(A)
(1)
A trust agreement for a trust fund, as specified in
paragraph (A) of rule
3745-51-143 of the
Administrative Code shall be ordered as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Trust Agreement
Trust Agreement, the "Agreement,"
entered into as of [date] by and between [name of the owner or operator], a
[name of state] [insert "corporation," "partnership," "association," or
"proprietorship"], the "Grantor," and [name of corporate trustee], [insert
"incorporated in the state of -----------" or "a national bank"], the
"Trustee."
Whereas, the United States
Environmental Protection Agency, "U.S. EPA," an agency of the United States
government, has established certain rules applicable to the Grantor, requiring
that an owner or operator of a facility regulated under Chapters 3745-54 to
3745-57 and 3745-205 or Chapters 3745-65 to 3745-69 and 3745-256 of the
Administrative Code, or satisfying the conditions of the exclusion under
paragraph (A)(24) of rule
3745-51-04 of the Administrative
Code shall provide assurance that funds will be available if needed for care of
the facility under rules
3745-55-10 to
3745-55-20 of the Administrative
Code or rules
3745-66-10 to
3745-66-21 of the Administrative
Code, as applicable,
Whereas, the Grantor has elected to
establish a trust to provide all or part of such financial assurance for the
facilities identified herein,
Whereas, the Grantor, acting through
the Guarantor's duly authorized officers, has selected the Trustee to be the
trustee under this agreement, and the Trustee is willing to act as trustee,
Now, Therefore, the Grantor and the Trustee agree as follows:
Section 1.
Definitions. As used in this Agreement:
(a)
The term
"Grantor" means the owner or operator who enters into this Agreement and any
successors or assigns of the Grantor.
(b)
The term
"Trustee" means the Trustee who enters into this Agreement and any successor
Trustee.
Section
2.
Identification of Facilities and Cost
Estimates. This Agreement pertains to the facilities and cost estimates
identified on attached Schedule A [on Schedule A, for each facility list the
U.S. EPA identification number (if available), name, address, and the current
cost estimates, or portions thereof, for which financial assurance is
demonstrated by this Agreement].
Section
3.
Establishment of Fund. The Grantor and
the Trustee hereby establish a trust fund, the "Fund," for the benefit of Ohio
EPA in the event that the hazardous secondary materials of the grantor no
longer meet the conditions of the exclusion under paragraph (A)(24) of rule
3745-51-04 of the Administrative
Code. The Grantor and the Trustee intend that no third party have access to the
Fund except as herein provided. The Fund is established initially as consisting
of the property, which is acceptable to the Trustee, described in Schedule B
attached hereto. Such property and any other property subsequently transferred
to the Trustee is referred to as the Fund, together with all earnings and
profits thereon, less any payments or distributions made by the Trustee
pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as
hereinafter provided. The Trustee shall not be responsible nor shall the
Trustee undertake any responsibility for the amount or adequacy of, nor any
duty to collect from the Grantor, any payments necessary to discharge any
liabilities of the Grantor established by Ohio EPA.
Section 4.
Payments
from the Fund. The Trustee shall make payments from the Fund as the director
shall direct, in writing, to provide for the payment of the costs of the
performance of activities required under rules
3745-55-10 to
3745-55-20 of the Administrative
Code or rules
3745-66-10 to
3745-66-21 of the Administrative
Code for the facilities covered by this Agreement. The Trustee shall reimburse
the Grantor or other persons as specified by the director from the Fund for
expenditures for such activities in such amounts as the beneficiary shall
direct in writing. In addition, the Trustee shall refund to the Grantor such
amounts as the director specifies in writing. Upon refund, such funds shall no
longer constitute part of the Fund as defined herein.
Section 5.
Payments
Comprising the Fund. Payments made to the Trustee for the Fund shall consist of
cash or securities acceptable to the Trustee.
Section 6.
Trustee
Management. The Trustee shall invest and reinvest the principal and income of
the Fund and keep the Fund invested as a single fund, without distinction
between principal and income, in accordance with general investment policies
and guidelines which the Grantor may communicate in writing to the Trustee from
time to time, subject, however, to the provisions of this section. In
investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee
shall discharge his duties with respect to the trust fund solely in the
interest of the beneficiary and with the care, skill, prudence, and diligence
under the circumstances then prevailing which persons of prudence, acting in a
like capacity and familiar with such matters, would use in the conduct of an
enterprise of a like character and with like aims; except that:
(a)
Securities or
other obligations of the Grantor, or any other owner or operator of the
facilities, or any of their affiliates as defined in the Investment Company Act
of 1940, shall not be acquired or held, unless they are securities or other
obligations of the federal or a state government;
(b)
The Trustee is
authorized to invest the Fund in time or demand deposits of the Trustee, to the
extent insured by an agency of the federal or state government;
and
(c)
The Trustee is authorized to hold cash awaiting
investment or distribution uninvested for a reasonable time and without
liability for the payment of interest thereon.
Section 7.
Commingling and Investment. The Trustee is expressly
authorized in its discretion:
(a)
To transfer from time to time any or all of the assets
of the Fund to any common, commingled, or collective trust fund created by the
Trustee in which the Fund is eligible to participate, subject to all of the
provisions thereof, to be commingled with the assets of other trusts
participating therein; and
(b)
To purchase
shares in any investment company registered under the Investment Company Act of
1940, including one which may be created, managed, underwritten, or to which
investment advice is rendered or the shares of which are sold by the Trustee.
The Trustee may vote such shares in its discretion.
Section 8.
Express
Powers of Trustee. Without in any way limiting the powers and discretions
conferred upon the Trustee by the other provisions of this Agreement or by law,
the Trustee is expressly authorized and empowered:
(a)
To sell,
exchange, convey, transfer, or otherwise dispose of any property held by it, by
public or private sale. No person dealing with the Trustee shall be bound to
see to the application of the purchase money or to inquire into the validity or
expediency of any such sale or other disposition;
(b)
To make, execute,
acknowledge, and deliver any and all documents of transfer and conveyance and
any and all other instruments that may be necessary or appropriate to carry out
the powers herein granted;
(c)
To register any
securities held in the Fund in its own name or in the name of a nominee and to
hold any security in bearer form or in book entry, or to combine certificates
representing such securities with certificates of the same issue held by the
Trustee in other fiduciary capacities, or to deposit or arrange for the deposit
of such securities in a qualified central depositary even though, when so
deposited, such securities may be merged and held in bulk in the name of the
nominee of such depositary with other securities deposited therein by another
person, or to deposit or arrange for the deposit of any securities issued by
the United States government, or any agency or instrumentality thereof, with a
Federal Reserve bank, but the books and records of the Trustee shall at all
times show that all such securities are part of the Fund;
(d)
To deposit any
cash in the Fund in interest-bearing accounts maintained or savings
certificates issued by the Trustee, in its separate corporate capacity, or in
any other banking institution affiliated with the Trustee, to the extent
insured by an agency of the federal or state government; and
(e)
To compromise or
otherwise adjust all claims in favor of or against the Fund.
Section 9.
Taxes and Expenses. All taxes of any kind that may be
assessed or levied against or in respect of the Fund and all brokerage
commissions incurred by the Fund shall be paid from the Fund. All other
expenses incurred by the Trustee in connection with the administration of this
Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements of the Trustee shall be paid from
the Fund.
Section 10.
Annual Valuation. The Trustee shall annually, at least
thirty days prior to the anniversary date of establishment of the Fund, furnish
to the Grantor and to the appropriate director a statement confirming the value
of the Trust. Any securities in the Fund shall be valued at market value as of
no more than sixty days prior to the anniversary date of establishment of the
Fund. The failure of the Grantor to object in writing to the Trustee within
ninety days after the statement has been furnished to the Grantor and the
director shall constitute a conclusively binding assent by the Grantor, barring
the Grantor from asserting any claim or liability against the Trustee with
respect to matters disclosed in the statement.
Section 11.
Advice of
Counsel. The Trustee may from time to time consult with counsel, who may be
counsel to the Grantor, with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder. The Trustee
shall be fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
Section
12.
Trustee Compensation. The Trustee
shall be entitled to reasonable compensation for its services as agreed upon in
writing from time to time with the Grantor.
Section 13.
Successor
Trustee. The Trustee may resign or the Grantor may replace the Trustee, but
such resignation or replacement shall not be effective until the Grantor has
appointed a successor trustee and this successor accepts the appointment. The
successor trustee shall have the same powers and duties as those conferred upon
the Trustee hereunder. Upon the successor trustee's acceptance of the
appointment, the Trustee shall assign, transfer, and pay over to the successor
trustee the funds and properties then constituting the Fund. If for any reason
the Grantor cannot or does not act in the event of the resignation of the
Trustee, the Trustee may apply to a court of competent jurisdiction for the
appointment of a successor trustee or for instructions. The successor trustee
shall specify the date on which the successor trustee assumes administration of
the trust in a writing sent to the Grantor, the director, and the present
Trustee by certified mail ten days before such change becomes effective. Any
expenses incurred by the Trustee as a result of any of the acts contemplated by
this Section shall be paid as provided in Section 9.
Section 14.
Instructions to the Trustee. All orders, requests, and
instructions by the Grantor to the Trustee shall be in writing, signed by such
persons as are designated in the attached Exhibit A or such other designees as
the Grantor may designate by amendment to Exhibit A. The Trustee shall be fully
protected in acting without inquiry in accordance with the Grantor's orders,
requests, and instructions. All orders, requests, and instructions by the
director to the Trustee shall be in writing, signed by the director of the
Regions in which the facilities are located, or their designees, and the
Trustee shall act and shall be fully protected in acting in accordance with
such orders, requests, and instructions. The Trustee shall have the right to
assume, in the absence of written notice to the contrary, that no event
constituting a change or a termination of the authority of any person to act on
behalf of the Grantor or Ohio EPA hereunder has occurred. The Trustee shall
have no duty to act in the absence of such orders, requests, and instructions
from the Grantor or Ohio EPA, except as provided for herein.
Section 15.
Amendment
of Agreement. This Agreement may be amended by an instrument in writing
executed by the Grantor, the Trustee, and the appropriate director, or by the
Trustee and the appropriate director if the Grantor ceases to
exist.
Section 16.
Irrevocability and Termination. Subject to the right of
the parties to amend this Agreement as provided in Section 16, this Trust shall
be irrevocable and shall continue until terminated at the written agreement of
the Grantor, the Trustee, and the director, or by the Trustee and the director,
if the Grantor ceases to exist. Upon termination of the Trust, all remaining
trust property, less final trust administration expenses, shall be delivered to
the Grantor.
Section 17.
Immunity and Indemnification. The Trustee shall not
incur personal liability of any nature in connection with any act or omission,
made in good faith, in the administration of this Trust, or in carrying out any
directions by the Grantor or the EPA director issued in accordance with this
Agreement. The Trustee shall be indemnified and saved harmless by the Grantor
or from the Trust Fund, or both, from and against any personal liability to
which the Trustee may be subjected by reason of any act or conduct in its
official capacity, including all expenses reasonably incurred in its defense in
the event the Grantor fails to provide such defense.
Section 18.
Choice of
Law. This Agreement shall be administered, construed, and enforced according to
the laws of the state of [insert name of state].
Section 19.
Interpretation. As used in this Agreement, words in the
singular include the plural and words in the plural include the singular. The
descriptive headings for each Section of this Agreement shall not affect the
interpretation or the legal efficacy of this Agreement.
In Witness Whereof the parties have
caused this Agreement to be executed by their respective officers duly
authorized and their corporate seals to be hereunto affixed and attested as of
the date first above written: The parties below certify that the wording of
this Agreement is identical to the wording specified in paragraph (A)(1) of
rule 3745-51-151 of the
Administrative Code as such rules were constituted on the date first above
written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]"
(2)
The following is an example of the certification of
acknowledgment which shall accompany the trust agreement for a trust fund as
specified in paragraph (A) of rule
3745-51-143 of the
Administrative Code.
"State of:
County of:
On this [date], before me personally
came [owner or operator] to me known, who, being by me duly sworn, did depose
and say that she/he resides at [address], that she/he is [title] of
[corporation], the corporation described in and which executed the above
instrument; that she/he knows the seal of said corporation; that the seal
affixed to such instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that she/he signed
her/his name thereto by like order.
[Signature of Notary
Public]"
(B)
A surety bond
guaranteeing payment into a trust fund, as specified in paragraph (B) of rule
3745-51-143 of the
Administrative Code, shall be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Financial Guarantee Bond
Date bond executed:
Effective date:
Principal: [legal name and business
address of owner or operator]
Type of Organization: [insert
"individual," "joint venture," "partnership," or "corporation"]
State of incorporation:
Surety(ies): [name(s) and business
address(es)]
U.S. EPA identification number, name,
address and amount(s) for each facility guaranteed by this bond:
Total penal sum of bond: $
Surety's bond number:
Know All Persons By These Presents,
That we, the Principal and Surety(ies) are firmly bound to U.S. EPA in the
event that the hazardous secondary materials at the reclamation or intermediate
facility listed below no longer meet the conditions of the exclusion under
paragraph (A)(24) of rule
3745-51-04 of the Administrative
Code in the above penal sum for the payment of which we bind ourselves, our
heirs, executors, administrators, successors, and assigns jointly and
severally; provided that, where the Surety(ies) are corporations acting as
co-sureties, we, the Sureties, bind ourselves in such sum "jointly and
severally" only for the purpose of allowing a joint action or actions against
any or all of us, and for all other purposes each Surety binds itself, jointly
and severally with the Principal, for the payment of such sum only as is set
forth opposite the name of such Surety, but if no limit of liability is
indicated, the limit of liability shall be the full amount of the penal
sum.
Whereas said Principal is required,
under the Resource Conservation and Recovery Act as amended (RCRA), to have a
permit or interim status in order to own or operate each facility identified
above, or to meet conditions under paragraph (A)(24) of rule
3745-51-04 of the Administrative
Code, and
Whereas said Principal is required to
provide financial assurance as a condition of permit or interim status or as a
condition of an exclusion under paragraph (A)(24) of rule
3745-51-04 of the Administrative
Code, and
Whereas said Principal shall establish
a standby trust fund as is required when a surety bond is used to provide such
financial assurance;
Now, Therefore, the conditions of the
obligation are such that if the Principal shall faithfully, before the
beginning of final closure of each facility identified above, fund the standby
trust fund in the amount(s) identified above for the facility,
Or, if the Principal shall satisfy all
the conditions established for exclusion of hazardous secondary materials from
coverage as waste under paragraph (A)(24) of rule
3745-51-04 of the Administrative
Code,
Or, if the Principal shall fund the
standby trust fund in such amount(s) within fifteen days after a final order to
begin closure is issued by a director or a U.S. district court or other court
of competent jurisdiction,
Or, if the Principal shall provide
alternate financial assurance, as specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code, as applicable, and obtain the director's written approval
of such assurance, within ninety days after the date notice of cancellation is
received by both the Principal and the directors from the Surety(ies), then
this obligation shall be null and void; otherwise the financial assurance is to
remain in full force and effect.
The Surety(ies) shall become liable on
this bond obligation only when the Principal has failed to fulfill the
conditions described above. Upon notification by a director that the Principal
has failed to perform as guaranteed by this bond, the Surety(ies) shall place
funds in the amount guaranteed for the facility(ies) into the standby trust
fund as directed by the director.
The liability of the Surety(ies) shall
not be discharged by any payment or succession of payments hereunder, unless
and until such payment or payments shall amount in the aggregate to the penal
sum of the bond, but in no event shall the obligation of the Surety(ies)
hereunder exceed the amount of said penal sum.
The Surety(ies) may cancel the bond by
sending notice of cancellation by certified mail to the Principal and to the
director(s) for the U.S. EPA Region(s) in which the facility(ies) is (are)
located, provided, however, that cancellation shall not occur during the one
hundred twenty days beginning on the date of receipt of the notice of
cancellation by both the Principal and the director(s), as evidenced by the
return receipts.
The Principal may terminate this bond
by sending written notice to the Surety(ies), provided, however, that no such
notice shall become effective until the Surety(ies) receive(s) written
authorization for termination of the bond by the director(s) of the U.S. EPA
Region(s) in which the bonded facility(ies) is (are) located.
[The following paragraph is an optional
rider that may be included but is not required.]
Principal and Surety(ies) hereby agree
to adjust the penal sum of the bond yearly so that it guarantees a new amount,
provided that the penal sum does not increase by more than twenty per cent in
any one year, and no decrease in the penal sum takes place without the written
permission of the director(s).
In Witness Whereof, the Principal and
Surety(ies) have executed this Financial Guarantee Bond and have affixed their
seals on the date set forth above.
The persons whose signatures appear
below hereby certify that they are authorized to execute this surety bond on
behalf of the Principal and Surety(ies) and that the wording of this surety
bond is identical to the wording specified in paragraph (B) of rule
3745-51-151 of the
Administrative Code as such rules were constituted on the date this bond was
executed.
Principal
[Signature(s)]
[Name(s)]
[Title(s)]
[Corporate seal]
Corporate Surety(ies)
[Name and address]
State of incorporation:
Liability limit: $ -----
[Signature(s)]
[Name(s) and title(s)]
[Corporate seal]
[For every co-surety, provide
signature(s), corporate seal, and other information in the same manner as for
Surety above.]
Bond premium: $ -----"
(C)
A
letter of credit, as specified in paragraph (C) of rule
3745-51-142 of the
Administrative Code, shall be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Irrevocable Standby Letter of
Credit
Regional Administrator(s)
Region(s) -----
Irrevocable Standby Letter of
Credit
Regional Administrator(s)
Region(s) -----
U.S. Environmental Protection
Agency
Dear Sir or Madam: We hereby establish
our Irrevocable Standby Letter of Credit No. -------- in your favor, in the
event that the hazardous secondary materials at the covered reclamation or
intermediary facility(ies) no longer meet the conditions of the exclusion under
paragraph (A)(24) of rule
3745-51-04 of the Administrative
Code, at the request and for the account of [owner's or operator's name and
address] up to the aggregate amount of [in words] U.S. dollars $ --------,
available upon presentation of
(1)
your sight draft,
bearing reference to this letter of credit No.----, and
(2)
your signed
statement reading as follows: "I certify that the amount of the draft is
payable pursuant to regulations issued under authority of the Resource
Conservation and Recovery Act of 1976."
This letter of credit is effective as
of [date] and shall expire on [date at least one year later], but such
expiration date shall be automatically extended for a period of [at least one
year] on [date] and on each successive expiration date, unless, at least one
hundred twenty days before the current expiration date, we notify both you and
[owner's or operator's name] by certified mail that we have decided not to
extend this letter of credit beyond the current expiration date. In the event
you are so notified, any unused portion of the credit shall be available upon
presentation of your sight draft for one hundred twenty days after the date of
receipt by both you and [owner's or operator's name], as shown on the signed
return receipts.
Whenever this letter of credit is drawn
on under and in compliance with the terms of this credit, we shall duly honor
such draft upon presentation to us, and we shall deposit the amount of the
draft directly into the standby trust fund of [owner's or operator's name] in
accordance with your instructions.
We certify that the wording of this
letter of credit is identical to the wording specified in paragraph (C) of rule
3745-51-151 of the
Administrative Code as such rules were constituted on the date shown
immediately below.
[Signature(s) and title(s) of
official(s) of issuing institution]
[Date]
This credit is subject to [insert "the
most recent edition of the Uniform Customs and Practice for Documentary
Credits, published and copyrighted by the International Chamber of Commerce,"
or "the Uniform Commercial Code"]."
(D)
A certificate of
insurance, as specified in paragraph (E) of rule
3745-51-143 of the
Administrative Code, shall be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Certificate of Insurance
Name and Address of Insurer (herein
called the "Insurer"):
Name and Address of Insured (herein
called the "Insured"):
Facilities Covered: [List for each
facility: The U.S. EPA identification number (if any issued), name, address,
and the amount of insurance for all facilities covered, which shall total the
face amount shown below.
Face Amount: ------
Policy Number: -----
Effective Date: -----
The Insurer hereby certifies that it
has issued to the Insured the policy of insurance identified above to provide
financial assurance so that in accordance with applicable rules all hazardous
secondary materials can be removed from the facility or any unit at the
facility and the facility or any unit at the facility can be decontaminated at
the facilities identified above. The Insurer further warrants that such policy
conforms in all respects with the requirements of paragraph (D) of rule
3745-51-143 of the
Administrative Code as applicable and as such rules were constituted on the
date shown immediately below. It is agreed that any provision of the policy
inconsistent with such rules is hereby amended to eliminate such
inconsistency.
Whenever requested by the director(s)
of the U.S. Environmental Protection Agency, the Insurer agrees to furnish to
the director(s) a duplicate original of the policy listed above, including all
endorsements thereon.
I hereby certify that the wording of
this certificate is identical to the wording specified in paragraph (D) of rule
3745-51-151 of the
Administrative Code such rules were constituted on the date shown immediately
below.
[Authorized signature for
Insurer]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
-----
[Date]"
(E)
A letter from the
chief financial officer, as specified in paragraph (E) of rule
3745-51-143 of the
Administrative Code, shall be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Letter From Chief Financial
Officer
[Address to director of every Region in
which facilities for which financial responsibility is to be demonstrated
through the financial test are located].
I am the chief financial officer of
[name and address of firm]. This letter is in support of this firm's use of the
financial test to demonstrate financial assurance, as specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code.
[Fill out the following nine paragraphs
regarding facilities and associated cost estimates. If your firm has no
facilities that belong in a particular paragraph, write "None" in the space
indicated. For each facility, include its U.S. EPA identification number (if
any issued), name, address, and current cost estimates.]
1.
This firm is the
owner or operator of the following facilities for which financial assurance is
demonstrated through the financial test specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code. The current cost estimates covered by the test are shown
for each facility: --------.
2.
This firm
guarantees, through the guarantee specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code, the following facilities owned or operated by the
guaranteed party. The current cost estimates so guaranteed are shown for each
facility: --------. The firm identified above is [insert one or more:
(1)
The direct or
higher-tier parent corporation of the owner or operator;
(2)
owned by the same
parent corporation as the parent corporation of the owner or operator, and
receiving the following value in consideration of this guarantee --------,
or
(3)
engaged in the following substantial business relationship
with the owner or operator --------, and receiving the following value in
consideration of this guarantee -------- ]. [Attach a written description of
the business relationship or a copy of the contract establishing such
relationship to this letter].
3.
In states where
U.S. EPA is not administering the financial requirements rules
3745-51-140 to
3745-51-151 of the
Administrative Code, this firm, as owner or operator or guarantor, is
demonstrating financial assurance for the following facilities through the use
of a test equivalent or substantially equivalent to the financial test
specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code. The current cost estimates covered by such a test are
shown for each facility: --------.
4.
This firm is the
owner or operator of the following hazardous secondary materials management
facilities for which financial assurance is not demonstrated either to U.S. EPA
or a state through the financial test or any other financial assurance
mechanism specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code or equivalent or substantially equivalent state mechanisms.
The current cost estimates not covered by such financial assurance are shown
for each facility: --------.
5.
This firm is the
owner or operator of the following underground injection control facilities for
which financial assurance for plugging and abandonment is required under
Chapter 3745-34 of the Administrative Code. The current closure cost estimates
as required by Chapter 3745-34 of the Adminsitrative Code are shown for each
facility: --------.
6.
This firm is the owner or operator of the following
facilities for which financial assurance for closure or post-closure care is
demonstrated through the financial test specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code and rules
3745-66-40 to
3745-66-48 of the Administrative
Code. The current closure or post-closure cost estimates covered by the test
are shown for each facility: --------.
7.
This firm
guarantees, through the guarantee specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code and rules
3745-66-40 to
3745-66-48 of the Administrative
Code, the closure or post-closure care of the following facilities owned or
operated by the guaranteed party. The current cost estimates for the closure or
post-closure care so guaranteed are shown for each facility: --------. The firm
identified above is [insert one or more:
(1)
The direct or
higher-tier parent corporation of the owner or operator;
(2)
owned by the
same parent corporation as the parent corporation of the owner or operator, and
receiving the following value in consideration of this guarantee ------;
or
(3)
engaged in the following substantial business relationship
with the owner or operator ----, and receiving the following value in
consideration of this guarantee ----]. [Attach a written description of the
business relationship or a copy of the contract establishing such relationship
to this letter].
In states where U.S. EPA is not
administering the financial requirements of rules
3745-55-40 to
3745-55-51 of the Administrative
Code or rules
3745-66-40 to
3745-66-48 of the Administrative
Code, this firm, as owner or operator or guarantor, is demonstrating financial
assurance for the closure or post-closure care of the following facilities
through the use of a test equivalent or substantially equivalent to the
financial test specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code and rules
3745-66-40 to
3745-66-48 of the Administrative
Code. The current closure or post-closure cost estimates covered by such a test
are shown for each facility: ----.
This firm is the owner or operator of
the following hazardous waste management facilities for which financial
assurance for closure or, if a disposal facility, post-closure care, is not
demonstrated either to U.S. EPA or a state through the financial test or any
other financial assurance mechanism specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code and rules
3745-66-40 to
3745-66-48 of the Administrative
Code or equivalent or substantially equivalent state mechanisms. The current
closure or post-closure cost estimates not covered by such financial assurance
are shown for each facility: ----.
This firm [insert "is required" or "is
not required"] to file a Form 10K with the securities and exchange commission
for the latest fiscal year.
The fiscal year of this firm ends on
[month, day]. The figures for the following items marked with an asterisk are
derived from this firm's independently audited, year-end financial statements
for the latest completed fiscal year, ended [date].
[Fill in Alternative I if the criteria
of paragraph (E)(1)(i) of rule
3745-51-143 of the
Administrative Code are used. Fill in Alternative II if the criteria of
paragraph (E)(1)(ii) of rule
3745-51-143 of the
Administrative Code are used.]
Alternative I
1.
Sum of current
cost estimates [total of all cost estimates shown in the nine paragraphs above]
$----
*
2.
Total liabilities [if any portion of the cost estimates
is included in total liabilities, you may deduct the amount of that portion
from this line and add that amount to lines 3 and 4] $----
*
3.
Tangible net
worth $ --------
*
4.
Net worth $ ---------
*
5.
Current assets $
--------
*
6.
Current liabilities $ --------
*
7.
Net working
capital [line 5 minus line 6] $ --------
*
8.
The sum of net income plus
depreciation, depletion, and amortization $ ---------
*
9.
Total assets in
U.S. (required only if less than 90% of firm's assets are located in the U.S.)
$ ---------
10.
Is line 3 at least $10 million? (Yes/No)
--------
11.
Is line 3 at least 6 times line 1? (Yes/No)
---------
12.
Is line 7 at least 6 times line 1? (Yes/No)
---------
*
13.
Are at least 90% of firm's assets located in the U.S.?
If not, complete line 14 (Yes/No) --------
14.
Is line 9 at
least 6 times line 1? (Yes/No) ---------
15.
Is line 2 divided
by line 4 less than 2.0 ? (Yes/No) ---------
16.
Is line 8 divided
by line 2 greater than 0.1 ? (Yes/No) ---------
17.
Is line 5 divided
by line 6 greater than 1.5 ? (Yes/No) ---------
Alternative II
1.
Sum of current
cost estimates [total of all cost estimates shown in the eight paragraphs
above] $ ---------
2.
Current bond rating of most recent issuance of this
firm and name of rating service ---------
3.
Date of issuance
of bond ---------
4.
Date of maturity of bond ---------
*
5.
Tangible net
worth [if any portion of the cost estimates is included in "total liabilities"
on your firm's financial statements, you may add the amount of that portion to
this line] $ ---------
*
6.
Total assets in U.S. (required only if less than 90% of
firm's assets are located in the U.S.) $ ---------
7.
Is line 5 at least
$10 million? (Yes/No) --------
8.
Is line 5 at least
6 times line 1? (Yes/No) --------
*
9.
Are at least 90% of firm's
assets located in the U.S.? If not, complete line 10 (Yes/No)
--------
10.
Is line 6 at least 6 times line 1? (Yes/No)
---------
I hereby certify that the wording of
this letter is identical to the wording specified in paragraph (E) of rule
3745-51-151 of the
Administrative Code as such rules were constituted on the date shown
immediately below.
[Signature]
------------------------------------------------------------
[Name]
-----------------------------------------------------------------
[Title]
----------------------------------------------------------------
[Date]
-----------------------------------------------------------------------"
(F)
A letter from the
chief financial officer, as specified in paragraph (F) of rule
3745-51-147 of the
Administrative Code, shall be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted.
"Letter From Chief Financial
Officer
[Address to director of every Region in
which facilities for which financial responsibility is to be demonstrated
through the financial test are located].
I am the chief financial officer of
[firm's name and address]. This letter is in support of the use of the
financial test to demonstrate financial responsibility for liability coverage
under rule
3745-51-147 of the
Administrative Code [insert "and costs assured in paragraph (E) of rule
3745-51-143 of the
Administrative Code" if applicable] as specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code.
[Fill out the following paragraphs
regarding facilities and liability coverage. If there are no facilities that
belong in a particular paragraph, write "None" in the space indicated. For each
facility, include its U.S. EPA identification number (if any issued), name, and
address].
The firm identified above is the owner
or operator of the following facilities for which liability coverage for
[insert "sudden" or "non-sudden" or "both sudden and non-sudden"] accidental
occurrences is being demonstrated through the financial test specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code: --------
The firm identified above guarantees,
through the guarantee specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code, liability coverage for [insert "sudden" or "non-sudden" or
"both sudden and non-sudden"] accidental occurrences at the following
facilities owned or operated by the following: ---------.
The firm identified above is [insert
one or more:
(1)
The direct or higher-tier parent corporation of the
owner or operator;
(2)
owned by the same parent corporation as the parent
corporation of the owner or operator, and receiving the following value in
consideration of this guarantee ---------; or
(3)
engaged in the
following substantial business relationship with the owner or operator
---------, and receiving the following value in consideration of this guarantee
--------- ]. [Attach a written description of the business relationship or a
copy of the contract establishing such relationship to this
letter.]
The firm identified above is the owner
or operator of the following facilities for which liability coverage for
[insert "sudden" or "non-sudden" or "both sudden and non-sudden"] accidental
occurrences is being demonstrated through the financial test specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code and rules
3745-66-40 to
3745-66-48 of the Administrative
Code: --------
The firm identified above guarantees,
through the guarantee specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code and rules
3745-66-40 to
3745-66-48 of the Administrative
Code, liability coverage for [insert "sudden" or "non-sudden" or "both sudden
and non-sudden"] accidental occurrences at the following facilities owned or
operated by the following: ----. The firm identified above is [insert one or
more:
(1)
The direct or higher-tier parent corporation of the
owner or operator;
(2)
owned by the same parent corporation as the parent
corporation of the owner or operator, and receiving the following value in
consideration of this guarantee ----; or
(3)
engaged in the
following substantial business relationship with the owner or operator ----,
and receiving the following value in consideration of this guarantee ----].
[Attach a written description of the business relationship or a copy of the
contract establishing such relationship to this letter.]
[If you are using the financial test to
demonstrate coverage of both liability and costs assured under paragraph (E) of
rule 3745-51-143 of the
Administrative Code or closure or post-closure care costs under rules
3745-55-43, 3745-55-45, 3745-66-43, or
3745-66-45 of the Administrative
Code, fill in the following nine paragraphs regarding facilities and associated
cost estimates. If there are no facilities that belong in a particular
paragraph, write "None" in the space indicated. For each facility, include the
facility's U.S. EPA identification number (if any issued), name, address, and
current cost estimates.]
1.
This firm is the owner or operator of the following
facilities for which financial assurance is demonstrated through the financial
test specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code. The current cost estimates covered by the test are shown
for each facility: --------.
2.
This firm
guarantees, through the guarantee specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code, the following facilities owned or operated by the
guaranteed party. The current cost estimates so guaranteed are shown for each
facility: --------. The firm identified above is [insert one or more:
(1)
The direct or
higher-tier parent corporation of the owner or operator;
(2)
owned by the same
parent corporation as the parent corporation of the owner or operator, and
receiving the following value in consideration of this guarantee --------,
or
(3)
engaged in the following substantial business relationship
with the owner or operator --------, and receiving the following value in
consideration of this guarantee -------- ]. [Attach a written description of
the business relationship or a copy of the contract establishing such
relationship to this letter].
3.
In states where
U.S. EPA is not administering the financial requirements of rules
3745-51-140 to
3745-51-151 of the
Administrative Code, this firm, as owner or operator or guarantor, is
demonstrating financial assurance for the following facilities through the use
of a test equivalent or substantially equivalent to the financial test
specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code. The current cost estimates covered by such a test are
shown for each facility: --------.
4.
This firm is the
owner or operator of the following hazardous secondary materials management
facilities for which financial assurance is not demonstrated either to U.S. EPA
or a state through the financial test or any other financial assurance
mechanism specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code or equivalent or substantially equivalent state mechanisms.
The current cost estimates not covered by such financial assurance are shown
for each facility: --------.
5.
This firm is the
owner or operator of the following underground injection control facilities for
which financial assurance for plugging and abandonment is required under
Chapter 3745-34 of the Administrative Code. The current closure cost estimates
as required by Chapter 3745-34 of the Administrative Code are shown for each
facility: --------.
6.
This firm is the owner or operator of the following
facilities for which financial assurance for closure or post-closure care is
demonstrated through the financial test specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code and rules
3745-66-40 to
3745-66-48 of the Administrative
Code. The current closure or post-closure cost estimates covered by the test
are shown for each facility: --------.
7.
This firm
guarantees, through the guarantee specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code and rules
3745-66-40 to
3745-66-48 of the Administrative
Code, the closure or post-closure care of the following facilities owned or
operated by the guaranteed party. The current cost estimates for the closure or
post-closure care so guaranteed are shown for each facility: --------. The firm
identified above is [insert one or more:
(1)
The direct or
higher-tier parent corporation of the owner or operator;
(2)
owned by the same
parent corporation as the parent corporation of the owner or operator, and
receiving the following value in consideration of this guarantee --------;
or
(3)
engaged in the following substantial business relationship
with the owner or operator --------, and receiving the following value in
consideration of this guarantee -------- ].
[Attach a written description of the
business relationship or a copy of the contract establishing such relationship
to this letter].
8.
In states where
U.S. EPA is not administering the financial requirements of rules
3745-55-40 to
3745-55-51 of the Administrative
Code or rules
3745-66-40 to
3745-66-48 of the Administrative
Code, this firm, as owner or operator or guarantor, is demonstrating financial
assurance for the closure or post-closure care of the following facilities
through the use of a test equivalent or substantially equivalent to the
financial test specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code and rules
3745-66-40 to
3745-66-48 of the Administrative
Code. The current closure or post-closure cost estimates covered by such a test
are shown for each facility: --------.
9.
This firm is the
owner or operator of the following hazardous waste management facilities for
which financial assurance for closure or, if a disposal facility, post-closure
care, is not demonstrated either to U.S. EPA or a state through the financial
test or any other financial assurance mechanism specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code and rules
3745-66-40 to
3745-66-48 of the Administrative
Code or equivalent or substantially equivalent state mechanisms. The current
closure or post-closure cost estimates not covered by such financial assurance
are shown for each facility: --------.
This firm [insert "is required" or "is
not required"] to file a Form 10K with the securities and exchange commission
for the latest fiscal year.
The fiscal year of this firm ends on
[month, day]. The figures for the following items marked with an asterisk are
derived from this firm's independently audited, year-end financial statements
for the latest completed fiscal year, ended [date].
Part A. Liability Coverage for
Accidental Occurrences
[Fill in Alternative I if the criteria
of paragraph (F)(1)(a) of rule 374-51-147 of the Administrative Code are used.
Fill in Alternative II if the criteria of paragraph (F)(1)(b) of rule
3745-51-147 of the
Administrative Code are used.]
Alternative I
1.
Amount of annual
aggregate liability coverage to be demonstrated $ ---------.
*
2.
Current assets $
---------.
*
3.
Current liabilities $ ---------.
4.
Net working
capital (line 2 minus line 3) $ ---------.
*
5.
Tangible net worth $
---------.
*
6.
If less than 90% of assets are located in the U.S.,
give total U.S. assets $ ---------.
7.
Is line 5 at least
$10 million? (Yes/No) ---------.
8.
Is line 4 at least
6 times line 1? (Yes/No) ---------.
9.
Is line 5 at least
6 times line 1? (Yes/No) ---------.
*
10.
Are at least 90% of assets
located in the U.S.? (Yes/No) --------. If not, complete line
11.
11.
Is line 6 at least 6 times line 1? (Yes/No)
--------.
Alternative II
1.
Amount of annual
aggregate liability coverage to be demonstrated $ ---------.
2.
Current bond
rating of most recent issuance and name of rating service
------------------.
3.
Date of issuance of bond
------------------.
4.
Date of maturity of bond
------------------.
*
5.
Tangible net worth $ ---------.
*
6.
Total assets in
U.S. (required only if less than 90% of assets are located in the U.S.) $
---------.
7.
Is line 5 at least $10 million? (Yes/No)
---------.
8.
Is line 5 at least 6 times line 1?
---------.
9.
Are at least 90% of assets located in the U.S.? If not,
complete line 10. (Yes/No) ----.
10.
Is line 6 at
least 6 times line 1? ---------.
[Fill in part B if you are using the
financial test to demonstrate assurance of both liability coverage and costs
assured under paragraph (E) of rule
3745-51-143 of the
Administrative Code or closure or post-closure care
costs under rules 3745-55-43, 3745-55-45, 3745-66-43, or
3745-66-45 of the Administrative
Code.]
Part B. Facility Care and Liability
Coverage
[Fill in Alternative I if the criteria
of paragraph (E)(1)(a) of rule
3745-51-143 of the
Administrative Code and paragraph (F)(1)(a) of rule
3745-51-147 of the
Administrative Code are used. Fill in Alternative II if the criteria of
paragraph (E)(1)(ii) of rule
3745-51-143 of the
Administrative Code and paragraph (F)(1)(ii) of rule
3745-51-147 of the
Administrative Code are used.]
Alternative I
1.
Sum of current
cost estimates (total of all cost estimates listed above) $
---------
2.
Amount of annual aggregate liability coverage to be
demonstrated $ ---------
3.
Sum of lines 1 and 2 $ --------
*
4.
Total
liabilities (if any portion of your cost estimates is included in your total
liabilities, you may deduct that portion from this line and add that amount to
lines 5 and 6) $ ---------
*
5.
Tangible net worth $
--------
*
6.
Net worth $ ---------
*
7.
Current assets $
--------
*
8.
Current liabilities $ --------
9.
Net working
capital (line 7 minus line 8) $ --------
*
10.
The sum of net income plus
depreciation, depletion, and amortization $ ---------
*
11.
Total assets in
U.S. (required only if less than 90% of assets are located in the U.S.) $
--------
12.
Is line 5 at least $10 million?
(Yes/No)
13.
Is line 5 at least 6 times line 3?
(Yes/No)
14.
Is line 9 at least 6 times line 3?
(Yes/No)
*
15.
Are at least 90% of assets located in the U.S.?
(Yes/No) If not, complete line 16.
16.
Is line 11 at
least 6 times line 3? (Yes/No)
17.
Is line 4 divided
by line 6 less than 2.0 ? (Yes/No)
18.
Is line 10 divided
by line 4 greater than 0.1 ? (Yes/No)
19.
Is line 7 divided
by line 8 greater than 1.5 ? (Yes/No)
Alternative II
1.
Sum of current
cost estimates (total of all cost estimates listed above) $
---------
2.
Amount of annual aggregate liability coverage to be
demonstrated $ ---------
3.
Sum of lines 1 and 2 $ --------
4.
Current bond
rating of most recent issuance and name of rating service
-------------
5.
Date of issuance of bond --------------
6.
Date of maturity
of bond --------------
*
7.
Tangible net worth (if any portion of the cost
estimates is included in "total liabilities" on your financial statements you
may add that portion to this line) $ ---------
*
8.
Total assets in the U.S.
(required only if less than 90% of assets are located in the U.S.) $
---------
9.
Is line 7 at least $10 million?
(Yes/No)
10.
Is line 7 at least 6 times line 3?
(Yes/No)
*
11.
Are at least 90% of assets located in the U.S.?
(Yes/No) If not complete line 12.
12.
Is line 8 at
least 6 times line 3? (Yes/No)
I hereby certify that the wording of
this letter is identical to the wording specified in paragraph (F) of rule
3745-51-151 of the
Administrative Code as such rules were constituted on the date shown
immediately below.
[Signature]
------------------------------------------------------------
[Name]
-----------------------------------------------------------------
[Title]
----------------------------------------------------------------
[Date]
-----------------------------------------------------------------"
(G)
(1)
A corporate guarantee, as specified in paragraph (E) of
rule 3745-51-143 of the
Administrative Code shall be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Corporate Guarantee for Facility
Care
Guarantee made this [date] by [name of
guaranteeing entity], a business corporation organized under the laws of the
state of [insert name of state], herein referred to as guarantor. This
guarantee is made on behalf of the [owner or operator] of [business address],
which is [one of the following: "our subsidiary"; "a subsidiary of [name and
address of common parent corporation], of which guarantor is a subsidiary"; or
"an entity with which guarantor has a substantial business relationship, as
defined in paragraph (H) of rule
3745-55-41 of the Administrative
Code and paragraph (H) of rule
3745-66-41 of the Administrative
Code" to the United States Environmental Protection Agency (U.S.
EPA).
Recitals
1.
Guarantor meets or
exceeds the financial test criteria and agrees to comply with the reporting
requirements for guarantors as specified in paragraph (E) of rule
3745-51-143 of the
Administrative Code.
2.
[Owner or operator] owns or operates the following
facility(ies) covered by this guarantee: [List for each facility: U.S. EPA
identification number (if any issued), name, and address.
3.
"Closure plans" as
used below refer to the plans maintained as required by rules
3745-51-140 to
3745-51-151 of the
Administrative Code for the care of facilities as identified
above.
4.
For value received from [owner or operator], guarantor
guarantees that in the event of a determination by the director that the
hazardous secondary materials at the owner or operator's facility covered by
this guarantee do not meet the conditions of the exclusion under paragraph
(A)(24) of rule
3745-51-04 of the Administrative
Code, the guarantor will dispose of any hazardous secondary material as
hazardous waste, and close the facility in accordance with closure requirements
in Chapters 3745-54 to 3745-57 and 3745-205 of the Administrative Code or
Chapters 3745-65 to 3745-69 and 3745-256 of the Administrative Code, as
applicable, or establish a trust fund as specified in paragraph (A) of rule
3745-51-143 of the
Administrative Code in the name of the owner or operator in the amount of the
current cost estimate.
5.
Guarantor agrees that if, at the end of any fiscal year
before termination of this guarantee, the guarantor fails to meet the financial
test criteria, guarantor shall send within ninety days, by certified mail,
notice to the director(s) for the Region(s) in which the facility(ies) is(are)
located and to [owner or operator] that the owner or operator intends to
provide alternate financial assurance as specified in rules
3745-51-140 to
3745-51-151 of the
Administrative Code, as applicable, in the name of [owner or operator]. Within
one hundred twenty days after the end of such fiscal year, the guarantor shall
establish such financial assurance unless [owner or operator] has done
so.
6.
The guarantor agrees to notify the director by
certified mail, of a voluntary or involuntary proceeding under Title 11
(Bankruptcy), U.S. Code, naming guarantor as debtor, within ten days after
commencement of the proceeding.
7.
Guarantor agrees
that within thirty days after being notified by a director of a determination
that guarantor no longer meets the financial test criteria or that the
Guarantor is disallowed from continuing as a guarantor, the Guarantor shall
establish alternate financial assurance as specified in Chapters 3745-54 to
3745-57 and 3745-205 of the Administrative Code or Chapters 3745-65 to 3745-69
and 3745-256 of the Administrative Code or rules
3745-51-140 to
3745-51-151 of the
Administrative Code, as applicable, in the name of [owner or operator] unless
[owner or operator] has done so.
8.
Guarantor agrees
to remain bound under this guarantee notwithstanding any or all of the
following: amendment or modification of the closure plan, the extension or
reduction of the time of performance, or any other modification or alteration
of an obligation of the owner or operator pursuant to Chapters 3745-54 to
3745-57 and 3745-205 of the Administrative Code or Chapters 3745-65 to 3745-69
and 3745-256 of the Administrative Code or rules
3745-51-140 to
3745-51-151 of the
Administrative Code.
9.
Guarantor agrees to remain bound under this guarantee
for as long as [owner or operator] shall comply with the applicable financial
assurance requirements of Chapters 3745-54 to 3745-57, 3745-65 to 3745-69,
3745-205, and 3745-256 of the Administrative Code or the financial assurance
condition of paragraph (A)(24)(vi)(f) of rule
3745-51-04 of the Administrative
Code for the above-listed facilities, except as provided in paragraph 10 of
this agreement.
10.
[Insert the following language if the guarantor is (a)
a direct or higher-tier corporate parent, or (b) a firm whose parent
corporation is also the parent corporation of the owner or operator]:
Guarantor may terminate this guarantee
by sending notice by certified mail to the director(s) for the Region(s) in
which the facility(ies) is(are) located and to [owner or operator], provided
that this guarantee may not be terminated unless and until [the owner or
operator] obtains, and the director(s) approve(s), alternate coverage complying
with rule
3745-51-143 of the
Administrative Code.
[Insert the following language if the
guarantor is a firm qualifying as a guarantor due to its "substantial business
relationship" with the owner or operator]
Guarantor may terminate this guarantee
one hundred twenty days after the receipt of notification, through certified
mail, by the director(s) for the Region(s) in which the facility(ies) is(are)
located and by [the owner or operator].
11.
Guarantor agrees
that if [owner or operator] fails to provide alternate financial assurance as
specified in rules
3745-51-140 to
3745-51-151 or Chapters 3745-54
to 3745-57, 3745-65 to 3745-60, 3745-205, and 3745-256 of the Administrative
Code, as applicable, and obtain written approval of such assurance from the
director(s) within ninety days after a notice of cancellation by the guarantor
is received by a director from guarantor, guarantor shall provide such
alternate financial assurance in the name of [owner or
operator].
12.
Guarantor expressly waives notice of acceptance of this
guarantee by the U.S. EPA or by [owner or operator]. Guarantor also expressly
waives notice of amendments or modifications of the closure plan and of
amendments or modifications of the applicable requirements of rules
3745-51-140 to
3745-51-151 or Chapters 3745-54
to 3745-57, 3745-65 to 3745-60, 3745-205, and 3745-256 of the Administrative
Code.
I hereby certify that the wording of
this guarantee is identical to the wording specified in paragraph (G)(1) of
rule 3745-51-151 of the
Administrative Code as such rules were constituted on the date first above
written.
Effective date:
--------------------------------------------------------
[Name of guarantor]
----------------------------------------------------
[Authorized signature for guarantor]
-----------------------------------
[Name of person signing]
-----------------------------------------------
[Title of person signing]
----------------------------------------------
Signature of witness or notary:
----------------------------------------"
(2)
A guarantee, as
specified in paragraph (G) of rule
3745-51-147 of the
Administrative Code, shall be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Guarantee for Liability
Coverage
Guarantee made this [date] by [name of
guaranteeing entity], a business corporation organized under the laws of [if
incorporated within the United States insert "the state of ---------" and
insert name of state; if incorporated outside the United States insert the name
of the country in which incorporated, the principal place of business within
the United States, and the name and address of the registered agent in the
state of the principal place of business], herein referred to as guarantor.
This guarantee is made on behalf of [owner or operator] of [business address],
which is one of the following: "our subsidiary;" "a subsidiary of [name and
address of common parent corporation], of which guarantor is a subsidiary;" or
"an entity with which guarantor has a substantial business relationship, as
defined in [either paragraph (H) of rule
3745-55-41 of the Administrative
Code or paragraph (H) of rule
3745-66-41 of the Administrative
Code]," to any and all third parties who have sustained or may sustain bodily
injury or property damage caused by [sudden or non-sudden] accidental
occurrences arising from operation of the facility(ies) covered by this
guarantee.
Recitals
1.
Guarantor meets
or exceeds the financial test criteria and agrees to comply with the reporting
requirements for guarantors as specified in paragraph (G) of rule
3745-51-147 of the
Administrative Code.
2.
[Owner or operator] owns or operates the following
facility(ies) covered by this guarantee: [List for each facility: U.S. EPA
identification number (if any issued), name, and address; and if guarantor is
incorporated outside the United States list the name and address of the
guarantor's registered agent in each state.] This corporate guarantee satisfies
RCRA third-party liability requirements for [insert "sudden" or "non-sudden" or
"both sudden and non-sudden"] accidental occurrences in above-named owner or
operator facilities for coverage in the amount of [insert dollar amount] for
each occurrence and [insert dollar amount] annual aggregate.
3.
For value received
from [owner or operator], guarantor guarantees to any and all third parties who
have sustained or may sustain bodily injury or property damage caused by
[sudden or non-sudden] accidental occurrences arising from operations of the
facility(ies) covered by this guarantee that in the event that [owner or
operator] fails to satisfy a judgment or award based on a determination of
liability for bodily injury or property damage to third parties caused by
[sudden or non-sudden] accidental occurrences, arising from the operation of
the above-named facilities, or fails to pay an amount agreed to in settlement
of a claim arising from or alleged to arise from such injury or damage, the
guarantor will satisfy such judgment(s), award(s) or settlement agreement(s) up
to the limits of coverage identified above.
4.
Such obligation
does not apply to any of the following:
(a)
Bodily injury or
property damage for which [insert owner or operator] is obligated to pay
damages by reason of the assumption of liability in a contract or agreement.
This exclusion does not apply to liability for damages that [insert owner or
operator] would be obligated to pay in the absence of the contract or
agreement.
(b)
Any obligation of [insert owner or operator] under a
workers' compensation, disability benefits, or unemployment compensation law or
any similar law.
(c)
Bodily injury to:
(1)
An employee of
[insert owner or operator] arising from, and in the course of, employment by
[insert owner or operator]; or
(2)
The spouse,
child, parent, brother, or sister of that employee as a consequence of, or
arising from, and in the course of employment by [insert owner or operator].
This exclusion applies:
(A)
Whether [insert owner or operator] may be liable as an
employer or in any other capacity; and
(B)
To any obligation
to share damages with or repay another person who pay damages because of the
injury to persons identified in paragraphs (1) and (2).
(d)
Bodily injury or property damage arising out of the
ownership, maintenance, use, or entrustment to others of any aircraft, motor
vehicle or watercraft.
(e)
Property damage to:
(1)
Any property
owned, rented, or occupied by [insert owner or operator];
(2)
Premises that are
sold, given away or abandoned by [insert owner or operator] if the property
damage arises out of any part of those premises;
(3)
Property loaned
to [insert owner or operator];
(4)
Personal property
in the care, custody or control of [insert owner or operator];
(5)
That particular
part of real property on which [insert owner or operator] or any contractors or
subcontractors working directly or indirectly on behalf of [insert owner or
operator] are performing operations, if the property damage arises out of these
operations.
5.
Guarantor agrees
that if, at the end of any fiscal year before termination of this guarantee,
the guarantor fails to meet the financial test criteria, guarantor shall send
within ninety days, by certified mail, notice to the director[s] for the
Region[s] in which the facility[ies] is[are] located and to [owner or operator]
that the guarantor intends to provide alternate liability coverage as specified
in rule 3745-51-147 of the
Administrative Code, as applicable, in the name of [owner or operator]. Within
one hundred twenty days after the end of such fiscal year, the guarantor shall
establish such liability coverage unless [owner or operator] has done
so.
6.
The guarantor agrees to notify the director by
certified mail of a voluntary or involuntary proceeding under title 11
(Bankruptcy), U.S. Code, naming guarantor as debtor, within ten days after
commencement of the proceeding. Guarantor agrees that within thirty days after
being notified by a director of a determination that guarantor no longer meets
the financial test criteria or that the Guarantor is disallowed from continuing
as a guarantor, the Guarantor shall establish alternate liability coverage as
specified in rule
3745-51-147 of the
Administrative Code in the name of [owner or operator], unless [owner or
operator] has done so.
7.
Guarantor reserves the right to modify this agreement
to take into account amendment or modification of the liability requirements
set by rule
3745-51-147 of the
Administrative Code, provided that such modification shall become effective
only if a director does not disapprove the modification within thirty days of
receipt of notification of the modification.
8.
Guarantor agrees
to remain bound under this guarantee for so long as [owner or operator] shall
comply with the applicable requirements of rule
3745-51-147 of the
Administrative Code for the above-listed facility(ies), except as provided in
paragraph ten of this agreement.
9.
[Insert the
following language if the guarantor is (a) a direct or higher-tier corporate
parent, or (b) a firm whose parent corporation is also the parent corporation
of the owner or operator]:
10.
Guarantor may
terminate this guarantee by sending notice by certified mail to the director(s)
for the Region(s) in which the facility(ies) is(are) located and to [owner or
operator], provided that this guarantee may not be terminated unless and until
[the owner or operator] obtains, and the director(s) approve(s), alternate
liability coverage complying with rule
3745-51-147 of the
Administrative Code.
[Insert the following language if the
guarantor is a firm qualifying as a guarantor due to the firm's "substantial
business relationship" with the owner or operator]:
Guarantor may terminate this guarantee
one hundred twenty days after receipt of notification, through certified mail,
by the director(s) for the Region(s) in which the facility(ies) is(are) located
and by [the owner or operator].
11.
Guarantor hereby
expressly waives notice of acceptance of this guarantee by any
party.
12.
Guarantor agrees that this guarantee is in addition to
and does not affect any other responsibility or liability of the guarantor with
respect to the covered facilities.
13.
The Guarantor
shall satisfy a third-party liability claim only on receipt of one of the
following documents:
(a)
Certification from the Principal and the third-party
claimant(s) that the liability claim should be paid. The certification shall be
worded as follows, except that instructions in brackets are to be replaced with
the relevant information and the brackets deleted:
Certification of Valid
Claim
The undersigned, as parties [insert
Principal] and [insert name and address of third-party claimant(s)], hereby
certify that the claim of bodily injury or property damage caused by a [sudden
or non-sudden] accidental occurrence arising from operating.
[Principal's] facility should be paid
in the amount of $.
[Signatures]
-----------------------------------------------------------
Principal
--------------------------------------------------------------
(Notary) Date
----------------------------------------------------------
[Signatures]
-----------------------------------------------------------
Claimant(s)
-----------------------------------------------------------
(Notary) Date
----------------------------------------------------------
(b)
A
valid final court order establishing a judgment against the Principal for
bodily injury or property damage caused by sudden or non-sudden accidental
occurrences arising from the operation of the Principal's facility or group of
facilities.
14.
In the event of combination of this guarantee with
another mechanism to meet liability requirements, this guarantee will be
considered [insert "primary" or "excess"] coverage.
I hereby certify that the wording of
the guarantee is identical to the wording specified in paragraph (G)(2) of rule
3745-51-151 of the
Administrative Code as such rules were constituted on the date shown
immediately below.
Effective date:
--------------------------------------------------------
[Name of guarantor]
----------------------------------------------------
[Authorized signature for guarantor]
-----------------------------------
[Name of person signing]
-----------------------------------------------
[Title of person signing]
----------------------------------------------
Signature of witness or notary:
----------------------------------------"
(H)
A
hazardous waste facility liability endorsement as required in rule
3745-51-147 of the
Administrative Code shall be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Hazardous Secondary Material
Reclamation/Intermediate Facility Liability Endorsement
1.
This endorsement
certifies that the policy to which the endorsement is attached provides
liability insurance covering bodily injury and property damage in connection
with the insured's obligation to demonstrate financial responsibility under
rule 3745-51-147 of the
Administrative Code. The coverage applies at [list U.S. EPA identification
number (if any issued), name, and address for each facility] for [insert
"sudden accidental occurrences,"
"non-sudden accidental occurrences," or "sudden and non-sudden accidental
occurrences;" if coverage is for multiple facilities and the coverage is
different for different facilities, indicate which facilities are insured for
sudden accidental occurrences, which are insured for non-sudden accidental
occurrences, and which are insured for both]. The limits of liability are
[insert the dollar amount of the "each occurrence" and "annual aggregate"
limits of the Insurer's liability], exclusive of legal defense
costs.
2.
The insurance afforded with respect to such occurrences
is subject to all of the terms and conditions of the policy; provided, however,
that any provisions of the policy inconsistent with subsections (a) through (e)
of this Paragraph 2 are hereby amended to conform with subsections (a) through
(e):
(a)
Bankruptcy or insolvency of the insured shall not relieve
the Insurer of it's the Insurer's obligations under the policy to which this
endorsement is attached.
(b)
The Insurer is liable for the payment of amounts within
any deductible applicable to the policy, with a right of reimbursement by the
insured for any such payment made by the Insurer. This provision does not apply
with respect to that amount of any deductible for which coverage is
demonstrated as specified in paragraph (F) of rule
3745-51-147 of the
Administrative Code.
(c)
Whenever requested by a director of the U.S.
Environmental Protection Agency (U.S. EPA), the Insurer agrees to furnish to
the director a signed duplicate original of the policy and all
endorsements.
(d)
Cancellation of this endorsement, whether by the
Insurer, the insured, a parent corporation providing insurance coverage for its
subsidiary, or by a firm having an insurable interest in and obtaining
liability insurance on behalf of the owner or operator of the facility, will be
effective only upon written notice and only after the expiration of sixty days
after a copy of such written notice is received by the director(s) of the U.S.
EPA Region(s) in which the facility(ies) is(are) located.
(e)
Any other
termination of this endorsement will be effective only upon written notice and
only after the expiration of thirty (30) days after a copy of such written
notice is received by the director(s) of the U.S EPA Region(s) in which the
facility(ies) is (are) located.
Attached to and forming part of policy
No. ---- issued by [name of Insurer], herein called the Insurer, of [address of
Insurer] to [name of insured] of [address] this ---------------- day of
----------------, 20----. The effective date of said policy is ----------------
day of ----------------, 20----.
I hereby certify that the wording of
this endorsement is identical to the wording specified in paragraph (H) of rule
3745-51-151 of the
Administrative Code as such rule was constituted on the date first above
written, and that the Insurer is licensed to transact the business of
insurance, or eligible to provide insurance as an excess or surplus lines
insurer, in one or more states.
[Signature of Authorized Representative
of Insurer]
[Type name]
[Title], Authorized Representative of
[name of Insurer]
[Address of
Representative]"
(I)
A certificate of
liability insurance as required in rule
3745-51-147 of the
Administrative Code shall be worded as follows, except that the instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Hazardous Secondary Material
Reclamation/Intermediate Facility Certificate of Liability
Insurance
1.
[Name of Insurer], (the "Insurer"), of [address of
Insurer] hereby certifies that it has issued liability insurance covering
bodily injury and property damage to [name of insured], (the "insured"), of
[address of insured] in connection with the insured's obligation to demonstrate
financial responsibility under Chapters 3745-55 and 3745-66 of the
Administrative Code, and the financial assurance condition of paragraph
(A)(24)(f)(vi) of rule
3745-51-04 of the Administrative
Code. The coverage applies at [list U.S. EPA identification number (if any
issued), name, and address for each facility] for [insert "sudden accidental
occurrences," "non-sudden accidental occurrences," or "sudden and non-sudden
accidental occurrences;" if coverage is for multiple facilities and the
coverage is different for different facilities, indicate which facilities are
insured for sudden accidental occurrences, which are insured for non-sudden
accidental occurrences, and which are insured for both]. The limits of
liability are [insert the dollar amount of the "each occurrence" and "annual
aggregate" limits of the Insurer's liability], exclusive of legal defense
costs. The coverage is provided under policy number, issued on [date]. The
effective date of said policy is [date].
2.
The Insurer
further certifies the following with respect to the insurance described in
Paragraph 1:
(a)
Bankruptcy or insolvency of the insured shall not relieve
the Insurer of it's the Insurer's obligations under the policy.
(b)
The Insurer is
liable for the payment of amounts within any deductible applicable to the
policy, with a right of reimbursement by the insured for any such payment made
by the Insurer. This provision does not apply with respect to that amount of
any deductible for which coverage is demonstrated as specified in rule
3745-51-147 of the
Administrative Code.
(c)
Whenever requested by a director of the U.S.
Environmental Protection Agency (U.S. EPA), the Insurer agrees to furnish to
the director a signed duplicate original of the policy and all
endorsements.
(d)
Cancellation of the insurance, whether by the insurer,
the insured, a parent corporation providing insurance coverage for its
subsidiary, or by a firm having an insurable interest in and obtaining
liability insurance on behalf of the owner or operator of the hazardous waste
management facility, will be effective only upon written notice and only after
the expiration of sixty days after a copy of such written notice is received by
the director(s) of the U.S. EPA Region(s) in which the facility(ies) is(are)
located.
(9)
The
Surety(ies) hereby waive(s) notification of amendments to applicable laws,
statutes, rules and agree(s) that no such amendment shall in any way alleviate
its (their) obligation on this bond. (10) This bond is effective from [insert
date] (12:01 a.m., standard time, at the address of the Principal as stated
herein) and shall continue in force until terminated as described
above.
(e)
Any other termination of the insurance will be
effective only upon written notice and only after the expiration of thirty (30)
days after a copy of such written notice is received by the director(s) of the
U.S. EPA Region(s) in which the facility(ies) is (are) located.
I hereby certify that the wording of
this instrument is identical to the wording specified in paragraph (I) of rule
3745-51-151 of the
Administrative Code as such rule was constituted on the date first above
written, and that the Insurer is licensed to transact the business of
insurance, or eligible to provide insurance as an excess or surplus lines
insurer, in one or more states.
[Signature of authorized representative
of Insurer]
[Type name]
[Title], Authorized Representative of
[name of Insurer]
[Address of
Representative]"
(J)
A letter of
credit, as specified in paragraph (H) of rule
3745-51-147 of the
Administrative Code shall be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Irrevocable Standby Letter of
Credit
Name and Address of Issuing Institution
--------------------------------
Regional Administrator(s)
----------------------------------------------
Region(s)
--------------------------------------------------------------
U.S. Environmental Protection Agency
-----------------------------------
Dear Sir or Madam: We hereby establish
our Irrevocable Standby Letter of Credit No. ------------- in the favor of
["any and all third-party liability claimants" or insert name of trustee of the
standby trust fund], at the request and for the account of [owner or operator's
name and address] for third-party liability awards or settlements up to [in
words] U.S. dollars $ ------------- per occurrence and the annual aggregate
amount of [in words] U.S. dollars $----, for sudden accidental occurrences or
for third-party liability awards or settlements up to the amount of [in words]
U.S. dollars $ ------------- per occurrence, and the annual aggregate amount of
[in words] U.S. dollars $ -------------, for non-sudden accidental occurrences
available upon presentation of a sight draft bearing reference to this letter
of credit No. -------------, and [insert the following language if the letter
of credit is being used without a standby trust fund:
(1)
a signed
certificate reading as follows:
Certificate of Valid Claim
The undersigned, as parties [insert
principal] and [insert name and address of third party claimant(s)], hereby
certify that the claim of bodily injury or property damage caused by a [sudden
or non-sudden] accidental occurrence arising from operations of [principal's]
facility should be paid in the amount of $[ ]. We hereby certify that the claim
does not apply to any of the following:
(a)
Bodily injury or
property damage for which [insert principal] is obligated to pay damages by
reason of the assumption of liability in a contract or agreement. This
exclusion does not apply to liability for damages that [insert principal] would
be obligated to pay in the absence of the contract or
agreement.
(b)
Any obligation of [insert principal] under a workers'
compensation, disability benefits, or unemployment compensation law or any
similar law.
(c)
Bodily injury to:
(1)
An employee of
[insert principal] arising from, and in the course of, employment by [insert
principal]; or
(2)
The spouse, child, parent, brother or sister of that
employee as a consequence of, or arising from, and in the course of employment
by [insert principal].
This exclusion applies:
(A)
Whether [insert
principal] may be liable as an employer or in any other capacity;
and
(B)
To any obligation to share damages with or repay
another person who shall pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d)
Bodily injury or
property damage arising out of the ownership, maintenance, use, or entrustment
to others of any aircraft, motor vehicle or watercraft.
(e)
Property damage
to:
(1)
Any
property owned, rented, or occupied by [insert principal];
(2)
Premises that are
sold, given away or abandoned by [insert principal] if the property damage
arises out of any part of those premises;
(3)
Property loaned
to [insert principal];
(4)
Personal property in the care, custody or control of
[insert principal];
(5)
That particular part of real property on which [insert
principal] or any contractors or subcontractors working directly or indirectly
on behalf of [insert principal] are performing operations, if the property
damage arises out of these operations.
[Signatures]
-----------------------------------------------------------
Grantor
----------------------------------------------------------------
[Signatures]
-----------------------------------------------------------
Claimant(s)
------------------------------------------------------------
or
(2)
a
valid final court order establishing a judgment against the Grantor for bodily
injury or property damage caused by sudden or non-sudden accidental occurrences
arising from the operation of the Grantor's facility or group of
facilities.]
This letter of credit is effective as
of [date] and shall expire on [date at least one year later], but such
expiration date shall be automatically extended for a period of [at least one
year] on [date and on each successive expiration date, unless, at least one
hundred twenty days before the current expiration date, we notify you, the
director for Region [Region], and [owner's or operator's name] by certified
mail that we have decided not to extend this letter of credit beyond the
current expiration date.
Whenever this letter of credit is drawn
on under and in compliance with the terms of this credit, we shall duly honor
such draft upon presentation to us.
[Insert the following language if a
standby trust fund is not being used: "In the event that this letter of credit
is used in combination with another mechanism for liability coverage, this
letter of credit shall be considered [insert "primary" or "excess"
coverage].
(a)
Certification from the Grantor and the third party
claimant(s) that the liability claim should be paid. The certification shall be
worded as follows, except that instructions in brackets are to be replaced with
the relevant information and the brackets deleted:
We certify that the wording of this
letter of credit is identical to the wording specified in paragraph (J) of rule
3745-51-151 of the
Administrative Code as such rules were constituted on the date shown
immediately below. [Signature(s) and title(s) of official(s) of issuing
institution] [Date].
This credit is subject to [insert "the
most recent edition of the Uniform Customs and Practice for Documentary
Credits, published and copyrighted by the International Chamber of Commerce,"
or "the Uniform Commercial Code"]."
(K)
A surety bond, as
specified in paragraph (I) of rule
3745-51-147 of the
Administrative Code shall be worded as follows: except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Payment Bond
Surety Bond No. [Insert
number]
Parties [Insert name and address of
owner or operator], Principal, incorporated in [Insert state of incorporation]
of [Insert city and state of principal place of business] and [Insert name and
address of surety company(ies)], Surety Company(ies), of [Insert surety(ies)
place of business].
U.S. EPA identification number (if any
issued), name, and address for each facility guaranteed by this bond:
----
|
|
Sudden accidental
occurrences
|
Non-sudden accidental
occurrences
|
|
Penal Sum Per
Occurrence
|
[insert amount]
|
[insert amount]
|
|
Annual Aggregate
|
[insert amount]
|
[insert amount]
|
Purpose: This is an agreement between
the Surety(ies) and the Principal under which the Surety(ies), its(their)
successors and assignees, agree to be responsible for the payment of claims
against the Principal for bodily injury or property damage to third parties
caused by ["sudden" or "non-sudden"] accidental occurrences arising from
operations of the facility or group of facilities in the sums prescribed
herein; subject to the governing provisions and the following
conditions.
Governing Provisions:
(1)
Section 3004 of
the Resource Conservation and Recovery Act of 1976.
(2)
Rules of the U.S.
Environmental Protection Agency ("U.S. EPA"), particularly Chapters 3745-54 to
3745-57 and 3745-205 of the Administrative Code, Chapters 3745-65 to 3745-69
and 3745-256 of the Administrative Code, and rules
3745-51-140 to
3745-51-151 Administrative Code
(if applicable).
(3)
Rules of the governing state agency (if applicable)
[insert citation].
Conditions:
(1)
The Principal is
subject to the applicable governing provisions that require the Principal to
have and maintain liability coverage for bodily injury and property damage to
third parties caused by ["sudden" or "non-sudden"] accidental occurrences
arising from operations of the facility or group of facilities. Such obligation
does not apply to any of the following:
(a)
Bodily injury or
property damage for which [insert Principal] is obligated to pay damages by
reason of the assumption of liability in a contract or agreement. This
exclusion does not apply to liability for damages that [insert Principal] would
be obligated to pay in the absence of the contract or
agreement.
(b)
Any obligation of [insert Principal] under a workers'
compensation, disability benefits, or unemployment compensation law or similar
law.
(c)
Bodily injury to:
(1)
An employee of
[insert Principal] arising from, and in the course of, employment by [insert
principal]; or
(2)
The spouse, child, parent, brother or sister of that
employee as a consequence of, or arising from, and in the course of employment
by [insert Principal]. This exclusion applies:
(A)
Whether [insert
Principal] may be liable as an employer or in any other capacity;
and
(B)
To any obligation to share damages with or repay
another person who shall pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d)
Bodily injury or
property damage arising out of the ownership, maintenance, use, or entrustment
to others of any aircraft, motor vehicle or watercraft.
(e)
Property damage
to:
(1)
Any
property owned, rented, or occupied by [insert Principal];
(2)
Premises that are
sold, given away or abandoned by [insert Principal] if the property damage
arises out of any part of those premises;
(3)
Property loaned
to [insert Principal];
(4)
Personal property in the care, custody or control of
[insert Principal];
(5)
That particular part of real property on which [insert
Principal] or any contractors or subcontractors working directly or indirectly
on behalf of [insert Principal] are performing operations, if the property
damage arises out of these operations.
(2)
This bond assures
that the Principal will satisfy valid third party liability claims, as
described in condition 1.
(3)
If the Principal fails to satisfy a valid third party
liability claim, as described above, the Surety(ies) becomes liable on this
bond obligation.
(4)
The Surety(ies) shall satisfy a third party liability
claim only upon the receipt of one of the following documents:
(a)
Certification
from the Principal and the third party claimant(s) that the liability claim
should be paid. The certification shall be worded as follows, except that
instructions in brackets are to be replaced with the relevant information and
the brackets deleted:
Certification of Valid
Claim:
The undersigned, as parties [insert
name of Principal] and [insert name and address of third party claimant(s)],
hereby certify that the claim of bodily injury or property damage caused by a
[sudden or non-sudden] accidental occurrence arising from operating
[Principal's] facility should be paid in the amount of $[ ].
[Signature]
Principal
[Notary] Date
[Signature(s)]
Claimant(s)
[Notary] Date or
(b)
A
valid final court order establishing a judgment against the Principal for
bodily injury or property damage caused by sudden or non-sudden accidental
occurrences arising from the operation of the Principal's facility or group of
facilities.
(5)
In the event of combination of this bond with another
mechanism for liability coverage, this bond will be considered [insert
"primary" or "excess"] coverage.
(6)
The liability of
the Surety(ies) shall not be discharged by any payment or succession of
payments hereunder, unless and until such payment or payments shall amount in
the aggregate to the penal sum of the bond. In no event shall the obligation of
the Surety(ies) hereunder exceed the amount of said annual aggregate penal sum,
provided that the Surety(ies) furnish(es) notice to the director forthwith of
all claims filed and payments made by the Surety(ies) under this
bond.
(7)
The Surety(ies) may cancel the bond by sending notice
of cancellation by certified mail to the Principal and the U.S. EPA director
for Region [Region ], provided, however, that cancellation shall not occur
during the one hundred twenty days beginning on the date of receipt of the
notice of cancellation by the Principal and the director, as evidenced by the
return receipt.
(8)
The Principal may terminate this bond by sending
written notice to the Surety(ies) and to the director(s) of the EPA Region(s)
in which the bonded facility(ies) is (are) located.
(9)
The Surety(ies)
hereby waive(s) notification of amendments to applicable laws, statutes, rules
and agree(s) that no such amendment shall in any way alleviate its (their)
obligation on this bond.
(10)
This bond is effective from [insert date] (12:01 a.m.,
standard time, at the address of the Principal as stated herein) and shall
continue in force until terminated as described above.
In Witness Whereof, the Principal and
Surety(ies) have executed this Bond and have affixed their seals on the date
set forth above.
The persons whose signatures appear
below hereby certify that those persons are authorized to execute this surety
bond on behalf of the Principal and Surety(ies) and that the wording of this
surety bond is identical to the wording specified in paragraph (K) of rule
3745-51-151 of the
Administrative Code, as such rules were constituted on the date this bond was
executed.
PRINCIPAL
[Signature(s)]
[Name(s)]
[Title(s)]
[Corporate Seal]
CORPORATE SURETY[IES]
[Name and address]
State of incorporation:
------------------------------------------------
Liability Limit: $
-----------------------------------------------------
[Signature(s)]
[Name(s) and title(s)]
[Corporate seal]
[For every co-surety, provide
signature(s), corporate seal, and other information in the same manner as for
Surety above.]
Bond premium: $
--------------------------------------------------------"
(L)
(1)
A trust
agreement, as specified in paragraph (J) of rule
3745-51-147 of the
Administrative Code, shall be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
"Trust Agreement
Trust Agreement, the "Agreement,"
entered into as of [date] by and between [name of the owner or operator] a
[name of state] [insert "corporation," "partnership," "association," or
"proprietorship"], the "Grantor," and [name of corporate trustee], [insert,
"incorporated in the state of -------- " or "a national bank"], the
"trustee."
Whereas, the United States
Environmental Protection Agency, "U.S. EPA," an agency of the United States
government, has established certain rules applicable to the Grantor, requiring
that an owner or operator shall demonstrate financial responsibility for bodily
injury and property damage to third parties caused by sudden accidental or
non-sudden accidental occurrences arising from operations of the facility or
group of facilities.
Whereas, the Grantor has elected to
establish a trust to assure all or part of such financial responsibility for
the facilities identified herein.
Whereas, the Grantor, acting through
the Guarantor's duly authorized officers, has selected the Trustee to be the
trustee under this agreement, and the Trustee is willing to act as
trustee.
Now, therefore, the Grantor and the
Trustee agree as follows:
Section
1.
Definitions. As used in this
Agreement:
(a)
The term "Grantor" means the owner or operator who enters
into this Agreement and any successors or assigns of the
Grantor.
(b)
The term "Trustee" means the Trustee who enters into
this Agreement and any successor Trustee.
Section 2.
Identification of Facilities. This agreement pertains to the
facilities identified on attached schedule A [on schedule A, for each facility
list the U.S. EPA identification number (if any issued), name, and address of
the facility(ies) and the amount of liability coverage, or portions thereof, if
more than one instrument affords combined coverage as demonstrated by this
Agreement].
Section 3.
Establishment of Fund. The Grantor and the Trustee
hereby establish a trust fund, hereinafter the "Fund," for the benefit of any
and all third parties injured or damaged by [sudden or non-sudden] accidental
occurrences arising from operation of the facility(ies) covered by this
guarantee, in the amounts of --------- [up to $1 million] per occurrence and
[up to $2 million] annual aggregate for sudden accidental occurrences and
-------- [up to $3 million] per occurrence and --------- [up to $6 million]
annual aggregate for non-sudden occurrences, except that the Fund is not
established for the benefit of third parties for the following:
(a)
Bodily injury or
property damage for which [insert Grantor] is obligated to pay damages by
reason of the assumption of liability in a contract or agreement. This
exclusion does not apply to liability for damages that [insert Grantor] would
be obligated to pay in the absence of the contract or
agreement.
(b)
Any obligation of [insert Grantor] under a workers'
compensation, disability benefits, or unemployment compensation law or any
similar law.
(c)
Bodily injury to:
(1)
An employee of
[insert Grantor] arising from, and in the course of, employment by [insert
Grantor]; or
(2)
The spouse, child, parent, brother or sister of that
employee as a consequence of, or arising from, and in the course of employment
by [insert Grantor]. This exclusion applies:
(A)
Whether [insert
Grantor] may be liable as an employer or in any other capacity;
and
(B)
To any obligation to share damages with or repay
another person who shall pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d)
Bodily injury or
property damage arising out of the ownership, maintenance, use, or entrustment
to others of any aircraft, motor vehicle or watercraft.
(e)
Property damage
to:
(1)
Any
property owned, rented, or occupied by [insert Grantor];
(2)
Premises that are
sold, given away or abandoned by [insert Grantor] if the property damage arises
out of any part of those premises;
(3)
Property loaned
to [insert Grantor];
(4)
Personal property in the care, custody or control of
[insert Grantor];
(5)
That particular part of real property on which [insert
Grantor] or any contractors or subcontractors working directly or indirectly on
behalf of [insert Grantor] are performing operations, if the property damage
arises out of these operations.
In the event of combination with
another mechanism for liability coverage, the Fund shall be considered [insert
"primary" or "excess"] coverage.
The Fund is established initially as
consisting of the property, which is acceptable to the Trustee, described in
Schedule B attached hereto. Such property and any other property subsequently
transferred to the Trustee is referred to as the Fund, together with all
earnings and profits thereon, less any payments or distributions made by the
Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN
TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall
the Trustee undertake any responsibility for the amount or adequacy of, nor any
duty to collect from the Grantor, any payments necessary to discharge any
liabilities of the Grantor established by U.S. EPA.
Section 4.
Payment for Bodily Injury or Property Damage. The
Trustee shall satisfy a third party liability claim by making payments from the
Fund only upon receipt of one of the following documents;
(a)
Certification
from the Grantor and the third party claimant(s) that the liability claim
should be paid. The certification shall be worded as follows, except that
instructions in brackets are to be replaced with the relevant information and
the brackets deleted:
Certification of Valid
Claim
The undersigned, as parties [insert
Grantor] and [insert name and address of third party claimant(s)], hereby
certify that the claim of bodily injury or property damage caused by a [sudden
or non-sudden] accidental occurrence arising from operating [Grantor's]
facility or group of facilities should be paid in the amount of $[
].
[Signatures]
Grantor
[Signatures]
Claimant(s)
(b)
A valid final
court order establishing a judgment against the Grantor for bodily injury or
property damage caused by sudden or non-sudden accidental occurrences arising
from the operation of the Grantor's facility or group of
facilities.
Section
5.
Payments Comprising the Fund. Payments
made to the Trustee for the Fund shall consist of cash or securities acceptable
to the Trustee.
Section 6.
Trustee Management. The Trustee shall invest and
reinvest the principal and income, in accordance with general investment
policies and guidelines which the Grantor may communicate in writing to the
Trustee from time to time, subject, however, to the provisions of this section.
In investing, reinvesting, exchanging, selling, and managing the Fund, the
Trustee shall discharge his duties with respect to the trust fund solely in the
interest of the beneficiary and with the care, skill, prudence, and diligence
under the circumstance then prevailing which persons of prudence, acting in a
like capacity and familiar with such matters, would use in the conduct of an
enterprise of a like character and with like aims; except that:
(i)
Securities or
other obligations of the Grantor, or any other owner or operator of the
facilities, or any of their affiliates as defined in the Investment Company Act
of 1940, shall not be acquired or held unless they are securities or other
obligations of the federal or a state government;
(ii)
The Trustee is
authorized to invest the Fund in time or demand deposits of the Trustee, to the
extent insured by an agency of the federal or state government;
and
(ii)
The Trustee is authorized to invest the Fund in time or
demand deposits of the Trustee, to the extent insured by an agency of the
federal or state government; and
(iii)
The Trustee is
authorized to hold cash awaiting investment or distribution uninvested for a
reasonable time and without liability for the payment of interest
thereon.
Section
7.
Commingling and Investment. The Trustee
is expressly authorized in its discretion:
(a)
To transfer from
time to time any or all of the assets of the Fund to any common commingled, or
collective trust fund created by the Trustee in which the fund is eligible to
participate, subject to all of the provisions thereof, to be commingled with
the assets of other trusts participating therein; and
(b)
To purchase
shares in any investment company registered under the Investment Company Act of
1940, including one which may be created, managed, underwritten, or to which
investment advice is rendered or the shares of which are sold by the Trustee.
The Trustee may vote such shares in its discretion.
Section 8.
Express
Powers of Trustee. Without in any way limiting the powers and discretions
conferred upon the Trustee by the other provisions of this Agreement or by law,
the Trustee is expressly authorized and empowered:
(a)
To sell,
exchange, convey, transfer, or otherwise dispose of any property held by it, by
public or private sale. No person dealing with the Trustee shall be bound to
see to the application of the purchase money or to inquire into the validity or
expediency of any such sale or other disposition;
(b)
To make, execute,
acknowledge, and deliver any and all documents of transfer and conveyance and
any and all other instruments that may be necessary or appropriate to carry out
the powers herein granted;
(c)
To register any
securities held in the Fund in its own name or in the name of a nominee and to
hold any security in bearer form or in book entry, or to combine certificates
representing such securities with certificates of the same issue held by the
Trustee in other fiduciary capacities, or to deposit or arrange for the deposit
of such securities in a qualified central depository even though, when so
deposited, such securities may be merged and held in bulk in the name of the
nominee of such depository with other securities deposited therein by another
person, or to deposit or arrange for the deposit of any securities issued by
the United States government, or any agency or instrumentality thereof, with a
Federal Reserve bank, but the books and records of the Trustee shall at all
times show that all such securities are part of the Fund;
(d)
To deposit any
cash in the Fund in interest-bearing accounts maintained or savings
certificates issued by the Trustee, in its separate corporate capacity, or in
any other banking institution affiliated with the Trustee, to the extent
insured by an agency of the federal or state government; and
(e)
To compromise or
otherwise adjust all claims in favor of or against the Fund.
Section 9.
Taxes and Expenses. All taxes of any kind that may be
assessed or levied against or in respect of the Fund and all brokerage
commissions incurred by the Fund shall be paid from the Fund. All other
expenses incurred by the Trustee in connection with the administration of this
Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements of the Trustee shall be paid from
the Fund.
Section 10.
Annual Valuations. The Trustee shall annually, at least
thirty days prior to the anniversary date of establishment of the Fund, furnish
to the Grantor and to the appropriate director a statement confirming the value
of the Trust. Any securities in the Fund shall be valued at market value as of
no more than sixty days prior to the anniversary date of establishment of the
Fund. The failure of the Grantor to object in writing to the Trustee within
ninety days after the statement has been furnished to the Grantor and the
director shall constitute a conclusively binding assent by the Grantor barring
the Grantor from asserting any claim or liability against the Trustee with
respect to matters disclosed in the statement.
Section 11.
Advice of
Counsel. The Trustee may from time to time consult with counsel, who may be
counsel to the Grantor with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder. The Trustee
shall be fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
Section
12.
Trustee Compensation. The Trustee
shall be entitled to reasonable compensation for its services as agreed upon in
writing from time to time with the Grantor.
Section 13.
Successor
Trustee. The Trustee may resign or the Grantor may replace the Trustee, but
such resignation or replacement shall not be effective until the Grantor has
appointed a successor trustee and this successor accepts the appointment. The
successor trustee shall have the same powers and duties as those conferred upon
the Trustee hereunder. Upon the successor trustee's acceptance of the
appointment, the Trustee shall assign, transfer, and pay over to the successor
trustee the funds and properties then constituting the Fund. If for any reason
the Grantor cannot or does not act in the event of the resignation of the
Trustee, the Trustee may apply to a court of competent jurisdiction for the
appointment of a successor trustee or for instructions. The successor trustee
shall specify the date on which it assumes administration of the trust in a
writing sent to the Grantor, the director, and the present Trustee by certified
mail ten days before such change becomes effective. Any expenses incurred by
the Trustee as a result of any of the acts contemplated by this section shall
be paid as provided in Section 9.
Section
14.
Instructions to the Trustee. All
orders, requests, and instructions by the Grantor to the Trustee shall be in
writing, signed by such persons as are designated in the attached Exhibit A or
such other designees as the Grantor may designate by amendments to Exhibit A.
The Trustee shall be fully protected in acting without inquiry in accordance
with the Grantor's orders, requests, and instructions. All orders, requests,
and instructions by the director to the Trustee shall be in writing, signed by
the directors of the Regions in which the facilities are located, or their
designees, and the Trustee shall act and shall be fully protected in acting in
accordance with such orders, requests, and instructions. The Trustee shall have
the right to assume, in the absence of written notice to the contrary, that no
event constituting a change or a termination of the authority of any person to
act on behalf of the Grantor or U.S. EPA hereunder has occurred. The Trustee
shall have no duty to act in the absence of such orders, requests, and
instructions from the Grantor or U.S. EPA, except as provided for
herein.
Section 15.
Notice of Nonpayment. If a payment for bodily injury or
property damage is made under Section 4 of this trust, the Trustee shall notify
the Grantor of such payment and the amount(s) thereof within five working days.
The Grantor shall, on or before the anniversary date of the establishment of
the Fund after such notice, either make payments to the Trustee in amounts
sufficient to cause the trust to return to its value immediately prior to the
payment of claims under Section 4, or shall provide written proof to the
Trustee that other financial assurance for liability coverage has been obtained
equaling the amount necessary to return the trust to its value prior to the
payment of claims. If the Grantor does not either make payments to the Trustee
or provide the Trustee with such proof, the Trustee shall within ten working
days after the anniversary date of the establishment of the Fund provide a
written notice of nonpayment to the director.
Section 16.
Amendment
of Agreement. This Agreement may be amended by an instrument in writing
executed by the Grantor, the Trustee, and the appropriate director, or by the
Trustee and the appropriate director if the Grantor ceases to
exist.
Section 17.
Irrevocability and Termination. Subject to the right of
the parties to amend this Agreement as provided in Section 16, this Trust shall
be irrevocable and shall continue until terminated at the written agreement of
the Grantor, the Trustee, and the director, or by the Trustee and the director,
if the Grantor ceases to exist. Upon termination of the Trust, all remaining
trust property, less final trust administration expenses, shall be delivered to
the Grantor.
The director will agree to termination
of the Trust when the owner or operator substitutes alternate financial
assurance as specified in this section.
Section 18.
Immunity
and Indemnification. The Trustee shall not incur personal liability of any
nature in connection with any act or omission, made in good faith, in the
administration of this Trust, or in carrying out any directions by the Grantor
or the director issued in accordance with this Agreement. The Trustee shall be
indemnified and saved harmless by the Grantor or from the Trust Fund, or both,
from and against any personal liability to which the Trustee may be subjected
by reason of any act or conduct in its official capacity, including all
expenses reasonably incurred in its defense in the event the Grantor fails to
provide such defense.
Section
19.
Choice of Law. This Agreement shall be
administered, construed, and enforced according to the laws of the state of
[enter name of state].
Section
20.
Interpretation. As used in this
Agreement, words in the singular include the plural and words in the plural
include the singular. The descriptive headings for each section of this
Agreement shall not affect the interpretation or the legal efficacy of this
Agreement.
In Witness Whereof the parties have
caused this Agreement to be executed by their respective officers duly
authorized and their corporate seals to be hereunto affixed and attested as of
the date first above written. The parties below certify that the wording of
this Agreement is identical to the wording specified in paragraph L of rule
3745-51-151 of the
Administrative Code as such rules were constituted on the date first above
written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[TAitle:]
[Seal:]
(2)
The following is an example of the certification of
acknowledgement which shall accompany the trust agreement for a trust fund as
specified in paragraph (J) of rule
3745-51-147 of the
Administrative Code. State requirements may differ on the proper content of
this acknowledgment.
State of
---------------------------------------------------------------
County of
--------------------------------------------------------------
On this [date], before me personally
came [owner or operator] to me known, who, being by me duly sworn, did depose
and say that she/he resides at [address], that she/he is [title] of
[corporation], the corporation described in and which executed the above
instrument; that she/he knows the seal of said corporation; that the seal
affixed to such instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that she/he signed
her/his name thereto by like order.
[Signature of Notary
Public]"
(M)
(1)
A standby trust agreement, as specified in paragraph
(H) of rule
3745-51-147 of the
Administrative Code of this chapter, shall be worded as follows, except that
instructions in brackets are to be replaced with the relevant information and
the brackets deleted:
"Standby Trust Agreement
Trust Agreement, the "Agreement,"
entered into as of [date] by and between [name of the owner or operator] a
[name of a state] [insert "corporation," "partnership," "association," or
"proprietorship"], the "Grantor," and [name of corporate trustee], [insert,
"incorporated in the state of ---------------- " or "a national bank"], the
"trustee."
Whereas the United States Environmental
Protection Agency, "U.S. EPA," an agency of the United States government, has
established certain rules applicable to the Grantor, requiring that an owner or
operator shall demonstrate financial responsibility for bodily injury and
property damage to third parties caused by sudden accidental or non-sudden
accidental occurrences arising from operations of the facility or group of
facilities.
Whereas, the Grantor has elected to
establish a standby trust into which the proceeds from a letter of credit may
be deposited to assure all or part of such financial responsibility for the
facilities identified herein.
Whereas, the Grantor, acting through
its duly authorized officers, has selected the Trustee to be the trustee under
this agreement, and the Trustee is willing to act as trustee.
Now, therefore, the Grantor and the
Trustee agree as follows:
Section
1.
Definitions. As used in this
Agreement:
(a)
The term Grantor means the owner or operator who enters into
this Agreement and any successors or assigns of the Grantor.
(b)
The term Trustee
means the Trustee who enters into this Agreement and any successor
Trustee.
Section
2.
Identification of Facilities. This
Agreement pertains to the facilities identified on attached schedule A [on
schedule A, for each facility list the U.S. EPA identification number (if any
issued), name, and address of the facility(ies) and the amount of liability
coverage, or portions thereof, if more than one instrument affords combined
coverage as demonstrated by this Agreement].
Section 3.
Establishment of Fund. The Grantor and the Trustee hereby
establish a standby trust fund, hereafter the "Fund," for the benefit of any
and all third parties injured or damaged by [sudden or non-sudden] accidental
occurrences arising from operation of the facility(ies) covered by this
guarantee, in the amounts of --------- [up to $1 million] per occurrence and
--------- [up to $2 million] annual aggregate for sudden accidental occurrences
and --------- [up to $3 million] per occurrence and --------- [up to $6
million] annual aggregate for non-sudden occurrences, except that the Fund is
not established for the benefit of third parties for the following:
(a)
Bodily injury or
property damage for which [insert Grantor] is obligated to pay damages by
reason of the assumption of liability in a contract or agreement. This
exclusion does not apply to liability for damages that [insert Grantor] would
be obligated to pay in the absence of the contract or
agreement.
(b)
Any obligation of [insert Grantor] under a workers'
compensation, disability benefits, or unemployment compensation law or any
similar law.
(c)
Bodily injury to:
(1)
An employee of
[insert Grantor] arising from, and in the course of, employment by [insert
Grantor]; or
(2)
The spouse, child, parent, brother or sister of that
employee as a consequence of, or arising from, and in the course of employment
by [insert Grantor]. This exclusion applies:
(A)
Whether [insert
Grantor] may be liable as an employer or in any other capacity;
and
(B)
To any obligation to share damages with or repay
another person who shall pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d)
Bodily injury or
property damage arising out of the ownership, maintenance, use, or entrustment
to others of any aircraft, motor vehicle or watercraft.
(e)
Property damage
to:
(1)
Any
property owned, rented, or occupied by [insert Grantor];
(2)
Premises that are
sold, given away or abandoned by [insert Grantor] if the property damage arises
out of any part of those premises;
(3)
Property loaned
by [insert Grantor];
(4)
Personal property in the care, custody or control of
[insert Grantor];
(5)
That particular part of real property on which [insert
Grantor] or any contractors or subcontractors working directly or indirectly on
behalf of [insert Grantor] are performing operations, if the property damage
arises out of these operations.
In the event of combination with
another mechanism for liability coverage, the Fund shall be considered [insert
"primary" or "excess"] coverage.
The Fund is established initially as
consisting of the proceeds of the letter of credit deposited into the Fund.
Such proceeds and any other property subsequently transferred to the Trustee is
referred to as the Fund, together with all earnings and profits thereon, less
any payments or distributions made by the Trustee pursuant to this Agreement.
The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The
Trustee shall not be responsible nor shall the Trustee undertake any
responsibility for the amount or adequacy of, nor any duty to collect from the
Grantor, any payments necessary to discharge any liabilities of the Grantor
established by U.S. EPA.
Section 4.
Payment
for Bodily Injury or Property Damage. The Trustee shall satisfy a third party
liability claim by drawing on the letter of credit described in Schedule B and
by making payments from the Fund only upon receipt of one of the following
documents:
(a)
Certification from the Grantor and the third party
claimant(s) that the liability claim should be paid. The certification shall be
worded as follows, except that instructions in brackets are to be replaced with
the relevant information and the brackets deleted:
Certification of Valid
Claim
The undersigned, as parties [insert
Grantor] and [insert name and address of third party claimant(s)], hereby
certify that the claim of bodily injury or property damage caused by a [sudden
or non-sudden] accidental occurrence arising from operating [Grantor's]
facility should be paid in the amount of $[ ].
[Signature]
------------------------------------------------------------
Grantor
----------------------------------------------------------------
[Signatures]
-----------------------------------------------------------
Claimant(s)
-----------------------------------------------------------
(b)
A
valid final court order establishing a judgment against the Grantor for bodily
injury or property damage caused by sudden or non-sudden accidental occurrences
arising from the operation of the Grantor's facility or group of
facilities.
Section
5.
Payments Comprising the Fund. Payments
made to the Trustee for the Fund shall consist of the proceeds from the letter
of credit drawn upon by the Trustee in accordance with the requirements of
paragraph (K) of rule
3745-51-151 of the
Administrative Code and Section 4 of this Agreement.
Section 6.
Trustee
Management. The Trustee shall invest and reinvest the principal and income, in
accordance with general investment policies and guidelines which the Grantor
may communicate in writing to the Trustee from time to time, subject, however,
to the provisions of this Section. In investing, reinvesting, exchanging,
selling, and managing the Fund, the Trustee shall discharge his duties with
respect to the trust fund solely in the interest of the beneficiary and with
the care, skill, prudence, and diligence under the circumstances then
prevailing which persons of prudence, acting in a like capacity and familiar
with such matters, would use in the conduct of an enterprise of a like
character and with like aims; except that:
(i)
Securities or
other obligations of the Grantor, or any other owner or operator of the
facilities, or any of their affiliates as defined in the Investment Company
Act, shall not be acquired or held, unless they are securities or other
obligations of the federal or a state government;
(ii)
The Trustee is
authorized to invest the Fund in time or demand deposits of the Trustee, to the
extent insured by an agency of the federal or a state government;
and
(iii)
The Trustee is authorized to hold cash awaiting
investment or distribution uninvested for a reasonable time and without
liability for the payment of interest thereon.
Section 7.
Commingling and Investment. The Trustee is expressly
authorized in its discretion:
(a)
To transfer from time to time any or all of the assets
of the Fund to any common, commingled, or collective trust fund created by the
Trustee in which the Fund is eligible to participate, subject to all of the
provisions thereof, to be commingled with the assets of other trusts
participating therein; and
(b)
To purchase
shares in any investment company registered under the Investment Company Act,
including one which may be created, managed, underwritten, or to which
investment advice is rendered or the shares of which are sold by the Trustee.
The Trustee may vote such shares in its discretion.
Section 8.
Express
Powers of Trustee. Without in any way limiting the powers and discretions
conferred upon the Trustee by the other provisions of this Agreement or by law,
the Trustee is expressly authorized and empowered:
(a)
To sell,
exchange, convey, transfer, or otherwise dispose of any property held by it, by
public or private sale. No person dealing with the Trustee shall be bound to
see to the application of the purchase money or to inquire into the validity or
expediency of any such sale or other disposition;
(b)
To make, execute,
acknowledge, and deliver any and all documents of transfer and conveyance and
any and all other instruments that may be necessary or appropriate to carry out
the powers herein granted;
(c)
To register any
securities held in the Fund in its own name or in the name of a nominee and to
hold any security in bearer form or in book entry, or to combine certificates
representing such securities with certificates of the same issue held by the
Trustee in other fiduciary capacities, or to deposit or arrange for the deposit
of such securities in a qualified central depositary even though, when so
deposited, such securities may be merged and held in bulk in the name of the
nominee of such depositary with other securities deposited therein by another
person, or to deposit or arrange for the deposit of any securities issued by
the United States government, or any agency or instrumentality thereof, with a
Federal Reserve Bank, but the books and records of the Trustee shall at all
times show that all such securities are part of the Fund;
(d)
To deposit any
cash in the Fund in interest-bearing accounts maintained or savings
certificates issued by the Trustee, in its separate corporate capacity, or in
any other banking institution affiliated with the Trustee, to the extent
insured by an agency of the federal or state government; and
(e)
To compromise or
otherwise adjust all claims in favor of or against the Fund.
Section 9.
Taxes and Expenses. All taxes of any kind that may be
assessed or levied against or in respect of the Fund and all brokerage
commissions incurred by the Fund shall be paid from the Fund. All other
expenses incurred by the Trustee in connection with the administration of this
Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements to the Trustee shall be paid from
the Fund.
Section 10.
Advice of Counsel. The Trustee may from time to time
consult with counsel, who may be counsel to the Grantor, with respect to any
question arising as to the construction of this Agreement or any action to be
taken hereunder. The Trustee shall be fully protected, to the extent permitted
by law, in acting upon the advice of counsel.
Section 11.
Trustee
Compensation. The Trustee shall be entitled to reasonable compensation for its
services as agreed upon in writing from time to time with the
Grantor.
Section 12.
Successor Trustee. The Trustee may resign or the
Grantor may replace the Trustee, but such resignation or replacement shall not
be effective until the Grantor has appointed a successor trustee and this
successor accepts the appointment. The successor trustee shall have the same
powers and duties as those conferred upon the Trustee hereunder. Upon the
successor trustee's acceptance of the appointment, the Trustee shall assign,
transfer, and pay over to the successor trustee the funds and properties then
constituting the Fund. If for any reason the Grantor cannot or does not act in
the event of the resignation of the Trustee, the Trustee may apply to a court
of competent jurisdiction for the appointment of a successor trustee or for
instructions. The successor trustee shall specify the date on which it assumes
administration of the trust in a writing sent to the Grantor, the director and
the present Trustee by certified mail ten days before such change becomes
effective. Any expenses incurred by the Trustee as a result of any of the acts
contemplated by this Section shall be paid as provided in Section
9.
Section 13.
Instructions to the Trustee. All orders, requests,
certifications of valid claims, and instructions to the Trustee shall be in
writing, signed by such persons as are designated in the attached Exhibit A or
such other designees as the Grantor may designate by amendments to Exhibit A.
The Trustee shall be fully protected in acting without inquiry in accordance
with the Grantor's orders, requests, and instructions. The Trustee shall have
the right to assume, in the absence of written notice to the contrary, that no
event constituting a change or a termination of the authority of any person to
act on behalf of the Grantor or the director hereunder has occurred. The
Trustee shall have no duty to act in the absence of such orders, requests, and
instructions from the Grantor or U.S. EPA, except as provided for
herein.
Section 14.
Amendment of Agreement. This Agreement may be amended
by an instrument in writing executed by the Grantor, the Trustee, and the
director, or by the Trustee and the director if the Grantor ceases to
exist.
Section 15.
Irrevocability and Termination. Subject to the right of
the parties to amend this Agreement as provided in Section 14, this Trust shall
be irrevocable and shall continue until terminated at the written agreement of
the Grantor, the Trustee, and the director, or by the Trustee and the director,
if the Grantor ceases to exist. Upon termination of the Trust, all remaining
trust property, less final trust administration expenses, shall be paid to the
Grantor.
The director will agree to termination
of the Trust when the owner or operator substitutes alternative financial
assurance as specified in this section.
Section 16.
Immunity
and indemnification. The Trustee shall not incur personal liability of any
nature in connection with any act or omission, made in good faith, in the
administration of this Trust, or in carrying out any directions by the Grantor
and the director issued in accordance with this Agreement. The Trustee shall be
indemnified and saved harmless by the Grantor or from the Trust Fund, or both,
from and against any personal liability to which the Trustee may be subjected
by reason of any act or conduct in its official capacity, including all
expenses reasonably incurred in its defense in the event the Grantor fails to
provide such defense.
Section
17.
Choice of Law. This Agreement shall be
administered, construed, and enforced according to the laws of the state of
[enter name of state].
Section
18.
Interpretation. As used in this
Agreement, words in the singular include the plural and words in the plural
include the singular. The descriptive headings for each Section of this
Agreement shall not affect the interpretation of the legal efficacy of this
Agreement.
In Witness Whereof the parties have
caused this Agreement to be executed by their respective officers duly
authorized and their corporate seals to be hereunto affixed and attested as of
the date first above written. The parties below certify that the wording of
this Agreement is identical to the wording specified in paragraph (M) of rule
3745-51-151 of the
Administrative Code as such rules were constituted on the date first above
written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
(2)
The following is an example of the certification of
acknowledgement which shall accompany the trust agreement for a standby trust
fund as specified in paragraph (H) of rule
3745-51-147 of the
Administrative Code.
State of
---------------------------------------------------------------
County of
--------------------------------------------------------------
On this [date], before me personally
came [owner or operator] to me known, who, being by me duly sworn, did depose
and say that she/he resides at [address], that she/he is [title] of
[corporation], the corporation described in and which executed the above
instrument; that she/he knows the seal of said corporation; that the seal
affixed to such instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that she/he signed
her/his name thereto by like order.
[Signature of Notary
Public]"
[Comment: For dates of non-regulatory
government publications, publications of recognized organizations and
associations, federal rules, and federal statutory provisions referenced in
this rule, see rule
3745-50-11 of the Administrative
Code titled "Incorporated by reference."]
