Common use of Set Off Right Clause in Contracts

Set Off Right. Notwithstanding anything in this Note to the contrary (including, without limitation, Section 4 hereof), in accordance with Section 8.07 of the Purchase Agreement, the Maker shall have the right to set-off against any unsatisfied principal amount of this Note (whether or not such principal amount is then due and payable) the amount of any indemnifiable losses suffered or incurred by the Maker, in accordance with the procedures, and subject to the limitations, set forth in Section 8.07 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 a court of competent jurisdiction determines, or the parties agree, that interest has accrued and been paid on principal of this Note that was subject to valid Set-Off Claim (as defined in the Purchase Agreement) but was not set-off, the Payee shall return such amount of interest to Maker, together with interest on such amount at the rate of nine percent (9%) per annum from, and including, the date of payment 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 (i) the aggregate amount of unsatisfied Set-Off Claims, (ii) the remaining 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, and Maker will pay the remaining principal amount of the Note after reduction by the Escrow Amount, if any, to Payee.

Set Off Right. Notwithstanding anything in this Note Subject to the contrary order of priority of the Buyer Indemnitees’ sources of recovery set forth in clauses (including, without limitation, i) and (ii) of Section 4 hereof8.07(b), in accordance with Section 8.07 of the Purchase Agreement, the Maker Buyer shall have the right to withhold and set-off (“Set-off Right”) against any unsatisfied principal amount of this Note (whether or not such principal amount is then due and payable) Purchase Price Equity otherwise required to be issued by Buyer pursuant to Section 2.02(b), the amount of (“Set-off Amounts”): (i) any indemnifiable losses suffered Final Deficiency owed to Buyer that has not been paid to Buyer from the Escrow Fund or incurred by the Maker, in accordance with the proceduresfrom Seller Members, and subject (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 limitationsBuyer 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 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 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 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 “Set-off Share Amount”). Upon final resolution of such Set-off Matter, the dollar amount for which the Buyer Indemnitees in the case of a Set-off Matter set forth in Section 8.07 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 such Set-off Matter, and thereafter (x) each Seller Member shall have the right to satisfy in cash all or a portion of the Purchase Agreement. Upon any such set-off, the principal amount of this Note will be reduced by the amount part of such setFinal Set-off andAmount for which such Seller Member is responsible (in the case of an indemnification claim for Losses, from and pursuant to Section 8.07(b)) within 10 days after the date final resolution of any such set-off, interest on this Note shall accrue only on the remaining principal amount of this Note, but no setSet-off of interest shall be made or permittedMatter, and interest shall continue (y) with respect to accrue and be paid on the remaining principal any portion of this Note in accordance with its terms. If a court of competent jurisdiction determines, or the parties agree, that interest has accrued and been paid on principal of this Note that was subject to valid such Final Set-Off Claim (as defined off Amount not timely satisfied in the Purchase Agreementcash pursuant to Section 2.02(c)(x) but was not set-off, the Payee shall return such amount of interest to Maker, together with interest on such amount at the rate of nine percent (9%) per annum from, and including, the date of payment 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 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 least value of (i) the aggregate amount of unsatisfied Unsatisfied Set-Off Claimsoff Amount, and (iiz) the remaining 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, and Maker will pay the remaining principal amount of the Note after reduction by the Escrow Amountamount, if any, of the Set-off Share Amount after satisfaction of the Final Set-off Amount pursuant to PayeeSection 2.02(c)(x) and Section 2.02(c)(y), shall be issued to the Seller Members pursuant to Section 2.02(b) on the calendar day that is 20 Business Days after determination of the Final Set-Off Amount.

Set Off Right. Notwithstanding anything in this Note 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 (including, without limitation, Section 4 hereofi) 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 8.07 of 2.08(a). In the Purchase Agreement, the Maker shall have the right to set-off against any unsatisfied principal amount of this Note (whether or not such principal amount is then due and payable) the amount of any indemnifiable losses suffered or incurred by the Maker, in accordance with the procedures, and subject to the limitations, set forth in Section 8.07 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 a court of competent jurisdiction determines, or the parties agree, event that interest has accrued and been paid on principal of this Note that was subject to valid Set-Off Claim (as defined in the Purchase Agreement) but was not set-off, the Payee shall return such amount of interest to Maker, together with interest on such amount at the rate of nine percent (9%) per annum from, and including, the date of payment 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 (i) the aggregate amount of unsatisfied Set-Off Claims, (ii) the remaining principal amount of the Note and (iii) the excess of $5,825,000 over the aggregate amount set off against from a Milestone Payment made to the principal Equityholders pursuant to this Section 2.09 with respect to any indemnification claim pursuant to Article X is greater than the aggregate amount of this Note prior Damages finally determined to maturitybe payable in respect of such indemnification claim in accordance with Article X, and Maker will Parent shall, or shall cause the Surviving Corporation to, within ten (10) days after such final determination, pay the remaining principal amount of the Note after reduction by the Escrow Amountsuch excess, if anywithout interest, to Payeethe 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 set-off by Parent (it being understood that any payment to a Company Optionholder who is a current or former employee of the Company shall be made through the Surviving Corporation’s payroll).

Set Off Right. Notwithstanding anything in any provision of this Note Agreement to the contrary (includingcontrary, without limitation, Section 4 hereof)the parties hereby acknowledge and agree that, in accordance with Section 8.07 of the Purchase Agreementaddition to any other right hereunder, the Maker 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-set off against any unsatisfied principal amount of this Note (whether or not such principal amount is then due and payable) the amount of any indemnifiable losses suffered or incurred indemnification payments owed by the Maker, 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 procedures, and subject to applicable provisions of Article IX within the limitations, set forth applicable survival period specified in Section 8.07 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 terms9.1. If it is finally resolved through negotiation or final, non-appealable decision of a court of competent jurisdiction determines, that all or the parties agree, that interest has accrued and been paid on principal a portion of this Note that was subject to valid Set-Off Claim (as defined in the Purchase Agreement) but any amount set off by Parent was not set-offentitled to be set off by Parent, then Parent shall promptly pay the Payee shall return 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 of interest to Maker, together with interest on such amount at was withheld from the rate of nine percent (9%) per annum from, and including, applicable Milestone Payment but excluding the date of payment 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”) at a rate per annum equal to the least of (ia) the aggregate amount of unsatisfied Set-Off Claimsprime rate as published in the Wall Street Journal, Eastern Edition in effect from time to time during such period plus (iib) the remaining principal amount of the Note and one percent (iii) the excess of $5,825,000 over the aggregate amount set off against the principal amount of this Note prior to maturity, and Maker will pay the remaining principal amount of the Note after reduction by the Escrow Amount, if any, to Payee1%).

Set Off Right. Notwithstanding anything in this Note Subject to the contrary (including, without limitation, Section 4 hereof9.05(a), the Parties hereby acknowledge and agree that, in accordance with Section 8.07 of the Purchase Agreementaddition to any other right hereunder, the Maker Parent and its Affiliates shall have the right right, but not the obligation, to set-set off up to seventy five percent (75%) of the Sales Earnout, if payable pursuant to Section 2.08, against any unsatisfied principal amount of this Note (whether or not amounts owed at such principal amount is then due and payable) the amount of any indemnifiable losses suffered or incurred time by the MakerEquityholders 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 Party pursuant to Article IX hereof; provided that the claim for indemnification is asserted prior to the required payment of the Sales Earnout pursuant to Section 2.08(a). If Parent elects to exercise its right of set off hereunder, it shall 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 procedures, and subject procedure described in Section 12.11. Notwithstanding anything to the limitationscontrary in this Agreement, set forth in Section 8.07 of the Purchase Agreement. Upon any such set-off, the principal amount of this Note will Parent shall be reduced by entitled to withhold and retain the amount of such set-to be 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 a court of competent jurisdiction determines, or the parties agree, that interest has accrued and been paid on principal of this Note that was subject to valid Set-Off Claim (as defined described in the Purchase Agreement) but was not set-off, Set Off Notice until any pending disputes as to the Payee shall return such amount of interest to Maker, together with interest on such amount at the rate of nine percent (9%) per annum from, and including, the date of payment to, but not including, the date such interest is returned. If any unsatisfied Set-Off Claim has not been be set off are 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 (i) the aggregate amount of unsatisfied Set-Off Claims, (ii) the remaining 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, and Maker will pay the remaining principal amount of the Note after reduction by the Escrow Amount, if any, to Payeepreceding sentences.

Set Off Right. Notwithstanding anything In the event that (i) a claim which is subject to indemnity by ThrillRides and/or Kitchen shall have been asserted against a Licensee Indemnified Party in this Note an action filed in any legal or quasi-legal proceeding by a third Person (a “Third-Party Claim”); (ii) Licensee shall have provided written notice of such claim to Licensor, (iii) the contrary extent (including, without limitationapplicable 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 this Agreement and which insurance was available but which insurance FXRE failed to obtain, Section 4 hereof)unless, in accordance with Section 8.07 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 Purchase AgreementParent 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 Maker 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 any unsatisfied principal amount of this Note fifty percent (whether or not such principal amount is then due and payable50%) the amount of any indemnifiable losses suffered amounts payable to Kitchen hereunder or incurred by the Makerunder any other agreement between FXRE and either or both of ThrillRides or Kitchen; provided, in accordance however, that prior to setting off any such amounts, Licensee shall give Licensor written notice of such costs and expenses, together with the procedures, and subject commercially reasonable documentation thereof. In addition to the limitations, set forth in Section 8.07 right 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 andset forth above, from so long as Licensee give Licensor prior written notice of Licensee’s intention to do so and after a reasonable estimate of 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 a court of competent jurisdiction determines, or the parties agree, that interest has accrued and been paid on principal of this Note that was (subject to valid Set-Off Claim change from time to time) to be deposited in the “Reserve Account” (as defined in below), Licensee shall have the Purchase Agreement) but was not set-off, the Payee shall return such amount of interest right to Maker, together with interest on such amount at the rate of nine percent (9%) per annum from, and including, the date of payment 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 establish an escrow account (the “Reserve Account’) with a third party escrow agent an amount (the “Escrow AmountAgent”) equal 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 Reserve Account up to fifty percent (50%) 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 least 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 (i) indemnity against Licensor without the aggregate amount prior written consent of unsatisfied SetLicensor, which consent shall not be unreasonably withheld, delayed or conditioned. In the event FXRE validly exercises the right of set-Off Claimsoff under this Section 5.d., (ii) Kitchen shall have the remaining principal amount right to challenge such right and have any disputes concerning the satisfaction of the Note and (iii) conditions precedent or the excess of $5,825,000 over the aggregate amount set off against the principal amount applicability of this Note prior Section 5.d. to maturitythe Third Party Claim resolved by arbitration pursuant to the provisions of Section 12 below immediately upon demand and without awaiting the final settlement, and Maker will pay the remaining principal amount resolution or adjudication of the Note after reduction by Third-Party Claim, but during the Escrow Amountpendency of the arbitration, if any, to Payeethe 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.

Set Off Right. Notwithstanding anything in any provision of this Note Agreement to the contrary (includingcontrary, without limitation, Section 4 hereof)the parties hereby acknowledge and agree that, in accordance with Section 8.07 of the Purchase Agreementaddition to any other right hereunder, the Maker Parent shall have the right 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 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 the 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 Indemnifying Parties pursuant to Article XII hereof; provided, however, that any set-off pursuant to 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 unsatisfied principal amount amounts required to be paid by Parent to the Company Shareholders, the other Persons set forth on Schedule A hereto or KLO Shareholders pursuant to this Agreement, it shall give the Seller Representative written notice of this Note such election (whether or not such principal amount is then due and payable) the “Set-Off Notice”), which Set-Off Notice shall include the amount of any indemnifiable losses suffered or incurred by the Maker, in accordance with the procedures, to be set off and subject to the limitations, set forth in Section 8.07 a reasonable description of the Purchase Agreement. Upon any 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, the principal 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 of this Note will 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 set-off and, from determination (or of any determination of appeal therefrom) and after no party shall have commenced any appeal therefrom. In the date 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, interest on this Note shall accrue only on the remaining principal amount . The exercise of this Note, but no such right of set-off of interest shall by Parent in good faith, whether or not finally determined to be made or permittedjustified, and interest shall continue to accrue and be paid on the remaining principal of will not constitute a breach under this Note in accordance with its terms. If a court of competent jurisdiction determinesAgreement; provided, or the parties agreehowever, that interest has accrued and been paid on principal if the exercise of this Note that was subject such right of set-off by Parent is finally determined to valid Set-Off Claim (as defined in the Purchase Agreement) but was not be unjustified or incorrectly set-off, any amounts required to be paid by Parent to the Payee Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders pursuant to this Agreement shall return such amount of bear interest to Maker, together with interest on such amount at the an annual rate of nine percent (9%) per annum from, 5% from the date on which such payment was due and includingpayable until the date payment of same is actually received by the Company Shareholders, the date of payment toother Persons set forth on Schedule A hereto or the KLO Shareholders, but not including, as 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 (i) the aggregate amount of unsatisfied Set-Off Claims, (ii) the remaining 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, and Maker will pay the remaining principal amount of the Note after reduction by the Escrow Amount, if any, to Payeecase may be.