Common use of Set Off Right Clause in Contracts

Set Off Right. In the event that (i) a claim which is subject to indemnity by ThrillRides and/or Kitchen shall have been asserted against an FXRE Indemnified Party in an action filed in any legal or quasi-legal proceeding by a third Person (a “Third-Party Claim”); (ii) FXRE shall have provided written notice of such claim to ThrillRides, (iii) the extent (including, applicable deductibles) to which such Third-Party Claim is not covered under any insurance policy obtained or which Licensee was required to obtain under Section 10.a. of this Agreement and which insurance was available but which insurance Licensee failed to obtain, unless, if covered, all applicable insurance providers have denied coverage for such Third-Party Claim; (iv) such Third-Party Claim was of a 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 the Parent Company; (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 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, Licensee shall have the right to set-off any Indemnified Costs actually incurred by any FXRE Indemnified Party, against fifty percent (50%) of any amounts payable to ThrillRides 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, FXRE shall give ThrillRides written notice of such costs and expenses, together with commercially reasonable documentation thereof. In addition to the right of set-off set forth above, so long as FXRE gives ThrillRides prior written notice of FXRE’s intention to do so and a reasonable estimate of the amount (subject to change from time to time) to be deposited in the “Reserve Account” (as defined below), FXRE 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 ThrillRides and FXRE) and to deposit into such Reserve Account up to fifty percent (50%) of the amounts otherwise payable to ThrillRides 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 FXRE shall have determined in good faith to constitute a reasonable reserve against potential losses, taking into account the amount claimed against any FXRE 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 ThrillRides 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 FXRE Indemnified Party shall have any right to settle any such Third-Party Claim without waiving any claim of indemnity against ThrillRides without the prior written consent of ThrillRides, which consent shall not be unreasonably withheld, delayed or conditioned. In the event FXRE validly exercises the right of set-off under this Section 7.4, ThrillRides 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 7.4 to the Third Party Claim resolved by arbitration pursuant to the provisions of Section 10.2 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 7 (inclusive) and the parties’ indemnification obligations hereunder shall survive termination of this Agreement for any reason whatsoever.

Set Off Right. In Notwithstanding any provision of this Agreement to the event 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 (iis 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) a claim which is 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 indemnity by ThrillRides and/or Kitchen shall have been asserted against an FXRE Indemnified Party in an action filed in any legal or quasi-legal proceeding by a third Person (a “Third-Party Claim”); (ii) FXRE shall have provided written Parent having delivered notice of such claim to ThrillRidesthe 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 (iiia) the extent (includingprime rate as published in the Wall Street Journal, applicable deductibles) to which such Third-Party Claim is not covered under any insurance policy obtained or which Licensee was required to obtain under Section 10.a. of this Agreement and which insurance was available but which insurance Licensee failed to obtain, unless, if covered, all applicable insurance providers have denied coverage for such Third-Party Claim; (iv) such Third-Party Claim was of a nature or for an amount which, if decided adversely to the FXRE Indemnified Party or Parties, would have a material adverse Eastern Edition in effect on the financial condition or business of the Parent Company; (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 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, Licensee shall have the right to set-off any Indemnified Costs actually incurred by any FXRE Indemnified Party, against fifty percent (50%) of any amounts payable to ThrillRides 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, FXRE shall give ThrillRides written notice of such costs and expenses, together with commercially reasonable documentation thereof. In addition to the right of set-off set forth above, so long as FXRE gives ThrillRides prior written notice of FXRE’s intention to do so and a reasonable estimate of the amount (subject to change from time to timetime during such period plus (b) to be deposited in the “Reserve Account” (as defined below), FXRE 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 ThrillRides and FXRE) and to deposit into such Reserve Account up to fifty one percent (501%) of the amounts otherwise payable to ThrillRides 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 FXRE shall have determined in good faith to constitute a reasonable reserve against potential losses, taking into account the amount claimed against any FXRE 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 ThrillRides 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 FXRE Indemnified Party shall have any right to settle any such Third-Party Claim without waiving any claim of indemnity against ThrillRides without the prior written consent of ThrillRides, which consent shall not be unreasonably withheld, delayed or conditioned. In the event FXRE validly exercises the right of set-off under this Section 7.4, ThrillRides 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 7.4 to the Third Party Claim resolved by arbitration pursuant to the provisions of Section 10.2 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 7 (inclusive) and the parties’ indemnification obligations hereunder shall survive termination of this Agreement for any reason whatsoever.

Set Off Right. In Notwithstanding any provision of this Agreement to the event that 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) a claim which is subject the Escrow Agent on behalf of the Company Shareholders, the other Persons set forth on Schedule A hereto or KLO Shareholders to indemnity the Company or Parent (or any of their Affiliates) hereunder, including indemnification payments to be paid by ThrillRides and/or Kitchen shall have been asserted against an FXRE Indemnified Party the Company Indemnifying Parties as set forth in an action filed in any legal Article XII hereof, or quasi-legal proceeding by a third Person (a “Third-Party Claim”); (ii) FXRE shall have provided written notice of such claim any Company Shareholder or KLO Shareholder pursuant to ThrillRides, its respective Release Agreement against any (iiiA) the extent (including, applicable deductibles) to which such Third-Party Claim is not covered under any insurance policy obtained or which Licensee was required to obtain under Section 10.a. of this Agreement and which insurance was available but which insurance Licensee failed to obtain, unless, if covered, all applicable insurance providers have denied coverage for such Third-Party Claim; (iv) such Third-Party Claim was of a 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 the Parent Company; (v) such claim is Contingent Purchase Price Payment required to be and has been reported paid by Parent to the Securities and Exchange Commission Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders pursuant to this Agreement, (B) payments owed to X. Xxxxxx pursuant to Article V hereof or (C) indemnification payments required to be paid by the Parent Company, then, but only if all the foregoing conditions precedent have been satisfied, and if FXRE shall have provided Indemnifying Parties pursuant to ThrillRides such documentation as may be commercially reasonable to evidence the satisfaction of all of said conditions precedent, Licensee shall have the right to set-off any Indemnified Costs actually incurred by any FXRE Indemnified Party, against fifty percent (50%) of any amounts payable to ThrillRides hereunder or under any other agreement between FXRE and either or both of ThrillRides or KitchenArticle XII hereof; provided, however, that prior any set-off pursuant to setting 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 such amountsamounts required to be paid by Parent to the Company Shareholders, FXRE the other Persons set forth on Schedule A hereto or KLO Shareholders pursuant to this Agreement, it shall give ThrillRides the Seller Representative written notice of such costs election (the “Set-Off Notice”), which Set-Off Notice shall include the amount to be set off and expensesa 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”), together with commercially and in the event that the Seller Representative has any objections or challenges to the exercise of the set-off right of Parent, 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 documentation thereofdetail the nature of any asserted objections or challenges. In addition 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 to the Company 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’ or 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 set forth aboveby Parent in good faith, so long as FXRE gives ThrillRides prior written notice of FXRE’s intention to do so and a reasonable estimate of the amount (subject to change from time to time) whether or not finally determined to be deposited in the “Reserve Account” (as defined below)justified, FXRE 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 ThrillRides and FXRE) and to deposit into such Reserve Account up to fifty percent (50%) of the amounts otherwise payable to ThrillRides 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 FXRE shall have determined in good faith to will not constitute a reasonable reserve against potential lossesbreach under this Agreement; provided, taking into account however, that if the amount claimed against any FXRE Indemnified Party in the subject claim. At exercise of 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 by Parent is finally determined to be first applied against the Reserve Escrow (which shall then unjustified or incorrectly set-off, any amounts required to be automatically released), and then may also be used with respect to any of the amounts which are or which become payable to ThrillRides under this Agreement, paid by Parent to the extent that any final award or settlement exceeds available insurance proceedsCompany Shareholders, plus the Reserve Account. Unless ThrillRides shall have defaulted other Persons set forth on its obligations under Section 5.a. above, no FXRE Indemnified Party shall have any right to settle any such Third-Party Claim without waiving any claim of indemnity against ThrillRides without the prior written consent of ThrillRides, which consent shall not be unreasonably withheld, delayed or conditioned. In the event FXRE validly exercises the right of set-off under this Section 7.4, ThrillRides shall have the right to challenge such right and have any disputes concerning the satisfaction of the conditions precedent Schedule A hereto or the applicability of this Section 7.4 to the Third Party Claim resolved by arbitration KLO Shareholders pursuant to this Agreement shall bear interest at an annual rate of 5% from the provisions date on which such payment was due and payable until the date payment of Section 10.2 below immediately upon demand and without awaiting same is actually received by the final settlement, resolution or adjudication of the Third-Party Claim, but during the pendency of the arbitrationCompany Shareholders, the set-off right shall remain in effect. This Section 7 (inclusive) and other Persons set forth on Schedule A hereto or the parties’ indemnification obligations hereunder shall survive termination of this Agreement for any reason whatsoeverKLO Shareholders, as the case may be.

Set Off Right. In the event that (i) a claim which is subject to indemnity by ThrillRides and/or Kitchen shall have been asserted against an FXRE a Licensee Indemnified Party in an action filed in any legal or quasi-legal proceeding by a third Person (a “Third-Party Claim”); (ii) FXRE Licensee shall have provided written notice of such claim to ThrillRidesLicensor, (iii) the extent (including, applicable deductibles) to which such Third-Party Claim is not covered under any insurance policy obtained or which Licensee FXRE was required to obtain under Section 10.a. 10.a of this Agreement and which insurance was available but which insurance Licensee FXRE failed to obtain, unless, if covered, all applicable insurance providers have denied coverage for such Third-Party Claim; (iv) such Third-Party Claim was of a 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 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 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, Licensee FXRE shall have the right to set-off any Indemnified Costs actually incurred by any FXRE Licensee Indemnified Party, against fifty percent (50%) of any amounts payable to ThrillRides 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, FXRE Licensee shall give ThrillRides Licensor written notice of such costs and expenses, together with commercially reasonable documentation thereof. In addition to the right of set-off set forth above, so long as FXRE gives ThrillRides Licensee give Licensor prior written notice of FXRELicensee’s intention to do so and a reasonable estimate of the amount (subject to change from time to time) to be deposited in the “Reserve Account” (as defined below), FXRE 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 ThrillRides Licensor and FXRE) Licensee and to deposit into such Reserve Account up to fifty percent (50%) of the amounts otherwise payable to ThrillRides 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 FXRE Licensee shall have determined in good faith to constitute a reasonable reserve against potential losses, taking into account the amount claimed against any FXRE 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 ThrillRides Licensor under this Agreement, Agreement to the extent that any final award or settlement exceeds available insurance proceeds, proceeds plus the Reserve Account. Unless ThrillRides shall have defaulted on its obligations under Section 5.a. above, no FXRE Licensee Indemnified Party shall have any right to settle any such Third-Party Claim without waiving any claim of indemnity against ThrillRides Licensor without the prior written consent of ThrillRidesLicensor, which consent shall not be unreasonably withheld, delayed or conditioned. In the event FXRE validly exercises the right of set-off under this Section 7.45.d., ThrillRides 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 7.4 5.d. to the Third Party Claim resolved by arbitration pursuant to the provisions of Section 10.2 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 7 (inclusive) 5 and the parties’ indemnification obligations hereunder shall survive termination of this Agreement for any reason whatsoever.

Set Off Right. Notwithstanding anything to the contrary in this Agreement, but subject to the limitations on indemnification in Article X and solely following the General Expiration Date, the obligation of Parent to make any Milestone Payment shall be qualified in its entirety by the 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 has an indemnification claim under Article X pending at the time such 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 X) reasonably likely to be incurred or suffered, by any Parent Indemnified Party and 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 (i) the aggregate amount set off from a claim which is subject to indemnity by ThrillRides and/or Kitchen shall have been asserted against an FXRE Indemnified Party in an action filed in any legal or quasi-legal proceeding by a third Person (a “Third-Party Claim”); (ii) FXRE shall have provided written notice of such claim to ThrillRides, (iii) the extent (including, applicable deductibles) to which such Third-Party Claim is not covered under any insurance policy obtained or which Licensee was required to obtain under Section 10.a. of this Agreement and which insurance was available but which insurance Licensee failed to obtain, unless, if covered, all applicable insurance providers have denied coverage for such Third-Party Claim; (iv) such Third-Party Claim was of a nature or for an amount which, if decided adversely Milestone Payment made to the FXRE Indemnified Party or Parties, would have a material adverse effect on the financial condition or business of the Parent Company; (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 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, Licensee shall have the right to set-off any Indemnified Costs actually incurred by any FXRE Indemnified Party, against fifty percent (50%) of any amounts payable to ThrillRides 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, FXRE shall give ThrillRides written notice of such costs and expenses, together with commercially reasonable documentation thereof. In addition to the right of set-off set forth above, so long as FXRE gives ThrillRides prior written notice of FXRE’s intention to do so and a reasonable estimate of the amount (subject to change from time to time) to be deposited in the “Reserve Account” (as defined below), FXRE shall have the right to establish an escrow account (the “Reserve Account”) with a third party escrow agent (the “Escrow Agent”) and Equityholders 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 ThrillRides and FXRE) and to deposit into such Reserve Account up to fifty percent (50%) of the amounts otherwise payable to ThrillRides 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 FXRE shall have determined in good faith to constitute a reasonable reserve against potential losses, taking into account the amount claimed against any FXRE 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 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 such indemnification claim in accordance with Article X, Parent shall, or shall cause the amounts which are or which become payable to ThrillRides under this AgreementSurviving Corporation to, within ten (10) days after such final determination, pay the amount of such excess, without interest, to the extent that any final award Payment Agent for payment to the Equityholders in cash in accordance with Section 2.08 in the respective amounts they would have been entitled to receive had such amount not been retained or settlement exceeds available insurance proceeds, plus the Reserve Account. Unless ThrillRides shall have defaulted on its obligations under Section 5.a. above, no FXRE Indemnified Party shall have any right to settle any such Third-Party Claim without waiving any claim of indemnity against ThrillRides without the prior written consent of ThrillRides, which consent shall not be unreasonably withheld, delayed or conditioned. In the event FXRE validly exercises the right of set-off under this Section 7.4, ThrillRides shall have the right by Parent (it being understood that any payment to challenge such right and have any disputes concerning the satisfaction a Company Optionholder who is a current or former employee of the conditions precedent or Company shall be made through the applicability of this Section 7.4 to the Third Party Claim resolved by arbitration pursuant to the provisions of Section 10.2 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 7 (inclusive) and the parties’ indemnification obligations hereunder shall survive termination of this Agreement for any reason whatsoeverSurviving Corporation’s payroll).

Set Off Right. In Subject to the event that order of priority of the Buyer Indemnitees’ sources of recovery set forth in clauses (i) a claim which is subject to indemnity by ThrillRides and/or Kitchen shall have been asserted against an FXRE Indemnified Party in an action filed in any legal or quasi-legal proceeding by a third Person (a “Third-Party Claim”); and (ii) FXRE shall have provided written notice of such claim to ThrillRidesSection 8.07(b), (iii) the extent (including, applicable deductibles) to which such Third-Party Claim is not covered under any insurance policy obtained or which Licensee was required to obtain under Section 10.a. of this Agreement and which insurance was available but which insurance Licensee failed to obtain, unless, if covered, all applicable insurance providers have denied coverage for such Third-Party Claim; (iv) such Third-Party Claim was of a 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 the Parent Company; (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 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, Licensee Buyer shall have the right to withhold and set-off (“Set-off Right”) against any Indemnified Costs actually incurred Purchase Price Equity otherwise required to be issued by Buyer pursuant to Section 2.02(b), the amount of (“Set-off Amounts”): (i) any FXRE Indemnified PartyFinal Deficiency owed to Buyer that has not been paid to Buyer from the Escrow Fund or from Seller Members, against fifty percent and (50%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 amounts payable exercise of Buyer’s Set-off Rights with respect to ThrillRides hereunder or under any other agreement between FXRE and either or both of ThrillRides or Kitchen; provided, however, that a Set-off Matter which is finally determined prior to setting off the Buyer Share Issuance Date, any such amounts, FXRE shall give ThrillRides written notice of such costs and expenses, together with commercially reasonable documentation thereof. In addition to the right of Set-Off Amounts in connection therewith may be set-off set forth aboveby Buyer, so long as FXRE gives ThrillRides prior written notice of FXRE’s intention to do so and a reasonable estimate of on the amount (subject to change from time to time) Buyer Share Issuance Date, against any Purchase Price Equity otherwise required to be deposited in the “Reserve Account” (as defined belowissued by Buyer pursuant to Section 2.02(b), FXRE 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 Set-off Matter for which Buyer intends to exercise its Set-off Right pertaining to a Set-off Amount that has not been finally determined prior to the Buyer Share Issuance Date, the Buyer shall have the right to establish an escrow account 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 finally determined (the “Reserve AccountSet-off Share Amount”) with ). Upon final resolution of such Set-off Matter, the dollar amount for which the Buyer Indemnitees in the case of a third party escrow agent (Set-off Matter set forth in Section 2.02(c)(ii), and/or Buyer in the “Escrow Agent”) and pursuant to an escrow agreement (the “Escrow Agreement”) (with the Escrow Agent and with the terms and conditions case of the Escrow Agreement a Set-off Matter set forth in Section 2.02(c)(i), have been finally determined to be mutually agreed upon and reasonably acceptable entitled to both ThrillRides and FXRE) and to deposit into such Reserve Account up to fifty percent indemnification (50%) and/or payment in the case of the amounts otherwise payable to ThrillRides hereunder, with such fifty percent (50%) being reduced by any amounts seta Set-off for costs incurred as Matter set forth above. The amount to be deposited into the Reserve Account shall be such amount as FXRE shall have determined in good faith to constitute a reasonable reserve against potential losses, taking into account the amount claimed against any FXRE 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 releasedSection 2.02(c)(i), and then may also be used ) with respect to any of the amounts which are or which become payable to ThrillRides 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 FXRE Indemnified Party shall have any right to settle any such Third-Party Claim without waiving any claim of indemnity against ThrillRides without the prior written consent of ThrillRides, which consent shall not be unreasonably withheld, delayed or conditioned. In the event FXRE validly exercises the right of setSet-off under this Section 7.4Matter shall be deemed the “Final Set-off Amount” for such Set-off Matter, ThrillRides and thereafter (x) each Seller Member shall have the right to challenge satisfy in 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 portion of such Final Set-off Amount not timely satisfied in cash pursuant to Section 2.02(c)(x) (the “Unsatisfied Set-off Amount”), the Buyer shall have the right to satisfy the Seller Member’s obligation to indemnify the Buyer Indemnitees (and/or pay the Buyer in the case of a Set-off Matter set forth in Section 2.02(c)(i)) with respect to 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 value of the Unsatisfied Set-off Amount, and have any disputes concerning (z) the remaining amount, if any, of the Set-off Share Amount after satisfaction of the conditions precedent or the applicability of this Final Set-off Amount pursuant to Section 7.4 2.02(c)(x) and Section 2.02(c)(y), shall be issued to the Third Party Claim resolved by arbitration Seller Members pursuant to Section 2.02(b) on the provisions of Section 10.2 below immediately upon demand and without awaiting the final settlement, resolution or adjudication calendar day that is 20 Business Days after determination of the ThirdFinal Set-Party Claim, but during the pendency of the arbitration, the set-off right shall remain in effect. This Section 7 (inclusive) and the parties’ indemnification obligations hereunder shall survive termination of this Agreement for any reason whatsoeverOff Amount.