HAR §11-261.1-10. 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 261.1-15 §11-261.1-10 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, at least 30 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 60 days prior to the anniversary date of establishment of the Fund. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the 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. 261.1-16 §11 261.1-10 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 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 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 amendment to Exhibit A. The Trustee shall be fully protected in acting without inquiry in accordance with the Grantor's orders, requests, and instructions. All orders, requests, and instructions by the 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 261.1-17 §11-261.1-10 absence of such orders, requests, and instructions from the Grantor and/or the department, except as provided for herein. Section 15. 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 16. Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 15, 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. Section 17. 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 18. Choice of Law. This Agreement shall be administered, construed, and enforced according to the laws of the State of Hawaii. Section 19. 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 261.1-18 §11-261.1-10 duly authorized and their corporate seals to be hereunto affixed and attested as of the date first above written: The parties below certify that the wording of this Agreement is identical to the wording specified in the incorporated version of 40 C.F.R. section 261.lSl(a) (1), as amended, in section 11-261.1-1, Hawaii Administrative Rules, as such regulations were constituted on the date first above written. [Signature of Grantor] [Title] Attest: [Title] [Seal] [Signature of Trustee] Attest: [Title] [Seal] (2) The following is an example of the certification of acknowledgment which must accompany the trust agreement for a trust fund as specified in 40 C.F.R. section 261.143(a), as incorporated and amended in this chapter. 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] (b) A surety bond guaranteeing payment into a trust fund, as specified in 40 C.F.R. section 261.143(b), as 261.1-19 §11-261.1-10 incorporated and amended in this chapter, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: FINANCIAL GUARANTEE BOND Date bond executed: Effective date: Principal: [legal name and business address of owner or operator] Type of Organization: [insert "individual," "joint venture," "partnership," or "corporation"] State of incorporation: Surety(ies): [name(s) and business address(es)] EPA Identification Number, name, address and amount(s) for each facility guaranteed by this bond: Total penal sum of bond: $ Surety's bond number: As used in this instrument: (a) The term "department" means the Department of Health, State of Hawaii. (b) The term "director" means the director of the Department of Health, State of Hawaii. Know All Persons By These Presents, That we, the Principal and Surety(ies) are firmly bound to the Department of Health, State of Hawaii, in the event that the hazardous secondary materials at the reclamation or intermediate facility listed below no longer meet the conditions of the exclusion under the incorporated version of 40 C.F.R. section 261.4(a) (24), as amended, in section 11-261.1-1, Hawaii Administrative Rules, in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the 261.1-20 §11-261.1-10 payment of such sum only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum. Whereas said Principal is required, under chapter 342J, Hawaii Revised Statutes, to have a permit or interim status in order to own or operate each facility identified above, or to meet conditions under the incorporated version of 40 C.F.R. section 261.4(a) (24), as amended, in section 11-261.1 1, Hawaii Administrative Rules, and Whereas said Principal is required to provide financial assurance as a condition of permit or interim status or as a condition of an exclusion under the incorporated version of 40 C.F.R. section 261.4(a) (24), as amended, in section 11-261.1-1, Hawaii Administrative Rules, and Whereas said Principal shall establish a standby trust fund as is required when a surety bond is used to provide such financial assurance; Now, Therefore, the conditions of the obligation are such that if the Principal shall faithfully, before the beginning of final closure of each facility identified above, fund the standby trust fund in the amount(s) identified above for the facility, Or, if the Principal shall satisfy all the conditions established for exclusion of hazardous secondary materials from coverage as solid waste under the incorporated version of 40 C.F.R. section 261.4(a) (24), as amended, in section 11-261.1-1, Hawaii Administrative Rules, Or, if the Principal shall fund the standby trust fund in such amount(s) within 15 days after a final order to begin closure is issued by the director or a U.S. district court or other court of competent jurisdiction, Or, if the Principal shall provide alternate financial assurance, as specified in the incorporated version of subpart Hof 40 C.F.R. part 261, as amended, in section 11-261.1-1, Hawaii Administrative Rules, as applicable, and obtain the director's written approval of such assurance, within 90 days 261.1-21 §11-261.1-10 after the date notice of cancellation is received by the Principal, the director, and the EPA Regional Administrator from the Surety(ies), then this obligation shall be null and void; otherwise it is to remain in full force and effect. The Surety(ies) shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described above. Upon notification by the director that the Principal has failed to perform as guaranteed by this bond, the Surety(ies) shall place funds in the amount guaranteed for the facility(ies) into the standby trust fund as directed by the director. The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said penal sum. The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal, to the director, and to the EPA Regional Administrator, provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by the Principal, the director, and the EPA Regional Administrator, as evidenced by the return receipts. The Principal may terminate this bond by sending written notice to the Surety(ies), provided, however, that no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of the bond by the director. [The following paragraph is an optional rider that may be included but is not required.] Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new amount, provided that the penal sum does not increase by more than 20 percent in any one year, and no decrease in the penal sum takes place without the written permission of the director. 261.1-22 §11-261.1-10 In Witness Whereof, the Principal and Surety(ies) have executed this Financial Guarantee Bond and have affixed their seals on the date set forth above. The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in the incorporated version of 40 C.F.R. section 261.lSl(b), as amended, in section 11 261.1-1, Hawaii Administrative Rules, as such regulations were constituted on the date this bond was executed. Principal [Signature (s)] [Name(s)] [Title(s)] [Corporate seal] Corporate Surety(ies) [Name and address] State of incorporation: Liability limit: $ [Signature(s)] [Name(s) and title(s)] [Corporate seal] [For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above.] Bond premium: $ (c) A letter of credit, as specified in 40 C.F.R. section 261.143(c), as incorporated and amended in this chapter, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: 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 261.1-23 §11-261.1-10 favor, in the event that the hazardous secondary materials at the covered reclamation or intermediary facility(ies) no longer meet the conditions of the exclusion under the incorporated version of 40 C.F.R. section 261.4(a) (24), as amended, in section 11-261.1-1, Hawaii Administrative Rules, at the request and for the account of [owner's or operator's name and address] up to the aggregate amount of [in words] U.S. dollars$ , available upon presentation of (1) your sight draft, bearing reference to this letter of credit No. , and (2) your signed statement reading as follows: "I certify that the amount of the draft is payable pursuant to regulations issued under authority of chapter 342J, Hawaii Revised Statutes." This letter of credit is effective as of [date] and shall expire on [date at least 1 year later], but such expiration date shall be automatically extended for a period of [at least 1 year] on [date] and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify you, the EPA Regional Administrator, and [owner's or operator's name] by certified mail that we have decided not to extend this letter of credit beyond the current expiration date. In the event you are so notified, any unused portion of the credit shall be available upon presentation of your sight draft for 120 days after the date of receipt by you, the EPA Regional Administrator, and [owner's or operator's name], as shown on the signed return receipts. Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor such draft upon presentation to us, and we shall deposit the amount of the draft directly into the standby trust fund of [owner's or operator's name] in accordance with your instructions. We certify that the wording of this letter of credit is identical to the wording specified in the incorporated version of 40 C.F.R. section 261.lSl(c), as amended, in section 11-261.1-1, Hawaii 261.1-24 §11-261.1-10 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"]. (d) A certificate of insurance, as specified in 40 C.F.R. section 261.143(d), as incorporated and amended in this chapter, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: CERTIFICATE OF INSURANCE Name and Address of Insurer (herein called the "Insurer") : Name and Address of Insured (herein called the "Insured") : Facilities Covered: [List for each facility: The EPA Identification Number (if any issued), name, address, and the amount of insurance for all facilities covered, which must total the face amount shown below. Face Amount: Policy Number: Effective Date: The Insurer hereby certifies that it has issued to the Insured the policy of insurance identified above to provide financial assurance so that in accordance with applicable regulations all hazardous secondary materials can be removed from the facility or any unit at the facility and the facility or any unit at the facility can be decontaminated at the facilities identified above. The Insurer further warrants that such policy conforms in all respects with the requirements of the incorporated version of 40 C.F.R. section 261.143(d), as amended, in section 11-261.1-1, Hawaii Administrative Rules, as applicable 261.1-25 §11-261.1-10 and as such regulations were constituted on the date shown immediately below. It is agreed that any provision of the policy inconsistent with such regulations is hereby amended to eliminate such inconsistency. Whenever requested by the director of health, State of Hawaii, the Insurer agrees to furnish to the director a duplicate original of the policy listed above, including all endorsements thereon. I hereby certify that the wording of this certificate is identical to the wording specified in the incorporated version of 40 C.F.R. section 261.lSl(d), as amended, in section 11-261.1-1, Hawaii Administrative Rules, as such regulations were constituted on the date shown immediately below. [Authorized signature for Insurer] [Name of person signing] [Title of person signing] Signature of witness or notary: [Date] (e) A letter from the chief financial officer, as specified in 40 C.F.R. section 261.143(e), as incorporated and amended in this chapter, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: LETTER FROM CHIEF FINANCIAL OFFICER [Address to director]. I am the chief financial officer of [name and address of firm]. This letter is in support of this firm's use of the financial test to demonstrate financial assurance, as specified in the incorporated version of subpart Hof 40 C.F.R. part 261, as amended, in section 11-261.1-1, Hawaii Administrative Rules. [Fill out the following nine paragraphs regarding facilities and associated cost estimates. If your firm has no facilities that belong in a particular paragraph, write "None" in the space indicated. For 261.1-26 §11-261.1-10 each facility, include its EPA Identification Number (if any issued), name, address, and current cost estimates.] 1. This firm is the owner or operator of the following facilities for which financial assurance is demonstrated through the financial test specified in subpart Hof 40 C.F.R. part 261. The current cost estimates covered by the test are shown for each facility: 2. This firm guarantees, through the guarantee specified in subpart Hof 40 C.F.R. part 261, the following facilities owned or operated by the guaranteed party. The current cost estimates so guaranteed are shown for each facility: __ . The firm identified above is [insert one or more: (1) The direct or higher-tier parent corporation of the owner or operator; (2) owned by the same parent corporation as the parent corporation of the owner or operator, and receiving the following value in consideration of this guarantee , or (3) engaged in the following substantial business relationship with the owner or operator , and receiving the following value in consideration of this guarantee ] . [Attach a written description of the business relationship or a copy of the contract establishing such relationship to this letter]. 3. In States where EPA is not administering the financial requirements of subpart Hof 40 C.F.R. part 261, this firm, as owner or operator or guarantor, is demonstrating financial assurance for the following facilities through the use of a test equivalent or substantially equivalent to the financial test specified in subpart Hof 40 C.F.R. part 261. The current cost estimates covered by such a test are shown for each facility: 4. This firm is the owner or operator of the following hazardous secondary materials management facilities for which financial assurance is not demonstrated either to EPA or a State through the financial test or any other financial assurance mechanism specified in subpart Hof 40 C.F.R. part 261 or equivalent or substantially equivalent State 261.1-27