| |
ING USA Annuity and Life
Insurance Company
000 Xxxxxx
Xxxxxx, Xxx Xxxxxx, Xxxx 00000
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| CONTRACT
NO.: |
|
RMTN-5 |
| OWNER: |
|
ING USA Global Funding
Trust 5 |
| STATE OF
DELIVERY: |
|
Colorado |
| EFFECTIVE
DATE: |
|
October 11,
2007 |
| EXPIRATION
DATE: |
|
October 9,
2009 |
| DEPOSIT: |
|
$750,000,015 |
| NET
DEPOSIT: |
|
$749,325,000 |
ING USA Annuity and Life Insurance Company
(“Insurance Company”) agrees in consideration of its receipt of the Net Deposit,
and subject to the conditions and provisions of this Contract, to pay the
Contract Payments specified herein.
The conditions and provisions set out on
the attached pages form a part of this Contract as fully as if stated over the
signatures below.
| Entered into as of the
Effective Date. |
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| ING USA
GLOBAL FUNDING TRUST 5 |
|
ING USA ANNUITY AND LIFE INSURANCE |
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|
COMPANY |
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| By U.S. Bank National
Association, not in its |
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| individual capacity but
solely as Trustee of ING |
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By: /s/ Xxxxx X. Xxxxx |
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| USA Global Funding Trust
5 |
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Name: Xxxxx X. Xxxxx |
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Title: President |
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| By: /s/ Xxxx
Xxxxxx |
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| Name: Xxxx Xxxxxx |
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By: /s/ Xxx Xxxxxx |
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| Title: VP |
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Name: Xxx Xxxxxx |
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Title:
Secretary |
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By: /s/ Xxxxx Xxxxxx |
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Name: Xxxxx Xxxxxx |
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Title: Vice
President |
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This Contract is issued from the
Insurance Company's general account. This Contract provides for the payment of
certain amounts to the Owner as provided herein. Early Contract terminations may
occur only as expressly provided herein, and transfers and sales of this
Contract or any interest hereunder are subject to the restrictions set forth
herein.
| 3012FA-MTN |
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Page 1 |
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(RMTN-5) |
| 1.1
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“Additional Amounts”
shall have the meaning provided in Section 3.6(i). |
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| 1.2
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“Amortized Amount”
shall have the meaning set forth in Schedule A. |
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| 1.3
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“Assignment” means that
certain Assignment of Funding Agreement duly executed by the Trust, the
Indenture Trustee, the Insurance Company and the custodian of this
Contract, effecting the Collateral Assignment. |
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| 1.4
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“Beneficial Note Owner”
means a holder or beneficial owner of any Note or Notes. |
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| 1.5
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“Business Day” means
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 and any day
as specified in Schedule A. |
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| 1.6
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“Business Day
Convention” means a convention for adjusting any date if it would
otherwise fall on a day that is not a Business Day. The Business Day
Convention for purposes of this Contract shall be as specified in Schedule
A and defined herein. |
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(i)
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Following Business
Day Convention means that, if a
relevant payment date is not a Business Day, such date shall be postponed
to the first following day that is a Business Day. |
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(ii)
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Modified Following
Business Day Convention means that, if
a relevant payment date is not a Business Day, such date shall be
postponed to the first following day that is a Business Day unless that
day falls in the next calendar month, in which case that date will be the
first preceding day that is a Business Day. |
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(iii)
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Preceding Business
Day Convention means that, if a
relevant payment date that is not a Business Day, such date shall be
brought forward to the first preceding day that is a Business Day.
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(iv)
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FRN Convention
or Eurodollar Convention means, for
each relevant payment date that is not a Business
Day, such date shall be postponed to the date which numerically
corresponds to the preceding relevant payment date
in the calendar month which is the Month
Count after the calendar month in which
the preceding relevant date occurred, provided that:
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(a) if there is no such
numerically corresponding day in the calendar month in which any
relevant payment date should occur, then the date
will be the last day which is a Business Day in that calendar
month; |
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(b) if the date would otherwise
fall on a day which is not a Business Day, then such date will be the
first following day which is a Business Day unless that day falls in the
next calendar month, in which case it will be the first preceding day
which is a Business Day; and |
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(c) if the preceding relevant
payment date occurred on the last day in a calendar month which was a
Business Day, then all subsequent such dates will be the last day which is
a Business Day in the calendar month which is the specified number of
months |
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| 3012FA-MTN
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|
Page 2 |
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(RMTN-5) |
after the calendar month in which the
preceding relevant payment date occurred.
| 1.7
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“Collateral Assignment”
means a collateral assignment of the rights and interests in this Contract
by the Trust to the Indenture Trustee. |
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| 1.8
|
“Code” means the
Internal Revenue Code of 1986, as amended. |
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| 1.9
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“Contract” means this
Funding Agreement, including Schedule A attached hereto. |
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| 1.10
|
“Contract Payments”
means all payments of Deposit and/or Interest and/or Additional Amounts,
if any, to be made to the Owner pursuant to the terms of this Contract,
including, without limitation, any payments made to the Owner in
connection with any Repayment Date. |
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| 1.11
|
“Currency” means the
lawful money of the United States of America (“U.S. Dollars”) or such other
currency that may be specified in Schedule A. |
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| 1.12
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“Day Count Convention”
means, in respect of the calculation of an amount of Interest for any
Interest Period, the Day Count Convention specified for purposes of this
Contract in Schedule A and defined herein. |
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(i)
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Actual/365 or Actual/Actual
means the actual number of days in the
Interest Period divided by 365 (or, if any portion of the Interest Period
falls in a leap year, the sum of (A) the actual number of days in that
portion of the Interest Period falling in a leap year divided by 366 and
(B) the actual number of days in that portion of the Interest Period
falling in a non-leap year divided by 365). |
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(ii)
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Actual/365 (FIXED)
means the actual number of days in the
Interest Period divided by 365. |
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(iii)
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Actual/360 means the actual number of days in the Interest Period
divided by 360. |
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(iv)
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30/360 means the number of days in the Interest Period divided
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 and 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)). |
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| 1.13
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“Deposit” means the
principal amount which is scheduled to be paid by the Insurance Company to
the Owner on the Expiration Date or such earlier date this Contract is
terminated, subject to any pre- payment of such amount prior to the
Expiration Date and to adjustment of such principal amount pursuant to
Section 3.1(ii). |
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| 1.14
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“Effective Date” means
the date on which the rights and obligations of the Owner and the
Insurance Company take effect. The Effective Date for this Contract is as
stated on Page 1. |
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| 1.15
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“Event of Default”
means the occurrence of one or any combination of the following:
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(i)
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Any payment of Interest, premium
(if applicable) or Additional Amount (if any) under this Contract has not
been paid within seven (7) Business Days of the date such payment is due
and payable. |
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| 3012FA-MTN
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|
Page 3 |
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(RMTN-5) |
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(ii)
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Any payment of the Deposit under
this Contract has not been paid within one (1) Business Day of the date
such payment is due and payable. |
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(iii)
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(a) A court having jurisdiction
in the premises has entered a decree or order for relief in respect of the
Insurance Company in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect of the United
States of America or any other applicable jurisdiction, which decree or
order is not stayed; or any other similar relief has been granted under
any applicable law; or (b) an insolvency case has been commenced against
the Insurance Company under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect of the United States of America or
any other 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 Insurance Company, or over all or a substantial
part of its property, has been entered; or there has occurred the
involuntary appointment of an interim receiver, trustee or other custodian
of the Insurance Company for all or a substantial part of its property; or
a court having jurisdiction in the premises has entered a decree or order
declaring the dissolution of the Insurance Company; or a warrant of
attachment, execution or similar process has been issued against any
substantial part of the property of the Insurance Company and any such
event described in this clause (iii) has not been dismissed within sixty
(60) days. |
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(iv)
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(a) The Insurance Company has an
order for relief entered with respect to it or commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect of the United States of America or any other
applicable jurisdiction, or consents 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 consents 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 Insurance Company makes any
assignment for the benefit of creditors; or (b) the Insurance Company
fails or is unable, or the Insurance Company admits in writing its
inability, to pay its debts as such debts become due; or the Board of
Directors of the Insurance Company adopts any resolution or otherwise
authorizes any action to approve or for the purpose of effecting any of
the actions referred to in this clause (iv). |
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| 1.16
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“Expiration Date” means
the date specified on Page 1, which is the date on which this Contract is
scheduled to terminate or, if such day is not a Business Day, the
immediately preceding Business Day. |
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| 1.17
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“Fixed Rate Note” means
any Note that bears interest at a fixed rate. |
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| 1.18
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“Floating Rate Note”
means any Note that bears interest at a floating rate. |
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| 1.19
|
“Guaranteed Fund” means
the book value account established by the Insurance Company in its
accounting records for this Contract. The Guaranteed Fund reflects credit
and debit transactions under this Contract as provided in Section
2.1. |
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| 1.20
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“Indenture Trustee”
means the indenture trustee for the Notes. |
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| 1.21
|
“Insurance Company”
means ING USA Annuity and Life Insurance Company. |
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| 1.22
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“Interest” means the
earnings, if any, for this Contract calculated and accrued pursuant to
Article II. |
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| 1.23
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“Interest Rate” means
the rate(s) specified in Schedule A, or determined in accordance with
the |
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| 3012FA-MTN
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Page 4 |
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(RMTN-5) |
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provisions therein, at which
Interest is to be earned under this Contract; provided, however, that if this
Contract is non-interest bearing the Interest Rate shall equal
“0.00%”. |
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| 1.24
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“IRS” means the Internal Revenue
Service. |
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| 1.25
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“Maturity Date” means the earlier
to occur of (i) the Expiration Date, (ii) the date on which the balance of
the Deposit remaining in the Guaranteed Fund and any other amounts due and
owing under this Contract are paid to the Owner, or (iii) such other date
on which this Contract is terminated in its entirety in accordance with
the provisions of Article IV. |
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| 1.26
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“Month Count” means the number of
months specified in Schedule A. |
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| 1.27
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“Net Deposit” means the Net
Deposit amount set out on Page 1. |
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| 1.28
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“Note” means any note of
indebtedness issued by the Trust and secured by this Contract.
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| 1.29
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“Owner” means the Owner
designated on Page 1 as the Owner of this Contract on the Effective Date,
or such other party to whom this Contract is later transferred or
collaterally assigned in accordance with the provisions in Article
V. |
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| 1.30
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“Principal Financial Centers”
means the financial center(s) specified in Schedule A. |
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| 1.31
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“Repayment Date” means the
date(s) specified in Schedule A for repayment to the Owner of part or all
of the Deposit as set forth therein, as the same may be adjusted in
accordance with the Business Day Convention. |
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| 1.32
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“Securities Act” means the
Securities Act of 1933, as amended. |
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| 1.33
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“Specifications” means the terms
specific to and that shall govern this Contract, as listed on Schedule
A. |
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| 1.34
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“Taxes” means 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 in the United States having power to tax. |
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| 1.35
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“Trust” means ING USA Global
Funding Trust 5. |
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| 1.36
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“Trust Tax Event” means that the
Insurance Company has 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 announced on or after the Effective
Date of this Contract, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date thereof, subject to
United States federal income tax with respect to Interest accrued or
received pursuant to this Contract or (ii) the Trust is, or will be within
90 days of the date thereof, subject to more than a de minimis amount of
taxes, duties or other governmental charges. |
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| 1.37
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“Withholding Tax Event” means
that (a) the Insurance Company has received an opinion of independent
legal counsel stating in effect that as a result of (i) any amendment to,
or change |
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| 3012FA-MTN
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|
Page 5 |
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(RMTN-5) |
(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 (ii) 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 this Contract, a material probability exists that the Insurance Company
will be required to pay additional amounts to the Trust to reflect any required
withholding or deduction under this Contract, or (b) as a result of (i) 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 (ii) 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 this
Contract, the Insurance Company is required to pay additional amounts to the
Trust to reflect any required withholding or deduction under this
Contract.
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Capitalized terms used herein but not
otherwise defined shall have the meaning set forth in Schedule A
hereto.
|
ARTICLE II
ESTABLISHMENT AND MAINTENANCE OF
GUARANTEED FUND
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| 2.1
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Establishment of Guaranteed
Fund |
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Provided the Net Deposit is
received by the Insurance Company on the Effective Date, the Insurance
Company shall establish the Guaranteed Fund as of such date. Upon receipt
of the Net Deposit, an amount equal to the Deposit shall be credited to
the Guaranteed Fund. Interest shall be credited to the Guaranteed Fund on
the date such Interest is earned in accordance with Schedule A. Each
Contract Payment shall be deducted from the Guaranteed Fund on the date it
is paid. Unless otherwise specified in Schedule A, the balance of the
Guaranteed Fund at any given time shall equal the Deposit less the amount
of any adjustments to the principal amount of the Deposit pursuant to
Section 3.1(ii), plus Interest earned and credited thereon, less Contract
Payments made, if any, other than pursuant to Section 3.1(ii).
|
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ARTICLE
III
PROCEDURE FOR
PAYOUT
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| 3.1
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Contract
Payments |
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(i)
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Contract Payments shall be paid
to the Owner on the Interest Payment Dates, if any, and the Repayment
Dates. All monies payable to or by the Insurance Company under this
Contract shall be made via wire transfer in immediately available funds or
other mutually agreed upon method in the Currency. The amount of the
Contract Payment for an Interest Payment Date shall include accrued but
previously unpaid Interest plus any Additional Amounts which may be due
and owing at such time. If an Interest Payment Date is also a Repayment
Date, the Contract Payment will include the portion of the Deposit
scheduled to be repaid on such date |
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| 3012FA-MTN
|
|
Page 6 |
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(RMTN-5) |
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plus Interest accrued
but not previously paid in accordance with Schedule A. If a Repayment Date
is not also an Interest Payment Date, the Contract Payment will include the
portion of the Deposit scheduled to be repaid on such date plus any
Additional Amounts which may be due and owing at such time, but will not
include any accrued but previously unpaid Interest; provided,
however, that if on the Repayment Date, a percentage of the balance of the
Guaranteed Fund is specified in Schedule A to be paid to the Owner, then
such payment will include a pro rata portion of Interest and the Deposit.
If an Interest Payment Date and/or a Repayment Date is also the Maturity
Date, the Contract Payment will equal (a) the balance of the Guaranteed
Fund on that date, plus (b) Additional Amounts which may be due and owing
at that time, if any. Concurrent with the Insurance Company making such
Contract Payment on the Maturity Date, all rights and obligations under
this Contract shall terminate. |
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(ii)
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In addition to the scheduled
payments set forth in Section 3.1(i), in the event that the Trust
purchases some or all of the Notes in the open market (or otherwise) with
the prior written consent of the Insurance Company as to both the making
of such purchase and the purchase price to be paid for such Notes (such
right of consent to be exercised in the Insurance Company’s sole
discretion), a Contract Payment equal to such portion (or the entirety) of
the current balance of the Deposit in the Guaranteed Fund as may be
necessary to fund the purchase of such Notes shall be paid to or at the
direction of the Trust on such date or dates to which the Trust and the
Insurance Company may agree. Upon such payment, the balance of the Deposit
shall be reduced (a) with respect to any purchase of Fixed Rate Notes or
Floating Rate Notes by the Trust, by an amount equal to the aggregate
principal amount of the Notes as purchased (or the portion thereof
applicable to this Contract), and (b) with respect to any purchase of
Notes other than Fixed Rate Notes or Floating Rate Notes by the Trust, by
an amount to be agreed between the Trust and the Insurance Company to
reflect such Contract Payment under this Contract. |
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(iii)
|
If a Contract Payment is not made
as scheduled due to the closure, for any reason, of the wire transfer
system(s) or financial market(s) in one or more Principal Financial
Centers, that Contract Payment shall be paid on the first Business Day
thereafter that the relevant systems and markets are open. In the event a
Contract Payment is so delayed, the total dollar amount of the delayed
Contract Payment when paid shall remain unchanged and shall include only
such amounts of Interest and Deposit as were originally included in that
payment, with subsequent scheduled Contract Payments also unchanged by the
delay. |
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(iv)
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Notwithstanding any provision in
this Contract which may be to the contrary, no adjustments will be made to
amounts owed hereunder if a Contract Payment is delayed as a result of the
Owner's failure to provide complete and accurate wire transfer
instructions to the Insurance Company. |
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(v)
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Contract Payments will be
computed on a book value basis (i.e. deposits to this Contract, plus
accrued Interest, less previous Contract Payments, if any), without
adjustment for investment gain or loss. |
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(vi)
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Unless a different Business Day
Convention is specified in Schedule A with regard to certain Contract
Payments, all Contract Payments shall be subject to the Business Day
Convention specified in Section I of Schedule A. |
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| 3.2
|
Optional Redemptions
or Repayments |
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If so specified in
Schedule A and subject to any restrictions provided therein, the
Insurance |
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| 3012FA-MTN
|
|
Page 7 |
|
(RMTN-5) |
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Company shall pay to
the Owner one or more Contract Payments in an amount sufficient to redeem
or repay the Notes backed by this Contract, pursuant to any limited right
of redemption or repayment contained in such Notes. The Insurance Company
may require reasonable evidence that the redemption or payment request
satisfies all of the terms and conditions described in the prospectus,
prospectus supplement and/or pricing supplement applicable to such
Note(s). |
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| 3.3
|
Contract
Pre-Payments |
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Except as otherwise
provided herein and as may be specified in Schedule A, there shall be no
pre- payments or other unscheduled withdrawals of funds under this
Contract. |
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| 3.4
|
Surrender
Value |
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This Contract may not
be surrendered nor will any funds be paid to the Owner under this Contract
except in accordance with the terms hereof. |
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| 3.5
|
No Loans
|
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The Insurance Company
will not make any loans on the security of this Contract. |
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| 3.6
|
Additional
Amounts |
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(i)
|
All payments due to be
made by the Insurance Company to the Owner under the terms of this
Contract will be made without any withholding or deduction for or on
account of any Taxes unless the Insurance Company has specified in
Schedule A that they have agreed to pay Additional Amounts or such
withholding or deduction is required by law. Subject to Section 4.3, if
such withholding or deduction is required by law and the Insurance Company
has specified in Schedule A that they have agreed to pay Additional
Amounts, the Insurance Company will pay such Additional Amounts as may be
required so that the amount received by the Trust or a Beneficial Note
Owner under its Note(s), as applicable (net of any such withholding or
deduction under this Contract or any Note(s)), will equal the amount that
would have been paid under this Contract or under any such Note(s), as the
case may be, had no such deduction or withholding been required.
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(ii)
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Notwithstanding
anything herein to the contrary, the Insurance Company shall not be
required to make any payment of any Additional Amounts in accordance with
Section 3.6(i) for or on account of: |
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(a)
|
any Taxes imposed which would not
have been imposed but for the existence of (1) any present or former
connection between the Trust or a Beneficial Note Owner and the United
States, including, without limitation, being or having been a citizen or
resident thereof, or being or having been present therein or engaged in a
trade or business therein, or (2) the Trust's or such Beneficial Note
Owner’s status as incorporated therein, or having or having had a
permanent establishment therein, or being or having been a controlled
foreign corporation, a personal holding company, a passive foreign
investment company, a corporation that has accumulated earnings to avoid
United States federal income tax or a private foundation or other
tax-exempt organization, or being or having been an actual or constructive
owner of 10% or more of the total combined voting power of all shares of
the Insurance Company; |
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| 3012FA-MTN
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|
Page 8 |
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(RMTN-5) |
| (b)
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any Taxes imposed which would not
have been imposed but for the presentation by the Trust of this Contract
or by a Beneficial Note Owner of any related Note(s) to the Trust (where
presentation is required) for payment on a date more than 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 the Trust or the Beneficial Note Owner would have been entitled to
Additional Amounts had this Contract or the Note(s), as the case may be,
been presented on the last day of such period of 30 days; |
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| (c)
|
any Taxes which are imposed or
withheld solely by reasons of the failure of the Trust or a Beneficial
Note Owner to comply with certification, identification or information
reporting requirements concerning the nationality, residence, identity or
connection with the United States of the Trust or Beneficial Note Owner,
if compliance is required by statute, by regulation of the United States
Treasury Department, by judicial or administrative interpretation of such
statute or regulation or by an applicable income tax treaty to which the
United States is a party as a precondition to exemption from such
Taxes; |
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| (d)
|
any inheritance, gift, estate,
personal property, sales or transfer Taxes; |
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| (e)
|
any Taxes that are payable
otherwise than by withholding from payments in respect of this Contract or
the related Notes; |
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| (f)
|
any Taxes which are imposed by
reason of the Trust or a Beneficial Note Owner being or having been a bank
for United States federal income tax purposes whose receipt of interest on
the Notes is described in section 881(c)(3)(A) of the Code; |
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| (g)
|
any Taxes imposed by reason of
payments on this Contract or the related Notes being treated as contingent
interest described in section 871(h)(4) of the Code; |
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| (h)
|
any Taxes that would not have
been imposed but for an election by the Trust or a Beneficial Note Owner
the effect of which is to make payment in respect of the Notes subject to
United States federal income tax; |
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| (i)
|
any tax, duty, levy, assessment
or governmental charge of any taxing authority other than the United
States, any political subdivision thereof or any authority or agency
therein or thereof having the power to tax; or |
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| (j)
|
any combination of items (a),
(b), (c), (d), (e), (f), (g), (h) and (i) above. |
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| 4.1
|
Termination Prior to the
Expiration Date |
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| |
This Contract may be terminated
prior to the Expiration Date only as provided in this Article IV and as
may be provided in Schedule A. In the event such termination occurs, the
balance in the Guaranteed Fund plus Additional Amounts that may be due and
owing as of the date of such termination, if any, |
| |
| 3012FA-MTN
|
|
Page 9 |
|
(RMTN-5) |
| |
shall become
immediately due and payable to the Owner. All rights and obligations under
this Contract will terminate concurrently with the payment of such amounts
to the Owner. |
| |
| 4.2
|
Termination for
Default Event |
| |
| |
(i)
|
This Contract will terminate
automatically if an Event of Default specified in Section 1.15(iii) or
1.15(iv) occurs. |
| |
| |
(ii)
|
Upon the occurrence of an Event
of Default specified in Section 1.15(i) or 1.15(ii), the Owner shall have
the right to terminate this Contract by giving prior written notice to the
Insurance Company. |
| |
| 4.3
|
Termination for
Withholding Tax Event |
| |
| |
Upon the occurrence of
a Withholding Tax Event, the Insurance Company may terminate this Contract
by giving not less than thirty (30) days and no more than sixty (60) days
prior written notice to the Owner. |
| |
| 4.4
|
Termination for
Trust Tax Event |
| |
| |
Upon the occurrence of
a Trust Tax Event, the Insurance Company may terminate this Contract by
giving not less than thirty-five (35) days and no more than sixty (60)
days prior written notice to the Owner. |
| |
| 4.5
|
Termination Prior to
the Expiration Date upon Pre-Payment |
| |
| |
This Contract will
terminate automatically upon the Insurance Company making a Contract
Payment to the Owner prior to the Expiration Date in accordance with
Section 3.1(ii), any optional redemption or pre-payment provisions set
forth in Schedule A or on any Repayment Date, if such Contract Payment is
equal to the balance of the Guaranteed Fund as of such date, plus
Additional Amounts, if any, that may be due and owing at that time.
|
| |
| 4.6
|
Termination on
Expiration Date |
| |
| |
Unless terminated prior
to the Expiration Date as provided above, this Contract will terminate
automatically on the Expiration Date concurrently with the Insurance
Company making a Contract Payment to the Owner equal to the balance of the
Guaranteed Fund as of the Expiration Date, plus Additional Amounts, if
any, that may be due and owing as of the Expiration Date. All rights and
obligations under this Contract will terminate upon the Insurance
Company’s payment in full of that Contract Payment. |
| |
| 5.1
|
Entire
Contract |
| |
| |
(i)
|
This Contract, including Schedule
A, any rider, endorsement, exhibit, or amendment that may be attached
hereto, constitutes the final and entire agreement between the Insurance
Company |
| |
| 3012FA-MTN
|
|
Page 10 |
|
(RMTN-5) |
| |
and the Owner. There
are no promises or obligations other than those contained herein.
|
| |
| |
(ii)
|
The Insurance Company may issue
this Contract as duplicate originals. Originals so issued shall constitute
the same contract and the Insurance Company's obligations shall not be
increased or expanded because of the issuance of the duplicate
originals. |
| |
| 5.2
|
Supplemental
Agreements |
| |
| |
Within ninety (90) days
of the date of issuance of this Contract, the Insurance Company may (i)
issue to the Owner one or more additional funding agreements and may
provide in any such additional funding agreement that any such additional
funding agreement shall constitute part of the same obligation of the
Insurance Company as this Contract or (ii) increase the Deposit, Net
Deposit and Guaranteed Fund and any other applicable funds on balance
under this Contract by written agreement with the Trust (any such
additional funding agreement or written agreement, a “Supplemental Agreement”), and such Supplemental Agreement shall be subject to the same
terms and conditions of this Contract (including those set forth in
Schedule A), except that the Effective Date, the Deposit, the Net Deposit,
and any other applicable funds on balance under this Contract and the date
and amount of the first Interest payment, if any, may be different with
respect to such Supplemental Agreement; provided that the issuance of
such Supplemental Agreement will satisfy the conditions of Treasury
Regulation Section 1.1275-2(k)(2)(ii) and will constitute a “Qualified
Reopening” under Treasury Regulation Section 1.1275-2(k)(3)(ii) (without
regard to subparagraph (A) thereof). |
| |
| 5.3
|
Assignments and
Transfers |
| |
| |
This Contract and any
right, title or interest in, to or under this Contract (including, without
limitation, any right to receive payments) may not be assigned, sold or
otherwise transferred except
upon prior mutual written consent of
the Owner and the Insurance Company. Assignments, Collateral Assignments,
sales or other transfers by the Owner (a) may be made only to U.S. Persons
(as defined in Section 7701(a)(30) of the Code), (b) will be effective
only after they are recorded on the book entry system maintained by the
Insurance Company within the meaning of United States Treasury Regulation
Section 1.871-14(c)(1)(i), (c) must be registered or fall within an
available exemption from registration of this Contract as a security under
the Securities Act and must be conducted in accordance therewith, and (d)
will only be effective and recorded in the Insurance Company’s book entry
system after the Insurance Company receives from the proposed owner or
assignee such certificates, documentation and opinions as the Insurance
Company may reasonably request; provided, however, that for
purposes of a Collateral Assignment by the Trust to the Indenture Trustee,
such certificates, documentation and opinions shall be limited to (i) the
Assignment and (ii) if requested by the Insurance Company, a completed and
duly executed IRS Form W-9 or such other IRS forms as the Insurance
Company, upon the advice of its counsel, is required to obtain from the
Indenture Trustee. In addition to the foregoing, the Indenture Trustee
must agree to provide to the Insurance Company as of the date of the
Assignment, or within ten (10) Business Days following such date, complete
written wire transfer instructions for the account to which the Contract
Payments are to be delivered and appropriate contact information for the
delivery of notices or other information to and for contacting the
Indenture Trustee. |
| |
| 5.4
|
Directions and
Information |
| |
| |
The Insurance Company
shall be entitled to rely and act solely on the reports, directions,
proofs, notices, elections and other information furnished to it by the
Owner or the Owner’s agent, which shall be conclusive and binding as to
all persons or entities claiming an interest hereunder. |
| |
| 3012FA-MTN
|
|
Page 11 |
|
(RMTN-5) |
| 5.5
|
Notice |
| |
| |
All notices and other
communications given or made pursuant hereto shall be in writing and shall
be deemed to have been given or made upon delivery in person or by
registered or certified mail (postage prepaid, return receipt requested),
by overnight courier service (charges prepaid) or by confirmed facsimile,
to the following addresses: |
| |
| |
ING USA Global Funding Trust 5
c/o U.S. Bank National Association
Attn: Corporate Trust Services
000 00xx Xxxxxx, 00xx
Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to:
ING USA Global Funding
Trust 5
c/o U.S. Bank National
Association
Corporate Trust
Services
000 X. XxXxxxx Xxxxxx, Xxxxx
000
Xxxxxxx, Xxxxxxxx
00000
Attention: Xxxxxxxx Child,
VP
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
|
| |
and,
Citibank,
N.A.
Agency & Trust
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Structured Finance Agency and Trust
ING USA Global Funding Trust 5
Fax: (000) 000-0000
|
| |
(b) if to the Insurance Company, to:
ING USA Annuity and
Life Insurance Company
c/o ING
Institutional Markets
0000
Xxxxxxxx
Xxxxxx, XX
00000-0000
Fax: (000)
000-0000
|
Either party hereto may change its address
for purposes of receiving notices and other communications
| 3012FA-MTN
|
|
Page 12 |
|
(RMTN-5) |
| |
by providing a notice to the
other party as required herein. |
| |
| 5.6
|
Non-Waiver of Contract
Provisions |
| |
| |
Failure of the Insurance Company
or the Owner to enforce any provision of this Contract at any particular
time or in any particular circumstances shall not operate to waive or
modify such provision, nor shall it in any manner render such provision
unenforceable at any other time or to any other occurrence, whether or not
the circumstances are the same. |
| |
| 5.7
|
Status of Guaranteed
Fund |
| |
| |
All monies under this Contract
shall be part of the general corporate funds of the Insurance
Company. |
| |
| 5.8
|
Ownership |
| |
| |
Subject to any statutory
restrictions, the Owner shall have and exercise all rights, powers and
privileges under this Contract. Nothing in this Contract shall confer any
rights whatsoever to any third party, nor shall any of its terms be
enforceable by any third party who is not a party to this Contract, except
as otherwise agreed by the Insurance Company in writing. |
| |
| 5.9
|
Non-Participating
|
| |
| |
This Contract shall not
participate or share in the earnings of the Insurance Company.
|
| |
| 5.10
|
Effect of Signature&
Limitation of Liability |
| |
| |
It is expressly understood and
agreed by the parties hereto that (a) this Contract 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, (b) each of the
representations, undertakings and agreements herein made on the part of
the Trust, as Owner, 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 herein
contained shall be construed as creating any liability on U.S. Bank
National Association, individually or personally, to perform any covenant,
either expressed or implied, contained herein, all such liability, if any,
being expressly waived by the parties hereto and by any person claiming
by, through or under the parties hereto and (d) except as otherwise may be
expressly provided under the terms of that certain Trust Agreement
establishing the Trust, under no circumstances shall U.S. Bank National
Association be personally liable for the payment of any indebtedness or
expenses of the Trust under this Agreement. |
| |
| 5.11
|
Amendment |
| |
| |
The Owner and the Insurance
Company may mutually agree, in a writing signed by each party, to modify
this Contract at any time without the consent of any other person or
entity. |
| |
| 5.12
|
Insurance Company's
Disclaimers |
| |
| |
It is expressly understood and
agreed that the Insurance Company makes no representation as to the
authority of the Owner to enter into or perform under this Contract or as
to the legal or tax implications of this Contract for the Owner or any
other person or entity. In performing its obligations hereunder, the
Insurance Company is not acting as a fiduciary, agent or other advisor or
representative |
| |
| 3012FA-MTN
|
|
Page 13 |
|
(RMTN-5) |
| |
for the Trust or any
other person or entity with respect to this Contract. |
| |
| 5.13
|
Owner's
Representations |
| |
| |
(i)
|
The Owner represents
that: |
| |
| |
|
(a)
|
it is not subject to any Taxes as
would constitute a Withholding Tax Event; |
| |
| |
|
(b)
|
it is not subject to any Taxes as
would constitute a Trust Tax Event; and |
| |
| |
|
(c)
|
if requested by the Insurance
Company, it will provide the Insurance Company within ten (10) days of the
Effective Date a duly completed and executed IRS Form W-9, or such other
form as may be applicable to it. |
| |
| |
(ii)
|
The Owner acknowledges
and agrees that the Insurance Company has not registered and has no
obligation to register this Contract under the Securities Act.
|
| |
| 5.14
|
Mutual
Representations |
| |
| |
Each party hereto
represents to the other that as of the date hereof: |
| |
| |
(i)
|
It has the power to
enter into this Contract and to consummate the transactions contemplated
hereby. |
| |
| |
(ii)
|
It has duly authorized,
executed and delivered this Contract. |
| |
| |
(iii)
|
Assuming the due
authorization, execution and delivery of this Contract by the other party,
this Contract constitutes a legal, valid and binding obligation of the
representing party. |
| |
| |
(iv)
|
This Contract is
enforceable against it in accordance with the terms hereof, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’
rights, and subject as to enforceability to general principles of equity,
regardless of whether enforcement is sought in a proceeding in equity or
at law. |
| |
| |
(v)
|
Neither the execution
and delivery of this Contract nor the performance of any of its
obligations hereunder will, to the representing party’s best knowledge,
violate any law or any order, decree, license, permit or the like which is
applicable to it or will cause any default by it under any agreement to
which it is a party or by which it is bound. |
| |
| 5.15
|
Representations
Generally |
| |
| |
If any representation
made by either party hereto ceases to be true, the party learning of such
failure will promptly advise the other party. All representations made by
the Owner and the Insurance Company in this Contract shall be considered
to have been relied upon by the other party. |
| |
| 5.16
|
Tax
Treatment |
| |
| |
The Insurance Company
and the Owner agree that this Contract shall be disregarded for United
States federal income tax purposes. The Insurance Company and the Owner
further agree that if this |
| |
| 3012FA-MTN
|
|
Page 14 |
|
(RMTN-5) |
| |
Contract is not so disregarded,
it will and is intended to be treated for tax purposes as a debt
obligation of the Insurance Company issued in registered form within the
meaning of Treasury Regulation §1.871-14(c)(1)(i) and for all other
federal, state and local income and franchise tax purposes. |
| |
| 5.17
|
Governing Law
|
| |
| |
This Contract shall be governed
by and construed in accordance with the laws of the State of Delivery
specified on Page 1, without regard to its conflicts of law rules.
|
| |
[Schedule A begins on next page]
|
| 3012FA-MTN
|
|
Page 15 |
|
(RMTN-5) |
SCHEDULE A (Floating
Rate)
|
This
Schedule A is attached to, and hereby incorporated into, Contract No. RMTN-5
(the “Contract”) issued by ING USA Annuity and Life Insurance Company (the
“Insurance Company”) to ING USA Global Funding Trust 5 (the “Owner”).
|
I. The following terms shall apply to this
Contract.
Floating Interest Rate
(formula): 1-month LIBOR + 0.36%
|
The
following capitalized terms shall have the meaning set forth in the Prospectus
for the Notes:
| Interest Rate
Basis(es). |
|
Check
all that apply: |
|
|
|
|
| |
|
[ ] |
|
CD Rate |
|
|
|
|
[ ] |
Commercial Paper
Rate |
| |
|
[ ] |
|
CMT Rate |
|
|
|
|
[ ] |
Eleventh District Cost of
Funds Rate |
| |
|
[X]
LIBOR |
|
|
|
|
[ ] |
Federal Funds
Rate |
| |
|
[ ] |
|
EURIBOR |
|
|
|
|
[ ] |
Treasury Rate
|
| |
|
[ ] |
|
Prime Rate
|
|
|
|
|
[ ] |
Other:_____________________ |
|
|
|
|
|
|
|
|
|
|
|
| |
| |
|
If
LIBOR: |
|
[X]
LIBOR Reuters Page: LIBOR01 |
| |
|
|
|
|
|
[ ] LIBOR Moneyline Telerate Page
3750 |
| |
|
|
|
|
|
LIBOR
Currency: U.S. Dollars |
| |
| |
|
If
CMT Rate: |
|
|
|
|
|
|
| |
|
|
|
Designated CMT Telerate
Page: |
| |
|
|
|
If 7052: [ ] Weekly
Average [ ] Monthly Average |
| |
|
|
|
Designated CMT Maturity
Index: |
| |
| Index
Maturity: 1-month |
|
|
|
|
|
|
|
|
| Spread (+/-): +
0.36% |
|
|
|
|
|
|
|
|
|
|
| Initial Interest Rate, if
any: |
|
5.47625% |
|
|
|
|
|
|
| |
| Interest Payment
Date: |
|
The ninth day of each
month that this Contract is in effect, |
|
|
|
|
|
|
| |
|
beginning November 9,
2007, and the Maturity Date. |
|
|
|
|
|
|
| |
| Interest
Period: |
|
The period between
Interest Reset Dates. |
|
|
|
|
|
|
| |
| Interest Reset
Dates: |
|
The ninth day of each
month that this Contract is in effect beginning November 9,
2007 |
|
|
|
|
|
|
| beginning November 9, 2007.
|
| |
| Interest Determination
Date: |
|
The
second London Banking Day prior to each Interest Reset Date
|
| |
| Interest
Crediting: |
|
Interest shall be earned daily at the Interest Rate
determined on each |
| |
|
Interest Determination Date for the relevant Interest
Period on the |
| |
|
current balance of the Deposit in the Guaranteed Fund
as |
| |
|
determined in accordance with the Day Count Convention
from and |
| |
|
on
the first day of each Interest Period to, but not including, the
last |
| 3012FA-MTN
|
|
Page 16 |
|
(RMTN-5) |
| |
|
day of each Interest
Period or the Maturity Date, whichever is |
| |
|
sooner; provided, that
interest shall initially be earned at the Initial |
| |
|
Interest Rate from and on
the Effective Date, to but not including, |
|
the first Interest Reset Date. |
| |
| Computation of
Interest: |
|
Accrued Interest for each
Interest Period shall be calculated by |
| |
|
multiplying the current
balance of the Deposit in the Guaranteed |
| |
|
Fund by an accrued
interest factor. The accrued interest factor shall |
| |
|
be computed by adding the
interest factor calculated for each day in |
| |
|
the applicable Interest
Period. The interest factor for each such day |
| |
|
shall be computed by
dividing the Interest Rate applicable to such |
| |
|
day by 360.
|
| |
| Day Count
Convention: |
|
Actual/360
|
| |
| Business Day
Convention: |
|
Modified Following
Business Day Convention |
| |
| Currency: |
|
U.S. Dollar
|
| |
| Principal Financial
Center(s): |
|
New York, New
York |
| |
| Repayment
Date(s): |
|
The Maturity
Date. |
| |
| Optional
Redemption: |
|
Optional redemptions under
Section 3.2 may only be made to fund |
| |
|
amounts the Trust is
required to pay to fund redemption of the |
| |
|
Notes as described in the
Prospectus, Prospectus Supplement, or |
| |
|
Pricing Supplement for ING
USA Global Funding Trust 5. |
| |
| Calculation
Agent: |
|
Citibank,
N.A. |
| II.
|
Additional
Definitions: |
| |
| |
(A)
|
“London Banking Day” means a day
on which commercial banks are open for business (including dealings in
U.S. Dollars) in London, England. |
| |
| |
(B)
|
“Business Day” means 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 or London,
England. |
| |
III. Additional terms and conditions, if
any, relating to periodic payments and/or pre-payments pursuant section 3.1(ii)
..
(A) Additional Amounts to be paid in the
event withholding or deduction of Taxes is required by law: Yes ___ No
_X_
| 3012FA-MTN
|
|
Page 17 |
|
(RMTN-5) |
