Sec. 34.
(a) The
guarantee, as specified in section 24(g) of this rule or
329 IAC 3.1-15-8(f)
(see
329 IAC
3.1-15-10(h)), must be worded as
follows except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted: 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 the name of the
state, or, 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 (1) of the following: "our subsidiary", or "a subsidiary of [name and
address of common parent corporation], of which guarantor is a subsidiary"], 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
1. Guarantor
meets or exceeds the financial test criteria and agrees to comply with the
reporting requirements for guarantors as specified in
329 IAC 3.1-15-8(f)
and
329 IAC
3.1-14-24(g).
2. [Owner or operator] owns or operates the
following hazardous waste management facility(ies) covered by this guarantee:
[List for each facility: U.S EPA identification number, name, and address, and
if guarantor is incorporated outside the United States, list the name and
address of the guarantor's registered agent in each state.] This guarantee
satisfies third party liability requirements for hazardous waste under IC
13-11-2-71 for [insert "sudden" or "nonsudden" or "both sudden and nonsudden"]
accidental occurrences in above-named owner or operator facilities for coverage
in the amount [insert dollar amount] for each occurrence and [insert dollar
amount] annual aggregate.
3. For
value received from [owner or operator], guarantor guarantees 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
operations of the facility(ies) covered by this guarantee that in the event
that [owner or operator] fails to satisfy a judgment or award based on a
determination of liability for bodily injury or property damage to third
parties caused by [sudden and/or nonsudden] accidental occurrences, arising
from the operation of the above-named facilities, or fails to pay an amount
agreed to in settlement of a claim arising from or alleged to arise from such
injury or damage, the guarantor will satisfy such judgment(s), award(s), or
settlement agreement(s), up to the limits of coverage identified
above.
4. Guarantor agrees that if,
at the end of any fiscal year before termination of this guarantee, the
guarantor fails to meet the financial test criteria, guarantor shall send
within ninety (90) days, by certified mail, notice to the commissioner and to
[owner or operator] that the guarantor intends to provide alternate liability
coverage as specified in
329 IAC
3.1-15-8 and
329 IAC
3.1-14-24, as applicable, in the name of [owner or
operator]. Within one hundred twenty (120) days after the end of such fiscal
year, the guarantor shall establish such liability coverage unless [owner or
operator] has done so.
5. The
guarantor agrees to notify the commissioner by certified mail of a voluntary or
involuntary bankruptcy proceeding under
11
U.S.C. 101 et seq., October 1, 1979, naming
guarantor as debtor, within ten (10) days after commencement of the
proceeding.
6. Guarantor agrees
that within thirty (30) days after being notified by the commissioner of a
determination that guarantor no longer meets the financial test criteria or
that the guarantor is disallowed from continuing as a guarantor, the guarantor
shall establish alternate liability coverage as specified in
329 IAC
3.1-15-8 or
329 IAC
3.1-14-24, in the name of [owner or operator], unless
[owner or operator] has done so.
7.
Guarantor reserves the right to modify this agreement to take into account
amendment or modification of the liability requirements set by
329 IAC
3.1-15-8 and
329 IAC
3.1-14-24, provided that such modification shall
become effective only if the commissioner does not disapprove the modification
within thirty (30) days of receipt of notification of the
modification.
8. Guarantor agrees
to remain bound under this guarantee for so long as [owner or operator] must
comply with the applicable requirements of
329 IAC
3.1-15-8 and
329 IAC
3.1-14-24 for the above-listed facility(ies), except
as provided in paragraph 9 of this agreement.
9. Guarantor may terminate this guarantee by
sending notice by certified mail to the commissioner and to [owner or
operator], provided that this guarantee may not be terminated unless and until
[owner or operator] obtains, and the commissioner approves alternate liability
coverage complying with
329 IAC
3.1-15-8 and/or
329 IAC
3.1-14-24.
10. Guarantor hereby expressly waives notice
of acceptance of this guarantee by any party.
11. Guarantor agrees that this guarantee is
in addition to and does not affect any other responsibility or liability of the
guarantor with respect to the covered facilities.
12. Guarantor shall satisfy a third party
liability claim only on receipt of one (1) of the following documents, either
(a) or (b):
(a) Certification from the
principal and the third party claimant or claimants that the liability claim
must 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 principal] and [insert
name and address of third party claimant or claimants], hereby certify that the
claim of bodily injury, property damage, or bodily injury and property damage
caused by a [sudden or nonsudden] accidental occurrence arising from operating
[principal's hazardous waste treatment, storage, or disposal facility] must be
paid in the amount of $__________.
[Signature]
Principal
(Notary) Date
[Signature or signatures]
Claimant or claimants
(Notary) Date
(b) 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.
13. In the event of the combination of this
guarantee with another mechanism to meet liability requirements, this guarantee
will be considered [insert "primary" or "excess"] coverage.
(b) Such obligation does not apply
to any of the following:
(1) Bodily injury or
property damage for which [insert owner or operator] 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 owner or
operator] would be obligated to pay in the absence of the contract or
agreement.
(2) Any obligation of
[insert owner or operator] under a workers' compensation, disability benefits,
or unemployment compensation law or any similar law.
(3) Bodily injury to:
(A) an employee of [insert owner or operator]
arising from, and in the course of, employment by [insert owner or operator];
or
(B) 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 owner or operator].
(4) Subdivision (3) applies:
(A) whether [insert owner or operator] 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 subdivision (3).
(5) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle, or watercraft.
(6) Property damage to any of the following:
(A) Any property owned, rented, or occupied
by [insert owner or operator].
(B)
Premises that are sold, given away, or abandoned by [insert owner or operator]
if the property damage arises out of any part of those premises.
(C) Property loaned to [insert owner or
operator].
(D) Personal property in
the care, custody, or control of [insert owner or operator].
(E) That particular part of real property on
which [insert owner or operator] or any contractors or subcontractors working
directly or indirectly on behalf of [insert owner or operator] are performing
operations, if the property damage arises out of these operations.
I hereby certify that the wording of this guarantee is
identical to the wording specified in 329 IAC 3.1-14-34 as such rule was
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:
