Common use of Environmental Investigation; Right to Terminate Agreement Clause in Contracts

Environmental Investigation; Right to Terminate Agreement. A. State National BHC and its consultants, agents and representatives, at the sole cost and expense of State National BHC, shall have the right to the same extent that Heritage BHC has the right, but not the obligation or responsibility, to inspect any Property, including, without limitation, conducting asbestos surveys and sampling, environmental assessments and investigation, and other environmental surveys and analyses including soil, water, asbestos, septic system and ground sampling ("Environmental Inspections") at any time on or prior to forty-five (45) days after the date of this Agreement. If, as a result of any such Environmental Inspection, further investigation ("Secondary Investigation") including, without limitation, test borings, soil, water, septic system and other sampling is deemed desirable by State National BHC, State National BHC shall (i) notify Heritage BHC of any Property for which it intends to conduct such a Secondary Investigation and the reasons for the Secondary Investigation, and (ii) at the sole cost and expense of State National BHC, commence the Secondary Investigation, on or prior to seventy-five (75) days after the date of this Agreement. State National BHC shall give reasonable notice to Heritage BHC of the Secondary Investigation, and Heritage BHC may place reasonable time and place restrictions on the Secondary Investigation. B. Heritage BHC agrees to indemnify and hold harmless State National BHC for any claims for damage to property, or injury or death to persons, made as a result of any Environmental Inspection or secondary investigation conducted by State National BHC or its agents, which damage or injury is attributable to the negligent actions of Heritage BHC or the Bank or their agents. State National BHC agrees to indemnify and hold harmless Heritage BHC for any claims for damage to property, or injury or death to persons, attributable to the negligent actions of State National BHC or its agents in performing any Environmental Inspection or secondary investigation except to the extent caused in whole or in part by the negligence of Heritage BHC or any Heritage BHC Subsidiary. State National BHC shall not have any liability or responsibility of any nature whatsoever for the results, conclusions or other findings related to any Environmental Inspection, Secondary Investigation or other environmental survey. If this Agreement is terminated, except as otherwise required by law, reports to any governmental authority of the results of any Environmental Inspection, Secondary Investigation or other environmental survey shall not be made by State National BHC. State National BHC shall make no such report prior to Closing unless required to do so by law, and in such case will give Heritage BHC reasonable notice of State National BHC's intentions. C. State National BHC shall have the right to terminate this Agreement if (i) the factual substance of any warranty or representation set forth in Section 3.25 is not materially true and accurate; (ii) the results of such Environmental Inspection, Secondary Investigation or other environmental survey are disapproved by State National BHC because the Environmental Inspection, Secondary Investigation or other environmental survey identifies material violations or potential violations of Environmental Laws; (iii) Heritage BHC refuses to allow State National BHC to conduct an Environmental Inspection or Secondary Investigation in a manner that State National BHC reasonably considers necessary; (iv) the Environmental Inspection, Secondary Investigation or other environmental survey identifies any past or present event, condition or circumstance that would or potentially would require remedial or cleanup action or result in a Material Adverse Change; (v) the Environmental Inspection, Secondary Investigation or other environmental survey identifies the presence of any underground or above ground storage tank in, on or under any Property that is not shown to be in compliance with all Environmental Laws applicable to the tank either now or at a future time certain, or that has had a release of petroleum or some other Hazardous Material that has not been cleaned up to the satisfaction of the relevant governmental authority or any other party with a legal right to compel cleanup; or (vi) the Environmental Inspection, Secondary Investigation or other environmental survey identifies the presence of any asbestos-containing material in, on or under any Property, the removal of which would result in a Material Adverse Change. D. Heritage BHC agrees to make available to State National BHC and its consultants, agents and representatives all documents and other material relating to environmental conditions of any Property including, without limitation, the results of other environmental inspections and surveys. Heritage BHC also agrees that all engineers and consultants who prepared or furnished such reports may discuss such reports and information with State National BHC and shall be entitled to certify the same in favor of State National BHC and its consultants, agents and representatives and make all other data available to State National BHC and its consultants, agents and representatives.

Environmental Investigation; Right to Terminate Agreement. A. State National BHC and its consultants, agents and representatives, at the sole cost and expense of State National BHC, shall have the right to the same extent that Heritage BHC Mercantile Bank has the such right, but not the obligation or responsibility, to inspect any Property, including, without limitation, conducting asbestos surveys and sampling, environmental assessments and investigation, and other environmental surveys and analyses including soil, water, asbestos, septic system soil and ground sampling ("Environmental Inspections") at any time on or prior to forty-five (45) days after May 15, 2004. State National BHC shall notify Mercantile Bank prior to any physical inspections of the date Property, and Mercantile Bank may place reasonable restrictions on the time of this Agreementsuch inspections. If, as a result of any such Environmental Inspection, further investigation ("Secondary Investigationsecondary investigation") including, without limitation, test borings, soil, water, septic system water and other sampling is deemed desirable by State National BHC, State National BHC shall (i) notify Heritage BHC Mercantile Bank of any Property for which it intends to conduct such a Secondary Investigation secondary investigation and the reasons for the Secondary Investigationsuch secondary investigation, and (ii) at the sole cost and expense of State National BHC, commence the Secondary Investigationsuch secondary investigation, on or prior to seventy-five (75) days after the date of this AgreementJune 15, 2004. State National BHC shall give reasonable notice to Heritage BHC Mercantile Bank of the Secondary Investigationsuch secondary investigations, and Heritage BHC Mercantile Bank may place reasonable time and place restrictions on the Secondary Investigationsuch secondary investigations. B. Heritage BHC Mercantile Bank agrees to indemnify and hold harmless State National BHC for any claims for damage to property, or injury or death to persons, made as a result of any Environmental Inspection or secondary investigation conducted by State National BHC or its agents, which damage or injury is attributable to the negligent actions of Heritage Mercantile Bank or its agents, except to the extent caused by the negligence of State National BHC or the Bank or their its agents. State National BHC agrees to indemnify and hold harmless Heritage BHC Mercantile Bank for any claims for damage to property, or injury or death to persons, attributable to the negligent actions of State National BHC or its agents in performing any Environmental Inspection or secondary investigation except to the extent caused in whole or in part by the negligence of Heritage BHC or any Heritage BHC SubsidiaryMercantile Bank. State National BHC shall not have any liability or responsibility of any nature whatsoever for the results, conclusions or other findings related to any Environmental Inspection, Secondary Investigation secondary investigation or other environmental survey. If this Agreement is terminated, then except as otherwise required by law, reports to any governmental authority of the results of any Environmental Inspection, Secondary Investigation secondary investigation or other environmental survey shall not be made by State National BHC. State National BHC shall make no such report prior to Closing unless required to do so by law, and in such case will give Heritage BHC Mercantile Bank reasonable notice of State National BHC's intentions. C. State National BHC shall have the right to terminate this Agreement if (i) the factual substance of any warranty or representation set forth in Section 3.25 3.21 is not materially true and accurate; (ii) the results of such Environmental Inspection, Secondary Investigation secondary investigation or other environmental survey are in good faith disapproved by State National BHC because the Environmental Inspectionenvironmental inspection, Secondary Investigation secondary investigation or other environmental survey identifies material violations or potential violations of Environmental Laws; (iii) Heritage BHC refuses Mercantile Bank has refused to allow State National BHC to conduct an Environmental Inspection or Secondary Investigation secondary investigation in a manner that State National BHC reasonably considers necessary; (iv) the Environmental Inspection, Secondary Investigation secondary investigation or other environmental survey identifies any past or present event, condition or circumstance that would or potentially would require substantial remedial or cleanup action or result in a Material Adverse Change; (v) the Environmental Inspection, Secondary Investigation secondary investigation or other environmental survey identifies the presence of any underground or above ground storage tank in, on or under any Property that is not shown to be in compliance with all Environmental Laws applicable to the tank either now or at a future time certain, or that has had a release of petroleum or some other Hazardous Material that has not been cleaned up to the satisfaction of the relevant governmental authority or any other party with a legal right to compel cleanup; or (vi) the Environmental Inspection, Secondary Investigation secondary investigation or other environmental survey identifies the presence of any asbestos-containing material in, on or under any Property, the removal of which would result in a Material Adverse Change. On or prior to July 15, 2004, State National BHC shall advise Mercantile Bank in writing as to whether State National BHC intends to terminate this Agreement because State National BHC disapproves of the results of the Environmental Inspection, secondary investigation or other environmental survey. Mercantile Bank shall have the opportunity to correct any objected to violations or conditions to State National BHC's reasonable satisfaction prior to July 31, 2004. In the event that Mercantile Bank fails to demonstrate its satisfactory correction of the violations or conditions to State National BHC, State National BHC may terminate the Agreement at any time after July 31, 2004. In the event that this Agreement is terminated in accordance with this Section 5.14, State National BHC shall provide Mercantile Bank with a copy of all inspection reports and surveys upon which State National BHC has relied to terminate this Agreement. D. Heritage BHC Mercantile Bank agrees to make available to State National BHC and its consultants, agents and representatives all documents and other material relating to environmental conditions of any Property including, without limitation, the results of other environmental inspections and surveys. Heritage BHC Mercantile Bank also agrees that all engineers and consultants who prepared or furnished such reports may discuss such reports and information with State National BHC and shall be entitled to certify the same in favor of State National BHC and its consultants, agents and representatives and make all other data available to State National BHC and its consultants, agents and representatives.