Common use of Remediation Measures Clause in Contracts

Remediation Measures. In the event that EME becomes obligated to indemnify the Purchaser Indemnified Parties under the provisions of Section 11.3(a)(iii) for Remediation Measures in respect of Existing Soils Contamination, then the following provisions shall apply. (i) If Remediation Measures are required by a Governmental Authority, then EME shall be deemed to have discharged such undertaking and its obligations with respect thereto whenever it has paid the cost of such Remediation Measures and it or the Purchaser has either received written notice from the pertinent Governmental Authority or Authorities that no further material Remediation Measures are then required with respect to the Existing Soils Contamination in question or, if such Governmental Authority or Authorities have not responded within a reasonable time to the request for such written notice, whenever the Purchaser or the applicable Purchaser Designee reasonably and in good faith determines that no further Remediation Measures are then required. (ii) Whenever EME is obligated to indemnify the Purchaser Indemnified Parties in respect of Remediation Measures, EME may elect either to reimburse the Purchaser for the cost thereof or to assume and control the performance of such Remediation Measures in accordance with the provisions hereof. If EME elects to reimburse the Purchaser for the cost thereof, then (A) work in connection with such Remediation Measures shall be performed in a reasonably efficient and economical manner designed to mitigate EME's cost consistent with achievement of the Remediation Measures that are required, and (B) the provisions of Section 6.34(a)(iii), and Sections 6.34(a)(iv)(A), (B), (D) and (G) shall apply mutatis mutandis as though EME were the Purchaser therein and the Purchaser were EME. (iii) In the event that EME elects to assume and control the performance of Remediation Measures pursuant to its indemnity obligations hereunder, then prior to commencing such Remediation Measures after the Closing or presenting after the Closing any plan for such Remediation Measures to any Governmental Authority having jurisdiction over such Remediation Measures or to any Person making an Environmental Claim for which EME is responsible for indemnity hereunder, EME shall meet and consult with Purchaser in good faith concerning such Remediation Measures or plan, as the case may be and use Commercially Reasonable Efforts to agree the scope of such Remediation Measures. (iv) In connection with the performance of any Remediation Measures by EME pursuant to its indemnity obligations hereunder, EME shall: (A) Provide the Purchaser with reasonable notice of any meetings with any such Governmental Authority or any such other Person to afford Purchaser or its representatives the right to participate in such meetings; (B) Provide the Purchaser with a reasonable opportunity to preview and comment upon any submissions EME plans to deliver or submit to any such Governmental Authority or any such other Person; (C) Meet and consult with the Purchaser in good faith over the time, manner and conditions for the completion of the Remediation Measures, so as to (and EME shall) avoid, to the extent reasonably practicable, material interference with business conducted or planned to be conducted at the site in question; (D) Except to the extent that exigencies require shorter or no notice, provide the Purchaser with five (5) Business Days' prior notice (which may be oral) of material actions to be taken at the site in question in connection with Remediation Measures undertaken by EME and shall in any event, whether or not exigencies require shorter notice, permit the Purchaser the opportunity to have its representatives present to observe such Remediation Measures; (E) After completion of any remediation project, make all reasonable efforts to restore the surface of the site involved to a condition substantially similar to its condition prior to the performance of the Remediation Measures, subject to any intervening changes in surface conditions not caused by such Remediation Measures; (F) In connection with carrying out such Remediation Measures, comply with Applicable Law; and (G) Permit the Purchaser to have one or more representatives present to observe physical work conducted at the Project in the course of carrying out such Remediation Measures, and provide Purchaser with reasonable access to and copies of records and physical samples concerning the performance of such physical work. (v) In connection with the performance of any Remediation Measures by EME pursuant to its indemnity obligations hereunder, Purchaser agrees as follows: (A) EME and its representatives and agents will have reasonable access to enter upon the real property at the site in question, to use all facilities or equipment located thereon (at EME's sole cost and risk, and subject to its availability after accounting for Purchaser's reasonable, good faith needs and subject to prior consultation with the Purchaser) and install equipment insofar as is necessary to allow for performance of the Remediation Measures, and to carry out its rights and obligations under this Section 6.34, except in case of emergency, and it will not relocate, disturb or interfere with such equipment or the performance of such Remediation Measures in compliance with the provisions of this Section 6.34; (B) It will provide EME and its representatives and agents with reasonable access to environmental and other relevant records (other than those which are privileged) respecting the site as reasonably necessary for the purpose of carrying out such Remediation Measures and will provide EME with copies of all material correspondence and communications with Governmental Authorities about Existing Soils Contamination and Remediation Measures or otherwise pertaining to EME's Pre-Closing Environmental Liabilities; (C) It will not submit, or cause to be submitted, to any Governmental Authority any information or comments concerning any Existing Soils Contamination or Remediation Measures undertaken by EME except for information routinely submitted to Governmental Authorities or as may be otherwise required by Law or in emergency; and (D) Except as required by Law or in emergency, it will make Commercially Reasonable Efforts to avoid taking any action, and will take reasonable steps to cause others to avoid taking any action, that will increase or accelerate any of EME's Pre-Closing Environmental Liabilities hereunder including with respect to Remediation Measures.

Remediation Measures. In the event that EME becomes obligated Project Company is failing (a) to indemnify improve its quality program, processes and procedures to avoid repetitive instances of the Purchaser Indemnified Parties under Production of Non-Conforming Magnets to the provisions satisfaction of Section 11.3(a)(iiiDOD, or (b) to produce the number of Magnets ordered by DOD (or customers sourced by DOD) on the agreed timetables or at the agreed specifications, whether or not as a result of a Force Majeure Event (except to the extent caused by the material failure of the DOD to meets its material obligations in this Agreement, the Transaction Agreement or the other Transaction Documents), then, in any such case, Project Company shall provide DOD with any relevant information concerning such failures. DOD shall notify Project Company in the event of a failure as specified in clause (a) or clause (b), and Project Company shall promptly notify DOD of any failure or expected failure as specified in clause (b) (a “Remediation Notice”). Project Company shall take DOD’s comments and concerns into due account in establishing a remediation plan (the “Remediation Plan”) to address any such failures and shall deliver the Remediation Plan to DOD for approval (not to be unreasonably withheld, conditioned or delayed) within sixty (60) days after the Remediation Measures in respect Notice is delivered by or to DOD (as applicable); provided that, if DOD unreasonably withholds, conditions or delays approval of Existing Soils Contaminationthe Remediation Plan, then Project Company may proceed with implementing the following provisions shall apply. (i) If proposed Remediation Measures are required by a Governmental Authority, then EME Plan and shall be deemed to have discharged such undertaking and be in full compliance with this Section 5.5 to the extent it uses its obligations with respect thereto whenever it has paid the cost of reasonable best efforts to successfully complete such Remediation Measures and it or Plan. If (i) the Purchaser has either received written notice from the pertinent Governmental Authority or Authorities that no further material Remediation Measures are then required with respect to the Existing Soils Contamination in question orPlan is not provided within such sixty (60) day period, if such Governmental Authority or Authorities have not responded within a reasonable time to the request for such written notice, whenever the Purchaser or the applicable Purchaser Designee reasonably and in good faith determines that no further Remediation Measures are then required. (ii) Whenever EME implementation of the approved Remediation Plan is obligated to indemnify not commenced within the Purchaser Indemnified Parties in respect later of (x) ninety (90) days after the Remediation Measures, EME may elect either to reimburse the Purchaser for the cost thereof or to assume Notice is delivered and control the performance of such Remediation Measures in accordance with the provisions hereof. If EME elects to reimburse the Purchaser for the cost thereof, then (Ay) work in connection with such Remediation Measures shall be performed in a reasonably efficient and economical manner designed to mitigate EME's cost consistent with achievement thirty (30) days following DOD approval of the Remediation Measures that are requiredPlan, and (B) the provisions of Section 6.34(a)(iii), and Sections 6.34(a)(iv)(A), (B), (D) and (G) shall apply mutatis mutandis as though EME were the Purchaser therein and the Purchaser were EME. or (iii) In the event that EME elects to assume and control remediation steps set forth in the performance of Remediation Measures pursuant to its indemnity obligations hereunderPlan are not completed within the timeframe set forth therein, then prior to commencing such Remediation Measures after the Closing or presenting after the Closing any plan for such Remediation Measures to any Governmental Authority having jurisdiction over such Remediation Measures or to any Person making an Environmental Claim for which EME is responsible for indemnity hereunder, EME shall meet and Project Company will consult with Purchaser DOD and implement (within sixty (60) days following such consultation) such personnel changes and/or engagement of additional personnel or consultants, in good faith concerning such Remediation Measures or planeach case, as the case may be and use Commercially Reasonable Efforts to agree the scope of such Remediation Measures. (iv) In connection with the performance of any Remediation Measures by EME pursuant to its indemnity obligations hereunder, EME shall: (A) Provide the Purchaser with reasonable notice of any meetings with any such Governmental Authority or any such other Person to afford Purchaser or its representatives the right to participate in such meetings; (B) Provide the Purchaser with a reasonable opportunity to preview and comment upon any submissions EME plans to deliver or submit to any such Governmental Authority or any such other Person; (C) Meet and consult with the Purchaser in good faith over the time, manner and conditions for the completion of the Remediation Measures, so as to (and EME shall) avoid, to the extent reasonably practicable, material interference with business conducted or planned to be conducted at the site in question; (D) Except to the extent that exigencies require shorter or no notice, provide the Purchaser with five (5) Business Days' prior notice (which may be oral) of material actions to be taken at the site in question in connection with Remediation Measures undertaken by EME and shall in any event, whether or not exigencies require shorter notice, permit the Purchaser the opportunity to have its representatives present to observe such Remediation Measures; (E) After completion of any remediation project, make all reasonable efforts to restore the surface of the site involved to a condition substantially similar to its condition prior to the performance of the Remediation Measures, subject to any intervening changes in surface conditions not caused by such Remediation Measures; (F) In connection with carrying out such Remediation Measures, comply with Applicable Law; and (G) Permit the Purchaser to have one or more representatives present to observe physical work conducted at the Project in the course of carrying out such Remediation Measures, and provide Purchaser with reasonable access to and copies of records and physical samples concerning the performance of such physical work. (v) In connection with the performance of any Remediation Measures by EME pursuant to its indemnity obligations hereunder, Purchaser agrees as follows: (A) EME and its representatives and agents will have reasonable access to enter upon the real property at the site in question, to use all facilities or equipment located thereon (at EME's sole cost and risk, and subject to its availability after accounting for Purchaser's reasonable, good faith needs and subject to prior consultation with the Purchaser) and install equipment insofar as is necessary to allow for performance of the Remediation Measures, and to carry out its rights and obligations under this Section 6.34, except in case of emergency, and it will not relocate, disturb or interfere with such equipment or the performance of such Remediation Measures in compliance with the provisions of this Section 6.34; (B) It will provide EME and its representatives and agents with reasonable access to environmental and other relevant records (other than those which are privileged) respecting the site as reasonably necessary for the purpose of carrying out such Remediation Measures and will provide EME with copies of all material correspondence and communications with Governmental Authorities about Existing Soils Contamination and Remediation Measures or otherwise pertaining to EME's Pre-Closing Environmental Liabilities; (C) It will not submit, or cause to be submitted, to any Governmental Authority any information or comments concerning any Existing Soils Contamination or Remediation Measures undertaken by EME except for information routinely submitted to Governmental Authorities or Company as may be otherwise requested by DOD or other resources, as are reasonably required to properly prepare and/or implement the Remediation Plan. For the avoidance of doubt, in no event shall the personnel changes contemplated by Law clause (x) in the preceding sentence require MP to make any changes to MP’s directors or in emergency; and executive officers or employees of MP with vice president (Dor equivalent) Except as required by Law title or in emergency, it will make Commercially Reasonable Efforts more senior (but may require Project Company to avoid taking any action, and will take reasonable steps to cause others to avoid taking any action, that will increase or accelerate any of EME's Pre-Closing Environmental Liabilities hereunder including with respect to Remediation Measuresretain additional personnel at levels below executive officer).