La. Admin. Code tit. 33 § V-3719
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" or "a state bank"], the "Trustee."
WHEREAS, the Department of Environmental Quality of the State of Louisiana, an agency of the State of Louisiana, has established certain regulations applicable to the grantor, requiring that an owner or operator of a hazardous waste management facility shall provide assurance that funds will be available when needed for closure and/or post-closure care of the facility;
WHEREAS, the Grantor has elected to establish a trust to provide all or part of such financial assurance for the facility 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:
As used in this agreement:
This Agreement pertains to the facilities and cost estimates identified on attached Schedule A [on Schedule A, for each facility list the EPA Identification Number, name, address, and the current closure and/or post-closure cost estimates, or portions thereof, for which financial assurance is demonstrated by this Agreement].
The Grantor and the Trustee hereby establish a trust fund, the "Fund," for the benefit of the Louisiana Department of Environmental Quality. 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. [Note: Standby Trust Agreements need not be funded at the time of execution. In the case of Standby Trust Agreements, Schedule B should be blank but for a statement that the Agreement is not presently funded, but shall be funded by the financial assurance document used by the Grantor in accordance with the terms of that document.] Such property and any other property subsequently transferred to the Trustee is referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by the administrative authority.
The Trustee shall make payments from the Fund as the administrative authority shall direct, in writing, to provide for the payment of the costs of closure and/or post-closure care of the facility covered by this Agreement. The Trustee shall reimburse the Grantor or other persons as specified by the administrative authority from the Fund for closure and post-closure expenditures in such amounts as the administrative authority shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the administrative authority specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.
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 part. In investing, reinvesting, exchanging, selling, and managing the Fund, the trustee shall discharge his duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims, except that:
The Trustee is expressly authorized in its discretion:
Without in any way limiting the powers and discretion conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:
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.
The Trustee shall annually, at least 30 days prior to the anniversary date of establishment of the Fund, furnish to the Grantor and to the administrative authority a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no more than 60 days prior to the anniversary date of establishment of the Fund. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the administrative authority 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.
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.
The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.
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 administrative authority, and the present Trustee by certified mail 10 days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this Part shall be paid as provided in Section 9.
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 administrative authority to the Trustee shall be in writing, signed by the administrative authority, 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 administrative authority hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or administrative authority, except as provided for herein.
The Trustee shall notify the Grantor and the administrative authority, by certified mail, within ten days following the expiration of the thirty-day period after the anniversary of the establishment of the Trust, if no payment is received from the Grantor during that period. After the pay-in period is completed, the Trustee shall not be required to send a notice of nonpayment.
This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, and the administrative authority, or by the Trustee and the administrative authority, if the Grantor ceases to exist.
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 administrative authority, or by the Trustee and the administrative authority, if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to Grantor.
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 administrative authority 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.
This Agreement shall be administered, construed, and enforced according to the laws of the State of Louisiana.
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 LAC 33:V.3719.A.1 as such regulations were constituted on the date first above written.
WITNESSES: GRANTOR:
By:
Its:
(SEAL)
TRUSTEE:
By:
Its:______________________
(SEAL)
THUS DONE AND PASSED in my office in _________, on the ____ day of _________ 20____, in the presence of _______ and _________, competent witnesses, who hereunto sign their names with the said appearers and me, Notary, after re ading the whole.
NOTARY PUBLIC
STATE OF LOUISIANA
PARISH OF __________________
BE IT KNOWN, that on this ______ day of______, 20____, before me, the undersigned Notary Public, duly commissioned and qualified within the State and Parish aforesaid, and in the presence of the witnesses hereinafter named and undersigned, personally came and appeared_______, to me well known, who declared and acknowledged that he had signed and executed the foregoing instrument as his act and deed, and as the act and deed of the ____________, a corporation, for the consideration, uses and purposes and on terms and conditions therein set forth.
And the said appearer, being by me first duly sworn, did depose and say that he is the _________ of said corporation and that he signed and executed said instrument in his said capacity, and under authority of the Board of Directors of said corporation.
Thus done and passed in the State and Parish aforesaid, on the day and date first hereinabove written, and in the presence of ________ and _________, competent witnesses, who have hereunto subscribed their names as such, together with said appearer and me, said authority, after due reading of the whole.
WITNESSES:
________ _________
________ __________ NOTARY PUBLIC
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)]
EPA Identification Number, name, address, and closure and/or post-closure amount(s) for each facility guaranteed by this bond [indicate closure and post-closure amounts separately]: ____________________
Total penal sum of bond: $_______
Surety's bond number: __________
Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the Louisiana Department of Environmental Quality in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we the Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the payment of such sum only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.
WHEREAS, said Principal is required, under the Resource Conservation and Recovery Act (RCRA) as amended and the Louisiana Environmental Quality Act, R.S. 30:2001 et seq., to have a permit in order to own or operate the hazardous waste management facility(ies) identified above; and
WHEREAS, the Principal is required by law to provide financial assurance for closure or closure and post-closure care, as a condition of the permit or interim status; and
WHEREAS, said Principal shall establish a standby trust fund as is required by LAC 33:V.Chapter 37 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 the facility identified above, fund the standby trust fund in the amount(s) identified above for the facility,
OR, if the Principal shall fund the standby trust fund in such amount(s) within 15 days after a final order to begin final closure is issued by the Secretary, or a court of competent jurisdiction,
OR, if the Principal shall provide alternate financial assurance as specified in LAC 33:V.Chapter 37, and obtain written approval from the administrative authority of such assurance, within 90 days after the date notice of cancellation is received by both the Principal and the administrative authority from the Surety(ies), then this obligation shall be null and void; otherwise it is to remain in full force and effect.
The Surety(ies) shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described above. Upon notification by the administrative authority 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 administrative authority.
The Surety(ies) hereby waives notification of amendments to closure plans, permits, applicable laws, statutes, rules, and regulations, and agrees that no such amendment shall in any way alleviate its obligation on this bond.
The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of the penal sum.
The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal and to the administrative authority, provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of notice of cancellation by the Principal and the administrative authority, as evidenced by the return receipts.
The Principal may terminate this bond by sending written notice to the Surety(ies) and to the administrative authority, provided, however, that no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of the bond by the administrative authority.
Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly in accordance with LAC 33:V.Chapter 37, and the conditions of the Hazardous Waste Facility permit so that it guarantees a new closure and/or post-closure amount, provided that the penal sum does not increase or decrease without the written permission of the administrative authority.
The Principal and Surety(ies) hereby agree that no portion of the penal sum may be expended without prior written approval of the administrative authority.
IN WITNESS WHEREOF, the Principal and the Surety have executed this FINANCIAL GUARANTEE BOND and have affixed their seals on the date set forth above.
Those persons whose signatures appear below hereby certify that they are authorized to execute this FINANCIAL GUARANTEE BOND on behalf of the Principal and Surety(ies), that each Surety hereto is authorized to do business in the State of Louisiana, and that the wording of this surety bond is identical to the wording specified in LAC 33:V.3719.B as such regulations were constituted on the date this bond was executed.
PRINCIPAL
[Signature(s)]
[Name(s)]
[Title(s)]
[Corporate Seal]
CORPORATE SURETIES
[Name and address]
State of incorporation: _________________________________
Liability Limit: ________________________________________
[Signature(s)]
[Name(s) and title(s)]
[Corporate Seal]
[This information must be provided for each co-surety]
Bond Premium: $______________________________________
PERFORMANCE BOND
Date bond executed: ___________________
Effective date: ________________________
Principal: [Legal name and business address of owner or operator]
Type of organization: [insert "individual," "joint venture," "partnership," or "corporation"]
State of incorporation: __________________
Surety(ies): [Name(s) and business address(es)] ____________________
LHW/EPA Identification Number, name, address, and closure and/or post-closure amount(s) for each facility guaranteed by this bond [indicate closure and post-closure separately]: ____________________________
Total penal sum of bond: $____________________
Surety's bond number _______________________
Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the Louisiana Department of Environmental Quality in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the payment of such sum only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.
WHEREAS, said Principal is required, under the Resource Conservation and Recovery Act as amended (RCRA) and the Louisiana Environmental Quality Act, R.S. 30:2001, et seq., to have a permit in order to own or operate the hazardous waste management facility(ies) identified above; and
WHEREAS, the Principal is required by law to provide financial assurance for closure and post-closure care, as a condition of the permit; and
WHEREAS, said Principal shall establish a standby trust fund as is required when a surety bond is used to provide such financial assurance;
NOW, THEREFORE, the conditions of this obligation are such that if the Principal shall faithfully perform closure, whenever required to do so, of the facility for which this bond guarantees closure, in accordance with the closure plan and other requirements of the permit as such plan and permit may be amended, pursuant to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be amended;
AND, if the Principal shall faithfully perform post-closure care of each facility for which this bond guarantees post-closure care, in accordance with the post-closure plan and other requirements of the permit, as such plan and permit may be amended pursuant to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be amended.
OR, if the Principal shall provide alternate financial assurance as specified in LAC 33:V.Chapter 37, and obtain the administrative authority's written approval of such assurance, within 90 days after the date notice of cancellation is received by both the Principal and administrative authority, then this obligation shall be null and void; otherwise it is to remain in full force and effect.
The Surety shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described hereinabove.
Upon notification by the administrative authority that the Principal has been found in violation of the closure requirements of LAC 33:V.Chapter 37 or of its permit, for the facility for which this bond guarantees performances of closure, the Surety(ies) shall either perform closure in accordance with the closure plan and other permit requirements, or place the closure amount guaranteed for the facility into the standby trust fund as directed by the administrative authority.
Upon notification by the administrative authority that the Principal has been found in violation of the post-closure requirements of the Hazardous Waste Regulations or of its permit for the facility for which this bond guarantees performance of post-closure, the surety(ies) shall either perform post-closure in accordance with the post-closure plan and other permit requirements or place the post-closure amount guaranteed for the facility into the standby trust fund as directed by the administrative authority.
Upon notification by the administrative authority that the Principal has failed to provide alternate financial assurance as specified in LAC 33:V.Chapter 37, and obtain written approval of such assurance from the administrative authority during the 90 days following receipt by both the Principal and the administrative authority of a notice of cancellation of the bond, the Surety(ies) shall place funds in the amount guaranteed for the facility into the standby fund as directed by the administrative authority.
The Surety(ies) hereby waive(s) notification of amendments to closure plans, permits, applicable laws, statutes, rules, and regulations, and agree(s) that no such amendment shall in any way alleviate its obligation on this bond.
The liability of the Surety(ies) shall not be discharged by any payment on 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 the penal sum.
The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal and to the administrative authority, provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of notice of cancellation by both the Principal and the administrative authority, as evidenced by the return receipts.
The Principal may terminate this bond by sending written notice to the Surety and to the administrative authority, provided, however, that no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of the bond by the administrative authority.
Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly in accordance with LAC 33:V.Chapter 37, and the conditions of the Hazardous Waste Facility permit so that it guarantees a new closure and/or post-closure amount, provided that the penal sum does not increase or decrease without the written permission of the administrative authority.
The Principal and Surety(ies) hereby agree that no portion of the penal sum may be expended without prior written approval of the administrative authority.
IN WITNESS WHEREOF, the Principal and the Surety(ies) have executed this PERFORMANCE BOND and have affixed their seals on the date set forth above.
Those 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 LAC 33:V.3719.C as such regulation 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: $ ___________________________________
IRREVOCABLE STANDBY LETTER OF CREDIT
Secretary
Louisiana Department of Environmental Quality
Post Office Box 4313
Baton Rouge, Louisiana 70821-4313
Attention: Office of Environmental Services,
Waste Permits Division
Dear [Sir or Madam]:
We hereby establish our Irrevocable Standby Letter of Credit Number _______ in favor of the Department of Environmental Quality of the State of Louisiana at the request and for the account of [owner's or operator's name and address] up to the aggregate amount of U.S. dollars $______ upon presentation of:
"I certify that the amount of the draft is payable pursuant to regulations issued under authority of the Louisiana Environmental Quality Act, R.S. 30:2001, et seq."
This Letter of Credit is effective as of _______, _______, and shall expire on, _____, _____ [date at least one year later], but such expiration date will be automatically extended for a period of at least one year on the above expiration date [ ____, _____ ] and on each successive expiration date thereafter, unless, at least 120 days before the then current expiration date, we notify both you and [name of owner/operator] by certified mail that we have decided not to extend this Letter of Credit beyond the then current expiration date. In the event we give such notification, any unused portion of the credit shall be available upon presentation of your sight draft for 120 days after the date of receipt by both you and [name of owner/operator], as shown on the signed return receipts.
Whenever this Letter of Credit is drawn 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 [name of owner/operator] in accordance with your instructions.
We certify that the wording of this Letter of Credit is identical to the wording specified in LAC 33:V.3719.D as such regulations were constituted on the date shown immediately below.
[Signature(s) and Titles of Official(s) of issuing institutions]
[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"].
CERTIFICATE OF INSURANCE FOR CLOSURE OR POST-CLOSURE CARE
Name and Address of Insurer
(herein called the "Insurer"): _______________________________
Name and Address of Insured
(herein called the "Insured"): _______________________________
Facilities Covered: [List for each facility: EPA Identification Number, name, address, and the amount of insurance for closure and/or the amount for post-closure care (these amounts for all facilities covered must total the face amount shown below).]
Face Amount: $ _____________
Policy Number: _____________
Effective Date: _____________
The Insurer hereby certifies that it has issued to the Insured the policy of insurance identified above to provide financial assurance for [insert "closure" or "closure and post-closure care" or "post-closure care"] for the facilities identified above. The Insurer further warrants that such policy conforms in all respects with the requirements of LAC 33:V.3707.E, 3711.E, 4403.D, and 4407.D as applicable and as such regulations were constituted on the date shown immediately below. It is agreed that any provision of the policy inconsistent with such regulations is hereby amended to eliminate such inconsistency.
Whenever requested by the administrative authority, the Insurer agrees to furnish to the administrative authority 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 LAC 33:V.3719.E as such regulations were constituted on the date shown immediately below and that Insurer is authorized to conduct insurance business in the State of Louisiana.
[Authorized signature for Insurer]
[Name of person signing][Title of person signing]
Signature of witness or notary: _______________ [Date]
LETTER FROM CHIEF FINANCIAL OFFICER
(Closure and/or Post-Closure Care)
Secretary
Louisiana Department of Environmental Quality
Post Office Box 4313
Baton Rouge, Louisiana 70821-4313
Attention: Office of Environmental Services,
Waste Permits Division
Dear [Sir or Madam]:
I am the chief financial officer of [name and address of firm]. This letter is in support of this firm's use of the financial test to demonstrate financial assurance for closure and/or post-closure costs, as specified in LAC 33:V.Chapter 37 and 43.
[Fill out the following five paragraphs. If there are no facilities that belong in a particular paragraph, write "None" in the space indicated. For each facility, include its EPA Identification Number, name, address, and current closure and/or post-closure cost estimates. Identify each cost as to whether it is for closure or post-closure.]
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 first criteria of LAC 33:V.3707.F.1 or 3711.F.1 or the first criteria of LAC 33:V.4403.E.1 or 4407.E.1 are used. Fill in Alternative II if the second criteria of LAC 33:V.3707.F.1 or 3711.F.1 or the second criteria of LAC 33:V.4403.E.1 or 4407.E.1 are used.]
ALTERNATIVE I
1. Sum of current closure and post-closure estimates [total of all cost estimates shown in the five paragraphs above]: | $ ____ |
*2. Total liabilities [if any portion of the closure or post-closure cost estimates is included in total liabilities, you may deduct the amount of that portion from this line and add that amount to lines 3 and 4]: | $ ____ |
*3. Tangible net worth: | $ ____ |
*4. Net worth: | $ ____ |
*5. Current assests: | $ ____ |
*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 percent of firm's assets are located in the U.S.): | $ ____ |
YES | NO | |
10. Is line 3 at least $10 million? | ____ | ____ |
11. Is line 3 at least six times line 1? | ____ | ____ |
12. Is line 7 at least six times line 1? | ____ | ____ |
*13. Are at least 90 percent of firm's assets located in the U.S.? If not, complete line 14. | ____ | ____ |
14. Is line 9 at least six times line 1? | ____ | ____ |
15. Is line 2 divided by line 4 less than 2.0? | ____ | ____ |
16. Is line 8 divided by line 2 greater than 0.1? | ____ | ____ |
17. Is line 5 divided by line 6 greater than 1.5? | ____ | ____ |
ALTERNATIVE II
1. Sum of current closure and post-closure cost estimates [total of all cost estimates shown in the five paragraphs above]: | $ _____ | |
2. Current bond rating of most recent issuance of this firm and name of rating service: | ______ | |
3. Date of issuance of bond: | ______ | |
4. Date of maturity of bond: | ______ | |
*5. Tangible net worth [if any portion of the closure and post-closure cost estimate 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 percent of firm's assets are located in the U.S.]: | $ ____ | |
YES | NO | |
7. Is line 5 at least $10 million? | ____ | ____ |
*8. Is line 5 greater than six times line 1? | ____ | ____ |
*9. Are at least 90 percent of firm's assets located in the U.S.? If not, complete line 10. | ____ | ____ |
10. Is line 6 at least six times line 1? | ____ | ____ |
I hereby certify that the wording of this letter is identical to the wording specified in LAC 33:V.3719.F as such regulations were constituted on the date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
LETTER FROM CHIEF FINANCIAL OFFICER
(Liability Coverage)
Secretary
Louisiana Department of Environmental Quality
Post Office Box 4313
Baton Rouge, Louisiana 70821-4313
Attention: Office of Environmental Services,
Waste Permits Division
Dear [Sir or Madam]:
I am the chief financial officer of [firm's name and address]. This letter is in support of the use of the financial test to demonstrate financial responsibility for liability coverage [insert "and closure and/or post-closure care" if applicable] as specified in LAC 33:V.Chapter 37 or 43.
[Fill out the following paragraph regarding facilities and liability coverage. If there are no facilities that belong in a particular paragraph, write "none" in the space indicated. For each facility, include its EPA Identification Number, name, and address.]
The firm identified above is the owner or operator of the following facilities for which liability coverage for [insert "sudden" or "nonsudden" or "both sudden and nonsudden"] accidental occurrences is being demonstrated through the financial test specified in LAC 33:V.Chapter 37 or 43.
The firm identified above guarantees, through the guarantee specified in LAC 33:V.Chapter 37 or 43, liability coverage for [insert "sudden" or "nonsudden" or "both sudden and nonsudden"] accidental occurrences at the following facilities owned or operated by the following: _________. The firm identified above is [insert one or more:
[If you are using the financial test to demonstrate coverage of both liability and closure and post-closure care, fill in the following five paragraphs regarding facilities and associated closure and post-closure cost estimates. If there are no facilities that belong in a particular paragraph, write "none" in the space indicated. For each facility, include its EPA Identification Number, name, address, and current closure and/or post-closure cost estimates. Identify each cost estimate as to whether it is for closure or post-closure care.]
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 year, ended [date].
[Fill in Part A if you are using the financial test to demonstrate coverage only for the liability requirements under LAC 33:V.Chapters 37 and 43.]
PART A. LIABILITY COVERAGE FOR SUDDEN AND
NONSUDDEN OCCURRENCES
[Fill in Alternative I if the first criteria of LAC 33:V.3707.F.1 or 4411.F.1 are used. Fill in Alternative II if the second criteria of LAC 33:V.3707.F.1 or 4411.F.1 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. Total assets in the U.S. (required only if less than 90 percent of firm's assets are located in the U.S.): | $ ____ | |
YES | NO | |
7. Is line 5 at least $10 million? | ____ | ____ |
*8. Is line 4 at least six times line 1? | ____ | ____ |
9. Is line 5 at least six times line 1? | ____ | ____ |
10. Are at least 90 percent of assets located in the U.S.? If not, complete line 11. | ____ | ____ |
11. Is line 6 at least six times line 1? | ____ | ____ |
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 percent of firm's assets are located in the U.S.]: | $ _____ | |
YES | NO | |
7. Is line 5 at least $10 million? | ____ | ____ |
*8. Is line 5 at least six times line 1? | ____ | ____ |
9. Are at least 90 percent of firm's assets located in the U.S.? If not, complete line 10. | ____ | ____ |
10. Is line 6 at least six times line 1? | ____ | ____ |
[Fill in Part B if you are using the financial test to demonstrate assurance of both liability coverage and closure or post-closure care.]
PART B. CLOSURE OR POST-CLOSURE CARE AND LIABILITY COVERAGE
[Fill in Alternative I if the first criteria of LAC 33:V.3707.F.1, 3711.F.1, and 3715.F.1, or if the first criteria of LAC 33:V.4403.E.1 or 4407.E.1 and 4411.F.1, are used. Fill in Alternative II if the second criteria of LAC 33:V.3707.F.1, 3711.F.1, and 3715.F.1, or if the second criteria of LAC 33:V.4403.E.1 or 4407.E.1 and 4411.F.1, are used.]
ALTERNATIVE I
1. Sum of current closure and post-closure cost estimates (total of all cost estimates listed above): | $ _____ | |
2. Amount of annual aggregate liability coverage to be demonstrated: | $ _____ | |
3. Sum of lines 1 and 2: | $ _____ | |
*4. Total liabilities (if any portion of your closure or post-closure cost estimates is included in your total liabilities, you may deduct that portion from this line and add that amount to lines 5 and 6): | $ _____ | |
*5. Tangible net worth: | $ _____ | |
*6. Net worth: | $ _____ | |
*7. Current assets: | $ _____ | |
*8. Current liabilities: | $ _____ | |
9. Net working capital (line 7 minus line 8): | $ _____ | |
*10. The sum of net income plus depreciation, depletion, and amortization: | $ _____ | |
*11. Total assets in the U.S. (required only if less than 90 percent of firm's assets are located in the U.S.): | ||
YES | NO | |
12. Is line 5 at least $10 million? | ____ | ____ |
13. Is line 5 at least six times line 3? | ____ | ____ |
14. Is line 9 at least six times line 3? | ____ | ____ |
*15. Are at least 90 percent of assets located in the U.S.? If not, complete line 16. | ____ | ____ |
16. Is line 11 at least six times line 3? | ____ | ____ |
17. Is line 4 divided by line 6 less than 2.0? | ____ | ____ |
18. Is line 10 divided by line 4 greater than 0.1? | ____ | ____ |
19. Is line 7 divided by line 8 greater than 1.5? | ____ | ____ |
ALTERNATIVE II
1. Sum of current closure and post-closure cost estimates (total of all cost estimates listed above): | $ _____ | |
2. Amount of annual aggregate liability coverage to be demonstrated: | $ _____ | |
3. Sum of lines 1 and 2: | $ _____ | |
4. Current bond rating of most recent issuance and name of rating service: | _____ | |
*5. Date of issuance of bond: | _____ | |
*6. Date of maturity of bond: | _____ | |
*7. Tangible net worth (if any portion of the closure or post-closure cost estimates is included in "total liabilities'' on your financial statements you may add that portion to this line): | $ _____ | |
*8. Total assets in the U.S. (required only if less than 90 percent of assets are located in the U.S.): | $ _____ | |
YES | NO | |
9. Is line 7 at least $10 million? | ____ | ____ |
*10. Is line 7 at least six times line 3? | ____ | ____ |
11. Are at least 90 percent of assets located in the U.S.? If not, complete line 12. | ____ | ____ |
12. Is line 8 at least six times line 3? | ____ | ____ |
I hereby certify that the wording of this letter is identical to the wording specified in LAC 33:V.3719.G as such regulations were constituted on the date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
CORPORATE GUARANTEE FOR CLOSURE OR POST-CLOSURE CARE
Guarantee made this [date] by [name of guaranteeing entity], a business corporation organized under the laws of the State of [insert name of State], herein referred to as guarantor, to the Louisiana Department of Environmental Quality, obligee, 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 LAC 33:V.3703.A.8 or 4399"].
Recitals:
[Insert the following language if the guarantor is a firm qualifying as a guarantor due to its "substantial business relationship" with its owner or operator]:
Guarantor may cancel this guarantee 120 days following the receipt of notification, through certified mail, by the administrative authority, and by the owner or operator.
I hereby certify that the wording of this guarantee is identical to the wording specified in LAC 33:V.3719.H.1 as such regulations were constituted on the date first above written.
Effective dates: ___________________
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Thus sworn and signed before me on this the ___ day of _______, 20____.
_________________
Notary Public
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 LAC 33:V.3703 or 4399"], to any and all third parties who have sustained or may sustain bodily injury or property damage caused by [sudden and/or non-sudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee.
Recitals
Guarantor may terminate this guarantee by sending notice by certified mail to the administrative authority and to [owner or operator], provided that this guarantee may not be terminated unless and until the [owner or operator] obtains, and the administrative authority approves, alternate liability coverage complying with LAC 33:V.3715 and/or 4411.
[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 120 days following receipt of notification, through certified mail, by the administrative authority and by [the owner or operator].
CERTIFICATION OF VALID CLAIM
The undersigned, as parties [insert Principal] and [insert name and address of third-party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or non-sudden] accidental occurrence arising from operating [Principal's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of $[ ].
[Signatures]
Principal
[Notary]
[Date]
[Signatures]
Claimant(s)
[Notary]
[Date]
I hereby certify that the wording of this guarantee is identical to the wording specified in LAC 33:V.3719.H.2 as such regulations were constituted on the date shown immediately below.
[Name of guarantor]
[Authorized signature of guarantor]
[Name of person signing]
[Title of person signing]
[Signature of witness or notary]
HAZARDOUS WASTE FACILITY LIABILITY ENDORSEMENT
[Signature of Authorized Representative of Insurer]
[Type name]
[Title], Authorized Representative of [Name of Insurer]]
[Address of Representative]
HAZARDOUS WASTE FACILITY CERTIFICATE OF LIABILITY INSURANCE
I hereby certify that the wording of this instrument is identical to the wording specified in LAC 33:V.3719.J as such regulation was constituted on the date this certificate was issued, as indicated below, and that the insurer is licensed to transact the business of insurance, or eligible to provide insurance as an excess of surplus lines insurer, in one or more states, and is authorized to conduct insurance business in the state of Louisiana.
[Signature of authorized representative of Insurer]
[Type name]
[Title], Authorized Representative of [Name of Insurer]
[Address of Representative]
DATE OF ISSUANCE: _______________________.
IRREVOCABLE STANDBY LETTER OF CREDIT
Secretary
Louisiana Department of Environmental Quality
Post Office Box 4313
Baton Rouge, Louisiana 70821-4313
Attention: Office of Environmental Services,
Waste Permits Division
Dear [Sir or Madam]:
We hereby establish our Irrevocable Standby Letter of Credit Number ______ 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 and/or for third-party liability awards or settlements up to the amount of [in words] U.S. dollars $______ per occurrence, and the annual aggregate amount of [in words] U.S. dollars $______ for nonsudden accidental occurrences available upon presentation of a sight draft bearing reference to this Letter of Credit Number_______, and [insert the following language if the letter of credit is being used without a standby trust fund:]
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 and/or property damage caused by a [sudden or non-sudden] accidental occurrence arising from operations of [principal's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of $__________. We hereby certify that the claim does not apply to any of the following.
[Signatures]
Grantor
[Signatures]
Claimant(s)
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 120 days before the current expiration date, we notify you, the administrative authority, 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 LAC 33:V.3719.K as such regulations were constituted on the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing institution [Date]]
This credit is subject to [insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits published and copyrighted by the International Chamber of Commerce" or "the Uniform Commercial Code"].
PAYMENT BOND
Surety Bond Number [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].
EPA identification number, name, and address for each facility guaranteed by this bond:
Sudden Accidental Non-Sudden Accidental
Occurrences Occurrences
Penal Sum per Occurrence [insert amount] [insert amount]
Annual Aggregate [insert amount] [insert amount]
Purpose: This is an agreement between the surety(ies) and the Principal under which the Surety(ies), its (their) successors and assignees, agree to be responsible for the payment of claims against the principal for bodily injury and/or property damage to third parties caused by ["sudden" and/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.
CERTIFICATION OF VALID CLAIM
The undersigned, as parties [insert name of Principal] and [insert name and address of third-party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or non-sudden] accidental occurrence arising from operating [Principal's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of $[ ].
[Signature]
Principal
[Notary]
[Date]
[Signature(s)]
Claimant(s)
[Notary]
[Date]
In Witness Whereof, the Principal and Surety(ies) have executed this Bond and have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in LAC 33:V.3719, as such regulations were constituted on the date this bond was executed.
PRINCIPAL
[Signature(s)]
[Name(s)]
[Title(s)]
[Corporate Seal]
CORPORATE SURETY[IES]
[Name and address]
State of incorporation:
Liability Limit: $
[Signature(s)]
[Name(s) and title(s)]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for surety above.]
Bond premium: $
TRUST AGREEMENT
Trust Agreement, the "Agreement," entered into as of [date] by and between [name of the owner or operator] a [name of state] [insert "corporation," "partnership," "association," or "proprietorship"], the "Grantor," and [name of corporate trustee], [insert, "incorporated in the state of _______ " or "a national bank"], the "Trustee."
WHEREAS, the United States Environmental Protection Agency, "EPA," an agency of the United States Government, has established certain regulations applicable to the Grantor, requiring that an owner or operator of a hazardous waste management facility or group of facilities must demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden accidental and/or nonsudden accidental occurrences arising from operations of the facility or group of facilities.
WHEREAS, the Grantor has elected to establish a trust to assure all or part of such financial responsibility for the facilities identified herein.
WHEREAS, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this Agreement, and the Trustee is willing to act as trustee.
NOW, THEREFORE, the Grantor and the Trustee agree as follows:
As used in this Agreement:
This agreement pertains to the facilities identified on attached Schedule A [on Schedule A, for each facility list the EPA Identification Number, name, and address of the facility(ies) and the amount of liability coverage, or portions thereof, if more than one instrument affords combined coverage as demonstrated by this Agreement].
The Grantor and the Trustee hereby establish a trust fund, hereinafter the "Fund," for the benefit of any and all third parties injured or damaged by [sudden and/or nonsudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee, in the amounts of _____ [up to $5 million] per occurrence and _____ [up to $10 million] annual aggregate for sudden accidental occurrences, exclusive of legal defense costs and _____ [up to $3 million] per occurrence and ______ [up to $6 million] annual aggregate for nonsudden occurrences exclusive of legal defense costs, except that the Fund is not established for the benefit of third parties for the following:
In the event of combination with another mechanism for liability coverage, the fund shall be considered [insert "primary" or "excess"] coverage.
The Fund is established initially as consisting of the property, which is acceptable to the Trustee, described in Schedule B attached hereto. Such property and any other property subsequently transferred to the Trustee is referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by EPA.
The Trustee shall satisfy a third-party liability claim by making payments from the Fund only upon receipt of one of the following documents.
CERTIFICATION OF VALID CLAIM
The undersigned, as parties [insert Grantor] and [insert name and address of third-party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or non-sudden] accidental occurrence arising from operating [Grantor's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of $[ ].
[Signatures]
Grantor
[Signatures]
Claimant(s)
Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.
The Trustee shall invest and reinvest the principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this Section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge his duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstance then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims, except that:
The Trustee is expressly authorized in its discretion:
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:
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.
The Trustee shall annually, at least 30 days prior to the anniversary date of establishment of the Fund, furnish to the Grantor and to the administrative authority a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no more than 60 days prior to the anniversary date of establishment of the Fund. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the administrative authority 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.
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.
The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.
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 administrative authority, and the present Trustee by certified mail 10 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.
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 administrative authority to the Trustee shall be in writing, signed by the administrative authority, or his or her 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 the administrative authority hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or the administrative authority, except as provided for herein.
If a payment for bodily injury or property damage is made under Section 4 of this trust, the Trustee shall notify the Grantor of such payment and the amount(s) thereof within five working days. The Grantor shall, on or before the anniversary date of the establishment of the Fund following such notice, either make payments to the Trustee in amounts sufficient to cause the trust to return to its value immediately prior to the payment of claims under Section 4, or shall provide written proof to the Trustee that other financial assurance for liability coverage has been obtained 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 10 working days after the anniversary date of the establishment of the Fund provide a written notice of nonpayment to the administrative authority.
This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, and the administrative authority, or by the Trustee and the administrative authority if the Grantor ceases to exist.
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 administrative authority, or by the Trustee and the administrative authority, 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 administrative authority will agree to termination of the Trust when the owner or operator substitutes alternate financial assurance as specified in LAC 33:V.Chapter 37 or 44.
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 administrative authority 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.
This Agreement shall be administered, construed, and enforced according to the laws of the State of Louisiana.
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 LAC 33:V.3719 as such regulations were constituted on the date first above written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
State of Louisiana
Parish 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.
Witness:
____________________
THUS DONE AND SIGNED before me this ________ day of __________ in ____________.
_______________________
NOTARY PUBLIC
STANDBY TRUST AGREEMENT
Trust Agreement, the "Agreement," entered into as of [date] by and between [name of the owner or operator] a [name of a State] [insert "corporation," "partnership," "association," or "proprietorship"], the "Grantor," and [name of corporate trustee], [insert, "incorporated in the State of __________" or "a national bank"], the "Trustee."
WHEREAS, the United States Environmental Protection Agency, "EPA," an agency of the United States Government, has established certain regulations applicable to the Grantor, requiring that an owner or operator of a hazardous waste management facility or group of facilities must demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden accidental and/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 assume 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:
As used in this Agreement:
This agreement pertains to the facilities identified on attached Schedule A [on Schedule A, for each facility list the EPA identification number, name, and address of the facility(ies) and the amount of liability coverage, or portions thereof, if more than one instrument affords combined coverage as demonstrated by this Agreement].
The Grantor and the Trustee hereby establish a standby trust fund, hereafter the "Fund," for the benefit of any and all third parties injured or damaged by [sudden and/or 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:
In the event of combination with another mechanism for liability coverage, the fund shall be considered [insert "primary" or "excess"] coverage.
The Fund is established initially as consisting of the proceeds of the letter of credit deposited into the Fund. Such proceeds and any other property subsequently transferred to the Trustee is referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by EPA.
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:
CERTIFICATION OF VALID CLAIM
The undersigned, as parties [insert Grantor] and [insert name and address of third-party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or non-sudden] accidental occurrence arising from operating [Grantor's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of $[__________].
[Signatures]
Grantor
[Signatures]
Claimant(s)
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 LAC 33:V.3719.K and Section 4 of this Agreement.
The Trustee shall invest and reinvest the principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this Section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge his duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims, except that:
The Trustee is expressly authorized in its discretion:
Without in any way limiting the powers and discretions conferred upon the Trustee by the other provisions of this Agreement or by law, and Trustee is expressly authorized and empowered:
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.
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.
The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.
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 administrative authority, and the present Trustee by certified mail 10 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.
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 administrative authority hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or the administrative authority, except as provided for herein.
This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, and the administrative authority if the grantor ceases to exist.
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 administrative authority, or by the Trustee and the administrative authority, 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 administrative authority will agree to termination of the Trust when the owner or operator substitutes alternative financial assurances as specified in LAC 33:V.Chapter 37 or 44.
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 administrative authority 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.
This Agreement shall be administered, construed, and enforced according to the laws of the State of Louisiana.
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 LAC 33:V.3719.N as such regulations were constituted on the date first above written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
State of Louisiana
Parish 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.
Witness:
___________________________
___________________________
___________________________
THUS DONE AND SIGNED before me this ________ day of ________, ______, in ___________________.
_____________________________
NOTARY PUBLIC
La. Admin. Code tit. 33, § V-3719