Setoff/Escrow. Notwithstanding anything to the contrary in this Agreement, and without prejudice to any other right or remedy it has or may have, in order to satisfy any indemnification obligations of the Seller Parties under this ARTICLE X, Purchaser may hold back Holdback Amount and set it off against any amounts it owes to the Seller Parties, including the Earnout Amount and/or the Growth Consideration Amount, resulting from any Losses actually incurred by Purchaser under this ARTICLE X (including any reasonable costs associated with Purchaser enforcing its rights hereunder) (but with respect to each of the Seller Members limited to one-third (1/3rd) of any indemnifiable Losses hereunder in recognition that each Seller Member is only a one-third (1/3rd) owner of the Company, unless such indemnifiable Loss is with respect to a breach of a representation, warranty or covenant related solely to such Seller Member, in which case such Seller Member shall be responsible for 100% of such indemnifiable Loss); provided, that if the amount of any indemnification claim by Purchaser exceeds $100,000, then Purchaser shall instead place the Holdback Amount into an interest- bearing escrow account with an independent escrow agent reasonably acceptable to the Seller Parties with such amounts being held in escrow until resolution of such claim (with the prevailing party being entitled to receive the interest accrued on the Holdback Amount). To the extent the amount of Losses incurred by Purchaser exceeds the Holdback Amount or such Losses exceed the Earnout Amount or the Growth Consideration Amount, then the Seller Parties (but with respect to each of the Seller Members limited to one-third (1/3rd) of any indemnifiable Losses hereunder in recognition that each Seller is only a one-third (1/3rd) owner of the Company, unless such indemnifiable Loss is with respect to a breach of a representation, warranty or covenant related solely to such Seller Member, in which case such Seller Member shall be responsible for 100% of such indemnifiable Loss) shall pay the remaining amount to Purchaser within 10 days of notice from Purchaser. Notwithstanding the foregoing, any amounts set off by Purchaser shall be promptly paid to the Seller Parties to the extent it is finally determined (whether by settlement, trial court judgment or arbitral decision) that such amounts are required to be so paid to the Seller Parties in connection with such settlement, judgment or decision. ARTICLE XI MISCELLANEOUS S...
Setoff/Escrow. In addition to any other remedies, any Indemnified Party shall be entitled to set-off any amounts due to it from any Indemnifying Party pursuant to this Article IX against any amount otherwise payable by such Indemnified Party to the Indemnifying Party. Indemnified Buyer Parties shall first seek recovery for any amounts that the Indemnified Buyer Parties are entitled to be paid under this Article IX or otherwise by making a claim under the Escrow Agreement to the extent funds are available from the Escrow Amount to satisfy such amounts; provided that, the Indemnified Buyer Parties shall also be entitled to (but shall not be required to) set-off any amounts due or payable to any of the Indemnified Buyer Parties by MNST pursuant to this Article IX by reducing the principal and accrued interest outstanding under the Seller Note in an amount not to exceed $2,500,000; provided further that the Buyer shall have no obligation to seek recovery pursuant to this Section 9.6 for any obligations of MNST arising under Sections 1.2 and 1.3 hereto.
