Exhibit 4.8
OMNIBUS INSTRUMENT
WHEREAS, the parties named herein desire to enter into certain program
documents contained herein, each such document (unless otherwise specified in
such document) dated as of this ____ day of __________, 20___, relating to the
issuance by ING USA Global Funding Trust __________ (the "Trust") of Notes with
a principal amount/face amount of $ _________ to investors under the secured
notes program sponsored by ING USA;
WHEREAS, the Trust is a trust and will be organized under and its
activities will be governed by the provisions of the Trust Agreement (set forth
in Section A of this Omnibus Instrument), dated as of the date of the Pricing
Supplement, by and between the parties thereto indicated in Section E herein;
WHEREAS, certain expense and indemnification arrangements between ING USA
and the Trustee, on behalf of itself and on behalf of the Trust, are governed
pursuant to the provisions of the Expense and Indemnity Agreement dated as of
May 25, 2005, by and between ING USA and the Trustee;
WHEREAS, certain licensing arrangements between the Trustee, on behalf of
the Trust, and ING Groep N.V. will be governed pursuant to the provisions of the
License Agreement dated as of May 19, 2005, by and between the Trustee and ING
Groep N.V.;
WHEREAS, certain custodial arrangements for the Funding Agreement will be
governed pursuant to the provisions of the Custodial Agreement (the "Custodial
Agreement") dated as of May 19, 2005 by and among U.S. Bank National
Association, acting as custodian (the "Custodian"), the Indenture Trustee and
the Trustee, on behalf of the Trust;
WHEREAS, the Notes will be issued pursuant to the Indenture (set forth in
Section B of this Omnibus Instrument), dated as of the Original Issue Date, by
and between the parties thereto indicated in Section E herein;
WHEREAS, the sale of the Notes will be governed by the Terms Agreement (set
forth in Section C of this Omnibus Instrument), dated as of the date of the
Pricing Supplement, by and among the parties thereto indicated in Section E
herein; and
WHEREAS, certain agreements relating to the Notes and the Funding Agreement
are set forth in the Coordination Agreement (set forth in Section D of this
Omnibus Instrument), dated as of the date of the Pricing Supplement, by and
among the parties thereto indicated in Section E herein.
All capitalized terms used herein and not otherwise defined will have the
meanings set forth in the Indenture.
[Remainder of Page Left Intentionally Blank]
1
SECTION A
TRUST AGREEMENT
This TRUST AGREEMENT (this "Trust Agreement"), dated as of the date of the
Pricing Supplement, is entered into by and between GSS Holdings II, Inc., a
Delaware corporation, as trust beneficial owner (the "Trust Beneficial Owner"),
and U.S. Bank National Association, a national banking association, as Trustee
(the "Trustee").
WITNESSETH:
WHEREAS, the Trust Beneficial Owner and the Trustee desire to authorize the
issuance of a Trust Beneficial Interest and a series of Notes in connection with
the entry into this Trust Agreement;
WHEREAS, all things necessary to make this Trust Agreement a valid and
legally binding agreement of the Trustee and the Trust Beneficial Owner,
enforceable in accordance with its terms, have been done;
WHEREAS, the parties intend to provide for, among other things, (i) the
issuance and sale of the Notes (pursuant to the Indenture, the Distribution
Agreement and the related Terms Agreement) and the Trust Beneficial Interest,
(ii) the use of the proceeds of the sale of the Notes and Trust Beneficial
Interest to acquire the Funding Agreement, and (iii) all other actions deemed
necessary or desirable in connection with the transactions contemplated by this
Trust Agreement; and
WHEREAS, the parties hereto desire to incorporate by reference those
certain Standard Trust Terms, dated as of September 8, 2006, and attached to the
Omnibus Instrument as Exhibit A (the "Standard Trust Terms").
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which are hereby acknowledged, each party hereby agrees as follows:
ARTICLE 1
Section 1.01 Incorporation by Reference. All terms, provisions and
agreements set forth in the Standard Trust Terms (except to the extent expressly
modified herein) are hereby incorporated herein by reference with the same force
and effect as though fully set forth herein. All capitalized terms not otherwise
defined herein (including the recitals hereof) shall have the meanings set forth
in the Standard Trust Terms (the Standard Trust Terms and this Trust Agreement,
collectively, the "Trust Agreement"). To the extent that the terms set forth in
Article 2 of this Trust Agreement are inconsistent with the terms of the
Standard Trust Terms, the terms set forth in Article 2 herein shall apply.
A-1
ARTICLE 2
Section 2.01 Name. The Trust created and governed by this Trust Agreement
shall be the trust specified in the Omnibus Instrument. The name of the Trust
shall be the name specified in the first paragraph of the Omnibus Instrument, as
such name may be modified from time to time by the Trustee following written
notice to the Trust Beneficial Owner.
Section 2.02 Jurisdiction. The Trust is hereby organized in, and formed
under and pursuant to, the laws of the jurisdiction specified in the Pricing
Supplement.
Section 2.03 Initial Capital Contribution and Ownership. The Trust
Beneficial Owner has paid or has caused to be paid to, or to an account at the
direction of, the Trustee, on the date hereof, the sum of $15 (or, in the case
of Notes issued with original issue discount, such amount multiplied by the
issue price of the Notes as specified in the Pricing Supplement). The Trustee
hereby acknowledges receipt in trust from the Trust Beneficial Owner, as of the
date hereof, of the foregoing contribution, which shall be used along with the
proceeds from the sale of the series of Notes to purchase the Funding Agreement.
Upon the creation of the Trust and the registration of the Trust Beneficial
Interest in the Securities Register (as defined in the Trust Agreement) by the
Trust Registrar in the name of the Trust Beneficial Owner, the Trust Beneficial
Owner shall be the sole beneficial owner of the Trust.
Section 2.04 Acknowledgment. The Trustee, on behalf of the Trust, expressly
acknowledges its duties and obligations set forth in the Standard Trust Terms
incorporated herein by reference.
Section 2.05 Additional Terms.
[__________]
Section 2.06 Omnibus Instrument; Execution and Incorporation of Terms.
The parties hereto will enter into this Trust Agreement by executing the
Omnibus Instrument.
By executing the Omnibus Instrument, the Trustee and the Trust Beneficial
Owner hereby agree that this Trust Agreement will constitute a legal, valid and
binding agreement between the Trustee and the Trust Beneficial Owner.
All terms relating to the Trust or the series of Notes not otherwise
included herein will be as specified in the Omnibus Instrument or Pricing
Supplement, as indicated herein.
Section 2.07 Governing Law. This Trust Agreement will be governed by, and
construed in accordance with, the laws of the jurisdiction specified in the
Pricing Supplement.
Section 2.08 Counterparts. This Trust Agreement, through the Omnibus
Instrument, may be executed in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
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SECTION B
INDENTURE
This INDENTURE (this "Indenture") is entered into as of the Original Issue
Date by and between the ING USA Global Funding Trust specified in the Omnibus
Instrument (the "Trust") and Citibank, N.A., as indenture trustee (the
"Indenture Trustee").
Citibank, N.A., in its capacity as Indenture Trustee, hereby accepts its
role as Registrar, Paying Agent, Transfer Agent and Calculation Agent hereunder.
References herein to "Indenture Trustee," "Registrar," "Transfer Agent,"
"Paying Agent" or "Calculation Agent" shall include the permitted successors and
assigns of any such entity from time to time.
WITNESSETH:
WHEREAS, the Trust has duly authorized the execution and delivery of this
Indenture to provide for the issuance of Notes;
WHEREAS, all things necessary to make this Indenture a valid and legally
binding agreement of the Trust and the other parties to this Indenture,
enforceable in accordance with its terms, have been done, and the Trust proposes
to do all things necessary to make the Notes, when executed by the Trust and
authenticated and delivered pursuant hereto, valid and legally binding
obligations of the Trust as hereinafter provided; and
WHEREAS, the parties hereto desire to incorporate by reference those
certain Standard Indenture Terms, dated as of September 8, 2006, and attached to
the Omnibus Instrument as Exhibit B (the "Standard Indenture Terms").
NOW, THEREFORE, for and in consideration of the premises and the purchase
of the Notes by the Holders thereof, it is mutually covenanted and agreed by
each of the parties hereto as follows:
ARTICLE 1
Section 1.01 Incorporation by Reference. All terms, provisions and
agreements set forth in the Standard Indenture Terms (except to the extent
expressly modified herein) are hereby incorporated herein by reference with the
same force and effect as though fully set forth herein. All capitalized terms
not otherwise defined herein (including the recitals hereof) shall have the
meanings set forth in the Standard Indenture Terms (the Standard Indenture Terms
and this Indenture, collectively, the "Indenture"). To the extent that the terms
set forth in Article 2 of this Indenture are inconsistent with the terms of the
Standard Indenture Terms, the terms set forth in Article 2 herein shall apply.
B-1
ARTICLE 2
Section 2.01 Agreement to be Bound. Each of the Trust, the Indenture
Trustee, the Registrar, the Transfer Agent, the Paying Agent and the Calculation
Agent hereby agrees to be bound by all of the terms, provisions and agreements
set forth in the Indenture, with respect to all matters contemplated in the
Indenture, including, without limitation, those relating to the issuance of the
below-referenced Notes.
Section 2.02 Designation of the Trust, the Notes and the Funding Agreement.
The Trust created by the Trust Agreement specified in the Omnibus Instrument and
referred to herein is the ING USA Global Funding Trust specified in the Omnibus
Instrument. The Notes issued by the Trust and governed by the Indenture shall be
the Notes specified in the Pricing Supplement. The Funding Agreement designated
hereby is the Funding Agreement designated in the Pricing Supplement, effective
as of the Original Issue Date, between the Trust and ING USA.
Section 2.03 Additional Terms.
[__________]
Section 2.04 Omnibus Instrument; Execution and Incorporation of Terms.
The parties hereto will enter into this Indenture by executing the Omnibus
Instrument.
By executing the Omnibus Instrument, the Indenture Trustee, the Registrar,
the Transfer Agent, the Paying Agent, the Calculation Agent and the Trust hereby
agree that the Indenture will constitute a legal, valid and binding agreement
between the Indenture Trustee, the Registrar, the Transfer Agent, the Paying
Agent, the Calculation Agent and the Trust.
All terms relating to the Trust or the Notes not otherwise included herein
will be as specified in the Omnibus Instrument or Pricing Supplement, as
indicated herein.
Section 2.05 Counterparts. This Indenture, through the Omnibus Instrument,
may be executed in any number of counterparts, each of which counterparts shall
be deemed to be an original, and all of which counterparts shall constitute one
and the same instrument.
Section 2.06 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.
B-2
SECTION C
TERMS AGREEMENT
This TERMS AGREEMENT (this "Terms Agreement") is entered into as of the
date of the Pricing Supplement by and among ING USA Annuity and Life Insurance
Company ("ING USA"), the ING USA Global Funding Trust specified in the Omnibus
Instrument (the "Trust") and the [Agent/Agent(s)] specified in the Pricing
Supplement [(the "Agent")/(the "Agent(s)")].
WITNESSETH:
WHEREAS, ING USA and the [Agent/Agent(s)] have entered into that certain
Distribution Agreement dated [__________] (the "Distribution Agreement").
NOW, THEREFORE, in consideration of the mutual promises set forth herein
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, each of the parties hereby agrees as follows:
ARTICLE 1
Section 1.01 Incorporation by Reference. The provisions of the Distribution
Agreement and the related definitions (unless otherwise specified herein) are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
ARTICLE 2
Section 2.01 Addition of Trust as Party to Distribution Agreement.
Pursuant to Section 1 of the Distribution Agreement, each of the
undersigned parties hereby acknowledges and agrees that the Trust, upon
execution hereof by the Trust and the other parties to this Terms Agreement,
shall become a Trust for purposes of the Distribution Agreement in accordance
with the terms thereof, in respect of the Notes, with all the authority, rights,
powers, duties and obligations of a Trust under the Distribution Agreement. The
Trust confirms that any agreement, covenant, acknowledgment, representation or
warranty under the Distribution Agreement applicable to the Trust is made by the
Trust at the date hereof, unless another time or times are specified in the
Distribution Agreement, in which case such agreement, covenant, acknowledgment,
representation or warranty shall be deemed to be confirmed by the Trust at such
specified time or times.
[Section 2.02 Purchase of Notes as Principal.
(a) Subject in all respects to the terms and conditions of the Distribution
Agreement, the Trust hereby agrees to sell to each Agent and each Agent hereby
agrees to purchase[, severally and not jointly,] the Notes having the terms
specified in the Pricing Supplement relating to such Notes.
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(b) In connection with any purchase of Notes from the Trust by the Agent(s)
as principal, the parties agree that the items specified on Schedule I of the
Omnibus Instrument will be delivered as of the Settlement Date.]*
[Section 2.02 Sale of Notes Through Agents. Subject in all respects to the
terms and conditions of the Distribution Agreement, the Trust and each Agent
hereby agree that the Trust will sell the Notes through each Agent as agent on
behalf of the Trust.]**
Section 2.03 Termination. [Upon the termination of this Terms Agreement
pursuant to Section 13(b) of the Distribution Agreement]* [In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement]** the undersigned parties hereby agree to
allocate the expenses reasonably incurred prior to or in connection with such
[termination]* [failure]** as follows:
__________
Section 2.04 Applicable Time. For purposes of the Distribution Agreement,
the Applicable Time shall be [Date and Time].
Section 2.05 Free Writing Prospectus or Other Information. For purposes of
the Distribution Agreement, each free writing prospectus or other information
attached to the Omnibus Instrument as Exhibit F constitutes a part of the Time
of Sale Prospectus.
Section 2.06 Governing Law. This Terms Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the principles of conflicts of laws thereof.
Section 2.07 Notices. For purposes of Section 14 of the Distribution
Agreement, the Trust's communications details are as set forth in Section D of
the Omnibus Instrument.
Section 2.08 Additional Terms. Each Agent, severally and not jointly,
represents, warrants and covenants with or to (as the case may be) the Trust and
the Company that it has not offered, sold or delivered and it will not offer,
sell or deliver, any of the Notes, in or from any jurisdiction (other than the
United States) except under circumstances that are reasonably designed to result
in compliance with the applicable securities laws and regulations thereof.
Section 2.09 Omnibus Instrument; Execution and Incorporation of Terms.
The parties hereto will enter into this Terms Agreement by executing the
Omnibus Instrument.
By executing the Omnibus Instrument, each party hereto agrees that this
Terms Agreement will constitute a legal, valid and binding agreement by and
among such parties.
All terms relating to the Trust or the Notes not otherwise included in this
Terms Agreement will be as specified in the Omnibus Instrument or Pricing
Supplement, as indicated herein.
Section 2.10 Counterparts. This Terms Agreement, through the Omnibus
Instrument, may be executed in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
C-2
[Remainder of Page Left Intentionally Blank]
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* Include only if [Agent/Agent(s)] purchasing Notes as principals.
** Include only if Agents serving as agents.
C-3
SECTION D
COORDINATION AGREEMENT
This COORDINATION AGREEMENT (this "Coordination Agreement"), dated as of
the date of the Pricing Supplement, is entered into by and among ING USA Annuity
and Life Insurance Company ("ING USA"), the ING USA Global Funding Trust
specified in the Omnibus Instrument (the "Trust"), U.S. Bank National
Association, in its capacity as custodian of the Funding Agreement ("Custodian")
and Citibank, N.A., as indenture trustee (the "Indenture Trustee").
WITNESSETH
WHEREAS, the Trust will enter into the Funding Agreement with ING USA,
effective as of the Original Issue Date specified in the Pricing Supplement;
WHEREAS, the Agents (as defined in the Distribution Agreement) will sell
the Notes in accordance with the Registration Statement;
WHEREAS, the Trust intends to issue the Notes in accordance with the
Indenture, to collaterally assign to, and grant a security interest in, the
Funding Agreement to and in favor of the Indenture Trustee in accordance with
the Indenture to secure payment of the Notes; and
WHEREAS, the Custodian will hold the Funding Agreement on behalf of the
Indenture Trustee pursuant to the terms of the Custodial Agreement.
NOW, THEREFORE, to give effect to the agreements and arrangements
established under the Terms Agreement included in the Omnibus Instrument, as
applicable, the Trust Agreement, the Indenture and the Notes, and in
consideration of the agreements and obligations set forth herein and for other
good and valuable consideration, the sufficiency of which are hereby
acknowledged, each party hereby agrees as follows:
ARTICLE 1
Section 1.01 Delivery of the Funding Agreement. The Trust hereby authorizes
the Custodian, on behalf of the Indenture Trustee, to receive the Funding
Agreement from ING USA pursuant to the assignment of the Funding Agreement (the
"Assignment"), to be entered into on the Original Issue Date, included in the
closing instrument dated as of the Original Issue Date (the "Closing
Instrument").
Section 1.02 Issuance and Purchase of the Notes.
(a) Delivery of the Funding Agreement to the Custodian, on behalf of the
Indenture Trustee, pursuant to the Assignment or execution of the cross-receipt
contained in the Closing Instrument shall be confirmation of payment by the
Trust for the Funding Agreement.
(b) The Trust hereby directs the Indenture Trustee, upon receipt of the
Funding Agreement by the Custodian, on behalf of the Indenture Trustee and
pursuant to the Assignment,
D-1
(i) to authenticate the certificates representing the Notes (the "Notes
Certificates") in accordance with the Indenture and (ii) to (A) deliver each
relevant Notes Certificate to the clearing system or systems identified in each
such Notes Certificate, or to the nominee of such clearing system, or the
custodian thereof, for credit to such accounts as the Agent(s) may direct, or
(B) deliver each relevant Notes Certificate to the purchasers thereof as
identified by the Agent(s).
ARTICLE 2
Section 2.01 Directions Regarding Periodic Payments. As registered owner of
the Funding Agreement as collateral securing payments on the Notes, the
Indenture Trustee will receive payments on the Funding Agreement on behalf of
the Trust. The Trust hereby directs the Indenture Trustee to use such funds to
make payments on behalf of the Trust pursuant to the Trust Agreement and the
Indenture.
Section 2.02 Maturity of the Funding Agreement. Upon the maturity of the
Funding Agreement and the return of funds thereunder, the Trust hereby directs
the Indenture Trustee to set aside from such funds an amount sufficient for the
repayment of the outstanding principal on the Notes and Trust Beneficial
Interest when due.
ARTICLE 3
Section 3.01 Officer's Certificates. ING USA hereby agrees to deliver an
Officer's Certificate, a copy of which is attached to the Omnibus Instrument as
Exhibit D, on a quarterly basis to any rating agency currently rating the
Program. The Trust hereby agrees to deliver an Officer's Certificate, a copy of
which is attached to the Omnibus Instrument as Exhibit E, on a quarterly basis
to any rating agency currently rating the Program.
Section 3.02 Filings. ING USA hereby covenants to file, or cause to be
filed, in a timely manner on behalf of the Trust all reports, certifications or
similar filings required under the Securities Exchange Act of 1934, as amended.
ARTICLE 4
Section 4.01 No Additional Liability. Nothing in this Coordination
Agreement shall impose any liability or obligation on the part of any party to
this Coordination Agreement to make any payment or disbursement in addition to
any liability or obligation such party has under the Program Documents, except
to the extent that a party has actually received funds which it is obligated to
disburse pursuant to this Coordination Agreement.
Section 4.02 No Conflict. This Coordination Agreement is intended to be in
furtherance of the agreements reflected in the documents related to the Program
Documents, and not in conflict. To the extent that a provision of this
Coordination Agreement conflicts with the provisions of one or more Program
Documents, the provisions of such Program Documents shall govern.
Section 4.03 Governing Law. This Coordination Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
regard to the principles of conflicts of laws thereof.
D-2
Section 4.04 Severability. If any provision in this Coordination Agreement
shall be invalid, illegal or unenforceable, such provision shall be deemed
severable from the remaining provisions of this Coordination Agreement and shall
in no way affect the validity or enforceability of such other provisions of this
Coordination Agreement.
Section 4.05 Notices. All demands, notices and communications under this
Coordination Agreement shall be in writing and shall be deemed to have been duly
given upon receipt at the addresses set forth below:
To the Trust:
ING USA Global Funding Trust (followed by the number set forth in the
Omnibus Instrument)
c/o U.S. Bank National Association
Corporate Trust Services
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Child, VP
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Indenture Trustee:
Citibank, N.A.
Agency & Trust
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Agency & Trust, ING USA Global Funding Trust
To ING USA:
ING USA Annuity and Life Insurance Company
c/o ING Institutional Markets
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 and (000) 000-0000
With a copy to:
ING Institutional Markets
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx XxxXxxx
D-3
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 and (000) 000-0000
To the Custodian:
U.S. Bank National Association
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as shall be designated by any such party in a written
notice to the other parties.
ARTICLE 5
Section 5.01 Omnibus Instrument; Execution and Incorporation of Terms.
The parties to this Coordination Agreement will enter into this
Coordination Agreement by executing the Omnibus Instrument.
By executing the Omnibus Instrument, each party hereto agrees that this
Coordination Agreement will constitute a legal, valid and binding agreement by
and among the Trust, ING USA, the Custodian and the Indenture Trustee.
All terms relating to the Trust or the Notes not otherwise included in this
Coordination Agreement will be as specified in the Omnibus Instrument or Pricing
Supplement, as indicated herein.
Section 5.02 Acknowledgment. ING USA hereby acknowledges Section 2.10 and
Section 3.02 of the Indenture and Section 6.1 of the Custodial Agreement. The
Trust hereby acknowledges and agrees to be bound by the terms of the Custodial
Agreement and the License Agreement.
Section 5.03 Counterparts. This Coordination Agreement, through the Omnibus
Instrument, may be executed in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 5.04 Capitalized Terms. All capitalized terms used herein and not
otherwise defined in this Coordination Agreement will have the meanings set
forth in the Indenture.
Section 5.05 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
D-4
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.
[Remainder of Page Left Intentionally Blank]
D-5
SECTION E
MISCELLANEOUS AND EXECUTION PAGES
This Omnibus Instrument may be executed by each of the parties hereto in
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Each signatory, by its execution hereof, does hereby become a party to each
of the agreements or indenture identified for such party as of the date
specified in such agreements or indenture.
IN WITNESS WHEREOF, the undersigned have executed this Omnibus Instrument
with respect to the Notes as of the date first written above.
ING USA ANNUITY AND LIFE INSURANCE
COMPANY (in executing below agrees and
becomes a party to (i) the Terms
Agreement set forth in Section C herein
and (ii) the Coordination Agreement set
forth in Section D herein)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Execution Page 1 of 3]
E-1
THE ING USA GLOBAL FUNDING TRUST
DESIGNATED IN THIS OMNIBUS INSTRUMENT
(in executing below agrees and becomes a
party to (i) the Indenture set forth in
Section B herein, (ii) the Terms
Agreement set forth in Section C herein
and (iii) the Coordination Agreement set
forth in Section D herein)
By: U.S. Bank National Association, not
in its individual capacity but solely in
its capacity as Trustee of the Trust
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
U.S. BANK NATIONAL ASSOCIATION (in
executing below agrees and becomes a
party to the Trust Agreement set forth
in Section A herein), as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
U.S. BANK NATIONAL ASSOCIATION (in
executing below acknowledges and agrees
to Section 5.01 of the Standard Trust
Terms as set forth in Section A herein),
in its individual capacity
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
GSS HOLDINGS II, INC. (in executing
below agrees and becomes a party to the
Trust Agreement set forth in Section A
herein), as Trust Beneficial Owner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CITIBANK, N.A. (in executing below
agrees and becomes a party to (i) the
Indenture set forth in Section B herein,
as Indenture Trustee, Registrar,
Transfer Agent, Paying Agent and
Calculation Agent and (ii) the
Coordination Agreement set forth in
Section D herein, not in its individual
capacity but solely as Indenture
Trustee, Registrar, Transfer Agent,
Paying
E-2
Agent and Calculation Agent), as
Indenture Trustee, Registrar, Transfer
Agent, Paying Agent and Calculation
Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Execution Page 2 of 3]
E-3
U.S. BANK NATIONAL ASSOCIATION (in
executing below agrees and becomes a
party to the Coordination Agreement set
forth in Section D herein), as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED](1) (in executing below
agrees and becomes a party to the Terms
Agreement set forth in Section C herein)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Execution Page 3 of 3]
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(1) Insert Agent(s) if other than (or in addition to) Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated.
E-4
INDEX OF EXHIBITS AND SCHEDULES TO THE OMNIBUS INSTRUMENT
Exhibit A Standard Trust Terms
Exhibit B Standard Indenture Terms
Exhibit C Pricing Supplement
Exhibit D ING USA Annuity and Life Insurance Company Officer's Certificate
Exhibit E ING USA Global Funding Trusts Trustee Officer's Certificate
Exhibit F Free Writing Prospectus(es) or Other Information
Schedule I Terms Agreement Specifications
E-5
EXHIBIT A
Standard Trust Terms
As filed as Exhibit 4.6 to ING USA Annuity and Life Insurance Company's
Registration Statement on Form S-3 (No. 333-123457), filed with the Securities
and Exchange Commission on May 17, 2005, as amended by Post Effective Amendment
No. 1 filed with the Commission on June 16, 2006 and Post Effective Amendment
No. 2 filed with the Commission on September 8, 2006.
A-1
EXHIBIT B
Standard Indenture Terms
As filed as Exhibit 4.1 to ING USA Annuity and Life Insurance Company's
Registration Statement on Form S-3 (No. 333-123457), filed with the Securities
and Exchange Commission on May 17, 2005, as amended by Post Effective Amendment
No. 1 filed with the Commission on June 16, 2006 and Post Effective Amendment
No. 2 filed with the Commission on September 8, 2006.
B-1
EXHIBIT C
Pricing Supplement
As filed with the Securities and Exchange Commission pursuant to Rule 424(b)
under the Securities Act, dated as of [Date], with respect to the Notes to be
issued by the Trust.
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EXHIBIT D
ING USA Annuity and Life Insurance Company
Officer's Certificate
The undersigned, an officer of ING USA Annuity and Life Insurance Company,
an Iowa stock life insurance company ("ING USA"), does hereby certify to
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., in such capacity and on behalf of ING USA, to the knowledge of the
undersigned and after reasonable inquiry, that:
1. each of the representations and warranties of ING USA contained in
each Expense and Indemnity Agreement entered into in connection with
the Registration Statement (defined below), and each Funding Agreement
issued in connection with the Program (the "Specified Agreements")
(other than any representation or warranty expressly made as of a date
prior to the date hereof) are true and correct on and as of the date
hereof, with the same effect as though such representation or warranty
had been made on and as of the date hereof;
2. no default under any of the Specified Agreements and no event or any
condition which, with notice or lapse of time or both, would become a
default, has occurred and is continuing as of the date hereof;
3. ING USA has performed and complied with, respectively, in all material
respects, all of the agreements, covenants, obligations and conditions
applicable to ING USA required by the Specified Agreements to be
performed or complied with by ING USA on or before the date hereof;
4. the Registration Statement filed on Form S-3 (File No. 333-123457)
(the "Registration Statement") by ING USA has been declared effective
by the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act") and no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been commenced by or
are pending before or contemplated by the Commission;
5. all filings, if any, required by Rule 424 and Rule 430A under the Act
have been made in a timely manner;
6. since ______, the Trusts organized in connection with the program
contemplated by the Registration Statement have issued the following
series of Notes:
[List each series of Notes issued in the relevant quarter]
[(collectively, the "Designated Notes")]; and
7. the Funding Agreements issued in connection with the Designated Notes
have been executed and delivered by ING USA in accordance with the
terms and conditions of the Program Documents.
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Capitalized terms used herein and not otherwise defined herein shall have
the meanings set forth in the Standard Indenture Terms attached as Exhibit 4.1
to the Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the
day __ of __________, 200_.
[NAME], [in his/her] capacity as an
authorized officer of ING USA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-2
EXHIBIT E
ING USA Global Funding Trusts
Trustee Officer's Certificate
U.S. Bank National Association, not in its individual capacity but solely
in its capacity as trustee acting on behalf of each common law trust organized
under the laws of the State of Illinois (in such capacity, the "Trustee," and
each such common law trust being referred to herein as a "Trust") in connection
with the program contemplated by Registration Statement filed on Form S-3 (File
No. 333-123457) by ING USA Annuity and Life Insurance Company with the
Securities and Exchange Commission on May 17, 2005, as amended by Post Effective
Amendment No. 1 filed with the Commission on June 16, 2006, and Post Effective
Amendment No. 2 filed with the Commission on September 8, 2006 (the
"Registration Statement"), does hereby certify to Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., in such capacity and on
behalf of each Trust, to the knowledge of the Trustee without any independent
investigation, that:
1. each of the representations and warranties of each Trust contained in
the Notes issued in connection with the Program, each Indenture
entered into in connection with the Registration Statement and the
Expense and Indemnity Agreement concerning the Trusts (the "Specified
Agreements") (other than any representation or warranty expressly made
as of a date prior to the date hereof) are true and correct on and as
of the date hereof, with the same effect as though such representation
or warranty had been made on and as of the date hereof;
2. no default under any of the Specified Agreements and no event or any
condition which, with notice or lapse of time or both, would become a
default, has occurred and is continuing as of the date hereof;
3. each Trust has performed and complied with, respectively, in all
material respects, all of the agreements, covenants, obligations and
conditions applicable to such Trust required by the Specified
Agreements to be performed or complied with by such Trust on or before
the date hereof;
4. the Notes issued in connection with the Program have been issued, in
all material respects, in accordance with the terms and conditions of
the Program Documents; and
5. each Funding Agreement has been executed and delivered by the related
Trust in accordance with the terms and conditions of the Program
Documents.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings set forth in the Standard Indenture Terms attached as Exhibit 4.1
to the Registration Statement. In no event shall U.S. Bank National Association
in its personal corporate capacity (or any officer of the Trustee in his or her
personal capacity) have any liability for any of the certifications or
statements contained in this Trustee Officer's Certificate, such liability being
solely that of each Trust.
E-1
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the
__ day of __________, 200_.
U.S. Bank National Association, not in
its individual capacity but solely in
its capacity as Trustee acting on behalf
of each Trust
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-2
EXHIBIT F
Free Writing Prospectus(es) or Other Information
SCHEDULE I
Terms Agreement Specifications
In connection with Section 3(a)(iv) of the Distribution Agreement, the Program
under which the Notes are issued is rated Aa3 by Xxxxx'x Investors Service, Inc.
("Moody's"), AA by Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P") and aa- by A.M. Best Company ("A.M. Best").
ING USA expects that the Notes will be rated Aa3 by Moody's and aa- by A.M.
Best. The Company's financial strength rating is Aa3 by Moody's and AA by S&P.
[In accordance with Section 2.02(b) of the Terms Agreement and in connection
with the purchase of Notes from the Trust by the Agent(s) as principal, the
following items will be delivered on or prior to the Settlement Date:
Specify opinions and comfort letter, as applicable.]
All capitalized terms used herein and not otherwise defined herein will
have the meanings set forth in the Distribution Agreement.
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