Sec. 26.
(a) A trust
agreement for a trust fund, as specified in section 5 or 15 of this rule,
329 IAC
3.1-15-4(b), or
329 IAC
3.1-15-6(b),
329 IAC
3.1-15-10(a)), must be worded as
follows except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
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 Indiana Department of Environmental Management,
(IDEM), an agency of the State of Indiana, 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 corrective action, 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:
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 and Cost Estimates. This Agreement
pertains to the facilities and cost estimates identified on attached Schedule A
[on Schedule A, for each facility list the U.S. EPA identification number,
name, address, and the current corrective action, closure, and/or post-closure
cost estimates, or portions thereof, for which financial assurance is
demonstrated by the Agreement.]
Section
3. Establishment of Fund. The Grantor and the Trustee hereby
establish a trust fund, the "Fund", for the benefit of the IDEM. The Grantor
and the Trustee intend that no third party have access to the Fund except as
herein provided. The Fund is established initially as consisting of the
property, which is acceptable to the Trustee, described in 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 neither 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 IDEM.
Section 4.
Payment for Corrective Action, Closure, and Post-Closure Care. The Trustee
shall make payments from the Fund as the IDEM commissioner shall direct, in
writing, to provide for the payment of the costs of corrective action, closure,
and/or post-closure care of the facilities covered by this Agreement. The
Trustee shall reimburse the Grantor or other persons specified by the IDEM
commissioner from the Fund for corrective action, closure, and post-closure
expenditures in such amounts as the IDEM commissioner shall direct in writing.
In addition, the Trustee shall refund to the Grantor such amounts as the IDEM
commissioner specifies in writing. Upon refund, such funds shall no longer
constitute part of the Fund as defined herein.
Section 5. Payments Comprising the Fund.
Payments made to the Trustee for the Fund shall consist of cash or securities
acceptable to the Trustee.
Section
6. Trustee Management. The Trustee shall invest and reinvest the
principal and income of the Fund and keep the Fund invested as a single fund,
without distinction between principal and income, in accordance with general
investment policies and guidelines that 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 the duties of the Trustee 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 that persons of
prudence, acting in a like capacity and familiar with such matters, would use
in the conduct of an enterprise of a like character and with like aims except
that:
(a) securities or other obligations of
the Grantor, or any other owner or operator of the facilities, or any of their
affiliates as defined in the 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 state government;
(b)
the Trustee is authorized to invest the Fund in time or demand deposits of the
Trustee, to the extent insured by an agency of the federal or state government;
and
(c) the Trustee is authorized
to hold cash awaiting investment or distribution uninvested for a reasonable
time and without liability for the payment of interest
thereon.
Section 7.
Commingling and Investment. The Trustee is expressly authorized in its
discretion:
(a) to transfer from time to time
any or all of the assets of the Fund to any common, commingled, or collective
trust fund created by the Trustee in which the Fund is eligible to participate,
subject to all of the provisions thereof, to be commingled with the assets of
other trusts participating herein; and
(b) to purchase shares in any investment
company registered under the Investment Company Act of 1940,
15 U.S.C.
80a-1 et seq., including one which may be
created, managed, underwritten, or to which investment advice is rendered or
the shares of which are sold by the Trustee. The Trustee may vote such shares
in its discretion.
Section
8. Express Powers of Trustee. Without in any way limiting the
powers and 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 of the same issue held
by the Trustee in any other fiduciary capacity, or to deposit or arrange for
the deposit of such securities in a qualified central depository even though,
when so deposited, such securities may be merged and held in bulk in the name
of the nominee of such depository with other securities deposited therein by
another person, or to deposit or arrange for the deposit of any securities
deposited therein by another person, or to deposit or arrange for the deposit
of any securities issued by the United States Government, or any agency or
instrumentality thereof, with a Federal Reserve bank, but the books and records
of the Trustee shall at all times show that all such securities are part of the
Fund;
(d) to deposit any cash in
the Fund in interest-bearing accounts maintained or savings certificates issued
by the Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the federal or state government; and
(e) to compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements of the Trustee shall be paid from
the Fund.
Section 10. Annual
Valuation. The Trustee shall annually, at least thirty (30) days prior to the
anniversary date of establishment of the Fund, furnish to the Grantor and to
the IDEM commissioner 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
(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 ninety (90)
days after the statement has been furnished to the Grantor and the IDEM
commissioner 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 writing sent to the Grantor,
the IDEM commissioner, and the present Trustee by certified mail ten (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 IDEM commissioner
to the Trustee shall be in writing, signed by the IDEM commissioner, or
designee of the commissioner, 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 of
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 IDEM 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 IDEM, except as
provided for herein.
Section 15.
Notice of Nonpayment. The Trustee shall notify the Grantor and the IDEM
commissioner, by certified mail within ten (10) days following the expiration
of the thirty (30) day period after the anniversary of the establishment of the
trust, if no payment is received from the Grantor during that period. After the
pay-in-period is completed, the Trustee shall not be required to see a notice
of nonpayment.
Section 16.
Amendment of Agreement. This Agreement may be amended by an instrument in
writing executed by the Grantor, the Trustee, and the IDEM commissioner, or by
the Trustee and the IDEM commissioner 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 IDEM
commissioner, or by the Trustee and the IDEM commissioner if the Grantor ceases
to exist. Upon termination of the trust, all remaining trust property, less
final trust administration expenses, shall be delivered to the
Grantor.
Section 18. Immunity and
Indemnification. The Trustee shall not incur personal liability of any nature
in connection with any act or omission, made in good faith, in the
administration of this trust, or in carrying out any directions by the Grantor
or the IDEM commissioner 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 the defense of the Trustee 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
Indiana.
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 329 IAC 3.1-14-26 as such rule was constituted on the
date first above written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
(Note: Corporate seal is not required by Indiana
law.)
(c) The following is an example of the
Indiana form of acknowledgment that must be used for trust agreements notarized
in Indiana:
Form of Indiana certification of acknowledgment.
ACKNOWLEDGMENT
State of ____________________________________________
County of ___________________________________________
Before me, the undersigned, a Notary Public in and for said
County and State, personally appeared [owner or operator] to be known by me to
be the person who [(only for corporate party)], as [insert title] of _______,
Inc., the corporation that executed the foregoing instrument, signed the same
and acknowledged to me that he/she did so sign the same [in the name and on
behalf of the said corporation as such officer], and the same is his free act
and deed [and the free corporate act and deed of said corporation, and that
he/she was duly authorized by the Board of Directors of said corporation] and
the statements made in the foregoing instrument are true.
IN WITNESS WHEREOF, I have set my hand and official seal this
_______ day of ______, [year].
State of:
_________________________________________________________
County of residence:
_______________________________________________
Notary Public
Commission Expires:
_______________________________________________
