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Navigating Lender Liability for Environmental Cleanup and Remediation Costs

Indemnification Agreements, Insurance, Reps and Warranties, Covenants, Loan Defaults, Workouts and Foreclosure

Recording of a 90-minute premium CLE video webinar with Q&A

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Conducted on Tuesday, February 15, 2022

Recorded event now available

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Course Materials

This CLE course will discuss lender liability in real estate loan transactions for environmental cleanup and remediation and how the lender can minimize direct liability and diminution of the collateral's value due to environmental damages. The program will discuss risk mitigation in loan origination and during the life of the loan, including loan workouts and foreclosures.

Description

While federal law largely shields lenders from environmental liabilities and cleanup costs on indebted properties, lender missteps and poor loan documentation can result in a loss of that protection and put lenders on the hook for environmental remediation.

Environmental hazards can also negatively impact a borrower's ability to repay the loan and decrease the collateral value, which is why it is essential to uncover the hazards before the closing of the loan and formulate a plan, whether a Phase I environmental site assessment or some lesser action.

A critical protection for the lender is an indemnification agreement with the borrower as part of the loan documentation. Other key loan agreement provisions include reps and warranties, covenants, notice provisions, and inspection rights. Another option for the lender is to require the borrower to obtain insurance, usually in a pollution policy.

Lender environmental due diligence at the time of a loan default or workout is also critical as environmental hazards must be considered when assessing the collateral value and a workout plan. Of course, if foreclosure appears imminent, the lender liability must be carefully evaluated as the lender prepares to take possession of the property.

Listen as our authoritative panel of experienced attorneys analyzes lender liability for environmental cleanup and remediation liabilities. The panel will discuss theories of liability and best practices for lenders to minimize direct liability and diminution of the collateral value. The panel will address risk mitigation in loan origination and during the life of the loan, including workouts and foreclosures.

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Outline

  1. Theories of liability
  2. Indemnification agreements
  3. Insurance, reps and warranties, loan covenants, inspection rights
  4. Lender's due diligence at the time of loan default, workout, foreclosure

Benefits

The panel will review these and other key issues:

  • What pitfalls do lenders face that may result in lender liability for environmental cleanup and remediation liability?
  • What are the critical elements of environmental indemnity agreements?
  • What are best practices for lenders to evaluate and manage environmental risks in real property loan transactions?

Faculty

Quigley, David
David H. Quigley

Partner
Akin Gump Strauss Hauer & Feld

Mr. Quigley advises lenders, sellers and buyers on evaluating the environmental liabilities associated with commercial,...  |  Read More

Williamson, Bryan
Bryan C. Williamson

Attorney
Akin Gump Strauss Hauer & Feld

Mr. Williamson is an environmental and natural resources lawyer, advising and representing clients on a range of...  |  Read More

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