(3)Wording of Financial Instruments Used By Facilities Relying on the Hazardous Waste Licensees Insolvence Fund.(a) A trust agreement for a trust fund established pursuant to 310 CMR 30.910(1)(c) or (d), or pursuant to 310 CMR 30.908(2)(c) or (d), shall be worded as follows, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted. TRUST AGREEMENT
This Trust Agreement, hereafter referred to as the "Agreement", is entered into as of [date] by and between [name of the owner of operator], a [name of State] [insert "corporation", "partnership", "association", "trust", or "individual"], hereafter referred to as the "Grantor", and [name of corporate trustee], [insert "incorporated in the State of " or "a national bank"], hereafter referred to as the "Trustee".
Whereas the Department of Environmental Quality Engineering, hereafter referred to as the "Department", an agency of the Commonwealth of Massachusetts, has established certain regulations applicable to the Grantor, requiring that the Grantor shall demonstrate financial responsibility for bodily injury and property damage to third parties caused by each sudden accidental occurrence and/or each nonsudden accidental occurrence arising from operation of the facility identified in Schedule A; and
Whereas, the Grantor has elected to establish a [insert either "trust fund" or "stand-by trust fund"] to demonstrate all or part of such financial responsibility for the facility identified in Schedule A; and
Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this Agreement, and the Trustee is willing to act as trustee.
Now, therefore, the Grantor and the Trustee agree as follows:
Section 1.Definitions.(a) The term "Grantor" means [name of the owner or operator].(b) The term "Trustee" means [name of corporate trustee], [insert "incorporated in the State of " or "a national bank"], and any successor thereof.(c) The terms "Department" and "Beneficiary" mean the Department of Environmental Quality Engineering, an agency of the Commonwealth of Massachusetts, and any successor of the said Department.(d) The term "Claim Administrator" means [name of the Claim Administrator], and any successor thereof, who is carrying out the responsibilities of the "Claim Administrator" as set forth in 310 CMR 30.900, as in effect as of the date first written above.Section 2.Identification of Facilities. This Agreement pertains to the facilities identified on the attached Schedule A [on attached Schedule A list each facility, and for each facility list the EPA identification number, name, and address for which financial responsibility is demonstrated by this Agreement].Section 3.Establishment of Trust Fund. The Grantor and the Trustee hereby establish a trust fund (the "Fund") for the benefit of the Department. 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 the attached Schedule B. 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.Section 4.Payment for Bodily Injury and Property Damage to Third Parties. The Trustee shall make payments from the Fund as directed by the Claims Administrator or by the Department in writing. Said payments shall provide for payments from the Fund to the Department or to other persons, as specified in writing by the Claims Administrator or by the Department, for bodily injury and property damage caused by each sudden accidental occurrence and/or each nonsudden accidental occurrence arising from operation of the facility covered by this Agreement. Such payment(s) shall be in such amount(s) as the Claims Administrator or the Department directs in writing. In addition, the Trustee shall refund to the Grantor such amount(s) as the Claims Administrator or the Department specifies in writing. Upon payment or refund, such funds shall no longer constitute part of the Fund as defined herein.Section 5.Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of cash, securities, or other assets acceptable to the Trustee.Section 6.Trustee Management. The Trustee shall invest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this Section. In investing, reinvesting, exchanging, selling, and managing the principle and income of the Fund, the Trustee shall discharge his duties with respect to the trust fund solely in the interest of the Beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims; except that:(a) Securities or other obligations of the Grantor, or any affiliates of the Grantor, as defined in the Investment Company Act of 1940, an amended, 14 U.S.C. § 80a- 2(a), shall not be acquired or held unless they are securities or other obligations of the Federal or a State government;(b) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the Federal or State government; and(c) The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.Section 7.Commingling and Investment. The Trustee is expressly authorized in its discretion:(a) To transfer from time to time any or all of the assets of the Fund to any common, commingled, or collective trust fund created by the Trustee in which the Fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts participating therein; and(b) To purchase shares in any investment company registered under the Investment Company Act of 1940, 14 U.S.C. §§ 80a-1 et seq., including one which may be created, managed, underwritten, or to which investment advice is rendered or the shares of which are sold by the Trustee. The Trustee may vote such shares in its discretion.Section 8.Express Powers of Trustee. Without in any way limiting the powers and discretion conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:(a) To sell, exchange, convey, transfer, or otherwise dispose of any property held by it by public or private sale;(b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;(c) To register any securities held in the Fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other Fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States Government or any agency or instrumentality thereof, with a Federal Reserve bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund.(d) To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the Federal or State government; and(e) To compromise or otherwise adjust all claims in favor of or against the Fund.Section 9.Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.Section 10.Annual Valuation. The Trustee shall annually, no later than December 1, furnish to the Grantor, to the Claims Administrator, and to the Department a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no later than November 1. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor, the Claims Administrator, and the Department shall constitute a conclusively binding assent by the Grantor barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.Section 11.Advice of Counsel. The Trustee may, from time to time consult with counsel, who may be counsel to the Grantor, with respect to any question arising as to the interpretation of this Agreement of any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.Section 12.Trustee Compensation. The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.Section 13.Successor Trustee. The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until the Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on which it assumes administration of the trust in a writing sent to the Grantor, the Department, the Claims Administrator, and the present Trustee by certified mail at least ten days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this Section shall be paid as provided in Section 9.Section 14.Instructions to the Trustee. All orders, requests, and instructions by the Grantor to the Trustee shall be in writing, signed by such persons as are designated in the attached Schedule C or such other designees as the Grantor may designate by amendment to Schedule C. 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 Claims Administrator to the Trustee shall be in writing, signed by the Claims Administrator, and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests, and instructions. All orders, requests, and instructions by the Department to the Trustee shall be in writing, signed by the Commissioner or his 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, the Claims Administrator, or the Department 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 Claims Administrator and/or the Department except as provided for herein.Section 15.Notice of Nonpayment. The Trustee shall notify the Grantor, the Claims Administrator, and the Department by certified mail by no later than August 10 if no payment into the Fund is received from the Grantor during the month of July.Section 16.Amendment of Agreement. This Agreement may be amended by an instruction in writing executed by the Grantor, the Trustee, and the Department, or by the Trustee and the Department if the Grantor ceases to exist.Section 17.Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 16, this Trust shall be irrevocable and shall continue until terminated by the written agreement of the Grantor, the Trustee, and the Department, or by the Trustee and the Department if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Grantor.Section 18.Immunity and Indemnification. The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of the Trust, or in carrying out any directions by the Grantor, by the Claims Administrator, or by the Department issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.Section 19.Choice of Law. This Agreement shall be administered, construed, and enforced according to the laws of the Commonwealth of Massachusetts.Section 20.Interpretation. As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each Section of this Agreement shall not effect 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 written above. The parties below certify that the wording of this Agreement is identical to the wording specified in 310 CMR 30.910(3)(a) as in effect on the date first written above.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
(a) Each certification of acknowledgement which shall accompany a trust agreement for a trust fund as required by 310 CMR 30.910 shall be worded as follows, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted. State of [Name of State]
County of [Name of County]
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 [strike one] resides at [address], that she/he [strike one] is [title] of [corporation], the corporation described in and which executed the above instrument; that she/he [strike one] 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 [strike one] signed her/his [strike one] name thereto by like order.
[Signature of Notary Public]
My Commission expires: [Date]
(b)Letters of Credit for Financial Assurance for Accidental Occurrences. A letter of credit as specified in 310 CMR 30.910 (1)(d) and 310 CMR 30.910 (2)(d) shall be worded as follows, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted.IRREVOCABLE STANDBY LETTER OF CREDIT
Commissioner,
Department of Environmental Quality Engineering
Commonwealth of Massachusetts
[Insert here the name and address of the Claims Administrator]
Dear Sir or Madam:
We hereby establish our Irrevocable Standby Letter of Credit No. [Number] in favor of the Department of Environmental Quality Engineering, 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 ($ [Amount]), available upon presentation, by the Commissioner, the Commissioner's designee, or [insert here the name of the Claims Administrator], of
(a) A sight draft, signed by either the Commissioner, the Commissioner's designee, or [insert here the name of the Claims Administrator], bearing reference to this letter of credit No. [Number], and(b) A statement, signed by either the Commissioner, the Commissioner's designee, or [insert here the name of the Claims Administrator], and reading as follows: "I certify that the amount of the draft is payable pursuant to 310 CMR 30.910, regulations issued under authority of M.G.L., c. 21C."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 the Commissioner, [insert here the name of the Claims 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 such notice has been received, any unused portion of the credit shall be available upon presentation of a sight draft, signed by either the Commissioner, the Commissioner's designee, or [insert here the name of the Claims Administrator], within 120 days after the date of receipt of notification by the Commissioner, [insert here the name of the Claims Administrator], and [owner's or operator's name], as shown on the latest signed return receipt.
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 pay the amount of the draft in accordance with the instructions given us by the Commissioner, the Commissioner's designee, or [insert here the name of the Claims Administrator].
We certify that the wording of this letter of credit is identical to the wording specified in 310 CMR 30.910(3)(c) as in effect 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 by the International Chamber of Commerce", or "the Uniform Commercial Code"]