EXHIBIT 4.8
ING USA ANNUITY AND LIFE INSURANCE COMPANY
000 XXXXXX XXXXXX, XXX XXXXXX, XXXX 00000
[Original #1 of 2]
FUNDING AGREEMENT
CONTRACT NO.: [RMTNxxx]
OWNER: [ING USA Global Funding Trust [xxxx-xx]]
STATE OF DELIVERY: [Colorado]
EFFECTIVE DATE: [Month/day/year]
INSERT THE FOLLOWING IF EXTENDIBLE NOTE SERIES
[INITIAL MATURITY DATE:] [Month/day/year]
EXPIRATION DATE: [Month/day/year]
DEPOSIT: [$xx,xxx,xxx.xx]
NET DEPOSIT: [$xx,xxx,xxx.xx]
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.
[ING USA GLOBAL FUNDING TRUST [xxxx-xx]] ING USA ANNUITY AND LIFE INSURANCE
COMPANY
By [U.S. Bank National Association], not
in its individual capacity but solely as
Trustee of [ING USA Global Funding Trust
[xxxx-xx]]
By: [SIGNATURE BLOCK]
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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. (INSERT THE FOLLOWING IF EXTENDIBLE NOTE
SERIES) [THE INITIAL MATURITY DATE MAY BE EXTENDED AS DESCRIBED HEREIN UP TO,
BUT NOT BEYOND, THE EXPIRATION DATE.]
Page 1
ARTICLE I
DEFINITIONS
1.1 "Additional Amounts" shall have the meaning provided in Section 3.6(i).
1.2 "Amortized Amount" shall have the meaning set forth in Schedule A.
1.3 "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.
1.4 "Beneficial Note Owner" means a holder or beneficial owner of any Note or
Notes.
1.5 "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].
1.6 "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.
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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:
(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;
(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
(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
Page 2
is a Business Day in the calendar month which is the specified
number of months after the calendar month in which the preceding
relevant payment date occurred.
1.7 "Collateral Assignment" means a collateral assignment of the rights and
interests in this Contract by the Trust to the Indenture Trustee.
1.8 "Code" means the Internal Revenue Code of 1986, as amended.
1.9 "Contract" means this Funding Agreement, including Schedule A attached
hereto.
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.
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.
1.12 "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.
(i) 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).
(ii) Actual/365 (FIXED) means the actual number of days in the Interest
Period divided by 365.
(iii) Actual/360 means the actual number of days in the Interest Period
divided by 360.
(iv) 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)).
1.13 "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 (INSERT THE FOLLOWING IF EXTENDIBLE
NOTE SERIES) [any scheduled payment of all or a portion thereof as provided
in Section 3.7(ii) and] any pre-payment of such amount prior to the
Expiration Date and to adjustment of such principal amount pursuant to
Section 3.1(ii).
1.14 "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.
1.15 "Event of Default" means the occurrence of one or any combination of the
following:
Page 3
(i) Any payment of Interest, premium (if applicable) (INSERT THE FOLLOWING
FOR A DISCOUNT FA) [, Amortized Amount] 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.
(ii) 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.
(iii) (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.
(iv) (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).
1.16 "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].
1.17 "Fixed Rate Note" means any Note that bears interest at a fixed rate.
1.18 "Floating Rate Note" means any Note that bears interest at a floating rate.
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.
1.20 "Indenture Trustee" means the indenture trustee for the Notes.
Page 4
1.21 "Insurance Company" means ING USA Annuity and Life Insurance Company.
1.22 "Interest" means the earnings, if any, for this Contract calculated and
accrued pursuant to Article II.
1.23 "Interest Rate" means the rate(s) specified in Schedule A, or determined in
accordance with the 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%".
1.24 "IRS" means the Internal Revenue Service.
1.25 "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.
1.26 "Month Count" means the number of months specified in Schedule A.
1.27 "Net Deposit" means the Net Deposit amount set out on Page 1.
1.28 "Note" means any note of indebtedness issued by the Trust and secured by
this Contract.
1.29 "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.
1.30 "Principal Financial Centers" means the financial center(s) specified in
Schedule A.
1.31 "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].
1.32 "Securities Act" means the Securities Act of 1933, as amended.
1.33 "Specifications" means the terms specific to and that shall govern this
Contract, as listed on Schedule A.
1.34 "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.
1.35 "Trust" means [ING USA Global Funding Trust [xxxx-xx]].
1.36 "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 xxxx
Xxxx 5
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.
1.37 "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 (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.
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
2.1 Establishment of Guaranteed Fund
INSERT IF INTEREST BEARING CONTRACT
[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).]
INSERT IF NON-INTEREST BEARING CONTRACT
[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. The Amortized Amount
shall be determined 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
Page 6
principal amount of the Deposit pursuant to Section 3.1(ii) plus the
Amortized Amount less Contract Payments made, if any, other than pursuant
to Section 3.1(ii).]
ARTICLE III
PROCEDURE FOR PAYOUT
3.1 Contract Payments
(i) 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. (INSERT IF INTEREST BEARING CONTRACT) [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
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.
(ii) In addition to the scheduled payments set forth in Section 3.1(i)
(INSERT THE FOLLOWING IF AN EXTENDIBLE NOTE SERIES) [and Section 3.7],
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. [If the purchase price for the Notes the Trust is
purchasing includes a premium above the outstanding principal of such
Notes, the Insurance Company will also pay to the Trust an additional
amount equal to such excess.] 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.
Page 7
(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 [be increased to include Interest earned and credited on
the delayed Contract Payment amount at the then existing Interest Rate
from the date such payment was scheduled to be made up to, but not
including, the date the delayed Contract Payment is made. Contract
Payments scheduled to be made subsequent to the delayed Contract
Payment shall remain unchanged by the delay.] OR [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.]
(iv) 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.
(V) [Contract Payments will be computed on a book value basis (INSERT IF
INTEREST BEARING CONTRACT) [(i.e. deposits to this Contract, plus
accrued Interest, less previous Contract Payments, if any),] OR
(INSERT IF NON-INTEREST BEARING CONTRACT) [(i.e. Net Deposit to this
Contract, plus accrued Amortized Amounts, less previous Contract
Payments, if any),] without adjustment for investment gain or loss.]
(vi) 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.
3.2 Optional Redemptions or Repayments
If so specified in Schedule A and subject to any restrictions provided
therein, the Insurance 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).
3.3 Contract Pre-Payments
[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.]
3.4 Surrender Value
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.
3.5 No Loans
The Insurance Company will not make any loans on the security of this
Contract.
Page 8
3.6 Additional Amounts
(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.
(ii) 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:
(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;
(b) 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];
(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;
(d) any inheritance, gift, estate, personal property, sales or
transfer Taxes;
Page 9
(e) any Taxes that are payable otherwise than by withholding from
payments in respect of this Contract or the related Notes;
(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;
(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;
(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;
(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
(j) any combination of items (a), (b), (c), (d), (e), (f), (g), (h)
and (i) above.
3.7 (INSERT THE FOLLOWING IF AN EXTENDIBLE NOTE SERIES) [Extension of Initial
Maturity Date
(i) Subject to the following conditions, the Owner may elect, on an
Election Date specified in Schedule A, to extend the Initial Maturity
Date of this Contract with respect to all or a portion of the Deposit,
to the date occurring [366 calendar days from and including the [day]
of the month immediately] following such Election Date. Such extended
Initial Maturity Date shall be a Repayment Date and the Contract
Payment made on such Repayment Date will equal the applicable Deposit
amount plus all accrued, but previously unpaid, Interest thereon plus
Additional Amounts, if any.
(a) The Owner must deliver to the Insurance Company an election
notice during the notice period for the applicable Election Date.
The notice period for each Election Date will begin on the [10th]
Business Day prior to the Election Date and end on that Election
Date; provided, however, that if the Election Date is not a
Business Day, the notice period will be extended to the next day
that is a Business Day. The Owner's election notice must be
delivered to the Insurance Company no later than [6:00 p.m.], New
York City time, on the last Business Day in the notice period.
(b) The Initial Maturity Date may be extended with respect to all or
any portion of the Deposit equal to [$1,000] and integral
multiples of [$1,000] in excess thereof.
(c) Upon delivery to the Insurance Company of an election notice to
extend the Initial Maturity Date, that election will be revocable
during each day of such notice period, until [6:00 p.m.], New
York City time, on the last Business Day in such notice period,
at which time such election notice will become irrevocable.
(ii) If, on an Election Date, the Owner does not notify the Insurance
Company as provided in Section 3.7(i) that it is electing to extend
the Initial Maturity Date or notifies the Insurance Company that it is
extending the Initial Maturity Date with respect to only a portion of
the Deposit, such portion of the Deposit for which the Initial
Maturity Date has not been extended
Page 10
will become due and payable on the applicable Repayment Date.]
ARTICLE IV
TERMINATIONS
4.1 Termination Prior to the Expiration Date
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, 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), (INSERT THE FOLLOWING IF AN EXTENDIBLE
NOTE SERIES) [ Section 3.7(ii) or] 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
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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.
ARTICLE V
MISCELLANEOUS
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 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 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.
5.3 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.
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5.4 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:
(a) if to the Owner, to:
[ING USA Global Funding Trust [xxxx-xx]
c/o U.S. Bank National Association
Attn: Corporate Trust Services
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000]
Fax: [(000) 000-0000]
With a copy to:
[Citibank, N.A.
Agency & Trust
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx]
Fax: [(000) 000-0000]
if to the Insurance Company, to:
ING USA Annuity and Life Insurance Company
c/o ING Institutional Markets
[1290 Xxxxxxxx
Xxxxxx, XX 00000-0000]
Fax: [(000) 000-0000]
Either party hereto may change its address for purposes of receiving
notices and other communications by providing a notice to the other party
as required herein.
5.5 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.
5.6 Status of Guaranteed Fund
All monies under this Contract shall be part of the general corporate funds
of the Insurance Company.
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5.7 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.
5.8 Non-Participating
This Contract shall not participate or share in the earnings of the
Insurance Company.
5.9 Effect of Signature
The individual signing this Contract for the Owner acknowledges by such
signing that he or she has the necessary authority to sign on behalf of the
Owner and has read this Contract and fully understands its provisions and
has had the opportunity to ask questions and receive answers and to obtain
such additional information he or she considers necessary concerning the
Insurance Company and this Contract.
5.10 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.
5.11 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 for the Trust or any other person or entity
with respect to this Contract.
5.12 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.
5.13 Mutual Representations
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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.
5.14 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.
5.15 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 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 Section 1.871-14(c)(1)(i) and for all
other federal, state and local income and franchise tax purposes.
5.16 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]
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