Haw. Code R. § 11-264-151
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 rules 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 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 paragraph (a)(1) of section 11-264-151 of the Hawaii Administrative Rules as such rule was 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 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:___________________________________________
As used in this instrument:
Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the State of Hawaii, 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 of the Hawaii Revised Statutes, to have a permit or interim status in order to own or operate each hazardous waste management facility identified above, and
Whereas said Principal is required 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 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 fund the standby trust fund in such amount(s) within fifteen days after a final order to begin closure is issued by the director or a court of competent jurisdiction,
Or, if the Principal shall provide alternate financial assurance, as specified in Subchapter H of chapter 11-264 or 11-265 of the Hawaii Administrative Rules, as applicable, and obtain the director's written approval of such assurance, within ninety days after the date notice of cancellation is received by both the Principal and the director from the Surety(ies), then this obligation shall be null and void; otherwise 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 and the director, provided, however, that cancellation shall not occur during the one-hundred and twenty days beginning on the date of receipt of the notice of cancellation by both the Principal and the director, as evidenced by the return receipts.
The Principal may terminate this bond by sending written notice to the Surety(ies), provided, however, that no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of the bond by the director.
[The following paragraph is an optional rider that may be included but is not required.]
Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new closure and/or post-closure amount, provided that the penal sum does not increase by more than twenty 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 subsection (b) of section 11-264-151 of the Hawaii Administrative Rules as such rule was constituted on the date this bond was executed.
Principal
[Signature(s)] ________________________________________________
[Name(s)] _____________________________________________________
[Title(s)]_____________________________________________________
[Corporate seal] ______________________________________________
Corporate Surety(ies)
[Name and address]
State of incorporation: ________________________________________
Liability limit: $ _________________________________________________
[Signature(s)]
[Name(s) and title(s)]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above.]
Bond premium: $ ____________________________________________________
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) ] __________________
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: _____________________________________________
As used in this instrument:
Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the State of Hawaii,
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 of the Hawaii Revised Statutes, to have a permit in order to own or operate each hazardous waste management facility identified above, and
Whereas said Principal is required to provide financial assurance for closure, or 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 each 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 subchapter H of chapter 11-264 of the Hawaii Administrative Rules, and obtain the director's written approval of such assurance, within ninety days after the date notice of cancellation is received by both the Principal and the director from the Surety(ies), then this obligation shall be null and void, otherwise 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 been found in violation of the closure requirements of chapter 11-264 of the Hawaii Administrative Rules, for a facility for which this bond guarantees performance 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 director.
Upon notification by the director that the Principal has been found in violation of the post-closure requirements of chapter 11-264 of the Hawaii Administrative Rules for a facility for which this bond guarantees performance of post-closure care, the Surety(ies) shall either perform post-closure care 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 director.
Upon notification by the director that the Principal has failed to provide alternate financial assurance as specified in subchapter H of chapter 11-264 of the Hawaii Administrative Rules, and obtain written approval of such assurance from the director during the ninety days following receipt by both the Principal and the director of a notice of cancellation of the 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 surety(ies) hereby waive(s) 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 (their) 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 said penal sum.
The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the director, provided, however, that cancellation shall not occur during the one-hundred and twenty days beginning on the date of receipt of the notice of cancellation by both the Principal and the director, as evidenced by the return receipts.
The principal may terminate this bond by sending written notice to the Surety(ies), provided, however, that no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of the bond by the director.
[The following paragraph is an optional rider that may be included but is not required.]
Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new closure and/or post-closure 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 Performance 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 subsection (c) of section 11-264-151 of the Hawaii Administrative Rules as such rule was constituted on the date this bond was executed.
Principal
[Signature(s)]
[Name(s)]
[Title (s)]
[Corporate seal]
Corporate Surety(ies)
[Name and address]
State of incorporation: ________________________________________
Liability limit: $ _____________________________________________
[Signature(s)]
[Name(s) and title(s) ]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above.]
Bond premium: $ _______________________________________________
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, 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 one year later] , but such expiration date shall be automatically extended for a period of [at least one year] on [date] and on each successive expiration date, unless, at least one-hundred and twenty days before the current expiration date, we notify both you and [owner's or operator's name] by certified mail that we have decided not to extend this letter of credit beyond the current expiration date. In the event you are so notified, any unused portion of the credit shall be available upon presentation of your sight draft for one-hundred and twenty days after the date of receipt by both you and [owner's or operator's name], as shown on the signed return receipts.
Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor such draft upon presentation to us, and we shall deposit the amount of the draft directly into the standby trust fund of [owner's or operator's name] in accordance with your instructions.
We certify that the wording of this letter of credit is identical to the wording specified in subsection (d) of section 11-264-151 of the Hawaii Administrative Rules as such rule was constituted on the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing institution] [Date]
This credit is subject to [insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, published and copyrighted by the International Chamber of Commerce, '' or "the Uniform Commercial Code"].
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: The 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 subsections 11-264-143(e), 11-264-145(e), 11-265-143(d), and 11-265-145(d) of the Hawaii Administrative Rules, as applicable and as such rules were constituted on the date shown immediately below. It is agreed that any provision of the policy inconsistent with such rules is hereby amended to eliminate such inconsistency.
Whenever requested by the Hawaii State Director of Health, 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 subsection (e) of section 11-264-151 of the Hawaii Administrative Rules as such rule was constituted on the date shown immediately below.
[Authorized signature for Insurer]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
[Date]
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 for closure and/or post-closure costs, as specified in subchapter H of chapters 11-264 and 11-265 of the Hawaii Administrative Rules.
[Fill out the following five 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, 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 fiscal year, ended [date].
[Fill in Alternative I if the criteria of paragraph (f) (1) (i) of section 11-264-143 or 11-264-145, or of paragraph (e)(1)(i) of section 11-265-143 or 11-265-145 are used. Fill in Alternative II if the criteria of paragraph (f)(1)(ii) of section 11-264-143 or 11-264-145, or of paragraph (e)(1)(ii) of section 11-265-143 or 11-265-145 are used.]
Alternative I
Alternative II
[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 [insert "and closure and/or post-closure care" if applicable] as specified in subchapter H of chapters 11-264 and 11-265 of the 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, 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 subchapter H of chapters 11-264 and 11-265 of the Hawaii Administrative Rules:___________
The firm identified above guarantees, through the guarantee specified in subchapter H of chapters 11-264 and 11-265 of the 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 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 U.S. 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 part A if you are using the financial test to demonstrate coverage only for the liability requirements.]
Part A. Liability Coverage for Accidental Occurrences
[Fill in Alternative I if the criteria of paragraph (f) (1) (i) of section 11-264-147 or 11-265-147 are used. Fill in Alternative II if the criteria of paragraph (f)(1)(ii) of section 11-264-147 or 11-265-147 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 closure or post-closure care.]
Part B. Closure or Post-Closure Care and Liability Coverage
[Fill in Alternative I if the criteria of paragraphs (f) (1) (i) of section 11-264-143 or 11-264-145 and (f) (1) (i) of section 11-264-147 are used or if the criteria of paragraphs (e) (1) (i) of section 11-265-143 or 11-265-145 and (f) (1) (i) of section 11-265-147 are used. Fill in Alternative II if the criteria of paragraphs (f)(1)(ii) of section 11-264-143 or 11-264-145 and (f)(1)(ii) of section 11-264-147 are used or if the criteria of paragraphs (e)(1)(ii) of section 11-265-143 or 11-265-145 and (f)(1)(ii) of section 11-265-147 are used.]
Alternative I
Alternative II
I hereby certify that the wording of this letter is identical to the wording specified in subsection 11-264-151(g) of the Hawaii Administrative Rules 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. 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 [either subsection 11-264-141(h) or 11-265-141(h) of the Hawaii Administrative Rules]" to the Department of Health, State of Hawaii.
Recitals
Guarantor may terminate this guarantee by sending notice by certified mail to the Director of Health, State of Hawaii, and to [owner or operator], provided that this guarantee may not be terminated unless and until [the owner or operator] obtains, and the Director of Health, State of Hawaii, approves, alternate closure and/or post-closure care coverage complying with sections 11-264-143, 11-264-145, 11-265-143, and/or 11-265-145 of the Hawaii Administrative Rules.
[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 terminate this guarantee 120 days following the receipt of notification, through certified mail, by the Director of Health, State of Hawaii, and by [the owner or operator].
I hereby certify that the wording of this guarantee is identical to the wording specified in subsection 11-264-151(h) of the 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 [either subsection 11-264-141(h) or 11-265-141(h) of the 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 of Health, State of Hawaii, and to [owner or operator], provided that this guarantee may not be terminated unless and until [the owner or operator] obtains, and the Director of Health, State of Hawaii, approves, alternate liability coverage complying with sections 11-264-147 and/or 11-265-147 of the 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 of Health, State of Hawaii, 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 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 the guarantee is identical to the wording specified in paragraph 11-264-151(h)(2) of the 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 Waste 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 ____________, 19______. The effective date of said policy is ______ day of __________, 19______.
I hereby certify that the wording of this endorsement is identical to the wording specified in subsection (i) of section 11-264-151 of the Hawaii Administrative Rules as such rule was constituted on the date first above written, and that the Insurer is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more states.
[Signature of Authorized Representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of Insurer]
[Address of Representative]
Hazardous Waste Facility Certificate of Liability Insurance
I hereby certify that the wording of this instrument is identical to the wording specified in subsection (j) of section 11-264-151 of the Hawaii Administrative Rules as such rule was constituted on the date first above written, and that the Insurer is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more states.
[Signature of authorized representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of Insurer]
[Address of Representative]
Irrevocable Standby Letter of Credit
Name and Address of issuing institution ___________
Director 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:] "(1) a signed certificate reading as follows:
Certificate of Valid Claim
The undersigned, as parties [insert principal] and [insert name and address of third party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or nonsudden] 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:
This exclusion applies:
[Signatures] _______________________________________
Principal ____________________________________________
[Signatures] _______________________________________
Claimant (s) ________________________________________
or (2) a valid final court order establishing a judgment against the principal for bodily injury or property damage caused by sudden or nonsudden accidental occurrences arising from the operation of the Principal'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, 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 subsection 11-264-151(k) of the 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, name, and address for each facility guaranteed by this bond: ___________
| Sudden accidental occurrences | Nonsudden accidental 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 "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] hazardous waste treatment, storage, or disposal 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 subsection (1) of section 11-264-151 of the Hawaii Administrative Rules, as such rule was constituted on the date this bond was executed.
PRINCIPAL
[Signature(s)]
[Name(s)]
[Title (s)]
[Corporate Seal]
CORPORATE SURETY[IES]
[Name and address]
State of incorporation: ____________________
Liability Limit: $ _________________________
[Signature(s)]
[Name(s) and title(s) ]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above.]
Bond premium: $ _______________________
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 rules 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:
Section 1. Definitions. As used in this Agreement:
(a) The term "Grantor'' means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.
(b) The term "Trustee'' means the Trustee who enters into this Agreement and any successor Trustee.
(c) The term "department" means the Department of Health, State of Hawaii.
(d) The term "director" means the director of the Department of Health, State of Hawaii.
Section 2. Identification of Facilities. 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].
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, hereinafter the "Fund,'' for the benefit of any and all third parties injured or damaged by [sudden and/or nonsudden] 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 nonsudden occurrences, except that the Fund is not established for the benefit of third parties for the following:
(a) Bodily injury or property damage for which [insert Grantor] is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that [insert Grantor] would be obligated to pay in the absence of the contract or agreement.
(b) Any obligation of [insert Grantor] under a workers' compensation, disability benefits, or unemployment compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of [insert Grantor] arising from, and in the course of, employment by [insert Grantor]; or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of, or arising from, and in the course of employment by [insert Grantor].
This exclusion applies:
(A) Whether [insert Grantor] may be liable as an employer or in any other capacity; and
(B) To any obligation to share damages with or repay another person who must pay damages because of the injury to persons identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied by [insert Grantor];
(2) Premises that are sold, given away or abandoned by [insert Grantor] if the property damage arises out of any part of those premises;
(3) Property loaned to [insert Grantor];
(4) Personal property in the care, custody or control of [insert Grantor];
(5) That particular part of real property on which [insert Grantor] or any contractors or subcontractors working directly or indirectly on behalf of [insert Grantor] are performing operations, if the property damage arises out of these operations.
In the event of combination with another mechanism for liability coverage, the fund shall be considered [insert "primary'' or "excess"] coverage.
The Fund is established initially as consisting of the property, which is acceptable to the Trustee, described in Schedule B attached hereto. Such property and any other property subsequently transferred to the Trustee is referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall 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 or Property Damage. The Trustee shall satisfy a third party liability claim by making payments from the Fund only upon receipt of one of the following documents;
(a) Certification from the Grantor and the third party claimant(s) that the liability claim should be paid. The certification must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert Grantor] and [insert name and address of third party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or nonsudden] 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)
or
(b) 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.
Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.
Section 6. Trustee Management. The Trustee shall invest and reinvest the principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge 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:
(i) Securities or other obligations of the Grantor, or any other owner or operator of the facilities, or any of their affiliates as defined in the federal Investment Company Act of 1940, as amended, 15 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;
(ii) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the federal or a state government; and
(iii) The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.
Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all of the assets of the Fund to any common commingled, or collective trust fund created by the Trustee in which the fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts participating therein; and
(b) To purchase shares in any investment company registered under the federal Investment Company Act of 1940, 15 U.S.C. 81a-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. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other disposition;
(b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;
(c) To register any securities held in the Fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depositary even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depositary with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instrumentality thereof, with a Federal Reserve bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the federal or a state government; and
(e) To compromise or otherwise adjust all claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.
Section 10. Annual Valuations. The Trustee shall annually, at least thirty days prior to the anniversary date of establishment of the Fund, furnish to the Grantor and to the director a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no more than sixty days prior to the anniversary date of establishment of the Fund. The failure of the Grantor to object in writing to the Trustee within ninety days after the statement has been furnished to the Grantor and the director shall constitute a conclusively binding assent by the Grantor barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.
Section 11. Advice of Counsel. The Trustee may from time to time consult with counsel, who may be counsel to the Grantor with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.
Section 12. Trustee Compensation. The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.
Section 13. Successor Trustee. The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until the Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on which it assumes administration of the trust in a writing sent to the Grantor, the director, and the present Trustee by certified mail ten days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this section shall be paid as provided in Section 9.
Section 14. Instructions to the Trustee. All orders, requests, and instructions by the Grantor to the Trustee shall be in writing, signed by such persons as are designated in the attached Exhibit A or such other designees as the Grantor may designate by amendments to Exhibit A. The Trustee shall be fully protected in acting without inquiry in accordance with the Grantor's orders, requests, and instructions. All orders, requests, and instructions by the director to the Trustee shall be in writing, signed by the director, or the director's designee, and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests, and instructions. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Grantor or 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 department, except as provided for herein.
Section 15. Notice of Nonpayment. If a payment for bodily injury or property damage is made under Section 4 of this trust, the Trustee shall notify the Grantor of such payment and the amount(s) thereof within five working days. The Grantor shall, on or before the anniversary date of the establishment of the Fund 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 equalling 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 director.
Section 16. Amendment of Agreement. This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, and the director, or by the Trustee and the director if the Grantor ceases to exist.
Section 17. Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 16, this Trust shall be irrevocable and shall continue until terminated at the written agreement of the Grantor, the Trustee, and the director, or by the Trustee and the director, if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Grantor.
The director will agree to termination of the Trust when the owner or operator substitutes alternate financial assurance as specified in this section.
Section 18. Immunity and Indemnification. The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or the director issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.
Section 19. Choice of Law. This Agreement shall be administered, construed, and enforced according to the laws of the State of Hawaii.
Section 20. Interpretation. As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.
In Witness Whereof the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals to be hereunto affixed and attested as of the date first above written. The parties below certify that the wording of this Agreement is identical to the wording specified in subsection (m) of section 11-264-151 of the Hawaii Administrative Rules as such rule was 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 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 standby trust into which the proceeds from a letter of credit may be deposited to assure all or part of such financial responsibility for the facilities identified herein.
Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee.
Now, therefore, the Grantor and the Trustee agree as follows:
Section 1. Definitions. As used in this Agreement:
(a) The term Grantor means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.
(b) The term Trustee means the Trustee who enters into this Agreement and any successor Trustee.
Section 2. Identification of Facilities. This agreement pertains to the facilities identified on attached schedule A [on schedule A, for each facility list the 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].
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a standby trust fund, hereafter the "Fund," for the benefit of any and all third parties injured or damaged by [sudden and/or nonsudden] 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 nonsudden occurrences, except that the Fund is not established for the benefit of third parties for the following:
(a) Bodily injury or property damage for which [insert Grantor] is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that [insert Grantor] would be obligated to pay in the absence of the contract or agreement.
(b) Any obligation of [insert Grantor] under a workers' compensation, disability benefits, or unemployment compensation law or any similar law.
(c) Bodily injury to:
(1) An employee or [insert Grantor] arising from, and in the course of, employment by [insert Grantor]; or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of, or arising from, and in the course of employment by [insert Grantor].
This exclusion applies:
(A) Whether [insert Grantor] may be liable as an employer or in any other capacity; and
(B) To any obligation to share damages with or repay another person who must pay damages because of the injury to persons identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied by [insert Grantor];
(2) Premises that are sold, given away or abandoned by [insert Grantor] if the property damage arises out of any part of those premises;
(3) Property loaned to [insert Grantor];
(4) Personal property in the care, custody or control of [insert Grantor];
(5) That particular part of real property on which [insert Grantor] or any contractors or subcontractors working directly or indirectly on behalf of [insert Grantor] are performing operations, if the property damage arises out of these operations.
In the event of combination with another mechanism for liability coverage, the fund shall be considered [insert "primary" or "excess"] coverage.
The fund is established initially as consisting of the 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 of Health, State of Hawaii.
Section 4. Payment for Bodily Injury or Property Damage. The Trustee shall satisfy a third party liability claim by drawing on the letter of credit described in Schedule B and by making payments from the Fund only upon receipt of one of the following documents:
(a) Certification from the Grantor and the third party claimant(s) that the liability claim should be paid. The certification must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert Grantor] and [insert name and address of third party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or nonsudden] accidental occurrence arising from operating [Grantor's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of $[ ].
[Signature] ________________________________________
Grantor ____________________________________________
[Signatures] _______________________________________
Claimant (s) ________________________________________
(b) A valid final court order establishing a judgment against the Grantor for bodily injury or property damage caused by sudden or nonsudden, accidental occurrences arising from the operation of the Grantor's facility or group of facilities.
Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of the proceeds from the letter of credit drawn upon by the Trustee in accordance with the requirements of subsection 11-264-151(k) of the Hawaii Administrative Rules and Section 4 of this Agreement.
Section 6. Trustee Management. The trustee shall invest and reinvest the principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this Section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge 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:
(i) Securities or other obligations of the Grantor, or any other owner or operator of the facilities, or any of their affiliates as defined in the federal Investment Company Act of 1940, as amended, 15 U.S.C. 80 a - 2(a), shall not be acquired or held, unless they are securities or other obligations of the federal or a state government;
(ii) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the federal or a state government; and
(iii) The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.
Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all of the assets of the Fund to any common, commingled, or collective trust fund created by the Trustee in which the Fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts participating therein; and
(b) To purchase shares in any investment company registered under the federal Investment Company Act of 1940, 15 U.S.C. 80 a - 1et 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 discretions conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or otherwise dispose of any property held by it, by public or private sale. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other disposition;
(b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;
(c) To register any securities held in the Fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depositary even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depositary with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instrumentality thereof, with a Federal Reserve Bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the federal or a state government; and
(e) To compromise or otherwise adjust all claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements to the Trustee shall be paid from the Fund.
Section 10. Advice of Counsel. The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.
Section 11. Trustee Compensation. The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.
Section 12. Successor Trustee. The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until the Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment; the Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on which it assumes administration of the trust in a writing sent to the Grantor, the Director of Health, State of Hawaii, 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.
Section 13. Instructions to the Trustee. All orders, requests, certifications of valid claims, and instructions to the Trustee shall be in writing, signed by such persons as are designated in the attached Exhibit A or such other designees as the Grantor may designate by amendments to Exhibit A. The Trustee shall be fully protected in acting without inquiry in accordance with the Grantor's orders, requests, and instructions. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Grantor or the Director of Health, State of Hawaii, 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 Department of Health, State of Hawaii, except as provided for herein.
Section 14. Amendment of agreement. This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, and the Director of Health, State of Hawaii, or by the Trustee and the Director of Health, State of Hawaii, if the Grantor ceases to exist.
Section 15. Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 14, this Trust shall be irrevocable and shall continue until terminated at the written agreement of the Grantor, the Trustee, and the Director of Health, State of Hawaii, or by the Trustee and the Director of Health, State of Hawaii, if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be paid to the Grantor.
The Director of Health, State of Hawaii, will agree to termination of the Trust when the owner or operator substitutes alternative financial assurance as specified in this section.
Section 16. Immunity and indemnification. The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor and the Director of Health, State of Hawaii, issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.
Section 17. Choice of Law. This Agreement shall be administered, construed, and enforced according to the laws of the State of Hawaii.
Section 18. Interpretation. As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each Section of this Agreement shall not affect the interpretation of the legal efficacy of this Agreement.
In Witness Whereof the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals to be hereunto affixed and attested as of the date first above written. The parties below certify that the wording of this Agreement is identical to the wording specified in subsection 11-264-151(n) of the 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. § 11-264-151