Common use of foregoing Clause in Contracts

foregoing. For purposes of this Agreement, the term “Materially Underperforming” means the Cash Cost per watt of the Solar Cells manufactured by the JVC over *** consecutive quarters at Fab 3 is equal to or greater than *** of the then current Cash Cost per watt of ***. If one Shareholder delivers a Step-In Notice to the other Parties, then the other Shareholder shall have the right, exercisable by delivering written notice (a “Step-In Objection Notice”) to the other Parties within five (5) Business Days thereafter, to object to the assertion that the JVC is then Materially Underperforming, provided that such objecting Shareholder specifies in such Step-In Objection Notice a good faith basis for such objection. If, within the five (5) Business Day time period set forth in the immediately preceding sentence, (i) any Shareholder fails to deliver a Step-In Objection Notice, then the JVC will be deemed for purposes of this Agreement to then be Materially Underperforming and the applicable Shareholder’s exercise of the step-in rights in such instance shall be deemed to be valid and such Shareholder may proceed, without further objection from any Party, in the exercise of such step-in rights or (ii) any Shareholder delivers a Step-In Objection Notice, then the JVC shall, and the Shareholders shall cause the JVC to, promptly thereafter engage a single independent expert reasonably acceptable to both Shareholders, and otherwise cooperate with each other and such independent expert, to determine, as expeditiously as reasonably practicable, whether the JVC is then Materially Underperforming, and the decision of such independent expert will be binding on the Parties in determining whether or not the applicable Shareholder’s exercise of the step-in rights in such instance is valid and whether or not such Shareholder may proceed, without further objection from any Party, in the exercise of such step-in rights.

foregoing. For purposes If a Lessee fails to fulfill the conditions to such Lessee's assuming the defense of this Agreementany claim after receiving notice thereof on or prior to the date that is ten (10) days prior to the date that an answer or response is required, the term “Materially Underperforming” means Indemnitee may undertake such defense, at the Cash Cost per watt Lessees' expense. No Lessee shall enter into any settlement or other compromise with respect to any Claim in excess of $1,000,000 which is entitled to be indemnified under Section 7.1 or ----------- 7.2 without the prior written consent of the Solar Cells manufactured related Indemnitee, which consent --- shall not be unreasonably withheld or delayed. Unless an Event of Default shall have occurred and be continuing, no Indemnitee shall enter into any settlement or other compromise with respect to any claim which is entitled to be indemnified under Section 7.1 or 7.2 without the prior written consent of ▇▇▇▇ ----------- --- Companies, which consent shall not be unreasonably withheld, unless such Indemnitee waives its right to be indemnified under Section 7.1 or 7.2 with ----------- --- respect to such Claim. Upon payment in full of any Claim by the JVC over *** consecutive quarters at Fab 3 is equal Lessees pursuant to Section 7.1 or ----------- 7.2 to or greater than *** on behalf of an Indemnitee, the then current Cash Cost per watt of ***. If one Shareholder delivers a Step-In Notice Lessees, without any further action, --- shall be subrogated to the other Parties, then the other Shareholder shall have the right, exercisable by delivering written notice (a “Step-In Objection Notice”) to the other Parties within five (5) Business Days thereafter, to object to the assertion that the JVC is then Materially Underperforming, provided any and all claims that such objecting Shareholder specifies Indemnitee may have relating thereto (other than claims in respect of insurance policies maintained by such Step-In Objection Notice a good faith basis for such objection. IfIndemnitee at its own expense), within the five (5) Business Day time period set forth in the immediately preceding sentence, (i) any Shareholder fails to deliver a Step-In Objection Notice, then the JVC will be deemed for purposes of this Agreement to then be Materially Underperforming and the applicable Shareholder’s exercise of the step-in rights in such instance shall be deemed to be valid and such Shareholder Indemnitee shall execute such instruments of assignment and conveyance, evidence of claims and payment and such other documents, instruments and agreements as may proceed, without further objection from be reasonably necessary to preserve any Party, in the exercise of such step-in rights or (ii) any Shareholder delivers a Step-In Objection Notice, then the JVC shall, and the Shareholders shall cause the JVC to, promptly thereafter engage a single independent expert reasonably acceptable to both Shareholders, claims and otherwise cooperate with the Lessees and give such further assurances as are reasonably necessary or advisable to enable the Lessees vigorously to pursue such claims. Any amount payable to an Indemnitee pursuant to Section 7.1 or 7.2 shall be ----------- --- paid to such Indemnitee promptly upon, but in no event later than thirty (30) days after, receipt of a written demand therefor from such Indemnitee, accompanied by a written statement describing in reasonable detail the basis for such indemnity and the computation of the amount so payable. If for any reason the indemnification provided for in Section 7.1 or 7.2 is ----------- --- unavailable to an Indemnitee or is insufficient to hold an Indemnitee harmless, then each Obligor and each Lessee agrees to contribute to the amount paid or payable by such Indemnitee as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnitee on the one hand and by ▇▇▇▇ Companies and the Lessees on the other hand but also the relative fault of such Indemnitee as well as any other relevant equitable considerations. It is expressly understood and agreed that the right to contribution provided for herein shall survive the expiration or termination of and shall be separate and independent from any other remedy under this Master Agreement, the Lease or any other Operative Document. Notwithstanding anything to the contrary set forth herein, the amount of any Claim payable by any Obligor or Lessee to any Indemnitee under this Section 7.3 shall be reduced by the net amount of any insurance proceeds received by such independent expertIndemnitee in respect of such Claim pursuant to any insurance policy maintained by such Indemnitee at its own expense; provided, however, that no -------- Indemnitee shall be required to maintain such insurance or, if such insurance is maintained, to determine, as expeditiously as reasonably practicable, whether the JVC is then Materially Underperforming, and the decision of submit a claim under such independent expert will be binding on the Parties in determining whether or not the applicable Shareholder’s exercise of the step-in rights in such instance is valid and whether or not such Shareholder may proceed, without further objection from any Party, in the exercise of such step-in rightsinsurance.