Effective 28 Aug 1998

447.704. Loan guarantees, guidelines, conditions — private lender immune from liability, when. — 1. The director of economic development, with the approval of the director of the department of natural resources, subject to other applicable provisions of sections 447.700 to 447.718, may guarantee loans issued by private financial institutions to persons for the purpose of paying the allowable costs of an eligible project if:

(1) The project otherwise qualifies as an eligible project and is economically sound, except that the costs of remediation may exceed the fair market value of the property prior to redevelopment;

(2) The private lender is unwilling to make the loan without the guarantee, and that the guarantee is the minimum necessary to cause the loan;

(3) The amount to be guaranteed will not exceed one million dollars of the total allowable costs of the eligible project;

(4) The loan will be adequately secured by a mortgage, lien, assignment or pledge, at such a level of priority as is acceptable to the lender and the director of economic development; and

(5) When completed, the eligible project is projected to create not less than ten new jobs, or shall retain a business which supplies not less than twenty-five existing jobs, or a combination thereof, providing not less than an average of thirty-five hours of employment per week per job. Such projection shall be made by the department of economic development.

2. The determinations of the director of economic development pursuant to subsection 1 of this section shall be conclusive for purposes of the validity of a guarantee agreement signed by the director.

3. Fees, charges, rates of interest, times of payment of interest and principal and other terms, conditions and provisions of, and security for, loans guaranteed from the property reuse fund pursuant to this section shall be such as the director of economic development determines to be appropriate and in furtherance of the purpose for which the guarantees are made. The director shall give special consideration in setting the required job creation ratios and project locations for loan guarantees that are for voluntary remediation actions. Interest rates on such guaranteed loans shall not exceed three percentage points above the prime interest rate and the director may require a lower rate be used as is appropriate based upon the financial merits of the application and financial statement of the borrower. Nor may the term of the underlying loan exceed twenty years.

4. The director of economic development may take all actions necessary or appropriate to collect on loan defaults and deficiencies or otherwise deal with the borrower for any loan guarantee made pursuant to this section. The director of economic development shall enact appropriate regulations establishing guidelines for the property reuse fund guarantee program, including guidelines regarding the manner and timing of payouts of guarantee moneys, the order and manner in which security, other than the underlying abandoned or underutilized property, provided by the borrower will be valued, and in the event of default or breach of this program, applied to the reduction of the borrower's debt prior to payment of guarantee moneys to the private lender.

5. The director of economic development may fix service charges for making of a loan guarantee. Such charges shall be payable at such times and place and in such amounts and manner as may be prescribed by the director.

6. The private lender shall be immune from any liability arising out of the performance of the project, including potential liability from the incomplete or unsuccessful remediation of the facility; its lender status by which it holds indicia of ownership primarily to protect its security interest; and any potential liability arising out of or under the environmental laws of this state pursuant to the protections of sections 427.011 to 427.041. Upon written request from a private lender who has foreclosed upon the property of an eligible project and has held the abandoned or underutilized property for a period of at least two years, or longer, the director of the department of economic development shall use the guarantee moneys from the property reuse fund to repay the lender the unpaid amount of the defaulted loan. Such written request by the private lender shall describe the efforts made to sell the property and, to the extent known, the reasons the property is unable to be sold to a new buyer.

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(L. 1995 H.B. 414, A.L. 1998 S.B. 827)