(A)
(1) A
trust agreement for a trust fund as specified in paragraph (A) of rule
3745-55-43, paragraph (A) of rule 3745-55-45, paragraph (A) of rule 3745-66-43,
or paragraph (A) of rule
3745-66-45 of the Administrative
Code must 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 [state] [corporation,
partnership, association, proprietorship], the "Grantor", and [name of
corporate trustee], ["incorporated in the State of____________" or "a national
bank"], the "Trustee".
Whereas, the Ohio Environmental Protection Agency, "Ohio EPA",
has established certain rules applicable to the Grantor, requiring that the
owner or operator of a hazardous waste management facility shall provide
assurance that funds will be available when needed for closure and/or
post-closure care of the facility,
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 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.
(c) The term
"director" means the director of the Ohio EPA, or his designee.
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, name, address,
Ohio permit number and the current closure
and/or post-closure 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
the Ohio EPA. 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 will be held by the Trustee, in
trust, as hereinafter provided. The Trustee shall not be responsible nor shall
it 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 the Ohio EPA.
Section 4. Payment for Closure and
Post-Closure Care. The Trustee will make such payments from the Fund as the
director will direct, in writing, to provide for the payment of the costs of
closure and/or post-closure care of the facilities covered by this Agreement.
The Trustee will reimburse the Grantor or other persons as specified by the
director from the Fund for closure and post-closure expenditures in such
amounts as the director will direct, in writing. In addition, the Trustee will
refund to the Grantor such amounts as the director specifies in writing. Upon
refund, such funds will no longer constitute part of the Fund as defined
herein.
Section 5. Payments
Comprising the Fund. Payments made to the Trustee for the Fund will consist of
cash or securities acceptable to the Trustee.
Section 6. Trustee Management. The Trustee
will 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 will 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 of 1940, as amended,
15 USC
# 80a-2(a), will 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
(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,
15 U.S.C. # 80a-1 et seq., 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 will 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 will 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 will 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 will be paid from the
Fund.
Section 10. Annual Valuation.
The Trustee will annually, at least thirty days prior to the anniversary date
of establishment of the Fund furnish to the Grantor and to the director a
statement confirming the value of the Trust. Any securities in the Fund will 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 will 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
will be fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
Section 12.
Trustee Compensation. The Trustee will 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 will have the same powers and duties as those conferred upon the
Trustee hereunder. Upon the successor Trustee's acceptance of the appointment,
the Trustee will 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 will be paid as provided
in Section 9.
Section 14.
Instructions to the Trustee. All orders, requests and instructions by the
Grantor to the Trustee will 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 will 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 will be in writing, signed by the director, and the Trustee will act
and will be fully protected in acting in accordance with such orders, requests
and instructions. The Trustee will 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 will have no duty to act in
the absence of such orders, requests and instructions from the Grantor and/or
the director except as provided for herein.
Section 15. Notice of Nonpayment. The Trustee
will notify the Grantor and the director, by certified mail within ten days
following the expiration of the thirty-day period after the anniversary of the
establishment of the Trust, if no payment is received from the Grantor during
that period. After the pay-in period is completed the Trustee is not required
to send a notice of nonpayment.
Section
16. 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 17. Irrevocability and Termination.
Subject to the right of the parties to amend this Agreement as provided in
Section 16, this Trust will be irrevocable and will 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, will be delivered to the Grantor.
Section 18. Immunity and Indemnification. The
Trustee will 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 will 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
will be administered, construed and enforced according to the laws of the state
of Ohio.
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 will 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
3745-55-51 of the Administrative
Code as such regulations 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 must accompany the trust agreement for a
trust fund as specified in paragraph (A) of
rules
rule 3745-55-43,
paragraph (A) of rule 3745-55-45,
paragraph (A) of rule 3745-66-43, or
paragraph (A) of 3745-66-45 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: As required in paragraph (A)(2) of
rules
rule
3745-55-43, paragraph (A)(2) of rule 3745-55-45,
paragraph (A)(2) of rule 3745-66-43, and
paragraph (A)(2) of rule 3745-66-45 of the
Administrative Code, the trust agreement must be accompanied by a formal
certification of acknowledgment. This is an example only.]
(B) A surety bond guaranteeing
payment into a trust fund, as specified in paragraph (B) of
rules
rule
3745-55-43,
paragraph (B) of rule 3745-55-45,
paragraph (B) of rule 3745-66-43, or
paragraph (B) of rule 3745-66-45 of the
Administrative Code, must 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,
Ohio permit number, and closure and/or
post-closure amount(s) for each facility guaranteed by this bond [indicate
closure and post-closure amounts separately]:_______
Total penal sum of bond: $_____
Surety's bond number:_____
Know All Persons By These Presents, That we, the Principal and
Surety(ies) hereto are firmly bound to the Ohio Environmental Protection Agency
("hereinafter called
Ohio EPA"), 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 to have an Ohio EPA permit
or permits, in order to own or operate each hazardous waste management
facility(ies) identified above, and
Whereas said Principal is required to provide financial
assurance for closure, or closure and post-closure care, of the facility(ies)
as a condition of the permit(s) or Chapters 3745-65 to 3745-69 and 3745-256 of
the Administrative Code, and
Whereas said Principal shall establish a standby trust fund as
specified by rule 3745-55-43 or 3745-66-43 ofthe
Ohio Administrative Code
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 fund the standby trust fund in such
an amount(s) within fifteen days after an order to begin closure is issued by
the director, or an Ohio court, or a U.S. district court or other court of
competent jurisdiction, or within fifteen days after a notice of revocation of
the permit(s) by the director,
Or, if the Principal shall provide alternate financial
assurance, as specified in rules
3745-55-40 to
3745-55-51 or
3745-66-40 to
3745-66-48 of the Ohio
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 director from the Surety(ies), then this
obligation will be null and void, otherwise it 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 the 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, 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 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.
[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 closure and/or post-closure
amount, provided that the penal sum does not increase by more than twenty
percent in any one year, and no decrease in the penal sum takes place without
the written permission of the director.
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
3745-55-51 of the Administrative
Code as such regulations were constituted on the date this bond was executed.
Principal Signature(s):_____
Name(s) and title(s) [typed]:_____
Corporate seal:
Corporate Surety(ies)
Name and address:_____
State of incorporation:_____
Liability limit: $_____
Signature(s):_____
Name(s) and title(s) [typed]:_____
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 surety bond guaranteeing performance of
closure and/or post-closure care, as specified in paragraph (C) of rule
3745-55-43 or paragraph (C) of
rule
3745-55-45 of the Administrative
Code, must be worded as follows, except that instructions in brackets are to be
replaced by the relevant information and the brackets deleted:
"Performance 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
Ohio EPA
permit number number, name, address, and closure and/or post-closure
amount(s) for each facility guaranteed by this bond [indicate closure and
post-closure amounts separately]:_____
Total penal sum of bond: $_____
Surety's bond number:_____
Know All Persons By These Presents, That we, the Principal and
Surety(ies) hereto are firmly bound to Ohio Environmental Protection Agency
(hereinafter called "
Ohio EPA)", 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 to have an Ohio EPA permit
or permits in order to own or operate each hazardous waste management
facility(ies) identified above, and
Whereas, said Principal is required to provide financial
assurance for closure, or closure and post-closure care as a condition of the
permit(s), 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 this obligation are such that
if the Principal shall faithfully perform closure, whenever required to do so,
of each facility for which this bond guarantees closure, in accordance with the
closure plan and other requirements of the permit as such plan and permit may
be amended, pursuant to all applicable laws, statutes, rules, and regulations,
as such laws, statutes, rules and regulations may be amended.
And, if the Principal shall faithfully perform post-closure
care of each facility for which this bond guarantees post-closure care, in
accordance with the post-closure plan and other requirements of the permit, as
such plan and permit may be amended, pursuant to all applicable laws, statutes,
rules, and regulations, as such laws, statutes, rules, and regulations may be
amended.
Or, if the Principal shall provide alternate financial
assurance as specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code 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 director from the Surety(ies), then this obligation will be null and
void, otherwise it 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 the director that the Principal has been
found in violation of the closure requirements of Chapters 3745-54 to 3745-57
and 3745-205 of the Administrative Code, for a facility for which this bond
guarantees performance of closure, the Surety(ies) shall either perform closure
in accordance with the closure plan and other permit requirements or place the
closure amount guaranteed for the facility into the standby trust fund as
directed by the director.
Upon notification by the director that the Principal has been
found in violation of the post-closure requirements of Chapters 3745-54 to
3745-57 and 3745-205 of the Administrative Code for a facility for which this
bond guarantees performance of post-closure care, the Surety(ies) shall either
perform post-closure care in accordance with the post-closure plan and other
permit requirements or place the post-closure amount guaranteed for the
facility into the standby trust fund as directed by the director.
Upon notification by the director that the Principal has failed
to provide alternate financial assurance as specified in rules
3745-55-40 to
3745-55-51 of the Administrative
Code and obtain written approval of such assurance from the director during the
ninety days following receipt by both the Principal and the director of a
notice of cancellation of the 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 Surety(ies) hereby waive(s) notification of amendments to
closure plans, permits, applicable laws, statutes, rules, and regulations and
agrees that no such amendment shall in any way alleviate its (their) obligation
on this bond.
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 owner or operator and to the director,
provided, however, that cancellation cannot 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 as evidenced by the returned receipt(s).
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.
[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 closure and/or post-closure
amount, provided that the penal sum does not increase by more than twenty
percent in any one year, and no decrease in the penal sum takes place without
the written permission of the director.
In witness whereof, the Principal and Surety(ies) have executed
this Performance 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 (C) of rule
3745-55-51 of the Administrative
Code, as such regulation was constituted on the date this bond was executed.
Principal
Signature(s):__________
Name(s) and title(s) [typed]:__________
Corporate seal:
Corporate surety(ies)
Name and address:__________
State of incorporation:__________
Liability limit: $__________
Signature(s):__________
Name(s) and title(s) [typed]:__________
Corporate seal:
[For every co-surety, provide signature(s), corporate seal, and
other information in the same manner as for Surety above.]
Bond premium: $__________"
(D) A letter of credit as specified in
paragraph (D) of rule 3745-55-43, paragraph (D) of rule 3745-55-45, or
paragraph (C) of rule 3745-66-43, or paragraph (C) of rule
3745-66-45 of the Administrative
Code must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted.
[Note
Comment: A letter of credit may also contain
provisions used by the issuing institution in its regular course of business,
provided that such provisions do not alter the terms and conditions contained
in paragraph (D) of this rule.]
"Irrevocable Standby Letter of Credit
[director]
Ohio Environmental Protection Agency
Dear Sir or Madam: We hereby establish our Irrevocable Standby
Letter of Credit No. __________in your favor, 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 the authority of
Chapter 3734. of the Ohio Revised Code as amended."
This letter of credit is effective as of [date] and will expire
on [date of at least one year later], but such expiration date will 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 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 that you are so
notified, any unused portion of the credit will 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 will duly honor such draft upon
presentation to us, and we will 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 (D) of rule
3745-55-51 of the Administrative
Code as such regulations 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"]."
[Comment: In the event that the owner or operator ceases to
exist, any unused portion of the credit will be available for one hundred
twenty days after the date of receipt by the director, as shown on the signed
returned receipt.]
(E) A
certificate of insurance, as specified in paragraph (E) of rule 3745-55-43,
paragraph (E) of rule 3745-55-45, paragraph (D) of rule 3745-66-43, or
paragraph (D) of rule
3745-66-45 of the Administrative
Code, must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
"Certificate of Insurance for Closure or Post-Closure Care
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, name, address,
Ohio permit number, and the amount of
insurance for closure and/or the amount for post-closure care (these amounts
for all facilities covered 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 for
[insert "closure" or "closure and post-closure care" or "post-closure care"]
for the facilities identified above. The Insurer further warrants that such
policy conforms in all respects with the requirements of paragraph (E) of
rules
rule
3745-55-43 and paragraph (E) of rule 3745-55-45,
and paragraph (D) of rules
rule 3745-66-43 and paragraph
(D) of rule 3745-66-45 of the Administrative Code, as applicable and as
such regulations were constituted on the date shown immediately below. It is
agreed that any provision of the policy inconsistent with such regulations is
hereby amended to eliminate such inconsistency.
Whenever requested by the director of the Ohio Environmental Protection Agency, the
Insurer agrees to furnish to the director 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 (E) of rule
3745-55-51 of the Administrative
Code as such regulations 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]__________"
(F) A letter from the chief financial
officer, as specified in paragraph (F) of rule 3745-55-43, or paragraph (F) of
rule 3745-55-45, or paragraph (E) of rule 3745-66-43, or paragraph (E) of rule
3745-66-45 of the Administrative
Code, must 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, Ohio Environmental Protection Agency.]
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 for closure and/or post-closure costs, as
specified in rules
3745-55-40 to
3745-55-51 and
3745-66-40 to
3745-66-48 of the Administrative
Code.
[Fill out the following five 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, name,
address,
Ohio EPA permit number, and
current closure and/or post-closure cost estimates. Identify each cost estimate
as to whether it is for closure or post-closure care.]
1. 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 and
3745-66-40 to
3745-66-48 of the Administrative
Code. The current closure and/or post-closure cost estimates covered by the
test are shown for each facility:____________
2. This firm guarantees, through the
guarantee specified in rules
3745-55-40 to
3745-55-51 and
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; or (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. 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 and
3745-66-40 to
3745-66-48 of the Administrative
Code. The current closure and/or post-closure cost estimates covered by such a
test are shown for each facility:__________
4. 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
to
Ohio EPA through the financial test or any other financial assurance
mechanism specified in rules
3745-55-40 to
3745-55-51 and
3745-66-40 to
3745-66-48 of the Administrative
Code or equivalent or substantially equivalent state mechanisms. The current
closure and/or post-closure cost estimates not covered by such financial
assurance are shown for each facility: __________
5. This firm is the owner or operator of the
following UIC 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 Chapters 3745-34, 3745-55, and
3745-66 of the Administrative Code 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 (SEC) 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 (F) (1)(a)
of rule 3745-55-43 or paragraph (F) (1)
(a) of rule
3745-55-45 of the Administrative
Code are used, or if the criteria of paragraph (E) (1) (a) of rule
3745-66-43 or paragraph (E) (1)
(a) of rule
3745-66-45 of the Administrative
Code are used. Fill in Alternative II if the criteria of paragraph (F)(1)(b) of
rule 3745-55-43 or paragraph
(F)(1)(b) of rule
3745-55-45 of the Administrative
Code are used, or if the criteria of paragraph (E)(1)(b) of rule
3745-66-43 or paragraph
(E)(1)(b) of rule
3745-66-45 of the Administrative
Code are used.]
Alternative I
1. Sum
of current closure and post-closure cost estimates [total of all cost estimates
shown in the five paragraphs above] $________
*2. Total liabilities [if any portion of the closure or
post-closure 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 $____
*9. Total assets in U.S. [required only if less than 90% of
firm's assets are located intheU.S.]$____
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 closure and post-closure cost estimates [total of all cost estimates
shown in the five 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 closure and
post-closure cost estimates is included in "total liabilities" on your firm's
financial statements, you may add the amount of that portion to this line]
$________
*6. Total assets in U.S. [required only if less than 90% of
firm's assets are located intheU.S.]$________
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 (F) of rule
3745-55-51 of the Administrative
Code as such regulations were constituted on the date shown immediately below.
[Signature]________
[Name]________
[Title]________
[Date]________"
(G) A letter from the chief
financial officer, as specified in paragraph (F) of rule
3745-55-47 or paragraph (F) of
rule
3745-66-47 of the Administrative
Code, must 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 (to demonstrate liability
coverage or to demonstrate both liability coverage and assurance of closure or
post-closure care).
[Address to Director, Ohio Environmental Protection Agency.]
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 [insert "and closure and/or
post-closure care" if applicable] as specified in rules
3745-55-40 to
3745-55-51 and
3745-66-40 to
3745-66-48 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, Ohio permit
number, name, and address.]
The firm identified above is the owner or operator of the
following facilities for which liability coverage for [insert "sudden" or
"nonsudden" or "both sudden and nonsudden"] accidental occurrences is being
demonstrated through the financial test specified in rules
3745-55-40 to
3745-55-51 and
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
through
to
3745-55-51 and 3745-66-40 through
to 3745-66-48 of the Administrative Code, liability
coverage for [insert "sudden" or "nonsudden" or "both sudden and nonsudden"]
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 closure and post-closure care, fill in the following five
paragraphs regarding facilities and associated closure and post-closure cost
estimates. 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, name, address, Ohio permit
number, and current closure and/or post-closure cost estimates.
Identify each cost estimate as to whether it is for closure or post-closure
care.]
1. The firm identified above
owns or operates the following facilities for which financial assurance for
closure or post-closure care or liability coverage is demonstrated through the
financial test specified in rules
3745-55-40 to
3745-55-51 and
3745-66-40 to
3745-66-48 of the Administrative
Code. The current closure and/or post-closure cost estimate covered by the test
are shown for each facility: ________
2. The firm identified above guarantees,
through the guarantee specified in rules
3745-55-40 to
3745-55-51 and
3745-66-40 to
3745-66-48 of the Administrative
Code, the closure and post-closure care or liability coverage 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:
3. The firm identified
above 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 and
3745-66-40 to
3745-66-48 of the Administrative
Code. The current closure and/or post-closure cost estimates covered by such a
test are shown for each facility:________
4. The firm identified above owns or operates
the following hazardous waste management facilities for which financial
assurance for closure or, if a disposal facility, post-closure care, is not
demonstrated to the
director through the financial test or any other financial
assurance mechanisms specified in rules
3745-55-40 to
3745-55-51 and
3745-66-40 to
3745-66-48 of the Administrative
Code. The current closure and/or post-closure cost estimates not covered by
such financial assurance are shown for each facility:________
5. This firm is the owner or operator of the
following UIC facilities for which financial assurance for plugging and
abandonment is required under Chapter 3745-34 of the Administrative Code and is
assured through a financial test. The current closure cost estimates as
required by Chapters 3745-34, 3745-55, and 3745-66 of the Administrative Code
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 (SEC) 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 Part A if you are using the financial test to
demonstrate coverage only for the liability requirements.]
Part A. Liability Coverage for Accidental Occurrences
[Fill in Alternative I if the criteria of paragraph (F) (1)(a)
of rule 3745-55-47 or paragraph (F) (1)
(a) of rule
3745-66-47 of the Administrative
Code are used. Fill in Alternative II if the criteria of paragraph (F)(1)(b) of
rule 3745-55-47 or paragraph
(F)(1)(b) of rule
3745-66-47 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? [Yes/No]________
9. Are at least 90% of assets located in the
U.S.? [Yes/No] ________If not, complete line 10.
10. Is line 6 at least 6 times line 1?
[Yes/No]________
[Fill in Part B if you are using the financial test to
demonstrate assurance of both liability coverage and closure or post-closure
care.]
Part B. Closure or Post-Closure Care and Liability Coverage
[Fill in Alternative I if the criteria of paragraph (F) (1)(a)
of rule 3745-55-43 or paragraph (F) (1)
(a) of rule
3745-55-45 and paragraph (F) (1)
(a) of rule
3745-55-47 of the Administrative
Code are used or if the criteria in paragraph (E) (1) (a) of rule
3745-66-43 or paragraph (E) (1)
(a) of rule
3745-66-45 and paragraph (F) (1)
(a) of rule
3745-66-47 of the Administrative
Code are used. Fill in Alternative II if the criteria of paragraph (F)(1)(b) of
rule 3745-55-43 or paragraph
(F)(1)(b) of rule
3745-55-45 and paragraph
(F)(1)(b) of rule
3745-55-47 of the Administrative
Code are used or if the criteria of paragraph (E) (1) (a) of rule
3745-66-43 or paragraph (E) (1)
(a) of rule
3745-66-45 and paragraph
(F)(1)(b) of rule
3745-66-47 of the Administrative
Code are used.]
Alternative I
1. Sum
of current closure and post-closure 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
closure or post-closure 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 closure and post-closure 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 bond_______
7. Tangible net worth (if any portion of the
closure or post-closure 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 (G) of rule
3745-55-51 of the Administrative
Code as such regulations were constituted on the date shown immediately below.
[Signature]_______
[Name]_______
[Title]_______
[Date]_______"
(H)
(1) A
guarantee, as specified in paragraph (F) of rule
3745-55-43 or paragraph (F) of
rule
3745-55-45 of the Administrative
Code or paragraph (E) of rule
3745-66-43 or paragraph (E) of
rule
3745-66-45 of the Administrative
Code, must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
"Guarantee for Closure or Post-Closure 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 (D)
of rule 3745-55-41 of the Administrative
Code" to the Ohio 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 (F) of
rules
rule
3745-55-43 and
paragraph (F) of rule 3745-55-45
of the Administrative Code and paragraph (E) of
rules
rule 3745-66-43
and
paragraph (E) of rule 3745-66-45 of the
Administrative Code.
2. [Owner or
operator] owns or operates the following hazardous waste management
facility(ies) covered by this guarantee: [list for each facility:
U.S. EPA identification number, name,
Ohio permit number, and address. Indicate
for each whether guarantee is for closure, post-closure care, or both.]
3. "Closure plans" and
"post-closure plans" as used below refer to the plans maintained as required by
rules
3745-55-40 to
3745-55-51 and
3745-66-40 to
3745-66-48 of the Administrative
Code for the closure and post-closure care of facilities as identified
above.
4. For value received from
[owner or operator], guarantor guarantees to
Ohio EPA that in the event that
[owner or operator] fails to perform [insert "closure," "post-closure care" or
"closure and post-closure care"] of the above facility(ies) in accordance with
the closure or post-closure plans and other permit requirements or requirements
in Chapters 3745-65 to 3745-69 and 3745-256 of the Administrative Code whenever
required to do so, the guarantor shall do so or establish a trust fund as
specified in 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, as applicable, in the name of[owner or operator] in the amount of the
current closure or post-closure cost estimates as specified in rules
3745-55-40 to
3745-55-51 and
3745-66-40 to
3745-66-48 of the Administrative
Code.
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,
Ohio EPA and to
[owner or operator] that he intends to provide alternate financial assurance as
specified in rules
3745-55-40 to
3745-55-51 or rules
3745-66-40 to
3745-66-48 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 XI (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 the
director of a determination that guarantor no
longer meets the financial test criteria or that he is disallowed from
continuing as a guarantor of closure or post-closure care, he shall establish
alternate financial assurance as specified in rules
3745-55-40 to
3745-55-51 or rules
3745-66-40 to
3745-66-48 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 or post-closure plan,
amendment or modification of the permit, the extension or reduction of the time
of performance of closure or post-closure, 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, or Chapters 3745-65 to 3745-69 and 3745-256 of
the Administrative Code.
9.
Guarantor agrees to remain bound under this guarantee for so long as [owner or
operator] must comply with the applicable financial assurance requirements of
rules
3745-55-40 to
3745-55-51 and
3745-66-40 to
3745-66-48 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 and to [owner and operator]; provided that this
guarantee may not be terminated unless and until [the owner or operator]
obtains, and the director approves, alternate closure and/or post-closure care
coverage complying with rules 3745-55-43, 3745-55-45, 3745-66-43, and/or
3745-66-45 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
its owner or operator.]
[Guarantor may terminate this guarantee one hundred twenty days
following the receipt of notification, through certified mail, by Ohio EPA and
by [the owner or operator].
11. Guarantor agrees that if [owner or
operator] fails to provide alternate financial assurance as specified in rules
3745-55-40 to
3745-55-51 or rules
3745-66-40 to
3745-66-48 of the Administrative
Code, as applicable, and obtain written approval of such assurance from the
director within ninety days after a notice of cancellation by the guarantor is
received by the
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
Ohio EPA or by [owner or operator].
Guarantor also expressly waives notice of amendments or modifications of the
closure and/or
post-closure plan and of amendments or modifications of the
facility permit(s).
I hereby certify that the wording of this guarantee is
identical to the wording specified in paragraph (H) of rule
3745-55-51 of the Administrative
Code as such regulations 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
3745-55-47 or in paragraph (G)
of rule
3745-66-47 of the Administrative
Code must 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 paragraph (D) of rule
3745-55-41 of the Administrative
Code", to any and all third parties who have sustained or may sustain bodily
injury or property damage caused by [sudden and/or nonsudden] 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
3745-55-47 and paragraph (G) of
rule
3745-66-47 of the Administrative
Code.
2. [Owner or operator] owns
or operates the following hazardous waste management facility(ies) covered by
this guarantee: [list for each facility: PA identification number, 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
guarantee satisfies the third-party liability requirements for [insert "sudden"
or "nonsudden" or "both sudden and nonsudden"] 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 and/or nonsudden] 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 and/or nonsudden] 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 must 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 90 days, by certified mail, notice to the
director and to [owner or
operator] that he intends to provide alternate liability coverage as specified
in rules
3745-55-47 and
3745-66-47 of the Administrative
Code, as applicable, in the name of[owner or operator]. Within 120 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 10 days
after commencement of the proceeding.
7. Guarantor agrees that within 30 days after
being notified by the
director of a determination that guarantor no longer
meets the financial test criteria or that he is disallowed from continuing as a
guarantor, he shall establish alternate liability coverage as specified in rule
3745-55-47 or
3745-66-47 of the Administrative
Code in the name of[owner or operator], unless [owner or operator] has done
so.
8. Guarantor reserves the right
to modify this agreement to take into account amendment or modification of the
liability requirements set by rules
3745-55-47 and
3745-66-47 of the Administrative
Code, provided that such modification shall become effective only if the
director does not disapprove the modification with 30 days of receipt of
notification of the modification.
9. Guarantor agrees to remain bound under
this guarantee for so long as [owner or operator] must comply with the
applicable requirements of rules
3745-55-47 and
3745-66-47 of the Administrative
Code for the above-listed facility(ies), 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 and to [owner or operator], provided that this
guarantee may not be terminated unless and until [the owner or operator]
obtains, and the director approves, alternate liability coverage complying with
rule 3745-55-47 and /or 3745-66-47 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
following receipt of notification, through certified mail, by the director 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 and/or property damage caused by
a [sudden or nonsudden] accidental occurrence arising from operating
[principal's] hazardous waste treatment, storage, or disposal 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 nonsudden 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 (H)(2) of rule
3745-55-51 of the Administrative
Code as such regulations 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:________"
(I) A hazardous waste
facility liability endorsement as required in rules
3745-55-47 and
3745-66-47 of the Administrative
Code must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
"Hazardous Waste 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 rules
3745-55-47 and
3745-66-47 of the Administrative
Code. The coverage applies at[list
U.S. EPA
identification number, name,
and address
and Ohio permit number for each facility]
for [insert "sudden accidental occurrences," "nonsudden accidental
occurrences," or "sudden and nonsudden 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 nonsudden 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 its
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 to
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
3745-55-47 and paragraph (F) of
rule
3745-66-47 of the Administrative
Code.
(c) Whenever requested by the
director, 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 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.
(e) Any other
termination of this endorsement will be effective only upon written notice and
only after the expiration of thirty days after a copy of such written notice is
received by the
director.
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____,____. The effective date of said
policy is____day of___,
I hereby certify that the wording of this endorsement is
identical to the wording specified in paragraph (I) of rule
3745-55-51 of the Administrative
Code as such regulation 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 certificate of
liability insurance as required in
rules
rule 3745-55-47
or 3745-66-47 of the Administrative Code must be worded as follows, except that
the instructions in brackets are to be replaced with the relevant information
and the brackets deleted:
"Hazardous Waste 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 rules
3745-55-47 or
3745-66-47 of the Administrative
Code. The coverage applies at[list
U.S. EPA
identification number, name,
Ohio permit
number and address for each facility] for [insert "sudden accidental
occurrences," "nonsudden accidental occurrences," or "sudden and nonsudden
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 nonsudden
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 its 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 paragraph (F) of rule
3745-55-47 or paragraph (F) of
rule
3745-66-47 of the Administrative
Code.
(c) Whenever requested by the
director of the Ohio Environmental Protection Agency, 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.
(e) Any other termination of the insurance
will be effective only upon written notice and only after the expiration of
thirty days after a copy of such written notice is received by the
director.
I hereby certify that the wording of this instrument is
identical to the wording specified in paragraph (J) of 3745-55-51 of the
Administrative Code as such regulation 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]_______"
(K) A letter of credit,
as specified in paragraph (H) of rule
3745-55-47 or paragraph (H) of
rule
3745-66-47 of the Administrative
Code, must 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_______
Director_______
Ohio EPA_______
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's 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 and/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 nonsudden
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:
Certification of Valid Claim
The undersigned, as parties [insert Principal] and [insert name
and address of third-party claimants], hereby certify that the claim of bodily
injury [and/or] property damage caused by a [sudden or nonsudden] accidental
occurrence arising from operations of [Principal's] hazardous waste treatment,
storage, or disposal 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 must 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
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]
Principal______________
[Signatures]
Claimant(s)_______________
Or (2) a valid final court order establishing a judgment
against the grantor for bodily injury or property damage caused by a sudden or
nonsudden accidental occurrence arising from 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, 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.
We certify that the wording of this letter of credit is
identical to the wording specified in paragraph (K) of rule
3745-55-51 of the Administrative
Code as such regulations 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"]."
(L) A surety bond, as specified in paragraph
(H)
(I) of
rule
3745-55-47 or paragraph
(H)
(I) of rule
3745-66-47 of the Administrative
Code, must 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, name, and address for each facility guaranteed
by this bond:______
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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 and/or property damage to third parties caused by ["sudden"
and/or "nonsudden"] 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, as amended.
(2) Rules and regulations of the Ohio
Environmental Protection Agency particularly rule
3745-55-47 or rule
3745-66-47 of the Administrative
Code(if applicable).
Conditions:
(1) The
Principal is subject to 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" and/or "nonsudden"]
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 must 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 and/or property damage caused by a [sudden or nonsudden]
accidental occurrence arising from operating [Principal's] hazardous waste
treatment, storage, or disposal facility should be paid in the amount of
$[_____].
[Signature]
Principal_____
[Notary]_____Date_____
[Signature(s)]
Claimant(s)_____
[Notary]_____Date_____
Or
(b) A
valid court order establishing a judgment against the Principal for bodily
injury or property damage caused by sudden or nonsudden 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
director, 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.
(9) The Surety(ies)
hereby waive(s) notification of amendments to applicable laws, statutes, rules
and regulations 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
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 (L) of rule
3745-55-51 of the Administrative
Code, as such regulations 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: $_____"
(M)
(1) A
trust agreement, as specified in paragraph (J) of rule
3745-55-47 or paragraph (J) of
rule
3745-66-47 of the Administrative
Code, must 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," "associations," or "proprietorship"] the
"Grantor", and [name of corporate trustee], [insert "incorporated in the State
of_____" or "a national bank"], the "trustee".
Whereas, the Ohio Environmental Protection Agency, "Ohio EPA,"
an agency of the state of Ohio has established certain regulations applicable
to the Grantor requiring that an owner or operator of a hazardous waste
management facility or group of facilities shall demonstrate financial
responsibility for bodily injury and property damage to third parties caused by
sudden accidental and/or nonsudden 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 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, 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 and/or nonsudden] 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 nonsudden 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 must 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 it 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. 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 and/or property damage caused by a [sudden or nonsudden]
accidental occurrence arising from operating [Grantor's] hazardous waste
treatment, storage, or disposal facility 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 nonsudden 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, as amended,
15 U.S.C.
80a-2.(a), 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
(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, 15 U.S.C.
81a - l et seq., 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
depository
even though, when so deposited, such securities may be merged and held in
bulk in the name of the nominee of such
depositary
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 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 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 director of the Ohio EPA, or his 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 and/or Ohio 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 following 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 equalling 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 director, or by the Trustee and the
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 the 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 Ohio.
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 the 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
3745-55-51 of the Administrative
Code as such regulations 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 must accompany the trust agreement for a
trust fund as specified in paragraph (J) of rule
3745-55-47 or paragraph (J) of
rule
3745-66-47 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]"
(N)
(1) A
standby trust agreement, as specified in paragraph (H) of rule
3745-55-47 or paragraph (H) of
rule
3745-66-47 of the Administrative
Code, must 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 Ohio EPA has established certain regulations applicable
to the Grantor, requiring that an owner or operator of a hazardous waste
management facility or group of facilities shall demonstrate financial
responsibility for bodily injury and property damage to third parties caused by
sudden and/or nonsudden 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
assign 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, name and address
of the facility(ies),
Ohio permit number,
and the amount of liability coverage, or portion 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 and/or nonsudden] accidental occurrences arising
from operation of the facility(ies) covered by this guarantee, in the amount
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 nonsudden
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 must 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
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 it 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.
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 and/or property damage caused by a [sudden or nonsudden]
accidental occurrence arising from operating [Grantor's] hazardous waste
treatment, storage, or disposal facility should be paid in the amount of
$[____].
[Signature]_______
Grantor_______
[Signatures]_______
Claimant(s)_______
(b) A valid court order establishing a
judgment against the Grantor for bodily injury or property damage caused by
sudden or nonsudden 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
3745-55-51 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 of 1940, as amended, 15
U.S.C.
80a -
2(a),
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 of 1940, 15 U.S.C.
80a - l et seq., 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 must 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 amendment 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
and/or the director 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 delivered 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 Ohio.
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 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 (N)(1) of rule
3745-55-51 of the Administrative
Code as such regulations 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 must accompany the trust agreement for a
standby trust fund as specified in paragraph (H) of rule
3745-55-47 or paragraph (H) of
rule
3745-66-47 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
oftheAdministrativeCodetitled"Incorporated by reference."]
[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."]