Cantera works closely with Sellers to manage the complexity of contaminated sites and provide comprehensive solutions to their ongoing environmental obligations and liabilities. Cantera offers robust levels of corporate indemnification and assumes all environmental liabilities in a transaction utilizing a variety of legal, contractual, financial and insurance tools including: Environmental Liability Transfers (ELTs), Asset Purchase Agreements (APAs), Financial Assurance (FA) Obligations, Pollution Legal Liability (PLL) Insurance, and Release of Liability & Transfer of Regulatory Closure Obligations.
Deal Structure
Legal & Contractual Protections
Cantera provides an abundance of legal and contractual protections to Sellers including:
- Broad assumption of liabilities including pre-closing operations
- Property is being purchased “As Is, Where Is, With all Faults”
- Provides sellers with a full release of liability from any claims arising from the environmental condition of the property
- Provides seller with an environmental indemnity
- Purchaser, if required, can often replace seller in transactions subject to a Consent Order
- Purchaser, if required, can replace sellers Financial Assurance (FA) obligations
ELTs
Environmental liability transfers are often employed in real estate transactions where the cleanup cost of a contaminated property exceeds its value, a situation known as being "upside down." In such cases, the seller may pay the purchaser to acquire the property and assume its environmental obligations. Additionally, environmental trusts are frequently utilized to fund remediation escrows, ensuring that the necessary funds are available for cleanup activities. These mechanisms help facilitate the transfer of contaminated properties while addressing the financial and legal challenges associated with environmental liabilities.
APAs
Asset Purchase Agreements are a subset of ELTs. APAs are instrumental in merging the negative value of environmental liabilities with the positive value of real estate. This legal framework enables the acquisition of assets, including real estate, while also assuming associated environmental obligations. In the context of contaminated properties where cleanup costs may exceed the property's value, APAs allow for the transfer of ownership with a comprehensive understanding and allocation of environmental risks. This structured approach ensures that both parties are protected and that the transaction can proceed smoothly, even in complex situations involving environmental liabilities.
Insurance Protections
PLL Insurance
PLL Policies are designed to allow sellers of contaminated properties to transfer their site pollution liabilities to an insurance policy or support a buyer’s obligations to the seller with respect to these site pollution liabilities. These policies can be placed in the name of the buyer or the seller depending on the negotiated environmental indemnity negotiations. PLL Policies cover cleanup costs for unknown, pre-existing pollution conditions that are present at an insured location or migrating to an offsite neighboring property. They also cover claims for third-party bodily injury, property damage and natural resources damage (“Toxic Tort/NRD”). In addition to unknown, pre-existing pollution conditions, PLL policies can also provide coverage for known, pre-existing conditions with certain stipulations.
Excess of Indemnity
Issued via endorsement to a PLL policy, the Excess of Indemnity policy provides an added layer of risk management for the seller and is designed to address counterparty credit risk. This policy is issued for the benefit of the indemnitee (recipient of the indemnity provided in a Purchase and Sale Agreement, or equivalent, from another party). The policy responds to the PLL claims, listed above, in the event the indemnitor (provider of the indemnity) fails to perform the contractual obligations of the PSA.
Frequently Asked Questions
Why Cantera? Why not do it ourselves?
Unless your core business is remediating contaminated properties, your resources are better spent on your core business. If you hire an environmental consultant most consultants are not rewarded for successful outcomes but are perpetually studying the problems.
Our business model is to solve problems quickly and efficiently. We are consultants who think like owners because we will own your problem asset. Cantera was started by the owners of Pioneer Engineering & Environmental Services, LLC. Pioneer has been in business for 35 years and is an environmental consulting firm that specializes in Brownfields redevelopment. We have worked on over 30,000 sites and have successfully obtained regulatory closure on over 2000 sites. Cantera has been in business for over 30 years and has successfully completed over 50 projects.
How am I protected financially?
Most projects are set up with an independent escrow agent. We are paid out when we complete tasks. We also obtain PLL and Excess Indemnity policies. The Pollution Legal Liability (PLL) Policies are designed to allow Sellers of contaminated properties to transfer their site pollution liabilities to an insurance policy or support a Buyer’s obligations to the Seller with respect to these site pollution liabilities. These policies can be placed in the name of the Buyer or the Seller depending on the negotiated environmental indemnity. Excess Indemnity will protect the owner in the unlikely event we fail to perform on the project.
What about cost overruns?
As stated above we have worked on 30,000 plus sites. Assessing and remediating sites has been our life’s work. Our core team of consultants have spent their careers with our firm. We have the requisite experience! We also use insurance products to help ensure that former owner’s never have to look back at their liabilities.
