The context of the case is not unusual. As part of its due diligence, the lender conducted environmental assessments on the ground prior to the closing of the loan, which identified the potential presence of tetrachlored libraries on the site. The lender then returned the mortgage to a second lender (the “agent lender”). When the borrower defaulted the loan, the lender conducted environmental checks on the property before proceeding with the forced execution. The transferees` lender then sought reimbursement of the costs of its pre-examination, but the borrower refused to pay, and the transferees` lender filed a lawsuit, arguing, among other things, that the borrower`s refusal constituted a violation of the environmental compensation agreement. The sunset provisions. One of the most common ways for compensation to cancel liability for environmental compensation is by adding a sunset scheme, which provides that after the full repayment of the loan, environmental compensation ends after a certain period of time and after certain conditions have been met. While borrowers often require a one-year sunset, lenders will generally insist that environmental compensation survive two, if not three years after the loan is fully paid. With respect to the conditions that the recipient must meet in order to obtain sunset, the most important condition is that the borrower must submit a clean environmental report, in terms of form and substance reasonably acceptable to the lender, at the time of loans repaid in full (or closer to sunset), so that the lender is sure that there is no current environmental risk. Ultimately, environmental compensation is an important document for the lender to protect against environmental risks, but there is room for the lender and the donor exempted from negotiating. Unlock the rules.
Since the standard form of environmental compensation is unlimited, in the event of a foreclosure, the lender would remain liable for the environmental debt resulting from such forced execution when the borrower no longer owns and controls the assets. It is understandable that the recipient of the exemption does not want to be held responsible for the actions of third parties after he no longer owns the property. As a result, the lender often accepts an release provision showing that the exempt donor is not liable for the losses incurred by the lender, provided that those losses are solely the result of shares, conditions or events that occurred after the lender acquired ownership of the property instead of a forced execution or school stoppage. However, these provisions should not exempt the consultant from ongoing contamination or ongoing events at the time of implementation. In addition, if it is a mezzanine loan that is guaranteed by a guarantee investment to the mortgage borrower, then it is customary to obtain an release in environmental compensation for the mortgage on the mezzanine lender silos of the mortgage borrowers` holdings. In this case, only the guarantor should be released, since he is no longer interested in the borrower or no longer controls it after the forced execution. However, the mortgage borrower should not be released because the mortgage remains in default, and the mezzanine lender will then control the mortgage borrower. Finally, the term “debts” should include a complete list of all debts for which the surety is held responsible. Furthermore, the list should not contain any environmental costs, before or after the default, incurred by the lender to assess the ecological condition of the property. In this article, we discuss some of the issues that guarantors should consider when reviewing definitions, representations, guarantees and obligations in a compensation agreement, and propose some options for a surety to limit the amount of compensation in order to better protect its interests.