Del. Admin. Code tit. 7, 1000, 1300, 1301, app F to Section 4.1.11
CORPORATE GUARANTEE FOR CLOSURE
Guarantee made this [date] by the [owner or operator], a business entity organized under the laws of the State of Delaware, herein referred to as Guarantor, to the Department of Natural Resources and Environmental Control, an agency of the State of Delaware, Obligee. This guarantee is made on behalf of the [owner or operator, facility name, and address], to the State of Delaware, Department of Natural Resources and Environmental Control (DNREC).
Recitals:
1. Guarantor meets or exceeds the financial test criteria and agrees to comply with the reporting requirements for Guarantors as specified in the Delaware Regulations Governing Solid Waste (DRGSW), Section 4.1.11.2.2.6.
2. [Owner or operator] owns or operates the following solid waste management facility covered by this guarantee: [List each facility: name and address].
3. "Closure plans" as used below refer to the plans maintained as required by the DRGSW section for the closure of facilities as identified above.
4. For value received from the Principal Debtor, Guarantor guarantees to DNREC that in the event that Principal Debtor fails to perform closure of the Facility in accordance with the closure plan, other permit or interim status requirements, and all other legal requirements for closure of solid waste facilities, then the Guarantor shall perform or pay a third party to perform closure of the Facility and all other legal requirements for closure of a solid waste facility; or the Guarantor shall establish a fully funded trust fund as specified in Section 4.1.11.2.2.1 of the DRGSW, in the name of Principal Debtor in the amount of the current closure cost estimates as required by Section 4.1.11.3 of the DRGSW.
5. Guarantor agrees that if, at the end of any fiscal year before termination of this guarantee, the Guarantor fails to meet the financial test criteria, Guarantor shall send within 90 days, by certified mail, notice to the Secretary of DNREC (Secretary), to the DNREC Solid and Hazardous Waste Management Section that he intends to provide alternate financial assurance as specified in the DRGSW, in the name of [owner or operator]. Within 120 days after the end of such fiscal year, the Guarantor shall establish such financial assurance unless [owner or operator] has done so.
6. The Guarantor agrees to provide an updated financial test and supporting documents required by Section 4.1.11.2.2.6 of the DRGSW to DNREC annually, no later than 90 days after the close of the Guarantor's fiscal year. Supporting documents shall include as a minimum; Guarantor's Chief Financial Officer letter, accountant's opinion, and annual financial report. In the event that the CFO does not use financial test figures directly from the annual statements provided to the Securities and Exchange Commission, supporting documents shall include a Special Report from an independent accountant approved by the DNREC.
7. The Guarantor agrees to notify the Secretary of the DNREC Solid and Hazardous Waste Management Section of voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming Guarantor as debtor, within 10 days after commencement of the proceeding.
8. Guarantor agrees that if Guarantor no longer meets the financial test criteria or is otherwise disallowed by DNREC from providing this Guarantee, Guarantor, within 30 days after being notified by the Secretary of the DNREC Solid and Hazardous Waste Management Section of a determination that Guarantor no longer meets the financial test criteria or that he is disallowed from continuing as a Guarantor of closure, he shall establish alternate financial assurance as specified in the DRGSW, as applicable, in the name of [owner or operator] unless [owner or operator] has done so.
9. Guarantor agrees to remain bound under this guarantee notwithstanding any or all of the following: amendment or modification of the closure, amendment or modification of the permit, the extension or reduction of the time of performance of closure, or any other modification or alteration of an obligation of the owner or operator pursuant to the DRGSW.
10. Guarantor agrees to remain bound under this guarantee for so long as [owner or operator] must comply with the applicable financial assurance requirements of the DRGSW for the above-listed facilities, except as provided in paragraph 10 of this agreement.
11. Guarantor may send notice of intent to terminate this Guarantee, by certified mail to the Secretary of DNREC, the Solid & Hazardous Waste Management Section, and to Principal Debtor, provided that this Guarantee shall not terminate unless and until Principal Debtor obtains, and the DNREC approves in its sole discretion, alternate closure financial assurance coverage complying with the DRGSW.
12. Guarantor expressly waives notice of acceptance of this guarantee by the Solid and Hazardous Waste Management Section or by [owner or operator]. Guarantor also expressly waives notice of amendments or modifications of the closure plan and of amendments or modifications of the facility permit(s) or modifications of other applicable law.
13. This Guarantee shall also bind successors of Guarantor.
14. This Guarantee shall be governed by the laws of the State of Delaware.
15. Guarantor acknowledges that the consideration received for making this Guarantee includes the benefit to Principal Debtor in complying or attempting to comply with the DRGSW. This Guarantee does not include any promise by or duty upon DNREC, and shall not be construed to require DNREC to take any action, issue any regulatory approvals or permits, or expend any funds. Nothing in this Guarantee shall be construed as a waiver of sovereign immunity or any other defense.
16. It is mutually understood that this Guarantee is to bind the party who signs it, whether it is or will be signed by the other party.
17. Guarantor's Board of Directors agrees to all of the terms and conditions of this Guarantee and have so stated in [name of guaranteeing entity] Board of Directors Resolution [title and/or number and date], a signed, certified copy of which is attached.
_________________________________________
Effective Date
_________________________________________
[Name of Guarantor]
_________________________________________
[Authorized signature for Guarantor]
_________________________________________
[Name of person signing]
_________________________________________
[Title of person signing]
_________________________________________
Signature of witness or notary
Del. Admin. Code tit. 7, 1000, 1300, 1301, app F to Section 4.1.11
19 DE Reg. 418 (11/1/2015) (Final)