Exhibit 4.9
CLOSING INSTRUMENT
WHEREAS, the parties named herein desire to enter into certain program
documents contained herein, each such document dated as of this __ day of
__________, 200_ (the "Original Issue Date"), relating to the issuance by ING
USA Global Funding Trust [__________] (the "Trust") of Notes to investors under
the secured notes program of ING USA Annuity and Life Insurance Company ("ING
USA");
WHEREAS, the Trust is a trust organized under, and its activities will be
governed by, the provisions of the Trust Agreement as set forth in the omnibus
instrument related to the Trust dated as of the date of the Pricing Supplement
(the "Omnibus Instrument");
WHEREAS, certain licensing arrangements between the Trust and ING Groep
N.V. will be governed pursuant to the provisions of the License Agreement, as
set forth in the Omnibus Instrument;
WHEREAS, the Notes will be issued pursuant to the Indenture, as set forth
in the Omnibus Instrument (the "Indenture");
WHEREAS, the sale of the Notes will be governed by the Terms Agreement, as
set forth in the Omnibus Instrument;
WHEREAS, certain custodial arrangements regarding the Funding Agreement
will be governed pursuant to the provisions of the Custodial Agreement dated as
of [.] 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, certain agreements relating to the Notes and the Funding Agreement
are set forth in the Coordination Agreement, as set forth in the Omnibus
Instrument.
All capitalized terms used herein and not otherwise defined will have the
meanings set forth in the Indenture.
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PART I
INSTRUCTIONS OF THE TRUST
As of the Original Issue Date, the Trust herewith delivers to the Indenture
Trustee, or has caused to be delivered to the Indenture Trustee, the Notes
specified in the Pricing Supplement, having the initial principal amount as set
forth in the Pricing Supplement.
As of the Original Issue Date, the Trust hereby instructs the Indenture
Trustee to take all actions required to be taken with respect to the Notes under
Section 2.05(e) of the Standard Indenture Terms.
As of the Original Issue Date, ING USA and the Trust hereby direct the
Indenture Trustee to deposit the Net Proceeds to the Trust (as specified in the
Pricing Supplement) in respect of the Notes to:
Bank: Citibank, N.A.
Account: ING USA Annuity and Life Insurance Company
ABA #:
Account #:
Contract #: RMTN __
As of the Original Issue Date, the agent(s) specified in the Pricing
Supplement hereby direct(s) the Indenture Trustee to deliver the Notes as
follows:
[Insert delivery instructions]
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PART II
ACKNOWLEDGMENT OF INDENTURE TRUSTEE CONCERNING THE NOTES
The Indenture Trustee certifies, as of the Original Issue Date, the
following:
(a) The Indenture Trustee acknowledges receipt of the Notes; and
(b) The Indenture Trustee (including in its capacity as Registrar) has
taken all action required to be taken with respect to the Notes under Section
2.05(e) of the Standard Indenture Terms.
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PART III
CERTIFICATE REGARDING CUSTODY OF THE FUNDING AGREEMENT
In connection with the issuance of the Funding Agreement and the Assignment
of Funding Agreement (set forth in Part IV of this Closing Instrument), the
Custodian hereby represents that it has received delivery of the Funding
Agreement and is holding the Funding Agreement for the benefit of the Indenture
Trustee and that the Funding Agreement is in the possession of the Custodian at
the address below:
US Bank Corporate Trust Services
Vice President
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
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PART IV
ASSIGNMENT OF FUNDING AGREEMENT
Pursuant to the terms of the Indenture, the Trust hereby grants to the
Indenture Trustee, for the benefit of the Holders of the Notes, a first priority
perfected security interest in, and collaterally assigns to the Indenture
Trustee, for the benefit of the Holders of the Notes, the Trust's right, title,
benefits, remedies and interests in, to and under the Funding Agreement and the
other Collateral described in the Indenture and all of its rights and privileges
with respect to the Collateral and all income and profits thereon, and all
interest, dividends and other payments and distributions with respect thereto,
and all Proceeds of the foregoing.
Each of the Trust, the Indenture Trustee and ING USA hereby agrees that, in
furtherance of the collateral assignment described above, until such time as the
Indenture Trustee notifies the Trust and ING USA that all obligations of the
Trust pursuant or related to the Notes have been paid or satisfied in full, the
Indenture Trustee shall have and may exercise the rights and remedies of an
Owner (as defined in the Funding Agreement) under the Funding Agreement.
Notwithstanding the foregoing (and whether or not the foregoing notification is
given) and Section 5 of the Funding Agreement (which ING USA acknowledges and
agrees has been complied with), all obligations, representations and warranties
of an Owner under the Funding Agreement shall nevertheless remain obligations,
representations and warranties of the Trust, as the case may be, and shall not
be obligations, representations or warranties of the Indenture Trustee. ING USA
and the Trust hereby agree that, until such time as the Indenture Trustee
notifies the Trust and ING USA that all obligations of the Trust pursuant to or
related to the Notes have been paid or satisfied in full, ING USA will comply
with instructions originated by the Indenture Trustee with respect to the
Funding Agreement without further consent by the Trust.
ING USA hereby affirms that it has recorded the collateral assignment and
grant of the security interest on its books and records to reflect the same
described above. ING USA agrees that it will comply with all orders of the
Indenture Trustee with respect to the Funding Agreement without any further
consent of the Trust. ING USA hereby confirms that it has received all documents
and instruments which it requires pursuant to the terms of the Funding Agreement
in connection with the collateral assignment and grant of such security interest
and/or rights of the Indenture Trustee hereunder.
ING USA hereby also represents that it has not received any notice of any
adverse claim to the Funding Agreement, other than the creation and perfection
of a security interest in the Funding Agreement, and the proceeds thereof as
described herein.
The collateral assignment and grant of the security interest and this
instrument shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of New York, without regard to conflicts
of laws principles thereof, and shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
This instrument may not be amended, modified or waived without the consent
of the Indenture Trustee, the Trust and ING USA.
The Custodian hereby acknowledges the terms of this Assignment of Funding
Agreement.
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PART V
ACKNOWLEDGEMENT OF FUNDING AGREEMENT ASSIGNMENT
ING USA has issued the Funding Agreement to the Trust. By this instrument,
the receipt of which ING USA hereby acknowledges, the Trust has informed ING USA
that it has conveyed and assigned (for security purposes) all of its right,
title, benefits, remedies and interests in, to and under the Funding Agreement
to the Indenture Trustee pursuant to the Indenture.
ING USA hereby consents to the aforementioned assignment of the Funding
Agreement with respect to the assignment thereof to the Indenture Trustee under
the Indenture. ING USA affirms that it has changed its books and records to
reflect such assignment and agrees to make payments in accordance with the terms
of the Funding Agreement to the Indenture Trustee. ING USA also agrees that all
of the covenants made in the Funding Agreement are also for the benefit of the
Indenture Trustee, and further agrees that ING USA shall deliver to the
Indenture Trustee duplicate original copies of all notices, statements,
communications and instruments delivered by ING USA to the Trust pursuant to the
Funding Agreement.
ING USA agrees to execute and deliver to the Trust and the Indenture
Trustee such documents and take such other action as the Trust and the Indenture
Trustee may reasonably request in order to ensure that the consent granted by
ING USA pursuant to the preceding paragraph shall remain continuously effective
until the termination of the Funding Agreement. The consent contained in the
preceding paragraph is coupled with an interest and shall be irrevocable.
This acknowledgment of collateral assignment and grant of security interest
and this instrument shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of New York, without regard to conflicts
of laws principles thereof, and shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
This instrument may not be amended, modified or waived without the consent
of the Indenture Trustee, the Trust and ING USA.
The Custodian hereby acknowledges the terms of this Acknowledgment of
Funding Agreement Assignment.
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PART VI
NOTICE OF SECURITY INTEREST
Pursuant to the Indenture, the Trust has collaterally assigned the Funding
Agreement to the Indenture Trustee pursuant to the Indenture.
Notice is hereby given that the Indenture Trustee, on behalf of the Holders
of the Notes, has a security interest in the Collateral, including, but not
limited to, any and all payments to be made by ING USA to the Trust pursuant to
the Funding Agreement. ING USA, by executing this instrument, hereby (x)
consents to the security interest granted by the Trust, to the Indenture Trustee
in the payments under the Funding Agreement, (y) agrees to make all payments due
under the Funding Agreement to the Collection Account or any other account
designated in writing to ING USA by the Indenture Trustee and (z) agrees to
comply with all orders of the Indenture Trustee with respect to the Funding
Agreement without any further consent from the Trust.
This notice of security interest shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York,
without regard to conflicts of laws principles thereof, and shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
This instrument may not be amended, modified or waived without the consent
of the Indenture Trustee, the Trust and ING USA.
The Custodian hereby acknowledges the terms of this Notice of Security
Interest.
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PART VII
ING USA OFFICER'S CERTIFICATE
The undersigned, an authorized officer of ING USA, does hereby certify to
each agent that is a party to the Terms Agreement (as defined in the Omnibus
Instrument) relating to the Notes, in such capacity and on behalf of ING USA,
pursuant to the Distribution Agreement, that:
1. Since the respective dates as of which information is given in the
Institutional Prospectus (as defined in the Distribution Agreement), and as of
the date hereof, there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of ING USA and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business;
2. The representations and warranties of ING USA contained in the
Distribution Agreement are true and correct with the same force and effect as
though expressly made at and as of the date hereof;
3. ING USA has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the date hereof;
4. No stop order suspending the effectiveness of the Registration Statement
(as defined in the Distribution Agreement) has been issued and no proceedings
for that purpose have been instituted or are pending or, to the best of such
person's knowledge, are threatened by the Commission (as defined in the
Distribution Agreement); and
5. Since the date of the Institutional Prospectus, there has occurred no
event required to be set forth in an amendment or supplement to the Registration
Statement or Institutional Prospectus, and there has been no document required
to be filed under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations (all as defined in the Distribution Agreement) which, upon
filing, would be deemed to be incorporated by reference in the Institutional
Prospectus which has not been so filed.
[Remainder of Page Intentionally Left Blank]
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PART VIII
TRUST CERTIFICATES
TRUST CERTIFICATE UNDER THE DISTRIBUTION AGREEMENT
The Trust does hereby certify to each Relevant Agent that is a party to the
Terms Agreement (as defined in the Omnibus Instrument) relating to the Notes, in
such capacity and on behalf of the Trust, pursuant to the Distribution Agreement
and Terms Agreement, as applicable, that:
1. Since the respective dates as of which information is given in the
Institutional Prospectus (as defined in the Distribution Agreement), and as of
the date hereof, there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Trust, whether or not arising in the ordinary course of
business;
2. The representations and warranties of the Trust contained in the
Distribution Agreement are true and correct with the same force and effect as
though expressly made at and as of the date hereof; and
3. The Trust has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the date hereof.
4. It is expressly understood that: (i) this Certificate is executed by
U.S. Bank National Association, not in its individual capacity but solely as
Trustee of the Trust, in the exercise of the power and authority conferred and
vested in it as such Trustee and (ii) each of the representations made herein by
the Trustee are not personal representations, undertakings and agreements of
U.S. Bank National Association or its officers, but are binding solely on the
Trust.
TRUST CERTIFICATE UNDER THE INDENTURE
The undersigned, a Responsible Officer of the Trustee, on behalf of the
Trust and pursuant to Section 1.02 of the Indenture, does hereby certify to the
Indenture Trustee as follows:
1. I am familiar with the terms of the Indenture and have read the
covenants, conditions and definitions contained therein related to the issuance
and authentication of Notes;
2. As to the matters set forth herein, I either have personal knowledge
thereof or have obtained knowledge thereof from officers or employees of ING
USA. In my opinion, I have made such examination and investigation as has been
necessary to enable me to express an informed opinion as to whether or not the
covenants or conditions contained in the Indenture have been complied with; and
3. All conditions precedent provided for in the Indenture to the
authentication and delivery of the Notes have been complied with.
It is expressly understood that: (i) this Certificate is executed by U.S.
Bank National Association, not in its individual capacity but solely as Trustee
of the Trust, in the exercise of the power and
VIII-1
authority conferred and vested in it as such Trustee and (ii) each of the
representations and certifications made herein by the Trustee are not personal
representations, certifications, undertakings or agreements of
U.S. Bank National Association or its officers, but are binding solely on the
Trust, and in no event shall U.S. Bank National Association or its officers have
any liability therefor.
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PART IX
ING USA CERTIFICATION
ING USA certifies, as of the Original Issue Date, that the ING USA
Officer's Certificate, a copy of which is attached as Exhibit A to this Closing
Instrument, is true and correct and remains in full force and effect.
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IX-1
PART X
INDENTURE TRUSTEE CERTIFICATION
The Indenture Trustee certifies, as of the Original Issue Date, that the
Indenture Trustee Officer's Certificate, a copy of which is attached as Exhibit
B to this Closing Instrument, is true and correct and remains in full force and
effect.
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X-1
PART XI
TRUSTEE CERTIFICATION
The Trustee certifies, as of the Original Issue Date, that the Trustee
Officer's Certificate, a copy of which is attached as Exhibit C to this Closing
Instrument, is true and correct and remains in full force and effect.
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XI-1
PART XII
RELEVANT AGENT CERTIFICATION
On the date hereof, the Trust will issue Notes in accordance with the terms
of the Distribution Agreement. [The] [Each] Relevant Agent hereby certifies to
ING USA and the Trust as follows:
(i) that such Relevant Agent has anti-money laundering policies and
procedures in place in accordance with the requirements imposed by the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L, 107-56, 115 Stat.
280 (October 26, 2001), or any rules or regulations promulgated thereunder, and
the Foreign Assets Control Regulations issued by the Office of Foreign Assets
Control of the United States Department of Treasury (31 CFR Part 500), in each
case to the extent applicable to such Relevant Agent; and
(ii) that such Relevant Agent has implemented an anti-money laundering
compliance program pursuant to NASD Rule 3011, to the extent applicable to such
Relevant Agent.
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XII-1
PART XIII
CROSS-RECEIPT
The Trust hereby acknowledges receipt of the Net Proceeds to the Trust (as
specified in the Pricing Supplement) from the Indenture Trustee and herewith
delivers to the Indenture Trustee, or has caused to be delivered to the
Indenture Trustee, the Notes, duly executed by the Trust pursuant to the
Indenture.
The Trust hereby acknowledges receipt of funds for the Trust Beneficial
Interest from or at the direction of the Trust Beneficial Owner and has caused
to be registered in the name of the Trust Beneficial Owner the Trust Beneficial
Interest pursuant to the Trust Agreement.
ING USA hereby acknowledges receipt of the Net Proceeds to the Trust and,
for purposes of the Funding Agreement, the receipt of the Net Proceeds to the
Trust shall be deemed to be received by ING USA in full payment of the Net
Deposit (as specified in the Funding Agreement). ING USA herewith delivers to
the Indenture Trustee, or has caused to be delivered to the Indenture Trustee,
the Funding Agreement, duly executed by ING USA.
The Custodian, on behalf of the Indenture Trustee, hereby acknowledges
receipt from ING USA of the Funding Agreement.
The Trust Beneficial Owner hereby acknowledges ownership of the Trust
Beneficial Interest.
Each Relevant Agent hereby acknowledges receipt of the Notes.
The Indenture Trustee hereby acknowledges the terms of this Cross-Receipt.
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XIII-1
PART XIV
MISCELLANEOUS AND EXECUTION PAGES
This Closing 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 instruments identified for such party as of the Original
Issue Date.
IN WITNESS WHEREOF, the undersigned have executed this Closing Instrument,
dated as of the Original Issue Date.
By: ING USA ANNUITY AND LIFE INSURANCE
COMPANY (in executing below agrees
and becomes a party to (i) the
Instructions of the Trust set forth
in Part I herein, (ii) the
Assignment of Funding Agreement set
forth in Part IV herein, (iii) the
Acknowledgement of Funding Agreement
Assignment set forth in Part V
herein, (iv) the Notice of Security
Interest set forth in Part VI
herein, (v) the ING USA
Certification set forth in Part IX
herein and (vi) the Cross-Receipt
set forth in Part XIII herein)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By: [Name], in his/her capacity as an
authorized officer of ING USA (in
executing below agrees and becomes a
party to the ING USA Officer's
Certificate set forth in Part VII
herein)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Execution Page 1 of the Closing Instrument]
By: THE ING USA GLOBAL FUNDING TRUST
DESIGNATED IN THIS CLOSING
INSTRUMENT (in executing below
agrees and becomes party to (i) the
Instructions of the Trust set forth
in Part I herein, (ii) the
Assignment of Funding Agreement set
forth in Part IV herein, (iii) the
Acknowledgement of Funding Agreement
Assignment set forth in Part V
herein, (iv) the Notice of Security
Interest set forth in Part VI
herein, (v) the Trust Certificates
set forth in Part VIII herein and
(vi) the Cross-Receipt set forth in
Part XIII herein)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By: CITIBANK, N.A., in its capacity as
Indenture Trustee, Registrar,
Transfer Agent, Paying Agent and
Calculation Agent (in executing
below agrees and becomes party to
(i) the Instructions of the Trust
set forth in Part I herein, (ii) the
Acknowledgement of Indenture Trustee
Concerning the Notes set forth in
Part II herein, (iii) the Assignment
of Funding Agreement set forth in
Part IV herein, (iv) the
Acknowledgement of Funding Agreement
Assignment set forth in Part V
herein, (v) the Notice of Security
Interest set forth in Part VI
herein, (vi) the Indenture Trustee
Certification set forth in Part X
herein and (vii) the Cross-Receipt
set forth in Part XIII herein)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Execution Page 2 of the Closing Instrument]
By: U.S. BANK NATIONAL ASSOCIATION, in
its capacity as Trustee (in
executing below agrees and becomes a
party to the Trustee Certification
set forth in Part XI herein)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By: U.S. BANK NATIONAL ASSOCIATION, in
its capacity as Custodian (in
executing below agrees and becomes a
party to (i) the Certificate
Regarding Custody of the Funding
Agreement set forth in Part III
herein, (ii) the Assignment of
Funding Agreement set forth in Part
IV herein, (iii) the Acknowledgment
of Funding Agreement Assignment set
forth in Part V herein, (iv) the
Notice of Security Interest set
forth in Part VI herein and (v) the
Cross-Receipt set forth in Part XIII
herein)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By: GSS HOLDINGS II, INC., in its
capacity as Trust Beneficial Owner
(in executing below agrees and
becomes a party to the Cross-Receipt
set forth in Part XIII herein)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Execution Page 3 of the Closing Instrument]
By: [XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED] (in executing
below agrees and becomes a party to
(i) the Instructions of the Trust
set forth in Part I herein, (ii) the
Relevant Agent Certification set
forth in Part XII herein and (iii)
the Cross-Receipt set forth in Part
XIII herein)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Execution Page 4 of the Closing Instrument]
EXHIBIT A
ING USA OFFICER'S CERTIFICATE
I, [Name], an officer of ING USA Annuity and Life Insurance Company, an
insurance company organized under the laws of Iowa ("ING USA"), being fully
aware of the by-laws (the "By-Laws") and resolutions of ING USA, hereby certify
on behalf of ING USA that:
1. Attached hereto as Annex I is a true, correct and complete copy of the
Articles of Incorporation and, as Annex II, is a true, correct and complete
copy of the By-Laws of ING USA, together with all amendments thereto, if
any, as in full force from the date thereof through to the Original Issue
Date.
2. Attached hereto as Annex III are true, correct and complete copies of the
resolutions duly adopted by the Board of Directors of ING USA at a meeting
duly called and held on September 24, 2004, which resolutions are relevant
to the Program, including the issuance of the Notes, and such resolutions
have not been amended, modified or rescinded and remain in full force and
effect; and such resolutions are the only resolutions adopted by ING USA
relating to the Program and the Notes.
3. Attached hereto as Annex IV is a list of each of the duly elected officers
of ING USA holding on the Original Issue Date the office or offices set
forth opposite his or her name authorized on behalf of ING USA (i) to
execute (manually or by facsimile) all agreements, documents, notices,
acknowledgements and certificates to which ING USA is a party or which ING
USA is required to deliver in connection with the establishment of the
Program and the subsequent issuance of the Notes and (ii) to take any other
action on behalf of ING USA in relation to the above issue; and such
signatures set forth therein are the true signatures of such persons.
All capitalized terms used and not defined herein shall have the meanings
assigned to those terms in the Indenture.
By: [Name], in [his/her] capacity as an
officer of ING USA Annuity and Life
Insurance Company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT B
INDENTURE TRUSTEE OFFICER'S CERTIFICATE
I, [Name], an officer of Citibank, N.A., as indenture trustee (the
"Indenture Trustee"), hereby certify that:
1. The Indenture entered into as of the Original Issue Date by and
between the Trust and the Indenture Trustee has been duly executed and
delivered in the name and on behalf of the Indenture Trustee by one of
its authorized officers.
2. Each of the persons named on Annex I hereto has been duly elected or
appointed and is duly qualified as an officer of the Indenture Trustee
on the Original Issue Date, holding the office or offices set forth
opposite his or her name, and the signature set forth opposite his or
her name is a specimen of his or her genuine signature.
3. Attached hereto as Annex II is a true, correct and complete copy of
the By-laws of the Indenture Trustee as in effect on the Original
Issue Date.
4. The Notes issued by the Trust have been duly authenticated by the
Indenture Trustee.
By: [Name], in [his/her] capacity as an
officer of Citibank, N.A.,
as indenture trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-1
EXHIBIT C
TRUSTEE OFFICER'S CERTIFICATE
I, [Name], an officer of U.S. Bank National Association, as trustee (the
"Trustee"), hereby certify that:
1. Each of the persons named on Annex I hereto has been duly elected or
appointed and is duly qualified as an officer of the Trustee on the
Original Issue Date, holding the office or offices set forth opposite
his or her name, and the signature set forth opposite his or her name
is a specimen of his or her genuine signature.
2. Attached hereto as Annex II is a true, correct and complete copy of
the By-laws of the Trustee as in effect on the Original Issue Date.
By: [Name], in [his/her] capacity as
an officer of U.S. Bank National
Association, as trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-1
