South Carolina Code of Regulations › Chapter 61 - DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL › Subchapter 61-79 - Hazardous Waste Management Regulations › Part 61-79.261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE › Subpart H - FINANCIAL REQUIREMENTS FOR MANAGEMENT OF EXCLUDED HAZARDOUS SECONDARY MATERIALS › Section 61-79.261.H.151 - Wording of the instruments › Appendix G-2

Current through Register Vol. 48, No. 6, June 28, 2024
Guarantee for Liability Coverage
Guarantee made this [date] by [name of guaranteeing
						entity], a business corporation organized under the laws of South Carolina,
						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 R.61-79
						[either 264.141(h) or 265.141(h)]," 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 section 261.147(g).
2. [Owner or operator] owns or operates the following
						facility(ies) covered by this guarantee: [List for each facility: EPA
						Identification Number (if any issued), 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 corporate guarantee satisfies
						RCRA third-party liability requirements for [insert "sudden" or "nonsudden" or
						"both sudden and nonsudden"] accidental occurrences in above-named owner or
						operator facilities for coverage in the amount of [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. Such obligation does not apply to any of the
						following:
(a) 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.
(b) Any obligation of [insert owner or operator] under a
						workers' compensation, disability benefits, or unemployment compensation law or
						any similar law.
(c) Bodily injury to:
(1) An employee of [insert owner or operator] arising
						from, and in the course of, employment by [insert owner or operator]; 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 owner or operator]. This exclusion 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 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
						owner or operator];
(2) 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;
(3) Property loaned to [insert owner or operator];
(4) Personal property in the care, custody, or control of
						[insert owner or operator];
(5) 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.
5. 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 Department and to [owner or operator] that they
						intend to provide alternate liability coverage as specified in R.61-79.261.147,
						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.
6. The guarantor agrees to notify the Department by
						certified mail of a voluntary or involuntary proceeding under title 11
						(Bankruptcy), U.S. Code, naming guarantor as debtor, within ten (10) days after
						commencement of the proceeding. Guarantor agrees that within thirty (30) days
						after being notified by the Department of a determination that guarantor no
						longer meets the financial test criteria or that they are disallowed from
						continuing as a guarantor, they shall establish alternate liability coverage as
						specified in R.61-79.261.147 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 R.61-79.261.147, provided that such modification shall become effective
						only if the Department 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 R.61-79.261.147 for the above-listed facility(ies), except as provided in
						paragraph 10 of this agreement.
9. [Insert the following language if the guarantor is (a)
						a direct or higher-tier corporate parent, or (b) a firm whose parent
						corporation is also the parent corporation of the owner or operator]:
Guarantor may terminate this guarantee by sending notice
						by certified mail to the Department and to [owner or operator], provided that
						this guarantee may not be terminated unless and until [the owner or operator]
						obtains, and the Department approve, alternate liability coverage complying
						with R.61-79.261.147.
[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 one hundred twenty
						(120) days following receipt of notification, through certified mail, by the
						Department and by [the owner or operator].
11. Guarantor hereby expressly waives notice of
						acceptance of this guarantee by any party.
12. 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.
13. The Guarantor shall satisfy a third-party liability
						claim only on receipt of one of the following documents:
(a) Certification from the Principal 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 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] facility should be
						paid in the amount of $[insert amount].
[Signatures]
Principal
(Notary) Date
[Signatures]
Claimant(s)
(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.
14. In the event of combination of this guarantee with
						another mechanism to meet liability requirements, this guarantee will be
						considered [insert "primary" or "excess"] coverage.
I hereby certify that the wording of the guarantee is
						identical to the wording specified in section 261.151 Appendix G-2 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: