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