110 STAT. 3009 -465 PUBLIC LAW 104-208—SEPT. 30, 1996 winds up operations, undertakes a response action under section 107(d)(1) or under the direction of an on-scene coordinator appointed under the National Contingency Plan, with respect to the vessel or facility, or takes any other measure to preserve, protect, or prepare the vessel or facility prior to sale or disposition, if the person seeks to sell, re-lease (in the case of a lease finance transaction), or otherwise divest the person of the vessel or facility at the earliest practicable, commercially reasonable time, on commercially reasonable terms, taking into account market conditions and legal and regulatory requirements. "(F) PARTICIPATION IN MANAGEMENT. —For purposes of subparagraph (E)— "(i) the term 'participate in management'— "(I) means actually participating in the management or operational affairs of a vessel or facility; and "(II) does not include merely having the capacity to influence, or the unexercised right to control, vessel or facility operations; "(ii) a person that is a lender and that holds indicia of ownership primarily to protect a security interest in a vessel or facility shall be considered to participate in management only if, while the borrower is still in possession of the vessel or facility encumbered by the security interest, the person— "(I) exercises decisionmaking control over the environmental compliance related to the vessel or facility, such that the person has undertaken responsibility for the hazardous substance handling or disposal practices related to the vessel or facility; or "(II) exercises control at a level comparable to that of a manager of the vessel or facility, such that the person has assumed or manifested responsibility— "(aa) for the overall management of the vessel or facility encompassing day-to-day decisionmaking with respect to environmental compliance; or "(bb) over all or substantially all of the operational functions (as distinguished from financial or administrative functions) of the vessel or facility other than the function of environmental compliance; "(iii) the term 'participate in management' does not include performing an act or failing to act prior to the time at which a security interest is created in a vessel or facility; and "(iv) the term 'participate in management' does not include— "(I) holding a security interest or abandoning or releasing a security interest; "(II) including in the terms of an extension of credit, or in a contract or security agreement
�
