Bona Fide Prospective Purchaser Agreement

Buying and developing Brownfield websites offers great opportunities, but can also lead to great risks. In order to use the BFFP`s defence, a buyer must strive to take appropriate measures to avoid an imminent future release to the site. If a buyer meets one of the qualification criteria for BFPP`s defence by a minor error or by mistake, a buyer may become responsible for the remediation costs. While the provisions of the CPO are being implemented, Congress has authorized the EPA, at its sole discretion, to ensure that no enforcement action is taken against an OPC because of the contamination that is causing the action of its neighbours. Congress also authorized the EPA to enter into a transaction agreement with the CPO, which provides them with cost coverage and/or protection of contributions from potentially responsible parties on the ground. The EPO and DOJ use interest purchase agreements (ASAs) or prospective financing leases (EPAs) to address the liability issues of third parties who wish to clean up and reuse contaminated real estate. Even after the addition of the BFPP provision, the EPO and the DOJ recognized that an AEA or other third-party agreement with the federal government on certain sites of federal interest, such as. B the NPL sites, could be likely to remedy the liability problems related to the promotion of rehabilitation and reuse. See agreements with third parties for the remediation and reuse of websites on the SuperFund`s national priority list (April 17, 2018).

The model agreement provides for a non-recourse and contribution protection agreement, in exchange for the completion of remediation work by the party and the reimbursement of certain cleaning costs of the EPO. The EPO states that it is not authorized to exercise its enforcement control in certain circumstances. For example, if „the tenancy agreement is intended to allow the lessor or tenant to circumvent its ringing liability, or if the tenant may be held liable for reasons other than tenant status and if the landlord does not comply with public or federal regulatory requirements or bye or judicial regulations relating to the leased property.“ Finally, the EPO will generally only seek to determine BFPP tenant status when there is an enforcement situation, so it would appear that the EPO will not issue „comfort letters“ to potential tenants or tenants who wish to confirm that they are entitled to BFPP status.

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