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 date.
As a contingency to the closing, buyer or lender may require the right to conduct an environmental site assessment.
1. Buyer or lender will want the opportunity to conduct environmental site assessment with its own consultant. Seller or borrower will want an opportunity to approve consultant, and/or approve the protocol for the assessment.
2. Other issues to be resolved: who will get to see the final report; who will get to review copies of the draft report; who will get to review the scope of work; how will the cost of the assessment be allocated between the parties; how long will the assessment take; how much time will be allowed to remediate any exceptions; will lender or buyer report any exceptions to DEC; will seller or borrower have any authority over the issue of reporting to DEC or the substance of the report.