Exhibit 4.1
STANDARD INDENTURE TERMS
WITH RESPECT TO
ING USA GLOBAL FUNDING TRUSTS
SECURED MEDIUM-TERM NOTES AND
ING(SM) USA CORENOTES(R)
DATED AS OF SEPTEMBER 8, 2006
"ING(SM)" is a service mark of ING Groep N.V. and is used under license.
"CoreNotes(R)" is a registered service mark of Merrill Lynch & Co., Inc.
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions ................................................. 1
SECTION 1.02. Compliance Certificates and Opinions ........................ 12
SECTION 1.03. Form of Documents Delivered to Indenture Trustee ............ 13
SECTION 1.04. Acts of Holders ............................................. 14
SECTION 1.05. Notices ..................................................... 16
SECTION 1.06. Notice to Holders; Waiver ................................... 17
SECTION 1.07. Severability ................................................ 18
SECTION 1.08. Successors and Assigns ...................................... 18
SECTION 1.09. Benefits of Indenture ....................................... 18
SECTION 1.10. Language of Notices ......................................... 18
SECTION 1.11. Governing Law ............................................... 18
SECTION 1.12. Waiver of Jury Trial ........................................ 19
SECTION 1.13. Counterparts ................................................ 19
SECTION 1.14. Third Party Beneficiaries ................................... 19
SECTION 1.15. Conflict with Trust Indenture Act ........................... 19
ARTICLE 2
THE NOTES
SECTION 2.01. Forms Generally ............................................. 20
SECTION 2.02. No Limitation on Aggregate Principal Amount of Notes ........ 22
SECTION 2.03. Listing ..................................................... 22
SECTION 2.04. Redemption and Repayment .................................... 22
SECTION 2.05. Execution, Authentication and Delivery Generally ............ 24
SECTION 2.06. Registration ................................................ 27
SECTION 2.07. Transfer .................................................... 28
SECTION 2.08. Mutilated, Destroyed, Lost and Stolen Notes ................. 28
SECTION 2.09. Payment of Interest; Rights To Interest Preserved ........... 29
SECTION 2.10. Cancellation ................................................ 30
SECTION 2.11. Persons Deemed Owners ....................................... 30
SECTION 2.12. Tax Treatment; Tax Returns and Reports ...................... 30
SECTION 2.13. No Association .............................................. 31
SECTION 2.14. Administrative Procedures ................................... 31
ARTICLE 3
COVENANTS, REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Payment of Principal and any Premium, Interest and
Additional Amounts ..................................................... 31
SECTION 3.02. Collection Account .......................................... 32
SECTION 3.03. Agreements of the Paying Agent .............................. 32
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SECTION 3.04. Maintenance of Office or Agency ............................. 34
SECTION 3.05. Duties of the Agents ........................................ 35
SECTION 3.06. Duties of the Transfer Agent ................................ 36
SECTION 3.07. Duties of the Registrar ..................................... 36
SECTION 3.08. Unclaimed Monies ............................................ 37
SECTION 3.09. Protection of Collateral .................................... 38
SECTION 3.10. Opinions as to Collateral; Annual Statement as
to Compliance .......................................................... 39
SECTION 3.11. Performance of Obligations .................................. 41
SECTION 3.12. Existence ................................................... 41
SECTION 3.13. Reports; Financial Information; Notices of Defaults ......... 42
SECTION 3.14. Payment of Taxes and Other Claims ........................... 43
SECTION 3.15. Negative Covenants .......................................... 44
SECTION 3.16. Non-Petition ................................................ 46
SECTION 3.17. Title to the Collateral ..................................... 46
SECTION 3.18. Withholding and Payment of Additional Amounts ............... 46
SECTION 3.19. Additional Representations and Warranties ................... 48
SECTION 3.20. Ancillary Documents ......................................... 50
ARTICLE 4
GRANTING OF SECURITY INTEREST AND ASSIGNMENT FOR COLLATERAL PURPOSES
SECTION 4.01. Creation .................................................... 50
SECTION 4.02. Scope ....................................................... 50
SECTION 4.03. Termination of Security Interest ............................ 52
ARTICLE 5
SATISFACTION AND DISCHARGE; SUBROGATION
SECTION 5.01. Satisfaction and Discharge of Indenture ..................... 52
SECTION 5.02. Application of Trust Money .................................. 53
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default ........................................... 53
SECTION 6.02. Acceleration of Maturity Date; Rescission and Annulment ..... 55
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement ........ 56
SECTION 6.04. Indenture Trustee May File Proofs of Claim .................. 57
SECTION 6.05. Indenture Trustee May Enforce Claims Without
Possession of Notes .................................................... 57
SECTION 6.06. Application of Money Collected .............................. 58
SECTION 6.07. Limitation on Suits ......................................... 58
SECTION 6.08. Unconditional Rights of Holders to Receive Payments ......... 59
SECTION 6.09. Restoration of Rights and Remedies .......................... 59
SECTION 6.10. Rights and Remedies Cumulative .............................. 59
SECTION 6.11. Delay or Omission Not Waiver ................................ 60
SECTION 6.12. Control by Holders .......................................... 60
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SECTION 6.13. Waiver of Past Defaults ..................................... 60
SECTION 6.14. Undertaking for Costs ....................................... 60
SECTION 6.15. Waiver of Stay or Extension Laws ............................ 61
ARTICLE 7
THE INDENTURE TRUSTEE AND OTHER AGENTS
SECTION 7.01. Duties of Indenture Trustee ................................. 61
SECTION 7.02. No Liability to Invest ...................................... 63
SECTION 7.03. Performance Upon Default .................................... 63
SECTION 7.04. No Assumption by Paying Agent, Transfer Agent, Calculation
Agent or Registrar ..................................................... 63
SECTION 7.05. Notice of Default ........................................... 63
SECTION 7.06. Rights of Indenture Trustee ................................. 63
SECTION 7.07. Not Responsible for Recitals or Issuance of Notes ........... 66
SECTION 7.08. Indenture Trustee May Hold Notes ............................ 66
SECTION 7.09. Money Held in Trust ......................................... 66
SECTION 7.10. Compensation and Reimbursement .............................. 66
SECTION 7.11. Eligibility ................................................. 67
SECTION 7.12. Resignation and Removal; Appointment of Successor ........... 68
SECTION 7.13. Acceptance of Appointment by Successor ...................... 69
SECTION 7.14. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee .......................................... 69
SECTION 7.15. Co-trustees ................................................. 70
SECTION 7.16. Appointment and Duties of the Calculation Agent ............. 71
SECTION 7.17. Changes in Agents ........................................... 72
SECTION 7.18. Limitation of Trustee Liability ............................. 74
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Holders .......... 74
SECTION 8.02. Supplemental Indenture With Consent of Holders .............. 75
SECTION 8.03. Execution of Supplemental Indentures ........................ 77
SECTION 8.04. Effect of Supplemental Indenture ............................ 77
SECTION 8.05. Reference in Notes to Supplemental Indentures ............... 77
SECTION 8.06. Conformity with Trust Indenture Act ......................... 77
ARTICLE 9
NON-RECOURSE PROVISIONS
SECTION 9.01. Nonrecourse Enforcement ..................................... 77
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ARTICLE 10
MEETINGS OF HOLDERS OF NOTES
SECTION 10.01. Purposes for Which Meetings May be Called .................. 78
SECTION 10.02. Call, Notice and Place of Meetings ......................... 78
SECTION 10.03. Persons Entitled to Vote at Meetings ....................... 79
SECTION 10.04. Quorum; Action ............................................. 79
SECTION 10.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings ................................................ 80
SECTION 10.06. Counting Votes and Recording Action of Meetings ............ 81
ARTICLE 11
NOTES IN FOREIGN CURRENCIES
SECTION 11.01. Notes in Foreign Currencies ................................ 81
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STANDARD INDENTURE TERMS
This document constitutes the Standard Indenture Terms, dated as of
September 8, 2006, which are incorporated by reference in the Indenture
(specified in Section B of the Omnibus Instrument, as defined below), by and
among the Trust named in the Omnibus Instrument and the Indenture Trustee,
Registrar, Transfer Agent, Paying Agent and Calculation Agent for such Trust, in
connection with the Program (all as defined in the Indenture).
These Standard Indenture Terms shall be of no force and effect unless and
until incorporated by reference into, and then only to the extent not modified
by, such Indenture.
The following terms and provisions shall govern the Notes subject to
contrary terms and provisions expressly adopted in such Indenture, any
supplemental indenture or the Notes, which contrary terms shall be controlling.
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of the Indenture, of all
indentures supplemental to the Indenture and of all Notes issued under the
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in the Indenture have the meanings assigned to
them in this Article 1, and include the plural as well as the singular;
(b) all accounting terms not otherwise defined in the Indenture have
the meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise expressly provided in
the Indenture, the term "generally accepted accounting principles" with respect
to any computation required or permitted under the Indenture shall mean such
accounting principles as are generally accepted at the date of such computation
in the United States;
(c) the word "including" shall be construed to be followed by the
words "without limitation";
(d) Article and Section headings are for the convenience of the reader
and shall not be considered in interpreting the Indenture or the intent of the
parties to the Indenture;
(e) the words "hereby," "herein," "hereof" and "hereunder" and other
words of similar import refer to the Indenture as a whole and not to any
particular Article, Section, Exhibit or other subdivision; and
(f) references in the Indenture to Articles, Sections, Exhibits and
Schedules shall refer respectively to Articles, Sections, Exhibits and Schedules
of these Standard Indenture Terms, unless otherwise expressly provided.
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"ACT", with respect to any Holder, has the meaning set forth in
Section 1.04.
"ADDITIONAL AMOUNTS" means additional amounts that are required
by the Indenture or the Notes to be paid by the Trust to Holders
pursuant to Section 3.18 or additional amounts that are required
pursuant to the Funding Agreement, under circumstances specified
therein, to be paid by ING USA to the Funding Agreement Holder, to
compensate for any withholding or deduction for or on the account of
any present or future taxes, duties, levies, assessments or other
governmental charges of whatever nature imposed or levied on payments
in respect of such Notes or Funding Agreement, as applicable, by or on
behalf of any governmental authority in the United States having the
power to tax, so that the net amount received by the Holders or the
Funding Agreement Holder will equal the amount that would have been
received under such Notes or Funding Agreement, as applicable, had no
such deduction or withholding been required.
"AFFILIATE" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with, that Person and, in the case of an
individual, any spouse or other member of that individual's immediate
family. For the purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by" and
"under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that Person, whether
through the ownership of voting securities or by contract or
otherwise.
"AGENT" means any of the Registrar, Transfer Agent, Paying Agent
or Calculation Agent.
"AUTHORIZED NEWSPAPER" means a newspaper, in an official language
of the place of publication or in the English language, customarily
published on each day that is a business day in the place of
publication, whether or not published on days that are not business
days in the place of publication, and of general circulation in each
place in connection with which the term is used or in the financial
community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the
same city meeting the foregoing requirements and, in each case, on any
day that is a business day in the place of publication.
"AUTHORIZED SIGNATORIES" mean Responsible Officers authorized to
execute documents on behalf of the Trust.
"BANKING DAY" means a day (other than a Saturday or Sunday) on
which commercial banks are generally open for business (including
dealings in foreign exchange and foreign currency deposits) in the
place where the specified office of the Paying Agent or, as the case
may be, the Registrar is located.
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"BUSINESS DAY" means (except as otherwise specified in the
Pricing Supplement) (i) for any Note, any day, other than a Saturday
or Sunday, that is neither a legal holiday nor a day on which
commercial banks are authorized or required by law, regulation or
executive order to close in The City of New York, (ii) for LIBOR Notes
only, any day on which commercial banks are open for business
(including dealings in the LIBOR Currency) in London, England, (iii)
for Notes that have a Specified Currency other than U.S. Dollars only,
and other than Notes denominated in euros, any day that is not a day
on which commercial banks are authorized or required by law,
regulation or executive order to close in the Principal Financial
Center of the country issuing the Specified Currency, and (iv) for
Notes that have euros as the Specified Currency only a day on which
the TARGET System is open.
"CALCULATION AGENT" means the institution appointed as
calculation agent for the Notes and named as such in the relevant
Pricing Supplement or its successors or assigns. For such purpose, the
Paying Agent accepts its appointment as the initial Calculation Agent
pursuant to Section 7.16.
"CLEARING SYSTEM" means DTC and any other clearing system
specified in the relevant Pricing Supplement.
"CODE" means the Internal Revenue Code of 1986, as amended,
including any successor or amendatory statutes and any applicable
rules, regulations, notices or orders promulgated thereunder.
"COLLATERAL" means the right, title, benefits, remedies and
interests of the Trust in, to and under (i) the Funding Agreement,
(ii) all Proceeds of the Funding Agreement and all amounts and
instruments on deposit from time to time in the Collection Account,
(iii) all books and records pertaining to the Funding Agreement, and
(iv) all rights of the Trust pertaining to the foregoing.
"COLLECTION ACCOUNT" means a non-interest bearing account with
the Indenture Trustee in the name of the Trust or such other account
with a depositary institution that is rated at least AA- or Aa3 by a
nationally recognized statistical rating organization as may be
designated by the Trustee, which account shall be segregated from
other accounts held by the Indenture Trustee or such other depositary
institution.
"COMMISSION" means the Securities and Exchange Commission or any
successor body performing such duties of the Commission.
"CONTINGENT OBLIGATION" means, as applied to any Person, without
duplication, any direct or indirect liability, contingent or
otherwise, of that Person (i) with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation of another if the
primary purpose or intent thereof by the Person incurring the
Contingent Obligation is to provide assurance to the obligee of such
obligation of another that such obligation of another will be paid or
discharged, or
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that any agreements relating thereto will be complied with, or that
the holders of such obligation will be protected (in whole or in part)
against loss in respect thereof, (ii) under any letter of credit
issued for the account of or for which that Person is otherwise liable
for reimbursement thereof, (iii) under agreements providing for the
hedging or limitation of interest rate or currency risk, (iv) under
any performance bond or other surety arrangement, (v) under any direct
or indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business), co-making, discounting
with recourse or sale with recourse by such Person of the obligation
of another, or (vi) for the obligations of another through any
agreement (contingent or otherwise).
"CORPORATE TRUST OFFICE" means the principal office of the
Indenture Trustee at which its corporate trust business shall, at any
particular time, be administered, which office at the date hereof is
located as indicated in Section 1.05, or such other address as the
Indenture Trustee may designate from time to time by notice to the
Holders and ING USA, or the principal corporate trust office of any
successor Indenture Trustee (or such other address as such successor
Indenture Trustee may designate from time to time by notice to the
Holders and ING USA).
"CUSTODIAN" means U.S. Bank National Association and its
permitted successors and assigns under that certain custodial
agreement, by and among the Custodian, the Trustee and the Indenture
Trustee, dated as of May 19, 2005.
"DEFAULT" means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"DEFAULTED INTEREST" has the meaning set forth in Section 2.9.
"DEFINITIVE NOTE" means a Note issued in certificated and
registered form.
"DEPOSITARY" means the Person designated as Depositary by the
Trust pursuant to the Indenture, which Person, if required by any
applicable law, regulation or exchange requirement, must be a clearing
agency registered under the Securities Exchange Act and, if so
provided with respect to any Note, any successor to such Person.
Initially, the Depositary shall be DTC.
"DISTRIBUTION AGREEMENT" means that certain Distribution
Agreement, dated [__], by and among ING USA and the agents named
therein and acknowledged and agreed to by the Trust, relating to the
issuance and sale of the Notes under the Program, as the same may be
amended, modified or supplemented from time to time.
"DOLLARS", "$", "U.S. $", "UNITED STATES DOLLARS" and "U.S.
DOLLARS" mean such coin or currency of the United States as at the
time shall be legal tender for the payment of public or private debts.
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"DTC" means The Depository Trust Company, New York, New York, and
its successors and assigns.
"EUROPEAN UNION DIRECTIVE" means any law, regulation, directive
or any interpretation by the European Union or a member nation of the
European Union which requires the withholding or deduction of any
amounts payable under the Notes, the Indenture or the Funding
Agreement.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXPENSE AND INDEMNITY AGREEMENT" means, as applicable, (i) that
certain Expense and Indemnity Agreement, dated May 25, 2005, by and
between ING USA and the Trustee, on behalf of itself and each trust
organized under the Program, including the Trust, (ii) that certain
Expense and Indemnity Agreement, dated May 25, 2005, by and between
ING USA and the Custodian, (iii) that certain Expense and Indemnity
Agreement, to be dated September 8, 2006, by and between ING USA and
the Indenture Trustee, and (iv) that certain Expense and Indemnity
Agreement, dated May 25, 2005, by and between ING USA and the Trust
Beneficial Owner, as each may be amended, modified or supplemented
from time to time.
"FUNDING AGREEMENT" means that certain funding agreement
designated in the Indenture, entered into by and between ING USA and
the Trust, as it may be modified, restated, replaced, supplemented or
otherwise amended from time to time in accordance with the terms
thereof.
"FUNDING AGREEMENT HOLDER" means, with respect to the Notes, the
"Owner" as specified in the Funding Agreement.
"GLOBAL NOTE" means a Note issued in book-entry and registered
form.
"HOLDER" means the Person in whose name a Note or Notes is
registered in the Register.
"INDEBTEDNESS" means, as applied to any Person, (i) all
indebtedness for borrowed money or for the deferred purchase price of
property or services in respect of which such Person is liable,
contingent or otherwise, or in respect of which such Person otherwise
assures a creditor against loss (excluding trade accounts payable and
accrued expenses arising in the ordinary course of business as
determined in good faith by such Person), (ii) that portion of
obligations with respect to capital leases which is properly
classified as a liability on a balance sheet in conformity with
generally accepted accounting principles, (iii) obligations evidenced
by bonds, notes, debentures or similar instruments of such Person, and
notes payable by such Person and drafts accepted by such Person
representing extensions of credit whether or not representing
obligations for borrowed money, including the face amount of all
drafts drawn thereunder, and (iv) all indebtedness secured by any Lien
on any property or asset owned or held
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by that Person regardless of whether the indebtedness secured thereby
shall have been assumed by that Person or is non-recourse to the
credit of that Person.
"INDENTURE" means that certain Indenture, contained in, and dated
as of the date specified in the Omnibus Instrument, by and among the
Indenture Trustee, Registrar, Transfer Agent, Paying Agent and
Calculation Agent and the Trust, as may be amended, modified or
supplemented from time to time, which incorporates by reference these
Standard Indenture Terms, and shall include the terms of the Notes
established as contemplated hereunder and thereunder.
"INDENTURE TRUSTEE" means, unless otherwise specified in the
Indenture, Citibank, N.A. and, subject to the provisions of Article 7,
shall also include its successors and assigns as Indenture Trustee
under the Indenture.
"ING USA" means ING USA Annuity and Life Insurance Company, an
Iowa insurance company, or any successor thereto.
"INTEREST PAYMENT DATE" means each date on which interest is due
and payable to the Holders of the Notes as specified in the Indenture.
"INVESTMENT COMPANY ACT" means the Investment Company Act of
1940, as it may be amended or supplemented from time to time, and any
successor statute thereto, and the rules, regulations and published
interpretations of the Commission promulgated thereunder from time to
time.
"LIBOR CURRENCY" means the currency specified in the Pricing
Supplement as to which LIBOR (as defined in the Notes) shall be
calculated or, if no currency is specified in the Pricing Supplement,
United States Dollars.
"LIBOR NOTES" means Notes that bear interest based on LIBOR (as
defined in the Notes).
"LICENSE AGREEMENT" means that certain Trademark License
Agreement by and between the Trustee, on behalf of each Trust, and ING
Groep N.V., dated as of May 19, 2005, as the same may be amended,
modified or supplemented from time to time.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including without
limitation any conditional sale or other title retention agreement,
any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under
the UCC or comparable law of any jurisdiction).
"MATURITY DATE" means the date on which the principal of the
Notes becomes due and payable as provided therein or in the Indenture,
whether at the
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Stated Maturity Date thereof, by declaration of acceleration, notice
of redemption of the Trust, notice of the Holder's option to elect
repayment or otherwise.
"NONRECOURSE PARTIES" has the meaning set forth in Section 9.01.
"NOTE" means any secured note of the Trust designated in the
Indenture and authenticated and delivered under the Indenture, which
is in registered form and may be represented by a Global Note or a
Definitive Note, and which shall be substantially in the forms
attached as Exhibit A-1 and Exhibit A-2 to these Standard Indenture
Terms and "NOTES" means the secured notes of the Trust represented by
such Note.
"NOTICE OF DEFAULT" has the meaning set forth in Section 6.01.
"OFFICE OR AGENCY" means an office or agency of the Trust, the
Indenture Trustee, the Paying Agent or the Registrar, as the case may
be, maintained or designated as the Place of Payment for the Notes
pursuant to Section 3.04 or any other office or agency of the Trust,
Indenture Trustee, Paying Agent or Registrar, as the case may be,
maintained or designated for such Notes pursuant to Section 3.04.
"OMNIBUS INSTRUMENT" means the omnibus instrument pursuant to
which certain Program Documents are executed.
"OPINION OF COUNSEL" means a written opinion addressed to the
Indenture Trustee (among other addressees) by legal counsel, who may
be internal legal counsel to ING USA, who may, except as otherwise
expressly provided in the Indenture, be counsel for the Trust or ING
USA or other counsel and who shall be reasonably satisfactory to the
Indenture Trustee.
"ORIGINAL ISSUE DATE" with respect to the Notes means the
original issue date of the Notes, as specified in the Pricing
Supplement.
"OUTSTANDING" means, as of any date of determination, all of the
Notes theretofore authenticated and delivered under the Indenture or
in one or more indentures supplemental to the Indenture, except:
(i) Notes theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation;
(ii) Notes or portions thereof for the payment or redemption
of which money in the necessary amount has been theretofore deposited
with the Indenture Trustee or any Paying Agent in trust for the
Holders of the Notes, provided that, if the Notes are to be redeemed,
notice of such redemption has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made;
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(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to the Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a holder in due course;
(iv) Notes alleged to have been destroyed, lost, stolen or
mutilated and surrendered to the Indenture Trustee for which either
replacement Notes have been issued or payment has been made as
provided for in Section 2.08 unless proof satisfactory to the
Indenture Trustee is presented that any such Notes are held by a
holder in due course; and
(v) Notes represented by Global Notes to the extent that
they shall have been duly exchanged for Definitive Notes pursuant to
the Indenture unless proof satisfactory to the Indenture Trustee is
presented that any such Notes are held by a holder in due course;
provided further, however, that in determining whether the Holders of
the requisite percentage of the principal amount of the Outstanding
Notes have given any request, demand, authorization, direction,
notice, consent or waiver under the Indenture, Notes owned by the
Trust or any Affiliate of the Trust shall be disregarded and deemed
not to be Outstanding, except that in determining whether the
Indenture Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Notes that the Indenture Trustee actually knows to be so owned shall
be so disregarded. Notes so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee that the pledgee is entitled so
to act with respect to such Notes and that the pledgee is not the
Trust or any Affiliate of the Trust.
"PARTICIPANT" means, with respect to the Depositary or any other
Clearing System, a Person who has an account with the Depositary or
such other Clearing System, respectively.
"PAYING AGENT" means, unless otherwise specified in the Indenture
or a supplemental indenture, the Indenture Trustee, in its capacity as
paying agent under the Indenture or its successors or assigns.
"PERSON" means any natural person, corporation, limited
partnership, general partnership, joint stock company, joint venture,
association, company, limited liability company, trust (including any
beneficiary thereof), bank, trust company, land trust, business trust
or other organization, whether or not a legal entity, and governments
and agencies and political subdivisions thereof.
"PLACE OF PAYMENT" means the place where the principal of,
premium, if any, and interest on the Notes are payable which, unless
otherwise specified in the Indenture, shall be the address specified
in Section 1.05 for the Indenture Trustee.
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"PRICING SUPPLEMENT" means the pricing supplement attached to the
Omnibus Instrument as Exhibit C as prepared by the Trust in connection
with the issuance and sale by the Trust of the Notes and agreed to by
ING USA, the Trust and the Relevant Agents appointed under the
Distribution Agreement, as such Pricing Supplement may be amended,
modified, supplemented or replaced from time to time.
"PRINCIPAL FINANCIAL CENTER" means, as applicable, the capital
city of the country issuing the Specified Currency or the capital city
of the country to which the LIBOR Currency relates; provided, however,
that with respect to United States Dollars, Australian dollars,
Canadian dollars, the euro, South African rand and Swiss francs, the
"Principal Financial Center" shall be The City of New York, Sydney,
Toronto, London (solely in the case of the LIBOR Currency),
Johannesburg and Zurich, respectively.
"PROCEEDS" means all of the proceeds of, and all other profits,
products, rents, principal payments, interest payments or other
receipts, in whatever form, arising from the collection, sale, lease,
exchange, assignment, licensing or other disposition or maturity of,
or other realization upon, the Funding Agreement, including without
limitation all claims of the Trust against third parties for loss of,
damage to or destruction of, or for proceeds payable under, the
Funding Agreement, whether now existing or hereafter arising.
"PROGRAM" means, collectively, the Secured Medium-Term Notes
Program and the ING(SM) USA CoreNotes(R) Program, in each case, of the
ING USA Global Funding Trusts.
"PROGRAM DOCUMENTS" means the Indenture, the Notes, the Trust
Agreement, the Funding Agreement, the Distribution Agreement, the
License Agreement and each Expense and Indemnity Agreement and any
other documents or instruments entered into by, with respect to, or on
behalf of, the Trust.
"RATING AGENCY" means any rating agency that has rated the
Program or the Notes.
"REDEMPTION PRICE" means the price at which the Notes are to be
redeemed pursuant to Section 2.04, as set forth in the applicable
Pricing Supplement or a supplemental indenture.
"REGISTER" has the meaning set forth in Section 2.06.
"REGISTRAR" means, unless otherwise specified in the Indenture or
a supplemental indenture, the Indenture Trustee, in its capacity as
registrar under the Indenture, or its successors or assigns.
"REGISTRATION STATEMENT" means (a) a registration statement on
Form S-3 or other appropriate form, including the prospectus,
prospectus supplements and the exhibits included therein and including
any documents or filings incorporated
9
by reference therein, any pre-effective or post-effective amendments
thereto and any registration statements filed subsequent thereto under
rules promulgated under the Securities Act, relating to the
registration under the Securities Act of the Notes and the Funding
Agreement, (b) any preliminary prospectus or prospectus supplements
thereto relating to the Notes whether or not required to be filed
pursuant to the Securities Act and any documents or filings
incorporated therein by reference, and (c) a registration statement
and such other documents, forms or filings as may be required by the
Securities Act or the Trust Indenture Act or other securities laws, in
each case relating to the Notes.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date means the date specified for that purpose in the Notes or
the Indenture.
"RELEVANT AGENTS" means the agent or agents (in a firm commitment
offering of Notes or in a best efforts offering of Notes) appointed
pursuant to the Distribution Agreement.
"RESPONSIBLE OFFICER" means, with respect to the Indenture
Trustee or the Trustee, any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, or any other officer of the
Indenture Trustee or the Trustee, as the case may be, customarily
performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular
subject, and also, with respect to the Trustee, having direct
responsibility for the administration of the Trust, or with respect to
the Indenture Trustee, having direct responsibility for the
administration of the Indenture.
"SECURED OBLIGATIONS" means the obligations of the Trust secured
under the Notes and the Indenture, including (i) all principal of,
premium, if any, and interest (including, without limitation, any
interest which accrues after the commencement of any case, proceeding
or other action relating to the bankruptcy, insolvency or
reorganization of the Trust, whether or not allowed or allowable as a
claim in any such proceeding) on such Notes or pursuant to the
Indenture, (ii) all other amounts payable by the Trust under the
Indenture or under such Notes including all Additional Amounts (if
applicable) and all costs and expenses (including without limitation
attorneys' fees) incurred by each of the Indenture Trustee, the
Trustee and the Custodian (to the extent not paid pursuant to the
applicable Expense and Indemnity Agreement) and (iii) any renewals or
extensions of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as it may be
amended or supplemented from time to time, and any successor statute
thereto, and the rules, regulations and published interpretations of
the Commission promulgated thereunder from time to time.
10
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as it may be amended or supplemented from time to time, and any
successor statute thereto, and the rules, regulations and published
interpretations of the Commission promulgated thereunder from time to
time.
"SPECIAL RECORD DATE" means a date fixed by the Indenture Trustee
pursuant to Section 2.09 for the payment of any Defaulted Interest on
any Note.
"SPECIFIED CURRENCY" means the currency in which the Notes are
denominated (or, if such currency is no longer legal tender for the
payment of public and private debts in the country issuing such
currency or, in the case of the euro, in the member states of the
European Union that have adopted the single currency in accordance
with the treaty establishing the European Community, as amended by the
treaty on European Union, such currency which is then such legal
tender).
"STANDARD INDENTURE TERMS" means these Standard Indenture Terms,
dated as of September 8, 2006.
"STATED MATURITY DATE" means the date specified in the Notes, as
the fixed date on which the principal of such Notes is due and
payable, which date will be a day between nine months and thirty years
from the date of original issuance of the Notes and be on the last
scheduled Interest Payment Date.
"STERLING" means such coin or currency of the United Kingdom as
at the time shall be legal tender for the payment of public or private
debts.
"TARGET SYSTEM" means the Trans-European Automated Real-Time
Gross Settlement Express Transfer System.
"TERMS AGREEMENT" has the meaning set forth in the Distribution
Agreement.
"TRANSFER AGENT" means, unless otherwise specified in the
Indenture or a supplemental indenture, the Indenture Trustee, in its
capacity as transfer agent under the Indenture or its successors or
assigns.
"TREASURY REGULATIONS" means the regulations promulgated by the
United States Treasury Department pursuant to the Code.
"TRUST" means the ING USA Global Funding Trust named in the
Omnibus Instrument, which shall be a trust, formed under the laws of
the jurisdiction specified in the Trust Agreement, together with its
permitted successors and assigns; provided, however, unless the
context requires otherwise, all references in the Indenture to the
"Trust" shall also include the Trustee, on behalf of the Trust.
11
"TRUST AGREEMENT" means that certain Trust Agreement, contained
in, and dated as of the date specified in, the Omnibus Instrument, by
and between the Trustee and the Trust Beneficial Owner, declaring and
establishing the Trust, as may be amended, modified or supplemented
from time to time.
"TRUST BENEFICIAL INTEREST" has the meaning set forth in the
Trust Agreement.
"TRUST BENEFICIAL OWNER" means the beneficial owner of the Trust
Beneficial Interest.
"TRUST CERTIFICATE" means a certificate signed by one or more
Responsible Officers of the Trustee on behalf of the Trust and
delivered to the Indenture Trustee.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
it may be amended or supplemented from time to time, and any successor
statute thereto, and the rules, regulations and published
interpretations of the Commission promulgated thereunder from time to
time.
"TRUST ORDER" or "TRUST REQUEST" means a written statement,
request or order of the Trust signed in its name by one or more
Responsible Officers of the Trustee and delivered to the Indenture
Trustee.
"TRUSTEE" means, unless otherwise specified in the Trust
Agreement, U.S. Bank National Association, not in its individual
capacity, but solely as the Trustee under the Trust Agreement, and
shall also include its permitted successors and assigns under the
Trust Agreement.
"UCC" means the Uniform Commercial Code, as from time to time in
effect in the State of New York; provided that, with respect to the
perfection, effect of perfection or non-perfection, or priority of any
security interest in the Collateral, "UCC" shall mean the Uniform
Commercial Code, as from time to time in effect in the applicable
jurisdiction whose law governs such perfection, non-perfection or
priority.
"UNITED STATES" means the United States of America (including the
States and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
SECTION 1.02. Compliance Certificates and Opinions. Upon any application or
request by the Trust to the Indenture Trustee to take any action under any
provision of the Indenture, the Trust shall furnish to the Indenture Trustee a
Trust Certificate stating that all conditions precedent, if any, provided for in
the Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of the Indenture, no additional
certificate or opinion need be furnished.
12
SECTION 1.03. Form of Documents Delivered to Indenture Trustee.
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of the Trust may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless the Trustee knows that the certificate or
opinion or representations with respect to the matters upon which its
certificate or opinion is based are erroneous. Any such certificate or opinion
or any Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, the Trustee
stating that the information with respect to such factual matters is in the
possession of the Trustee, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous. Any
Opinion of Counsel may be based on the written opinion of other counsel, in
which event such Opinion of Counsel shall be accompanied by a copy of such other
counsel's opinion and shall include a statement to the effect that such counsel
believes that such counsel and the Indenture Trustee may reasonably rely upon
the opinion of such other counsel. Any certificate or opinion of the Trust or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of ING USA or the Trust, unless the Trustee knows that
the certificate or opinion or representations with respect to the accounting
matters upon which its certificate or opinion is based are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under the Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Wherever in the Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Trust
shall deliver any document as a condition of the granting of such application,
or as evidence of compliance with any term of the Indenture, it is intended that
the truth and accuracy, at the time of the granting of such application or at
the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Trust to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to limit the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Section 7.01.
(e) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in the Indenture (including one furnished
pursuant to specific requirements of the Indenture relating to a particular
application or request) shall substantially include:
13
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions in the Indenture relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by the Indenture to be given or taken by any
Holder may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holder in person or by one or more
agents duly appointed in writing. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by the Indenture to be given or
taken by Holders may, alternatively, be embodied in and evidenced by the record
of Holders of Notes voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Notes duly called and held in
accordance with the provisions of Article 10, or a combination of such
instruments and any such record. Except as otherwise expressly provided in the
Indenture, such action shall become effective when such instrument or
instruments or record or both are delivered to the Indenture Trustee. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are sometimes referred to in the Indenture as the "ACT"
of the Holders signing such instrument or instruments or so voting at any
meeting. Proof of execution of any such instrument or of writing appointing any
such agent, or of the holding by any Person of a Note, shall be sufficient for
any purpose of the Indenture and (subject to Section 7.01) conclusive in favor
of the Indenture Trustee, and the Trust, if made in the manner provided in this
Section 1.04. The record of any meeting of Holders of Notes shall be proved in
the manner provided in Section 10.06. Without limiting the generality of this
Section 1.04, unless otherwise provided in or pursuant to the Indenture, a
Clearing System that is or whose nominee is a Holder of a Global Note may allow
its account holders who have beneficial interests in such Global Note credited
to accounts with such Clearing System to direct such Clearing System in taking
such action through such Clearing System's standing instructions and customary
practices. The Clearing System shall report only one result of its solicitation
of proxies to the Indenture Trustee.
(b) Subject to Section 7.01, the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or
14
her the execution thereof. Whenever such execution is by a signer acting in a
capacity other than his or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may be proved in any other manner
that the Indenture Trustee deems sufficient.
(c) The ownership, principal amount and serial numbers of Notes held
by any Person, and the date of the commencement and the date of the termination
of holding the same, shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Indenture Trustee or the
Trust in reliance thereon, whether or not notation of such action is made upon
such Note.
(e) Except as provided in Section 1.04(f), if the Trust shall solicit
from the Holders of Notes any Act referred to in Section 1.04(a), the Trust may,
at its option, fix in advance a record date for the determination of Holders
entitled to vote or consent in connection with any such Act, but the Trust shall
have no obligation to do so. If such record date is fixed, such Act may be given
after such record date, but only the Holders of record at the close of business
on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding Notes
have authorized or agreed or consented to such Act, and for that purpose the
Outstanding Notes shall be computed as of such record date; provided, that no
such Act by Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of the Indenture not later
than six months after the record date. Nothing in this Section 1.04(e) shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Notes on the date such action is taken. Promptly
after any record date is set pursuant to this Section 1.04(e), the Trust shall
cause notice of such record date and the proposed action by Holders to be given
to the Indenture Trustee in writing and to each Holder of the Notes in the
manner set forth in Section 1.06.
(f) The Indenture Trustee may set any day as a record date for the
purpose of determining the Holders entitled to join in the giving or making of
(i) any notice delivered pursuant to Section 6.01(d), (ii) any declaration of
acceleration referred to in Section 6.02, (iii) any request to institute
proceedings referred to in Section 6.07(b) or (iv) any direction referred to in
Section 6.12. If such a record date is fixed pursuant to this Section 1.04(f),
the relevant action may be taken or given after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Notes have authorized or agreed or consented to such
action, and for that purpose the Outstanding Notes shall be computed as of such
record date; provided, that no such action by Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the provisions
of the Indenture not later than six months after the record date. Nothing in
this Section 1.04(f) shall be construed to prevent the Indenture Trustee from
setting a new record date for any action for which a record date has previously
been set pursuant to this Section 1.04(f) (whereupon the record date
15
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this Section 1.04(f) shall be construed to
render ineffective any action taken by Holders of the requisite principal amount
of Outstanding Notes on the date such action is taken. Promptly after any record
date is set pursuant to this Section 1.04(f), the Indenture Trustee shall cause
notice of such record date and the proposed action by Holders to be given to the
Trust in writing and to each Holder of the Notes in the manner set forth in
Section 1.06.
SECTION 1.05. Notices. Any request, demand, authorization, direction,
notice, consent, waiver or other action required or permitted by the Indenture
to be made upon, given or furnished to, or filed with, the Indenture Trustee,
the Registrar, the Transfer Agent, the Paying Agent, the Calculation Agent, the
Trust and the Rating Agencies shall be sufficient for every purpose under the
Indenture (unless otherwise expressly provided in the Indenture) if in writing
and sent by fax, or mailed, first-class mail or overnight courier, in each case
postage prepaid, at the address specified in this Section 1.05 or at any other
address previously furnished in writing by one party to the other. Notices to
the Indenture Trustee shall be effective upon receipt.
Such notices shall be addressed
if to the Indenture Trustee, to:
Citibank, N.A.
Agency & Trust
388 Greenwich Street, 14th Floor
New York, New York 10013
Facsimile: (212) 816-5527
Attention: Agency & Trust, ING USA Global Funding Trust
or if Citibank, N.A. is not acting as Indenture Trustee, then to the
Indenture Trustee specified in the Omnibus Instrument.
if to the Registrar, Transfer Agent, Paying Agent and Calculation
Agent, to:
Citibank, N.A.
Agency & Trust
388 Greenwich Street, 14th Floor
New York, New York 10013
Facsimile: (212) 816-5527
Attention: Agency & Trust, ING USA Global Funding Trust
if to the Trustee, to:
U.S. Bank National Association
Corporate Trust Services
209 S. La Salle Street, Suite 300
Chicago, IL 60604
Telephone: (312) 325-8902
Facsimile: (312) 325-8905
16
Attention: Patricia Child, VP
if to the Trust, to:
ING USA Global Funding Trust (followed by the number of the Trust
Designated in the Omnibus Instrument)
c/o U.S. Bank National Association
Corporate Trust Services
209 S. La Salle Street, Suite 300
Chicago, IL 60604
Telephone: (312) 325-8902
Facsimile: (312) 325-8905
Attention: Patricia Child, VP
if to the Rating Agencies, to:
Standard & Poor's Rating Services
55 Water Street
33rd Floor
New York, New York 10041
Facsimile: (212) 438-5215
Attention: Capital Markets
Moody's Investors Service, Inc.
Life Insurance Group
99 Church Street
New York, New York 10007
Facsimile: (212) 553-4805
Attention: ING USA Global Funding Trust
A.M. Best Company
Ambest Road
Oldwick, New Jersey 08858
Facsimile: (908) 439-2237
Attention: Life/Health Division
SECTION 1.06. Notice to Holders; Waiver.
(a) Except as otherwise expressly provided in or pursuant to the
Indenture, notices to Holders required under the Notes shall be sufficiently
given upon the mailing by overnight courier or first-class mail (or equivalent),
or (if posted to an overseas address) by airmail, postage prepaid, of such
notices to each Holder of the Notes at their registered addresses as recorded in
the Register.
(b) Where the Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the
17
event, and such waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Indenture Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver. In any case, neither the failure to give such notice, nor any
defect in any notice to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders, and any notice which is mailed in the
manner provided in the Indenture shall be conclusively presumed to have been
duly given.
(c) In the case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Indenture
Trustee shall constitute a sufficient notification for every purpose under the
Indenture.
SECTION 1.07. Severability. In case any provision in or obligation under
the Indenture or the Notes shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby to the
fullest extent permitted under applicable law.
SECTION 1.08. Successors and Assigns. All covenants, stipulations, promises
and agreements in the Indenture by the Trust shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.09. Benefits of Indenture. Nothing in the Indenture or in any
Note, expressed or implied, shall give to any Person other than the parties
under the Indenture and their successors and the Holders, any legal or equitable
right, remedy or claim under the Indenture.
SECTION 1.10. Language of Notices. Any request, demand, authorization,
direction, notice, consent, election or waiver required or permitted under the
Indenture shall be in the English language, except that, if the Trust so elects,
any published notice may also be in an official language of the country of
publication.
SECTION 1.11. Governing Law.
(a) The Indenture and the Notes (unless otherwise specified in the
Pricing Supplement) shall be governed by, and construed in accordance with, the
laws of the State of New York without regard to conflict of law principles,
except as required by mandatory provisions of law and except to the extent that
the validity or perfection of the Trust's ownership of the Funding Agreement,
the perfection of the Indenture Trustee's security interest therein, or remedies
under the Indenture in respect thereof may be governed by laws of a jurisdiction
other than the State of New York.
(b) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE TRUST, THE ASSETS OF
THE TRUST, THE INDENTURE TRUSTEE, REGISTRAR, TRANSFER AGENT OR PAYING AGENT OR
ANY OTHER AGENT, ARISING OUT OF OR RELATING TO THE INDENTURE, ANY NOTE OR ANY
PORTION OF THE COLLATERAL MAY BE BROUGHT IN A UNITED STATES FEDERAL COURT OF
COMPETENT JURISDICTION LOCATED IN NEW YORK CITY, THE BOROUGH OF MANHATTAN, AND
BY EXECUTION AND DELIVERY OF THE INDENTURE EACH OF
18
THE TRUST, THE INDENTURE TRUSTEE, THE REGISTRAR, THE TRANSFER AGENT, THE PAYING
AGENT AND ANY OTHER AGENT (IN SUCH CAPACITIES) ACCEPT (AND WITH RESPECT TO THE
TRUST, IN CONNECTION WITH ITS PROPERTY ACCEPTS), GENERALLY AND UNCONDITIONALLY,
THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURT AND WAIVE ANY DEFENSE OF
FORUM NON CONVENIENS (EXCEPT TO THE EXTENT A UNITED STATES FEDERAL COURT RAISES
SUCH ISSUE ON ITS OWN MOTION) AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THE INDENTURE, ANY NOTE OR ANY PORTION OF
THE COLLATERAL.
SECTION 1.12. Waiver of Jury Trial. EACH OF THE PARTIES TO THE INDENTURE
HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THE INDENTURE, THE NOTES OR ANY
DEALINGS AMONG THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION. The
scope of this waiver is intended to encompass any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction
including without limitation contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. Each party under the
Indenture acknowledges that this waiver is a material inducement to enter into a
business relationship, that such party has already relied on the waiver in
entering into the Indenture, and that such party will continue to rely on the
waiver in its related future dealings. Each party under the Indenture further
warrants and represents that it has reviewed this waiver with its legal counsel,
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE INDENTURE
OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE INDENTURE. In the event of
litigation, the Indenture may be filed as a written consent to a trial by the
court.
SECTION 1.13. Counterparts. The Indenture and any amendments, waivers,
consents or supplements to the Indenture may be executed in any number of
counterparts, and by different parties to the Indenture in separate
counterparts, and each of which when so executed and delivered shall be deemed
an original, but all such counterparts together shall constitute but one and the
same instrument. The Indenture shall become effective upon the execution of a
counterpart of the Indenture by each of the parties to the Indenture.
SECTION 1.14. Third Party Beneficiaries. The Indenture will inure to the
benefit of and be binding upon the parties to the Indenture, and the Trustee and
their respective successors and permitted assigns.
SECTION 1.15. Conflict with Trust Indenture Act. If any provision of the
Indenture limits, qualifies or conflicts with any duties imposed by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act through operation of
Section 318(c) thereof, such imposed duties shall control.
19
ARTICLE 2
THE NOTES
SECTION 2.01. Forms Generally.
(a) The Notes constitute direct, unconditional, unsubordinated and
secured non-recourse obligations of the Trust and rank equally among themselves.
The Notes shall be in substantially the form set forth in Exhibit A-1 and
Exhibit A-2 attached to these Standard Indenture Terms, as applicable, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required by the Indenture or as may in the Trust's judgment be
necessary, appropriate or convenient to permit such Notes to be issued and sold,
or to comply, or facilitate compliance, with applicable laws, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange on which such Notes may be listed, or as may, consistently
with the Indenture, be determined by the Trustee (based conclusively on the
advice of counsel) as evidenced by its execution thereof. Any portion of the
text of any Note may be set forth on the reverse thereof with an appropriate
reference on the face of the Note.
(b) The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made a part of the Indenture, and, to the extent
applicable, the Indenture Trustee, by its execution and delivery of the
Indenture, and the Trust by its execution and delivery of the Indenture,
expressly agree to such terms and provisions and to be bound thereby.
(c) Except as described in this Section 2.01(c), no Global Note
evidencing any of the Notes and deposited with or on behalf of any Clearing
System shall be exchangeable for Definitive Notes. Subject to the foregoing
sentence, if (i) such Clearing System notifies ING USA that it is unwilling or
unable to continue as Depositary or ING USA becomes aware that the Clearing
System has ceased to be a clearing agency registered under the Securities
Exchange Act and in any such case ING USA fails to appoint a successor
depositary within sixty (60) calendar days after receiving the notice from such
Clearing System or becoming aware that such Clearing System is no longer
registered under the Securities Exchange Act, (ii) an Event of Default shall
have occurred and is continuing with respect to the Notes and the Notes shall
have been accelerated in accordance with their terms or (iii) the Trust shall
have decided in its sole discretion that the Notes should no longer be evidenced
solely by one or more Global Notes, then, pursuant to written instructions by
ING USA to the Indenture Trustee (in the case of clause (i)), or upon written
request of the Holder (or Participant in such Clearing System with an interest
in the Notes) (in the case of clause (ii)), or pursuant to written instructions
by the Trust to the Indenture Trustee and Clearing System (in the case of clause
(iii)):
(A) with respect to each Global Note evidencing such Notes, the Trust
shall execute, and the Indenture Trustee shall authenticate and
deliver, Definitive Notes in authorized denominations in exchange for
the Global Note, in an aggregate principal amount equal to the
Outstanding principal amount of the related Global Note. Upon the
exchange of the Global Note for the Definitive Notes, such Global Note
shall be cancelled by the Registrar. Definitive Notes issued in
exchange for a Global Note pursuant to this Section 2.01(c) shall be
registered in the Register in such names and in such denominations as
the Clearing System for
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such Global Note, pursuant to the instructions from its direct or
indirect Participants or otherwise, shall instruct the Indenture
Trustee, serving as custodian, on behalf of the nominee of the
Depositary, of the Global Note. The Indenture Trustee shall promptly
provide the information to the Registrar. Promptly after the
authentication of the Definitive Notes by the Indenture Trustee, the
Indenture Trustee shall deliver such Definitive Notes to the Holders
of such Notes;
(B) if Definitive Notes are issued in exchange for any portion of a Global
Note after the close of business at the Office or Agency for such Note
where such exchange occurs on (1) any Regular Record Date for such
Notes and before the opening of business at such Office or Agency on
the next Interest Payment Date, or (2) any Special Record Date for
such Notes and before the opening of business at such Office or Agency
on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, interest shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may
be, in respect of such Definitive Notes, but shall be payable on such
Interest Payment Date or proposed date for payment, as the case may
be, only to the Person to whom interest in respect of such portion of
such Global Note shall be payable in accordance with the provisions of
the Indenture; and
(C) if for any reason Definitive Notes are not issued, authenticated and
delivered to the Holders in accordance with paragraph (A) of this
Section 2.01(c), then:
(1) the Clearing System or its successors may provide to
each of its Participants a statement of such Participant's
interest in the Notes evidenced by each Global Note held by such
Clearing System or its successors, together with a copy of such
Global Note; and
(2) subject to the limitations on individual Holder action
contained in the Notes or the Indenture, each such Participant or
its successors and assigns (x) shall have a claim, directly
against the Trust, for the payment of any amount due or to become
due in respect of such Participant's interest in the Notes
evidenced by such Global Note, and shall be empowered to bring
any claim, to the extent of such Participant's interest in the
Notes evidenced by such Global Note and to the exclusion of such
Clearing System or its successors, that as a matter of law could
be brought by the Holder of such Global Note and the Person in
whose name the Notes are registered and (y) may, without the
consent and to the exclusion of such Clearing System or its
successors, file any claim, take any action or institute any
proceeding, directly against the Trust, to compel the payment of
such amount or enforce any such rights, as fully as though the
interest of such Participant in the Notes evidenced by such
Global Note were evidenced by a Definitive Note in such
Participant's actual possession and as if an amount of Notes
equal to such Participant's stated interest were registered in
such Participant's name and without the need to produce such
Global Note in its original form.
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Notwithstanding anything in this paragraph (C) to the contrary, the
Indenture Trustee shall not be required to recognize any account
holder or any of its successors and assigns referred to in said
paragraph as a Holder for any purpose of the Indenture or the Notes
and shall be entitled to treat the Person in whose name the Global
Note is registered as a Holder for all purposes of the Indenture and
the Notes if and until Definitive Notes are issued to and registered
in the names of such Participants or their successors and assigns.
The account records of any Clearing System or its successor shall, in
the absence of manifest error, be conclusive evidence of the identity
of each Participant that has any interest in the Notes evidenced by
the Global Note held by such Clearing System or its successor and the
amount of such interest. Definitive Notes shall be issued only in
denominations as specified in the relevant Pricing Supplement.
(d) Subject to the other provisions of the Indenture, if any Global
Note is exchanged for Definitive Notes, then:
(i) the Trust, the Indenture Trustee and any Paying Agent
will have the right to treat each Holder of Definitive Notes as the
Person exclusively entitled to receive interest and other payments or
property in respect of or in exchange for the Notes, and otherwise to
exercise all the rights and powers with respect to any Note (subject
to the record date provisions of the Indenture and of the Notes); and
(ii) the obligation of the Trust to make payments of
principal, premium, if any, interest and other amounts with respect to
the Notes shall be discharged at the time payment in the appropriate
amount is made in accordance with the Indenture to each Holder.
SECTION 2.02. No Limitation on Aggregate Principal Amount of Notes. The
aggregate principal amount of Notes which may be authenticated and delivered
under the Indenture is unlimited. Unless otherwise specified in the applicable
Pricing Supplement, the Notes shall be issued in denominations of $1,000 and any
larger amount that is a multiple of $1,000; the authorized denominations of
Notes that have a Specified Currency other than U.S. Dollars will be the
appropriate equivalent in such Specified Currency. The specific terms and
conditions of the Notes shall be set out in a Pricing Supplement, the Omnibus
Instrument and, if applicable, a supplemental indenture entered into pursuant to
Section 8.01(e).
SECTION 2.03. Listing. If specified in the Pricing Supplement, the Notes
will be listed on the securities exchange set forth in such Pricing Supplement.
SECTION 2.04. Redemption and Repayment.
(a) Except as otherwise provided in the Pricing Supplement, a
supplemental indenture and the Notes or in Section 6.02, the Trust will redeem
the Notes only if ING USA redeems the Funding Agreement securing such Notes in
an amount equal to the amount of the related Notes to be redeemed in accordance
with the terms of the Indenture and the Notes, and the Trust will not redeem the
Notes if ING USA does not redeem the Funding Agreement
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securing such Notes in an amount equal to the amount of the Notes to be redeemed
in accordance with the Indenture and the Notes. Unless otherwise specified in
the relevant Pricing Supplement and a supplemental indenture or the Notes, the
Trust may not redeem the Notes after the date that is thirty (30) calendar days
prior to the Stated Maturity Date.
(b) If, but only if, specified in the Pricing Supplement and a
supplemental indenture or the Notes, such Notes will be repayable at the option
of the Holders thereof in accordance with the repayment provisions included in
the Pricing Supplement and supplemental indenture or the Notes.
(c) In connection with the redemption by the Trust of the Notes under
Section 2.04(a), upon receipt by the Trust of notice of redemption of the
Funding Agreement from ING USA, the Trust will promptly give written notice of
such redemption to the Indenture Trustee and the Indenture Trustee will give
written notice to the Holders in accordance with Section 1.06 not less than
thirty (30) calendar days and no more than sixty (60) calendar days prior to the
date set for such redemption. All notices of redemption shall identify the Notes
to be redeemed (including the CUSIP numbers) and shall state:
(i) the redemption date;
(ii) the Redemption Price or, if not then ascertainable, the
manner of calculation thereof;
(iii) that on the redemption date the Redemption Price will
become due and payable on the Notes to be redeemed and that interest
thereon will cease to accrue on and after said date; and
(iv) the place or places where the Notes to be redeemed are
to be surrendered for payment of the Redemption Price.
(d) Prior to 10:00 a.m. New York City time on the redemption date, the
Trust shall deposit with the Paying Agent an amount of money sufficient to pay
the Redemption Price of and accrued and unpaid interest on all Notes which are
to be redeemed on that date.
(e) Upon notice of redemption having been given pursuant to Section
2.04(c), the Notes to be so redeemed shall, on the redemption date, become due
and payable at the Redemption Price therein specified, and from and after such
date (unless the Trust shall default in the payment of the Redemption Price and
accrued interest, if any) such Notes shall cease to bear or accrue any interest.
Upon surrender of the Notes for redemption in accordance with said notice, such
Notes shall be paid by the Trust at the Redemption Price, together with any
accrued but unpaid interest to but not including the redemption date.
(f) The election of the Trust to redeem any Notes shall be evidenced
by a Trust Certificate. In case of any redemption at the election of the Trust,
the Trust shall, at least forty-five (45) calendar days prior to the redemption
date fixed by the Trust (unless a shorter notice shall be satisfactory to the
Indenture Trustee), notify the Indenture Trustee of such redemption date, and of
the principal amount of Notes to be redeemed. In the case of any redemption of
Notes (i) prior to the expiration of any restriction on such redemption provided
in
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the terms of such Notes or elsewhere in the Indenture, or (ii) pursuant to an
election of the Trust which is subject to a condition specified in the terms of
such Notes or elsewhere in the Indenture, the Trust shall furnish the Indenture
Trustee with a Trust Certificate evidencing compliance with such restriction or
condition.
(g) If less than all of the Notes are to be redeemed (unless such
redemption affects only a single Note), the particular Notes to be redeemed
shall be selected not more than sixty (60) calendar days prior to the redemption
date by the Indenture Trustee, from the Outstanding Notes not previously called
for redemption, by lot or pro rata, in its reasonable discretion, in accordance
with the customary procedures of the Indenture Trustee; provided that the
unredeemed portion of the principal amount of any Note shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination)
for such Note; provided further, that if at the time of redemption such Notes
are registered as Global Notes, the Depositary shall determine, in accordance
with its procedures, the principal amount of such Notes to be redeemed by each
of the Depositary's Participants.
The Indenture Trustee shall promptly notify the Trust in writing
of the Notes selected for redemption as aforesaid and, in the case of
any Notes selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
For all purposes of the Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall
relate, in the case of any Notes redeemed or to be redeemed only in
part, to the portion of the principal amount of such Notes which has
been or is to be redeemed.
(h) Any Note which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Trust or the Indenture Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Trust and the Indenture Trustee duly executed by, the Holder
thereof or its attorney-in-fact duly authorized in writing), and the Trust shall
execute, and the Indenture Trustee shall authenticate and deliver to the Holder
of such Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Note so
surrendered.
(i) The Notes will not be subject to, or entitled to the benefit of,
any sinking fund or repayment at the option of the Holders, unless otherwise
specified in the Pricing Supplement and a supplemental indenture of the Notes.
SECTION 2.05. Execution, Authentication and Delivery Generally.
(a) Upon the execution of any Terms Agreement pursuant to the
Distribution Agreement (if the Relevant Agents agree to purchase the Notes on a
principal basis), the acceptance of an offer to purchase Notes solicited by the
Relevant Agents on an agency basis, or the acceptance of a direct offer of Notes
for sale by the Trust, the Trust shall, as soon as practicable but in any event
(unless otherwise agreed by the parties) not later than 11:00 a.m. New York City
time on the second Business Day following the date of ING USA's acceptance of
the offer for the purchase of Notes:
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(i) confirm by fax to the Indenture Trustee, the Paying
Agent and the Registrar, all such information as the Indenture
Trustee, the Paying Agent or the Registrar may reasonably require to
carry out their respective functions under the Indenture, including,
in particular, the settlement and payment procedures that will apply
to the relevant Notes and, if applicable, the account of the Trust to
which payment should be made;
(ii) deliver a copy of the Pricing Supplement or duly
executed supplemental indenture in relation to the relevant Notes to
the Indenture Trustee, the Paying Agent and the Registrar; and
(iii) unless a Global Note is to be used and the Trust shall
have provided such Global Note to the Registrar pursuant to Section
2.05(c), ensure that there is delivered to the Registrar a stock of
Definitive Notes (in unauthenticated form and with the names of the
registered Holders left blank but duly executed on behalf of the Trust
and otherwise complete) in relation to the relevant Notes.
(b) The Trust will deliver to the Indenture Trustee on the Original
Issue Date for the Notes a duly executed original of the Funding Agreement and
Trust Agreement (unless previously delivered) and all documentation relating to
the foregoing for the Notes.
(c) The Trust may, at its option, and shall, at the request of the
Registrar, deliver from time to time to the Registrar a stock of Global Notes
(in unauthenticated form but duly executed on behalf of the Trust).
(d) The Registrar shall, having been advised in accordance with
Section 2.05(a) on behalf of the Trust, on which securities exchange, if any,
the Notes are to be listed, deliver a copy of the Pricing Supplement or
supplemental indenture in relation to each relevant Notes to such exchange or
the relevant listing agent for such exchange as soon as practicable but in any
event no later than two (2) Business Days prior to the proposed Original Issue
Date therefor.
(e) Having received from the Trust the documents referred to in
Section 2.05(a), (b) and (c) (to the extent applicable) (such documents
constituting for all purposes of the Indenture a Trust Order for the
authentication and delivery of the applicable Notes), on or before 10:00 a.m.
New York City time on the Original Issue Date in relation to the Notes (unless
otherwise agreed by the parties), the Indenture Trustee shall authenticate and
deliver the relevant Global Note to the relevant custodian for DTC and/or any
other relevant Clearing System or otherwise in accordance with such Clearing
System's procedures. The Indenture Trustee shall give instructions to DTC and/or
any other relevant Clearing System to credit Notes represented by a Global Note
registered in the name of a nominee for such Clearing System, to the Indenture
Trustee's distribution account and to hold each such Note to the order of the
Trust pending delivery to the Relevant Agent(s) on a delivery against payment
basis (or on such other basis as shall have been agreed between the Trust and
the Relevant Agent(s) and which the Indenture Trustee has been notified) in
accordance with the normal procedures of DTC or such other Clearing System, as
the case may be and, following payment (unless otherwise agreed), to debit
25
the Notes represented by such Global Note to such securities account(s) as shall
have been notified in writing to the Indenture Trustee by the Trust. The
Indenture Trustee shall on the Original Issue Date in respect of the relevant
Notes, and upon receipt of funds from the Relevant Agent(s), transfer, or cause
to be transferred, the proceeds of issue (net of any applicable commissions,
fees or like amounts specified in writing by ING USA) to or as directed by ING
USA on behalf of the Trust to satisfy the deposit requirement pursuant to the
Funding Agreement (as specified by ING USA in such direction).
If no such securities account(s) shall have been specified,
or the relevant Notes are not intended to be cleared through any
Clearing System, the Indenture Trustee shall authenticate and make
available at its specified office on the Original Issue Date in
respect of the relevant Notes the relevant Global Note or the relevant
Definitive Notes, as the case may be, duly executed and made available
to the Indenture Trustee by the Trust.
(f) The Indenture Trustee shall not have an obligation or a duty to
make advances or risk funds hereunder. If the Indenture Trustee should pay an
amount (an "advance") to the Trust in the belief that a payment has been or will
be received from the Relevant Agents, and if such payment is not received by the
Indenture Trustee on the date that the Indenture Trustee pays the Trust, the
Trust shall forthwith repay the advance (unless prior to such repayment the
payment is received from the Relevant Agents) and shall pay interest on such
amount which shall accrue (after as well as before judgment) on the basis of a
year of 360 days (365 days (366 days in the case of a leap year) in the case of
an advance paid in Sterling) and the actual number of days elapsed from the date
of payment of such advance until the earlier of (i) repayment of the advance or
(ii) receipt by the Indenture Trustee of the payment from the Relevant Agents,
and at the rate per annum which is the aggregate of one percent per annum and
the rate determined and certified by the Indenture Trustee and expressed as a
rate per annum as reflecting its cost of funds for the time being in relation to
the unpaid amount.
(g) The Notes shall be executed on behalf of the Trust by a
Responsible Officer of the Trustee. The signature of any of these officers on
the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at any time Responsible Officers of the Trustee
shall bind the Trust, notwithstanding that any such individuals have
ceased to hold such offices prior to the authentication and delivery
of such Notes or did not hold such offices at the date of such Notes.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose unless there appears on such
Note a certificate of authentication substantially in the form
provided for in the Indenture executed by the Indenture Trustee by
manual signature of an authorized officer, and such certificate upon
any Note shall be conclusive evidence, and the only evidence, that
such Note has been duly authenticated and delivered under the
Indenture.
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The Indenture Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Notes of the ING USA Global Funding Trust
specified on the face of this Note referred to in the within-mentioned
Indenture.
CITIBANK, N.A.
As Indenture Trustee
By:
------------------------------------
Authorized Signatory
If Citibank, N.A. is not acting as Indenture Trustee, then
the acting Indenture Trustee's certificate of authentication shall be
in the form specified in the Omnibus Instrument.
Notes bearing the manual signatures of individuals who were
at any time authorized officers of the Indenture Trustee shall bind
the Trust, notwithstanding that any such individuals have ceased to
hold such offices prior to the delivery of such Notes or did not hold
such offices at the date of such Notes.
In authenticating Notes under the Indenture, the Indenture
Trustee shall be entitled to conclusively assume that any Note
authenticated by it has been duly executed on behalf of, and is a
legal, valid, binding and enforceable obligation of, the Trust and is
entitled to the benefits of the Indenture, and that the Trust
Agreement and the Funding Agreement have been duly executed by, and
are the legal, valid, binding and enforceable obligations of, the
parties thereto.
(h) The Trust undertakes to notify the Paying Agent, the Registrar
and, if different, the Indenture Trustee, in writing, of any changes in the
identity of the agents appointed generally in respect of the Program.
SECTION 2.06. Registration. All Notes shall be registered and may be
represented either as Global Notes or Definitive Notes. Unless otherwise
specified in the relevant Pricing Supplement, Global Notes will be registered in
the name of a nominee for, and deposited with, a custodian for DTC. The
Registrar shall maintain a register (in the Indenture sometimes referred to as
the "REGISTER") in which, subject to such reasonable regulations as it may
prescribe, the Registrar shall provide for the registration of the Notes and
registration of transfer of the Notes. The Register shall be in written form in
English or in any other form capable of being converted into such form within a
reasonable time. The Indenture Trustee is hereby initially appointed as the
Registrar. In the event that the Indenture Trustee shall not be the Registrar,
it shall have the right to examine the Register at all reasonable times. Subject
to the definition of "Outstanding" in Section 1.01, the Trust, the Indenture
Trustee, the Registrar or the Paying Agent or any other Agent may become the
owner or pledgee of Notes and may deal with such Notes with the same rights of
any other Holder of such Notes.
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SECTION 2.07. Transfer.
(a) Subject to Section 2.01(c) and (d), (A) upon surrender for
registration of transfer of any Note in accordance with its terms, the Trustee,
on behalf of the Trust, shall execute, and the Indenture Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes denominated as authorized in or pursuant to
the Indenture, of a like aggregate principal amount bearing a number not
contemporaneously outstanding and containing identical terms and provisions and
(B) at the option of the Holder, Notes may be exchanged, in accordance with
their terms, for other Notes containing identical terms and provisions, in any
authorized denominations, and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at the Office or Agency of the Indenture
Trustee. Whenever any Notes are surrendered for exchange as contemplated by this
Section 2.07(a), the Trust shall execute, and the Indenture Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive. Definitive Notes shall not be exchanged for Global Notes.
Beneficial interests in Global Notes may be transferred or exchanged only
through the Depositary. No Global Note may be transferred except as a whole by a
nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or another nominee of the Depositary to a
successor of the Depositary or a nominee of a successor to the Depositary. With
respect to any Global Note, the Depositary or its nominee is the Holder of such
Global Note for the purposes of the Indenture. Except as set forth in Section
2.01(c), the beneficial owners of any Global Note will not be entitled to
receive Definitive Notes and shall not be considered "Holders" under the
Indenture.
(b) All Notes issued upon a registration of transfer or exchange of
Notes shall be the valid obligations of the Trust evidencing the same debt and
entitling the Holders thereof to the same benefits under the Indenture as the
Notes surrendered upon such registration of transfer or exchange.
(c) No service charge shall be made for any registration of transfer
or exchange of Notes, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes (other than
certain exchanges not involving any transfer).
(d) Every Note presented or surrendered for registration of transfer
or for exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in a form satisfactory to the Trust and the Indenture
Trustee duly executed, by the Holder thereof or his attorney duly authorized in
writing. Signatures must be guaranteed by an eligible guarantor institution
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program (STAMP) or
such other signature guarantee program as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act.
SECTION 2.08. Mutilated, Destroyed, Lost and Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture Trustee
directly or through any Paying Agent or (ii) in the case of an allegedly
destroyed, lost or stolen Note, the
28
Indenture Trustee receives evidence to its satisfaction of the destruction, loss
or theft of the Note and there is delivered to the Indenture Trustee, the
Registrar and the Trust such security or indemnity as may be required by the
Indenture Trustee, the Registrar and the Trust to save the Indenture Trustee,
the Registrar and the Trust harmless, then in either case the Trust shall
execute and the Indenture Trustee shall authenticate and deliver, in exchange
for or in lieu of such mutilated, destroyed, lost or stolen Note, a new Note, of
the same maturity, tenor and principal amount as such mutilated, destroyed, lost
or stolen Note, bearing a number not contemporaneously outstanding; provided,
however, that if any such mutilated, destroyed, lost or stolen Note shall have
become or shall be about to become due and payable, instead of issuing a new
Note, the Trust may pay such Note without surrender of such Note, except that
any mutilated Note shall be surrendered.
(b) Upon the issuance of any new Note under this Section 2.08, the
Indenture Trustee or the Trust may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee, Registrar or any Paying Agent) in connection therewith.
(c) Every new Note issued pursuant to this Section 2.08 in lieu of any
destroyed, lost or stolen Note shall constitute a separate obligation of the
Trust, whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of the
Indenture equally and proportionately with any and all other Notes duly issued
under the Indenture. The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.09. Payment of Interest; Rights To Interest Preserved.
(a) The Notes shall bear interest at a rate and on terms stated on the
Notes.
(b) Any interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date, shall be paid to the Person
in whose name that Note is registered at the close of business on the Regular
Record Date for such interest payment (except that interest, if any, on any Note
due on the Maturity Date will be paid to the Person to whom the principal of the
Note is paid).
(c) Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (in the Indenture called
"DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest shall be paid by the Trust to the Persons in whose names such
Notes (or their respective predecessor Notes) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Trust shall notify the
Indenture Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Note and the date of the proposed payment. Thereupon the Indenture
Trustee shall fix a date for the payment of such Defaulted Interest which shall
be not more than fifteen (15) days and not less than ten (10) days prior to the
date of the proposed payment and not less than ten (10) days after the receipt
by the Indenture
29
Trustee of the notice of the proposed payment (the "SPECIAL RECORD DATE"). The
Indenture Trustee shall promptly notify the Trust of such Special Record Date
and, in the name of the Trust, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be given to each
Holder in accordance with Section 1.06. The Trust may make payment of any
Defaulted Interest on the Notes in any other lawful manner not inconsistent with
the requirements of any securities exchange, if any, on which such Notes may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Trust to the Indenture Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by
the Indenture Trustee. Subject to the foregoing provisions of this Section 2.10,
each Note delivered under the Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.10. Cancellation. All Notes surrendered for payment, registration
of transfer or exchange shall, if surrendered to any Person other than the
Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly
cancelled by it. ING USA or any Affiliate thereof shall promptly deliver to the
Indenture Trustee for cancellation any Note previously authenticated and
delivered under the Indenture that ING USA or such Affiliate may have acquired
in any manner whatsoever, and all Notes so delivered shall be promptly cancelled
by the Indenture Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section 2.10, except as
expressly permitted by the Indenture. All cancelled Notes held by the Indenture
Trustee shall be disposed of by the Indenture Trustee in accordance with its
customary procedures, unless the Trust shall otherwise direct by a Trust Order.
SECTION 2.11. Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Note, the Trust, the Indenture Trustee, the
Registrar, the Paying Agent, any other Agent, and any other agent of the Trust
or the Indenture Trustee may treat the Person in whose name any Note is
registered as the absolute and sole owner of such Note for the purpose of
receiving payment of the principal of, any premium or interest on or any
Additional Amounts with respect to such Note and for all other purposes
whatsoever, whether or not such Note shall be overdue, and, except as otherwise
required by applicable law, none of the Trust, the Indenture Trustee, the
Registrar, the Paying Agent, any other Agent, or any other agent of the Trust or
the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.12. 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
30
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 Trust Agreement provides that the Trustee shall prepare and
file or cause to be prepared or filed, 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 Trust Agreement provides that the Trustee
shall keep copies or cause copies to be kept of any such tax and information
returns and reports required to be filed. The Indenture Trustee agrees to
provide to the Trustee such information, upon receipt of written request from
the Trust, as is necessary for the Trustee to fulfill its obligations under this
Section 2.12.
SECTION 2.13. No Association. Nothing set forth in the Indenture shall be
construed to constitute the Holders of Notes, from time to time, as members of
an association.
SECTION 2.14. Administrative Procedures. The Indenture Trustee shall comply
with the Procedures (as defined in the Distribution Agreement), as they may be
amended from time to time in accordance with the terms of the Distribution
Agreement.
ARTICLE 3
COVENANTS, REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Payment of Principal and any Premium, Interest and Additional
Amounts. The Trust covenants and agrees, for the benefit of the Holders of the
Notes, that it will:
(a) Pay or cause to be paid to the Paying Agent on or before the date
on which any payment becomes due, an amount equal to the amount of principal
(and premium, if any) and interest and any Additional Amount (if applicable)
payable in respect of the Notes then becoming due in respect of the Notes.
(b) Pay or cause to be paid each amount payable to the Paying Agent
under Section 3.01(a) by transfer of immediately available funds denominated in
the Specified Currency not later than 10:00 a.m. (at the Place of Payment) on
the date when such amounts are due and payable in respect of the Notes.
(c) Confirm or cause to be confirmed, before 10:00 a.m. (at the Place
of Payment) on the second Business Day before the due date of each payment by it
under Section 3.01(a) to the Paying Agent by confirmed facsimile, that
irrevocable instructions have been given by it or on its behalf, for the
transfer of the relevant funds to the Paying Agent and the name and the account
of the bank through which such payment is being made.
For purposes of this Section 3.01, an installment of principal,
premium, if any, or interest and any other amount payable in respect
of the Notes shall be considered paid on the date it is due if the
Trust has deposited, or caused to be deposited, with the Paying Agent
by 10:00 a.m. New York City time on such date money
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designated for, and capable of being applied towards, and sufficient
to pay such installment.
SECTION 3.02. Collection Account. ING USA shall, on or prior to the initial
Original Issue Date, establish a non-interest bearing account with the Indenture
Trustee or such other depository institution that is rated at least AA- or Aa3
by a nationally recognized statistical rating organization as may be designated
by the Trustee, in the name of the Trust, which account shall collect payments
received under the applicable Funding Agreement and shall be segregated from
other accounts held by the Indenture Trustee or such other depositary
institution.
SECTION 3.03. Agreements of the Paying Agent. The Paying Agent agrees that:
(a) The Paying Agent shall be entitled to deal with each amount paid
to it under the Indenture in the same manner as other amounts paid to it as a
banker by its customers provided that:
(i) the Paying Agent shall not, against the Trust or any
Holder of a Note, exercise any lien, right of set-off or similar claim
in respect thereof (except as otherwise provided or permitted under
the Indenture);
(ii) the Paying Agent shall not be liable to any Person for
interest thereon;
(iii) the Paying Agent need not segregate any money held by
it except as required by law or as otherwise provided under the
Indenture; and
(iv) the Paying Agent shall comply with the provisions of
Section 317(b) of the Trust Indenture Act and agrees that it will,
during the continuance of any default by the Trust (or any other
obligor upon the Notes) in the making of any payment in respect of the
Notes, upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums held in trust by such Paying
Agent for payment in respect of the Notes.
(b) The Paying Agent shall pay or cause to be paid by transfer of
immediately available funds denominated in the Specified Currency to the Holders
all moneys received by the Paying Agent for such purpose from the Trust pursuant
to Section 3.01. In the event a Note is issued between a Regular Record Date or
Special Record Date and the related Interest Payment Date, interest for the
period beginning on the Original Issue Date for such Note or the previous
Interest Payment Date, as the case may be, and ending on the subject Interest
Payment Date will be paid on the immediately following Interest Payment Date to
the Person who was the registered Holder of such Note as of the immediately
preceding Regular Record Date. With respect to Global Notes, the Paying Agent
shall pay principal, premium, if any, interest and any other amounts due on such
Global Notes in accordance with the Notes and the arrangements established by
and between the Paying Agent and the Depositary. Notwithstanding anything in the
Indenture to the contrary, payments of principal and premium, if any, in respect
of Definitive Notes on the Maturity Date shall be made as provided in or
pursuant to the Indenture in immediately available funds against presentation
and surrender of the relevant Definitive Notes at the designated office of the
Registrar in The City of New York, as provided in the Indenture or
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in the applicable Definitive Note. Payments of interest and other amounts due
and owing, if any, on the Maturity Date of Definitive Notes shall be made to the
Person to whom payment of the principal thereof and premium, if any, thereon
shall be made. Notwithstanding anything in the Indenture to the contrary,
interest on Definitive Notes other than on the Maturity Date shall be paid to
the person shown in the applicable Register at the close of business on the
Regular Record Date or Special Record Date, as applicable, as provided in or
pursuant to the Indenture before the due date for payment thereof.
Notwithstanding anything in the Indenture to the contrary, payments of interest
and other amounts due and owing on each Definitive Note other than on the
Maturity Date shall be made in the currency in which such payments are due by
check drawn on a bank in the Principal Financial Center of the country of the
Specified Currency and mailed to the Holder (or to the first named of joint
holders) of such Definitive Note at its address appearing in the applicable
Register. Notwithstanding the foregoing, the Paying Agent shall make, or cause
to be made, payments of interest and other amounts due and owing, if any, on a
Definitive Note on any Interest Payment Date other than the Maturity Date to
each Holder of $10,000,000 (or, if the Specified Currency is other than U.S.
Dollars, the equivalent thereof in the particular Specified Currency) or more in
aggregate principal amount of Definitive Notes by wire transfer of immediately
available funds if the applicable Holder has delivered appropriate wire transfer
instructions in writing to the Paying Agent not less than fifteen (15) calendar
days prior to the particular Interest Payment Date. Any such wire transfer
instructions received by the Paying Agent shall remain in effect until revoked
by the applicable Holder. All moneys paid to the Paying Agent by the Trust in
respect of any Note shall be held by the Paying Agent from the moment when such
moneys are received until the time of actual payment thereof, for the persons
entitled thereto, and shall be applied in accordance with Section 3.03(c)
through (g); provided, that the obligation of the Paying Agent to hold such
moneys shall be subject to the provisions of Section 3.08.
(c) The Paying Agent acting through its specified office shall make
payments of interest and Additional Amounts (if applicable) or, as the case may
be, principal in respect of the Notes in accordance with the terms thereof and
of the Indenture, provided that such Paying Agent shall not make such payments
if it is not able to establish that it has received (whether or not at the due
time) the full amount of the relevant payment due to it under Section 3.01(a).
Payment of any Note redemption amount (together with accrued interest) due in
respect of Notes will be made against presentation and surrender of the relevant
Notes at the specified office of the Paying Agent, subject to Section 2.04(h).
Payment of amounts (whether principal, interest or otherwise) due in respect of
Notes will be paid by the Paying Agent to the Holder thereof (or, in the case of
joint Holders, the first named) which shall be the person appearing as Holder in
the register kept by the Registrar as at the close of business (local time in
the place of the specified office of the Registrar) on the Regular Record Date.
(d) If a Paying Agent makes any payment in accordance with paragraph
(c), it shall be entitled to appropriate for its own account out of the funds
received by it under Section 3.01(a) an amount equal to the amount so paid by
it.
(e) If a Paying Agent makes a payment in respect of Notes at a time at
which it has not received the full amount of the relevant payment due to it
under Section 3.01(a) and is not able to reimburse itself out of funds received
by it under Section 3.01(a) therefor by
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appropriation under this Section 3.03(e), the Trust shall from time to time on
demand pay or cause to be paid to the Paying Agent for its own account:
(i) the amount so paid out by such Paying Agent and not so
reimbursed to it; and
(ii) interest on such amount from the date on which such
Paying Agent made such payment until the date of reimbursement of such
amount;
provided that any payment made under clause (i) above shall satisfy
pro tanto the Trust's obligations under Section 3.01(a).
(f) Interest shall accrue for the purpose of Section 3.03(e)(ii) (as
well after as before judgment) on the basis of a year of 360 days (365 days (366
days in the case of a leap year) in the case of an amount in Sterling) and the
actual number of days elapsed and at the rate per annum which is the aggregate
of one percent per annum and the rate per annum specified by the Paying Agent as
reflecting its cost of funds for the time being in relation to the unpaid
amount.
(g) If at any time and for any reason a Paying Agent makes a partial
payment in respect of any Note surrendered for payment to it, such Paying Agent
shall endorse thereon and in the Register a statement indicating the amount and
date of such payment.
SECTION 3.04. Maintenance of Office or Agency.
(a) The Trust will maintain in the Place of Payment an Office or
Agency where Notes may be presented or surrendered for payment, where Notes may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trust in respect of the Notes and the Indenture may be
served; provided, however, that if the Notes are listed on any stock exchange
and the rules of such stock exchange shall so require, the Trust shall maintain
an Office or Agency in any other required city so long as the Notes are listed
on such exchange. The Trust will give prompt written notice to the Indenture
Trustee of the location, and any change in the location, of such Office or
Agency. If at any time the Trust shall fail to maintain any such required Office
or Agency or shall fail to furnish the Indenture Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Indenture Trustee and the Trust
hereby appoints the Indenture Trustee as its agent to receive such respective
presentations, surrenders, notices and demands. The Trust shall promptly notify
the Indenture Trustee of the name and address of each Paying Agent (if different
than the Indenture Trustee) appointed by it and will notify the Indenture
Trustee of the resignation or termination of any Paying Agent.
(b) The Trust may also from time to time designate one or more other
Offices or Agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Trust of its obligation to maintain the Offices or Agencies for Notes in the
Place of Payment for the foregoing purposes. The Trust shall give
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prompt written notice to the Indenture Trustee of any such designation or
rescission and of any change in the location of any such Office or Agency.
(c) Unless otherwise provided in or pursuant to the Indenture, the
Trust hereby appoints the Indenture Trustee as Paying Agent, Registrar and
Transfer Agent.
SECTION 3.05. Duties of the Agents.
(a) The Trust shall provide to the Paying Agent sufficient copies of
all documents required to be available for inspection as provided in the
Registration Statement or the Pricing Supplement in respect of the Notes.
(b) To the extent permitted by applicable law, the Paying Agent shall
make available for inspection during normal business hours at its specified
office such documents as may be specified as so available at the specified
office of the Paying Agent in respect of the Notes, or as may be required by any
stock exchange on which the Notes may be listed.
(c) Notwithstanding anything to the contrary, the Trust, in reliance
on the advice of counsel, shall be solely responsible for ensuring that each
Note to be issued or other transactions to be effected under the Indenture shall
comply with all applicable laws and regulations of any governmental or other
regulatory authority in connection with any Note and that all necessary consents
and approvals of, notifications to and registrations and filings with, any such
authority in connection therewith are effected, obtained and maintained in full
force and effect.
(d) The Paying Agent shall collect all forms from Holders or, in the
case of Notes held in a Clearing System, from the relevant Clearing System, that
are required to exempt payments under the Notes, and/or the related Funding
Agreement, from United States federal income tax withholding. The Paying Agent
shall (i) withhold from each payment under the Indenture or under any Note any
and all United States federal or state withholding taxes applicable thereto as
required by law and (ii) file any information reports as it may be required to
file under applicable law.
(e) Each Agent shall be obligated to perform such duties and only such
duties as are set out in the Indenture and no implied duties or obligations
shall be read into the Indenture against such Agent.
(f) Each Agent shall be protected and shall incur no liability for or
in respect of any action taken, omitted or suffered in reliance upon any
instruction, request or order from the Trust or any notice, resolution,
direction, consent, certificate, affidavit, statement, facsimile, telex or other
paper or document (duly signed or which it believes in good faith to have been
duly signed, where applicable) which it believes in good faith to be genuine and
to have been delivered, signed or sent by the proper party or parties.
(g) Each Agent and any of its officers, directors, employees or
controlling persons may become the owner of, or acquire any interest in, any
Note, with the same rights that it or he would have if it or he were not
appointed under the Indenture, and may engage or be interested in, any financial
or other transaction with the Trust or ING USA, or any Affiliate
35
thereof, or may act as depositary, trustee or agent for any committee or body of
Holders, as freely as if it or he were not appointed under the Indenture.
(h) Each Agent may consult with legal and other professional advisers
of its selection and the opinion of the advisers shall be full and complete
protection in respect of action taken, omitted or suffered under the Indenture
in good faith and in accordance with the opinion of the advisers.
(i) Under no circumstances will the Paying Agent or any other Agent be
liable to the Trust or any other party to the Indenture for any consequential
loss (being loss of business, goodwill, opportunity or profit), punitive damages
or indirect loss even if advised of the possibility of such loss.
SECTION 3.06. Duties of the Transfer Agent. If and to the extent specified
in the terms and conditions of the Notes or if otherwise requested by the Trust
or Indenture Trustee, the Transfer Agent shall in compliance with the Notes and
the Indenture:
(a) Receive requests from Holders of Notes for the transfer of
Definitive Notes, inform the Registrar in writing of the receipt of such
requests, forward the deposited Definitive Note(s) to or to the order of the
Registrar and assist in the issuance of a new Definitive Note and in particular,
without limitation, notify the Registrar in writing of (i) the name and address
of the Holder of the Definitive Note, (ii) the serial number and principal
amount of the Definitive Note, (iii) in the case of a transfer of a portion of
the Note only, the principal amount of the Definitive Note to be so transferred
and (iv) the name and address of the transferee to be entered on the Register;
(b) Make available for collection by each relevant Holder new
Definitive Notes;
(c) Accept surrender of Definitive Notes and assist in effecting final
payment of the Notes on the due date for payment;
(d) Keep the Registrar informed of all transfers; and
(e) Carry out such other acts as may reasonably be necessary to give
effect to the Notes and the Indenture.
SECTION 3.07. Duties of the Registrar.
(a) The Registrar shall maintain a Register which shall show the
aggregate principal amount and date of issue of the Notes, the names and
addresses of the initial Holders thereof and the dates of all transfers to, and
the names and addresses of, all subsequent Holders thereof.
(b) The Registrar shall by the issue of new Notes, the cancellation of
old Notes and the making of entries in the Register give effect to transfers of
Notes in accordance with the Indenture.
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(c) The Trust may from time to time deliver to the Registrar Notes of
which it is the Holder for cancellation, whereupon the Registrar shall cancel
the same and shall make the corresponding entries in the Register.
(d) As soon as reasonably practicable but in any event within ninety
(90) calendar days after each date on which Notes fall due for redemption, the
Registrar shall notify the Trust of the serial numbers of any Notes against
surrender of which payment has been made and of the serial numbers of any Notes
(and the names and addresses of the Holders thereof) which have not yet been
surrendered for payment.
(e) The Registrar shall, upon and in accordance with the instructions
of the Trust but not otherwise, arrange for the delivery in accordance with the
Indenture of any notice which is to be given to the Holders of Notes and shall
supply a copy thereof to the Indenture Trustee and the Paying Agent.
(f) The Trust shall ensure that the Registrar has available to it
supplies of such Notes as shall be necessary in connection with the transfer of
Notes and the exchange of Global Notes for Definitive Notes.
(g) The Registrar shall make available, at the request of the Holder
of any Note, forms of proxy in a form and manner which comply with the
provisions of the Indenture and shall perform and comply with the provisions of
the Indenture.
(h) The Trust shall provide to the Registrar:
(i) specimen Notes in definitive form; and
(ii) sufficient copies of all documents required to be
available for inspection as provided in the Registration Statement or
the Pricing Supplement in respect of the Notes, as may be required by
any securities exchange on which the Notes may be listed, or as may be
required by applicable law.
(i) The Registrar shall make available for inspection during normal
business hours at its specified office such documents as may be specified as so
available at the specified office of such Registrar, as may be required by any
securities exchange on which the Notes may be listed, or as may be required by
applicable law.
(j) The Registrar shall provide the Paying Agent and/or the Indenture
Trustee with all such information in the Registrar's possession with respect to
the Notes as the Paying Agent or the Indenture Trustee, as the case may be, may
reasonably require in order to perform the obligations set out in the Indenture.
(k) The Registrar shall ensure that in no event shall Definitive Notes
be exchanged for Global Notes.
SECTION 3.08. Unclaimed Monies. Any money deposited with the Indenture
Trustee, Registrar or the Paying Agent for the payment of the principal of,
premium, if any, or interest on
37
any Note and remaining unclaimed for two years after such principal or any such
premium or interest had become due and payable shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be paid to ING USA pursuant to a Trust Request and pursuant to the
applicable Funding Agreement; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to ING USA for payment thereof, and all
liability of the Indenture Trustee, Registrar or the Paying Agent with respect
to such trust money shall thereupon cease; provided, however, that the Indenture
Trustee, Registrar or Paying Agent, before being required to make any such
repayment, may cause to be published once, in an Authorized Newspaper, at the
expense of the Trust, in each Place of Payment or to be mailed to Holders, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) calendar days from the date of
such publication or mailing, any unclaimed balance of such money then remaining
will be repaid to ING USA.
SECTION 3.09. Protection of Collateral.
(a) The Trust shall, from time to time, execute and deliver all such
supplements and amendments to the Indenture and all such financing statements,
continuation statements, instruments of further assurance, and other
instruments, and take such other action as may be necessary or advisable to:
(i) create, perfect or maintain a perfected security
interest in, grant, or make or maintain a valid and effective
assignment for collateral purposes of, all or any portion of the
Collateral (including without limitation the Funding Agreement
included therein);
(ii) maintain or preserve the Funding Agreement or any Lien
in favor of the Indenture Trustee, or carry out more effectively the
purposes of the Indenture or thereof;
(iii) perfect, publish notice of, or protect the validity
of, any security interest or assignment for collateral purposes made
pursuant to the Indenture or the Funding Agreement;
(iv) enforce any portion, or obtain the full benefits, of
the Collateral (including without limitation the Funding Agreement
included therein); and
(v) preserve and defend title to the Collateral and the
rights of the Indenture Trustee and of the Holders in the Collateral
held for the benefit and security of the Holders or other instrument
against the claims of all Persons.
The Trust hereby designates the Indenture Trustee as its agent
and attorney-in-fact to execute any financing statement, continuation
statement or other instrument required or permitted pursuant to this
Section 3.09; provided, however, that the duty of the Indenture
Trustee to execute any instrument required pursuant to this Section
3.09 shall arise only if any Responsible Officer of the Indenture
Trustee has actual knowledge of any failure of the Trust to comply
with the provisions of this Section 3.09.
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(b) The Trust will pay or cause to be paid all taxes and fees
incidental to such filing, registration and recording, and all expenses
incidental to the preparation, execution and acknowledgment of any instrument of
further assurance, and all Federal or state or jurisdiction of organization of
the Trust stamp taxes or other similar taxes, duties and charges arising out of
or in connection with the execution and delivery of such instruments; provided,
however, that the Trust shall not be required to pay or discharge or cause to be
paid or discharged any Lien affecting the Collateral to the extent such Lien is
being contested in good faith by appropriate proceedings. The Trust will at all
times preserve, warrant and defend the Indenture Trustee's title and right in
and to the property included in the Collateral against the claims of all
Persons.
(c) The Trust will faithfully observe and perform, or cause to be
observed and performed, all its covenants, agreements, conditions and
requirements contained in the Funding Agreement in accordance with the terms
thereof and will maintain the validity and effectiveness of the Funding
Agreement and the security interest therein or the assignment for collateral
purposes thereof to the Indenture Trustee. The Trust will take no action, nor
permit any action to be taken, which will release any party to the Funding
Agreement from any of its obligations or liabilities thereunder, or will result
in the termination, modification or amendment, or will impair the validity, of
the Funding Agreement except as expressly provided for in the Indenture and
therein. The Trust will give the Indenture Trustee written notice of any default
by any party to the Funding Agreement promptly after it becomes known to the
Trust.
(d) At the written request of the Indenture Trustee and also following
the occurrence of an "Event of Default" under the Funding Agreement, the Trust
will, subject to the written direction and control of the Indenture Trustee,
take such action, or at the Indenture Trustee's written request furnish funds
sufficient to enable the Indenture Trustee to take such action, as necessary or
as the Indenture Trustee may deem necessary or advisable for enforcing payment
when due, subject to applicable notice and grace periods, under or pursuant to
the Indenture or the Funding Agreement.
(e) Subject to Section 7.01(c) of this Indenture or except as
otherwise specifically provided in this Indenture, the Indenture Trustee shall
have no duty as to any Collateral in its possession or control or in the
possession or control of any agent or bailee or any income thereon or as to
preservation of rights against prior parties or any other rights pertaining
thereto, and the Indenture Trustee shall not be responsible for preparing or
filing any financing or continuation statements or recording any documents or
instruments in any public office at any time or times or otherwise perfecting or
maintaining the perfection of any security interest in the Collateral.
SECTION 3.10. Opinions as to Collateral; Annual Statement as to Compliance.
(a) On or before the 15th day of April of each calendar year,
commencing April 15, 2006, the Trust shall furnish or cause to be furnished to
the Indenture Trustee an Opinion of Counsel stating that, in the opinion of such
counsel, either (i) such action has been taken with respect to the recording,
filing, re-recording and re-filing of the Indenture, any indentures supplemental
to the Indenture and any other requisite documents and with respect to the
execution and filing of any financing statements and continuation statements as
is necessary to perfect and/or maintain the perfection of liens, security
interests and assignments for collateral
39
purposes created or effected pursuant to the Indenture with respect to the
Funding Agreement that is part of any Collateral and reciting the details of
such action or (ii) in the opinion of such counsel no such action is necessary
to perfect and/or maintain the perfection of such lien, security interest and/or
assignment for collateral purposes. Such Opinion of Counsel shall also describe
the recording, filing, re-recording and re-filing of the Indenture, any
indentures supplemental to the Indenture and any other requisite documents and
the execution and filing of any financing statements and continuation statements
that will, in the opinion of such counsel, be required to perfect and/or
maintain the perfection of the liens, security interests and assignments for
collateral purposes created or effected pursuant to the Indenture with respect
to the Funding Agreement that is part of any Collateral until the 15th day of
April in the following calendar year.
(b) On or before the 15th day of April in each calendar year,
commencing April 15, 2005, the Trust shall deliver to the Indenture Trustee a
Trust Certificate stating, as to each signer thereof, that in the course of the
performance by each signer of such Trust Certificate of his or her present
duties as a Responsible Officer of the Trustee, such signer would normally
obtain knowledge as to the existence of any condition or event which would
constitute a Default or an Event of Default and that to the best of such
signer's knowledge:
(i) a review of the fulfillment by the Trust during such
year of its obligations under the Indenture has been made under the
supervision of such signer; and
(ii) the Trust has fulfilled in all material respects its
obligations under the Indenture throughout such year, or, if there has
been a Default or an Event of Default in the fulfillment of any such
obligation, specifying each such Default or Event of Default known to
such signer and the nature and status thereof.
(c) The Trust, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(i) file, or cause to be filed, with the Indenture Trustee,
within fifteen (15) days after the Trust or ING USA is required to
file the same with the Commission and to the extent available to the
Trust, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations
prescribe) which the Trust or ING USA may be required to file with the
Commission in connection with the Program pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act; or, if the Trust or ING
USA is not required to file information, documents or reports pursuant
to either of said Sections, then it shall file, or cause to be filed,
with the Indenture Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities
Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations; provided that if, pursuant to any publicly
available interpretations of the Commission, the Trust or ING USA
would not be required to make such filings in connection with
40
the Program under Section 314(a) of the Trust Indenture Act, then the
Trust or ING USA shall not be required to make such filings;
(ii) file, or cause to be filed, with the Indenture Trustee
and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the
Trust, with the conditions and covenants of the Indenture as may be
required from time to time by such rules and regulations; and
(iii) transmit, or cause to be transmitted, within thirty
(30) days after the filing thereof with the Indenture Trustee, in the
manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, such summaries of any information, documents and
reports required to be filed by the Trust pursuant to paragraphs (i)
and (ii) of this Section 3.10(c) as may be required by rules and
regulations prescribed from time to time by the Commission.
(d) Delivery of such reports, information and documents to the
Indenture Trustee is for informational purposes only and the Indenture Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Trust's compliance with any of its covenants hereunder (as to which the
Indenture Trustee is entitled to rely exclusively on Trust Certificates).
(e) The Trust shall comply with the provisions of Section 314(d) of
the Trust Indenture Act.
SECTION 3.11. Performance of Obligations. The Trust may contract with other
Persons for the performance of the Trust's obligations under the Indenture
(other than the execution and delivery of Trust Requests, Trust Orders and Trust
Certificates) and the performance of such obligations by such other Persons
shall be deemed to be the performance thereof by the Trust, as applicable.
SECTION 3.12. Existence.
(a) The Trust will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights (charter and
statutory) and franchises as a trust formed under the jurisdiction set forth in
the Omnibus Instrument, as applicable, and, upon the advice of counsel, will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes or any portion of the Collateral. The
Trust will, promptly after any amendment or modification of the Trust Agreement,
send copies thereof to the Indenture Trustee and the Rating Agencies.
(b) The Trust will (i) maintain books and records and bank accounts
separate from those of any other Person and any other trust organized under the
Program, (ii) at all times hold itself out to the public as separate and
distinct from any Affiliates and each other trust organized under the Program
and (iii) file or cause to be filed its own tax returns.
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(c) The Trust shall maintain its assets and transactions separately
from those of any Affiliates and any other trust organized under the Program,
reflect such assets and transactions in financial statements separate and
distinct from those of any Affiliates and any other trust organized under the
Program and evidence such assets and transactions by appropriate entries in
books and records separate and distinct from those of any Affiliates (including
any other trust organized under the Program).
SECTION 3.13. Reports; Financial Information; Notices of Defaults.
(a) The Trust shall promptly deliver to the Indenture Trustee copies
of all reports, statements and information received by it pursuant to the
Funding Agreement or otherwise in respect of the Collateral. Delivery of such
reports, information and documents to the Indenture Trustee is for informational
purposes only and the Indenture Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Trust's compliance with any of its
covenants hereunder (as to which the Indenture Trustee is entitled to rely
exclusively on Trust Certificates).
(b) The Trust shall promptly inform the Indenture Trustee in writing
of the occurrence of any Default or Event of Default which is continuing of
which it has actual knowledge. Each notice given pursuant to this Section
3.13(b) shall be accompanied by a Trust Certificate setting forth details of the
occurrence referred to therein and stating what action, if any, the Trust has
taken or proposes to take with respect thereto.
(c) The Trust shall collect all forms (or, if applicable, copies of
such forms), if any, from the Paying Agent or Registrar (or from such other
persons as are relevant) that are required to exempt payments under the Notes or
the Funding Agreement from United States federal income tax withholding. In
addition, the Trust shall execute and file such forms and take such actions for
United States federal income tax purposes as shall be reasonable and necessary
to ensure that payments of interest, principal, premium and Additional Amounts,
if applicable, in respect of the Notes or the Funding Agreement are not subject
to United States federal withholding or backup withholding tax.
(d) In accordance with Section 312(a) of the Trust Indenture Act, the
Trust shall furnish or cause to be furnished to the Indenture Trustee:
(i) semi-annually with respect to Notes not later than the
15th day of April and the 15th day of October of each year or upon
such other dates as are set forth in or pursuant to a Trust Order or
indenture supplemental to the Indenture a list, in each case in such
form as the Indenture Trustee may reasonably require, of the names and
addresses of Holders as of the applicable date, and
(ii) at such other times as the Indenture Trustee may
request in writing, within thirty (30) days after the receipt by the
Trust of any such request, a list of similar form and content as of a
date not more than fifteen (15) days prior to the time such list is
furnished,
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provided, however, that so long as the Indenture Trustee is the
Registrar no such list shall be required to be furnished.
(e) The Indenture Trustee shall comply with the obligations imposed
upon it pursuant to Section 312 of the Trust Indenture Act.
Every Holder, by receiving and holding Notes, agrees with
the Trust and the Indenture Trustee that none of the Trust, the
Indenture Trustee, the Paying Agent or the Registrar shall be held
accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section
312(c) of the Trust Indenture Act, regardless of the source from which
such information was derived, and that the Indenture Trustee shall not
be held accountable by reason of mailing any material pursuant to a
request made under Section 312(b) of the Trust Indenture Act.
(f) (i) Within sixty (60) days after the 15th day of April of each
year commencing with the first such date following the first issuance of Notes,
if required by Section 313(a) of the Trust Indenture Act, the Indenture Trustee
shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief
report dated as of the 15th day of March of such year with respect to any of the
events specified in said Section 313(a) of the Trust Indenture Act which may
have occurred since the later of the immediately preceding 15th day of March and
the date of the Indenture.
(ii) The Indenture Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act, the reports required by
Section 313(b) of the Trust Indenture Act at the time specified
therein.
(iii) Reports pursuant to this Section 3.13 shall be
transmitted in the manner and to the Persons required by Sections
313(c) and 313(d) of the Trust Indenture Act.
(g) Within ten (10) days following any distribution made or scheduled
to be made on the Notes, including any Interest Payment Date or the Maturity
Date, the Indenture Trustee will deliver to ING USA and the Holders a report
substantially in the form of Exhibit B attached to these Standard Indenture
Terms.
SECTION 3.14. Payment of Taxes and Other Claims. The Trust will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Trust or upon the income, profits or property of the Trust, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a Lien upon the property of the Trust; provided, however, that the
Trust shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings. The
Trust, upon the advice of counsel, shall comply with the requirements of all
other applicable laws, the non-compliance with which would, individually or in
the aggregate, materially and adversely affect the condition (financial or
otherwise) of the
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Trust or which would impair in any material respect the ability of the Trust to
perform its obligations under the Notes or the Indenture.
SECTION 3.15. Negative Covenants. So long as any Notes are Outstanding, the
Trust will not take any of the following actions, except as otherwise permitted
under the Indenture:
(a) 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 thereafter acquired), including, without limitation, any portion of
the Collateral, except as expressly permitted by the Indenture;
(b) 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 thereby;
(c) engage in any business or activity other than in connection with,
or relating to, (i) 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 (ii) the issuance of
the Notes pursuant to the Indenture;
(d) (i) 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 by the Indenture, (ii) create, incur, assume or permit any Lien or
other encumbrance (other than the Lien created by the Indenture) on any of its
properties or assets owned or thereafter acquired, or any interest therein or
the proceeds thereof, or (iii) permit a Lien created under the Indenture not to
constitute a valid first priority perfected security interest in the Collateral;
(e) 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;
(f) 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;
(g) directly or indirectly declare or make any distribution or other
payment to, or redeem or otherwise acquire or retire for value the interest 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;
(h) 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
44
permitted by law, permit the creation, incurrence, assumption or existence of
any Lien on, all or a portion of any of the Trust Beneficial Interest;
(i) exercise any rights with respect to the Collateral except at the
written direction of, or with the prior written approval of, the Indenture
Trustee;
(j) become an "investment company", or come under the "control" of an
"investment company," as such terms are defined in the Investment Company Act;
(k) 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;
(l) 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;
(m) have any subsidiaries, employees or agents other than the Trustee
and other persons necessary to conduct its activities and enter into
transactions contemplated under the Program Documents;
(n) have an interest in any bank account other than (i) those accounts
required under the Program Documents, and (ii) those accounts expressly
permitted by the Indenture Trustee; provided that any such further accounts or
the Trust's interest therein shall be charged or otherwise secured in favor of
the Indenture Trustee;
(o) issue Notes under the Indenture unless (i) the Trust has purchased
or will simultaneously purchase the Funding Agreement from ING USA to secure
such Notes, (ii) 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 (iii) the Trust has taken such other steps as may be necessary to
cause the grant of 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;
(p) permit any Affiliate, employee or officer of ING USA or any agent
under the Distribution Agreement to be a trustee of the Trust;
(q) 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
(r) 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.
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SECTION 3.16. Non-Petition. Each of the Indenture Trustee, each Holder of a
Note, each Agent and the Trustee covenants and agrees that, for a period of one
year plus one day after payment in full of all amounts payable under or in
respect of the Indenture and the Notes, it will not institute against, or join
any other Person in instituting against, the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law. The
immediately preceding sentence shall survive any termination of the Indenture.
Notwithstanding the foregoing, each of the Indenture Trustee and
each Agent covenants and agrees that it will not institute against, or
join any other Person in instituting against, the Trust any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state
bankruptcy or similar law, as a result of the failure to pay fees or
expenses pursuant to Section 7.10 to any party entitled thereto.
Moreover, each of the Indenture Trustee, the Paying Agent, the
Transfer Agent, the Calculation Agent and the Registrar covenants and
agrees that it will not cause an Event of Default as a result of the
Trust's failure to pay any fees or expenses pursuant to Section 7.10
to any party entitled thereto.
SECTION 3.17. Title to the Collateral. The Trust covenants and agrees that
the Trust owns, or prior to the issuance of the Notes will own, the Funding
Agreement and all of the rest of the Collateral, free and clear of any Liens
other than the security interests or assignments for collateral purposes made
pursuant to Article 4; and that the Trust is not and will not become a party to
or otherwise be bound by any agreement, other than the Indenture, which
restricts in any manner the rights of any present or future holder of any of the
Collateral with respect thereto.
The Trust shall notify in writing the Indenture Trustee and any
Rating Agencies as promptly as practicable upon a Responsible Officer
of the Trustee becoming aware of any change in the law of the State of
Iowa following the date of the Indenture with respect to the priority
status of the Funding Agreement in a liquidation of, or other
delinquency proceeding against, ING USA.
SECTION 3.18. Withholding and Payment of Additional Amounts.
(a) All payments due in respect of the Notes will be made without
withholding or deduction for or on account of any present or future taxes,
duties, levies, assessments or other governmental charges of whatever nature
imposed or levied by or on behalf of any governmental authority, unless such
withholding or deduction is so required by law. Unless otherwise specified in
the applicable Pricing Supplement and a supplemental indenture or the Notes, the
Trust will not pay any Additional Amounts to Holders in respect of any such
withholding or deduction and any such withholding or deduction will not give
rise to a Default or an Event of Default or any independent right or obligation
to redeem the Notes. Unless the Funding Agreement specifies that ING USA will
pay Additional Amounts to the Trust in the event that any amount due with
respect to the Funding Agreement is subject to withholding or deduction for or
on account of any present or future taxes, duties, levies, assessments or other
governmental charges of whatever nature imposed or levied by or on behalf of any
governmental
46
authority, the Trust will be deemed for all purposes of the Program Documents to
have received cash in an amount equal to the amount of any such withholding or
deduction, and each Holder will be deemed for all purposes of the Program
Documents to have received cash in an amount equal to the portion of such
withholding or deduction that is attributable to such Holder's interest in the
Notes as equitably determined by the Trust.
(b) Subject to the final sentence of this Section 3.18(b), and only to
the extent specified in the applicable Pricing Supplement and a supplemental
indenture or the Notes, the Trust shall pay to a Holder of any Note who is not a
"United States person" within the meaning of Section 7701(a)(30) of the Code,
Additional Amounts to compensate for any withholding or deduction for or on
account of any present or future taxes, duties, levies, assessments or other
governmental charges of whatever nature imposed or levied on payments in respect
of such Note, by or on behalf of any governmental authority in the United States
having the power to tax, so that the net amount received by the Holder under
that Note, after giving effect to such withholding or deduction, will equal the
amount that would have been received under such Note were no such deduction or
withholding required; provided that the Trust shall not, unless otherwise
specified in the applicable Pricing Supplement and a supplemental indenture or
the Notes, be required to make any payment of any Additional Amount for or on
account of: (i) any tax, duty, levy, assessment or other governmental charge
imposed which would have not been imposed but for (A) the existence of any
present or former connection between the Holder or beneficial owner (as
determined for United States federal income tax purposes) of the Note or the
Funding Agreement (any such Holder or beneficial owner, the "Owner") and such
governmental authority, including without limitation, being or having been a
citizen or resident thereof, or being or having been present therein,
incorporated therein, engaged in a trade or business therein or having (or
having had) a permanent establishment or principal office therein, (B) such
Owner being or having been a controlled foreign corporation within the meaning
of Section 957(a) of the Code, related within the meaning of Section 864(d)(4)
of the Code to ING USA or a private foundation or other tax-exempt organization,
(C) such Owner being or having been an actual or constructive owner of ten
percent (10%) or more of the total combined voting power of all the outstanding
stock of ING USA, (D) such Owner being a bank for United States federal income
tax purposes whose receipt of interest on the Note or Funding Agreement is
described in Section 881(c)(3)(A) of the Code or (E) such Owner being subject to
backup withholding as of the date of becoming an Owner; (ii) any tax, duty,
levy, assessment or other governmental charge which would not have been imposed
but for the presentation of the Note or other evidence of beneficial ownership
thereof (where presentation is required) for payment on a date more than thirty
(30) days after the date on which such payment becomes due and payable or the
date on which payment is duly provided for whichever occurs later; except to the
extent that the Owner would have been entitled to Additional Amounts had the
Note been presented on the last day of such thirty (30) day period; (iii) any
tax, duty, levy, assessment or other governmental charge which is imposed or
withheld by reason of the failure of an Owner to comply with certification,
identification or information reporting requirements concerning the nationality,
residence, identity or connection with the United States of an Owner (including,
without limitation, failure to provide IRS Form W-8BEN or W-8ECI), if compliance
is required by statute, by regulation of the United States Treasury Department,
judicial or administrative interpretation, other law or by an applicable income
tax treaty to which the United States is a party as a condition to exemption
from such tax, duty, levy, assessment or other governmental charge; (iv) any
inheritance, gift, estate, personal property, sales, transfer or similar tax,
duty,
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levy, assessment or similar governmental charge; (v) any tax, duty, levy,
assessment or other governmental charge that is payable otherwise than by
withholding from payments in respect of the Notes; (vi) any tax, duty, levy,
assessment or other governmental charge that would not have been imposed or
withheld but for the treatment of payments in respect of the Notes or the
Funding Agreement as contingent interest described in Section 871(h)(4) of the
Code; (vii) any tax, duty, levy, assessment or other governmental charge that
would not have been imposed or withheld but for an election by the Owner the
effect of which is to make payment in respect of the Notes subject to United
States federal income tax; (viii) any tax, duty, levy, assessment or other
governmental charge resulting from a European Union Directive; or (ix) any
combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) or (viii). The
obligation to pay Additional Amounts under this Section 3.18 shall not apply
unless ING USA is obligated to pay additional amounts under the Funding
Agreement (1) to compensate for any withholding or deduction for or on account
of any present or future taxes, duties, levies, assessments or other
governmental charges of whatever nature imposed or levied on payments in respect
of the Funding Agreement by or on behalf of any governmental authority in the
United States having the power to tax and (2) to reimburse the Trust for any
Additional Amounts due to Holders.
(c) If the applicable Pricing Supplement and a supplemental indenture
or the Notes indicate that the Trust will pay any Additional Amounts to Holders
as described in Section 3.18(b) and any such Additional Amounts actually become
due and payable the Trust shall deliver to the Indenture Trustee a Trust
Certificate that indicates the amount of such Additional Amounts and the dates
of the payment of such Additional Amounts. The Indenture Trustee may
conclusively rely on such Trust Certificate in making the payment of such
Additional Amounts.
(d) Whenever in the Indenture or in any Note there is mentioned, in
any context, the payment of the principal of or any premium or interest on, or
in respect of, any Note or the net proceeds received on the sale or exchange of
any Note, such mention shall be deemed to include mention of the payment of
Additional Amounts if so specified in the applicable Pricing Supplement.
Further, express mention of the payment of Additional Amounts (if applicable) in
any provision of the Indenture or in any Note shall not be construed as
excluding Additional Amounts in those provisions of the Indenture or in such
Note where such express mention is not made.
SECTION 3.19. Additional Representations and Warranties.
(a) The Trust hereby represents and warrants that:
(i) to the extent the creation of a security interest in the
Funding Agreement is governed by the UCC, the Indenture will create a
valid security interest (as defined in the UCC) in the Funding
Agreement in favor of the Indenture Trustee for the benefit and
security of the Holders, which security interest will be prior to all
other Liens;
(ii) the Funding Agreement will constitute a "general
intangible" or "instrument" within the meaning of the UCC;
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(iii) subject to the grant of security interest, pledge and
collateral assignment of the Trust's right, title and interest in the
Funding Agreement, the Trust will be a party to and will be the person
entitled to payment under the Funding Agreement on the dates specified
therein free and clear of any Lien, claim or encumbrance of any
Person, other than the Lien created under the Indenture or any Lien
otherwise permitted under the Indenture;
(iv) to the extent the UCC applies, the Trust has caused or
will have caused, within ten (10) days of the issuance of the Notes,
the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in
order to perfect the security interest in the Funding Agreement
granted to the Indenture Trustee for the benefit and security of the
Holders;
(v) other than the security interests granted to the
Indenture Trustee for the benefit and security of the Holders pursuant
to the Indenture, the Trust will not pledge, assign, sell, grant a
security interest in, or otherwise convey any interest in the Funding
Agreement;
(vi) the Trust will not authorize the filing of and is not
aware of any financing statements against the Trust that include a
description of collateral covering the Funding Agreement other than
any financing statement relating to the security interests granted to
the Indenture Trustee for the benefit and security of the Holders;
(vii) the Trust is not aware of any judgment or tax lien
filings against the Trust;
(viii) all original executed copies of each instrument that
constitutes or evidences the Funding Agreement have been delivered to
the Indenture Trustee or the Custodian;
(ix) where all original executed copies of each instrument
that constitutes or evidences the Funding Agreement have been
delivered to the Custodian, the Issuer has received a written
acknowledgment from the Custodian that the Custodian is holding the
instruments that constitute or evidence the Funding Agreement solely
on behalf of the Indenture Trustee; and
(x) none of the instruments that constitute or evidence the
Funding Agreement has any marks or notations indicating that it has
been pledged, assigned or otherwise conveyed to any Person other than
the Indenture Trustee for the benefit and security of the Holders.
(b) The foregoing representations and warranties will survive the
execution and delivery of the Notes. No party will waive any of the foregoing
representations and warranties. The Trust will maintain the perfection and
priority of the security interest in the Funding Agreement.
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SECTION 3.20. Ancillary Documents. The Trust hereby expressly authorizes
and directs the Indenture Trustee to execute and deliver each of the documents,
instruments and agreements attached as Exhibits or otherwise expressly
contemplated by the terms of the Indenture with respect to the Notes from time
to time.
ARTICLE 4
GRANTING OF SECURITY INTEREST AND ASSIGNMENT FOR COLLATERAL PURPOSES
SECTION 4.01. Creation. To secure the full and punctual payment of the
Secured Obligations in accordance with the terms thereof and to secure the
performance of the Trust's obligations under the Notes and the Indenture, the
Trust, with respect to the Funding Agreement, hereby assigns and pledges to and
with the Indenture Trustee for the ratable benefit of each Holder and, with
respect to all of the Collateral, grants to the Indenture Trustee for the
ratable benefit of each Holder security interests in the Collateral, 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.
Contemporaneously with the issuance of the Notes, the Trust will deliver the
Funding Agreement to the Indenture Trustee or its agent (including any
custodian) in pledge under the Indenture and make such filings, cause ING USA as
the issuer of the Funding Agreement to register and acknowledge the Indenture
Trustee or its agent or the Holders as having the rights of an assignee for
collateral purposes of the Funding Agreement and take such other action as may
be necessary to cause the Indenture Trustee for the ratable benefit of each
Holder to have a perfected security interest in or be the recipient of a valid
assignment for collateral purposes of the Funding Agreement and the rest of the
Collateral that is effective against the Trust's creditors and subsequent
purchasers thereof.
SECTION 4.02. Scope.
(a) The security interest or assignment for collateral purposes
granted or made pursuant to Section 4.01 is granted or made in trust to secure
the full and punctual payment of the Secured Obligations equally and ratably
among the Holders, without prejudice, priority or distinction, except as
expressly provided in the Indenture, in the following order of priority:
first, to the payment of the amounts then due and unpaid upon the
Notes for principal and interest and all other amounts in respect of which
or for the benefit of which such amount has been collected, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on the Notes; and
second, any remaining balance shall be paid to the Trust and such
remaining balance shall be distributed by the Trustee in accordance with
the Trust Agreement.
(b) The Trust does hereby constitute and irrevocably appoint the
Indenture Trustee the true and lawful attorney of the Trust, with full power (in
the name of the Trust or otherwise), upon the occurrence and during the
continuance of an Event of Default, to exercise all rights of the Trust with
respect to the Collateral and to ask, require, demand, receive, settle,
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compromise, compound and give acquittance for any and all monies and claims for
monies due and to become due under or arising out of any of the Collateral, to
endorse any checks or other instruments or orders in connection therewith and to
file any claims or take any action or institute any proceedings that the
Indenture Trustee may deem to be necessary or advisable in the circumstances.
The power of attorney granted pursuant to the Indenture and all authority
conferred by the Indenture are granted and conferred solely to protect the
Indenture Trustee's interest in the Collateral held for the benefit and security
of the Holders and shall not impose any duty upon the Indenture Trustee to
exercise any power. This power of attorney shall be irrevocable as one coupled
with an interest prior to the payment in full of all the Notes.
(c) The Indenture shall constitute a security agreement and an
agreement to assign the Collateral for collateral purposes under the laws of the
State of New York applicable to agreements made and to be performed therein.
Upon the occurrence of any Event of Default with respect to the Notes, and in
addition to any other rights available under the Indenture and the Funding
Agreement or otherwise available at law or in equity, the Indenture Trustee
shall have all rights and remedies of a secured party or an assignee for
collateral purposes on default under the laws of the State of New York and other
applicable law to enforce the assignments and security interests contained in
the Indenture and, in addition, shall have the right, subject to compliance with
any mandatory requirements of applicable law, to sell or apply the Funding
Agreement and any other rights and other interests assigned or pledged by the
Indenture in accordance with the terms of the Indenture at public or private
sale. All amounts received under the Indenture shall be applied first to all
costs and expenses incurred by the Indenture Trustee in connection with such
collection and enforcement and thereafter as provided in the Indenture.
(d) It is expressly agreed that anything in the Indenture or therein
contained to the contrary notwithstanding, the Trust shall remain liable under
the Funding Agreement to perform all the obligations of it thereunder, all in
accordance with and pursuant to the terms and provisions thereof, and the
Indenture Trustee shall not have any obligations or liabilities with respect to
the Funding Agreement by reason of or arising out of the Indenture, nor shall
the Indenture Trustee be required or obligated in any manner to perform or
fulfill any obligations of the Trust under or pursuant to the Funding Agreement
or, other than as provided in the Indenture, to make any payment, to make any
inquiry as to the nature or sufficiency of any payment received by it, or, prior
to the occurrence and continuance of an Event of Default, to present or file any
claim, or to take any action to collect or enforce the payment of any amounts
that may have been assigned to it or to which it may be entitled at any time or
times.
(e) The Trust hereby directs and instructs the Indenture Trustee to
enter into a custodial arrangement with U.S. Bank National Association, a
national banking association, to hold the Funding Agreement in safe custody for
the benefit of the Indenture Trustee within the State of Colorado.
(f) The Indenture Trustee acknowledges the granting of such security
interests and the making of such assignments for collateral purposes, accepts
the terms under the Indenture in accordance with the provisions of the Indenture
and agrees to perform its duties in the Indenture subject to and in accordance
with the provisions of the Indenture.
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SECTION 4.03. Termination of Security Interest. Upon the payment in full of
all Secured Obligations relating to the Notes, the security interest shall
terminate and all rights to the Collateral shall revert to the Trust. Upon
termination of the security interest, the Indenture Trustee will execute and
deliver to the Trust such documents as the Trust shall reasonably request to
evidence the termination of such security interest.
ARTICLE 5
SATISFACTION AND DISCHARGE; SUBROGATION
SECTION 5.01. Satisfaction and Discharge of Indenture. The Indenture shall
cease to be of further effect with respect to the Notes (except that Section
7.10 shall survive and except as to any surviving rights of registration of
transfer or exchange of Notes expressly provided for in the Indenture) and the
Indenture Trustee, on written demand of the Trust, shall execute proper
instruments acknowledging satisfaction and discharge of the Indenture with
respect to the Notes, when
(a) either:
(i) all Notes theretofore authenticated and delivered (other
than Notes which have been mutilated, destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.08) have
been delivered to the Indenture Trustee for cancellation; or
(ii) all Notes
(A) have become due and payable,
(B) will become due and payable at their Stated
Maturity Date within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Indenture Trustee for
the giving of notice of redemption by the Indenture Trustee
in the name, and at the expense, of the Trust,
and the Trust, in the case of (A), (B) or (C) above, has irrevocably
deposited or caused to be deposited with the Indenture Trustee as
trust funds in trust for such purpose, an amount sufficient to pay and
discharge the entire indebtedness on the Notes not theretofore
delivered to the Indenture Trustee for cancellation, for principal of,
premium, if any, or any interest on, the Notes to the date of such
deposit (in the case of Notes which have become due and payable) or to
the Stated Maturity Date, as the case may be;
(b) the Trust has paid or caused to be paid in full all other sums
payable under the Indenture by the Trust with respect to the Secured
Obligations, together with all sums payable in connection with Section 7.10, to
the extent not otherwise paid; and
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(c) the Trust has delivered to the Indenture Trustee a Trust
Certificate and an Opinion of Counsel each stating that all conditions precedent
in the Indenture providing for the satisfaction and discharge of the Indenture
with respect to the Notes have been complied with.
Notwithstanding the satisfaction and discharge of the Indenture
with respect to the Notes, the obligations of the Indenture Trustee
under Section 5.02 shall survive.
SECTION 5.02. Application of Trust Money. All money deposited with the
Indenture Trustee pursuant to the Indenture shall be held in trust in the
Collection Account and applied by it, in accordance with the provisions of the
Notes and the Indenture, to the payment through any Paying Agent, to the Persons
entitled thereto, of the principal, premium, if any, interest and Additional
Amounts, if any, for whose payment such money has been deposited with or
received by the Indenture Trustee.
If no Event of Default with respect to the Notes exists, the following
priority of payments shall apply:
first, to the payment of the amounts then due and unpaid upon the
Notes for principal and interest and all other amounts in respect of which
or for the benefit of which such amount has been collected, ratably,
without preference or priority of any kind, according to the aggregate
principal amounts due and payable on the Notes; and
second, any remaining balance shall be paid to the Trust and such
remaining balance shall be distributed by the Trustee in accordance with
the Trust Agreement.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
"EVENT OF DEFAULT" means any one of the following events with
respect to the Notes (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body):
(a) failure to pay the principal (other than any installment payment),
when due and payable, of any Note and the continuance of such failure for a
period of one (1) Business Day;
(b) failure to pay any interest, premium (if applicable), installment
payments (if applicable) or any other amounts, when due and payable, on any Note
and a continuance of such failure for a period of seven (7) Business Days;
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(c) an "Event of Default" (as defined in the Funding Agreement) by ING
USA under the Funding Agreement securing the Notes;
(d) failure to observe or perform in any material respect any one or
more of the other covenants in the Indenture (other than a covenant or default
or breach of which is specifically set forth in Section 6.01(a), (b) and, if
applicable (h)) or the Notes, and continuance of such failure for a period of
sixty (60) days after the date on which there shall have been given written
notice by registered or certified mail, return receipt requested, specifying
such failure thereof to the Trust by the Indenture Trustee or to the Trust and
the Indenture Trustee by Holders of Notes representing at least twenty-five
percent (25%) of the aggregate principal amount of the Outstanding Notes, which
written notice shall be delivered by registered or certified mail, return
receipt requested, and shall specify such failure and require such failure to be
remedied and which notice shall state that it is a "NOTICE OF DEFAULT" under the
Indenture;
(e) the Indenture for any reason shall cease to be in full force and
effect (other than in accordance with its terms) or shall be declared null and
void, or the Indenture Trustee fails to have or maintain a validly created and
perfected security interest subject to no prior Liens or security interests in
the Collateral and proceeds thereof except as expressly permitted by the
Indenture; or any Person shall successfully claim as finally determined by a
court of competent jurisdiction that any of the Liens granted to the Indenture
Trustee with respect to any of the Collateral are void or that the enforcement
thereof or any other recourse by the Indenture Trustee against any of the
Collateral is materially limited because of any preference, fraudulent transfer,
conveyance or similar law;
(f) either (i) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Trust or the Collateral in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect in the applicable jurisdiction, which decree or
order is not stayed; or any other similar relief shall be granted under any
applicable law; or (ii) an involuntary case shall be commenced against the Trust
or the Collateral under any applicable bankruptcy, insolvency or other similar
law of the applicable jurisdiction; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over the
Trust or the Collateral, or over all or a substantial part of its property,
shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of the Trust or
the Collateral for all or a substantial part of its property; or a court having
jurisdiction in the premises shall enter a decree or order declaring the
dissolution of the Trust; or a warrant of attachment, execution or similar
process shall have been issued against any substantial part of the property of
the Trust and any such event described in this clause (ii) shall continue for
sixty (60) days unless dismissed, bonded or discharged;
(g) either (i) the Trust shall have an order for relief entered with
respect to it or shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law of the applicable jurisdiction, or
shall consent to the entry of an order for relief in an involuntary case, or to
the conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or the
Trust shall make any assignment for the benefit of creditors; or (ii) the Trust
shall fail or be unable, or the Trust admits in writing its
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inability, to pay its debts as such debts become due; or the trustee of the
Trust shall adopt any resolution or otherwise authorize any action to approve or
for the purpose of effecting any of the actions referred to in this paragraph
(g); or
(h) any other Event of Default provided in (i) the applicable Pricing
Supplement and (ii) the Notes or any supplemental indenture.
SECTION 6.02. Acceleration of Maturity Date; Rescission and Annulment. If
an Event of Default specified in any of Sections 6.01(a), (b), (c), (f) or (g)
occurs and is continuing, the principal of and all accrued and unpaid interest
and any other amounts payable on the Notes or, if such Notes are non-interest
bearing, the amortized face amount of such Notes or other redemption amount as
may be specified in the Pricing Supplement, shall automatically be and become
due and payable immediately, without any declaration or other act whatsoever on
the part of the Trust, the Indenture Trustee or any Holder. If any Event of
Default other than those specified in Sections 6.01(a), (b), (c), (f) or (g)
occurs and is continuing, then in every such case the Indenture Trustee or the
Holders of more than twenty-five percent (25%) in aggregate principal amount of
the Outstanding Notes, by a notice in writing to the Trust (and to the Indenture
Trustee if given by the Holders of the Notes), may (but are not required to)
declare the sum of (a) the principal amount of all the Outstanding Notes and (b)
any other amounts, including accrued and unpaid interest, payable to the Holders
to the extent such amounts are permitted by law to be paid, to be due and
payable immediately, and upon any such declaration such amount shall become due
and payable on the date the written declaration is received by the Trust;
provided, however, that with respect to any Note issued with original issue
discount the amount of principal due and payable for such Note will be the
amount determined as set forth in the Pricing Supplement or, if not so set
forth, by multiplying (i) the then outstanding aggregate principal amount of
such Note by (ii) the sum of (A) the original issue price of the Note (expressed
as a percentage of the then outstanding aggregate principal amount of such Note)
plus (B) the original issue discount (expressed as a percentage) amortized from
the Original Issue Date of such Note to the date of declaration of acceleration
of maturity of such Note (calculated using the interest method in accordance
with generally accepted accounting principles in effect on the date of
determination).
At any time after such a declaration of acceleration of maturity
of the Notes has been made pursuant to the second sentence of this
Section 6.02 and before a judgment or decree for payment of the money
due has been obtained by the Indenture Trustee as provided in this
Article 6, the Holders of Notes representing at least sixty-six and
two-thirds percent (66-2/3%) of the aggregate principal amount of the
Outstanding Notes, by written notice to the Trust and the Indenture
Trustee, may rescind and annul such declaration and its consequences
if:
(a) the Trust has paid, deposited or cause to be paid or deposited
with the Indenture Trustee a sum sufficient to pay:
(i) all overdue installments of interest and Additional
Amounts, if applicable, on all Notes,
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(ii) the principal and premium, if any, of any Notes which
have become due otherwise than by such declaration of acceleration and
interest thereon with respect thereto at the rate borne by the Notes,
and
(iii) all amounts due under the Expense and Indemnity
Agreement; and
(b) all Events of Default, other than the nonpayment of the principal
of or interest on the Notes which have become due solely as a result of such
acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or Event
of Default or impair any right consequent thereon.
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement. The
Trust covenants that if:
(a) default is made in the payment of any installment of interest on
any Note when such interest becomes due and payable (after the expiration of any
applicable cure period), or
(b) default is made in the payment of the principal or premium, if
any, of any Note when such principal or premium, if any, becomes due and
payable,
the Trust will upon demand of the Indenture Trustee (which the
Indenture Trustee may make, but is not required to make) pay to the
Indenture Trustee, for the benefit of all the Holders of the Notes,
the whole amount then due and payable on the Notes (together, as
applicable, with interest upon the overdue principal and any premium
and (to the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest at the rate
borne by the Notes or, if the Notes are non-interest bearing, the rate
for such interest set forth in the Notes or the Indenture, if
applicable) and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee, its agents and counsel.
If the Trust fails to pay such amounts it is required to pay the
Indenture Trustee pursuant to the preceding paragraph, then forthwith
upon the demand of the Indenture Trustee, in its own name and as
trustee of an express trust, the Indenture Trustee may (but is not
required to) institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Trust or any other
obligor upon any of the Notes and collect the monies adjudged or
decreed to be payable in the manner provided by law out of the
property of the Trust or any other obligor upon the Notes, including
the Collateral, wherever situated.
If an Event of Default with respect to the Notes occurs and is
continuing, the Indenture Trustee may in its discretion proceed to
protect and enforce its
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rights and the rights of the Holders of Notes by such appropriate
judicial proceedings as the Indenture Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in the Indenture or
in aid of the exercise of any power granted in the Indenture, or to
enforce any other proper remedy.
SECTION 6.04. Indenture Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, composition or other judicial proceeding relative
to the Trust or any other obligor upon the Notes or the property held in the
Trust or of such other obligor or their creditors, the Indenture Trustee
(irrespective of whether the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand on the Trust for the payment of any
overdue principal, premium or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal of,
and any premium and interest owing and unpaid in respect of, the Notes and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee, its
agents and counsel) and of the Holders allowed in such proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent, to make such payments directly to the Holders, and to pay to the
Indenture Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, and any other amounts due to the Indenture Trustee under Section 7.10.
Nothing contained in the Indenture shall be deemed to authorize
the Indenture Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment, or composition affecting any of the Notes or the rights of
any Holder thereof, or to authorize the Indenture Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.05. Indenture Trustee May Enforce Claims Without Possession of
Notes. All rights of action and claims under the Indenture or any of the Notes
may be prosecuted and enforced by the Indenture Trustee without the possession
of any of the Notes or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Indenture Trustee in
accordance with the terms of the Indenture shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel, be for the ratable
benefit of the Holders of Notes in respect of which such judgment has been
recovered.
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SECTION 6.06. Application of Money Collected. Notwithstanding anything in
the Indenture to the contrary, any money collected by the Indenture Trustee
following an Event of Default and during the continuance thereof pursuant to
Article 6 or otherwise under the Indenture or any supplements to the Indenture,
and any moneys that may then be held or thereafter received by the Indenture
Trustee as security with respect to the Notes shall be held in the Collection
Account and be applied in the following order, at the date or dates fixed by the
Indenture Trustee and, in case of the distribution on account of principal or
interest, upon presentation of the Notes, or both, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
first, to the (i) Indenture Trustee and any Agent, their agents
and counsel, for all amounts due them under Section 7.10 hereof, to be
shared pro rata amongst them, in an aggregate amount of no more than
$250,000 for all series of notes issued by all Trusts outstanding, to the
extent not previously paid and (ii) Trustee and Custodian, their agents and
counsel, for all amounts due them under Section 7.10 hereof, to be shared
pro rata amongst them, in an aggregate amount of no more than $250,000 for
all series of notes issued by all Trusts outstanding, to the extent not
previously paid; provided, however, that such amounts described in clauses
(i) and (ii) above shall rank pari passu;
second, to the payment of the amounts then due and unpaid upon
the Notes for principal and interest and all other amounts in respect of
which, or for the benefit of which, such amount has been collected,
ratably, without preference or priority of any kind, according to the
aggregate principal amounts due and payable on the Notes; and
third, any remaining balance shall be paid to the Trust and such
remaining balance shall be distributed by the Trustee in accordance with
the Trust Agreement.
Except as expressly set forth in this Section 6.06 and Section
7.10, none of the Indenture Trustee, Paying Agent, Registrar or any
other Agent or any of their successors, employees, officers,
directors, affiliates or agents shall have any claim or rights of any
nature in or to the Collateral, whether as a result of set-off,
banker's lien or otherwise, and the Indenture Trustee hereby waives,
and each of the Paying Agent and Registrar appointed under the
Indenture shall be deemed to have waived, by its acceptance of the
duties under the Indenture, on behalf of itself and each such other
Person, any such claim or rights in or to the Collateral.
SECTION 6.07. Limitation on Suits. Except as otherwise provided in Section
6.08, no Holder shall have any right to institute any proceedings, judicial or
otherwise, with respect to the Indenture or any agreement or instrument included
in the Collateral for the Notes or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default with respect to the Notes;
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(b) the Holder or Holders of Notes representing not less than
twenty-five percent (25%) of the aggregate principal amount of the Outstanding
Notes shall have made written request to the Indenture Trustee to institute
proceedings in respect of such Event of Default in its own name as Indenture
Trustee under the Indenture;
(c) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity or security satisfactory to it against the costs, expenses
and liabilities to be incurred in compliance with such request;
(d) the Indenture Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been given
to the Indenture Trustee during such sixty (60) day period by the Holder or
Holders of Notes representing at least 66 2/3% in aggregate principal amount of
the Outstanding Notes;
it being understood and intended that no one or more Holders of Notes
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of the Indenture to affect, disturb or
prejudice the rights of any other Holder of any Note or to obtain or
to seek to obtain priority or preference over any other Holder of any
Note or to enforce any right under the Indenture, except in the manner
provided in the Indenture and for the equal and ratable benefit of all
the Holders of the Notes.
SECTION 6.08. Unconditional Rights of Holders to Receive Payments.
Notwithstanding any other provision in the Indenture, each Holder of any Note
shall have the right, which is absolute and unconditional, to receive payment of
the principal of, any interest on, and premium, if any, on such Note on the
respective Stated Maturity Date or redemption date thereof and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 6.09. Restoration of Rights and Remedies. If the Indenture Trustee
or any Holder has instituted any proceeding to enforce any right or remedy under
the Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Indenture Trustee or to such
Holder, then and in every such case the Trust, the Indenture Trustee and each
such Holder shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions under the Indenture, and
thereafter all rights and remedies of the Indenture Trustee and each such Holder
shall continue as though no such proceeding had been instituted.
SECTION 6.10. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes in Section 2.08, no right or remedy in the Indenture conferred upon
or reserved to the Indenture Trustee or to each and every Holder is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given under the Indenture or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy under
the Indenture, or
59
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver. No delay or omission of the
Indenture Trustee or of any Holder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such right or remedy accruing upon any Event of Default or an
acquiescence therein. Every right and remedy given by this Article 6 or by law
to the Indenture Trustee or to any Holder may be exercised from time to time,
and as often as may be deemed expedient, by the Indenture Trustee or by such
Holder, as the case may be.
SECTION 6.12. Control by Holders. Holders, representing a majority of the
aggregate principal amount of the Outstanding Notes, who provide the Indenture
Trustee with indemnification satisfactory to the Indenture Trustee, shall have
the right to direct the time, method and place of conducting any proceedings for
exercising any remedy available to the Indenture Trustee or exercising any trust
or power conferred on the Indenture Trustee with respect to the Notes, including
with respect to the Collateral; provided, however, that (a) such direction shall
not be in conflict with any rule of law or with the Indenture, (b) the Indenture
Trustee may take any other action deemed proper by the Indenture Trustee that is
not inconsistent with such direction and (c) the Indenture Trustee need not take
any action which in its reasonable judgment would result in personal liability
for the Indenture Trustee.
SECTION 6.13. Waiver of Past Defaults. Notwithstanding anything in the
Indenture to the contrary, only Holders representing a majority of the aggregate
principal amount of the Outstanding Notes may on behalf of the Holders of all
the Notes waive any past Default with respect thereto and its consequences,
except a Default:
(a) in the payment of any principal of, any interest on, or premium,
if any, on any Note, or
(b) in respect of a covenant or provision of the Indenture that cannot
be modified or amended without the consent of the Holder of each Outstanding
Note.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for
every purpose of the Indenture with respect to the Notes; but no such
waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.
SECTION 6.14. Undertaking for Costs. All parties to the Indenture agree,
and each Holder, by acceptance of a Note, shall be deemed to have agreed that,
in any suit for the enforcement of any right or remedy under the Indenture, or
in any suit against the Indenture Trustee for any action taken, suffered or
omitted by it as Indenture Trustee, any court may in its discretion require the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 6.14 shall not apply to
any suit instituted by the Indenture Trustee or any Agent, to any suit
instituted
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by any Holder, or group of Holders, holding in the aggregate Notes representing
more than ten percent (10%) of the aggregate principal amount of the Outstanding
Notes, or to any suit instituted by any Holder for the enforcement of the
payment of any installment of interest on any Note on or after the Stated
Maturity Date thereof expressed in such Note or for the enforcement of the
payment of any principal of such Note at the Stated Maturity Date therefor.
SECTION 6.15. Waiver of Stay or Extension Laws. The Trust covenants that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any law wherever enacted, now or at any time
hereafter in force, providing for any appraisement, valuation, stay, extension
or redemption, which may affect the covenants in, or the performance of, the
Indenture; and the Trust hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power granted in the Indenture to the Indenture Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE 7
THE INDENTURE TRUSTEE AND OTHER AGENTS
SECTION 7.01. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise such of the rights and powers vested in it by
the Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) Except during the continuance of an Event of Default, (i) the
Indenture Trustee undertakes to perform only those duties that are specifically
set forth in the Indenture and no others, and no implied covenants or
obligations of the Indenture Trustee shall be read into this Indenture, and (ii)
in the absence of bad faith on its part, the Indenture Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Indenture
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Indenture Trustee, the Indenture Trustee shall
be under a duty to examine the same to determine whether or not they conform to
the requirements of the Indenture.
(c) No provision of the Indenture shall be construed to relieve the
Indenture Trustee or any Agent from liability for its own negligent action, its
own negligent failure to act, or its own bad faith or willful misconduct, except
that:
(i) this Section 7.01(c) does not limit the effect of
Section 7.01(b);
(ii) each of the Indenture Trustee and each Agent shall not
be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Indenture Trustee or
Agent, as the case may be, was negligent in ascertaining the pertinent
facts;
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(iii) the Indenture Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with the direction of Holders representing a majority of the aggregate
principal amount of the Outstanding Notes or pursuant to Section 6.07
for actions or omissions relating to the time, method and place of
conducting any proceeding for any remedy available to the Indenture
Trustee, or exercising any trust or power conferred upon the Indenture
Trustee, under the Indenture with respect to the Notes; and
(iv) no provision of the Indenture shall require the
Indenture Trustee or any Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties under the Indenture, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
the Indenture relating to the conduct or affecting the liability of or affording
protection to the Indenture Trustee shall be subject to the provisions of this
Section 7.01.
(e) The Indenture Trustee shall promptly upon its receipt thereof
deliver to each Rating Agency copies of each of the following:
(i) any notice of any Event of Default by any party under
the Funding Agreement delivered by the Trust to the Indenture Trustee
pursuant to paragraph (b) of Section 3.13;
(ii) any amendment or modification of the Trust Agreement
delivered by the Trust to the Indenture Trustee pursuant to paragraph
(a) of Section 3.12;
(iii) any notice of any Default or Event of Default,
together with any relevant Trust Certificate relating thereto,
delivered by the Trust to the Indenture Trustee pursuant to paragraph
(b) of Section 3.13;
(iv) any supplemental indenture referred to in Section 8.01
or 8.02;
(v) any other information reasonably requested by any Rating
Agency;
(vi) any notice of change in the identity of the Trust;
(vii) any notice of change in the identity of the Indenture
Trustee;
(viii) any notice of adverse change in the priority status
of the Funding Agreement as a matter of the laws of the State of Iowa;
and
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(ix) any notice of redemption delivered to the Indenture
Trustee under Section 2.04.
(f) The Indenture Trustee shall, on behalf of the Trust, and to the
extent that the relevant information shall be reasonably available to it, submit
such reports or information as may be required from time to time in relation to
the issue of the Notes by applicable law, regulations and guidelines by
governmental regulatory authorities as may be subsequently requested by the
Trust and agreed to in writing between the Trust and the Indenture Trustee.
SECTION 7.02. No Liability to Invest. Neither the Indenture Trustee nor the
Agents shall be under any liability for interest on, or have any responsibility
to invest, any monies received by it pursuant to any of the provisions of the
Indenture or the Notes.
SECTION 7.03. Performance Upon Default. None of the Agents shall have any
duty or responsibility in case of any default by the Trust in the performance of
its obligations (including, without limiting the generality of the foregoing,
any duty or responsibility to accelerate all or any of the Notes or to initiate
or to attempt to initiate any proceedings at law or otherwise or to make any
demand for the payment thereof upon the Trust).
SECTION 7.04. No Assumption by Paying Agent, Transfer Agent, Calculation
Agent or Registrar. In acting under the Indenture and in connection with the
Notes, the Paying Agent, the Transfer Agent, the Calculation Agent and the
Registrar shall act solely as agents of the Trust and will not thereby assume
any obligations towards, or relationship of agency or trust for, any of the
Holders.
SECTION 7.05. Notice of Default. Within ninety (90) days after a
Responsible Officer of the Indenture Trustee becomes aware of the occurrence of
any Default or Event of Default which is continuing, the Indenture Trustee shall
transmit to the Trustee and ING USA and all Holders of Notes notice of each such
Default or Event of Default known to the Indenture Trustee, unless such Default
or Event of Default shall have been cured or waived; provided, however, that,
except in the case of a Default of the kind described in Section 6.01(a), (b),
(c), (f) or (g) the Indenture Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Indenture
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders.
SECTION 7.06. Rights of Indenture Trustee. Subject to the provisions of
Section 7.01(c):
(a) The Indenture Trustee may conclusively rely and shall be protected
in acting or refraining from acting on any document believed by it in good faith
to be genuine and to have been signed or presented by the proper Person. The
Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee acts or refrains from acting,
including in connection with the issuance of the Notes pursuant to Section 2.02,
it may require a Trust Certificate or an Opinion of Counsel or both, and the
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on any such Trust Certificate or Opinion
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of Counsel, or upon any Trust Order, Trust Request or advice from financial or
other advisors or consultants appointed with due care.
(c) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within its
rights or powers.
(d) (i) The Indenture Trustee may employ or consult with counsel,
accountants, appraisers, agents or other experts or advisers of its selection
and as it may reasonably require for the purpose of determining and discharging
its rights and duties under the Indenture and shall not be responsible for
misconduct on the part of any such person appointed with due care.
(ii) The Indenture Trustee may conclusively act and rely and
shall be fully protected in acting and relying in good faith on the
opinion or advice of or information obtained from any counsel,
accountant, appraiser, agents or other expert or adviser, whether
retained or employed by the Trust or by the Indenture Trustee, in
relation to any matter arising in the administration of the trusts of
the Indenture.
(e) The Indenture Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by the Indenture at the request or
direction of any of the Holders pursuant to the Indenture, unless such Holders
shall have offered to the Indenture Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
(f) The Indenture 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, other evidence of indebtedness or other paper or document, but
the Indenture Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Indenture Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the Trust,
personally or by agent or attorney, with any reasonable costs related thereto to
be paid by ING USA pursuant to the applicable Expense and Indemnity Agreement,
and shall incur no liability or additional liability of any kind by reason of
such inquiry or investigation.
(g) The Indenture Trustee shall not be required to take notice or be
deemed to have notice of any Default or Event of Default unless a Responsible
Officer of the Indenture Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by a Responsible
Officer of the Indenture Trustee at the Corporate Trust Office of the Indenture
Trustee, and such notice references the Notes and the Indenture and states that
a Default or Event of Default has occurred. In the absence of receipt of such
notice or actual knowledge, the Indenture Trustee may conclusively assume that
there is no Default or Event of Default.
(h) Permissive powers granted to the Indenture Trustee under the
Indenture shall not be construed to be mandatory duties on its part.
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(i) The rights and protections afforded to the Indenture Trustee
pursuant to this Article 7 shall also be afforded to the Paying Agent,
Calculation Agent, Registrar or Transfer Agent, or any successor or agent
thereof.
(j) The Indenture Trustee shall have no liability for the actions or
omissions of the Paying Agent, Registrar, Calculation Agent or Transfer Agent,
provided that such action or omission is not caused by the Indenture Trustee's
own negligence, bad faith or willful misconduct.
(k) The Indenture Trustee may execute any of the trusts or powers
under the Indenture or perform any duties under the Indenture either directly or
by or through delegates, agents, attorneys, custodians or nominees, and the
Indenture Trustee shall not be responsible for any misconduct or negligence on
the part, or the supervision, of any agent, attorney, custodian or nominee
appointed with due care.
(l) The Indenture Trustee may request that the Trust deliver an
officer's certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to the
Indenture, which officer's certificate may be signed by any person authorized to
sign an officer's certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
(m) In no event shall the Indenture Trustee be responsible or liable
for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural catastrophes,
acts of God or interruptions, losses or malfunctions of utilities,
communications or computer (software and hardware) services, it being understood
that the Indenture Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
(n) In no event shall the Indenture Trustee be responsible or liable
for special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Indenture Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(o) The Indenture Trustee shall have no duty (A) to see to any
recording, filing, or depositing of these Standard Indenture Terms or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof or (B) to see to any insurance.
(p) The Indenture Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by these Standard Indenture Terms or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Holders, pursuant to the
provisions of these Standard Indenture Terms, unless such Holders shall have
offered to the Indenture Trustee security or indemnity satisfactory to the
Indenture Trustee against the costs, expenses and liabilities which may be
incurred therein or thereby (which in the
65
case of the Majority Holders will be deemed to be satisfied by a letter
agreement with respect to such costs from such Majority Holders).
(q) The right of the Indenture Trustee to perform any discretionary
act enumerated in these Standard Indenture Terms shall not be construed as a
duty, and the Indenture Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of such act.
(r) The Indenture Trustee shall not be required to give any bond or
surety in respect of the execution of the powers granted hereunder.
SECTION 7.07. Not Responsible for Recitals or Issuance of Notes. The
recitals contained in the Indenture and in the Notes, except the certificates of
authentication on the Notes, shall be taken as the statements of the Trust and
neither the Indenture Trustee nor any Agent assumes any responsibility for their
correctness. Neither the Indenture Trustee nor any Agent makes any
representations with respect to any Collateral or as to the validity,
enforceability or sufficiency of the Indenture or of the Notes or of any
security interest created under the Indenture. Neither the Indenture Trustee nor
any Agent shall be accountable for the use or application by the Trust of the
Notes or the proceeds thereof or any money paid to the Trust or upon Trust Order
pursuant to the provisions of the Indenture.
SECTION 7.08. Indenture Trustee May Hold Notes. The Indenture Trustee, in
its individual or any other capacity, may become the owner or pledgee of Notes
and, subject to Section 7.11 and Section 311(a) of the Trust Indenture Act, may
otherwise deal with the Trust with the same rights it would have if it were not
Indenture Trustee.
SECTION 7.09. Money Held in Trust. Money held by the Indenture Trustee in
trust under the Indenture need not be segregated from other funds except to the
extent required by the Indenture or by law. The Indenture Trustee shall be under
no liability for interest on any money received by it under the Indenture and
shall not invest such money, unless otherwise agreed to in writing and permitted
by law.
SECTION 7.10. Compensation and Reimbursement. The Trust shall or, pursuant
to the Expense and Indemnity Agreement, cooperate with ING USA in order to:
(a) pay the Indenture Trustee, the Trustee, the Custodian and the
Agents from time to time such compensation as shall be agreed upon in writing
with the Indenture Trustee, the Trustee, the Custodian and the Agents for all
services rendered by them hereunder and under the other Program Documents (which
compensation shall not be limited by provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the
Indenture Trustee, the Trustee, the Custodian and the Agents upon their request
for all reasonable expenses, disbursements and advances incurred or made by them
in accordance with any provision of this Indenture or the other Program
Documents (including the compensation and the expenses and disbursements of
their agents and counsel), except any such expense, disbursement or advance as
may be attributable to their negligence or bad faith; and
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(c) indemnify each of the Indenture Trustee, the Trustee, the
Custodian and the Agents and their agents for, and to hold them harmless
against, any and all loss, damage, claims, liability or expense, including taxes
(other than taxes based upon, measured by or determined by their income),
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claims or liability in connection with the exercise or performance
of any of its powers or duties hereunder, or in connection with enforcing the
provisions of this Section, except to the extent that such loss, damage, claim,
liability or expense is due to its own negligence or bad faith.
The obligations of the Trust under this Section 7.10 shall survive the
resignation or removal of the Indenture Trustee, the Trustee or the Custodian,
as well as the satisfaction and discharge of this Indenture and the termination
of this Indenture.
To secure the Trust's obligations under this Section 7.10, each
of the Indenture Trustee, the Trustee and the Custodian shall have a
lien prior to the Notes on all money or property held or collected by
the Indenture Trustee, except that held in trust to pay principal or
interest on particular Notes. Such lien shall survive the resignation
or removal of the Indenture Trustee, the Trustee or the Custodian, as
well as the satisfaction and discharge of this Indenture and the
termination of this Indenture.
When any of the Indenture Trustee, the Trustee or the Custodian
incurs expenses or renders services after an Event of Default
specified in Section 6.01(f) or (g) occurs, the expenses and the
compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 7.11. Eligibility. The Trust agrees, for the benefit of the
Holders, that there shall at all times be an Indenture Trustee under the
Indenture which shall be a corporation or national banking association organized
and doing business under the laws of the United States, any state thereof or the
District of Columbia, authorized under such law to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000 subject to
supervision or examination by federal or state authority and having a credit
rating of BBB- or better by Standard & Poor's Ratings Service, a Division of the
McGraw-Hill Companies or a credit rating of Baa3 or better by Moody's Investors
Service, Inc. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 7.11, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition as
published. If at any time the Indenture Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.11, it shall resign immediately
in the manner and with the effect specified in this Article 7.
Notwithstanding any provision of the Indenture to the contrary,
the Indenture Trustee also must meet the requirements set forth in
Section 310 of the Trust Indenture Act, as applicable. In addition,
the Indenture Trustee, each successor Indenture Trustee and each
Person appointed to act as co-trustee
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pursuant to Section 7.15 must be a "United States person" within the
meaning of Section 7701(a)(30) of the Code.
SECTION 7.12. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Section 7.12 shall
become effective until the acceptance of appointment by the successor Indenture
Trustee under Section 7.13.
(b) The Indenture Trustee may resign at any time by giving not less
than sixty (60) days' prior written notice thereof to the Trust and the Holders
of the Notes. If an instrument of acceptance by a successor Indenture Trustee
shall not have been delivered to the Indenture Trustee within thirty (30) days
after the giving of such notice of resignation, the resigning Indenture Trustee
may petition any court of competent jurisdiction at the expense of the Trust for
the appointment of a successor Indenture Trustee and any and all amounts then
due and owing to the retiring Indenture Trustee shall be paid in full.
(c) The Indenture Trustee may be removed at any time by an Act of
Holders of Notes representing a majority of the aggregate principal amount of
the Outstanding Notes, delivered to the Indenture Trustee and to the Trust. If
an instrument of acceptance by a successor Indenture Trustee shall not have been
delivered to the Indenture Trustee within thirty (30) days after the giving of
such notice of removal, the Indenture Trustee being removed may petition, at the
expense of the Trust, any court of competent jurisdiction for the appointment of
a successor Indenture Trustee with respect to the Notes.
(d) If at any time (i) the Indenture Trustee shall cease to be
eligible under Section 7.11 and shall fail to resign after written request by
the Trust or any Holder (who has been a bona fide Holder of a Note for at least
six months), (ii) shall become incapable of acting or shall be adjudged as
bankrupt or insolvent, or a receiver or liquidator of the Indenture Trustee or
of its property shall be appointed, or any public officer shall take charge or
control of the Indenture Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation or (iii) the Indenture Trustee
shall fail to comply with the obligations imposed upon it under Section 310(b)
of the Trust Indenture Act with respect to the Notes after written request
therefor by the Trust or any Holder who has been a bona fide Holder of a Note
for at least six months, then (x) the Trust (except during the existence of an
Event of Default) by a Trust Order may remove the Indenture Trustee, or (y)
subject to Section 6.14, any Holder who has been a bona fide Holder for at least
six months may, on behalf of himself, herself or itself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
(e) If the Indenture Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Indenture
Trustee for any reason, the Trust, by a Trust Order, shall promptly appoint a
successor Indenture Trustee and shall comply with the applicable requirements of
Section 7.13. If, within one year after such resignation, removal or
incapability or the occurrence of such vacancy, a successor Indenture Trustee
shall be appointed by Act of Holders of Notes representing a majority of the
aggregate principal amount of the Outstanding Notes delivered to the Trust and
the retiring Indenture Trustee, the successor
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Trustee so appointed shall, upon its acceptance of such appointment in
accordance with the applicable requirements of Section 7.13, become the
successor Indenture Trustee and supersede the successor Indenture Trustee
appointed by the Trust. If no successor Indenture Trustee shall have been so
appointed by the Trust or Holders and shall have accepted appointment in the
manner provided in the Indenture, any Holder who has been a Holder for at least
six months may (subject to Section 6.14), on behalf of himself, herself or
itself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
(f) The Trust shall give notice of each resignation and each removal
of the Indenture Trustee and each appointment of a successor Indenture Trustee
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of the Notes, if any, as their names and addresses appear in the
Register. Each notice shall include the name of the successor Indenture Trustee
and the address of its Corporate Trust Office.
(g) Any successor Indenture Trustee shall satisfy all applicable
requirements under the Indenture.
SECTION 7.13. Acceptance of Appointment by Successor.
(a) Every successor Indenture Trustee appointed under the Indenture
shall execute, acknowledge and deliver to the Trust and the retiring Indenture
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Indenture Trustee shall become effective and such
successor Indenture Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Indenture Trustee. Notwithstanding the foregoing, on request of the Trust or the
successor Indenture Trustee, such retiring Indenture Trustee shall, upon payment
of all amounts owed to it, execute and deliver an instrument transferring to
such successor Indenture Trustee all the rights, powers and trusts of the
retiring Indenture Trustee, and shall duly assign, transfer and deliver to such
successor Indenture Trustee all property and money held by such retiring
Indenture Trustee under the Indenture.
(b) Upon request of any such successor Indenture Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Indenture Trustee all such rights, powers and
trusts referred to in this Section 7.13, as the case may be.
(c) No successor Indenture Trustee shall accept its appointment unless
at the time of such acceptance such successor Indenture Trustee shall be
qualified and eligible under this Article 7.
SECTION 7.14. Merger, Conversion, Consolidation or Succession to Business
of Indenture Trustee. Any corporation or national banking association into which
the Indenture Trustee may be merged or converted or with which it may be
consolidated, or any corporation or national banking association resulting from
any merger, conversion or consolidation to which the Indenture Trustee shall be
a party, or any corporation or national banking association succeeding to all or
substantially all of the corporate trust business of the Indenture Trustee,
shall be the successor of the Indenture Trustee under the Indenture, without the
execution or filing of any
69
paper or any further act on the part of any of the parties to the Indenture;
provided, however, that such corporation or national banking association shall
be otherwise qualified and eligible under this Article 7. In case any Notes have
been authenticated, but not delivered, by the Indenture Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Indenture Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Indenture Trustee had
authenticated such Notes.
SECTION 7.15. Co-trustees.
(a) At any time or times, for the purpose of meeting the legal or
regulatory requirements of any jurisdiction in which any portion of any
Collateral may at the time be located, the Trust and the Indenture Trustee shall
have power to appoint, and, upon the written request of the Holders of Notes
representing a majority of the aggregate principal amount of the Outstanding
Notes, the Trust shall for such purpose join with the Indenture Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to appoint one or more Persons approved by the Indenture Trustee to
act as co-trustee, jointly with the Indenture Trustee, of all or any part of the
Collateral, with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section 7.15. If the Trust does not join in such
appointment within fifteen (15) days after the receipt by it of a request so to
do, or in case an Event of Default has occurred and is continuing, the Indenture
Trustee alone shall have power to make such appointment.
(b) Should any written instrument from the Trust be required by any
co-trustee so appointed for more fully confirming to such co-trustee such
property, title, right or power, any and all such instruments shall, on request,
be executed, acknowledged and delivered by the Trust.
(c) Every co-trustee shall, to the extent permitted by law, but to
such extent only, be appointed subject to the following terms:
(i) the Notes shall be authenticated and delivered and all
rights, powers, duties and obligations under the Indenture in respect
of the custody of securities, cash and other personal property held
by, or required to be deposited or pledged with, the Indenture Trustee
under the Indenture, shall be exercised solely by the Indenture
Trustee;
(ii) the rights, powers, duties and obligations conferred by
the Indenture or imposed upon the Indenture Trustee shall be conferred
or imposed upon and exercised or performed by the Indenture Trustee or
by the Indenture Trustee and such co-trustee jointly, as shall be
provided in the instrument appointing such co-trustee, except to the
extent that, under any law of any jurisdiction in which any particular
act is to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties and obligations shall be exercised and performed by such
co-trustee;
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(iii) the Indenture Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Trust evidenced by
a Trust Request, may accept the resignation of or remove any
co-trustee appointed under this Section 7.15, and, in case an Event of
Default has occurred and is continuing, the Indenture Trustee shall
have power to accept the resignation of, or remove, any such
co-trustee without the concurrence of the Trust. Upon the written
request of the Indenture Trustee, the Trust shall join with the
Indenture Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee so resigned or
removed may be appointed in the manner provided in this Section 7.15;
(iv) no co-trustee under the Indenture shall be personally
liable by reason of any act or omission of the Indenture Trustee or
any other such trustee under the Indenture and the Indenture Trustee
shall not be personally liable by reason of any act or omission of any
co-trustee under the Indenture; and
(v) any Act of Holders delivered to the Indenture Trustee
shall be deemed to have been delivered to each such co-trustee.
SECTION 7.16. Appointment and Duties of the Calculation Agent.
(a) Unless the Paying Agent advises the Trust that it is unable to act
as Calculation Agent, the Trust appoints the Paying Agent at its specified
office as Calculation Agent in relation to the Notes in respect of which it is
named as such in the relevant Pricing Supplement for the purposes specified in
the Indenture and all matters incidental thereto.
(b) The Paying Agent accepts its appointment as Calculation Agent in
relation to the Notes in respect of which it is named as such in the relevant
Pricing Supplement and shall perform all matters expressly to be performed by it
in, and otherwise comply with, the terms and conditions of the Notes and the
provisions of the Indenture and, in connection therewith, shall take all such
action as may be incidental thereto. The Paying Agent acknowledges and agrees
that it shall be named in the relevant Pricing Supplement as Calculation Agent
in respect of the Notes unless the Relevant Agents (or one of the Relevant
Agents) through whom the Notes are issued has agreed with the Trust to act as
Calculation Agent (in which case such Relevant Agent or Agents shall be named as
Calculation Agent in the related Pricing Supplement). If the Calculation Agent
is incapable or unwilling to perform its duties under the Indenture, the Trust
will appoint the Paying Agent or another leading commercial bank to serve as
Calculation Agent. Any resignation by or termination of a Calculation Agent
shall not be effective until a successor Calculation Agent has been appointed.
(c) The Calculation Agent shall:
(i) obtain such quotes and rates and/or make such
determinations, calculations and adjustments as may be required under
the Notes and provide notice of any applicable interest rate
calculations or determinations or periods with respect to the Notes to
the Holders of the Notes upon their request
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and to the Indenture Trustee, the Paying Agent, the Trust and ING USA
and if the Notes are listed on a stock exchange, and the rules of such
exchange so require, such exchange as soon as possible after the
Calculation Agent's determination or calculation of such interest
rates or interest rate periods, but in no event later than the fourth
(4th) Banking Day thereafter, or earlier in the case of notification
to a stock exchange, if the rules of such exchange so require; and
(ii) maintain a record of all quotations obtained by it and
of all amounts, rates and other items determined or calculated by it
and make such record available for inspection at all reasonable times
by the Trust, the Indenture Trustee, ING USA and the Paying Agent.
(d) All determinations, calculations, quotes or rates of interest made
or obtained by the Calculation Agent shall, in the absence of manifest errors,
be conclusive for all purposes and binding on the Holders of the Notes.
SECTION 7.17. Changes in Agents.
(a) Any Agent may resign its appointment under the Indenture upon the
expiration of not less than thirty (30) days' notice to that effect to the Trust
(with a copy to the Indenture Trustee); provided, however, that any such notice
which would otherwise expire within thirty (30) days before or after the
Maturity Date or any interest or other payment date of the Notes shall be deemed
to expire on the thirtieth (30th) day following the Maturity Date or, as the
case may be, such interest or other payment date.
(b) The Trust may revoke its appointment of any Agent under the
Indenture by giving not less than thirty (30) days' notice to the applicable
Agent and the Indenture Trustee to that effect.
(c) The appointment of any Agent under the Indenture shall terminate
forthwith if any of the following events or circumstances shall occur or arise,
namely: such Agent becomes incapable of acting; such Agent is adjudged bankrupt
or insolvent; such Agent files a voluntary petition in bankruptcy or makes an
assignment for the benefit of its creditors or consents to the appointment of a
receiver, administrator or other similar official of all or any substantial part
of its property or admits in writing its inability to pay or meet its debts as
they mature or suspends payment thereof; a resolution is passed or an order is
made for the winding-up or dissolution of such Agent; a receiver, administrator
or other similar official of such Agent or of all or any substantial part of its
property is appointed; an order of any court is entered approving any petition
filed by or against such Agent under the provisions of any applicable bankruptcy
or insolvency law; or any public officer takes charge or control of such Agent
or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation.
(d) The Trust may (and shall where necessary to comply with the terms
and conditions of the Notes) appoint substitute or additional agents in relation
to the Notes and shall forthwith notify the other parties to the Indenture,
whereupon the parties to the Indenture and such substitute or additional agents
shall thereafter have the same rights and obligations among
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them as would have been the case had they then entered into an agreement in the
form mutatis mutandis of the Indenture.
(e) If any Agent gives notice of its resignation in accordance with
this Section 7.17, the provisions of paragraph (d) of Section 7.17 apply and by
the tenth (10th) day before the expiration of such notice a successor to such
Agent in relation to such Notes has not been appointed by the Trust, such Agent
may itself (but shall not be obligated to), following such consultation with the
Trust as may be practicable in the circumstances, appoint as its successor any
reputable and experienced bank or financial institution (which will ensure
compliance with the terms and conditions of the Notes) and give notice of such
appointment in accordance with the terms and conditions of the Notes, whereupon
the parties to the Indenture and such successor agent shall thereafter have the
same rights and obligations among them as would have been the case had they then
entered into an agreement in the form mutatis mutandis of the Indenture.
(f) Upon any resignation or revocation becoming effective under this
Section 7.17, the relevant Agent shall:
(i) be released and discharged from its obligations under
the Indenture;
(ii) repay, in accordance with the applicable Expense and
Indemnity Agreement, to ING USA such part of any fee paid to it as may
be agreed between the relevant Agent and ING USA;
(iii) in the case of the Paying Agent, deliver to the Trust
and to the successor Paying Agent a copy, certified as true and
up-to-date by an officer of the Paying Agent, of the records
maintained by it in accordance with Section 3.04;
(iv) in the case of the Registrar, deliver to the Trust and
to the successor Registrar a copy, certified as true and up-to-date by
an officer of such Registrar, of each of the Registers and other
records maintained by it in accordance with Section 2.06;
(v) in the case of a Calculation Agent, deliver to the Trust
and to the successor Calculation Agent a copy, certified as true and
up-to-date by an officer of such Calculation Agent, of the records
maintained by it in accordance with Section 7.16; and
(vi) upon payment to it by ING USA of all amounts owed to
it, forthwith transfer all moneys and papers (including any unissued
Global Notes or Definitive Notes) held by it under the Indenture to
its successor in that capacity and, upon appropriate notice, provide
reasonable assistance to such successor for the discharge by it of its
duties and responsibilities under the Indenture.
(g) Any corporation into which any Agent may be merged or converted,
any corporation with which any Agent may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any Agent shall
be a party or any corporation
73
succeeding to all or substantially all the corporate agency business of such
Agent, shall, to the extent permitted by applicable law, be the successor to
such Agent under the Indenture and in relation to the Notes without any further
formality, whereupon the parties to the Indenture and such successor agent shall
thereafter have the same rights and obligations among them as would have been
the case had they then entered into an agreement in the form mutatis mutandis of
the Indenture. Notice of any such merger, conversion, consolidation or asset
transfer shall forthwith be given by such successor to the Trust and the other
parties to the Indenture.
(h) If any Agent decides to change its specified office (which may
only be effected within the same city) it shall give notice to the Trust (with a
copy to the Indenture Trustee) of the address of the new specified office
stating the date on which such change is to take effect, which date shall be not
less than thirty (30) days after the date of such notice. The relevant Agent
shall at its own expense not less than fourteen (14) days prior to the date on
which such change is to take effect (unless the appointment of the relevant
Agent is to terminate pursuant to any of the foregoing provisions of this
Section on or prior to the date of such change) publish or cause to be published
notice thereof.
Upon the execution of the Indenture and thereafter forthwith
upon any change of the same, the Trust shall deliver to the Indenture
Trustee (with a copy to the Paying Agent) a list of the Authorized
Signatories of the Trust together with certified specimen signatures
of the same.
SECTION 7.18. Limitation of Trustee Liability. It is expressly understood
and agreed by the parties that (a) the Indenture is executed and delivered by
U.S. Bank National Association, not individually or personally, but solely as
trustee of the Trust, in the exercise of the powers and authority conferred and
vested in it, pursuant to the Trust Agreement, (b) each of the representations,
undertakings and agreements in the Indenture made on the part of the Trust is
made and intended not as personal representations, undertakings and agreements
by U.S. Bank National Association, but is made and intended for the purpose of
binding only the Trust, (c) nothing contained in the Indenture shall be
construed as creating any liability on the part of U.S. Bank National
Association, individually or personally, to perform any covenant either
expressed or implied contained in the Indenture, all such liability, if any,
being expressly waived by the parties to the Indenture and by any person
claiming by, through or under the parties to the Indenture, and (d) under no
circumstances shall U.S. Bank National Association be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under the Indenture or any other related documents.
Each Holder, by accepting a Note, hereby authorizes and directs the
Indenture Trustee to enter into the Custodial Agreement and to appoint the
Custodian for the benefit of the Indenture Trustee and the Holders.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Holders. Without
notice to, or the consent of, any Holder, the Trust and the Indenture Trustee,
at any time and from time
74
to time, may enter into one or more indentures supplemental to the Indenture, in
form satisfactory to the Indenture Trustee, for the purpose of:
(a) curing any ambiguity or correcting or supplementing any provision
contained in the Indenture, in the Notes or in any supplemental indenture which
may be defective or inconsistent with any other provision contained in the
Indenture, the Notes, the Funding Agreement or any other Program Documents,
which shall not materially adversely affect the interests of any Holder of the
Notes (as evidenced by an Opinion of Counsel);
(b) evidencing and providing for the acceptance of appointment under
the Indenture of a successor Indenture Trustee and to add or to change any of
the provisions of the Indenture as shall be necessary to provide for or
facilitate the administration of the Trust or of the Notes under the Indenture
by more than one trustee;
(c) adding to the covenants of the Trust or the Indenture Trustee for
the benefit of the Holders of the Notes or to surrender any right or power
conferred in the Indenture on the Trust;
(d) adding any additional Events of Default;
(e) providing for the issuance of and establish the form and terms and
conditions of Notes as provided in Section 2.02; or
(f) establishing the form of any certifications required to be
furnished pursuant to the terms of the Indenture or of the Notes.
Notwithstanding any other provision, the Trust will not enter
into any supplemental indenture with the Indenture Trustee or permit
the Indenture to be amended or modified if such supplemental
indenture, amendment or modification would cause the Trust not to be
disregarded or treated as a grantor trust (assuming the Trust were not
disregarded) for United States federal income tax purposes, as
evidenced by an Opinion of Counsel.
SECTION 8.02. Supplemental Indenture With Consent of Holders.
(a) With the consent of the Holders of Notes representing a majority
in aggregate principal amount of all Outstanding Notes affected by such
supplemental indenture, by Act of said Holders delivered to the Trust and the
Indenture Trustee, the Trust and the Indenture Trustee may enter one or more
indentures supplemental to the Indenture for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, the Indenture or of modifying in any manner the rights of the Holders of the
Notes under the Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Note affected
thereby:
(i) change the Stated Maturity Date of the principal of, or
the time of payment of interest on, any Note;
(ii) reduce the principal amount of, or the interest on, any
Note;
75
(iii) change any Place of Payment where, or the coin or
currency in which the principal of, or interest on, any Note is
payable;
(iv) impair or affect the right of any Holder to institute
suit for the enforcement of any payment on or with respect to the
Notes;
(v) reduce the percentage of the aggregate principal amount
of the Outstanding Notes, the consent of the Holders of which is
required for any such supplemental indenture, or the consent of the
Holders of which is required for any waiver of compliance with
provisions of the Indenture or defaults thereunder and their
consequences provided for in the Indenture;
(vi) modify any of the provisions of this Section 8.02 or
similar provisions, except to increase any percentage specified in the
Indenture or to provide that additional provisions of the Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(vii) modify or alter the provisions of the definition of
the term "Outstanding";
(viii) modify or affect in any manner adverse to the
interest of any Holder the terms and conditions of the obligations of
the Trust regarding the due and punctual payment of the principal of
or interest on, or any other amounts due with respect to, the Notes;
or
(ix) permit the creation of any Lien ranking prior to or on
a parity with the Lien of the Indenture with respect to any part of
any Collateral or terminate the Lien of the Indenture on any property
held for the benefit and security of Holders at any time subject to
the Indenture or deprive any Holder of the security afforded by the
Lien of the Indenture.
(b) The Indenture Trustee may receive and conclusively rely upon an
Opinion of Counsel stating whether or not any Notes would be affected by any
supplemental indenture and any such opinion shall be conclusive upon all the
Holders, whether theretofore or thereafter authenticated and delivered under the
Indenture. It shall not be necessary for any Act of Holders under this Section
8.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof. Promptly
after the execution by the Trust and the Indenture Trustee of any supplemental
indenture pursuant to this Section 8.02, the Indenture Trustee shall mail to the
Holders of the Notes a notice setting forth in general terms the substance of
such supplemental indenture. Any failure of the Trust to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
(c) Notwithstanding any other provision, the Trust will not enter into
any supplemental indenture with the Indenture Trustee or permit the Indenture to
be amended or modified if such supplemental indenture, amendment or modification
would cause the Trust not to be disregarded or treated as a grantor trust
(assuming it were not disregarded) for United States federal income tax
purposes, as evidenced by an Opinion of Counsel.
76
SECTION 8.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by the
Indenture, the Indenture Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel or
officer's certificate stating that the execution of such supplemental indenture
is authorized or permitted by the Indenture and that all conditions precedent to
the execution of such supplemental indenture have been complied with. The
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights, duties,
indemnities or immunities under the Indenture or otherwise.
SECTION 8.04. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture under this Article 8, the Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of the
Indenture for all purposes; and every Holder of a Note which has theretofore
been or thereafter authenticated and delivered under the Indenture shall be
bound thereby. Further, the Trust shall be bound by any such supplemental
indenture.
SECTION 8.05. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 8 may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Trust shall so determine,
new Notes so modified as to conform, in the opinion of the Indenture Trustee and
the Trust, to any such supplemental indenture may be prepared and executed by
the Trust and authenticated by the Indenture Trustee and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
SECTION 8.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 8 shall conform to the requirements
of the Trust Indenture Act as then in effect.
ARTICLE 9
NON-RECOURSE PROVISIONS
SECTION 9.01. Nonrecourse Enforcement. Notwithstanding anything to the
contrary contained in the Indenture or any Notes, none of ING USA, its officers,
directors, Affiliates, employees or agents, or the Trust or any of the Trustee,
the Trust Beneficial Owner, the Agents or any of their respective officers,
directors, Affiliates, employees or agents (the "NONRECOURSE PARTIES") will be
personally liable for the payment of any principal, interest or any other sums
at any time owing under the terms of the Notes. If any Event of Default shall
occur with respect to the Notes, the right of the Holders of the Notes and the
Indenture Trustee on behalf of such Holders in connection with a claim on such
Notes shall be limited solely to a proceeding against the Collateral. Neither
such Holders nor the Indenture Trustee on behalf of such Holders will have the
right to proceed against the Nonrecourse Parties or the assets held in any other
trust organized under the Program or otherwise, to enforce the Notes (except
that to the extent they exercise their rights, if any, to seize the Funding
Agreement, they may enforce the Funding
77
Agreement against ING USA, its successors or assigns) or for any deficiency
judgment remaining after foreclosure of any property included in the Collateral.
It is expressly understood and agreed that nothing contained in
this Section 9.01 shall in any manner or way constitute or be deemed a
release of the debt or other obligations evidenced by the Notes or
otherwise affect or impair the enforceability against the Trust of the
liens, assignments, rights and security interests created by the
Indenture, the Collateral or any other instrument or agreement
evidencing, securing or relating to the indebtedness or the
obligations evidenced by the Notes. Nothing in this Section 9.01 shall
preclude the Holders from foreclosing upon any property included in
the Collateral.
Holders may not seek to enforce rights against the Trust (a) by
commencing any recovery or enforcement proceedings against the Trust,
(b) by applying to wind up the Trust, (c) otherwise than through the
Indenture Trustee in its exercise of powers to petition a court to
appoint a receiver or administrator to the Trust or for the
Collateral, (d) by making any statutory demand upon the Trust under
applicable corporation law, or (e) in any other manner except as may
be provided in the Indenture or in the Notes.
ARTICLE 10
MEETINGS OF HOLDERS OF NOTES
SECTION 10.01. Purposes for Which Meetings May be Called. A meeting of
Holders of Notes may be called at any time and from time to time pursuant to
this Article 10 to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by the Indenture to
be made, given or taken by the Holders of Notes.
SECTION 10.02. Call, Notice and Place of Meetings.
(a) Unless otherwise provided in the Notes, the Indenture Trustee may
at any time call a meeting of Holders of the Notes for any purpose specified in
Section 10.01, to be held at such time and at such place in The City of New York
or such other place as the Indenture Trustee shall determine. Notice of every
meeting of Holders, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 1.06, not less than twenty-one (21) nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Trust or the Holders of at least ten
percent (10%) in principal amount of the Outstanding Notes shall have requested
the Indenture Trustee to call a meeting of Holders for any purpose specified in
Section 10.01, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Indenture Trustee shall not have
made the first publication or mailing of the notice of such meeting within
twenty-one (21) days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided in the Indenture, then the
Trust or the Holders of Notes in the amount above specified, as the case may be,
may determine the time and the place in The City of New York
78
and may call such meeting for such purposes by giving notice thereof as provided
in paragraph (a) of this Section 10.02.
SECTION 10.03. Persons Entitled to Vote at Meetings. To be entitled to vote
at any meeting of Holders, a Person shall be (a) a Holder of one or more
Outstanding Notes or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Notes by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Indenture Trustee and its counsel and
any representatives of the Trust and its counsel.
SECTION 10.04. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Notes shall constitute a quorum for a
meeting of Holders; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which the Indenture expressly
provides may be given by the Holders of a majority in principal amount of the
Outstanding Notes, the Persons entitled to vote a majority in principal amount
of the Outstanding Notes shall constitute a quorum. In the absence of a quorum
within thirty (30) minutes after the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders, be dissolved. In any other
case the meeting may be adjourned for a period of not less than ten (10) days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than ten
(10) days as determined by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 10.02(a), except that such notice need be
given only once not less than five (5) days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Notes which shall constitute a quorum.
Except as limited by Section 8.02(a) and Section 6.02, any
resolution presented to a meeting or adjourned meeting duly reconvened
at which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in principal amount of
the Outstanding Notes; provided, however, that, except as limited by
Section 8.02(a) and Section 6.02, any resolution with respect to any
consent or waiver which the Indenture expressly provides may be given
by the Holders of a majority in principal amount of the Outstanding
Notes may be adopted at a meeting or an adjourned meeting duly
convened and at which a quorum is present as aforesaid only by the
affirmative vote of the Holders of a majority in principal amount of
the Outstanding Notes; and provided, further, that, except as limited
by Section 8.02(a) and Section 6.02, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver
or other action which the Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less
than a majority in principal amount of the Outstanding Notes, may be
adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the
Outstanding Notes.
79
Notwithstanding the preceding two paragraphs, any request,
demand, authorization, direction, notice, consent, waiver or other
action of Holders under the Indenture or the Notes may be embodied in
and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed
in writing; and, except as otherwise expressly provided in the
Indenture, such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee and, when it is
expressly required, to the Trust. The percentage of principal amount
of the Outstanding Notes held by the Holders delivering such
instruments which is required to approve any such action shall be the
same as the percentage required for approval at a duly convened
meeting of Holders.
Any resolution passed or decision taken at any meeting of Holders
duly held or by duly executed instrument in accordance with this
Section 10.04 shall be binding on all Holders of the Notes, whether or
not such Holders were present or represented at the meeting.
SECTION 10.05. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of the Indenture, the
Indenture Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders in regard to proof of the holding of Notes and of the
appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Notes shall be proved in the
manner specified in Section 1.04 and the appointment of any proxy shall be
proved in the manner specified in Section 1.04. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.04 or other
proof.
(b) The Indenture Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall have been called
by the Trust or by Holders as provided in Section 10.02(b), in which case the
Trust or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled to
vote a majority in principal amount of the Outstanding Notes represented at the
meeting.
(c) At any meeting, each Holder or proxy shall be entitled to one vote
for each $1,000 of principal amount of Notes held or represented by him, her or
it; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not Outstanding and ruled by the chairman of
the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder or proxy.
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(d) Notwithstanding any other provision in the Indenture to the
contrary, any meeting of Holders duly called pursuant to Section 10.02 at which
a quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in principal amount of the Outstanding Notes represented at the
meeting; and the meeting may be held as so adjourned without further notice.
SECTION 10.06. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders shall be by written
ballots on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Notes held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 10.02 and, if
applicable, Section 10.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Trust, and another to the Indenture Trustee to be
preserved by the Indenture Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE 11
NOTES IN FOREIGN CURRENCIES
SECTION 11.01. Notes in Foreign Currencies. In the absence of any provision
to the contrary in the form of Notes, whenever the Indenture provides for (a)
any action by, or the determination of any of the rights of, the Holders of
Notes if not all of the Notes are denominated in the same currency, or (b) any
distribution to the Holders of Notes of any amount in respect of any Note
denominated in a currency other than U.S. Dollars, then all foreign denominated
Notes shall be treated for any such action, determination of rights or
distribution as that amount of U.S. Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the Regular Record Date
with respect to such Notes for such action, determination of rights or
distribution (or, if there shall be no applicable Regular Record Date, such
other date reasonably proximate to the date of such action, determination of
rights or distribution) as the Trust may specify in a written notice to the
Indenture Trustee or, in the absence of such written notice, as the Indenture
Trustee may determine.
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EXHIBIT A-1
FORM OF RETAIL GLOBAL NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
(HEREINAFTER DEFINED) AND IS REGISTERED IN THE NAME OF A DEPOSITARY
(AS DEFINED IN THE INDENTURE) OR A NOMINEE OF A DEPOSITARY. THIS NOTE
IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUST
(HEREINAFTER DEFINED) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND UNLESS ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP NO.: ______________ PRINCIPAL AMOUNT: U.S. $_______________
ISIN NO.: ______________
ING USA GLOBAL FUNDING TRUST __________
ING(SM) USA CORENOTES(R)
Original Issue Date: __________ Floating Rate Note: [ ] Yes [ ] No. If yes,
Issue Price: __________ Regular Floating Rate Notes [ ]
Stated Maturity Date: __________ Floating Rate/Fixed Rate Notes [ ]
Settlement Date: __________ Fixed Rate/Floating Rate Notes [ ]
Securities Exchange Listing: [ ] Yes [ ] No. If yes, Interest Rate Basis(es): __________
indicate name(s) of Securities Exchange(s): LIBOR [ ]
__________________________________________. [ ] LIBOR Reuters Page:
A-1-1
Depositary: __________ [ ] LIBOR Telerate Page:
Authorized Denominations: __________ LIBOR Currency: __________
Collateral held in the Trust: ING USA Annuity and Life CMT Rate [ ]
Insurance Company Funding Agreement No. _____, all
proceeds of the Funding Agreement and all rights
and books and records pertaining to the Designated CMT Telerate Page: __________
foregoing. If Telerate Page 7052: __________
Interest Rate or Formula: __________ [ ] Weekly Average
Fixed Rate Note: [ ] Yes [ ] No. If yes, [ ] Monthly Average
Interest Rate: __________ Designated CMT Maturity Index: __________
Interest Payment Frequency: __________ CD Rate [ ]
Interest Payment Dates: __________ Commercial Paper Rate [ ]
Day Count Convention: __________ Constant Maturity Swap Rate [ ]
Additional/Other Terms: __________ Federal Funds Open Rate [ ]
Discount Note: [ ] Yes [ ] No. If yes, Federal Funds Rate [ ]
Total Amount of Discount: __________ Prime Rate [ ]
Initial Accrual Period of Discount: __________ Treasury Rate [ ]
Interest Payment Dates: __________ Index Maturity: __________
Additional/Other Terms: __________ Spread and/or Spread Multiplier: __________
Redemption Provisions: [ ] Yes [ ] No. If yes, Initial Interest Rate, if any: __________
Initial Redemption Date: __________ Initial Interest Reset Date: __________
Additional/Other Terms: __________ Interest Reset Dates: __________
Repayment Provisions: [ ] Yes [ ] No. If yes, Interest Determination Date(s): __________
Repayment Date(s): __________ Interest Payment Dates: __________
Repayment Price: __________ Maximum Interest Rate, if any: __________
Additional/Other Terms: __________ Minimum Interest Rate, if any: __________
Fixed Rate Commencement Date, if any: __________
Floating Rate Commencement Date, if any: __________
Fixed Interest Rate, if any: __________
Day Count Convention: __________
Additional/Other Terms: __________
Regular Record Date(s): __________
Sinking Fund: __________
Calculation Agent: __________
Additional/Other Terms: __________
Survivor's Option: [ ] Yes [ ] No.
If yes, the attached Survivor's Option Rider is
incorporated into this Note.
Trust Put Limitation: __________
The ING USA Global Funding Trust designated above (the "Trust"), for value
received, hereby promises to pay to Cede & Co., or its registered assigns, the
Principal Amount specified above on the Stated Maturity Date specified above
and, if so specified above, to pay interest thereon from the Original Issue Date
specified above or from the most recent Interest Payment Date specified above to
which interest has been paid or duly provided for at the rate per annum
A-1-2
determined in accordance with the provisions on the reverse hereof and as
specified above, until the principal hereof is paid or made available for
payment. Payments of principal, premium, if any, and interest hereon will be
made in the lawful currency of the United States of America ("U.S. Dollars" or
"United States Dollars"). The "Principal Amount" of this Note at any time means
(1) if this Note is a Discount Note (as hereinafter defined), the Amortized Face
Amount (as hereinafter defined) at such time (as defined in Section 3(c) on the
reverse hereof) and (2) in all other cases, the Principal Amount hereof.
Capitalized terms not otherwise defined herein shall have their meanings set
forth in the Indenture, dated as of the date of the Pricing Supplement (the
"Indenture"), between Citibank, N.A., as the indenture trustee (the "Indenture
Trustee"), and the Trust, or on the face hereof.
This Note will mature on the Stated Maturity Date, unless its principal (or
any installment of its principal) becomes due and payable prior to the Stated
Maturity Date, whether, as applicable, by the declaration of acceleration of
maturity, notice of redemption by the Trust or otherwise (the Stated Maturity
Date or any date prior to the Stated Maturity Date on which this Note becomes
due and payable, as the case may be, is referred to as the "Maturity Date").
A "Discount Note" is any Note that has an Issue Price that is less than
100% of the Principal Amount thereof by a percentage that is equal to or greater
than 0.25% multiplied by the product of the principal amount of the Notes and
the number of full years to the Stated Maturity Date.
Unless otherwise specified above, the interest payable on each Interest
Payment Date or the Maturity Date will be the amount of interest accrued from
and including the Original Issue Date or from and including the last Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, to, but excluding, such Interest Payment Date or the Maturity Date, as
the case may be.
Unless otherwise specified above, the interest payable on any Interest
Payment Date will be paid to the Holder on the Regular Record Date for such
Interest Payment Date, which Regular Record Date shall be the fifteenth (15th)
calendar day, whether or not a Business Day, immediately preceding the related
Interest Payment Date; provided that, notwithstanding any provision of the
Indenture to the contrary, interest payable on any Maturity Date shall be
payable to the Person to whom principal shall be payable; and provided, further,
that unless otherwise specified above, in the case of a Note initially issued
between a Regular Record Date and the Interest Payment Date relating to such
Regular Record Date, interest for the period beginning on the Original Issue
Date and ending on such Interest Payment Date shall be paid on the Interest
Payment Date following the next succeeding Regular Record Date to the Holder on
such next succeeding Regular Record Date.
Payments of principal of, and premium, if any, and interest and other
amounts due and owing, if any, will be made through the Indenture Trustee to the
account of DTC or its nominee and will be made in accordance with depositary
arrangements with DTC.
Unless otherwise specified on the face hereof, the Holder hereof will not
be obligated to pay any administrative costs imposed by banks in making payments
in immediately available funds by the Trust. Unless otherwise specified on the
face hereof, any tax assessment or
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governmental charge imposed upon payments hereunder, including, without
limitation, any withholding tax, will be borne by the Holder hereof.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon shall have been executed by
the Indenture Trustee pursuant to the Indenture, this Note shall not be entitled
to any benefit under such Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has caused this instrument to be duly
executed, by manual or facsimile signature.
THE ING USA GLOBAL FUNDING TRUST
SPECIFIED ON THE FACE OF THIS NOTE
Dated: Original Issue Date By: U.S. Bank National Association, not
in its individual capacity but solely as
Trustee.
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the ING USA Global Funding Trust specified on
the face of this Note referred to in the within-mentioned Indenture.
CITIBANK, N.A.
As Indenture Trustee
Dated: Original Issue Date
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By:
------------------------------------
Authorized Signatory
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[REVERSE FORM OF NOTE]
SECTION 1. GENERAL. This Note is one of a duly authorized issue of
Notes of the Trust. The Notes are issued pursuant to the Indenture.
SECTION 2. CURRENCY. This Note is denominated in, and payments of
principal, premium, if any, and/or interest, if any, will be made in
U.S. Dollars.
SECTION 3. DETERMINATION OF INTEREST RATE AND CERTAIN OTHER TERMS.
(a) Fixed Rate Notes. If this Note is specified on the face hereof as a "Fixed
Rate Note":
(i) This Note will bear interest at the rate per annum specified on the
face hereof. Interest on this Note will be computed on the basis of a
360-day year of twelve 30-day months.
(ii) Unless otherwise specified on the face hereof, the Interest Payment
Dates for this Note will be as follows:
INTEREST PAYMENT FREQUENCY INTEREST PAYMENT DATES
- -------------------------- ----------------------
Monthly Fifteenth day of each calendar month, beginning in
the first calendar month following the month this
Note was issued.
Quarterly Fifteenth day of every third calendar month,
beginning in the third calendar month following the
month this Note was issued.
Semi-annual Fifteenth day of every sixth calendar month,
beginning in the sixth calendar month following the
month this Note was issued.
Annual Fifteenth day of every twelfth calendar month,
beginning in the twelfth calendar month following
the month this Note was issued.
(iii) If any Interest Payment Date or the Maturity Date of this Note falls
on a day that is not a Business Day, the Trust will make the required
payment of principal, premium, if any, and/or interest or other amounts on
the next succeeding Business Day, and no additional interest will accrue in
respect of the payment made on that next succeeding Business Day.
(b) Floating Rate Notes. If this Note is specified on the face hereof as a
"Floating Rate Note":
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(i) Interest Rate Basis. Interest on this Note will be determined by
reference to the applicable Interest Rate Basis or Interest Rate Bases,
which may, as described below, include the CD Rate, the CMT Rate, the
Commercial Paper Rate, the Constant Maturity Swap Rate, the Federal Funds
Open Rate, the Federal Funds Rate, LIBOR, the Prime Rate or the Treasury
Rate (each as defined below).
(ii) Effective Rate. The rate derived from the applicable Interest Rate
Basis or Interest Rate Bases will be determined in accordance with the
related provisions below. The interest rate in effect on each day will be
based on: (1) if that day is an Interest Reset Date, the rate determined as
of the Interest Determination Date immediately preceding that Interest
Reset Date; or (2) if that day is not an Interest Reset Date, the rate
determined as of the Interest Determination Date immediately preceding the
most recent Interest Reset Date.
(iii) Spread; Spread Multiplier; Index Maturity. The "Spread" is the number
of basis points (one one-hundredth of a percentage point) specified on the
face hereof to be added to or subtracted from the related Interest Rate
Basis or Interest Rate Bases applicable to this Note. The "Spread
Multiplier" is the percentage specified on the face hereof of the related
Interest Rate Basis or Interest Rate Bases applicable to this Note by which
the Interest Rate Basis or Interest Rate Bases will be multiplied to
determine the applicable interest rate. The "Index Maturity" is the period
to maturity of the instrument or obligation with respect to which the
related Interest Rate Basis or Interest Rate Bases will be calculated.
(iv) Regular Floating Rate Note. Unless this Note is specified on the face
hereof as a Floating Rate/Fixed Rate Note or a Fixed Rate/Floating Rate
Note, this Note (a "Regular Floating Rate Note") will bear interest at the
rate determined by reference to the applicable Interest Rate Basis or
Interest Rate Bases: (1) plus or minus the applicable Spread, if any;
and/or (2) multiplied by the applicable Spread Multiplier, if any.
Commencing on the first Interest Reset Date, the rate at which interest on
this Regular Floating Rate Note is payable will be reset as of each
Interest Reset Date; provided, however, that the interest rate in effect
for the period, if any, from the Original Issue Date to the first Interest
Reset Date will be the Initial Interest Rate.
(v) Floating Rate/Fixed Rate Notes. If this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", this Note will bear interest
at the rate determined by reference to the applicable Interest Rate Basis
or Interest Rate Bases: (1) plus or minus the applicable Spread, if any;
and/or (2) multiplied by the applicable Spread Multiplier, if any.
Commencing on the first Interest Reset Date, the rate at which this
Floating Rate/Fixed Rate Note is payable will be reset as of each Interest
Reset Date; provided, however, that: (A) the interest rate in effect for
the period, if any, from the Original Issue Date to the first Interest
Reset Date will be the Initial Interest Rate specified on the face hereof;
and (B) the interest rate in effect commencing on the Fixed Rate
Commencement Date will be the Fixed Interest Rate, if specified on the face
hereof, or, if not so specified, the interest rate in effect on the day
immediately preceding the Fixed Rate Commencement Date.
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(vi) Fixed Rate/Floating Rate Notes. If this Note is specified on the face
hereof as a "Fixed Rate/Floating Rate Note", this Note will bear interest
at the rate per annum specified on the face hereof as the Fixed Interest
Rate; provided, however, that commencing on the Floating Rate Commencement
Date, this Note will bear interest at the rate determined by reference to
the applicable Interest Rate Basis or Interest Rate Bases: (1) plus or
minus the applicable Spread, if any; and/or (2) multiplied by the
applicable Spread Multiplier, if any. Commencing on the first Interest
Reset Date, the rate at which this Fixed Rate/Floating Rate Note is payable
will be reset as of each Interest Reset Date.
(vii) Interest Reset Dates. The period between Interest Reset Dates will be
the "Interest Reset Period." Unless otherwise specified on the face hereof,
the Interest Reset Dates will be, in the case of this Floating Rate Note if
by its terms it resets: (1) daily--each business day; (2) weekly--the
Wednesday of each week, with the exception of any weekly reset Floating
Rate Note as to which the Treasury Rate is an applicable Interest Rate
Basis, which will reset the Tuesday of each week; (3) monthly--the
fifteenth day of each calendar month; (4) quarterly--the fifteenth day of
March, June, September and December of each year; (5) semi-annually--the
fifteenth day of the two months of each year specified on the face hereof;
and (6) annually--the fifteenth day of the month of each year specified on
the face hereof; provided, however, that, with respect to a Floating
Rate/Fixed Rate Note, the rate of interest thereon will not reset after the
particular Fixed Rate Commencement Date. If any Interest Reset Date for
this Floating Rate Note would otherwise be a day that is not a Business
Day, the particular Interest Reset Date will be postponed to the next
succeeding Business Day, except that in the case of a Floating Rate Note as
to which LIBOR is an applicable Interest Rate Basis and that Business Day
falls in the next succeeding calendar month, the particular Interest Reset
Date will be the immediately preceding Business Day.
(viii) Interest Determination Dates. The interest rate applicable to a
Floating Rate Note for an Interest Reset Period commencing on the related
Interest Reset Date will be determined by reference to the applicable
Interest Rate Basis as of the particular "Interest Determination Date",
which will be: (1) with respect to the Federal Funds Open Rate--the related
Interest Reset Date; (2) with respect to the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate--the Business Day immediately
preceding the related Interest Reset Date; (3) with respect to the CD Rate
and the CMT Rate--the second Business Day preceding the related Interest
Reset Date; (4) with respect to the Constant Maturity Swap Rate--the second
U.S. Government Securities business day preceding the related Interest
Reset Date, provided, however, that if after attempting to determine the
Constant Maturity Swap Rate, such rate is not determinable for a particular
Interest Determination Date, then such Interest Determination Date shall be
the first U.S. Government Securities business day preceding the original
interest determination date for which the Constant Maturity Swap Rate can
be determined; (5) with respect to LIBOR--the second London Banking Day (as
defined below) preceding the related Interest Reset Date; and (6) with
respect to the Treasury Rate--the day of the week in which the related
Interest Reset Date falls on which day Treasury Bills (as defined below)
are
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normally auctioned (i.e., Treasury Bills are normally sold at auction on
Monday of each week, unless that day is a legal holiday, in which case the
auction is normally held on the following Tuesday, except that the auction
may be held on the preceding Friday); provided, however, that if an auction
is held on the Friday of the week preceding the related Interest Reset
Date, the Interest Determination Date will be the preceding Friday. The
Interest Determination Date pertaining to a Floating Rate Note, the
interest rate of which is determined with reference to two or more Interest
Rate Bases, will be the latest Business Day which is at least two Business
Days before the related Interest Reset Date for the applicable Floating
Rate Note on which each Interest Reset Basis is determinable. "London
Banking Day" means a day on which commercial banks are open for business
(including dealings in the LIBOR Currency) in London.
(ix) Calculation Dates. The interest rate applicable to each Interest Reset
Period will be determined by the Calculation Agent on or prior to the
Calculation Date (as defined below), except with respect to LIBOR, which
will be determined on the particular Interest Determination Date. Upon
request of the Holder of a Floating Rate Note, the Calculation Agent will
disclose the interest rate then in effect and, if determined, the interest
rate that will become effective as a result of a determination made for the
next succeeding Interest Reset Date with respect to such Floating Rate
Note. The "Calculation Date", if applicable, pertaining to any Interest
Determination Date will be the earlier of: (1) the tenth calendar day after
the particular Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day; or (2) the Business Day
immediately preceding the applicable Interest Payment Date or the Maturity
Date, as the case may be.
(x) Maximum or Minimum Interest Rate. If specified on the face hereof, this
Note may have either or both of a Maximum Interest Rate or a Minimum
Interest Rate. If a Maximum Interest Rate is so designated, the interest
rate for a Floating Rate Note cannot ever exceed such Maximum Interest Rate
and in the event that the interest rate on any Interest Reset Date would
exceed such Maximum Interest Rate (as if no Maximum Interest Rate were in
effect) then the interest rate on such Interest Reset Date shall be the
Maximum Interest Rate. If a Minimum Interest Rate is so designated, the
interest rate for a Floating Rate Note cannot ever be less than such
Minimum Interest Rate and in the event that the interest rate on any
Interest Reset Date would be less than such Minimum Interest Rate (as if no
Minimum Interest Rate were in effect) then the interest rate on such
Interest Reset Date shall be the Minimum Interest Rate. Notwithstanding
anything to the contrary contained herein, the interest rate on a Floating
Rate Note shall not exceed the maximum interest rate permitted by
applicable law.
(xi) Interest Payments. Unless otherwise specified on the face hereof, the
Interest Payment Dates will be, in the case of a Floating Rate Note which
resets: (1) daily, weekly or monthly--the fifteenth day of each calendar
month or on the fifteenth day of March, June, September and December of
each year, as specified on the face hereof; (2) quarterly--the fifteenth
day of March, June, September and December of each year; (3)
semi-annually--the fifteenth day of the two months of each year
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specified on the face hereof; and (4) annually--the fifteenth day of the
month of each year as specified on the face hereof. In addition, the
Maturity Date will also be an Interest Payment Date. If any Interest
Payment Date other than the Maturity Date for this Floating Rate Note would
otherwise be a day that is not a Business Day, such Interest Payment Date
will be postponed to the next succeeding Business Day, except that in the
case of a Floating Rate Note as to which LIBOR is an applicable Interest
Rate Basis and that Business Day falls in the next succeeding calendar
month, the particular Interest Payment Date will be the immediately
preceding Business Day. If the Maturity Date of a Floating Rate Note falls
on a day that is not a Business Day, the Trust will make the required
payment of principal, premium, if any, and interest or other amounts on the
next succeeding Business Day, and no additional interest will accrue in
respect of the payment made on that next succeeding Business Day.
(xii) Rounding. Unless otherwise specified on the face hereof, all
percentages resulting from any calculation on this Floating Rate Note will
be rounded to the nearest one hundred-thousandth of a percentage point,
with five one-millionths of a percentage point rounded upwards. All dollar
amounts used in or resulting from any calculation on this Floating Rate
Note will be rounded to the nearest cent.
(xiii) Interest Factor. With respect to this Floating Rate Note, accrued
interest is calculated by multiplying the principal amount of such Note by
an accrued interest factor. The accrued interest factor is computed by
adding the interest factor calculated for each day in the particular
Interest Reset Period. The interest factor for each day will be computed by
dividing the interest rate applicable to such day by 360, in the case of a
Floating Rate Note as to which the CD Rate, the Commercial Paper Rate, the
Federal Funds Open Rate, the Federal Funds Rate, LIBOR or the Prime Rate is
an applicable Interest Rate Basis, or by the actual number of days in the
year, in the case of a Floating Rate Note as to which the CMT Rate or the
Treasury Rate is an applicable Interest Rate Basis. In the case of a series
of Notes that bear interest at floating rates as to which the Constant
Maturity Swap Rate is the Interest Rate Basis, the interest factor for each
day will be computed by dividing the number of days in the interest period
by 360 (the number of days to be calculated on the basis of a year of 360
days with twelve 30-day months (unless (i) the last day of the interest
period is the 31st day of a month but the first day of the interest period
is a day other than the 30th or 31st day of a month, in which case the
month that includes that last day shall not be considered to be shortened
to a 30-day month, or (ii) the last day of the interest period is the last
day of the month of February, in which case the month of February shall not
be considered to be lengthened to a 30-day month)). The interest factor for
a Floating Rate Note as to which the interest rate is calculated with
reference to two or more Interest Rate Bases will be calculated in each
period in the same manner as if only the applicable Interest Rate Basis
specified above applied.
(xiv) Determination of Interest Rate Basis. The Calculation Agent shall
determine the rate derived from each Interest Rate Basis in accordance with
the following provisions.
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(A) CD Rate Notes. If the Interest Rate Basis is the CD Rate, this Note
shall be deemed a "CD Rate Note." Unless otherwise specified on the face
hereof, "CD Rate" means: (1) the rate on the particular Interest
Determination Date for negotiable United States dollar certificates of
deposit having the Index Maturity specified on the face hereof as published
in H.15(519) (as defined below) under the caption "CDs (secondary market)";
or (2) if the rate referred to in clause (1) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the rate on the
particular Interest Determination Date for negotiable United States dollar
certificates of deposit of the particular Index Maturity as published in
H.15 Daily Update (as defined below), or other recognized electronic source
used for the purpose of displaying the applicable rate, under the caption
"CDs (secondary market)"; or (3) if the rate referred to in clause (2) is
not so published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on the particular Interest Determination Date
calculated by the Calculation Agent as the arithmetic mean of the secondary
market offered rates as of 10:00 A.M., New York City time, on that Interest
Determination Date, of three leading non-bank dealers in negotiable United
States dollar certificates of deposit in The City of New York (which may
include the purchasing agent or its affiliates) selected by the Calculation
Agent for negotiable United States dollar certificates of deposit of major
United States money market banks for negotiable United States certificates
of deposit with a remaining maturity closest to the particular Index
Maturity in an amount that is representative for a single transaction in
that market at that time; or (4) if the dealers so selected by the
Calculation Agent are not quoting as mentioned in clause (3), the CD Rate
in effect on the particular Interest Determination Date. "H.15(519)" means
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Board of Governors of the Federal Reserve
System. "H.15 Daily Update" means the daily update of H.15(519), available
through the world-wide-web site of the Board of Governors of the Federal
Reserve System at http://www.federalreserve.gov/releases/H15/ update, or
any successor site or publication.
(B) CMT Rate Notes. If the Interest Rate Basis is the CMT Rate, this Note
shall be deemed a "CMT Rate Note." Unless otherwise specified on the face
hereof, "CMT Rate" means:
(1) if CMT Telerate Page 7051 is specified on the face hereof:
i. the percentage equal to the yield for United States Treasury
securities at "constant maturity" having the Index Maturity
specified on the face hereof as published in H.15(519) under
the caption "Treasury Constant Maturities", as the yield is
displayed on Telerate (or any successor service) on page
7051 (or any other page as may replace the specified page on
that service) ("Telerate Page 7051"), for the particular
Interest Determination Date; or
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ii. if the rate referred to in clause (i) does not so appear on
Telerate Page 7051, the percentage equal to the yield for
United States Treasury securities at "constant maturity"
having the particular Index Maturity and for the particular
Interest Determination Date as published in H.15(519) under
the caption "Treasury Constant Maturities"; or
iii. if the rate referred to in clause (ii) does not so appear in
H.15(519), the rate on the particular Interest Determination
Date for the period of the particular Index Maturity as may
then be published by either the Federal Reserve System Board
of Governors or the United States Department of the Treasury
that the Calculation Agent determines to be comparable to
the rate which would otherwise have been published in
H.15(519); or
iv. if the rate referred to in clause (iii) is not so published,
the rate on the particular Interest Determination Date
calculated by the Calculation Agent as a yield to maturity
based on the arithmetic mean of the secondary market bid
prices at approximately 3:30 P.M., New York City time, on
that Interest Determination Date of three leading primary
United States government securities dealers in The City of
New York (which may include the purchasing agent or its
affiliates) (each, a "Reference Dealer") selected by the
Calculation Agent from five Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation,
or, in the event of equality, one of the highest, and the
lowest quotation or, in the event of equality, one of the
lowest, for United States Treasury securities with an
original maturity equal to the particular Index Maturity, a
remaining term to maturity no more than one year shorter
than that Index Maturity and in a principal amount that is
representative for a single transaction in the securities in
that market at that time; or
v. if fewer than five but more than two of the prices referred
to in clause (iv) are provided as requested, the rate on the
particular Interest Determination Date calculated by the
Calculation Agent based on the arithmetic mean of the bid
prices obtained and neither the highest nor the lowest of
the quotations shall be eliminated; or
vi. if fewer than three prices referred to in clause (iv) are
provided as requested, the rate on the particular Interest
Determination Date calculated by the Calculation Agent as a
yield to maturity based on the arithmetic mean of the
secondary market bid prices as of approximately 3:30 P.M.,
New York City time, on that Interest Determination Date of
three Reference Dealers selected by the Calculation Agent
from five Reference Dealers selected by the
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Calculation Agent and eliminating the highest quotation or,
in the event of equality, one of the highest and the lowest
quotation or, in the event of equality, one of the lowest,
for United States Treasury securities with an original
maturity greater than the particular Index Maturity, a
remaining term to maturity closest to that Index Maturity
and in a principal amount that is representative for a
single transaction in the securities in that market at that
time; or
vii. if fewer than five but more than two prices referred to in
clause (vi) are provided as requested, the rate on the
particular Interest Determination Date calculated by the
Calculation Agent based on the arithmetic mean of the bid
prices obtained and neither the highest nor the lowest of
the quotations will be eliminated; or
viii. if fewer than three prices referred to in clause (vi) are
provided as requested, the CMT Rate in effect on the
particular Interest Determination Date; or
(2) if CMT Telerate Page 7052 is specified on the face hereof:
i. the percentage equal to the one-week or one-month, as
specified on the face hereof, average yield for United
States Treasury securities at "constant maturity" having the
Index Maturity specified on the face hereof as published in
H.15(519) opposite the caption "Treasury Constant
Maturities", as the yield is displayed on Telerate (or any
successor service) (on page 7052 or any other page as may
replace the specified page on that service) ("Telerate Page
7052"), for the week or month, as applicable, ended
immediately preceding the week or month, as applicable, in
which the particular Interest Determination Date falls; or
ii. if the rate referred to in clause (i) does not so appear on
Telerate Page 7052, the percentage equal to the one-week or
one-month, as specified on the face hereof, average yield
for United States Treasury securities at "constant maturity"
having the particular Index Maturity and for the week or
month, as applicable, preceding the particular Interest
Determination Date as published in H.15(519) opposite the
caption "Treasury Constant Maturities"; or
iii. if the rate referred to in clause (ii) does not so appear in
H.15(519), the one-week or one-month, as specified on the
face hereof, average yield for United States Treasury
securities at "constant maturity" having the particular
Index Maturity as otherwise announced by the Federal Reserve
Bank of New York
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for the week or month, as applicable, ended immediately
preceding the week or month, as applicable, in which the
particular Interest Determination Date falls; or
iv. if the rate referred to in clause (iii) is not so published,
the rate on the particular Interest Determination Date
calculated by the Calculation Agent as a yield to maturity
based on the arithmetic mean of the secondary market bid
prices at approximately 3:30 P.M., New York City time, on
that Interest Determination Date of three Reference Dealers
selected by the Calculation Agent from five Reference
Dealers selected by the Calculation Agent and eliminating
the highest quotation, or, in the event of equality, one of
the highest, and the lowest quotation or, in the event of
equality, one of the lowest, for United States Treasury
securities with an original maturity equal to the particular
Index Maturity, a remaining term to maturity no more than
one year shorter than that Index Maturity and in a principal
amount that is representative for a single transaction in
the securities in that market at that time; or
v. if fewer than five but more than two of the prices referred
to in clause (iv) are provided as requested, the rate on the
particular Interest Determination Date calculated by the
Calculation Agent based on the arithmetic mean of the bid
prices obtained and neither the highest nor the lowest of
the quotations shall be eliminated; or
vi. if fewer than three prices referred to in clause (iv) are
provided as requested, the rate on the particular Interest
Determination Date calculated by the Calculation Agent as a
yield to maturity based on the arithmetic mean of the
secondary market bid prices as of approximately 3:30 P.M.,
New York City time, on that Interest Determination Date of
three Reference Dealers selected by the Calculation Agent
from five Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation or, in the event
of equality, one of the highest and the lowest quotation or,
in the event of equality, one of the lowest, for United
States Treasury securities with an original maturity greater
than the particular Index Maturity, a remaining term to
maturity closest to that Index Maturity and in a principal
amount that is representative for a single transaction in
the securities in that market at the time; or
vii. if fewer than five but more than two prices referred to in
clause (vi) are provided as requested, the rate on the
particular Interest Determination Date calculated by the
Calculation Agent based on
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the arithmetic mean of the bid prices obtained and neither
the highest nor the lowest of the quotations will be
eliminated; or
viii. if fewer than three prices referred to in clause (vi) are
provided as requested, the CMT Rate in effect on that
Interest Determination Date.
If two United States Treasury securities with an original
maturity greater than the Index Maturity specified on the face
hereof have remaining terms to maturity equally close to the
particular Index Maturity, the quotes for the United States
Treasury security with the shorter original remaining term to
maturity will be used.
(C) Commercial Paper Rate Notes. If the Interest Rate Basis is the
Commercial Paper Rate, this Note shall be deemed a "Commercial Paper Rate
Note." Unless otherwise specified on the face hereof, "Commercial Paper
Rate" means: (1) the Money Market Yield (as defined below) on the
particular Interest Determination Date of the rate for commercial paper
having the Index Maturity specified on the face hereof as published in
H.15(519) under the caption "Commercial Paper--Nonfinancial"; or (2) if the
rate referred to in clause (1) is not so published by 3:00 P.M., New York
City time, on the related Calculation Date, the Money Market Yield of the
rate on the particular Interest Determination Date for commercial paper
having the particular Index Maturity as published in H.15 Daily Update, or
such other recognized electronic source used for the purpose of displaying
the applicable rate, under the caption "Commercial Paper--Nonfinancial"; or
(3) if the rate referred to in clause (2) is not so published by 3:00 P.M.,
New York City time, on the related Calculation Date, the rate on the
particular Interest Determination Date calculated by the Calculation Agent
as the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on that Interest
Determination Date of three leading dealers of United States dollar
commercial paper in The City of New York (which may include the purchasing
agent or its affiliates) selected by the Calculation Agent for commercial
paper having the particular Index Maturity placed for industrial issuers
whose bond rating is "Aa", or the equivalent, from a nationally recognized
statistical rating organization; or (4) if the dealers so selected by the
Calculation Agent are not quoting as mentioned in clause (3), the
Commercial Paper Rate in effect on the particular Interest Determination
Date. "Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal, and "M" refers
to the actual number of days in the applicable Interest Reset Period.
A-1-15
(D) Constant Maturity Swap Rate Notes. If the Interest Rate Basis is the
Constant Maturity Swap Rate, this Note shall be deemed a "Constant Maturity
Swap Rate Note." Unless otherwise specified on the face hereof, "Constant
Maturity Swap Rate" means: (1) the rate for U.S. dollar swaps with the
designated maturity specified in the applicable pricing supplement,
expressed as a percentage, which appears on the Reuters Screen (or any
successor service) ISDAFIX1 Page as of 11:00 A.M., New York City time, on
the particular Interest Determination Date; or (2) if the rate referred to
in clause (1) does not appear on the Reuters Screen (or any successor
service) ISDAFIX1 Page by 2:00 P.M., New York City time, on such Interest
Determination Date, a percentage determined on the basis of the mid-market
semi-annual swap rate quotations provided by the reference banks (as
defined below) as of approximately 11:00 A.M., New York City time, on such
Interest Determination Date, and, for this purpose, the semi-annual swap
rate means the mean of the bid and offered rates for the semi-annual fixed
leg, calculated on a 30/360 day count basis, of a fixed-for-floating U.S.
dollar interest rate swap transaction with a term equal to the designated
maturity specified in the applicable pricing supplement commencing on the
Interest Reset Date and in a representative amount (as defined below) with
an acknowledged dealer of good credit in the swap market, where the
floating leg, calculated on an actual/360 day count basis, is equivalent to
USD-LIBOR-BBA with a designated maturity specified in the applicable
pricing supplement. The Calculation Agent will request the principal New
York City office of each of the reference banks to provide a quotation of
its rate. If at least three quotations are provided, the rate for that
Interest Determination Date will be the arithmetic mean of the quotations,
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest); or (3) if at least three quotations are not received by the
Calculation Agent as mentioned in clause (2), the Constant Maturity Swap
Rate in effect on the particular Interest Determination Date. "U.S.
Government Securities business day" means any day except for Saturday,
Sunday, or a day on which The Bond Market Association recommends that the
fixed income departments of its members be closed for the entire day for
purposes of trading in U.S. government securities. "Representative amount"
means an amount that is representative for a single transaction in the
relevant market at the relevant time. "Reference banks" mean five leading
swap dealers in the New York City interbank market, selected by the
Calculation Agent, after consultation with us.
(E) Federal Funds Open Rate Notes. If the Interest Rate Basis is the
Federal Funds Open Rate, this Note shall be deemed a "Federal Funds Open
Rate Note." Unless otherwise specified on the face hereof, "Federal Funds
Open Rate" means the rate set forth on Telerate (or any successor service)
on page 5 (or any other page as may replace the specified page on that
service) for an Interest Determination Date underneath the caption "FEDERAL
FUNDS" in the row titled "OPEN". If the rate is not available for an
Interest Determination Date, the rate for that Interest Determination Date
shall be the Federal Funds Rate as determined below.
A-1-16
(F) Federal Funds Rate Notes. If the Interest Rate Basis is the Federal
Funds Rate, this Note shall be deemed a "Federal Funds Rate Note." Unless
otherwise specified on the face hereof, "Federal Funds Rate" means: (1) the
rate on the particular Interest Determination Date for United States dollar
federal funds as published in H.15(519) under the caption "Federal Funds
(Effective)" and displayed on Telerate (or any successor service) on page
120 (or any other page as may replace the specified page on that service)
("Telerate Page 120"); or (2) if the rate referred to in clause (1) does
not so appear on Telerate Page 120 or is not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on the particular
Interest Determination Date for United States dollar federal funds as
published in H.15 Daily Update, or such other recognized electronic source
used for the purpose of displaying the applicable rate, under the caption
"Federal Funds (Effective)"; or (3) if the rate referred to in clause (2)
is not so published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on the particular Interest Determination Date
calculated by the Calculation Agent as the arithmetic mean of the rates for
the last transaction in overnight United States dollar federal funds
arranged by three leading brokers of United States dollar federal funds
transactions in The City of New York (which may include the purchasing
agent or its affiliates) selected by the Calculation Agent prior to 9:00
A.M., New York City time, on that Interest Determination Date; or (4) if
the brokers so selected by the Calculation Agent are not quoting as
mentioned in clause (3), the Federal Funds Rate in effect on the particular
Interest Determination Date.
(G) LIBOR Notes. If the Interest Rate Basis is LIBOR, this Note shall be
deemed a "LIBOR Note." Unless otherwise specified on the face hereof,
"LIBOR" means: (1) if "LIBOR Telerate" is specified on the face hereof or
if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the face
hereof as the method for calculating LIBOR, the rate for deposits in the
LIBOR Currency (as defined below) having the Index Maturity specified on
the face hereof, commencing on the related Interest Reset Date, that
appears on the LIBOR Page (as defined below) as of 11:00 A.M., London time,
on the particular Interest Determination Date; or (2) if "LIBOR Reuters" is
specified on the face hereof, the arithmetic mean of the offered rates,
calculated by the Calculation Agent, or the offered rate, if the LIBOR Page
by its terms provides only for a single rate, for deposits in the LIBOR
Currency having the particular Index Maturity, commencing on the related
Interest Reset Date, that appear or appears, as the case may be, on the
LIBOR Page as of 11:00 A.M., London time, on the particular Interest
Determination Date; or (3) if fewer than two offered rates appear, or no
rate appears, as the case may be, on the particular Interest Determination
Date on the LIBOR Page as specified in clause (1) or (2), as applicable,
the rate calculated by the Calculation Agent of at least two offered
quotations obtained by the Calculation Agent after requesting the principal
London offices of each of four major reference banks (which may include
affiliates of the purchasing agent) in the London interbank market to
provide the Calculation Agent with its offered quotation for deposits in
the LIBOR Currency for the period of the particular Index Maturity,
commencing on the related Interest
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Reset Date, to prime banks in the London interbank market at approximately
11:00 A.M., London time, on that Interest Determination Date and in a
principal amount that is representative for a single transaction in the
LIBOR Currency in that market at that time; or (4) if fewer than two
offered quotations referred to in clause (3) are provided as requested, the
rate calculated by the Calculation Agent as the arithmetic mean of the
rates quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on the particular Interest Determination Date by three
major banks (which may include affiliates of the purchasing agent) in that
Principal Financial Center selected by the Calculation Agent for loans in
the LIBOR Currency to leading European banks, having the particular Index
Maturity and in a principal amount that is representative for a single
transaction in the LIBOR Currency in that market at that time; or (5) if
the banks so selected by the Calculation Agent are not quoting as mentioned
in clause (4), LIBOR in effect on the particular Interest Determination
Date. "LIBOR Currency" means the currency specified on the face hereof as
to which LIBOR shall be calculated or, if no currency is specified on the
face hereof, United States dollars. "LIBOR Page" means either: (1) if
"LIBOR Reuters" is specified on the face hereof, the display on the Reuter
Monitor Money Rates Service (or any successor service) on the page
specified on the face hereof (or any other page as may replace that page on
that service) for the purpose of displaying the London interbank rates of
major banks for the LIBOR Currency; or (2) if "LIBOR Telerate" is specified
on the face hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified on the face hereof as the method for calculating LIBOR, the
display on Telerate (or any successor service) on the page specified on the
face hereof (or any other page as may replace such page on such service)
for the purpose of displaying the London interbank rates of major banks for
the LIBOR Currency.
(H) Prime Rate Notes. If the Interest Rate Basis is the Prime Rate, this
Note shall be deemed a "Prime Rate Note." Unless otherwise specified on the
face hereof, "Prime Rate" means: (1) the rate on the particular Interest
Determination Date as published in H.15(519) under the caption "Bank Prime
Loan"; or (2) if the rate referred to in clause (1) is not so published by
3:00 P.M., New York City time, on the related Calculation Date, the rate on
the particular Interest Determination Date as published in H.15 Daily
Update, or such other recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "Bank Prime Loan"; or (3)
if the rate referred to in clause (2) is not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on the particular
Interest Determination Date calculated by the Calculation Agent as the
arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen US PRIME 1 Page (as defined below) as
the applicable bank's prime rate or base lending rate as of 11:00 A.M., New
York City time, on that Interest Determination Date; or (4) if fewer than
four rates referred to in clause (3) are so published by 3:00 p.m., New
York City time, on the related Calculation Date, the rate calculated by the
Calculation Agent as the particular Interest Determination Date calculated
by the Calculation Agent as the arithmetic mean of the prime rates or base
lending rates quoted on the basis of the
A-1-18
actual number of days in the year divided by a 360-day year as of the close
of business on that Interest Determination Date by three major banks (which
may include affiliates of the purchasing agent) in The City of New York
selected by the Calculation Agent; or (5) if the banks so selected by the
Calculation Agent are not quoting as mentioned in clause (4), the Prime
Rate in effect on the particular Interest Determination Date. "Reuters
Screen US PRIME 1 Page" means the display on the Reuter Monitor Money Rates
Service (or any successor service) on the "US PRIME 1" page (or any other
page as may replace that page on that service) for the purpose of
displaying prime rates or base lending rates of major United States banks.
(I) Treasury Rate Notes. If the Interest Rate Basis is the Treasury Rate,
this Note shall be deemed a "Treasury Rate Note." Unless otherwise
specified on the face hereof, "Treasury Rate" means: (1) the rate from the
auction held on the Interest Determination Date (the "Auction") of direct
obligations of the United States ("Treasury Bills") having the Index
Maturity specified on the face hereof under the caption "INVESTMENT RATE"
on the display on Telerate (or any successor service) on page 56 (or any
other page as may replace that page on that service) ("Telerate Page 56")
or page 57 (or any other page as may replace that page on that service)
("Telerate Page 57"); or (2) if the rate referred to in clause (1) is not
so published by 3:00 P.M., New York City time, on the related Calculation
Date, the Bond Equivalent Yield (as defined below) of the rate for the
applicable Treasury Bills as published in H.15 Daily Update, or another
recognized electronic source used for the purpose of displaying the
applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High"; or (3) if the rate referred to in clause (2) is not so
published by 3:00 P.M., New York City time, on the related Calculation
Date, the Bond Equivalent Yield of the auction rate of the applicable
Treasury Bills as announced by the United States Department of the
Treasury; or (4) if the rate referred to in clause (3) is not so announced
by the United States Department of the Treasury, or if the Auction is not
held, the Bond Equivalent Yield of the rate on the particular Interest
Determination Date of the applicable Treasury Bills as published in
H.15(519) under the caption "U.S. Government Securities/Treasury
Bills/Secondary Market"; or (5) if the rate referred to in clause (4) is
not so published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on the particular Interest Determination Date of
the applicable Treasury Bills as published in H.15 Daily Update, or another
recognized electronic source used for the purpose of displaying the
applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Secondary Market"; or (6) if the rate referred to in clause (5) is
not so published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on the particular Interest Determination Date
calculated by the Calculation Agent as the Bond Equivalent Yield of the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on that Interest Determination Date, of three
primary United States government securities dealers (which may include the
purchasing agent or its affiliates) selected by the Calculation Agent, for
the issue of Treasury Bills with a remaining maturity
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closest to the Index Maturity specified on the face hereof; or (7) if the
dealers so selected by the Calculation Agent are not quoting as mentioned
in clause (6), the Treasury Rate in effect on the particular Interest
Determination Date. "Bond Equivalent Yield" means a yield (expressed as a
percentage) calculated in accordance with the following formula:
D x N
Bond Equivalent Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted
on a bank discount basis and expressed as a decimal, "N" refers to 365 or
366, as the case may be, and "M" refers to the actual number of days in the
applicable Interest Reset Period.
(c) Discount Notes. If this Note is specified on the face hereof as a "Discount
Note":
(i) Principal and Interest. This Note will bear interest in the same manner
as set forth in Section 3(a) above, and payments of principal and interest
shall be made as set forth on the face hereof. Discount Notes may not bear
any interest currently or may bear interest at a rate that is below market
rates at the time of issuance. The difference between the Issue Price of a
Discount Note and par is referred to as the "Discount".
(ii) Redemption; Repayment; Acceleration. In the event a Discount Note is
redeemed, repaid or accelerated, the amount payable to the Holder of such
Discount Note will be equal to the sum of: (A) the Issue Price (increased
by any accruals of Discount); and (B) any unpaid interest accrued on such
Discount Note to the Maturity Date ("Amortized Face Amount"). Unless
otherwise specified on the face hereof, for purposes of determining the
amount of Discount that has accrued as of any date on which a redemption,
repayment or acceleration of maturity occurs for a Discount Note, a
Discount will be accrued using a constant yield method. The constant yield
will be calculated using a 30-day month, 360-day year convention, a
compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates for the
applicable Discount Note (with ratable accruals within a compounding
period), a coupon rate equal to the initial coupon rate applicable to the
applicable Discount Note and an assumption that the maturity of such
Discount Note will not be accelerated. If the period from the date of issue
to the first Interest Payment Date for a Discount Note (the "Initial
Period") is shorter than the compounding period for such Discount Note, a
proportionate amount of the yield for an entire compounding period will be
accrued. If the Initial Period is longer than the compounding period, then
the period will be divided into a regular compounding period and a short
period with the short period being treated as provided above.
SECTION 4. REDEMPTION. If no redemption right is set forth on the face
hereof, this Note may not be redeemed prior to the Stated Maturity
Date, except as set forth in the Indenture or in Section 10 hereof. In
the case of a Note that is not a Discount Note, if a redemption right
is set forth on the face of this Note, the Trust
A-1-20
shall elect to redeem this Note on the Interest Payment Date after the
Initial Redemption Date set forth on the face hereof on which the
Funding Agreement is to be redeemed in whole or in part by ING USA
Annuity and Life Insurance Company ("ING USA") (each, a "Redemption
Date"), in which case this Note must be redeemed on such Redemption
Date in whole or in part, as applicable, prior to the Stated Maturity
Date, in increments of $1,000 at the applicable Redemption Price (as
defined below), together with unpaid interest, if any, accrued thereon
to, but excluding, the applicable Redemption Date. "Redemption Price"
shall mean the unpaid Principal Amount of this Note to be redeemed.
The unpaid Principal Amount of this Note to be redeemed shall be
determined by multiplying (1) the Outstanding Principal Amount of this
Note by (2) the quotient derived by dividing (A) the outstanding
principal amount of the Funding Agreement to be redeemed by ING USA by
(B) the outstanding principal amount of the Funding Agreement. Notice
must be given not more than sixty (60) nor less than thirty (30)
calendar days prior to the proposed Redemption Date. In the event of
redemption of this Note in part only, a new Note for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon
the surrender hereof. If less than all of this Note is redeemed, the
Indenture Trustee will select by lot or, in its discretion, on a pro
rata basis, the amount of the interest of each direct participant in
the Trust to be redeemed.
SECTION 5. SINKING FUNDS. Unless specified on the face hereof, this
Note will not be subject to, or entitled to the benefit of, any
sinking fund.
SECTION 6. REPAYMENT. If no repayment right is set forth on the face
hereof, this Note may not be repaid at the option of the Holder hereof
prior to the Stated Maturity Date. If a repayment right is granted on
the face of this Note, this Note may be subject to repayment at the
option of the Holder on any Interest Payment Date on and after the
date, if any, indicated on the face hereof (each, a "Repayment Date").
On any Repayment Date, unless otherwise specified on the face hereof,
this Note shall be repayable in whole or in part in increments of
$1,000 at the option of the Holder hereof at a repayment price equal
to 100% of the Principal Amount to be repaid, together with interest
thereon payable to the Repayment Date. For this Note to be repaid in
whole or in part at the option of the Holder hereof, this Note must be
received by the Indenture Trustee, with the form entitled "Option to
Elect Repayment", below, duly completed by the Indenture Trustee.
Exercise of such repayment option by the Holder hereof shall be
irrevocable. In the event of a repayment of this Note in part only, a
new Note for the portion hereof not repaid shall be issued in the name
of the Holder hereof upon the surrender hereof.
SECTION 7. MODIFICATIONS AND WAIVERS. The Indenture contains
provisions permitting the Trust and the Indenture Trustee (1) at any
time and from time to time without notice to, or the consent of, the
Holders of any Notes issued under the Indenture to enter into one or
more supplemental indentures for certain enumerated purposes and (2)
with the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Notes affected thereby, to enter
A-1-21
into one or more supplemental indentures for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture or of modifying in any manner the rights
of Holders of Notes under the Indenture; provided, that, with respect
to certain enumerated provisions, no such supplemental indenture shall
be entered into without the consent of the Holder of each Note
affected thereby. Any such consent or waiver by the Holder of this
Note shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon
this Note or such other Notes.
SECTION 8. OBLIGATIONS UNCONDITIONAL. No reference herein to the
Indenture and no provisions of this Note or of the Indenture shall
impair the right of each Holder of any Note, which is absolute and
unconditional, to receive payment of the principal of, and any
interest on, and premium, if any, on, such Note on the respective
Stated Maturity Date or redemption date thereof and to institute suit
for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 9. EVENTS OF DEFAULT. If an Event of Default with respect to
this Note shall occur and be continuing, the principal of, and all
other amounts payable on, the Notes may be declared due and payable,
or may be automatically accelerated, as the case may be, in the manner
and with the effect provided in the Indenture. In the event that this
Note is a Discount Note, the amount of principal of this Note that
becomes due and payable upon such acceleration shall be equal to the
amount calculated as set forth in Section 3(c) hereof.
SECTION 10. WITHHOLDING; NO ADDITIONAL AMOUNTS; TAX EVENT AND
REDEMPTION. All amounts due on this Note will be made without any
applicable withholding or deduction for or on account of any present
or future taxes, duties, levies, assessments or other governmental
charges of whatever nature imposed or levied by or on behalf of any
governmental authority, unless such withholding or deduction is
required by law. Unless otherwise specified on the face hereof, the
Trust will not pay any additional amounts to the Holder of this Note
in respect of such withholding or deduction, any such withholding or
deduction will not give rise to an event of default or any independent
right or obligation to redeem this Note and the Holder will be deemed
for all purposes to have received cash in an amount equal to the
portion of such withholding or deduction that is attributable to such
Holder's interest in this Note as equitably determined by the Trust.
If (1) a Tax Event (defined below) as to the Funding Agreement occurs and
(2) ING USA redeems the Funding Agreement in whole or in part, the Trust will
redeem the Notes, subject to the terms and conditions of Section 2.04 of the
Standard Indenture Terms, at the Tax Event Redemption Price (defined below)
together with unpaid interest accrued thereon to the applicable redemption date.
"Tax Event" means that ING USA shall have received an opinion of independent
legal counsel stating in effect that as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the
A-1-22
United States or any political subdivision or taxing authority thereof or
therein or (b) any amendment to, or change in, an interpretation or application
of any such laws or regulations by any governmental authority in the United
States, which amendment or change is enacted, promulgated, issued or announced
on or after the effective date of the Funding Agreement, there is more than an
insubstantial risk that (i) the Trust is, or will be within ninety (90) days of
the date thereof, subject to U.S. federal income tax with respect to interest
accrued or received on the Funding Agreement or (ii) the Trust is, or will be
within ninety (90) days of the date thereof, subject to more than a de minimis
amount of taxes, duties or other governmental charges. "Tax Event Redemption
Price" means an amount equal to the unpaid principal amount of this Note to be
redeemed, which shall be determined by multiplying (1) the Outstanding Principal
Amount of this Note by (2) the quotient derived by dividing (A) the outstanding
principal amount to be redeemed by ING USA of the Funding Agreement by (B) the
outstanding principal amount of the Funding Agreement.
SECTION 11. LISTING. Unless otherwise specified on the face hereof,
this Note will not be listed on any securities exchange.
SECTION 12. COLLATERAL. The Collateral for this Note includes the
Funding Agreement specified on the face hereof.
SECTION 13. NO RECOURSE AGAINST CERTAIN PERSONS. No recourse shall be
had for the payment of any principal, interest or any other sums at
any time owing under the terms of this Note, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of
the Indenture or any indenture supplemental thereto, against the
Nonrecourse Parties, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such personal liability being, by the acceptance hereof
and as part of the consideration for issue hereof, expressly waived
and released.
SECTION 14. MISCELLANEOUS.
(a) This Note is issuable only as a registered Note without coupons in
denominations of $1,000 and any integral multiple in excess thereof unless
otherwise specified on the face of this Note.
(b) Prior to due presentment for registration of transfer of this Note, the
Trust, the Indenture Trustee, the Registrar, the Paying Agent, any Agent and any
other agent of the Trust or the Indenture Trustee may treat the Person in whose
name this Note is registered as the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes, whether or not this Note
shall be overdue, and none of the Trust, the Indenture Trustee, the Registrar,
the Paying Agent, any Agent or any other agent of the Trust or the Indenture
Trustee shall be affected by notice to the contrary.
(c) The Notes are being issued by means of a book-entry-only system with no
physical distribution of certificates to be made except as provided in the
Indenture. The book-entry system maintained by DTC will evidence ownership of
the Notes, with transfers of ownership effected on the records of DTC and its
participants pursuant to rules and procedures established
A-1-23
by DTC and its participants. The Trust and the Indenture Trustee will recognize
Cede & Co., as nominee of DTC, as the registered owner of the Notes, as the
Holder of the Notes for all purposes, including payment of principal, premium
(if any) and interest, notices and voting. Transfer of principal, premium (if
any) and interest to participants of DTC will be the responsibility of DTC, and
transfer of principal, premium (if any) and interest to beneficial holders of
the Notes by participants of DTC will be the responsibility of such participants
and other nominees of such beneficial holders. So long as the book-entry system
is in effect, the selection of any Notes to be redeemed or repaid will be
determined by DTC pursuant to rules and procedures established by DTC and its
participants. Neither the Trust nor the Indenture Trustee shall be responsible
or liable for such transfers or payments or for maintaining, supervising or
reviewing the records maintained by DTC, its participants or persons acting
through such participants.
(d) This Note or portion hereof may not be exchanged for Definitive Notes,
except in the limited circumstances provided for in the Indenture. The transfer
or exchange of Definitive Notes shall be subject to the terms of the Indenture.
No service charge will be made for any registration of transfer or exchange, but
the Trust may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
SECTION 15. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Trust to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to the Principal Amount hereof together with interest to the
repayment date, to the undersigned, at:
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned).
For this Note to be repaid, the Indenture Trustee (or the Paying Agent on
behalf of the Indenture Trustee) must receive at its Corporate Trust Office, or
at such other place or places of which the Trust shall from time to time notify
the Holder of this Note, not more than sixty (60) nor less than thirty (30) days
prior to a Repayment Date, if any, shown on the face of this Note, this Note
with this "Option to Elect Repayment" form duly completed.
If less than the entire Principal Amount of this Note is to be repaid,
specify the portion hereof (which shall be in increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $__________ or an integral multiple of $1,000 in excess of
$__________) of the Notes to be issued to the Holder for the portion of this
Note not being repaid (in the absence of any such specification, one such Note
will be issued for the portion not being repaid).
$________________________
----------------------------------------
------------------- NOTICE: The signature on this Option to
DATE: Elect Repayment must correspond with the
------------------- name as written upon the face of this
Note in every particular, without
alteration or enlargement or any change
whatever.
Principal Amount to be repaid, if Fill in for registration of Notes if to
amount to be repaid is less than the be issued otherwise than to the
Principal Amount of this Note registered Holder:
(Principal Amount remaining must be
an authorized denomination)
$________________________ Name: __________________________________
Address: _______________________________
________________________________________
(Please print name and
address including zip code)
SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER: _________________
A-1-25
SURVIVOR'S OPTION RIDER
(a) Unless this Note, on its face, has been declared due and payable prior
to the Maturity Date by reason of any Event of Default under the Indenture, or
has been previously redeemed or otherwise repaid, the authorized Representative
(as defined below) of a deceased Beneficial Owner (as defined below) of this
Note shall have the option to elect repayment by the Trust in whole or in part
prior to the Maturity Date following the death of the Beneficial Owner (a
"Survivor's Option"). The Survivor's Option may not be exercised unless this
Note was held by the Beneficial Owner or the estate of that Beneficial Owner for
a period beginning at least 6 months immediately prior to the death of such
Beneficial Owner. "Beneficial Owner" as used in this Survivor's Option Rider
means, with respect to this Note, the person who has the right, immediately
prior to such person's death, to receive the proceeds from the disposition of
this Note, as well as the right to receive payments on this Note.
(b) Upon (1) the valid exercise of the Survivor's Option and the proper
tender of this Note by or on behalf of a person that has authority to act on
behalf of the deceased Beneficial Owner of this Note under the laws of the
appropriate jurisdiction (including, without limitation, the personal
representative or executor of the deceased Beneficial Owner or the surviving
joint owner of the deceased Beneficial Owner) (the "Representative") and (2) the
tender and acceptance of that portion of the Funding Agreement equal to the
amount of the portion of this Note to be redeemed, the Trust shall repay this
Note (or portion thereof) at a price equal to 100% of the unpaid Principal
Amount of the deceased Beneficial Owner's beneficial interest in this Note plus
accrued and unpaid interest to, but excluding, the date of such repayment.
However, the Trust shall not be obligated to repay:
(i) beneficial ownership interests in Notes exceeding the greater of
$2,000,000 or 2% (or such other amounts, as specified in the Pricing
Supplement) in aggregate principal amount for all notes then
outstanding under the ING(SM) USA CoreNotes(R) program as of the end
of the most recent calendar year (the "Annual Put Limitation");
(ii) on behalf of an individual deceased Beneficial Owner, any
beneficial ownership interest in all notes issued under the ING(SM)
USA CoreNotes(R) program that exceeds $250,000 (or such other amounts,
as specified in the Pricing Supplement) in any calendar year (the
"Individual Put Limitation"); or
(iii) beneficial ownership interests in Notes exceeding the amount
specified on the face hereof and in the Pricing Supplement (the "Trust
Put Limitation").
(c) The Trust shall not make principal repayments pursuant to exercise of
the Survivor's Option in amounts that are less than $1,000, and, in the event
that the limitations described in the preceding sentence would result in the
partial repayment of this Note, the Principal Amount remaining Outstanding after
repayment must be at least $1,000 (the minimum authorized denomination of the
Notes).
(d) An otherwise valid election to exercise the Survivor's Option may not
be withdrawn.
A-1-26
(e) Election to exercise the Survivor's Option will be accepted in the
order that elections are received by the Trustee, except for any Notes (or
portion thereof) the acceptance of which would contravene (1) the Annual Put
Limitation, (2) the Individual Put Limitation or (3) the Trust Put Limitation.
Any Note (or portion thereof) accepted for repayment pursuant to exercise of the
Survivor's Option shall be repaid on the first Interest Payment Date that occurs
20 or more calendar days after the date of such acceptance. If, as of the end of
any calendar year, the aggregate principal amount of all notes (or portions
thereof) issued under the ING(SM) USA CoreNotes(R) program that have been
tendered pursuant to the valid exercise of the Survivor's Option during such
year has exceeded the Annual Put Limitation, the Individual Put Limitation or
the Trust Put Limitation, for such year, any exercise(s) of the Survivor's
Option with respect to Notes (or portions thereof) not accepted during such
calendar year, because such acceptance would have contravened any such
limitation, shall be deemed to be tendered on the first day of the following
calendar year in the order all such notes (or portions thereof) were originally
tendered. In the event that this Note (or any portion hereof) tendered for
repayment pursuant to valid exercise of the Survivor's Option is not accepted or
is to be delayed, the Trustee shall deliver a notice by first-class mail to the
Depositary that states the reason such Note (or portion thereof) has not been
accepted for payment or is to be delayed.
(f) In order to obtain repayment through exercise of the Survivor's Option
with respect to this Note (or portion hereof), the Representative must provide
the following items to the broker or other entity through which the beneficial
interest in this Note is held by the deceased Beneficial Owner: (1) a written
instruction to such broker or other entity in the form of Annex A attached
hereto to notify the Depositary of the Representative's desire to obtain
repayment through the exercise of the Survivor's Option; (2) appropriate
evidence satisfactory to the Trustee that (i) the deceased was the Beneficial
Owner of this Note at the time of death and the interest in this Note was owned
by the deceased Beneficial Owner or his or her estate for a period beginning at
least six months immediately prior to the death of such Beneficial Owner, (ii)
the death of such Beneficial Owner has occurred, and the date of such death, and
(iii) the Representative has authority to act on behalf of the deceased
Beneficial Owner; (3) if the interest in this Note is held by a nominee of the
deceased Beneficial Owner, a certificate satisfactory to the Trustee from such
nominee attesting to the deceased's beneficial ownership of this Note; (4) a
written request for repayment signed by the Representative, with the signature
guaranteed by a member firm of a registered national securities exchange or of
the National Association of Securities Dealers, Inc. or a commercial bank or
trust company having an office or correspondent in the United States; (5) if
applicable, a properly executed assignment or endorsement; (6) tax waivers and
such other instruments or documents that the Trustee reasonably requires in
order to establish the validity of the beneficial ownership of this Note and the
claimant's entitlement to payment; and (7) any additional information the
Trustee reasonably requires to evidence satisfaction of any conditions to the
exercise of such Survivor's Option or to document beneficial ownership or
authority to make the election and to cause the repayment of this Note. Such
broker or other entity shall then deliver each of these items to the direct
participant of the Depositary, such direct participant being the entity that
holds the beneficial interest in this Note on behalf of the deceased Beneficial
Owner, together with evidence satisfactory to the Indenture Trustee from the
broker or other entity stating that it represents the deceased Beneficial Owner.
Such direct participant shall then deliver such items to the Indenture Trustee.
The Indenture Trustee will then deliver these items to the Trustee and will
provide the Trustee with any additional information (after receipt from such
direct participant) the Trustee may request in
A-1-27
connection with such exercise. Such direct participant shall be responsible for
disbursing any payments it receives from the Depositary pursuant to exercise of
the Survivor's Option to the appropriate Representative. All questions, other
than with respect to the right to limit the aggregate Principal Amount of Notes
as to which exercises of the Survivor's Option shall be accepted in any one
calendar year or as to the Notes, regarding the eligibility or validity of any
exercise of the Survivor's Option will be determined by the Trustee, in its sole
discretion, which determination shall be final and binding on all parties.
(g) The death of a person holding a beneficial interest in this Note as a
joint tenant or tenant by the entirety with another person, or as a tenant in
common with the deceased owner's spouse, will be deemed the death of the
Beneficial Owner of this Note, and the entire Principal Amount of this Note so
held shall be subject to repayment by the Trust upon request in accordance with
the terms and provisions hereof. However, the death of a person holding a
beneficial interest in this Note as tenant in common with a person other than
such deceased owner's spouse will be deemed the death of a Beneficial Owner only
with respect to such deceased person's ownership interest in this Note.
(h) The death of a person who was a lifetime beneficiary of a trust holding
a beneficial interest in this Note will be treated as the death of the
Beneficial Owner of this Note to the extent of that person's interest in the
trust. The death of a person who was a tenant by the entirety or joint tenant in
a tenancy which is the beneficiary of a trust holding a beneficial interest in
this Note will be treated as the death of the Beneficial Owner of this Note. The
death of an individual who was a tenant in common in a tenancy which is the
beneficiary of a trust holding a beneficial interest in this Note will be
treated as the death of the Beneficial Owner of this Note only with respect to
the deceased person's beneficial interest in this Note, unless a husband and
wife are the tenants in common, in which case the death of either will be
treated as the death of the owner of this Note.
(i) The death of a person who, during his or her lifetime, was entitled to
substantially all of the beneficial ownership interests in this Note will be
deemed the death of the Beneficial Owner of this Note for purposes of the
Survivor's Option, regardless of whether that Beneficial Owner was the
registered holder of this Note, if such beneficial ownership interest can be
established to the satisfaction of the Trustee. A beneficial ownership interest
will be deemed to exist in typical cases of nominee ownership, such as ownership
under the Uniform Transfers of Gifts to Minors Act, community property or other
joint ownership arrangements between a husband and wife and lifetime custodial
and trust arrangements.
A-1-28
ANNEX A
REPAYMENT ELECTION FORM
ING USA ANNUITY AND LIFE INSURANCE COMPANY
ING(SM) USA CORENOTES(R)
CUSIP NUMBER ________
To: [Name of Issuing Trust] (the "TRUST")
The undersigned financial institution (the "FINANCIAL INSTITUTION")
represents the following:
- - The Financial Institution has received a request for repayment from the
executor or other authorized representative (the "AUTHORIZED
REPRESENTATIVE") of the deceased beneficial owner listed below (the
"DECEASED BENEFICIAL OWNER") of ING(SM) USA CoreNotes(R) (CUSIP No.
____________) (the "NOTES").
- - At the time of his or her death, the Deceased Beneficial Owner owned Notes
in the principal amount listed below.
- - The Deceased Beneficial Owner acquired the Notes at least six (6) months
before the date of death of such Deceased Beneficial Owner.
- - The Financial Institution currently holds such notes as a direct or
indirect Participant in The Depository Trust Company (the "DEPOSITARY").
The Financial Institution agrees to the following terms:
- - The Financial Institution shall follow the instructions (the
"INSTRUCTIONS") accompanying this Repayment Election Form (this "FORM").
- - The Financial Institution shall make all records specified in the
Instructions supporting the above representations available to U.S. Bank
National Association (the "TRUSTEE") or the Trust for inspection and review
within five business days of the Trustee's or the Trust's request.
- - If the Financial Institution, the Trustee or the Trust, in any such party's
reasonable discretion, deems any of the records specified in the
Instructions supporting the above representations unsatisfactory to
substantiate a claim for repayment, the Financial Institution shall not be
obligated to submit this Form, and the Trustee or Trust may deny repayment.
If the Financial Institution cannot substantiate a claim for repayment, it
shall notify the Trustee immediately.
A-1-29
- - Repayment elections may not be withdrawn.
- - The Financial Institution agrees to indemnify and hold harmless the Trustee
and the Trust against and from any and all claims, liabilities, costs,
losses, expenses, suits and damages resulting from the Financial
Institution's above representations and request for repayment on behalf of
the Authorized Representative.
- - The Notes will be repaid on the first Interest Payment Date to occur at
least 20 calendar days after the date of acceptance of the notes for
repayment, unless such date is not a business day, in which case the date
of repayment shall be the next succeeding business day.
- - Subject to the Trust's rights to limit the aggregate principal amount of
Notes as to which exercises of the Survivor's Option shall be accepted in
any one calendar year, all questions as to the eligibility or validity of
any exercise of the Survivor's Option will be determined by the Trustee, in
its sole discretion, which determination shall be final and binding on all
parties.
"ING(SM)" is a service mark of ING Groep N.V. and is used under license.
CoreNotes(R) is a registered service mark of Merrill Lynch & Co., Inc.
A-1-30
REPAYMENT ELECTION FORM
(1) ____________________________________________________________________________
Name of Deceased Beneficial Owner
(2) ____________________________________________________________________________
Date of Death
(3) ____________________________________________________________________________
Name of Authorized Representative Requesting Repayment
(4) ____________________________________________________________________________
Name of Financial Institution Requesting Repayment
(5) ____________________________________________________________________________
Signature of Authorized Representative of Financial Institution
Requesting Repayment
(6) ____________________________________________________________________________
Principal Amount of Requested Repayment
(7) ____________________________________________________________________________
Date of Election
(8) Financial Institution
Representative Name: _________________________
Phone Number: ________________________________
Fax Number: __________________________________
Mailing Address (no P.O. Boxes): _____________
(9) Wire instructions for payment:
Bank Name: ___________________________________
ABA Number: __________________________________
Account Name: ________________________________
Account Number: ______________________________
Reference (optional): ________________________
TO BE COMPLETED BY THE TRUSTEE: __________
(A) ELECTION NUMBER*: __________
(B) DELIVERY AND PAYMENT DATE: __________
(C) PRINCIPAL AMOUNT: __________
(D) ACCRUED INTEREST: __________
(E) DATE OF RECEIPT OF FORM BY THE TRUSTEE: __________
(F) DATE OF ACKNOWLEDGMENT BY THE TRUSTEE: __________
- ----------
* To be assigned by the Trustee upon receipt of this Form. An
acknowledgement, in the form of a copy of this document with the assigned
Election Number, will be returned to the party and location designated in
item (8) above.
A-1-31
INSTRUCTIONS FOR COMPLETING REPAYMENT ELECTION FORM AND EXERCISING
REPAYMENT OPTION
Capitalized terms used and not defined herein have the meanings
defined in the accompanying Repayment Election Form.
1. Collect and retain for a period of at least three years (1) satisfactory
evidence of the authority of the Authorized Representative, (2)
satisfactory evidence of death of the Deceased Beneficial Owner, (3)
satisfactory evidence that the Deceased Beneficial Owner beneficially
owned, at the time of his or her death, the notes being submitted for
repayment, (4) satisfactory evidence that the notes being submitted for
repayment were acquired by the Deceased Beneficial Owner at least six (6)
months before the date of the death of such Deceased Beneficial Owner, and
(5) any necessary tax waivers. For purposes of determining whether the
notes will be deemed beneficially owned by an individual at any given time,
the following rules shall apply:
- If a note (or a portion thereof) is beneficially owned by tenants by
the entirety or joint tenants, the note (or relevant portion thereof)
will be regarded as beneficially owned by a single owner. Accordingly,
the death of a tenant by the entirety or joint tenant will be deemed
the death of the beneficial owner and the entire principal amount so
owned will become eligible for repayment.
- The death of a person beneficially owning a note (or a portion
thereof) by tenancy in common will be deemed the death of the
beneficial owner only with respect to the deceased owner's interest in
the note (or relevant portion thereof) so owned, unless a husband and
wife are the tenants in common, in which case the death of either will
be deemed the death of the beneficial owner and the entire principal
amount so owned will be eligible for repayment.
- A note (or a portion thereof) beneficially owned by a trust will be
regarded as beneficially owned by each beneficiary of the trust to the
extent of that beneficiary's interest in the trust (however, a trust's
beneficiaries collectively cannot be beneficial owners of more notes
than are owned by the trust). The death of a beneficiary of a trust
will be deemed the death of the beneficial owner of the notes (or
relevant portion thereof) beneficially owned by the trust to the
extent of that beneficiary's interest in the trust. The death of an
individual who was a tenant by the entirety or joint tenant in a
tenancy which is the beneficiary of a trust will be deemed the death
of the beneficiary of the trust. The death of an individual who was a
tenant in common in a tenancy which is the beneficiary of a trust will
be deemed the death of the beneficiary of the trust only with respect
to the deceased holder's beneficial interest in the note, unless a
husband and wife are the tenants in common, in which case the death of
either will be deemed the death of the beneficiary of the trust.
- The death of a person who, during his or her lifetime, was entitled to
substantially all of the beneficial interest in a note (or a portion
thereof) will be deemed the death of the beneficial owner of that note
(or relevant portion thereof), regardless of the registration of
A-1-32
ownership, if such beneficial interest can be established to the
satisfaction of the Trustee. Such beneficial interest will exist in
many cases of street name or nominee ownership, custodial
arrangements, ownership by a trustee, ownership under the Uniform
Transfers of Gifts to Minors Act and community property or other joint
ownership arrangements between spouses. Beneficial interest will be
evidenced by such factors as the power to sell or otherwise dispose of
a note, the right to receive the proceeds of sale or disposition and
the right to receive interest and principal payments on a note.
2. Indicate the name of the Deceased Beneficial Owner on line (1).
3. Indicate the date of death of the Deceased Beneficial Owner on line (2).
4. Indicate the name of the Authorized Representative requesting repayment on
line (3).
5. Indicate the name of the Financial Institution requesting repayment on line
(4).
6. Affix the authorized signature of the Financial Institution's
representative on line (5). THE SIGNATURE MUST BE MEDALLION SIGNATURE
GUARANTEED.
7. Indicate the principal amount of notes to be repaid on line (6).
8. Indicate the date this Form was completed on line (7).
9. Indicate the name, mailing address (no P.O. boxes, please), telephone
number and facsimile-transmission number of the party to whom the
acknowledgment of this election may be sent in item (8).
10. Indicate the wire instruction for payment on line (9).
11. Leave lines (A), (B), (C), (D), (E) and (F) blank.
12. Mail or otherwise deliver an original copy of the completed Form to:
Citibank, N.A.
111 Wall Street, 15th Floor
New York, New York 10005
Facsimile: (212) 657-1020
Attention: Agency & Trust Customer Service
13. FACSIMILE TRANSMISSIONS OF THE REPAYMENT ELECTION FORM WILL NOT BE
ACCEPTED.
14. If the acknowledgement of the Trustee's receipt of this Form, including the
assigned Election Number, is not received within ten days of the date such
information is sent to Citibank, N.A., contact the Trustee at 209 S.
LaSalle Street, Suite 300, Chicago, IL 60604 attention: Corporate Trust
Services, telephone number: (312) 325-8902.
A-1-33
15. For assistance with this Form or any questions relating thereto, please
contact U.S. Bank National Association at 209 S. LaSalle Street, Suite 300,
Chicago, IL 60604 attention: Corporate Trust Services, telephone number:
(312) 325-8902.
A-1-34
EXHIBIT A-2
FORM OF INSTITUTIONAL GLOBAL NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
(HEREINAFTER DEFINED) AND IS REGISTERED IN THE NAME OF A DEPOSITARY
(AS DEFINED IN THE INDENTURE) OR A NOMINEE OF A DEPOSITARY. THIS NOTE
IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUST
(HEREINAFTER DEFINED) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND UNLESS ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP NO.: __________ PRINCIPAL AMOUNT: U.S. $__________
ISIN NO.: __________
ING USA GLOBAL FUNDING TRUST __________
SECURED MEDIUM-TERM NOTES
Original Issue Date: __________ Floating Rate Note: [ ] Yes [ ] No. If yes,
Issue Price: __________ Regular Floating Rate Notes [ ]
Stated Maturity Date: __________ Inverse Floating Rate Notes [ ]
Settlement Date: __________ Floating Rate/Fixed Rate Notes [ ]
Securities Exchange Listing: [ ] Yes [ ] No. Fixed Rate/Floating Rate Notes [ ]
If yes, indicate name(s) of Securities Interest Rate Basis(es): __________
Exchange(s): __________ LIBOR [ ]
__________________________________.
Depositary: __________
A-2-1
[ ] LIBOR Reuters Page: __________
Authorized Denominations: __________ [ ] LIBOR Telerate Page: __________
Collateral held in the Trust: ING USA LIBOR Currency: __________
Annuity and Life Insurance EURIBOR [ ]
Company Funding Agreement No. __________, CMT Rate [ ]
all proceeds of the Funding Agreement and Designated CMT Telerate Page: __________
all rights and books and records If Telerate Page 7052: __________
pertaining to the foregoing. [ ] Weekly Average
[ ] Monthly Average
Additional Amounts to be Paid: [ ] Yes [ ] No Designated CMT Maturity Index: _________
Interest Rate or Formula: __________ CD Rate [ ]
Fixed Rate Note: [ ] Yes [ ] No. If yes, Commercial Paper Rate [ ]
Interest Rate: __________ Constant Maturity Swap Rate [ ]
Interest Payment Frequency: __________ Eleventh District Cost of Funds Rate [ ]
Interest Payment Dates: __________ Federal Funds Open Rate [ ]
Day Count Convention: __________ Federal Funds Rate [ ]
Additional/Other Terms: __________ Prime Rate [ ]
Amortizing Note: [ ] Yes [ ] No. If yes, Treasury Rate [ ]
Amortization schedule or formula: __________ Index Maturity: __________
Additional/Other Terms: __________ Spread and/or Spread Multiplier: __________
Discount Note: [ ] Yes [ ] No. If yes, Initial Interest Rate, if any: __________
Total Amount of Discount: __________ Initial Interest Reset Date: __________
Initial Accrual Period of Discount: __________ Interest Reset Dates: __________
Interest Payment Dates: __________ Interest Determination Date(s): __________
Additional/Other Terms: __________ Interest Payment Dates: __________
Redemption Provisions: [ ] Yes [ ] No. If yes, Maximum Interest Rate, if any: __________
Initial Redemption Date: __________ Minimum Interest Rate, if any: __________
Initial Redemption Percentage: __________ Fixed Rate Commencement Date, if any: __________
Annual Redemption Percentage Reduction, Floating Rate Commencement Date, if any
if any: __________ Fixed Interest Rate, if any: __________
Additional/Other Terms: __________ Day Count Convention: __________
Repayment Provisions: [ ] Yes [ ] No. If yes, Additional/Other Terms: __________
Repayment Date(s): __________ Regular Record Date(s): __________
Repayment Price: __________ Sinking Fund: __________
Additional/Other Terms: __________ Specified Currency: __________
Exchange Rate Agent: __________
Calculation Agent: __________
Additional/Other Terms: __________
The ING USA Global Funding Trust designated above (the "Trust"), for value
received, hereby promises to pay to Cede & Co., or its registered assigns, the
Principal Amount specified above on the Stated Maturity Date specified above
and, if so specified above, to pay interest thereon from the Original Issue Date
specified above or from the most recent Interest Payment Date specified above to
which interest has been paid or duly provided for at the rate per annum
A-2-2
determined in accordance with the provisions on the reverse hereof and as
specified above, until the principal hereof is paid or made available for
payment. Unless otherwise specified above, payments of principal, premium, if
any, and interest hereon will be made in the lawful currency of the United
States of America ("U.S. Dollars" or "United States Dollars"). If the Specified
Currency specified above is other than U.S. Dollars, the Holder (as defined in
the Indenture) shall receive such payments in such Foreign Currency (as
hereinafter defined). The "Principal Amount" of this Note at any time means (1)
if this Note is a Discount Note (as defined in section 3(c) on the reverse
hereof), the Amortized Face Amount (as hereinafter defined) at such time and (2)
in all other cases, the Principal Amount hereof. Capitalized terms not otherwise
defined herein shall have their meanings set forth in the Indenture, dated as of
the date of the Pricing Supplement (the "Indenture"), between Citibank, N.A., as
the indenture trustee (the "Indenture Trustee"), and the Trust, or on the face
hereof.
This Note will mature on the Stated Maturity Date, unless its principal (or
any installment of its principal) becomes due and payable prior to the Stated
Maturity Date, whether, as applicable, by the declaration of acceleration of
maturity, notice of redemption by the Trust or otherwise (the Stated Maturity
Date or any date prior to the Stated Maturity Date on which this Note becomes
due and payable, as the case may be, is referred to as the "Maturity Date").
A "Discount Note" is any Note that has an Issue Price that is less than
100% of the Principal Amount thereof by a percentage that is equal to or greater
than 0.25% multiplied by the product of the principal amount of the Notes and
the number of full years to the Stated Maturity Date.
Unless otherwise specified above, the interest payable on each Interest
Payment Date or the Maturity Date will be the amount of interest accrued from
and including the Original Issue Date or from and including the last Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, to, but excluding, such Interest Payment Date or the Maturity Date, as
the case may be.
Unless otherwise specified above, the interest payable on any Interest
Payment Date will be paid to the Holder on the Regular Record Date for such
Interest Payment Date, which Regular Record Date shall be the fifteenth (15th)
calendar day, whether or not a Business Day, immediately preceding the related
Interest Payment Date; provided that, notwithstanding any provision of the
Indenture to the contrary, interest payable on any Maturity Date shall be
payable to the Person to whom principal shall be payable; and provided, further,
that unless otherwise specified above, in the case of a Note initially issued
between a Regular Record Date and the Interest Payment Date relating to such
Regular Record Date, interest for the period beginning on the Original Issue
Date and ending on such Interest Payment Date shall be paid on the Interest
Payment Date following the next succeeding Regular Record Date to the Holder on
such next succeeding Regular Record Date.
Payments of principal of, and premium, if any, and interest and other
amounts due and owing, if any, will be made through the Indenture Trustee to the
account of DTC or its nominee and will be made in accordance with depositary
arrangements with DTC.
A-2-3
Unless otherwise specified on the face hereof, the Holder hereof will not
be obligated to pay any administrative costs imposed by banks in making payments
in immediately available funds by the Trust. Unless otherwise specified on the
face hereof, any tax assessment or governmental charge imposed upon payments
hereunder, including, without limitation, any withholding tax, will be borne by
the Holder hereof.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon shall have been executed by
the Indenture Trustee pursuant to the Indenture, this Note shall not be entitled
to any benefit under such Indenture or be valid or obligatory for any purpose.
A-2-4
IN WITNESS WHEREOF, the Trust has caused this instrument to be duly
executed, by manual or facsimile signature.
THE ING USA GLOBAL FUNDING TRUST
SPECIFIED ON THE FACE OF THIS NOTE
Dated: Original Issue Date By: U.S. Bank National Association, not
in its individual capacity but solely as
Trustee.
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the ING USA Global Funding Trust specified on
the face of this Note referred to in the within-mentioned Indenture.
CITIBANK, N.A.
As Indenture Trustee
Dated: Original Issue Date
By:
------------------------------------
Authorized Signatory
A-2-5
[REVERSE FORM OF NOTE]
SECTION 1. GENERAL. This Note is one of a duly authorized issue of
Notes of the Trust. The Notes are issued pursuant to the Indenture.
Section 2. Currency.
(a) Unless specified otherwise on the face hereof, this Note is denominated
in, and payments of principal, premium, if any, and/or interest, if any, will be
made in U.S. Dollars. If specified as the Specified Currency, this Note may be
denominated in, and payments of principal, premium, if any, and/or interest, if
any, may be made in a single currency other than U.S. Dollars (a "Foreign
Currency"). If this Note is denominated in a Foreign Currency, the Holder of
this Note is required to pay for this Note in the Specified Currency.
(b) Unless specified otherwise on the face hereof, if this Note is
denominated in a Foreign Currency, the Trust is obligated to make payments of
principal of, and premium, if any, and interest, if any, on, this Note in the
Specified Currency. Any amounts so payable by the Trust in the Specified
Currency will be converted by the Exchange Rate Agent into U.S. Dollars for
payment to the Holder hereof unless otherwise specified on the face of this Note
or the Holder elects, in the manner described below, to receive these amounts in
the Specified Currency. If this Note is denominated in a Foreign Currency, any
U.S. Dollar amount to be received by the Holder hereof will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Trust for the purchase by the quoting dealer of
the Specified Currency for U.S. Dollars for settlement on that payment date in
the aggregate amount of the Specified Currency payable to all Holders of the
Notes scheduled to receive U.S. Dollar payments and at which the applicable
dealer commits to execute a contract. All currency exchange costs will be borne
by the Holders of the Notes by deductions from any payments. If three bid
quotations are not available, payments will be made in the Specified Currency.
If this Note is denominated in a Foreign Currency, the Holder of this Note may
elect to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest, if any, in the Specified Currency by
submitting a written request to the Indenture Trustee at its Corporate Trust
Office in The City of New York on or prior to the applicable Regular Record Date
or at least 15 calendar days prior to the Maturity Date, as the case may be.
This written request may be mailed or hand delivered or sent by cable, telex or
other form of facsimile transmission. This election will remain in effect until
revoked by written notice delivered to the Indenture Trustee on or prior to a
Regular Record Date or at least 15 calendar days prior to the Maturity Date, as
the case may be. The Holder of a Note denominated in a Foreign Currency to be
held in the name of a broker or nominee should contact their broker or nominee
to determine whether and how an election to receive payments in the Specified
Currency may be made. Unless specified otherwise on the face hereof, if the
Specified Currency is other than U.S. Dollars, a beneficial owner of a Note
represented by a global security which elects to receive payments of principal,
premium, if any, and/or interest, if any, in the Specified Currency must notify
the participant through which it owns its interest on or prior to the applicable
Regular Record Date or at least 15
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calendar days prior to the Maturity Date, as the case may be, of its election.
The applicable participant must notify DTC of its election on or prior to the
third Business Day after the applicable Regular Record Date or at least 12
calendar days prior to the Maturity Date, as the case may be, and DTC will
notify the Indenture Trustee of that election on or prior to the fifth Business
Day after the applicable Regular Record Date or at least ten calendar days prior
the Maturity Date, as the case may be. If complete instructions are received by
the participant from the applicable beneficial owner and forwarded by the
participant to DTC, and by DTC to the Indenture Trustee, on or prior to such
dates, then the applicable beneficial owner will receive payments in the
Specified Currency.
(c) The Trust will indemnify the Holder hereof against any loss incurred as
a result of any judgment or order being given or made for any amount due under
this Note and that judgment or order requiring payment in a currency (the
"Judgment Currency") other than the Specified Currency, and as a result of any
variation between: (i) the rate of exchange at which the Specified Currency
amount is converted into the Judgment Currency for the purpose of that judgment
or order; and (ii) the rate of exchange at which the Holder, on the date of
payment of that judgment or order, is able to purchase the Specified Currency
with the amount of the Judgment Currency actually received.
(d) Unless otherwise specified on the face hereof, if payment hereon is
required to be made in a Foreign Currency and such currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the Trust's
control, then the Trust will be entitled to make payments with respect hereto in
U.S. Dollars on the basis of the Market Exchange Rate (as hereinafter defined),
computed by the Exchange Rate Agent, on the second Business Day prior to the
particular payment or, if the Market Exchange Rate is not then available, on the
basis of the most recently available Market Exchange Rate.
(e) The "Market Exchange Rate" for the Foreign Currency shall mean the noon
dollar buying rate in The City of New York for cable transfers for the Foreign
Currency as certified for customs purposes (or, if not so certified, as
otherwise determined) by the Federal Reserve Bank of New York.
(f) All determinations made by the Exchange Rate Agent shall be at its sole
discretion and shall, in the absence of manifest error, be conclusive for all
purposes and binding on the Holder hereof.
(g) All costs of exchange in respect of this Note, if denominated in a
Foreign Currency, will be borne by the Holder hereof.
SECTION 3. DETERMINATION OF INTEREST RATE AND CERTAIN OTHER TERMS.
(a) Fixed Rate Notes. If this Note is specified on the face hereof as a
"Fixed Rate Note":
(i) This Note will bear interest at the rate per annum specified on
the face hereof. Interest on this Note will be computed on the basis
of a 360-day year of twelve 30-day months.
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(ii) Unless otherwise specified on the face hereof, the Interest
Payment Dates for this Note will be as follows:
INTEREST PAYMENT FREQUENCY INTEREST PAYMENT DATES
- -------------------------- ----------------------
Monthly Fifteenth day of each calendar month, beginning in
the first calendar month following the month this
Note was issued.
Quarterly Fifteenth day of every third calendar month,
beginning in the third calendar month following the
month this Note was issued.
Semi-annual Fifteenth day of every sixth calendar month,
beginning in the sixth calendar month following the
month this Note was issued.
Annual Fifteenth day of every twelfth calendar month,
beginning in the twelfth calendar month following
the month this Note was issued.
(iii) If any Interest Payment Date or the Maturity Date of this Note
falls on a day that is not a Business Day, the Trust will make the
required payment of principal, premium, if any, and/or interest or
other amounts on the next succeeding Business Day, and no additional
interest will accrue in respect of the payment made on that next
succeeding Business Day.
(b) Floating Rate Notes. If this Note is specified on the face hereof as a
"Floating Rate Note":
(i) Interest Rate Basis. Interest on this Note will be determined by
reference to the applicable Interest Rate Basis or Interest Rate
Bases, which may, as described below, include the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Constant Maturity Swap Rate, the
Eleventh District Cost of Funds Rate, the Federal Funds Open Rate, the
Federal Funds Rate, LIBOR, EURIBOR, the Prime Rate or the Treasury
Rate (each as defined below).
(ii) Effective Rate. The rate derived from the applicable Interest
Rate Basis or Interest Rate Bases will be determined in accordance
with the related provisions below. The interest rate in effect on each
day will be based on: (1) if that day is an Interest Reset Date, the
rate determined as of the Interest Determination Date immediately
preceding that Interest Reset Date; or (2) if that day is not an
Interest Reset Date, the rate determined as of the Interest
Determination Date immediately preceding the most recent Interest
Reset Date.
(iii) Spread; Spread Multiplier; Index Maturity. The "Spread" is the
number of basis points (one one-hundredth of a percentage point)
specified on the face hereof
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to be added to or subtracted from the related Interest Rate Basis or
Interest Rate Bases applicable to this Note. The "Spread Multiplier"
is the percentage specified on the face hereof of the related Interest
Rate Basis or Interest Rate Bases applicable to this Note by which the
Interest Rate Basis or Interest Rate Bases will be multiplied to
determine the applicable interest rate. The "Index Maturity" is the
period to maturity of the instrument or obligation with respect to
which the related Interest Rate Basis or Interest Rate Bases will be
calculated.
(iv) Regular Floating Rate Note. Unless this Note is specified on the
face hereof as a Floating Rate/Fixed Rate Note, a Fixed Rate/Floating
Rate Note or an Inverse Floating Rate Note, this Note (a "Regular
Floating Rate Note") will bear interest at the rate determined by
reference to the applicable Interest Rate Basis or Interest Rate
Bases: (1) plus or minus the applicable Spread, if any; and/or (2)
multiplied by the applicable Spread Multiplier, if any. Commencing on
the first Interest Reset Date, the rate at which interest on this
Regular Floating Rate Note is payable will be reset as of each
Interest Reset Date; provided, however, that the interest rate in
effect for the period, if any, from the Original Issue Date to the
first Interest Reset Date will be the Initial Interest Rate.
(v) Floating Rate/Fixed Rate Notes. If this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note", this Note will bear
interest at the rate determined by reference to the applicable
Interest Rate Basis or Interest Rate Bases: (1) plus or minus the
applicable Spread, if any; and/or (2) multiplied by the applicable
Spread Multiplier, if any. Commencing on the first Interest Reset
Date, the rate at which this Floating Rate/Fixed Rate Note is payable
will be reset as of each Interest Reset Date; provided, however, that:
(A) the interest rate in effect for the period, if any, from the
Original Issue Date to the first Interest Reset Date will be the
Initial Interest Rate specified on the face hereof; and (B) the
interest rate in effect commencing on the Fixed Rate Commencement Date
will be the Fixed Interest Rate, if specified on the face hereof, or,
if not so specified, the interest rate in effect on the day
immediately preceding the Fixed Rate Commencement Date.
(vi) Fixed Rate/Floating Rate Notes. If this Note is specified on the
face hereof as a "Fixed Rate/Floating Rate Note", this Note will bear
interest at the rate per annum specified on the face hereof as the
Fixed Interest Rate; provided, however, that commencing on the
Floating Rate Commencement Date, this Note will bear interest at the
rate determined by reference to the applicable Interest Rate Basis or
Interest Rate Bases: (1) plus or minus the applicable Spread, if any;
and/or (2) multiplied by the applicable Spread Multiplier, if any.
Commencing on the first Interest Reset Date, the rate at which this
Fixed Rate/Floating Rate Note is payable will be reset as of each
Interest Reset Date.
(vii) Inverse Floating Rate Notes. If this Note is specified on the
face hereof as an "Inverse Floating Rate Note", this Note will bear
interest at the Fixed Interest Rate minus the rate determined by
reference to the applicable Interest Rate Basis or Interest Rate
Bases: (1) plus or minus the applicable Spread, if any; and/or (2)
multiplied by the applicable Spread Multiplier, if any; provided,
however, that
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interest on this Inverse Floating Rate Note will not be less than
zero. Commencing on the first Interest Reset Date, the rate at which
interest on this Inverse Floating Rate Note is payable will be reset
as of each Interest Reset Date; provided, however, that the interest
rate in effect for the period, if any, from the Original Issue Date to
the first Interest Reset Date will be the Initial Interest Rate.
(viii) Interest Reset Dates. The period between Interest Reset Dates
will be the "Interest Reset Period." Unless otherwise specified on the
face hereof, the Interest Reset Dates will be, in the case of this
Floating Rate Note if by its terms it resets: (1) daily--each business
day; (2) weekly--the Wednesday of each week, with the exception of any
weekly reset Floating Rate Note as to which the Treasury Rate is an
applicable Interest Rate Basis, which will reset the Tuesday of each
week; (3) monthly--the fifteenth day of each calendar month, with the
exception of any monthly reset Floating Rate Note as to which the
Eleventh District Cost of Funds Rate is an applicable Interest Rate
Basis, which will reset on the first calendar day of the month; (4)
quarterly--the fifteenth day of March, June, September and December of
each year; (5) semi-annually--the fifteenth day of the two months of
each year specified on the face hereof; and (6) annually--the
fifteenth day of the month of each year specified on the face hereof;
provided, however, that, with respect to a Floating Rate/Fixed Rate
Note, the rate of interest thereon will not reset after the particular
Fixed Rate Commencement Date. If any Interest Reset Date for this
Floating Rate Note would otherwise be a day that is not a Business
Day, the particular Interest Reset Date will be postponed to the next
succeeding Business Day, except that in the case of a Floating Rate
Note as to which LIBOR is an applicable Interest Rate Basis and that
Business Day falls in the next succeeding calendar month, the
particular Interest Reset Date will be the immediately preceding
Business Day.
(ix) Interest Determination Dates. The interest rate applicable to a
Floating Rate Note for an Interest Reset Period commencing on the
related Interest Reset Date will be determined by reference to the
applicable Interest Rate Basis as of the particular "Interest
Determination Date", which will be: (1) with respect to the Federal
Funds Open Rate--the related Interest Reset Date; (2) with respect to
the Commercial Paper Rate, the Federal Funds Rate and the Prime
Rate--the Business Day immediately preceding the related Interest
Reset Date; (3) with respect to the CD Rate and the CMT Rate--the
second Business Day preceding the related Interest Reset Date; (4)
with respect to the Constant Maturity Swap Rate--the second U.S.
Government Securities business day preceding the related Interest
Reset Date, provided, however, that if after attempting to determine
the Constant Maturity Swap Rate, such rate is not determinable for a
particular Interest Determination Date, then such Interest
Determination Date shall be the first U.S. Government Securities
business day preceding the original interest determination date for
which the Constant Maturity Swap Rate can be determined; (5) with
respect to the Eleventh District Cost of Funds Rate--the last working
day of the month immediately preceding the related Interest Reset Date
on which the Federal Home Loan Bank of San Francisco publishes the
Eleventh District Index (as defined below); (6) with respect to LIBOR
and EURIBOR--the second London Banking Day (as defined
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below) preceding the related Interest Reset Date; and (7) with respect
to the Treasury Rate--the day of the week in which the related
Interest Reset Date falls on which day Treasury Bills (as defined
below) are normally auctioned (i.e., Treasury Bills are normally sold
at auction on Monday of each week, unless that day is a legal holiday,
in which case the auction is normally held on the following Tuesday,
except that the auction may be held on the preceding Friday);
provided, however, that if an auction is held on the Friday of the
week preceding the related Interest Reset Date, the Interest
Determination Date will be the preceding Friday. The Interest
Determination Date pertaining to a Floating Rate Note, the interest
rate of which is determined with reference to two or more Interest
Rate Bases, will be the latest Business Day which is at least two
Business Days before the related Interest Reset Date for the
applicable Floating Rate Note on which each Interest Reset Basis is
determinable. "London Banking Day" means a day on which commercial
banks are open for business (including dealings in the LIBOR Currency)
in London.
(x) Calculation Dates. The interest rate applicable to each Interest
Reset Period will be determined by the Calculation Agent on or prior
to the Calculation Date (as defined below), except with respect to
LIBOR, EURIBOR and the Eleventh District Cost of Funds Rate, which
will be determined on the particular Interest Determination Date. Upon
request of the Holder of a Floating Rate Note, the Calculation Agent
will disclose the interest rate then in effect and, if determined, the
interest rate that will become effective as a result of a
determination made for the next succeeding Interest Reset Date with
respect to such Floating Rate Note. The "Calculation Date", if
applicable, pertaining to any Interest Determination Date will be the
earlier of: (1) the tenth calendar day after the particular Interest
Determination Date or, if such day is not a Business Day, the next
succeeding Business Day; or (2) the Business Day immediately preceding
the applicable Interest Payment Date or the Maturity Date, as the case
may be.
(xi) Maximum or Minimum Interest Rate. If specified on the face
hereof, this Note may have either or both of a Maximum Interest Rate
or a Minimum Interest Rate. If a Maximum Interest Rate is so
designated, the interest rate for a Floating Rate Note cannot ever
exceed such Maximum Interest Rate and in the event that the interest
rate on any Interest Reset Date would exceed such Maximum Interest
Rate (as if no Maximum Interest Rate were in effect) then the interest
rate on such Interest Reset Date shall be the Maximum Interest Rate.
If a Minimum Interest Rate is so designated, the interest rate for a
Floating Rate Note cannot ever be less than such Minimum Interest Rate
and in the event that the interest rate on any Interest Reset Date
would be less than such Minimum Interest Rate (as if no Minimum
Interest Rate were in effect) then the interest rate on such Interest
Reset Date shall be the Minimum Interest Rate. Notwithstanding
anything to the contrary contained herein, the interest rate on a
Floating Rate Note shall not exceed the maximum interest rate
permitted by applicable law.
(xii) Interest Payments. Unless otherwise specified on the face
hereof, the Interest Payment Dates will be, in the case of a Floating
Rate Note which resets: (1) daily, weekly or monthly--the fifteenth
day of each calendar month or on the fifteenth day
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of March, June, September and December of each year, as specified on
the face hereof; (2) quarterly--the fifteenth day of March, June,
September and December of each year; (3) semi-annually--the fifteenth
day of the two months of each year specified on the face hereof; and
(4) annually--the fifteenth day of the month of each year as specified
on the face hereof. In addition, the Maturity Date will also be an
Interest Payment Date. If any Interest Payment Date other than the
Maturity Date for this Floating Rate Note would otherwise be a day
that is not a Business Day, such Interest Payment Date will be
postponed to the next succeeding Business Day, except that in the case
of a Floating Rate Note as to which LIBOR is an applicable Interest
Rate Basis and that Business Day falls in the next succeeding calendar
month, the particular Interest Payment Date will be the immediately
preceding Business Day. If the Maturity Date of a Floating Rate Note
falls on a day that is not a Business Day, the Trust will make the
required payment of principal, premium, if any, and interest or other
amounts on the next succeeding Business Day, and no additional
interest will accrue in respect of the payment made on that next
succeeding Business Day.
(xiii) Rounding. Unless otherwise specified on the face hereof, all
percentages resulting from any calculation on this Floating Rate Note
will be rounded to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards.
All dollar amounts used in or resulting from any calculation on this
Floating Rate Note will be rounded, in the case of U.S. Dollars, to
the nearest cent or, in the case of a Foreign Currency, to the nearest
unit (with one-half cent or unit being rounded upwards).
(xiv) Interest Factor. With respect to this Floating Rate Note,
accrued interest is calculated by multiplying the principal amount of
such Note by an accrued interest factor. The accrued interest factor
is computed by adding the interest factor calculated for each day in
the particular Interest Reset Period. The interest factor for each day
will be computed by dividing the interest rate applicable to such day
by 360, in the case of a Floating Rate Note as to which the CD Rate,
the Commercial Paper Rate, the Eleventh District Cost of Funds Rate,
the Federal Funds Open Rate, the Federal Funds Rate, LIBOR, EURIBOR or
the Prime Rate is an applicable Interest Rate Basis, or by the actual
number of days in the year, in the case of a Floating Rate Note as to
which the CMT Rate or the Treasury Rate is an applicable Interest Rate
Basis. In the case of a series of Notes that bear interest at floating
rates as to which the Constant Maturity Swap Rate is the Interest Rate
Basis, the interest factor for each day will be computed by dividing
the number of days in the interest period by 360 (the number of days
to be calculated on the basis of a year of 360 days with twelve 30-day
months (unless (i) the last day of the interest period is the 31st day
of a month but the first day of the interest period is a day other
than the 30th or 31st day of a month, in which case the month that
includes that last day shall not be considered to be shortened to a
30-day month, or (ii) the last day of the interest period is the last
day of the month of February, in which case the month of February
shall not be considered to be lengthened to a 30-day month)). The
interest factor for a Floating Rate Note as to which the interest rate
is calculated with reference to two
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or more Interest Rate Bases will be calculated in each period in the
same manner as if only the applicable Interest Rate Basis specified
above applied.
(xv) Determination of Interest Rate Basis. The Calculation Agent shall
determine the rate derived from each Interest Rate Basis in accordance
with the following provisions.
(A) CD Rate Notes. If the Interest Rate Basis is the CD Rate,
this Note shall be deemed a "CD Rate Note." Unless otherwise
specified on the face hereof, "CD Rate" means: (1) the rate on
the particular Interest Determination Date for negotiable United
States dollar certificates of deposit having the Index Maturity
specified on the face hereof as published in H.15(519) (as
defined below) under the caption "CDs (secondary market)"; or (2)
if the rate referred to in clause (1) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
rate on the particular Interest Determination Date for negotiable
United States dollar certificates of deposit of the particular
Index Maturity as published in H.15 Daily Update (as defined
below), or other recognized electronic source used for the
purpose of displaying the applicable rate, under the caption "CDs
(secondary market)"; or (3) if the rate referred to in clause (2)
is not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on the particular Interest
Determination Date calculated by the Calculation Agent as the
arithmetic mean of the secondary market offered rates as of 10:00
A.M., New York City time, on that Interest Determination Date, of
three leading non-bank dealers in negotiable United States dollar
certificates of deposit in The City of New York (which may
include the purchasing agent or its affiliates) selected by the
Calculation Agent for negotiable United States dollar
certificates of deposit of major United States money market banks
for negotiable United States certificates of deposit with a
remaining maturity closest to the particular Index Maturity in an
amount that is representative for a single transaction in that
market at that time; or (4) if the dealers so selected by the
Calculation Agent are not quoting as mentioned in clause (3), the
CD Rate in effect on the particular Interest Determination Date.
"H.15(519)" means the weekly statistical release designated as
H.15(519), or any successor publication, published by the Board
of Governors of the Federal Reserve System. "H.15 Daily Update"
means the daily update of H.15(519), available through the
world-wide-web site of the Board of Governors of the Federal
Reserve System at http://www.federalreserve.gov/releases/H15/
update, or any successor site or publication.
(B) CMT Rate Notes. If the Interest Rate Basis is the CMT Rate,
this Note shall be deemed a "CMT Rate Note." Unless otherwise
specified on the face hereof, "CMT Rate" means:
(1) if CMT Telerate Page 7051 is specified on the face
hereof:
i. the percentage equal to the yield for United
States Treasury securities at "constant maturity"
having the Index Maturity specified on the face
hereof as published in H.15(519) under the
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caption "Treasury Constant Maturities", as the
yield is displayed on Telerate (or any successor
service) on page 7051 (or any other page as may
replace the specified page on that service)
("Telerate Page 7051"), for the particular
Interest Determination Date; or
ii. if the rate referred to in clause (i) does not so
appear on Telerate Page 7051, the percentage equal
to the yield for United States Treasury securities
at "constant maturity" having the particular Index
Maturity and for the particular Interest
Determination Date as published in H.15(519) under
the caption "Treasury Constant Maturities"; or
iii. if the rate referred to in clause (ii) does not so
appear in H.15(519), the rate on the particular
Interest Determination Date for the period of the
particular Index Maturity as may then be published
by either the Federal Reserve System Board of
Governors or the United States Department of the
Treasury that the Calculation Agent determines to
be comparable to the rate which would otherwise
have been published in H.15(519); or
iv. if the rate referred to in clause (iii) is not so
published, the rate on the particular Interest
Determination Date calculated by the Calculation
Agent as a yield to maturity based on the
arithmetic mean of the secondary market bid prices
at approximately 3:30 P.M., New York City time, on
that Interest Determination Date of three leading
primary United States government securities
dealers in The City of New York (which may include
the purchasing agent or its affiliates) (each, a
"Reference Dealer") selected by the Calculation
Agent from five Reference Dealers selected by the
Calculation Agent and eliminating the highest
quotation, or, in the event of equality, one of
the highest, and the lowest quotation or, in the
event of equality, one of the lowest, for United
States Treasury securities with an original
maturity equal to the particular Index Maturity, a
remaining term to maturity no more than one year
shorter than that Index Maturity and in a
principal amount that is representative for a
single transaction in the securities in that
market at that time; or
v. if fewer than five but more than two of the prices
referred to in clause (iv) are provided as
requested, the rate on the particular Interest
Determination Date calculated by the Calculation
Agent based on the arithmetic mean of the bid
prices obtained and neither the highest nor the
lowest of the quotations shall be eliminated; or
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vi. if fewer than three prices referred to in clause
(iv) are provided as requested, the rate on the
particular Interest Determination Date calculated
by the Calculation Agent as a yield to maturity
based on the arithmetic mean of the secondary
market bid prices as of approximately 3:30 P.M.,
New York City time, on that Interest Determination
Date of three Reference Dealers selected by the
Calculation Agent from five Reference Dealers
selected by the Calculation Agent and eliminating
the highest quotation or, in the event of
equality, one of the highest and the lowest
quotation or, in the event of equality, one of the
lowest, for United States Treasury securities with
an original maturity greater than the particular
Index Maturity, a remaining term to maturity
closest to that Index Maturity and in a principal
amount that is representative for a single
transaction in the securities in that market at
that time; or
vii. if fewer than five but more than two prices
referred to in clause (vi) are provided as
requested, the rate on the particular Interest
Determination Date calculated by the Calculation
Agent based on the arithmetic mean of the bid
prices obtained and neither the highest nor the
lowest of the quotations will be eliminated; or
viii. if fewer than three prices referred to in clause
(vi) are provided as requested, the CMT Rate in
effect on the particular Interest Determination
Date; or
(2) if CMT Telerate Page 7052 is specified on the face
hereof:
i. the percentage equal to the one-week or one-month,
as specified on the face hereof, average yield for
United States Treasury securities at "constant
maturity" having the Index Maturity specified on
the face hereof as published in H.15(519) opposite
the caption "Treasury Constant Maturities", as the
yield is displayed on Telerate (or any successor
service) (on page 7052 or any other page as may
replace the specified page on that service)
("Telerate Page 7052"), for the week or month, as
applicable, ended immediately preceding the week
or month, as applicable, in which the particular
Interest Determination Date falls; or
ii. if the rate referred to in clause (i) does not so
appear on Telerate Page 7052, the percentage equal
to the one-week or one-month, as specified on the
face hereof, average yield for United States
Treasury securities at "constant maturity" having
the particular Index Maturity and for the week or
month, as applicable, preceding the particular
Interest Determination Date as
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published in H.15(519) opposite the caption
"Treasury Constant Maturities"; or
iii. if the rate referred to in clause (ii) does not so
appear in H.15(519), the one-week or one-month, as
specified on the face hereof, average yield for
United States Treasury securities at "constant
maturity" having the particular Index Maturity as
otherwise announced by the Federal Reserve Bank of
New York for the week or month, as applicable,
ended immediately preceding the week or month, as
applicable, in which the particular Interest
Determination Date falls; or
iv. if the rate referred to in clause (iii) is not so
published, the rate on the particular Interest
Determination Date calculated by the Calculation
Agent as a yield to maturity based on the
arithmetic mean of the secondary market bid prices
at approximately 3:30 P.M., New York City time, on
that Interest Determination Date of three
Reference Dealers selected by the Calculation
Agent from five Reference Dealers selected by the
Calculation Agent and eliminating the highest
quotation, or, in the event of equality, one of
the highest, and the lowest quotation or, in the
event of equality, one of the lowest, for United
States Treasury securities with an original
maturity equal to the particular Index Maturity, a
remaining term to maturity no more than one year
shorter than that Index Maturity and in a
principal amount that is representative for a
single transaction in the securities in that
market at that time; or
v. if fewer than five but more than two of the prices
referred to in clause (iv) are provided as
requested, the rate on the particular Interest
Determination Date calculated by the Calculation
Agent based on the arithmetic mean of the bid
prices obtained and neither the highest nor the
lowest of the quotations shall be eliminated; or
vi. if fewer than three prices referred to in clause
(iv) are provided as requested, the rate on the
particular Interest Determination Date calculated
by the Calculation Agent as a yield to maturity
based on the arithmetic mean of the secondary
market bid prices as of approximately 3:30 P.M.,
New York City time, on that Interest Determination
Date of three Reference Dealers selected by the
Calculation Agent from five Reference Dealers
selected by the Calculation Agent and eliminating
the highest quotation or, in the event of
equality, one of the highest and the lowest
quotation or, in the event of equality, one of the
lowest, for United States Treasury securities with
an original maturity greater than the particular
Index Maturity, a remaining term to maturity
closest to
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that Index Maturity and in a principal amount that
is representative for a single transaction in the
securities in that market at the time; or
vii. if fewer than five but more than two prices
referred to in clause (vi) are provided as
requested, the rate on the particular Interest
Determination Date calculated by the Calculation
Agent based on the arithmetic mean of the bid
prices obtained and neither the highest nor the
lowest of the quotations will be eliminated; or
viii. if fewer than three prices referred to in clause
(vi) are provided as requested, the CMT Rate in
effect on that Interest Determination Date.
If two United States Treasury securities with an original
maturity greater than the Index Maturity specified on the
face hereof have remaining terms to maturity equally close
to the particular Index Maturity, the quotes for the United
States Treasury security with the shorter original remaining
term to maturity will be used.
(C) Commercial Paper Rate Notes. If the Interest Rate Basis is
the Commercial Paper Rate, this Note shall be deemed a
"Commercial Paper Rate Note." Unless otherwise specified on the
face hereof, "Commercial Paper Rate" means: (1) the Money Market
Yield (as defined below) on the particular Interest Determination
Date of the rate for commercial paper having the Index Maturity
specified on the face hereof as published in H.15(519) under the
caption "Commercial Paper--Nonfinancial"; or (2) if the rate
referred to in clause (1) is not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the Money Market
Yield of the rate on the particular Interest Determination Date
for commercial paper having the particular Index Maturity as
published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying the
applicable rate, under the caption "Commercial
Paper--Nonfinancial"; or (3) if the rate referred to in clause
(2) is not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on the particular Interest
Determination Date calculated by the Calculation Agent as the
Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on that Interest
Determination Date of three leading dealers of United States
dollar commercial paper in The City of New York (which may
include the purchasing agent or its affiliates) selected by the
Calculation Agent for commercial paper having the particular
Index Maturity placed for industrial issuers whose bond rating is
"Aa", or the equivalent, from a nationally recognized statistical
rating organization; or (4) if the dealers so selected by the
Calculation Agent are not quoting as mentioned in clause (3), the
Commercial Paper Rate in effect on the particular Interest
Determination Date. "Money Market Yield" means a yield (expressed
as a percentage) calculated in accordance with the following
formula:
A-2-17
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial
paper quoted on a bank discount basis and expressed as a decimal,
and "M" refers to the actual number of days in the applicable
Interest Reset Period.
(D) Constant Maturity Swap Rate Notes. If the Interest Rate Basis
is the Constant Maturity Swap Rate, this Note shall be deemed a
"Constant Maturity Swap Rate Note." Unless otherwise specified on
the face hereof, "Constant Maturity Swap Rate" means: (1) the
rate for U.S. dollar swaps with the designated maturity specified
in the applicable pricing supplement, expressed as a percentage,
which appears on the Reuters Screen (or any successor service)
ISDAFIX1 Page as of 11:00 A.M., New York City time, on the
particular Interest Determination Date; or (2) if the rate
referred to in clause (1) does not appear on the Reuters Screen
(or any successor service) ISDAFIX1 Page by 2:00 P.M., New York
City time, on such Interest Determination Date, a percentage
determined on the basis of the mid-market semi-annual swap rate
quotations provided by the reference banks (as defined below) as
of approximately 11:00 A.M., New York City time, on such Interest
Determination Date, and, for this purpose, the semi-annual swap
rate means the mean of the bid and offered rates for the
semi-annual fixed leg, calculated on a 30/360 day count basis, of
a fixed-for-floating U.S. dollar interest rate swap transaction
with a term equal to the designated maturity specified in the
applicable pricing supplement commencing on the Interest Reset
Date and in a representative amount (as defined below) with an
acknowledged dealer of good credit in the swap market, where the
floating leg, calculated on an actual/360 day count basis, is
equivalent to USD-LIBOR-BBA with a designated maturity specified
in the applicable pricing supplement. The Calculation Agent will
request the principal New York City office of each of the
reference banks to provide a quotation of its rate. If at least
three quotations are provided, the rate for that Interest
Determination Date will be the arithmetic mean of the quotations,
eliminating the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest); or (3) if at least three quotations
are not received by the Calculation Agent as mentioned in clause
(2), the Constant Maturity Swap Rate in effect on the particular
Interest Determination Date. "U.S. Government Securities business
day" means any day except for Saturday, Sunday, or a day on which
The Bond Market Association recommends that the fixed income
departments of its members be closed for the entire day for
purposes of trading in U.S. government securities.
"Representative amount" means an amount that is representative
for a single transaction in the relevant market at the relevant
time. "Reference banks" mean five leading swap dealers in the New
York City interbank market, selected by the Calculation Agent,
after consultation with us.
A-2-18
(E) Eleventh District Cost of Funds Rate Notes. If the Interest
Rate Basis is the Eleventh District Cost of Funds Rate, this Note
shall be deemed an "Eleventh District Cost of Funds Rate Note."
Unless otherwise specified on the face hereof, "Eleventh District
Cost of Funds Rate" means: (1) the rate equal to the monthly
weighted average cost of funds for the calendar month immediately
preceding the month in which the particular Interest
Determination Date falls as set forth under the caption "11th
District" on the display on Telerate (or any successor service)
on page 7058 (or any other page as may replace the specified page
on that service) ("Telerate Page 7058") as of 11:00 A.M., San
Francisco time, on that Interest Determination Date; or (2) if
the rate referred to in clause (1) does not so appear on Telerate
Page 7058, the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Eleventh District
Index") by the Federal Home Loan Bank of San Francisco as the
cost of funds for the calendar month immediately preceding that
Interest Determination Date; or (3) if the Federal Home Loan Bank
of San Francisco fails to announce the Eleventh District Index on
or prior to the particular Interest Determination Date for the
calendar month immediately preceding that Interest Determination
Date, the Eleventh District Cost of Funds Rate in effect on the
particular Interest Determination Date.
(F) Federal Funds Open Rate Notes. If the Interest Rate Basis is
the Federal Funds Open Rate, this Note shall be deemed a "Federal
Funds Open Rate Note." Unless otherwise specified on the face
hereof, "Federal Funds Open Rate" means the rate set forth on
Telerate (or any successor service) on page 5 (or any other page
as may replace the specified page on that service) for an
Interest Determination Date underneath the caption "FEDERAL
FUNDS" in the row titled "OPEN". If the rate is not available for
an Interest Determination Date, the rate for that Interest
Determination Date shall be the Federal Funds Rate as determined
below.
(G) Federal Funds Rate Notes. If the Interest Rate Basis is the
Federal Funds Rate, this Note shall be deemed a "Federal Funds
Rate Note." Unless otherwise specified on the face hereof,
"Federal Funds Rate" means: (1) the rate on the particular
Interest Determination Date for United States dollar federal
funds as published in H.15(519) under the caption "Federal Funds
(Effective)" and displayed on Telerate (or any successor service)
on page 120 (or any other page as may replace the specified page
on that service) ("Telerate Page 120"); or (2) if the rate
referred to in clause (1) does not so appear on Telerate Page 120
or is not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on the particular Interest
Determination Date for United States dollar federal funds as
published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying the
applicable rate, under the caption "Federal Funds (Effective)";
or (3) if the rate referred to in clause (2) is not so published
by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on the particular Interest Determination Date
calculated by the Calculation Agent as the arithmetic mean of
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the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of United
States dollar federal funds transactions in The City of New York
(which may include the purchasing agent or its affiliates)
selected by the Calculation Agent prior to 9:00 A.M., New York
City time, on that Interest Determination Date; or (4) if the
brokers so selected by the Calculation Agent are not quoting as
mentioned in clause (3), the Federal Funds Rate in effect on the
particular Interest Determination Date.
(H) LIBOR Notes. If the Interest Rate Basis is LIBOR, this Note
shall be deemed a "LIBOR Note." Unless otherwise specified on the
face hereof, "LIBOR" means: (1) if "LIBOR Telerate" is specified
on the face hereof or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified on the face hereof as the method for
calculating LIBOR, the rate for deposits in the LIBOR Currency
having the Index Maturity specified on the face hereof,
commencing on the related Interest Reset Date, that appears on
the LIBOR Page (as defined below) as of 11:00 A.M., London time,
on the particular Interest Determination Date; or (2) if "LIBOR
Reuters" is specified on the face hereof, the arithmetic mean of
the offered rates, calculated by the Calculation Agent, or the
offered rate, if the LIBOR Page by its terms provides only for a
single rate, for deposits in the LIBOR Currency having the
particular Index Maturity, commencing on the related Interest
Reset Date, that appear or appears, as the case may be, on the
LIBOR Page as of 11:00 A.M., London time, on the particular
Interest Determination Date; or (3) if fewer than two offered
rates appear, or no rate appears, as the case may be, on the
particular Interest Determination Date on the LIBOR Page as
specified in clause (1) or (2), as applicable, the rate
calculated by the Calculation Agent of at least two offered
quotations obtained by the Calculation Agent after requesting the
principal London offices of each of four major reference banks
(which may include affiliates of the purchasing agent) in the
London interbank market to provide the Calculation Agent with its
offered quotation for deposits in the LIBOR Currency for the
period of the particular Index Maturity, commencing on the
related Interest Reset Date, to prime banks in the London
interbank market at approximately 11:00 A.M., London time, on
that Interest Determination Date and in a principal amount that
is representative for a single transaction in the LIBOR Currency
in that market at that time; or (4) if fewer than two offered
quotations referred to in clause (3) are provided as requested,
the rate calculated by the Calculation Agent as the arithmetic
mean of the rates quoted at approximately 11:00 A.M., in the
applicable Principal Financial Center, on the particular Interest
Determination Date by three major banks (which may include
affiliates of the purchasing agent) in that Principal Financial
Center selected by the Calculation Agent for loans in the LIBOR
Currency to leading European banks, having the particular Index
Maturity and in a principal amount that is representative for a
single transaction in the LIBOR Currency in that market at that
time; or (5) if the banks so selected by the Calculation Agent
are not quoting as mentioned in clause (4), LIBOR in effect on
the particular Interest Determination Date. "LIBOR Currency"
means the currency specified on the face hereof as to which LIBOR
shall be calculated or, if no currency is specified on the face
hereof, United States Dollars. "LIBOR Page"
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means either: (1) if "LIBOR Reuters" is specified on the face
hereof, the display on the Reuter Monitor Money Rates Service (or
any successor service) on the page specified on the face hereof
(or any other page as may replace that page on that service) for
the purpose of displaying the London interbank rates of major
banks for the LIBOR Currency; or (2) if "LIBOR Telerate" is
specified on the face hereof or neither "LIBOR Reuters" nor
"LIBOR Telerate" is specified on the face hereof as the method
for calculating LIBOR, the display on Telerate (or any successor
service) on the page specified on the face hereof (or any other
page as may replace such page on such service) for the purpose of
displaying the London interbank rates of major banks for the
LIBOR Currency.
(I) EURIBOR Notes. If the Interest Rate Basis is EURIBOR, this
Note shall be deemed a "EURIBOR Note." Unless otherwise specified
on the face hereof, "EURIBOR" means: (1) with respect to any
Interest Determination Date relating to this EURIBOR Note (a
"EURIBOR Interest Determination Date"), the rate for deposits in
euros as sponsored, calculated and published jointly by the
European Banking Federation and ACI - The Financial Market
Association, or any company established by the joint sponsors for
purposes of compiling and publishing those rates, having the
Index Maturity specified on the face hereof, commencing on the
applicable Interest Reset Date, as the rate appears on Telerate
or any successor service, on page 248 (or any other page as may
replace that specified page on the service) ("Telerate Page 248")
as of 11:00 A.M., Brussels time, on the applicable EURIBOR
Interest Determination Date; or (2) if such rate does not appear
on Telerate Page 248, or is not so published by 11:00 A.M.,
Brussels time, on the applicable EURIBOR Interest Determination
Date, such rate will be calculated by the Calculation Agent and
will be the arithmetic mean of at least two quotations obtained
by the Calculation Agent after requesting the principal Euro-zone
(as defined below) offices of four major banks in the Euro-zone
interbank market to provide the Calculation Agent with its
offered quotation for deposits in euros for the period of the
Index Maturity specified on the face hereof, commencing on the
applicable Interest Reset Date, to prime banks in the Euro-zone
interbank market at approximately 11:00 A.M., Brussels time, on
the applicable EURIBOR Interest Determination Date and in a
principal amount not less than the equivalent of $1 million in
euros that is representative for a single transaction in euro in
the market at that time; or (3) if fewer than two such quotations
are so provided, the rate on the applicable EURIBOR Interest
Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., Brussels time, on such EURIBOR Interest
Determination Date by four major banks in the Euro-zone for loans
in euro to leading European banks, having the Index Maturity
specified on the face hereof, commencing on the applicable
Interest Reset Date and in a principal amount not less than the
equivalent of $1 million in euros that is representative for a
single transaction in euros in the market at that time; or (4) if
the banks so selected by the Calculation Agent are not quoting as
mentioned above, EURIBOR will be EURIBOR in effect on the
applicable EURIBOR Interest Determination Date.
A-2-21
"Euro-zone" means the region comprised of member states of the
European Union that have adopted the single currency in
accordance with the treaty establishing the European Community,
as amended by the treaty on European Union.
(J) Prime Rate Notes. If the Interest Rate Basis is the Prime
Rate, this Note shall be deemed a "Prime Rate Note." Unless
otherwise specified on the face hereof, "Prime Rate" means: (1)
the rate on the particular Interest Determination Date as
published in H.15(519) under the caption "Bank Prime Loan"; or
(2) if the rate referred to in clause (1) is not so published by
3:00 P.M., New York City time, on the related Calculation Date,
the rate on the particular Interest Determination Date as
published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying the
applicable rate, under the caption "Bank Prime Loan"; or (3) if
the rate referred to in clause (2) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
rate on the particular Interest Determination Date calculated by
the Calculation Agent as the arithmetic mean of the rates of
interest publicly announced by each bank that appears on the
Reuters Screen US PRIME 1 Page (as defined below) as the
applicable bank's prime rate or base lending rate as of 11:00
A.M., New York City time, on that Interest Determination Date; or
(4) if fewer than four rates referred to in clause (3) are so
published by 3:00 p.m., New York City time, on the related
Calculation Date, the rate calculated by the Calculation Agent as
the particular Interest Determination Date calculated by the
Calculation Agent as the arithmetic mean of the prime rates or
base lending rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of
business on that Interest Determination Date by three major banks
(which may include affiliates of the purchasing agent) in The
City of New York selected by the Calculation Agent; or (5) if the
banks so selected by the Calculation Agent are not quoting as
mentioned in clause (4), the Prime Rate in effect on the
particular Interest Determination Date. "Reuters Screen US PRIME
1 Page" means the display on the Reuter Monitor Money Rates
Service (or any successor service) on the "US PRIME 1" page (or
any other page as may replace that page on that service) for the
purpose of displaying prime rates or base lending rates of major
United States banks.
(K) Treasury Rate Notes. If the Interest Rate Basis is the Treasury Rate,
this Note shall be deemed a "Treasury Rate Note." Unless otherwise
specified on the face hereof, "Treasury Rate" means: (1) the rate from the
auction held on the Interest Determination Date (the "Auction") of direct
obligations of the United States ("Treasury Bills") having the Index
Maturity specified on the face hereof under the caption "INVESTMENT RATE"
on the display on Telerate (or any successor service) on page 56 (or any
other page as may replace that page on that service) ("Telerate Page 56")
or page 57 (or any other page as may replace that page on that service)
("Telerate Page 57"); or (2) if the rate referred to in clause (1) is not
so published by 3:00 P.M., New York City time, on the related Calculation
Date, the Bond Equivalent Yield (as defined below) of the rate for the
applicable Treasury Bills as published in H.15 Daily
A-2-22
Update, or another recognized electronic source used for the
purpose of displaying the applicable rate, under the caption
"U.S. Government Securities/Treasury Bills/Auction High"; or (3)
if the rate referred to in clause (2) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
Bond Equivalent Yield of the auction rate of the applicable
Treasury Bills as announced by the United States Department of
the Treasury; or (4) if the rate referred to in clause (3) is not
so announced by the United States Department of the Treasury, or
if the Auction is not held, the Bond Equivalent Yield of the rate
on the particular Interest Determination Date of the applicable
Treasury Bills as published in H.15(519) under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market"; or (5) if
the rate referred to in clause (4) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
rate on the particular Interest Determination Date of the
applicable Treasury Bills as published in H.15 Daily Update, or
another recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market"; or (6) if
the rate referred to in clause (5) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
rate on the particular Interest Determination Date calculated by
the Calculation Agent as the Bond Equivalent Yield of the
arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on that Interest
Determination Date, of three primary United States government
securities dealers (which may include the purchasing agent or its
affiliates) selected by the Calculation Agent, for the issue of
Treasury Bills with a remaining maturity closest to the Index
Maturity specified on the face hereof; or (7) if the dealers so
selected by the Calculation Agent are not quoting as mentioned in
clause (6), the Treasury Rate in effect on the particular
Interest Determination Date. "Bond Equivalent Yield" means a
yield (expressed as a percentage) calculated in accordance with
the following formula:
D x N
Bond Equivalent Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury
Bills quoted on a bank discount basis and expressed as a decimal,
"N" refers to 365 or 366, as the case may be, and "M" refers to
the actual number of days in the applicable Interest Reset
Period.
(c) Discount Notes. If this Note is specified on the face hereof as a
"Discount Note":
(i) Principal and Interest. This Note will bear interest in the same manner
as set forth in Section 3(a) above, and payments of principal and interest
shall be made as set forth on the face hereof. Discount Notes may not bear
any interest currently or may bear interest at a rate that is below market
rates at the time of issuance. The difference between the Issue Price of a
Discount Note and par is referred to as the "Discount".
A-2-23
(ii) Redemption; Repayment; Acceleration. In the event a Discount Note is
redeemed, repaid or accelerated, the amount payable to the Holder of such
Discount Note will be equal to the sum of: (A) the Issue Price (increased
by any accruals of Discount) and, in the event of any redemption of such
Discount Note, if applicable, multiplied by the Initial Redemption
Percentage (as adjusted by the Annual Redemption Percentage Reduction, if
applicable); and (B) any unpaid interest accrued on such Discount Note to
the Maturity Date ("Amortized Face Amount"). Unless otherwise specified on
the face hereof, for purposes of determining the amount of Discount that
has accrued as of any date on which a redemption, repayment or acceleration
of maturity occurs for a Discount Note, a Discount will be accrued using a
constant yield method. The constant yield will be calculated using a 30-day
month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period
between Interest Payment Dates for the applicable Discount Note (with
ratable accruals within a compounding period), a coupon rate equal to the
initial coupon rate applicable to the applicable Discount Note and an
assumption that the maturity of such Discount Note will not be accelerated.
If the period from the date of issue to the first Interest Payment Date for
a Discount Note (the "Initial Period") is shorter than the compounding
period for such Discount Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer
than the compounding period, then the period will be divided into a regular
compounding period and a short period with the short period being treated
as provided above.
(d) Amortizing Notes. If this Note is specified on the face hereof as an
"Amortizing Note", this Note will bear interest in the same manner as set forth
in Section 3(a) above, and payments on principal, premium, if any, and interest
will be made as set forth on the face hereof and/or in accordance with Schedule
I attached hereto. The Trust will make payments combining principal, premium (if
any) and interest, if applicable, on the dates and in the amounts set forth in
the table appearing in Schedule I attached to this Note or in accordance with
the formula specified on the face hereof. Payments made hereon will be applied
first to interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof.
SECTION 4. REDEMPTION. If no redemption right is set forth on the face
hereof, this Note may not be redeemed prior to the Stated Maturity
Date, except as set forth in the Indenture or in Section 10 hereof. In
the case of a Note that is not a Discount Note, if a redemption right
is set forth on the face of this Note, the Trust shall elect to redeem
this Note on the Interest Payment Date after the Initial Redemption
Date set forth on the face hereof on which the Funding Agreement is to
be redeemed in whole or in part by ING USA Annuity and Life Insurance
Company ("ING USA") (each, a "Redemption Date"), in which case this
Note must be redeemed on such Redemption Date in whole or in part, as
applicable, prior to the Stated Maturity Date, in increments of $1,000
at the applicable Redemption Price (as defined below), together with
unpaid interest, if any, accrued thereon to, but excluding, the
applicable Redemption Date. "Redemption Price" shall mean an amount
equal to the Initial Redemption Percentage (as adjusted by the Annual
Redemption Percentage Reduction, if applicable) multiplied by the
unpaid Principal Amount of this Note to be
A-2-24
redeemed. The unpaid Principal Amount of this Note to be redeemed
shall be determined by multiplying (1) the Outstanding Principal
Amount of this Note by (2) the quotient derived by dividing (A) the
outstanding principal amount of the Funding Agreement to be redeemed
by ING USA by (B) the outstanding principal amount of the Funding
Agreement. The Initial Redemption Percentage, if any, applicable to
this Note shall decline at each anniversary of the Initial Redemption
Date by an amount equal to the applicable Annual Redemption Percentage
Reduction, if any, until the Redemption Price is equal to 100% of the
unpaid amount thereof to be redeemed. Notice must be given not more
than sixty (60) nor less than thirty (30) calendar days prior to the
proposed Redemption Date. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the surrender hereof. If
less than all of this Note is redeemed, the Indenture Trustee will
select by lot or, in its discretion, on a pro rata basis, the amount
of the interest of each direct participant in the Trust to be
redeemed.
SECTION 5. SINKING FUNDS AND AMORTIZING NOTES. Unless specified on the
face hereof, this Note will not be subject to, or entitled to the
benefit of, any sinking fund. If this Note is an Amortizing Note, this
Note may pay an amount in respect of both interest and principal
amortized over the life of this Note.
SECTION 6. REPAYMENT. If no repayment right is set forth on the face
hereof, this Note may not be repaid at the option of the Holder hereof
prior to the Stated Maturity Date. If a repayment right is granted on
the face of this Note, this Note may be subject to repayment at the
option of the Holder on any Interest Payment Date on and after the
date, if any, indicated on the face hereof (each, a "Repayment Date").
On any Repayment Date, unless otherwise specified on the face hereof,
this Note shall be repayable in whole or in part in increments of
$1,000 at the option of the Holder hereof at a repayment price equal
to 100% of the Principal Amount to be repaid, together with interest
thereon payable to the Repayment Date. For this Note to be repaid in
whole or in part at the option of the Holder hereof, this Note must be
received by the Indenture Trustee, with the form entitled "Option to
Elect Repayment", below, duly completed by the Indenture Trustee.
Exercise of such repayment option by the Holder hereof shall be
irrevocable.
SECTION 7. MODIFICATIONS AND WAIVERS. The Indenture contains
provisions permitting the Trust and the Indenture Trustee (1) at any
time and from time to time without notice to, or the consent of, the
Holders of any Notes issued under the Indenture to enter into one or
more supplemental indentures for certain enumerated purposes and (2)
with the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Notes affected thereby, to enter into one or
more supplemental indentures for the purpose of adding any provisions
to, or changing in any manner or eliminating any of the provisions of,
the Indenture or of modifying in any manner the rights of Holders of
Notes under the Indenture; provided, that, with respect to certain
enumerated provisions, no such supplemental indenture shall be entered
into without the consent of the
A-2-25
Holder of each Note affected thereby. Any such consent or waiver by
the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made
upon this Note or such other Notes.
SECTION 8. OBLIGATIONS UNCONDITIONAL. No reference herein to the
Indenture and no provisions of this Note or of the Indenture shall
impair the right of each Holder of any Note, which is absolute and
unconditional, to receive payment of the principal of, and any
interest on, and premium, if any, on, such Note on the respective
Stated Maturity Date or redemption date thereof and to institute suit
for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 9. EVENTS OF DEFAULT. If an Event of Default with respect to
this Note shall occur and be continuing, the principal of, and all
other amounts payable on, the Notes may be declared due and payable,
or may be automatically accelerated, as the case may be, in the manner
and with the effect provided in the Indenture. In the event that this
Note is a Discount Note, the amount of principal of this Note that
becomes due and payable upon such acceleration shall be equal to the
amount calculated as set forth in Section 3(c) hereof.
SECTION 10. WITHHOLDING; TAX EVENT AND REDEMPTION. All amounts due on
this Note will be made without any applicable withholding or deduction
for or on account of any present or future taxes, duties, levies,
assessments or other governmental charges of whatever nature imposed
or levied by or on behalf of any governmental authority, unless such
withholding or deduction is required by law. Unless otherwise
specified on the face hereof, the Trust will not pay any additional
amounts to the Holder of this Note in respect of such withholding or
deduction, any such withholding or deduction will not give rise to an
event of default or any independent right or obligation to redeem this
Note and the Holder will be deemed for all purposes to have received
cash in an amount equal to the portion of such withholding or
deduction that is attributable to such Holder's interest in this Note
as equitably determined by the Trust.
If (1) a Tax Event (defined below) as to the Funding Agreement occurs
and (2) ING USA redeems the Funding Agreement in whole or in part, the
Trust will redeem the Notes, subject to the terms and conditions of
Section 2.04 of the Standard Indenture Terms, at the Tax Event
Redemption Price (defined below) together with unpaid interest accrued
thereon to the applicable redemption date. "Tax Event" means that ING
USA shall have received an opinion of independent legal counsel
stating in effect that as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or (b) any
amendment to, or change in, an interpretation or application of any
such laws or regulations by any governmental authority in the United
States, which amendment or change is enacted, promulgated, issued or
A-2-26
announced on or after the effective date of the Funding Agreement,
there is more than an insubstantial risk that (i) the Trust is, or
will be within ninety (90) days of the date thereof, subject to U.S.
federal income tax with respect to interest accrued or received on the
Funding Agreement or (ii) the Trust is, or will be within ninety (90)
days of the date thereof, subject to more than a de minimis amount of
taxes, duties or other governmental charges. "Tax Event Redemption
Price" means an amount equal to the unpaid principal amount of this
Note to be redeemed, which shall be determined by multiplying (1) the
Outstanding Principal Amount of this Note by (2) the quotient derived
by dividing (A) the outstanding principal amount to be redeemed by ING
USA of the Funding Agreement by (B) the outstanding principal amount
of the Funding Agreement.
SECTION 11. LISTING. Unless otherwise specified on the face hereof,
this Note will not be listed on any securities exchange.
SECTION 12. COLLATERAL. The Collateral for this Note includes the
Funding Agreement specified on the face hereof.
SECTION 13. NO RECOURSE AGAINST CERTAIN PERSONS. No recourse shall be
had for the payment of any principal, interest or any other sums at
any time owing under the terms of this Note, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of
the Indenture or any indenture supplemental thereto, against the
Nonrecourse Parties, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such personal liability being, by the acceptance hereof
and as part of the consideration for issue hereof, expressly waived
and released.
Section 14. Miscellaneous.
(a) This Note is issuable only as a registered Note without coupons in
denominations of $1,000 and any integral multiple in excess thereof unless
otherwise specified on the face of this Note.
(b) Prior to due presentment for registration of transfer of this Note, the
Trust, the Indenture Trustee, the Registrar, the Paying Agent, any Agent and any
other agent of the Trust or the Indenture Trustee may treat the Person in whose
name this Note is registered as the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes, whether or not this Note
shall be overdue, and none of the Trust, the Indenture Trustee, the Registrar,
the Paying Agent, any Agent or any other agent of the Trust or the Indenture
Trustee shall be affected by notice to the contrary.
(c) The Notes are being issued by means of a book-entry-only system with no
physical distribution of certificates to be made except as provided in the
Indenture. The book-entry system maintained by DTC will evidence ownership of
the Notes, with transfers of ownership effected on the records of DTC and its
participants pursuant to rules and procedures established by DTC and its
participants. The Trust and the Indenture Trustee will recognize Cede & Co., as
nominee of DTC, as the registered owner of the Notes, as the Holder of the Notes
for all
A-2-27
purposes, including payment of principal, premium (if any) and interest, notices
and voting. Transfer of principal, premium (if any) and interest to participants
of DTC will be the responsibility of DTC, and transfer of principal, premium (if
any) and interest to beneficial holders of the Notes by participants of DTC will
be the responsibility of such participants and other nominees of such beneficial
holders. So long as the book-entry system is in effect, the selection of any
Notes to be redeemed or repaid will be determined by DTC pursuant to rules and
procedures established by DTC and its participants. Neither the Trust nor the
Indenture Trustee shall be responsible or liable for such transfers or payments
or for maintaining, supervising or reviewing the records maintained by DTC, its
participants or persons acting through such participants.
(d) This Note or portion hereof may not be exchanged for Definitive Notes,
except in the limited circumstances provided for in the Indenture. The transfer
or exchange of Definitive Notes shall be subject to the terms of the Indenture.
No service charge will be made for any registration of transfer or exchange, but
the Trust may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
SECTION 15. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
A-2-28
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Trust to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to the Principal Amount hereof together with interest to the
repayment date, to the undersigned, at:
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned).
For this Note to be repaid, the Indenture Trustee (or the Paying Agent on
behalf of the Indenture Trustee) must receive at its Corporate Trust Office, or
at such other place or places of which the Trust shall from time to time notify
the Holder of this Note, not more than sixty (60) nor less than thirty (30) days
prior to a Repayment Date, if any, shown on the face of this Note, this Note
with this "Option to Elect Repayment" form duly completed.
If less than the entire Principal Amount of this Note is to be repaid,
specify the portion hereof (which shall be in increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $______ or an integral multiple of $1,000 in excess of $______)
of the Notes to be issued to the Holder for the portion of this Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid).
$__________
----------------------------------------
DATE: NOTICE: The signature on this Option to
------------------------------- Elect Repayment must correspond with the
name as written upon the face of this
Note in every particular, without
alteration or enlargement or any change
whatever.
Principal Amount to be repaid, if Fill in for registration of Notes if to
amount to be repaid is less than the be issued otherwise than to the
Principal Amount of this Note registered Holder:
(Principal Amount remaining must be
an authorized denomination)
Name:
----------------------------------
$__________ Address:
-------------------------------
----------------------------------------
(Please print name and address including
zip code)
SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER: _________________
A-2-29
SCHEDULE I
AMORTIZATION TABLE OR FORMULA
A-2-30
EXHIBIT B
Form of
Indenture Trustee Report
for
ING USA Global Funding Trust [___] (the "Trust")
Payment Date
[_____], 20[___]
CUSIP Number [______]
(i) the amount received by the Indenture Trustee as of the last statement in
respect of the principal, interest and premium, if any of Funding Agreement No.
[RMTN XXX] (the "Funding Agreement') issued by ING USA Annuity and Life
Insurance Company ("ING USA").
Interest: [___]
Principal: [____]
Premium, if any: [____]
(ii) the amounts of compensation received by the Indenture Trustee during the
period relating to such Payment Date.
Paid by the Trust: [___]
Paid by ING USA: [___] in program fees were paid to the Indenture
Trustee on[______].
(iii) the amount of payment on such Payment Date to holders allocable to
principal of and premium, if any, and interest on the notes of the Trust and the
amount of aggregate unpaid interest accrued on such notes as of such Payment
Date.
Interest: [____]
Principal: [____]
Premium, if any: [____]
Unpaid Interest Accrued: [____]
(iv) the aggregate stated principal amount of the Funding Agreement, the
current interest rate or rates thereon at the close of business on such Payment
Date, and the current rating assigned to the Funding Agreement.
Principal Amount: [____]
Interest Rates: [____]
Ratings:
Moody's Investors Service, Inc.: [____]
Standard & Poor's Ratings Services: [____]
(v) the aggregate principal balance of the notes at the close of business on
such Payment Date and the current rating assigned to the notes.
Initial Principal Amount: [____]
Reduction: [____]
Principal Amount on the Payment Date: [____]
Ratings:
Moody's Investors Service, Inc.: [____]
Standard & Poor's Ratings Services: [____]
A.M. Best Company, Inc.: [____]
B-1