(1) The standby trust agreement, or trust
agreement, 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 SOUTH CAROLINA" or "a national bank"], the "Trustee."
Whereas, the United States Environmental Protection Agency,
"EPA," an agency of the United States Government, and the Department of Health
and Environmental Control, an agency of the state of South Carolina, have
established certain regulations applicable to the Grantor, requiring that an
owner or operator of an underground storage tank shall provide assurance that
funds will be available when needed for corrective action and third-party
compensation for bodily injury and property damage caused by sudden and
nonsudden accidental releases arising from the operation of the underground
storage tank. The attached Schedule A lists the number of tanks at each
facility and the name(s) and address(es) of the facility(ies) where the tanks
are located that are covered by the [insert ''standby'' where trust agreement
is standby trust agreement] trust agreement.
[Whereas, the Grantor has elected to establish [insert
either "a guarantee," "surety bond," or "letter of credit"] to provide all or
part of such financial assurance for the underground storage tanks identified
herein and is required to establish a standby trust fund able to accept
payments from the instrument (This paragraph is only applicable to the standby
trust agreement.)];
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 the Financial Assurance Mechanism. This
Agreement pertains to the [identify the financial assurance mechanism, either a
guarantee, surety bond, or letter of credit, from which the standby trust fund
is established to receive payments (This paragraph is only applicable to the
standby trust agreement.)].
Section
3. Establishment of Fund. The Grantor and the Trustee hereby
establish a trust fund, the "Fund," for the benefit of the Department of Health
and Environmental Control (Department). 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 a standby to receive payments and shall not consist of
any property. This sentence is only applicable to the standby trust agreement.]
Payments made by the provider of financial assurance pursuant to the
Department's instruction are transferred to the Trustee and are 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 as provider of financial
assurance, any payments necessary to discharge any liability of the Grantor
established by the Department.
Section
4. Payment for ["Corrective Action" and/or "Third-Party Liability
Claims"]. The Trustee shall make payments from the Fund as the Department shall
direct, in writing, to provide for the payment of the costs of [insert: "taking
corrective action" and/or "compensating third parties for bodily injury and
property damage caused by" either "sudden accidental releases" or "nonsudden
accidental releases" or "accidental releases"] arising from operating the tanks
covered by the financial assurance mechanism identified in this Agreement.
The Fund may not be drawn upon to cover any of the
following:
(a) Any obligation of
[insert owner or operator] under a workers' compensation, disability benefits,
or unemployment compensation law or other similar law;
(b) Bodily injury to an employee of [insert
owner or operator] arising from, and in the course of, employment by [insert
owner or operator];
(c) Bodily
injury or property damage arising from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned,
rented, loaned to, in the care, custody, or control of, or occupied by [insert
owner or operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e)
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 other than a contract or agreement entered into to meet the
requirements of R.61-92.280.93.
The Trustee shall reimburse the Grantor, or other persons
as specified by the Department, from the Fund for corrective action
expenditures and/or third-party liability claims in such amounts as the
Department shall direct in writing. In addition, the Trustee shall refund to
the Grantor such amounts as the Department 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 and 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 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 beneficiaries 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:
(a) Securities or other obligations of the
Grantor, or any other owner or operator of the tanks, 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 a 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 therein; 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 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 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 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. Advice of
Counsel. The Trustee may from time to time consult with counsel, who may be
counsel to the Grantor, with respect to any questions 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
writing sent to the Grantor 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, and instructions by the
Grantor to the Trustee shall be in writing, signed by such persons as are
designated in the attached Schedule B or such other designees as the Grantor
may designate by amendment to Schedule B. 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 Department to
the Trustee shall be in writing, signed by the Department 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 14. Amendment of Agreement. This
Agreement may be amended by an instrument in writing executed by the Grantor
and the Trustee, or by the Trustee and the Department 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 direction of the Grantor and the Trustee, or by
the Trustee and the Department 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 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 or the Department issued in
accordance with this Agreement. The Trustee shall be indemnified and saved
harmless by the Grantor, 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 South Carolina, or the Comptroller of the Currency in the case of
National Association banks.
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 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 (if applicable) 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 R.61-92.280.103(b)(1) as such regulations
were constituted on the date written above.
[Signature of Grantor]
_________________________________
[Name of the Grantor]
_________________________________
[Title]
______________________________________________
Attest:
[Signature of Trustee]
_________________________________
[Name of the Trustee]
_________________________________
[Title]
______________________________________________
[Seal]
Attest:
[Signature of Witness]
_________________________________
[Name of Witness]
____________________________________
[Title]
______________________________________________
[Seal]
