Lender Liability and Financing Issues

Financing a property or business with substantial environmental issues may present formidable challenges, whether they be concerns with contaminated collateral or regulatory compliance. We have worked with lenders and borrowers to craft creative solutions to these challenges.

Lender Liability Protections: MGKF attorneys have assisted lenders in developing and implementing lending and foreclosure policies that enable them to secure the liability defenses available under both state and federal cleanup laws. These defenses generally shield lenders from cleanup liability, provided their activities are limited to those that fall within the scope of traditional lending practices and the taking of measures to protect their security interests pursuant to applicable safe harbor requirements.

Lender Loan Policies: Lenders have also enlisted our help in crafting lending policies to minimize the likelihood that the lender will have to clean up a property to protect the value of its collateral (regardless of whether it qualifies for a lender liability defense), and in evaluating potential loans consistent with these policies. Such policies typically include the performance of appropriate environmental due diligence, which we have overseen for lender clients, and securing environmental insurance.

Borrower Issues: On the other side of the loan transaction, we represent borrowers in addressing lender concerns with contaminated collateral, negotiating indemnification and escrow documents, obtaining lender insurance policies and, where appropriate, working with the borrower to craft internal operating procedures satisfying the lender that the borrower is operating so as to avoid government enforcement exposure that could jeopardize the loan.

Governmental Redevelopment Financing: Many brownfields projects secure financing for investigation and cleanup activities through the assistance of local and county redevelopment authorities. We have represented private clients in securing such financing and agencies with programs that provide or facilitate the financing. Our attorneys have also served as board members for several agencies, including the Montgomery County Redevelopment Authority and the Pennsylvania Infrastructure Investment Authority (PENNVEST), a statewide agency that provides low-interest infrastructure loans.

_{© Breeze393 | Dreamstime Stock Photos & Stock Free Images}