In 2003, the New York Legislature passed the Brownfield Cleanup Program, ECL § 27-1401 et seq. The benefits of the Brownfield Cleanup Program ("BCP") are many: the developer receives a liability release from the State following DEC oversight during the cleanup of...
Month: April 2008
Borrower’s Covenants
Post-closing covenants will be required for a borrower in a loan transaction, or a tenant in a lease transaction. 1. Borrower will be required to comply [in all material respects] with Environmental Requirements, to notify lender promptly in writing after knowledge in...
Maintain Reps
In a sale or loan transaction the most important pre-closing covenant is that the borrower or seller will maintain the property in compliance with all environmental laws and will re-affirm accuracy of the representations and warranties as of the closing...
“As Is” Clauses
Seldom is a knowledgeable buyer with experienced counsel willing to accept property "as is." Nonetheless, if that is the agreed term of the transaction, then special care must be taken to make that provision effective. It will be construed against the seller.1. If the...
No Asbestos, PCBs, USTs
It may be appropriate to add specific representations on individual contaminants or areas of concern to buyer or lender. In addition to those listed, formaldehyde and radon may be of concern to the buyer.1. The representation may be: "There is not now at, on, or in...
No Notices or Knowledge of Basis
1. Disclosure of outstanding notices or basis for notices is important to a continuing business: "Seller has not received written or oral notification that any of its current or past operations or a by-product thereof is related to or subject to any investigation by...
No Hazardous Substances
This most common of representations and warranties is most often abused. Buyer or tender may initially want a flat representation that there are not now and never have been any Hazardous Materials on the premises or any operations that generate, use, treat, store, or...
All Required Permits
Although the possession of and compliance with all necessary permits is important information for a buyer expecting to continue a business or a lender depending on the viability of a business, representations regarding permits do not necessarily cover potential...
No Violations / Compliance With Laws
A typical provision states: "Except as set forth in schedule x.x and except for violations which would not have a Material Adverse Effect, seller is not and has not been in violation of any Environmental Requirements. 1. Buyer or lender may want to add a...
