Common use of Genzyme’s Right of Setoff Clause in Contracts

Genzyme’s Right of Setoff. If Isis materially breaches this Agreement and fails to cure such breach within the time periods provided under Section 11.2.2 (Termination for Material Breach) and Genzyme does not wish to terminate this Agreement in its entirety, then, in addition to any other remedies Genzyme may have under this Agreement or otherwise (an “Isis Breach Event”), Genzyme may setoff against any amounts owed to Isis pursuant to Article 8 (Financial Provisions) its good faith estimate of the amount of any losses, damages and expenses incurred by Genzyme as a result of Isis’ breach of this Agreement (the “Setoff Amount”). If Genzyme exercises its setoff right under this Section 11.4.2, Genzyme will provide Isis with a written certificate, signed by Genzyme’s Chief Financial Officer, certifying that the amount setoff by Genzyme represents [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. Genzyme’s good faith estimate of such losses, damages and expenses. Notwithstanding the foregoing, if Isis notifies Genzyme in writing that it disputes Genzyme’s assertion that Isis is in material breach of this Agreement or the amount setoff by Genzyme, then (a) Genzyme will initiate the dispute resolution process set forth in Article 13 (Dispute Resolution), and (b) pending the Parties’ agreement regarding the appropriate setoff (if any) or a determination by the mediator of the proper amount that Genzyme may setoff (if any) in accordance with Section 13.2 (Mediation), Genzyme will pay the Setoff Amount into an interest-bearing escrow account established for the purpose at a bank. If the Parties cannot settle their dispute by mutual agreement, then, in accordance with Section 13.2.2 (Mediation of Setoff Disputes) the mediator will determine (1) the amount (if any) that Genzyme may setoff against future payments to Isis going forward, and (2) whether any portion of the escrow account should be released to Isis. In the event that it is finally determined pursuant to Article 13 (Dispute Resolution) by a court of competent jurisdiction that Genzyme has setoff an amount that exceeds the amount of losses, damages and expenses actually incurred by Genzyme as a result of Isis’ breach of this Agreement, then Genzyme will promptly pay Isis the amount of such excess, plus interest on such amount as provided for in Section 8.10 (Interest on Late Payments), with interest accruing from the time Genzyme applied such excess setoff.