Haw. Code R. § 11-261.1-10
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 Department of Health, State of Hawaii, has established certain regulations applicable to the Grantor, requiring that an owner or operator of a facility regulated under chapter 11-264.1 or 11-265.1, Hawaii Administrative Rules, or satisfying the conditions of the exclusion under the incorporated version of 40 C.F.R. section 261.4(a)(24), as amended, in section 11-261.1-1, Hawaii Administrative Rules, shall provide assurance that funds will be available if needed for care of the facility under the incorporated version of subpart G of 40 C.F.R. part 264 or 265, as amended, in section 11-264.1-1 or 11-265.1-1, Hawaii Administrative Rules, 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 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:
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 the incorporated version of 40 C.F.R. section 261.151(a)(1), as amended, in section 11-261.1-1, Hawaii Administrative Rules, 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____________
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]
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 amount(s) for each facility guaranteed by this bond:
Total penal sum of bond: $
Surety's bond number:
As used in this instrument:
Know All Persons By These Presents, That we, the Principal and Surety(ies) are firmly bound to the Department of Health, State of Hawaii, 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 the incorporated version of 40 C.F.R. section 261.4(a)(24), as amended, in section 11-261.1-1, Hawaii Administrative Rules, 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 chapter 342J, Hawaii Revised Statutes, to have a permit or interim status in order to own or operate each facility identified above, or to meet conditions under the incorporated version of 40 C.F.R. section 261.4(a)(24), as amended, in section 11-261.1-1, Hawaii Administrative Rules, and
Whereas said Principal is required to provide financial assurance as a condition of permit or interim status or as a condition of an exclusion under the incorporated version of 40 C.F.R. section 261.4(a)(24), as amended, in section 11-261.1-1, Hawaii Administrative Rules, 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 solid waste under the incorporated version of 40 C.F.R. section 261.4(a)(24), as amended, in section 11-261.1-1, Hawaii Administrative Rules,
Or, if the Principal shall fund the standby trust fund in such amount(s) within 15 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 the incorporated version of subpart H of 40 C.F.R. part 261, as amended, in section 11-261.1-1, Hawaii Administrative Rules, as applicable, and obtain the director's written approval of such assurance, within 90 days after the date notice of cancellation is received by the Principal, the director, and the EPA Regional Administrator 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 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, to the director, and to the EPA Regional Administrator, provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by the Principal, the director, and the EPA Regional Administrator, 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 20 percent in any one year, and no decrease in the penal sum takes place without the written permission of the director.
In Witness Whereof, the Principal and Surety(ies) have executed this Financial Guarantee Bond and have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in the incorporated version of 40 C.F.R. section 261.151(b), as amended, in section 11-261.11, Hawaii Administrative Rules, 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: $
IRREVOCABLE STANDBY LETTER OF CREDIT
Director of Health
Department of Health
State of Hawaii
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 the incorporated version of 40 C.F.R. section 261.4(a)(24), as amended, in section 11-261.1-1, Hawaii Administrative Rules, 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
This letter of credit is effective as of [date] and shall expire on [date at least 1 year later], but such expiration date shall be automatically extended for a period of [at least 1 year] on [date] and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify you, the EPA Regional Administrator, 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 120 days after the date of receipt by you, the EPA Regional Administrator, 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 the incorporated version of 40 C.F.R. section 261.151(c), as amended, in section 11-261.1-1, Hawaii Administrative Rules, 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"].
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 EPA Identification Number (if any issued), name, address, and the amount of insurance for all facilities covered, which 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 so that in accordance with applicable regulations 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 the incorporated version of 40 C.F.R. section 261.143(d), as amended, in section 11-261.1-1, Hawaii Administrative Rules, as applicable and as such regulations were constituted on the date shown immediately below. It is agreed that any provision of the policy inconsistent with such regulations is hereby amended to eliminate such inconsistency.
Whenever requested by the director of health, State of Hawaii, 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 the incorporated version of 40 C.F.R. section 261.151(d), as amended, in section 11-261.1-1, Hawaii Administrative Rules, as such regulations were constituted on the date shown immediately below.
[Authorized signature for Insurer]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
[Date]
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 the incorporated version of subpart H of 40 C.F.R. part 261, as amended, in section 11-261.1-1, Hawaii Administrative Rules.
[Fill out the following nine paragraphs regarding facilities and associated cost estimates. If your firm has no facilities that belong in a particular paragraph, write "None" in the space indicated. For each facility, include its EPA Identification Number (if any issued), name, address, and current cost estimates.]
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 the incorporated version of 40 C.F.R. section 261.143(e)(1)(i), as amended, in section 11-261.1-1, Hawaii Administrative Rules, are used. Fill in Alternative II if the criteria of the incorporated version of 40 C.F.R. section 261.143(e)(1)(ii), as amended, in section 11-261.1-1, Hawaii Administrative Rules, are used.]
Alternative I
Alternative II
I hereby certify that the wording of this letter is identical to the wording specified in the incorporated version of 40 C.F.R. section 261.151(e), as amended, in section 11-261.1-1, Hawaii Administrative Rules, as such regulations were constituted on the date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
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 the incorporated version of 40 C.F.R. section 261.147, as amended, in section 11-261.1-1, Hawaii Administrative Rules [insert "and costs assured under the incorporated version of 40 C.F.R. section 261.143(e), as amended, in section 11-261.1-1, Hawaii Administrative Rules" if applicable] as specified in the incorporated version of subpart H of 40 C.F.R. part 261, as amended, in section 11-261.1-1, Hawaii Administrative Rules.
[Fill out the following paragraphs regarding facilities and liability coverage. If there are no facilities that belong in a particular paragraph, write "None" in the space indicated. For each facility, include its 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 "nonsudden" or "both sudden and nonsudden"] accidental occurrences is being demonstrated through the financial test specified in the incorporated version of subpart H of 40 C.F.R. part 261, as amended, in section 11-261.1-1, Hawaii Administrative Rules:____
The firm identified above guarantees, through the guarantee specified in the incorporated version of subpart H of 40 C.F.R. part 261, as amended, in section 11-261.1-1, Hawaii Administrative Rules, 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:
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 the incorporated version of subpart H of 40 C.F.R. parts 264 and 265, as amended, in sections 11-264.1-1 and 11-265.1-1, Hawaii Administrative Rules:____
The firm identified above guarantees, through the guarantee specified in the incorporated version of subpart H of 40 C.F.R. parts 264 and 265, as amended, in sections 11-264.1-1 and 11-265.1-1, Hawaii Administrative Rules, 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 costs assured under the incorporated version of 40 C.F.R. section 261.143(e), as amended, in section 11-261.1-1, Hawaii Administrative Rules, or closure or post-closure care costs under the incorporated version of 40 C.F.R. section 264.143 or 264.145, as amended, in section 11-264.1-1, Hawaii Administrative Rules, or the incorporated version of 40 C.F.R. section 265.143 or 265.145, as amended, in section 11-265.1-1, Hawaii Administrative Rules, 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 its EPA identification number (if any issued), name, address, and current cost estimates.]
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 40 C.F.R. section 261.147(f)(1)(i), as incorporated and amended in this chapter, are used. Fill in Alternative II if the criteria of 40 C.F.R. section 261.147(f)(1)(ii), as incorporated and amended in this chapter, are used.]
Alternative I
Alternative II
[Fill in part B if you are using the financial test to demonstrate assurance of both liability coverage and costs assured under 40 C.F.R. section 261.143(e), as incorporated and amended in this chapter, or closure or post-closure care costs under 40 C.F.R. section 264.143, 264.145, 265.143, or 265.145, as incorporated and amended in sections 11264.1-1 and 11-265.1-1.]
Part B. Facility Care and Liability Coverage [Fill in Alternative I if the criteria of 40 C.F.R. sections 261.143(e)(1)(i) and 261.147(f)(1)(i), as incorporated and amended in this chapter, are used. Fill in Alternative II if the criteria of 40 C.F.R. sections 261.143 (e)(1)(ii) and 261.147 (f)(1)(ii), as incorporated and amended in this chapter, are used.]
Alternative I
Alternative II
I hereby certify that the wording of this letter is identical to the wording specified in the incorporated version of 40 C.F.R. section 261.151(f), as amended, in section 11-261.1-1, Hawaii Administrative Rules, as such regulations were constituted on the date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
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 the incorporated version of 40 C.F.R. sections 264.141(h) and 265.141(h), as amended, in sections 11-264.1-1 and 11-265.1-1, Hawaii Administrative Rules,"] to the Department of Health, State of Hawaii.
Recitals
[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 the receipt of notification, through certified mail, by the director, the EPA Regional Administrator, the state agency and EPA Regional Administrator regulating hazardous waste in all states where facilities covered by the guarantee are located, and by [the owner or operator].
I hereby certify that the wording of this guarantee is identical to the wording specified in the incorporated version of 40 C.F.R. section 261.151(g)(1), as amended, in section 11-261.1-1, Hawaii Administrative Rules, as such regulations were constituted on the date first above written.
Effective date:
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
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 the incorporated version of 40 C.F.R. section [either 264.141(h) or 265.141(h)], as amended, in section [either 11-264.1-1 or 11-265.1-1], Hawaii Administrative Rules,"] to any and all third parties who have sustained or may sustain bodily injury or property damage caused by [sudden and/or nonsudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee.
Recitals
Guarantor may terminate this guarantee by sending notice by certified mail to the director, the EPA Regional Administrator, the state agency and EPA Regional Administrator regulating hazardous waste in all states where facilities covered by the guarantee are located, and to [owner or operator], provided that this guarantee may not be terminated unless and until [the owner or operator] obtains, and the director approves, alternate liability coverage complying with the incorporated version of 40 C.F.R. section 261.147, as amended, in section 11-261.1-1, Hawaii Administrative Rules.
[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 director, the EPA Regional Administrator, the state agency and EPA Regional Administrator regulating hazardous waste in all states where facilities covered by the guarantee are located, 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 nonsudden] accidental occurrence arising from operating [Principal's] facility should be paid in the amount of $ _____.
[Signatures]
Principal
(Notary) Date
[Signatures]
Claimant(s)
(Notary) Date
I hereby certify that the wording of the guarantee is identical to the wording specified in the incorporated version of 40 C.F.R. section 261.151(g)(2), as amended, in section 11-261.1-1, Hawaii Administrative Rules, as such regulations were constituted on the date shown immediately below.
Effective date:
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
HAZARDOUS SECONDARY MATERIAL RECLAMATION/INTERMEDIATE FACILITY LIABILITY ENDORSEMENT
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 the incorporated version of 40 C.F.R. section 261.151(h), as amended, in section 11-261.1-1, Hawaii Administrative Rules, as such regulation was constituted on the date first above written, and that the Insurer is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States.
[Signature of Authorized Representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of Insurer]
[Address of Representative]
HAZARDOUS SECONDARY MATERIAL RECLAMATION/INTERMEDIATE FACILITY CERTIFICATE OF LIABILITY INSURANCE
I hereby certify that the wording of this instrument is identical to the wording specified in the incorporated version of 40 C.F.R. section 261.151(i), as amended, in section 11-261.1-1, Hawaii
Administrative Rules, as such regulation was constituted on the date first above written, and that the Insurer is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States.
[Signature of authorized representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of Insurer]
[Address of Representative]
IRREVOCABLE STANDBY LETTER OF CREDIT
Name and Address of Issuing Institution
Director of Health
Department of Health
State of Hawaii
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 and/or for third-party liability awards or settlements up to the amount of [in words] U.S. dollars $ _____ per occurrence, and the annual aggregate amount of [in words] U.S. dollars $ _____, for nonsudden accidental occurrences available upon presentation of a sight draft bearing reference to this letter of credit No. _____, and
[insert the following language if the letter of credit is being used without a standby trust fund:
The undersigned, as parties [insert principal] and [insert name and address of third party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or nonsudden] accidental occurrence arising from 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:
[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 nonsudden 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 120 days before the current expiration date, we notify you, the director of health, State of Hawaii, the EPA Regional Administrator, 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 the incorporated version of 40 C.F.R. section 261.151(j), as amended, in section 11-261.1-1, Hawaii Administrative Rules, 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 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].
EPA Identification Number (if any issued), name, and address for each facility guaranteed by this bond: ____
Purpose: This is an agreement between the Surety(ies) and the Principal under which the Surety(ies), its(their) successors and assignees, agree to be responsible for the payment of claims against the Principal for bodily injury and/or property damage to third parties caused by ["sudden" and/or "nonsudden"] accidental occurrences arising from operations of the facility or group of facilities in the sums prescribed herein; subject to the governing provisions and the following conditions.
Governing Provisions:
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 nonsudden] 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
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 the incorporated version of 40 C.F.R. section 261.151(k), as amended, in section 11-261.1-1, Hawaii Administrative Rules, 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 Department of Health, State of Hawaii, has established certain regulations applicable to the Grantor, requiring that an owner or operator 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:
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 the department.
Certification of Valid Claim
The undersigned, as parties [insert Grantor] and [insert name and address of third party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or nonsudden] accidental occurrence arising from operating [Grantor's] facility or group of facilities should be paid in the amount of $ [ ].
[Signatures]
Grantor
[Signatures]
Claimant(s)
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 the incorporated version of 40 C.F.R. section 261.151(1), as amended, in section 11-261.1-1, Hawaii Administrative Rules, 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
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]
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 Department of Health, State of Hawaii, has established certain regulations applicable to the Grantor, requiring that an owner or operator 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 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:
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 the department.
Certification of Valid Claim
The undersigned, as parties [insert Grantor] and [insert name and address of third party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or nonsudden] accidental occurrence arising from operating [Grantor's] facility should be paid in the amount of $ [ ]
[Signature]
Grantor
[Signatures]
Claimant(s)
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 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.
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 the incorporated version of 40 C.F.R. section 261.151(m), as amended, in section 11-261.1-1, Hawaii Administrative Rules, 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
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]"
Haw. Code R. § 11-261.1-10