Wall Street Journal, Eastern Edition in effect from time to time during such period plus (b) one percent (1%)case may be.

Set Off Right. Notwithstanding any provision of this Agreement anything to the contrarycontrary in this Agreement, but subject to the limitations on indemnification in Article X and solely following the General Expiration Date, the parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent shall have the right, but not the obligation, from time to time to set off any indemnification payments alleged by obligation of Parent to make any Milestone Payment shall be owed qualified in its entirety by the Equityholders right of Parent to reduce, by up to [***], the amount of any such [***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. Milestone Payment (a “Contingent Merger Consideration Set-Off), to the extent Parent Indemnified Parties has an indemnification claim under Article X pending at the time such time Milestone Payment becomes due and payable under Section 2.08, by the amount of any Damages incurred or suffered, or (until the amount is resolved pursuant to Article IX against X) reasonably likely to be incurred or suffered, by any Milestone Payment that is owed Parent Indemnified Party and has not yet been paid; provided subject only to the express limitations on indemnification set forth in Article X, and any other amounts shall be paid to the Equityholders in accordance with Section 2.08(a). In the event that the aggregate amount that Parent may set off as of from a given time for indemnification payments owed by Milestone Payment made to the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) this Section 2.09 with respect to any indemnification claim pursuant to Article X is greater than the aggregate amount of Damages finally determined to be payable in respect of breaches of the Specified IP Representations and other non-Fundamental Representations shall not exceed the Specified Liability Limit as of such time; provided, further that for the avoidance of doubt, Parent’s right to set off indemnification payments owed by the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) shall in each case be subject to Parent having delivered notice of such claim to the Equityholders’ Representative in accordance with Article X, Parent shall, or shall cause the applicable provisions Surviving Corporation to, within ten (10) days after such final determination, pay the amount of Article IX within such excess, without interest, to the applicable survival period specified Payment Agent for payment to the Equityholders in cash in accordance with Section 9.1. If it is finally resolved through negotiation 2.08 in the respective amounts they would have been entitled to receive had such amount not been retained or final, nonset-appealable decision of a court of competent jurisdiction that all or a portion of any amount set off by Parent was not entitled (it being understood that any payment to a Company Optionholder who is a current or former employee of the Company shall be set off by Parent, then Parent shall promptly pay made through the amount Parent was not entitled to set off to the Equityholders’ Representative or its designated agent plus interest accruing from and including the date such amount was withheld from the applicable Milestone Payment but excluding the date of payment at a rate per annum equal to (a) the prime rate as published in the Wall Street Journal, Eastern Edition in effect from time to time during such period plus (b) one percent (1%Surviving Corporation’s payroll).

Set Off Right. Notwithstanding any provision of anything in this Agreement Note to the contrarycontrary (including, without limitation, Section 4 hereof), in accordance with Section 8.07 of the Purchase Agreement, the parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent Maker shall have the right, but right to set-off against any unsatisfied principal amount of this Note (whether or not such principal amount is then due and payable) the obligation, from time to time to set off amount of any indemnification payments alleged by Parent to be owed indemnifiable losses suffered or incurred by the Equityholders to the Parent Indemnified Parties at such time pursuant to Article IX against any Milestone Payment that is owed and has not yet been paid; provided that the aggregate amount that Parent may set off as of a given time for indemnification payments owed by the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) in respect of breaches of the Specified IP Representations and other non-Fundamental Representations shall not exceed the Specified Liability Limit as of such time; providedMaker, further that for the avoidance of doubt, Parent’s right to set off indemnification payments owed by the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) shall in each case be subject to Parent having delivered notice of such claim to the Equityholders’ Representative in accordance with the applicable provisions of Article IX within procedures, and subject to the applicable survival period specified limitations, set forth in Section 9.18.07 of the Purchase Agreement. Upon any such set-off, the principal amount of this Note will be reduced by the amount of such set-off and, from and after the date of any such set-off, interest on this Note shall accrue only on the remaining principal amount of this Note, but no set-off of interest shall be made or permitted, and interest shall continue to accrue and be paid on the remaining principal of this Note in accordance with its terms. If it is finally resolved through negotiation or final, non-appealable decision of a court of competent jurisdiction determines, or the parties agree, that all or a portion interest has accrued and been paid on principal of any amount set off by Parent this Note that was subject to valid Set-Off Claim (as defined in the Purchase Agreement) but was not entitled to be set off by Parentset-off, then Parent the Payee shall promptly pay the amount Parent was not entitled to set off to the Equityholders’ Representative or its designated agent plus interest accruing from and including the date return such amount was withheld from of interest to Maker, together with interest on such amount at the applicable Milestone Payment but excluding rate of nine percent (9%) per annum from, and including, the date of payment at a rate per annum to, but not including, the date such interest is returned. If any unsatisfied Set-Off Claim has not been resolved in accordance with the Purchase Agreement when the principal amount of this Note becomes due and payable, then, in accordance with the Purchase Agreement, Maker will deposit with an escrow agent an amount (the “Escrow Amount”) equal to the least of (ai) the prime rate as published in aggregate amount of unsatisfied Set-Off Claims, (ii) the Wall Street Journalremaining principal amount of the Note and (iii) the excess of $5,825,000 over the aggregate amount set off against the principal amount of this Note prior to maturity, Eastern Edition in effect from time and Maker will pay the remaining principal amount of the Note after reduction by the Escrow Amount, if any, to time during such period plus (b) one percent (1%)Payee.

Set Off Right. Notwithstanding any provision of this Agreement Subject to the contraryorder of priority of the Buyer Indemnitees’ sources of recovery set forth in clauses (i) and (ii) of Section 8.07(b), the parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent Buyer shall have the right, but not the obligation, from time right to time to set withhold and set-off (“Set-off Right”) against any indemnification payments alleged by Parent Purchase Price Equity otherwise required to be issued by Buyer pursuant to Section 2.02(b), the amount of (“Set-off Amounts”): (i) any Final Deficiency owed by to Buyer that has not been paid to Buyer from the Equityholders Escrow Fund or from Seller Members, and (ii) any Losses with respect to which any Buyer Indemnitee is entitled to indemnification under Article VIII that have not been satisfied pursuant to Section 8.07(b) (each of the matters described in the foregoing subparagraphs (i) and (ii) hereinafter referred to as a “Set-off Matter”). With respect to any exercise of Buyer’s Set-off Rights with respect to a Set-off Matter which is finally determined prior to the Parent Indemnified Parties at such time Buyer Share Issuance Date, any Set-Off Amounts in connection therewith may be set-off by Buyer, on the Buyer Share Issuance Date, against any Purchase Price Equity otherwise required to be issued by Buyer pursuant to Article IX against Section 2.02(b), by reducing from the Purchase Price Equity a number of shares of common stock of Buyer to be issued in connection therewith with a value (which shall be determined at the Buyer Issue Price) equivalent to the Set-Off Amount. With respect to any Milestone Payment Set-off Matter for which Buyer intends to exercise its Set-off Right pertaining to a Set-off Amount that is owed has not been finally determined prior to the Buyer Share Issuance Date, the Buyer shall have the right to exercise its Set-off Right (exercisable by delivering written notice of such exercise to the Sellers’ Representative) and to withhold from any Purchase Price Equity otherwise required to be issued by Buyer pursuant to Section 2.02(b), such amount of the Purchase Price Equity with a value (which shall be determined at the Buyer Issue Price) equal to the value of the claim associated with such Set-off Matter which has not yet been paid; provided that finally determined (the aggregate “Set-off Share Amount”). Upon final resolution of such Set-off Matter, the dollar amount that Parent may set off as for which the Buyer Indemnitees in the case of a given time Set-off Matter set forth in Section 2.02(c)(ii), and/or Buyer in the case of a Set-off Matter set forth in Section 2.02(c)(i), have been finally determined to be entitled to indemnification (and/or payment in the case of a Set-off Matter set forth in Section 2.02(c)(i)) with respect to such Set-off Matter shall be deemed the “Final Set-off Amount” for indemnification payments owed by such Set-off Matter, and thereafter (x) each Seller Member shall have the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) in respect of breaches of the Specified IP Representations and other non-Fundamental Representations shall not exceed the Specified Liability Limit as of such time; provided, further that for the avoidance of doubt, Parent’s right to set off indemnification payments owed by the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) shall satisfy in each case be subject to Parent having delivered notice of such claim to the Equityholders’ Representative in accordance with the applicable provisions of Article IX within the applicable survival period specified in Section 9.1. If it is finally resolved through negotiation or final, non-appealable decision of a court of competent jurisdiction that cash all or a portion of the part of such Final Set-off Amount for which such Seller Member is responsible (in the case of an indemnification claim for Losses, pursuant to Section 8.07(b)) within 10 days after final resolution of such Set-off Matter, and (y) with respect to any amount set portion of such Final Set-off by Parent was Amount not entitled timely satisfied in cash pursuant to be set Section 2.02(c)(x) (the “Unsatisfied Set-off by ParentAmount”), then Parent the Buyer shall promptly have the right to satisfy the Seller Member’s obligation to indemnify the Buyer Indemnitees (and/or pay the amount Parent was not entitled Buyer in the case of a Set-off Matter set forth in Section 2.02(c)(i)) with respect to set such Final Set-off Amount by setting off against the Set-off Share Amount a number of shares with a value (which shall be determined at the Buyer Issue Price) equal to the Equityholders’ Representative or its designated agent plus interest accruing from value of the Unsatisfied Set-off Amount, and including the date such amount was withheld from the applicable Milestone Payment but excluding the date of payment at a rate per annum equal to (az) the prime rate as published in remaining amount, if any, of the Wall Street JournalSet-off Share Amount after satisfaction of the Final Set-off Amount pursuant to Section 2.02(c)(x) and Section 2.02(c)(y), Eastern Edition in effect from time shall be issued to time during such period plus (bthe Seller Members pursuant to Section 2.02(b) one percent (1%)on the calendar day that is 20 Business Days after determination of the Final Set-Off Amount.

Set Off Right. Notwithstanding any provision of this Agreement In the event that (i) a claim which is subject to the contrary, the parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent indemnity by ThrillRides and/or Kitchen shall have the right, but not the obligation, from time to time to set off been asserted against a Licensee Indemnified Party in an action filed in any indemnification payments alleged legal or quasi-legal proceeding by Parent to be owed by the Equityholders to the Parent Indemnified Parties at such time pursuant to Article IX against any Milestone Payment that is owed and has not yet been paida third Person (a “Third-Party Claim”); (ii) Licensee shall have provided that the aggregate amount that Parent may set off as of a given time for indemnification payments owed by the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) in respect of breaches of the Specified IP Representations and other non-Fundamental Representations shall not exceed the Specified Liability Limit as of such time; provided, further that for the avoidance of doubt, Parent’s right to set off indemnification payments owed by the Equityholders to the Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) shall in each case be subject to Parent having delivered written notice of such claim to Licensor, (iii) the Equityholders’ Representative in accordance with the extent (including, applicable provisions deductibles) to which such Third-Party Claim is not covered under any insurance policy obtained or which FXRE was required to obtain under Section 10.a of Article IX within the this Agreement and which insurance was available but which insurance FXRE failed to obtain, unless, if covered, all applicable survival period specified in Section 9.1. If it is finally resolved through negotiation or final, noninsurance providers have denied coverage for such Third-appealable decision Party Claim; (iv) such Third-Party Claim was of a court nature or for an amount which, if decided adversely to the FXRE Indemnified Party or Parties, would have a material adverse effect on the financial condition or business of competent jurisdiction that the Parent Company; and (v) such claim is required to be and has been reported to the Securities and Exchange Commission by the Parent Company, then, but only if all or a portion the foregoing conditions precedent have been satisfied, and if FXRE shall have provided to ThrillRides such documentation as may be commercially reasonable to evidence the satisfaction of all of said conditions precedent, FXRE shall have the right to set-off any Indemnified Costs actually incurred by any Licensee Indemnified Party, against fifty percent (50%) of any amount amounts payable to Kitchen hereunder or under any other agreement between FXRE and either or both of ThrillRides or Kitchen; provided, however, that prior to setting off any such amounts, Licensee shall give Licensor written notice of such costs and expenses, together with commercially reasonable documentation thereof. In addition to the right of set-off set off by Parent was not entitled forth above, so long as Licensee give Licensor prior written notice of Licensee’s intention to be set off by Parent, then Parent shall promptly pay do so and a reasonable estimate of the amount Parent was not entitled (subject to set off to the Equityholders’ Representative or its designated agent plus interest accruing from and including the date such amount was withheld from the applicable Milestone Payment but excluding the date of payment at a rate per annum equal to (a) the prime rate as published in the Wall Street Journal, Eastern Edition in effect change from time to time during time) to be deposited in the “Reserve Account” (as defined below), Licensee shall have the right to establish an escrow account (the “Reserve Account’) with a third party escrow agent (the “Escrow Agent”) and pursuant to an escrow agreement (the “Escrow Agreement”) (with the Escrow Agent and with the terms and conditions of the Escrow Agreement to be mutually agreed upon and reasonably acceptable to both Licensor and Licensee and to deposit into such period plus (b) one Reserve Account up to fifty percent (150%)) of the amounts otherwise payable to Licensor hereunder, with such fifty percent (50%) being reduced by any amounts set-off for costs incurred as set forth above. The amount to be deposited into the Reserve Account shall be such amount as Licensee shall have determined in good faith to constitute a reasonable reserve against potential losses, taking into account the amount claimed against any Licensee Indemnified Party in the subject claim. At such time as the Third-Party Claim has been settled or otherwise conclusively and finally decided and resolved, and after application of any available insurance proceeds, this right of set-off shall be first applied against the Reserve Escrow (which shall then be automatically released) and then may also be used with respect to any of the amounts which are or which become payable to Licensor under this Agreement to the extent that any final award or settlement exceeds available insurance proceeds plus the Reserve Account. Unless ThrillRides shall have defaulted on its obligations under Section 5.a. above, no Licensee Indemnified Party shall have any right to settle any such Third-Party Claim without waiving any claim of indemnity against Licensor without the prior written consent of Licensor, which consent shall not be unreasonably withheld, delayed or conditioned. In the event FXRE validly exercises the right of set-off under this Section 5.d., Kitchen shall have the right to challenge such right and have any disputes concerning the satisfaction of the conditions precedent or the applicability of this Section 5.d. to the Third Party Claim resolved by arbitration pursuant to the provisions of Section 12 below immediately upon demand and without awaiting the final settlement, resolution or adjudication of the Third-Party Claim, but during the pendency of the arbitration, the set-off right shall remain in effect. This Section 5 and the parties’ indemnification obligations hereunder shall survive termination of this Agreement for any reason whatsoever.