Exhibit 4.5
STANDARD TRUST TERMS
WITH RESPECT TO
ING USA GLOBAL FUNDING TRUSTS
DATED AS OF SEPTEMBER 8, 2006
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
Section 1.01. Definitions............................................... 1
Section 1.02. Usage of Terms............................................ 3
Section 1.03. Section References........................................ 3
ARTICLE 2
CREATION OF TRUST
Section 2.01. Name of the Trust......................................... 3
Section 2.02. Office of the Trustee; Principal Place of Business........ 3
Section 2.03. Appointment of Trustee.................................... 3
Section 2.04. Trust Beneficial Interest................................. 3
Section 2.05. Issuance of the Notes..................................... 4
Section 2.06. Acquisition of Funding Agreement.......................... 4
Section 2.07. Security Interest in the Collateral....................... 4
Section 2.08. Purposes of the Trust..................................... 4
Section 2.09. Title to Collateral....................................... 4
Section 2.10. Allocation of Trust Expenses.............................. 4
Section 2.11. Liability................................................. 4
Section 2.12. Income Tax Treatment; Tax Returns and Reports............. 5
Section 2.13. Situs of Trust............................................ 5
ARTICLE 3
PAYMENT ACCOUNT
Section 3.01. Payment Account........................................... 5
ARTICLE 4
TRUST SECURITIES
Section 4.01. Initial Ownership......................................... 7
Section 4.02. Notes..................................................... 7
Section 4.03. Registration of Transfer of Trust Beneficial Interest..... 7
Section 4.04. Persons Deemed Holders of Trust Securities................ 7
Section 4.05. Maintenance of Office..................................... 7
Section 4.06. Ownership of the Trust Beneficial Interest................ 7
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TABLE OF CONTENTS
(Continued)
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01. Trustee................................................... 8
Section 5.02. Trust Beneficial Owner.................................... 9
ARTICLE 6
TRUSTEE
Section 6.01. General Authority......................................... 9
Section 6.02. General Duties............................................ 14
Section 6.03. Specific Duties........................................... 15
Section 6.04. Acceptance of Trust and Duties; Limitation on Liability... 15
Section 6.05. Reliance; Advice of Counsel............................... 18
Section 6.06. Delegation of Authorities and Duties...................... 19
Section 6.07. Acknowledgment of the Trustee............................. 19
ARTICLE 7
LIQUIDATION AND TERMINATION
Section 7.01. Termination Upon the Trust Expiration Date................ 19
Section 7.02. Termination of Agreement.................................. 19
Section 7.03. Liquidation............................................... 19
ARTICLE 8
SUCCESSOR AND ADDITIONAL TRUSTEES
Section 8.01. Eligibility Requirements for the Trustee.................. 20
Section 8.02. Resignation or Removal of the Trustee..................... 20
Section 8.03. Successor Trustee......................................... 21
Section 8.04. Merger or Consolidation of Trustee........................ 21
Section 8.05. Appointment of Co-Trustee or Separate Trustee............. 22
Section 8.06. Trustee May Own Notes..................................... 23
ARTICLE 9
VOTING; ACTS OF SECURITYHOLDERS; MEETINGS
Section 9.01. Limitations on Voting Rights.............................. 23
Section 9.02. Meetings of the Trust Beneficial Owner.................... 24
ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.01. Limitation on Rights of Securityholders................... 24
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TABLE OF CONTENTS
(Continued)
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Section 10.02. Amendment................................................. 24
Section 10.03. Notice.................................................... 25
Section 10.04. No Recourse............................................... 26
Section 10.05. No Petition............................................... 27
Section 10.06. Governing Law............................................. 27
Section 10.07. Severability.............................................. 27
Section 10.08. Trust Securities Nonassessable and Fully Paid............. 27
Section 10.09. Third-Party Beneficiaries................................. 27
Section 10.10. Acknowledgment of Multiple Roles.......................... 27
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STANDARD TRUST TERMS
This document constitutes the Standard Trust Terms, dated as of September
8, 2006, which will be incorporated by reference in the Trust Agreement
(specified in Section A of the Omnibus Instrument, as defined in the Indenture
(as defined below)) between U.S. Bank National Association, a national banking
association, as trustee (the "Trustee"), and GSS Holdings II, Inc., a Delaware
corporation, as trust beneficial owner (the "Trust Beneficial Owner").
These Standard Trust Terms shall be of no force and effect unless and until
incorporated by reference in, and then only to the extent not modified by, such
Trust Agreement.
The following terms and provisions shall govern the activities of the Trust
(as defined in the Indenture) subject to contrary terms and provisions expressly
adopted in such Trust Agreement, which contrary terms shall be controlling.
WITNESSETH:
WHEREAS, the Trustee and the Trust Beneficial Owner desire to establish a
trust for the purpose of issuing Notes (as defined in the Indenture) to
investors which will be secured, and payments with respect to which will be
funded, solely by the assets held in the Trust, and the proceeds of which will
be used to purchase the Funding Agreement (as defined in the Indenture) issued
by ING USA (as defined in the Indenture).
NOW, THEREFORE, it being the intention of the parties hereto that the Trust
Agreement (as defined below) constitutes the governing instrument of the Trust,
the Trustee and the Trust Beneficial Owner agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. All capitalized terms not otherwise defined
herein will have the meanings set forth in the Indenture. The
following terms have the meanings set forth below:
"Corporate Trust Office" means the office of the Trustee located at 209 S.
LaSalle Street, Suite 300, Chicago, Illinois, 60604.
"Funding Agreement Event of Default" means an "Event of Default" as defined
in the Funding Agreement.
"Indenture" means that certain Indenture dated as of the date specified in
the Omnibus Instrument, by and among the Trust and the Indenture Trustee, Trust
Registrar,
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Transfer Agent, Paying Agent and Calculation Agent, as it may be amended,
modified or supplemented from time to time.
"Licensed Marks" has the meaning specified in the License Agreement.
"Payment Account" means each segregated non-interest-bearing corporate
trust account for the Trust maintained by the Trustee in its trust department in
which all amounts paid to the Trustee in respect of the Collateral will be held
and from which the Trustee shall make payments pursuant to Section 3.01(b) and
Article 7, to the extent such amounts are paid to the Trustee and deposited in
the Payment Account.
"Securities Register" has the meaning specified in Section 4.03.
"Securityholder" means each Person in whose name any Trust Security is
registered in the Securities Register or Register.
"Standard Trust Terms" means these Standard Trust Terms, dated as of
September 8, 2006.
"Standing Order" has the meaning set forth in Section 3.01(d).
"Trust Agreement" means that certain Trust Agreement dated as of the date
specified in the Omnibus Instrument, by and between the Trustee and the Trust
Beneficial Owner, as may be amended, modified or supplemented from time to time,
which incorporates by reference these Standard Trust Terms.
"Trust Beneficial Interest" means the undivided beneficial interest in the
assets held in the Trust, having such rights as are provided for in the Trust
Agreement.
"Trust Beneficial Owner" means the Person identified as the "Trust
Beneficial Owner" in the preamble to the Trust Agreement, in its capacity as the
sole beneficial owner of the Trust, and any successor in such capacity.
"Trust Expenses" means any liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to the Trust.
"Trust Expiration Date" means the date specified in the Pricing Supplement
or such earlier date as all of the outstanding Notes are redeemed or repaid in
full by the Trust.
"Trust Registrar" has the meaning specified in Section 4.03.
"Trust Security" means a Note or the Trust Beneficial Interest.
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"Trustee" means the party named as such in the preamble to the Trust
Agreement and shall also include its permitted successors and assigns, or any
successor Trustee appointed, acting not in its individual capacity but solely as
Trustee under the Trust Agreement. If there shall be at any time more than one
Trustee hereunder, "Trustee" shall mean each such Trustee.
Section 1.02. Usage of Terms. With respect to all terms used in these
Standard Trust Terms, the singular includes the plural and the plural the
singular; words importing any gender include the other genders; references to
"writing" include printing, typing, lithography, facsimile, electronic
transmissions and other means of reproducing words in a visible form; references
to agreements and other contractual instruments include all subsequent
amendments hereto or changes herein entered into in accordance with their
respective terms and not prohibited by the Trust Agreement; references to
Persons include their permitted successors and assigns; and the terms "include"
or "including" mean "include without limitation" or "including without
limitation."
Section 1.03. Section References. All references to Articles, Sections,
paragraphs, subsections, exhibits and schedules shall be to such portions of
these Standard Trust Terms unless otherwise expressly provided.
ARTICLE 2
CREATION OF TRUST
Section 2.01. Name of the Trust. The Trust created under the Trust
Agreement shall have the name specified in the Omnibus Instrument. The Trust's
activities shall be conducted under the name of the Trust.
Section 2.02. Office of the Trustee; Principal Place of Business. The
principal office of the Trust shall be in care of the Trustee at the Corporate
Trust Office, or such other address in the State of Illinois as the Trustee may
designate by written notice to the Trust Beneficial Owner, the Indenture Trustee
and the Rating Agencies.
Section 2.03. Appointment of Trustee. The parties to the Trust Agreement
hereby appoint the Trustee as trustee of the Trust, to have all rights, powers
and duties set forth in the Trust Agreement and in accordance with the
applicable law with respect to accomplishing the purposes of the Trust.
Section 2.04. Trust Beneficial Interest. Contemporaneously with the
execution and delivery of the Trust Agreement, the Trustee, on behalf of the
Trust, shall cause the Trust Beneficial Owner to be recorded as the registered
owner of the Trust Beneficial Interest on the Securities Register, against
payment of $15 (or, in the case of Notes that are discount notes, the product of
$15 and the issue price of the Notes (expressed as a percentage of the original
principal amount of the Notes)) by the Trust Beneficial Owner
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to, or to an account at the direction of, the Trustee.
Section 2.05. Issuance of the Notes. Promptly following the execution and
delivery of the Trust Agreement, the Trust shall, in accordance with the
Indenture, issue and deliver or cause to be issued and delivered the aggregate
principal amount of the Notes specified in the Pricing Supplement, Omnibus
Instrument or supplement to the Indenture against payment therefor. The Holders
of the Notes shall only have a right to receive payments from the Collateral as
described in the Indenture and shall have no right to receive payments under the
assets held in any other trust organized under the Program.
Section 2.06. Acquisition of Funding Agreement. Contemporaneously with the
issuance and delivery of the Notes, the Trust shall acquire the Funding
Agreement.
Section 2.07. Security Interest in the Collateral. Contemporaneously with
the issuance and delivery of the Notes, pursuant to the Indenture, the Trust
shall collaterally assign the Funding Agreement to the Indenture Trustee, for
the benefit of the Holders of the Notes, and grant to the Indenture Trustee, for
the benefit of the Holders of the Notes, a first priority perfected security
interest in and to the Collateral, including, without limitation, the Funding
Agreement purchased by the Trust.
Section 2.08. Purposes of the Trust. The exclusive purposes and functions
of the Trust are (a) to issue and sell the Notes and the Trust Beneficial
Interest, (b) to use the proceeds of the sale of the Notes and the Trust
Beneficial Interest to acquire the Funding Agreement, (c) to collaterally assign
and grant a security interest in the Funding Agreement in favor of the Indenture
Trustee, (d) to pay amounts due in respect of the Notes and the Trust Beneficial
Interest, (e) to enter into the agreements and to take such actions as the
Trustee has the power and authority to take pursuant to Section 6.01, as
applicable, and (f) to engage in those activities necessary, advisable or
incidental thereto (such as registering the transfer of the Trust Securities).
Section 2.09. Title to Collateral. Legal title to the Collateral shall be
vested at all times in the Trust as a separate and distinct legal entity and
shall be held and administered by the Trustee for the benefit of the Trust and
each Securityholder, except that, with respect to the Funding Agreement
collaterally assigned to the Indenture Trustee, legal title to the Funding
Agreement shall be recorded at all times in the books and records of ING USA in
the name of the Indenture Trustee, for the benefit of the Holders.
Section 2.10. Allocation of Trust Expenses. Any costs and expenses of the
Trust shall be paid by ING USA pursuant to the applicable Expense and Indemnity
Agreement to the extent provided therein.
Section 2.11. Liability. None of the Trustee or the Securityholders shall
have
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any personal liability for any liability or obligation of the Trust.
Section 2.12. Income Tax Treatment; Tax Returns and Reports.
(a) The Trust and the Trust Beneficial Owner agree, and by acceptance of a
beneficial interest in a Note each holder of a beneficial interest in a Note
agrees, for U.S. federal, state and local income and franchise tax purposes, to
(i) disregard the Trust and (ii) treat such Note as debt of ING USA. The Trust
covenants that it shall take no action inconsistent with such treatment
(including without limitation under Treasury Regulations Section 301.7701-2 or
301.7701-3 (the "check-the-box regulation")). To the extent that it is
ultimately determined that the Trust cannot be disregarded for United States
federal, state and local income or franchise tax purposes, and that the Notes
are treated as undivided ownership interests in the Trust, the Trust and the
Trust Beneficial Owner agree, and by acceptance of a beneficial interest in a
Note each holder of a beneficial interest in a Note agrees, to treat (i) the
Trust as a "grantor trust" under Subpart E of Part I of Subchapter J of the Code
(or the state or local equivalent), owned by the holders of beneficial interests
in the Notes and the Trust Beneficial Owner and (ii) the Funding Agreement as
debt of ING USA.
(b) The Trustee shall prepare, file and sign or cause to be prepared, filed
and signed, consistent with the treatment of the Trust as disregarded, all
federal, state and local income tax and information returns and reports required
to be filed with respect to the Trust and the Notes under any applicable
federal, state or local tax statute or any rule or regulation under any of them.
The Trustee shall keep copies or cause copies to be kept of any such tax and
information returns and reports required to be filed.
Section 2.13. Situs of Trust. The Trust shall be located in the
jurisdiction set forth in the Trust Agreement. All bank accounts maintained by
the Trustee on behalf of the Trust shall be located in such jurisdiction except
that those accounts established under the Indenture shall be maintained with the
Indenture Trustee in accordance with the Indenture. The Trust shall not have any
employees in any jurisdiction other than in such jurisdiction. Except as
otherwise set forth in the Program Documents, payments will be received by the
Trust only in such jurisdiction and payments will be made by the Trust only from
such jurisdiction.
ARTICLE 3
PAYMENT ACCOUNT
Section 3.01. Payment Account.
(a) On the Original Issue Date, the Trustee shall establish a Payment
Account.
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The Trustee and any agent of the Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
the Trust Agreement and the Indenture. Subject to the Indenture, all monies or
other property received by the Trustee on behalf of the Trust in respect of the
Collateral will be deposited in the Payment Account. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Trustee in the Payment Account for the exclusive benefit of the
Trust Beneficial Owner, subject to the security interest in the Collateral in
favor of the Indenture Trustee on behalf of the Holders of the Notes, and for
distribution by the Trustee as provided in the Trust Agreement, including (and
subject to) any priority of payments provided for in the Trust Agreement.
(b) Except for payments made on the Trust Expiration Date or otherwise
pursuant to Section 7.03 and subject to Section 3.01(a), all monies and other
property deposited into the Payment Account shall be distributed by the Trust as
follows:
first, to the Indenture Trustee for the payment of all amounts then due and
unpaid upon the Notes, if any, in accordance with the Indenture; and
second, to the Trust Beneficial Owner all of the amounts that would be
payable under the first clause of Section 5.02 of the Standard Indenture Terms
to the Trust Beneficial Owner (as if the Trust Beneficial Owner held a Note with
an original principal amount of $15 (multiplied by the issue price of the Notes
in the case of Notes that are discount notes)).
Any remaining monies and other property deposited into the Payment Account
shall be distributed ratably in proportion to their original principal amounts
to the Holders last noted in the Register as the Holders of the Notes and the
Trust Beneficial Owner (as if the Trust Beneficial Owner held a Note with an
original principal amount of $15 (multiplied by the issue price of the Notes in
the case of Notes that are discount notes)).
(c) The Trustee shall deposit in the Payment Account, promptly upon
receipt, any payments received with respect to the Collateral. Amounts held in
the Payment Account shall not be invested by the Trustee pending the
distribution of such amounts to cover the Trust's obligations on the Notes or
the Trust Beneficial Interest.
(d) Notwithstanding anything herein to the contrary, the Trustee, on behalf
of the Trust, shall issue a standing order (the "Standing Order") to the
Indenture Trustee pursuant to which the Indenture Trustee shall distribute all
amounts due and unpaid under Section 3.01(b); provided, however, that all
payments to be made by the Trust to the Trust Beneficial Owner on the Trust
Expiration Date or otherwise pursuant to Section 7.03 shall be made on behalf of
and at the direction of the Trust (such direction to be evidenced by a
certificate of the Trust). For so long as (i) the Trustee, on
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behalf of the Trust, has not rescinded the Standing Order and (ii) the Indenture
Trustee is able to, and does, comply with the Standing Order, the Trustee will
not be required to establish a Payment Account in accordance with Section 3.01.
ARTICLE 4
TRUST SECURITIES
Section 4.01. Initial Ownership. Upon the creation of the Trust, the Trust
Beneficial Owner shall be the sole beneficial owner of such Trust.
Section 4.02. Notes. The Notes will be issued pursuant to and be governed
by the Indenture.
Section 4.03. Registration of Transfer of Trust Beneficial Interest.
(a) The Trustee or its agent (in this capacity, the "Trust Registrar")
shall maintain a register or registers for the Trust for the purpose, subject to
Section 4.06, of registering the transfer of the Trust Beneficial Interest (a
"Securities Register"). Pursuant to the Indenture, the Registrar (as defined in
the Indenture) shall maintain the Register (as defined in the Indenture).
(b) The Trust Registrar shall not be required to register the transfer of
the Trust Beneficial Interest in any manner inconsistent with the terms of the
Trust Agreement or the Indenture.
Section 4.04. Persons Deemed Holders of Trust Securities. The Trustee and
the Trust Registrar shall treat the Person in whose name any Trust Beneficial
Interest is registered as the owner of such Trust Beneficial Interest for all
purposes whatsoever, and none of the Trustee and the Trust Registrar shall be
bound by any notice to the contrary. The Trustee shall treat the Person
determined in accordance with Section 2.11 of the Standard Indenture Terms as
the owner of the applicable Note(s) for all purposes whatsoever, and the Trustee
shall not be bound by any notice to the contrary.
Section 4.05. Maintenance of Office. Subject to the provisions of the
Indenture, the Trustee shall maintain an office or offices where notices and
demands to or upon the Trustee in respect of the Trust Securities may be served.
The Trustee initially designates its Corporate Trust Office as the office for
such purposes. The Trustee shall give prompt written notice to the Trust
Beneficial Owner and the Indenture Trustee of any change in the location of the
register or any office or agency.
Section 4.06. Ownership of the Trust Beneficial Interest. On the Original
Issue Date, the Trust Beneficial Owner shall acquire and, thereafter, retain
beneficial and record ownership of the Trust Beneficial Interest. The Trust
Beneficial Interest shall not be certificated, but it shall be evidenced by
recordation on the books and records of the Trustee. To the fullest extent
permitted by law, any attempted transfer of the Trust
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Beneficial Interest shall be void.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01. Trustee. The Trustee represents and warrants for the benefit
of the Securityholders as follows:
(a) it is a national banking association duly organized, validly existing
and in good standing under the laws of the United States and it is a "bank"
within the meaning of Section 581 of the Code;
(b) it is a "United States person" within the meaning of Section
7701(a)(30) of the Code;
(c) it has full corporate or other power, authority and legal right to
execute, deliver and perform its obligations under the Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of the Trust Agreement;
(d) the Trust Agreement has been duly authorized, executed and delivered by
it and constitutes the valid and legally binding agreement of it enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity;
(e) neither the execution or delivery by it of the Trust Agreement, nor the
performance by it of its obligations under the Trust Agreement, will (i) violate
its organizational documents, (ii) violate any provision of, or constitute, with
or without notice or lapse of time, a default under, or result in the creation
or imposition of any Lien on any properties or assets held in the Trust pursuant
to the provisions of, any indenture, mortgage, credit agreement, license or
other agreement or instrument to which it is a party or by which it is bound
which would materially and adversely affect the Trust, or (iii) violate any law,
governmental rule or regulation of the United States governing the banking,
trust or general powers of it or any order, judgment or decree applicable to it;
(f) the authorization, execution or delivery by it of the Trust Agreement
and the consummation of any of the transactions by it contemplated by the Trust
Agreement do not require the consent or approval of, the giving of notice to,
the registration with or the taking of any other action with respect to any
governmental authority or agency; and
(g) there are no proceedings pending or, to the best of its knowledge,
threatened against or affecting it in any court or before any governmental
authority, agency or arbitration board or tribunal which, individually or in the
aggregate, would materially and adversely affect the Trust or would question the
right, power and authority of it to enter
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into or perform its obligations under the Trust Agreement.
Section 5.02. Trust Beneficial Owner. The Trust Beneficial Owner hereby
represents and warrants that, to the fullest extent permitted by law, it has
irrevocably waived any right or interest it may have under the Trust Agreement,
by operation of law or equity, to direct or otherwise require the Trustee to
initiate or consent to any bankruptcy, insolvency or receivership proceedings,
it being expressly understood that any such action by the Trustee shall be
undertaken or refrained from, in the Trustee's sole and absolute discretion,
without regard to any rights or interests of the Trust Beneficial Owner.
ARTICLE 6
TRUSTEE
Section 6.01. General Authority.
(a) The Trustee shall conduct the affairs of the Trust in accordance with
the terms of the Trust Agreement. Subject to the limitations set forth in
Section 6.01(b), the Trustee shall have the power and authority to act on behalf
of the Trust, with respect to the following matters:
(i) to execute and deliver the Notes and the Trust Beneficial Interest
in accordance with the Trust Agreement and the Indenture;
(ii) to cause the Trust to perform the Trust Agreement and to enter
into, and to execute, deliver and perform on behalf of itself, the Program
Documents to which it is or may become a party and such other certificates,
amendments, other documents or agreements as may be necessary, contemplated
by or desirable in connection with the purposes and function of the Trust
or any of such Program Documents;
(iii) subject to the Indenture, to purchase, receive and maintain
custody of the Funding Agreement and to exercise all of the rights, powers
and privileges of an owner or policyholder of the Funding Agreement;
(iv) to grant to the Indenture Trustee a first priority perfected
security interest in the Collateral and to collaterally assign the rights,
title and interest of the Trust in such Collateral to the Indenture Trustee
for the benefit of the Holders and to seek release of such security
interest upon payment in full of all amounts required to be paid with
respect to the Notes pursuant to the terms and conditions of the Notes or
the Indenture;
(v) to establish the Payment Account and issue the Standing Order;
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(vi) subject to Section 4.06, to cause any transfer of the Trust
Beneficial Interest to be registered in accordance with the Trust
Agreement;
(vii) to send notices regarding the Trust Securities and the Funding
Agreement to ING USA, the Indenture Trustee, the Rating Agencies, the Trust
Beneficial Owner and the relevant Agents in accordance with the Funding
Agreement, the Distribution Agreement and the Trust Agreement;
(viii) to take all actions necessary or appropriate to enable the
Trust to comply with Section 2.12 regarding income tax treatment, tax
returns and information reporting;
(ix) after the occurrence of a Funding Agreement Event of Default
actually known to a Responsible Officer of the Trustee, subject to the
Indenture, to take any action as it may from time to time determine (based
solely upon the advice of counsel) is necessary or advisable to give effect
to the terms of the Trust Agreement and to protect and conserve the
Collateral for the benefit of each Securityholder (without consideration of
the effect of any such action on any particular Securityholder) and, within
five Business Days after the occurrence of a Funding Agreement Event of
Default actually known to a Responsible Officer of the Trustee, to give
notice thereof to the Trust Beneficial Owner and the Indenture Trustee;
(x) to cause to be paid, on behalf of the Trust generally or with
respect to any Trust Securities, any amounts due and owing by the Trust
under any of the Program Documents or any other documents or instruments to
which the Trust is a party, in all cases in accordance with the Program
Documents; provided, that such amounts shall be paid by the Trustee only to
the extent the Trustee has access to sufficient assets of the Trust to make
such payments;
(xi) to the extent permitted by the Trust Agreement, to participate in
the winding up of the affairs of and liquidation of the Trust;
(xii) subject to the Indenture, to take any action and to execute any
documents on behalf of the Trust incidental to the foregoing as the Trustee
may from time to time determine (based on the advice of counsel) is
necessary or advisable to give effect to the terms of the Trust Agreement
for the benefit of each Securityholder (without consideration of the effect
of any such action on any particular Securityholder);
(xiii) to hold, maintain and preserve copies of the executed Program
Documents and copies of other documents or instruments executed by the
Trust
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and to do or cause to be done all things necessary to preserve and keep in
full force and effect the Trust's existence, rights and franchises; and
(xiv) to enter into agreements with accountants so that such
accountants, subject to the receipt of all necessary information, will
provide all clerical, bookkeeping and other administrative services
necessary and appropriate for the administration of the Trust, including,
without limitation, maintenance of all books and records of the Trust
relating to the fees, costs and expenses of the Trust, which books and
records shall be maintained separately from books and records of the
Trustee, maintenance of records of cash payments and disbursements
(excluding principal and interest on any Funding Agreement) of the Trust in
accordance with accounting principles generally accepted in the United
States, preparation for audit of such periodic financial statements as may
be necessary or appropriate and taking such other administrative or
ministerial actions as may be incidental or reasonably necessary to the
accomplishment of the actions of the Trustee authorized in this Trust
Agreement or to the accomplishment of the purposes, duties and
responsibilities of the Trust under any of the Program Documents and any
other document or instrument to which the Trust is a party to the extent
not otherwise the responsibility of the Indenture Trustee, the Paying Agent
or the Trust Registrar.
It is expressly understood and agreed that the Trustee shall be entitled to
engage outside counsel, independent accountants and other experts appointed with
due care to assist the Trustee in connection with the performance of its duties
and powers set forth in this Section 6.01(a), including, without limitation, the
preparation of all tax reports and returns, securities law filings,
certificates, reports, opinions, notices or any other documents. The Trustee
shall be entitled to rely conclusively on the advice of such counsel,
accountants and other experts in the performance of all its duties under the
Trust Agreement and shall have no liability for any documents prepared by such
counsel, accountants or experts or any action or inaction taken pursuant to the
advice of such counsel, accountants or experts. Any expenses of such counsel,
accountants and experts shall be paid by ING USA in accordance with the
applicable Expense and Indemnity Agreement to the extent provided therein.
(b) So long as the Trust Agreement remains in effect, the Trust (and the
Trustee acting on behalf of the Trust) shall not undertake any business,
activity or transaction except as expressly provided for or contemplated by the
Trust Agreement or the Indenture. In particular, the Trust shall not, except as
otherwise contemplated by the Indenture:
(i) sell, transfer, exchange, assign, lease, convey or otherwise
dispose of any assets held by the Trust (owned as of the date of the Trust
Agreement or
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thereafter acquired), including, without limitation, any portion of the
Collateral, except as expressly permitted under the Indenture;
(ii) incur or otherwise become liable, directly or indirectly, for any
Indebtedness or Contingent Obligation except for the Notes issued pursuant
to the Indenture and the transactions contemplated under the Indenture;
(iii) engage in any business or activity other than in connection
with, or relating to, (a) the performance of the Trust Agreement and the
execution, delivery and performance of any documents (other than the Trust
Agreement), including the Program Documents, relating to the Notes issued
under the Indenture and the transactions contemplated thereby, and (b) the
issuance of the Notes pursuant to the Indenture;
(iv) (a) permit the validity or effectiveness of the Indenture or any
grant of security interest in or assignment for collateral purposes of the
Collateral to be impaired, or permit a Lien created under the Indenture to
be amended, hypothecated, subordinated, terminated or discharged, or permit
any Person to be released from any covenants or obligations under any
document or agreement assigned to the Indenture Trustee, except as may be
expressly permitted under the Indenture, (b) create, incur, assume or
permit any Lien or other encumbrance (other than a Lien created under the
Indenture) on any of its properties or assets owned or thereafter acquired,
or any interest therein or the proceeds thereof, or (c) permit a Lien
created under the Indenture not to constitute a valid first priority
perfected security interest in the Collateral;
(v) amend, modify or fail to comply with any material provision of the
Trust Agreement except for any amendment or modification of the Trust
Agreement expressly permitted thereunder;
(vi) own any subsidiary or lend or advance any funds to, or make any
investment in, any Person, except for an investment in the Funding
Agreement or the investment of any funds held by the Indenture Trustee, the
Paying Agent or the Trustee as provided in the Indenture or the Trust
Agreement;
(vii) directly or indirectly declare or make any distribution or other
payment to, or redeem or otherwise acquire or retire for value the
interests of, the Trust Beneficial Owner if any amount under the Notes is
due and unpaid, or directly or indirectly redeem or otherwise acquire or
retire for value any Indebtedness or Contingent Obligation other than the
Notes;
(viii) exercise any rights with respect to the Collateral except at
the written direction of, or with the prior written approval of, the
Indenture Trustee;
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(ix) cause or, to the fullest extent permitted by law, permit the sale
or other transfer of all or a portion of the Trust Beneficial Interest, or
cause or, to the fullest extent permitted by law, permit the creation,
incurrence, assumption or existence of any Lien on all or a portion of the
Trust Beneficial Interest;
(x) become an "investment company" or come under the "control" of an
"investment company," as such terms are defined in the Investment Company
Act;
(xi) enter into any transaction of merger or consolidation or
liquidate or dissolve itself (or, to the fullest extent permitted by law,
suffer any liquidation or dissolution), or acquire by purchase or otherwise
all or substantially all the business or assets of, or any stock or other
evidence of beneficial ownership of, any other Person;
(xii) take any action that would cause it not to be disregarded or
treated as a grantor trust (assuming it were not disregarded) for United
States federal income tax purposes;
(xiii) have any subsidiaries, employees or agents other than the
Trustee and other persons necessary to conduct its business and enter into
transactions contemplated under the Program Documents;
(xiv) have an interest in any bank account other than (a) those
accounts required under the Program Documents, and (b) those accounts
expressly permitted by the Indenture Trustee; provided that any interest
therein shall be charged or otherwise secured in favor of the Indenture
Trustee;
(xv) permit any Affiliate, employee or officer of ING USA or any agent
appointed under the Distribution Agreement to be a trustee of the Trust;
(xvi) issue Notes under the Indenture unless (a) the Trust has
purchased or will simultaneously purchase the Funding Agreement from ING
USA to secure such Notes, (b) ING USA has affirmed in writing to the Trust
that it has made or simultaneously will make changes to its books and
records to reflect the granting of a security interest in, and the making
of an assignment for collateral purposes of, the Funding Agreement by the
Trust to the Indenture Trustee, and (c) the Trust has taken such other
steps as may be necessary to cause the grant of a security interest in, and
assignment for collateral purposes of, the Collateral to the Indenture
Trustee to be perfected for purposes of the UCC or effective against the
Trust's creditors and subsequent purchasers of the Collateral pursuant to
insurance or other applicable law;
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(xvii) commingle the assets of the Trust with assets of any Affiliates
(including any other trust organized under the Program), or guarantee any
obligation of any Affiliates (including any other trust organized under the
Program); or
(xviii) maintain any joint account with any Person, become a party,
whether as co-obligor or otherwise, to any agreement to which any Person is
a party (other than in respect of the Program Documents), or become liable
as a guarantor or otherwise with respect to any Indebtedness or contractual
obligation of any Person.
(c) The Trust and the Trustee acting on behalf of the Trust shall not,
notwithstanding any other provision of the Trust Agreement, take any action that
would cause the Trust not to be disregarded or treated as a grantor trust
(assuming it were not disregarded) for U.S. federal income tax purposes.
(d) The Trustee shall, based on the advice of counsel, defend against all
claims and demands of all Persons at any time claiming any Lien on any of the
assets of the Trust adverse to the interest of the Trust or any Securityholder,
other than the security interest in the Collateral granted in favor of the
Indenture Trustee for the benefit of each Holder of the Notes pursuant to the
Indenture.
(e) If and for so long as the Funding Agreement is held by the Trustee for
the benefit of the Trust, the Trustee shall not (i) waive any default under the
Funding Agreement or (ii) consent to any amendment, modification or termination
of the Funding Agreement, without, in each case, obtaining the prior approval of
the Indenture Trustee in accordance with the Indenture and an opinion of counsel
experienced in such matters to the effect that any such action shall not cause
the Trust not to be disregarded or treated as a grantor trust (assuming it were
not disregarded) for U.S. federal income tax purposes.
(f) The Trustee is authorized and directed to conduct the affairs of the
Trust and to operate the Trust (i) so that the Trust will not become required to
register as an "investment company" under the Investment Company Act, and (ii)
so that the Trust will not fail to be disregarded or treated as a grantor trust
(assuming it were not disregarded) for U.S. federal income tax purposes. In
connection with the preceding sentence, the Trustee shall have no duty to
determine whether any action it takes complies with the preceding sentence and
shall be entitled to rely conclusively on an opinion of counsel with respect to
any such matters.
Section 6.02. General Duties. It shall be the duty of the Trustee to
discharge, or cause to be discharged, all of its responsibilities pursuant to
the terms of the Trust Agreement or any other documents or instruments to which
it is a party and to administer the Trust in accordance with the provisions of
the Trust Agreement and the other
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Program Documents and any other documents or instruments to which the Trust is a
party.
Section 6.03. Specific Duties.
(a) The Trustee undertakes to perform only such duties (i) as are
specifically set forth in the Trust Agreement, (ii) on behalf of the Trust, as
are specifically set forth in the Program Documents to which the Trust is a
party, and (iii) as it may be directed from time to time by the Trust Beneficial
Owner and the Indenture Trustee in accordance with the terms of the Trust
Agreement and the Indenture.
(b) The Trustee agrees that it will not manage, control, use, sell, dispose
of or otherwise deal with the Collateral or the Licensed Marks except as
expressly required or permitted by the terms of the Trust Agreement, the
Indenture and the License Agreement, as applicable.
Section 6.04. Acceptance of Trust and Duties; Limitation on Liability. The
Trustee accepts the trust created by the Trust Agreement and agrees to perform
its duties under the Trust Agreement with respect to the same, but only upon the
terms of the Trust Agreement. No implied covenants or obligations shall be read
into the Trust Agreement. The Trustee shall not be liable under the Trust
Agreement or any other Program Document under any circumstances or for any
action or failure to act, except for (i) its own willful misconduct, bad faith
or negligence, including, without limitation, its own willful misconduct, bad
faith or negligence that results in a breach of the Trust's obligations under
any of the Program Documents, or (ii) the inaccuracy of any representation or
warranty contained in the Trust Agreement expressly made by it. In particular
(but without limitation), subject to the exceptions set forth in the preceding
sentence:
(a) the Trustee shall not be liable for any error of judgment made in good
faith by any of its responsible officers, unless such error of judgment
constitutes negligence;
(b) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the written
instructions of the Trust Beneficial Owner or the Indenture Trustee or pursuant
to the advice of counsel, accountants or other experts selected by it in good
faith;
(c) no provision of the Trust Agreement shall require the Trustee to expend
or risk personal funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder if the Trustee has
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Trustee be liable for indebtedness or
other
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obligations evidenced by or arising under the Trust Agreement, the Funding
Agreement or any related document, including the principal of and interest on
the Notes and payments on the Trust Beneficial Interest;
(e) the Trustee shall not be responsible for, or in respect of, the
validity or sufficiency of the Trust Agreement or any related document or for
the due execution of the Trust Agreement by any party (except by the Trustee
itself) or for the form, character, genuineness, sufficiency, value or validity
of any of the Collateral, other than, in the case of the Trustee, the execution
of any certificate;
(f) the Trustee shall not be liable for any action, inaction, default or
misconduct of the Indenture Trustee or any Paying Agent under the Indenture, the
Notes or any related documents or otherwise, and the Trustee shall not have any
obligation or liability to perform the obligations of the Trust under the Trust
Agreement or any related document or under any federal, state, foreign or local
tax or securities law, in each case, that are required to be performed by other
Persons, including the Indenture Trustee under the Indenture;
(g) the Trustee shall not be liable for any action, inaction, default or
misconduct of ING USA and the Trustee shall not have any obligation or liability
to perform the obligations of ING USA under the Funding Agreement or any related
documents;
(h) the Trustee shall not be under any obligation to exercise any of the
rights or powers vested in it by the Trust Agreement, or to institute, conduct
or defend any litigation under the Trust Agreement or otherwise or in relation
to the Trust Agreement or any related document, at the request, order or
direction of any Person unless such Person has offered to the Trustee security
or indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Trustee. The right of the Trustee to perform any
discretionary act enumerated in the Trust Agreement or in any related document
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of any such
act;
(i) except as expressly provided in the Trust Agreement in accepting the
trusts created by the Trust Agreement, the Trustee acts solely as trustee under
the Trust Agreement and not in its individual capacity, and all persons having
any claim against the Trustee by reason of the transactions contemplated by the
Trust Agreement shall look only to the Trust's property for payment or
satisfaction thereof;
(j) the Trustee shall not have any responsibility or liability for or with
respect to the genuineness, value, sufficiency or validity of any Collateral,
and the Trustee shall in no event assume or incur any liability, duty or
obligation to the Trust Beneficial Owner or any other Person other than as
expressly provided for in the Trust Agreement;
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(k) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note or other paper or document;
(l) every provision of the Trust Agreement relating to the Trustee shall be
subject to the provisions of this Article 6;
(m) the Trustee shall have no duty (i) except in accordance with the
written instructions furnished by the Trust Beneficial Owner or as provided in
either the Trust Agreement or the Standard Indenture Terms, to see to any
recording or filing of any document, (ii) to confirm or verify any financial
statements of the Trust Beneficial Owner or the Indenture Trustee, (iii) to
inspect the Trust Beneficial Owner's or the Indenture Trustee's books and
records at any time or (iv) to see to the payment or discharge of any tax,
assessment or other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against any part of the Trust, except
to the extent the Trustee has received funds, on behalf of the Trust, pursuant
to the applicable Expense and Indemnity Agreement from ING USA in satisfaction
of any such tax, assessment or other governmental charge or any lien or
encumbrance of any kind and in accordance with payment or transfer instructions
provided by ING USA;
(n) the Trustee shall have no duty or obligation to manage, control, use,
sell, dispose of or otherwise deal with the Trust or to otherwise take or
refrain from taking any action under the Trust Agreement, except as expressly
required by the terms of the Trust Agreement, or as expressly provided in
written instructions from the Trust Beneficial Owner, and in no event shall the
Trustee have any implied duties or obligations under the Trust Agreement; the
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any Liens on any part of the
property of the Trust which result from claims against the Trustee personally
that are not related to the ownership or the administration of the property of
the Trust or the transactions contemplated by the Program Documents;
(o) the Trustee shall not be required to take any action under the Trust
Agreement if the Trustee shall reasonably determine or shall have been advised
by counsel that such action is contrary to the terms of the Trust Agreement or
is otherwise contrary to law;
(p) the Trustee may fully rely upon and shall have no liability in
connection with calculations or instructions forwarded to the Trustee by the
Trust Beneficial Owner or the Indenture Trustee, nor shall the Trustee have any
obligation to furnish information to any Trust Beneficial Owner or other Person
if it has not received such information as it may need from the Trust Beneficial
Owner, the Indenture Trustee or any other Person;
(q) the Trustee shall not be liable with respect to any act or omission in
good faith in accordance with the advice or direction of the Trust Beneficial
Owner or the
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Indenture Trustee. Whenever the Trustee is unable to decide between alternative
courses of action permitted or required by the terms of the Trust Agreement, or
is unsure as to the application, intent, interpretation or meaning of any
provision hereof, the Trustee may give notice (in such form as shall be
appropriate under the circumstances) to the Trust Beneficial Owner requesting
instructions as to the course of action to be adopted, and, to the extent the
Trustee acts in good faith in accordance with any such instruction received, the
Trustee shall not be liable on account of such action to any Person. If the
Trustee shall not have received appropriate instructions within ten days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances), it may, but shall be
under no duty to, take or refrain from taking such action which is consistent,
in its view, with the Trust Agreement and as it shall deem to be in the best
interest of the relevant Trust Beneficial Owner, and the Trustee shall have no
liability to any Person for such action or inaction;
(r) in no event whatsoever shall the Trustee be personally liable for any
representation, warranty, covenant, agreement, indebtedness or other obligation
of the Trust; and
(s) the Trustee shall incur no liability if, by reason of any provision of
any present or future law or regulation thereunder, or by any force majeure
event, including but not limited to natural disaster, war or other circumstances
beyond its control, the Trustee shall be prevented or forbidden from doing or
performing any act or thing which the terms of the Trust Agreement provide shall
or may be done or performed.
Section 6.05. Reliance; Advice of Counsel.
(a) The Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper reasonably believed by it in
good faith to be genuine and signed by the proper party or parties. The Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the manner of ascertainment of which is not
specifically prescribed in the Trust Agreement, the Trustee may for all purposes
of the Trust Agreement rely on a certificate, signed by the president or any
vice president or by the treasurer or any assistant treasurer or the secretary
or any assistant secretary of the relevant party, as to such fact or matter, and
such certificate shall constitute full protection to the Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust, the Trustee (i) may act
directly or, at the expense of the Trust, through agents or attorneys pursuant
to agreements entered into with any of them, and the Trustee shall not be liable
for the action, inaction,
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default or misconduct of such agents or attorneys if such agents or attorneys
shall have been selected by the Trustee in good faith and with reasonable care,
and (ii) may consult with counsel, accountants and other skilled persons to be
selected in good faith and with reasonable care and employed by it, and it shall
not be liable for anything done, suffered or omitted to be done in good faith by
it in accordance with the written opinion or advice of any such counsel,
accountants or other skilled persons.
Section 6.06. Delegation of Authorities and Duties. The Trustee delegates
to the Indenture Trustee all duties required to be performed by the Indenture
Trustee pursuant to the terms of the Trust Agreement and the Indenture. The
Trustee undertakes no responsibility for the performance, or non-performance, of
any duties delegated to the Indenture Trustee under the Trust Agreement.
Section 6.07. Acknowledgment of the Trustee. Notwithstanding anything to
the contrary contained in these Standard Trust Terms, the Trustee, acting on its
own behalf, acknowledges that any license, right or privilege granted to any
Trust pursuant to the License Agreement is an exclusive license, right or
privilege of any such Trust and is not a license, right or privilege of the
Trustee in its individual capacity.
ARTICLE 7
LIQUIDATION AND TERMINATION
Section 7.01. Termination Upon the Trust Expiration Date. Unless earlier
terminated, the Trust shall terminate on the Trust Expiration Date.
Section 7.02. Termination of Agreement. The Trust Agreement and the Trust
created and continued thereby shall terminate upon the latest to occur of the
following: (a) a distribution by the Trustee to Securityholders upon the
liquidation of the Trust pursuant to Section 7.03 of all amounts required to be
distributed under the Trust Agreement upon the final payment of the Trust
Securities; (b) the payment of, or reasonable provision for payment of, all
expenses and other liabilities owed by the Trust; (c) the discharge of all
administrative duties of the Trustee including the performance of any tax
reporting obligations with respect to the Trust or the Securityholders; and (d)
the Trust Expiration Date.
Section 7.03. Liquidation. On the Trust Expiration Date, the remaining
Collateral and any other assets held in the Trust shall be liquidated and
distributed as follows: (i) the Trust shall first pay all amounts due and unpaid
on the Notes, if any, in accordance with the Indenture, (ii) the Trust shall
then pay any other claims, including expenses relating to such liquidation to
the extent not paid, or reasonably provided for, pursuant to the applicable
Expense and Indemnity Agreement, and (iii) the Trust shall then pay to the Trust
Beneficial Owner all of the amounts that would be payable under clause first of
Section 5.02 of the Standard Indenture Terms to the Trust Beneficial
19
Owner as if the Trust Beneficial Owner held a Note with an original principal
amount of $15 (multiplied by the issue price of the Notes in the case of Notes
that are discount notes). Any remaining monies and other property shall be paid
ratably in proportion to their original principal amounts to the Holders last
noted in the Register as the Holders of the Notes and the Trust Beneficial Owner
(as if the Trust Beneficial Owner held a Note with an original principal amount
of $15 (multiplied by the issue price of the Notes in the case of Notes that are
discount notes) and as if each such Holder continued to hold its Notes after all
amounts due on such Notes under the Indenture have been paid).
ARTICLE 8
SUCCESSOR AND ADDITIONAL TRUSTEES
Section 8.01. Eligibility Requirements for the Trustee. The Trustee shall
at all times (a) be a Person organized and doing business under the laws of the
United States or the State of Illinois, (b) be authorized to exercise corporate
trust powers, (c) have a combined capital and surplus of at least $50,000,000
and be subject to supervision or examination by Federal or State authorities,
(d) have (or have a parent which has) a rating of at least Baa3 by Moody's
Investors Service, Inc. or BBB- by Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., (e) be a "bank" within the meaning
of Section 581 of the Code and (f) be a "United States person" within the
meaning of Section 7701(a)(30) of the Code. In addition, the Trustee shall be an
entity with its Corporate Trust Office in the State of Illinois. If the Trustee
shall publish reports of condition at least annually, pursuant to applicable law
or to the requirements of the aforesaid supervising or examining authority,
then, for the purpose of this Section 8.01, the combined capital and surplus of
the Trustee shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
8.01, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.02.
Section 8.02. Resignation or Removal of the Trustee. The Trustee may at any
time resign and be discharged from its duties under the Trust Agreement and the
Trust created by the Trust Agreement by giving written notice thereof to the
Trust Beneficial Owner and the Indenture Trustee at least 90 days before the
date specified in such instrument. Upon receiving such notice of resignation,
the Trust Beneficial Owner shall promptly appoint a successor Trustee meeting
the qualifications set forth in Section 8.01 by written instrument, in
duplicate, one copy of which instrument shall be delivered to each of the
resigning Trustee, the successor Trustee, any remaining Trustees, the Indenture
Trustee and ING USA. If no successor Trustee shall have been so appointed and
have accepted appointment within 90 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.01 and shall fail to resign after written request
therefor by the Trust Beneficial Owner and the Indenture Trustee, or if at any
time the Trustee shall be legally unable to act or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Trust Beneficial Owner and the Indenture Trustee may
remove such Trustee. If the Trust Beneficial Owner and the Indenture Trustee
shall remove the Trustee under the authority of the immediately preceding
sentence, the Trust Beneficial Owner shall promptly appoint a successor Trustee
meeting the qualification requirements of Section 8.01 by (i) the execution of a
written instrument, one copy of which instrument shall be delivered to each of
the outgoing Trustee so removed, the successor Trustee, the Indenture Trustee
and ING USA and (ii) the payment of all fees and expenses owed to the outgoing
Trustee.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 8.02 shall not become
effective until all fees and expenses, including any indemnity payments, due to
the outgoing Trustee have been paid and until acceptance of appointment by the
successor Trustee pursuant to Section 8.03.
Section 8.03. Successor Trustee. Any successor Trustee appointed pursuant
to Section 8.02 shall execute, acknowledge and deliver to the Trust Beneficial
Owner, the Indenture Trustee and the predecessor Trustee an instrument accepting
such appointment under the Trust Agreement, and thereupon the resignation or
removal of the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under the
Trust Agreement, with like effect as if originally named as Trustee. The
predecessor Trustee shall deliver to the successor Trustee all documents and
statements and monies held by it under the Trust Agreement; and the predecessor
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this Section
8.03 unless at the time of such acceptance such successor Trustee shall be
eligible pursuant to Section 8.01.
Section 8.04. Merger or Consolidation of Trustee. Any Person into which the
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Trustee, shall, without the execution or
filing of any instrument or any further act on
21
the part of any of the parties to the Trust Agreement, anything in the Trust
Agreement to the contrary notwithstanding, be the successor of the Trustee under
the Trust Agreement; provided, such Person shall be eligible pursuant to Section
8.01; provided, further, that the notice of such merger, conversion or
consolidation shall be mailed to each of the Trust Beneficial Owner and the
Indenture Trustee not less than ten (10) days prior to the closing date thereof.
Section 8.05. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of the Trust Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of any Collateral may at the time be located, the Trustee shall
have the power and shall execute and deliver all instruments to appoint one or
more Persons approved by the Trustee to act as co-trustee, jointly with it, or
as separate trustee or separate trustees, of all or any part of any Collateral,
and subject to Section 2.08 to vest in such Person, in such capacity, such title
to any Collateral, or any part thereof, and, subject to the other provisions of
this Section 8.05, such powers, duties, obligations, rights and trusts as the
Trustee may consider necessary or desirable. No co-trustee or separate trustee
under the Trust Agreement shall be required to meet the terms of eligibility as
a successor Trustee pursuant to Section 8.03 and no notice of the appointment of
any co-trustee or separate trustee shall be required; provided, however, that
any co-trustee or separate trustee must be a "United States person" within the
meaning of Section 7701(a)(30) of the Code and a "bank" within the meaning of
Section 581 of the Code.
(b) Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act
or acts are to be performed, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
discretion of the Trustee;
(ii) the Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
22
(iii) no trustee shall be personally liable by reason of the act or
omission of any other trustee under the Trust Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustee and co-trustee,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Section 8.05 and the
conditions of this Article 8. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instruments of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of the
Trust Agreement, specifically including every provision of the Trust Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Each such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time appoint the Trustee
as its agent or attorney-in-fact with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in respect of the Trust
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
Section 8.06. Trustee May Own Notes. Except to the extent prohibited under
the terms of the Notes, the Trustee, in its individual or any other capacity,
may become the beneficial owner or pledgee of Notes, to the extent that such
ownership does not inhibit the Trust from relying on Rule 3a-7 promulgated under
the Investment Company Act, with the same rights as it would have if it were not
the Trustee; provided, that any Notes so owned or pledged shall not be entitled
to participate in any decisions made or instructions given to the Trustee or the
Indenture Trustee by the Holders as a group. The Trustee may deal with the Trust
and the Trust Beneficial Owner in banking and trustee transactions with the same
rights as it would have if it were not the Trustee.
ARTICLE 9
VOTING; ACTS OF SECURITYHOLDERS; MEETINGS
Section 9.01. Limitations on Voting Rights. Except as provided in the Trust
Agreement or in the Indenture or as otherwise required by law, no Holder of
Trust Securities shall have any right to vote or in any manner otherwise control
the administration, operation and management of the Trust or the obligations of
the parties to the Trust Agreement, nor shall anything in the Trust Agreement
set forth, or contained in the terms of the Trust Securities, be construed so as
to constitute the Securityholders from time to time as members of an
association.
23
Section 9.02. Meetings of the Trust Beneficial Owner. No annual or other
meeting of the Trust Beneficial Owner is required to be held.
ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.01. Limitation on Rights of Securityholders.
(a) The death, bankruptcy, termination, dissolution or incapacity of any
Person having an interest, beneficial or otherwise, in Trust Securities or the
Trust shall not operate to terminate the Trust Agreement, nor to annul, dissolve
or terminate the Trust, nor to entitle the legal successors, representatives or
heirs of such Person or any Securityholder for such Person, to claim an
accounting, take any action or bring any proceeding in any court for a partition
or winding up of the arrangements contemplated by the Trust Agreement, nor
otherwise affect the rights, obligations and liabilities of the parties to the
Trust Agreement or any of them.
(b) Except as provided in the Indenture, no Securityholder shall have any
right by virtue of any provision of the Trust Agreement to institute any suit,
action or proceeding in equity or at law with respect to the Trust Agreement,
unless (i) the Securityholders shall have made a written request upon the
Trustee to institute such suit, action or proceeding in the name of the Trust
and shall have offered to the Trustee and the Trust such reasonable indemnity as
they may require against the costs, expenses and liabilities to be incurred
thereby and (ii) the Trustee, for 30 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such suit, action or proceeding. It is expressly understood and covenanted by
each Securityholder with every other Securityholder, the Trust and the Trustee,
that no one or more Securityholder shall have any right in any manner whatever
by availing itself or themselves of any provision of the Trust Agreement to
affect, disturb or prejudice the rights of any other Securityholder, or to
obtain or seek to obtain priority over or preference to any other such
Securityholder, or to enforce any right under the Trust Agreement, except in the
manner provided in the Trust Agreement.
Section 10.02. Amendment.
(a) The Trust Agreement may be amended from time to time by the Trustee and
the Trust Beneficial Owner, by, and only by, a written instrument executed by
the Trustee and the Trust Beneficial Owner, in any way that is not inconsistent
with the intent of the Trust Agreement, including, without limitation, (i) to
cure any ambiguity, (ii) to correct, supplement or modify any provision in the
Trust Agreement that is inconsistent with another provision in the Trust
Agreement or (iii) to modify, eliminate or add to any provisions of the Trust
Agreement to the extent necessary to ensure that the Trust will be classified
for U.S. federal income tax purposes as disregarded or treated as a grantor
trust
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(assuming that the Trust were not disregarded) at all times or to ensure that
the Trust will not be required to register as an investment company under the
Investment Company Act and no such amendment shall require the consent of any
other Securityholder, except to the extent specified in Sections 10.02(b) and
10.02(c).
(b) For so long as any Trust Securities remain outstanding, except as
provided in Section 10.02(c), any amendment to the Trust Agreement that would
adversely affect, in any material respect, the terms of any Notes, other than
any amendment of the type contemplated by clause (iii) of Section 10.02(a),
shall require the prior consent of the Holders of a majority of the outstanding
principal amount of the Notes.
(c) For so long as any Trust Securities remain outstanding, the Trust
Agreement may not be amended to (i) change the amount or timing of any payment
of any Trust Securities or (ii) impair the right of any Securityholder to
institute suit for the enforcement of any right for principal and interest or
other distribution without the consent of each affected Securityholder.
(d) The Trustee shall not be required to enter into any amendment to the
Trust Agreement which affects its own rights, duties or immunities under the
Trust Agreement.
(e) Prior to execution of any amendment to the Trust Agreement, the Trustee
shall be entitled to an opinion of counsel as to whether such amendment is
permitted by the terms of the Trust Agreement and whether all conditions
precedent to such amendment have been met.
(f) Promptly after the execution of any such amendment or consent, the
Trustee shall furnish a copy of such amendment or consent (including those
obtained or effected hereby) to the Indenture Trustee, the Trust Beneficial
Owner, the agents under the Distribution Agreement and the Rating Agencies.
(g) Notwithstanding any other provision of the Trust Agreement, (i) no
amendment to the Trust Agreement may be made if such amendment would cause the
Trust not to be disregarded or treated as a grantor trust (assuming that the
Trust were not disregarded) for U.S. federal income tax purposes and (ii) no
amendment to the Trust Agreement may be made without the prior consent of ING
USA.
Section 10.03. Notice. All demands, notices, instructions and other
communications shall be in writing (including telecopied or telegraphic
communications) and shall be personally delivered, mailed or transmitted by
telecopy or telegraph, respectively, addressed as set forth below:
If to the Trustee:
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U.S. Bank National Association
Corporate Trust Services
209 S. LaSalle Street, Suite 300
Chicago, Illinois 60604
Attention: Patricia Child, VP
Facsimile: (312) 325-8905
If to the Trust Beneficial Owner:
GSS Holdings II, Inc.
445 Broad Hollow Road, Suite 239
Melville, New York 11747
Attention: Andy Stidd
Facsimile: (212) 302-8767
If to the Indenture Trustee:
Citibank, N.A.
Agency & Trust
388 Greenwich Street, 14th Floor
New York, New York 10013
Attention: Agency & Trust, ING USA Global Funding Trust
Facsimile: (212) 816-5527
If Citibank, N.A. is not acting as the Indenture Trustee, to the indenture
trustee as specified in the Omnibus Instrument.
or at such other address as shall be designated by any such party in a written
notice to the other parties. Notwithstanding the foregoing, any notice required
or permitted to be mailed to the Trust Beneficial Owner shall be given by first
class mail, postage prepaid, at the address of the Trust Beneficial Owner as
shown in the Securities Register, and any notices mailed within the time
prescribed in the Trust Agreement shall be conclusively presumed to have been
duly given, whether or not the Trust Beneficial Owner received such notice. Any
notice required or permitted to be mailed to any Holder of a Note shall be given
as specified in the Indenture.
Section 10.04. No Recourse. The Trust Beneficial Owner acknowledges that
the Trust Beneficial Interest represents a beneficial interest in the Trust only
and does not represent an obligation of ING USA, the Trustee, the Indenture
Trustee or any Affiliate of any of the foregoing and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in the Trust Agreement or the Indenture.
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Section 10.05. No Petition. To the extent permitted by applicable law, each
of the Trustee and the Trust Beneficial Owner covenants and agrees that it will
not institute against, or join with any other Person in instituting against, the
Trust any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under the laws of any jurisdiction. This
Section 10.05 shall survive termination of the Trust Agreement.
Section 10.06. Governing Law. The Trust Agreement shall be governed by and
construed in accordance with the laws of the jurisdiction specified in the Trust
Agreement without regard to the principles of conflicts of laws thereof and the
obligations, rights and remedies of the parties under the Trust Agreement shall
be determined in accordance with such laws.
Section 10.07. Severability. If any provision in the Trust Agreement shall
be invalid, illegal or unenforceable, such provisions shall be deemed severable
from the remaining provisions of the Trust Agreement and shall in no way affect
the validity or enforceability of such other provisions of the Trust Agreement.
Section 10.08. Trust Securities Nonassessable and Fully Paid.
Securityholders shall not be personally liable for the obligations of the Trust.
The fractional undivided beneficial interest in the assets held in the Trust
represented by the Trust Beneficial Interest shall be nonassessable for any
losses or expenses related to the Trust or for any reason whatsoever. The Notes,
upon execution thereof by the Trustee pursuant to the Indenture and upon receipt
of payment therefor, are and shall be deemed fully paid.
Section 10.09. Third-Party Beneficiaries. The Trust Agreement shall inure
to the benefit of and be binding upon the parties thereto and their respective
successors and permitted assigns. Except as otherwise provided in the Trust
Agreement, no other Person shall have any right or obligation thereunder.
Section 10.10. Acknowledgment of Multiple Roles. The parties expressly
acknowledge and consent to U.S. Bank National Association acting in the capacity
of Trustee of the Trust and in the capacity of Custodian with respect to the
Funding Agreement being pledged and assigned by the Trust to the Indenture
Trustee. U.S. Bank National Association may, in such dual capacities, discharge
its separate functions fully, without hindrance or regard to conflict of
interest principles, duty of loyalty principles or other breach of fiduciary
duties to the extent that any such conflict or breach arises from the
performance by U.S. Bank National Association of any of its respective duties in
its capacities as Custodian and/or Trustee. The parties hereto waive all
defenses, claims or assertions against U.S. Bank National Association which are
based on the foregoing.
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