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THIRD SUPPLEMENTAL INDENTURE
between
ING GROEP N.V.,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
Dated as of October 28, 2003
to the Subordinated Indenture between
ING GROEP N.V.,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
Dated as of July 18, 2002
$500,000,000 principal amount of 6.20% ING Perpetual Debt Securities
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions of Terms.............................................................2
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE 6.20% ING PERPETUAL DEBT
SECURITIES
SECTION 2.01. Designation and Principal Amount................................................13
SECTION 2.02. Maturity........................................................................13
SECTION 2.03. Form, Issuance, Registration and Exchange.......................................13
SECTION 2.04. Payments........................................................................13
SECTION 2.05. Mandatory Payment Events; Mandatory Partial Payment Events......................17
ARTICLE 3
OPTIONAL REDEMPTION AND REDEMPTION UPON CERTAIN EVENTS
SECTION 3.01. Optional Redemption.............................................................18
SECTION 3.02. Optional Purchase...............................................................19
ARTICLE 4
ALTERNATIVE INTEREST SATISFACTION MECHANISM
SECTION 4.01. Conditions Precedent............................................................19
SECTION 4.02. Notices of Exercise of Alternative Interest Satisfaction Mechanism..............19
SECTION 4.03. Alternative Interest Satisfaction Mechanism.....................................20
SECTION 4.04. Insufficient Payment Ordinary Shares............................................23
SECTION 4.05. Market Disruption Event.........................................................24
ARTICLE 5
REMEDIES
SECTION 5.01. Defaults; Collection of Indebtedness and Suits for Enforcement by Trustee.......25
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ARTICLE 6
COVENANTS OF THE ISSUER
SECTION 6.01. Dividend Restrictions for Deferred Interest Payments............................26
SECTION 6.02. Calculation Agent...............................................................27
SECTION 6.03. Mandatory Interest Payments.....................................................27
SECTION 6.04. Deferral of Certain Payments....................................................27
SECTION 6.05. Sufficiency of Ordinary Shares..................................................27
SECTION 6.06. Ranking.........................................................................28
SECTION 6.07. Payment of Proceeds from Sale of Payment Ordinary Shares and Associated Cost
Ordinary Shares...............................................................28
SECTION 6.08. Listing.........................................................................29
SECTION 6.09. Calculation Agency Agreement....................................................29
SECTION 6.10. Officer's Certificate on Deferral...............................................29
SECTION 6.11. Officer's Certificate for Market Disruption Event...............................29
ARTICLE 7
SUBORDINATION
SECTION 7.01. Agreement to Subordinate........................................................30
SECTION 7.02. Section 1401 of the Subordinated Indenture......................................30
ARTICLE 8
FORM OF 6.20% ING PERPETUAL DEBT SECURITIES
SECTION 8.01. Form of 6.20% ING Perpetual Debt Securities.....................................31
ARTICLE 9
ORIGINAL ISSUE OF 6.20% ING PERPETUAL DEBT SECURITIES
SECTION 9.01. Original Issue of 6.20% ING Perpetual Debt Securities...........................31
ARTICLE 10
WINDING UP
SECTION 10.01. Winding Up.....................................................................31
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge.....................................................32
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ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Issuance of Definitive Securities..............................................32
SECTION 12.02. Ratification of Subordinated Indenture; Third Supplemental Indenture Controls..33
SECTION 12.03. Trustee Not Responsible for Recitals...........................................33
SECTION 12.04. Governing Law..................................................................34
SECTION 12.05. Severability...................................................................34
SECTION 12.06. Counterparts...................................................................34
EXHIBIT A Form of 6.20% ING Perpetual Debt Securities.................................A-1
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THIRD SUPPLEMENTAL INDENTURE dated as of October 28, 2003 (the "THIRD
SUPPLEMENTAL INDENTURE") between ING Groep N.V., a company incorporated in The
Netherlands (the "COMPANY"), having its statutory seat in Amsterdam and its
principal office at Xxxxxxxxxxxxxxx 000, 0000 XX Xxxxxxxxx, X.X. Xxx 000, 0000
XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, and The Bank of New York, a New York banking
corporation having its Corporate Trust Office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, as trustee (the "TRUSTEE") to the Subordinated Indenture, dated
July 18, 2002, between the Company and the Trustee (the "SUBORDINATED
INDENTURE", and together with this Third Supplemental Indenture, the
"INDENTURE"). In addition, The Bank of New York, through its New York and London
branches, has agreed to act as Paying Agent hereunder.
WHEREAS, the Company and the Trustee executed and delivered the
Subordinated Indenture to provide for the future issuance of the Company's
Securities to be issued from time to time in one or more series as might be
determined by the Company under the Subordinated Indenture, in an unlimited
aggregate principal amount, which may be authenticated and delivered as provided
in the Subordinated Indenture;
WHEREAS, Section 301 of the Subordinated Indenture permits the terms of
any series of Securities to be established pursuant to a Board Resolution or in
one or more indentures supplemental to the Subordinated Indenture;
WHEREAS, the Company desires to issue a series of Securities, the terms of
which it deems appropriate to set out in this Third Supplemental Indenture;
WHEREAS, pursuant to the terms of the Subordinated Indenture, the Company
may issue Securities now and additional Securities of the same or different
series at later dates under the Subordinated Indenture, as established by the
Company, and the Company desires to initially issue $500,000,000 aggregate
principal amount of securities, entitled the 6.20% ING Perpetual Debt Securities
(the "6.20% ING PERPETUAL DEBT SECURITIES"), the form and substance of such
6.20% ING Perpetual Debt Securities and the terms, provisions and conditions
thereof to be set forth as provided in the Subordinated Indenture as
supplemented by this Third Supplemental Indenture;
WHEREAS, pursuant to Section 301 of the Subordinated Indenture, the
Company desires to appoint The Bank of New York, through its New York and London
branches, to act as Paying Agent with respect to the 6.20% ING Perpetual Debt
Securities and ING Financial Markets LLC, as Calculation Agent with respect to
the 6.20% ING Perpetual Debt Securities;
WHEREAS, the 6.20% ING Perpetual Debt Securities shall be treated as a
separate series of Securities in accordance with the terms of the Indenture and
for all purposes under the Indenture; and
WHEREAS, the Company has duly authorized the execution and delivery of
this Third Supplemental Indenture and requested that the Trustee execute and
deliver this Third Supplemental Indenture, and all requirements necessary to
make this Third Supplemental Indenture a valid and binding instrument in
accordance with its terms have been done.
NOW THEREFORE, in consideration of the purchase and acceptance of the
6.20% ING Perpetual Debt Securities by the Holders thereof, and for the purpose
of setting forth, as provided in the Indenture, the form and substance of the
6.20% ING Perpetual Debt Securities and the terms, provisions and conditions
thereof, the Company covenants and agrees with the Trustee and the Paying Agent
as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions of Terms. For all purposes of the Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) a term defined in the Subordinated Indenture and not otherwise
defined herein has the same meaning when used in this Third Supplemental
Indenture;
(b) unless otherwise specified, a reference to a Section or Article
is to a Section or Article of this Third Supplemental Indenture;
(c) headings are for convenience of reference only and do not affect
interpretation; and
(d) the following terms have the meanings given to them in this
Section 1.01(d) and shall have the meaning set forth below for purposes of
this Third Supplemental Indenture and the Subordinated Indenture as it
relates to the series of 6.20% ING Perpetual Debt Securities created
hereunder.
"ACCRUED INTEREST PAYMENT" means Interest that shall continue to accrue
after an Interest Payment Date in respect of an Elective Deferral Interest
Payment,
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the failure to make a payment when due on a date of redemption, certain Payments
which cannot be made due to insufficient Ordinary Shares to satisfy the
Alternative Interest Satisfaction Mechanism and failure to make a Payment more
than 14 days after its due date due to a Market Disruption Event.
"ADDITIONAL AMOUNTS" has the meaning specified in Section 1006 of the
Subordinated Indenture.
"ALTERNATIVE INTEREST SATISFACTION MECHANISM" has the meaning specified in
Section 4.03 hereof.
"ASSETS" means the non-consolidated gross assets of the Company as shown
by the most recently published audited balance sheet of the Company, but
adjusted for contingencies and subsequent events and to such extent as the
directors, external auditors or, as the case may be, the liquidator may
determine to be appropriate.
"ASSOCIATED COSTS" has the meaning assigned to such term in the
Calculation Agency Agreement.
"ASSOCIATED COST ORDINARY SHARES" means Ordinary Shares issued by the
Company in accordance with Section 4.03(c)(iii) hereof.
"BASE REDEMPTION PRICE" in respect of the 6.20% ING Perpetual Debt
Securities means a redemption price equal to 100% of the aggregate principal
amount, together with any Outstanding Payments accrued to and including the date
fixed for redemption.
"BUSINESS DAY" means a Monday, Tuesday, Wednesday, Thursday or Friday that
is not a day on which banking institutions in The Netherlands or New York City
generally are authorized or obligated by law, regulation or executive order to
close.
"CALCULATION AGENCY AGREEMENT" means the calculation agency agreement,
dated as of October 28, 2003, between the Company and the Calculation Agent,
relating to the 6.20% ING Perpetual Debt Securities, as the same may be amended
from time to time.
"CALCULATION AGENT" means ING Financial Markets LLC, as calculation agent
in relation to the 6.20% ING Perpetual Debt Securities, or its successor or
successors for the time being appointed under the Calculation Agency Agreement.
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"DEFERRAL INTEREST RATE" means an interest rate equal to the Fixed
Interest Rate.
"DEFERRAL NOTICE" means a notice to the Trustee, the Holders, the Paying
Agent, if different than the Trustee, and the Calculation Agent that a Payment
will be deferred in accordance with the Indenture.
"DEFERRED INTEREST PAYMENT" means any Elective Deferral Interest Payment,
or part thereof, which has not subsequently been satisfied, or any Required
Deferral Interest Payment, or part thereof, which has not subsequently been
either (i) satisfied, or (ii) deferred pursuant to Section 2.04(f) hereof.
"DEFERRED INTEREST SATISFACTION DATE" means the earlier of
(i) with respect to a Required Deferral Interest Payment, the
Interest Payment Date following the 19th Business Day after the Required
Deferral Condition fails to be met;
(ii) the date on which the Company has resolved to satisfy a
Deferred Interest Payment as set forth in a notice to the Trustee, the
Holders, the Paying Agent, if different than the Trustee, and the
Calculation Agent; or
(iii) the date on which the Company is required to satisfy all
Deferred Interest Payments due to the occurrence of a Mandatory Payment
Event or a Mandatory Partial Payment Event.
"DTC" means the Depository Trust Company.
"ELECTIVE DEFERRAL INTEREST PAYMENT" means any Payment on the 6.20% ING
Perpetual Debt Securities that is deferred due to the circumstances set forth in
Section 2.04(f) hereof.
"FIXED INTEREST RATE" has the meaning set forth in Section 2.04(b) hereof.
"INDENTURE" has the meaning set forth in the recitals of this Third
Supplemental Indenture.
"6.20% ING PERPETUAL DEBT SECURITIES" has the meaning set forth in the
recitals of this Third Supplemental Indenture, and shall include, unless the
context otherwise requires, any further 6.20% ING Perpetual Debt Securities
which the Company is permitted to issue and which will form a single series with
the 6.20% ING Perpetual Debt Securities.
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"INTEREST" means interest payments on the 6.20% ING Perpetual Debt
Securities as calculated in accordance with Sections 2.04(b) and (c) hereof and
shall, where appropriate, include Interest Amounts, Deferred Interest Payments
and Accrued Interest Payments.
"INTEREST AMOUNT" means
(i) in respect of an Interest Payment, the amount of Interest
payable on a 6.20% ING Perpetual Debt Security for the relevant Interest
Period; and
(ii) in the event of redemption due to a Tax Event or Regulatory
Event, any Interest accrued from (and including) the preceding Interest
Payment Date (or, if none, the Issue Date) to (but excluding) the due date
for redemption, if not an Interest Payment Date, as calculated using the
Interest Calculation Basis.
"INTEREST CALCULATION BASIS" means the calculation of Interest on the
basis of a 360-day year of twelve 30-day months.
"INTEREST PAYMENT" means, in respect of an Interest Payment Date, the
aggregate Interest Amounts for the Interest Period ending on such Interest
Payment Date.
"INTEREST PAYMENT DATE" has the meaning set forth in Section 2.04(d)
hereof.
"INTEREST PERIOD" means the period commencing on (and including) the Issue
Date and ending on (but excluding) the first Interest Payment Date and each
successive period commencing on (and including) an Interest Payment Date and
ending on (but excluding) the next succeeding Interest Payment Date.
"ISSUE DATE" means October 28, 2003.
"JUNIOR GUARANTEE" means any guarantee, indemnity or other contractual
support arrangement entered into by the Company in respect of securities
(regardless of name or designation) issued by a Subsidiary or Undertaking and
ranking junior to the 6.20% ING Perpetual Debt Securities upon a liquidation of
the Company or in respect of distributions or payment of dividends or any other
payment thereon.
"JUNIOR SECURITIES" means the Ordinary Shares or any other securities of
the Company that rank junior to the 6.20% ING Perpetual Debt Securities with
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respect to distributions on a return of assets, upon a liquidation of the
Company or in respect of distributions, payments of dividends or any other
payment thereon.
"LIABILITIES" means the non-consolidated gross liabilities of the Company
as shown by the most recently published audited balance sheet of the Company,
but adjusted for contingencies and for subsequent events and to such extent as
the Company's directors, external auditors or, as the case may be, liquidator
may determine.
"MANDATORY PARTIAL PAYMENT" payable on any Interest Payment Date means a
payment in respect of each 6.20% ING Perpetual Debt Security in an amount that
results in payment of a proportion of a full Interest Payment on the 6.20% ING
Perpetual Debt Security on such Interest Payment Date equal to the proportion of
a full dividend or full interest payment on the relevant Parity Securities
and/or payment on the relevant Parity Guarantee paid on the dividend or payment
date in respect of the relevant Parity Securities and/or Parity Guarantee
immediately preceding such Interest Payment Date.
"MANDATORY PARTIAL PAYMENT EVENT" means the occurrence of any of the
following:
(i) the Company declares, pays or distributes a dividend or makes a
payment on any of its Parity Securities or Parity Guarantees; or
(ii) any Subsidiary or Undertaking declares, pays or distributes a
dividend on any security issued by it benefitting from a Parity Guarantee
or makes a payment on any security issued by it benefitting from a Parity
Guarantee.
"MANDATORY PAYMENT EVENT" means the occurrence of any of the following:
(i) the Company declares, pays or distributes a dividend or makes a
payment (other than a dividend in the form of Ordinary Shares) on any of
its Junior Securities or makes a payment on a Junior Guarantee;
(ii) any Subsidiary or Undertaking declares, pays or distributes a
dividend on any security issued by it benefitting from a Junior Guarantee
or makes a payment (other than a dividend in the form of ordinary shares)
on any security issued by it benefitting from a Junior Guarantee;
(iii) the Company or any Subsidiary or Undertaking redeems,
purchases or otherwise acquires any of the Company's Junior Securities,
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any Parity Securities or any securities issued by any Subsidiary or
Undertaking benefitting from a Junior Guarantee or Parity Guarantee, other
than (1) by conversion into or in exchange for Ordinary Shares, (2) in
connection with transactions effected by or for the account of customers
of the Company or any Subsidiary or in connection with the distribution,
trading or market-making activities in respect of those securities, (3) in
connection with the satisfaction by the Company or any Subsidiary of its
obligations under any employee benefit plans or similar arrangements with
or for the benefit of employees, officers, directors or consultants, (4)
as a result of a reclassification of the Company or any Subsidiary or the
exchange or conversion of one class or series of capital stock for another
class or series of capital stock, or (5) the purchase of the fractional
interests in shares of the capital stock of the Company or of any
Subsidiary pursuant to the conversion or exchange provisions of that
capital stock or the security being converted or exchanged; or
(iv) any moneys are paid to or made available for a sinking fund or
for redemption of any Junior Securities, Parity Securities or any
securities issued by any Subsidiary or Undertaking benefitting from a
Junior Guarantee or Parity Guarantee.
"MARKET DISRUPTION EVENT" means
(i) the occurrence or existence of any suspension of or limitation
imposed on trading by reason of movements in price exceeding limits
permitted by Euronext Amsterdam N.V. or on settlement procedures for
transactions in the Ordinary Shares on Euronext Amsterdam N.V. if, in any
such case, that suspension or limitation is, in the determination of the
Calculation Agent, material in the context of the sale of the Ordinary
Shares;
(ii) in the Company's opinion, there has been a substantial
deterioration in the price and/or value of the Ordinary Shares, or
circumstances are such as to prevent or, to a material extent, restrict
the issue or delivery of the Payment Ordinary Shares; or
(iii) where, pursuant to the terms of the Indenture, moneys are
required to be converted from one currency into another currency in
respect of any Payment, but the occurrence of any event that makes it
impracticable to effect such conversion.
"NOTIONAL PREFERENCE SHARES" has the meaning set forth in Section 10.01
hereof.
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"ORDINARY SHARES" means the Company's ordinary shares or bearer depository
receipts issued in respect of such ordinary shares as the context may require.
"OUTSTANDING PAYMENT" means:
(i) in relation to any Interest Payment, Deferred Interest Payment
or Interest Amount not falling within the definition of Interest Payment,
that such payment (a) has either become due and payable or would have
become due and payable except for the non-satisfaction on the relevant
date due to a Solvency Condition not being satisfied or the deferral,
postponement or suspension of such payment, due to a Required Deferral
Condition, an Elective Deferral Interest Payment, insufficient Ordinary
Shares available to satisfy the Alternative Interest Satisfaction
Mechanism, or failure to make a payment more than 14 days after its due
date due to a Market Disruption Event, and (b) in any such case has not
been satisfied; and
(ii) in relation to any Accrued Interest Payment, any amount thereof
which has not been satisfied whether or not payment has become due.
"PARITY GUARANTEE" means any guarantee, indemnity or other contractual
support arrangements of the Company of securities of any Subsidiary or
Undertaking, under which the holder of such securities as the party who has the
benefit of any such guarantee, indemnity or other contractual support agreement
is entitled, effectively from a financial point of view, to distributions on a
return of assets or on a liquidation, moratorium of payments or bankruptcy of
the Company or to distributions or payments of dividends and/or any other
amounts thereunder by the Company, to the same extent as the most senior class
of preference shares and which (a) are expressed to be similarly subordinated to
Senior Debt as, and accordingly rank pari passu with, the 6.20% ING Perpetual
Debt Securities as regards any such distribution or payment or (b) rank pari
passu as expressed by such 6.20% ING Perpetual Debt Securities' own terms with
the 6.20% ING Perpetual Debt Securities.
Parity Guarantee includes the Company's guarantees (collectively the
"TRUST PREFERRED SECURITIES GUARANTEES") of the:
- 7.70% Non-cumulative Guaranteed Trust Preferred Securities issued by
ING Capital Funding Trust I;
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- 9.20% Non-cumulative Guaranteed Trust Preferred Securities issued by
ING Capital Funding Trust II; and
- 8.439% Non-cumulative Guaranteed Trust Preferred Securities issued
by ING Capital Funding Trust III.
"PARITY INTEREST PAYMENT" has the meaning set forth in Section 6.05(a)
hereof.
"PARITY PERPETUAL SECURITIES" means the Company's 6.50% ING Perpetual
Securities issued on September 28, 2001, the Company's 7.05% ING Perpetual Debt
Securities issued on July 18, 2002, the Company's 7.20% ING Perpetual Debt
Securities issued on December 12, 2002 and the Company's Variable Rate ING
Perpetual Securities issued on June 20 2003.
"PARITY SECURITIES" means
(i) the most senior class of preference shares of the Company;
(ii) any preference shares of the Company of similar rank as the
most senior class of preference shares of the Company; or
(iii) other securities of the Company, the holders of which have
claims that rank, effectively from a financial point of view, pursuant to
a Parity Guarantee or pursuant to the provisions of such securities, as
the most senior class of preference shares of the Company, in each case as
regards distributions on a return of assets or on a liquidation,
moratorium of payments or bankruptcy of the Company or in respect of
distributions or payments of dividends and/or any other amounts thereunder
by the Company and which are expressed to be similarly subordinated to
Senior Debt as, and accordingly rank pari passu with, the 6.20% ING
Perpetual Debt Securities as regards any such distributions or payments.
Parity Securities includes the Parity Perpetual Securities.
"PAYING AGENT" means The Bank of New York as paying agent in relation to
the 6.20% ING Perpetual Debt Securities, or its successor or successors for the
time being appointed in accordance with the terms of the Indenture.
"PAYMENT" means any Interest Payment, Deferred Interest Payment, Accrued
Interest Payment or Interest Amount not falling within the definition of
Interest Payment.
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"PAYMENT DEFAULT" has the meaning set forth in Section 5.01(a) hereof.
"PAYMENT EVENT" has the meaning set forth in Section 5.01(b) hereof.
"PAYMENT ORDINARY SHARES" means Ordinary Shares issued by the Company in
accordance with Section 4.03(c)(ii) hereof.
"REGULAR RECORD DATE" means the January 1, April 1, July 1 and October 1
preceding an Interest Payment Date (whether or not a Business Day).
"REGULATORY EVENT" means any time after the Company becomes subject to
capital adequacy regulations, the relevant regulator makes a determination that
securities in the nature of the 6.20% ING Perpetual Debt Securities can no
longer qualify as Tier 1 capital (or instruments of a similar nature which
qualify as core capital) for purposes of such capital adequacy regulations.
"RELEVANT DATE" means
(i) in respect of any payment other than a Winding-Up Claim, the
date on which such payment first becomes due and payable but, if the full
amount of the monies payable on such date has not been received by the
Trustee on or prior to such date, the "Relevant Date" means the date on
which such monies shall have been so received and notice to that effect
shall have been given to the Holders in accordance with Section 106 of the
Subordinated Indenture; and
(ii) in respect of a Winding-Up Claim, the date which is one day
prior to the commencement of the winding up.
"REQUIRED DEFERRAL CONDITION" means a determination by the Company that
the Solvency Conditions (i) are not satisfied on the Relevant Date, or (ii) will
not be satisfied as a result of making the relevant Payment.
"REQUIRED DEFERRAL INTEREST PAYMENT" has the meaning set forth in Section
2.04(e) hereof.
"SECURITIES" has the meaning set forth in the Subordinated Indenture.
"SENIOR DEBT" means
(i) all claims of unsubordinated creditors of the Company;
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(ii) all claims of creditors whose claims are, or are expressed to
be, subordinated (whether only in the event of the insolvency of the
Company or otherwise) only to the claims of unsubordinated creditors of
the Company; and
(iii) all claims of all other creditors of the Company except those
whose claims are, or are expressed to rank, pari passu with, or junior to,
the claims of the Holders.
"SOLVENCY CONDITIONS" means
(i) the Company is able to make payments on its Senior Debt as such
payments become due; and
(ii) the Company's Assets exceed the sum of its Liabilities
(excluding Liabilities not considered Senior Debt).
"SUBORDINATED INDENTURE" has the meaning set forth in the first paragraph
of this Third Supplemental Indenture.
"TAX EVENT" means a determination by the Company that on the next Interest
Payment Date:
(i) the Company would, for reasons outside its control, be unable to
make the required payment on such date without being required to pay
Additional Amounts and the Company cannot avoid such requirement or
circumstance by taking such measures the Company, acting in good faith,
deems appropriate;
(ii) payments of amounts in respect of Interest on the 6.20% ING
Perpetual Debt Securities (including, for the avoidance of doubt, where
the payment of Interest is to be satisfied by the issue of Ordinary Shares
pursuant to the Alternative Interest Satisfaction Mechanism), may be
treated as "distributions" within the meaning of Section II of the
Dividend Withholding Tax Act 1965 (Wet op de dividendbelasting 1965); or
such other provision as may from time to time supersede or replace Section
II of the Dividend Withholding Tax Act of 1965 for the purposes of such
definition) and the Company cannot avoid such requirement or circumstance
by taking such measures the Company, acting in good faith, deems
appropriate; or
(iii) there is more than an insubstantial risk that the Company will
not obtain substantially full relief for the purposes of the corporation
tax of
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The Netherlands for any payment of Interest (including, for the avoidance
of doubt, where the payment of Interest is to be satisfied by the issue of
Ordinary Shares pursuant to the Alternative Interest Satisfaction
Mechanism), due to any proposed change or amendment to the laws of The
Netherlands, or any proposed change in the application of official or
generally published interpretation of such laws, or any interpretation or
pronouncement by any relevant tax authority that provides for a position
with respect to such laws or regulations that differs from the previously
generally accepted position in relation to similar transactions or which
differs from any specific written confirmation given by a tax authority in
respect of the 6.20% ING Perpetual Debt Securities, where such change or
amendment becomes, or would become, effective, or in the case of a change
or proposed change in law if such change is enacted (or, in the case of a
proposed change, is expected to be enacted) by an Act of Parliament or
made by Statutory Instrument on or after October 17, 2003, and the Company
cannot avoid this risk by taking such measures the Company, acting in good
faith, deems appropriate.
"TRUST PREFERRED SECURITIES GUARANTEES" has the meaning given such term in
the definition of Parity Guarantee.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor trustee shall have become such pursuant to
the applicable provisions of the Subordinated Indenture, and thereafter
"Trustee" shall mean the Person who is then the Trustee thereunder, and if at
any time there is more than one such Person, "Trustee" shall mean and include
each such Person.
"UNDERTAKING" means a corporate body, partnership, limited partnership,
cooperative or an incorporated association carrying on a trade or business with
or without a view to profit in which the Company has direct or indirect
financial, commercial or contractual majority interest.
"WINDING-UP CLAIM" means amounts in respect of principal or Payments in
respect of which a Solvency Condition is not satisfied on the date upon which
such principal or Payments would otherwise be due and payable by the Company in
connection with its liquidation (upon dissolution or otherwise) and on any
redemption of 6.20% ING Perpetual Debt Securities.
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ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE 6.20% ING PERPETUAL DEBT
SECURITIES
SECTION 2.01. Designation and Principal Amount. The following series of
Securities are hereby authorized as the 6.20% ING Perpetual Debt Securities,
initially to be issued in the aggregate principal amount of $500,000,000.
SECTION 2.02. Maturity. The 6.20% ING Perpetual Debt Securities have no
maturity date.
SECTION 2.03. Form, Issuance, Registration and Exchange. The 6.20% ING
Perpetual Debt Securities shall:
(a) be issued as registered Securities in minimum denominations of
$25.00 (or in any integral multiple thereof) in book-entry global form,
and shall not be exchangeable for definitive securities except as provided
in Section 305 of the Subordinated Indenture;
(b) not be exchangeable at any time for bearer securities; and
(c) be issued as global 6.20% ING Perpetual Debt Securities
registered in the name of DTC or its nominee (initially the nominee will
be Cede & Co.); provided, however, (i) such global securities may not be
transferred except as a whole by DTC to a nominee or a successor of DTC,
unless and until the 6.20% ING Perpetual Debt Securities are exchanged for
definitive securities in the limited instances described in Section 12.01
hereof; (ii) beneficial interests in global 6.20% ING Perpetual Debt
Securities may be held through organizations that participate, directly or
indirectly, in the DTC system; (iii) beneficial interests in the global
6.20% ING Perpetual Debt Securities and all transfers relating to the
global 6.20% ING Perpetual Debt Securities will be reflected in the
book-entry records of DTC; and (iv) so long as DTC, or its nominee, is the
holder of a global 6.20% ING Perpetual Debt Security, it will be
considered the sole holder of the global 6.20% ING Perpetual Debt Security
for all purposes under the Indenture.
SECTION 2.04. Payments.
(a) Payment Method. (i) Any Payment on 6.20% ING Perpetual Debt Securities
which is payable, and is paid or duly provided for, on any Payment Date or on
any date on which the Company makes any Payment on the 6.20% ING Perpetual Debt
Securities (including any payment of Additional Amounts in
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accordance with Section 1006 of the Subordinated Indenture) shall be paid by the
Trustee to the Holder in whose name such 6.20% ING Perpetual Debt Securities are
registered, by wire-transfer of same-day funds to the Holder or, at the option
of the Company, by check mailed to the address of the Holder as it appears in
the Company's Security Register. For so long as the 6.20% ING Perpetual Debt
Securities are held in global form, all payments shall be made by wire-transfer
of same-day funds.
(ii) All payments made with respect to the 6.20% ING Perpetual Debt
Securities will be subject to any fiscal or other laws and regulations
applicable thereto in the place of payment. Except as expressly stated,
such fiscal or other laws and regulations will not affect the Company's
obligation to pay Additional Amounts.
(b) Interest Rate. The 6.20% ING Perpetual Debt Securities will bear
Interest from the Issue Date at a fixed rate per annum on their outstanding
principal amount equal to 6.20% (the "FIXED INTEREST RATE").
(c) Interest Payment Dates. Subject to the provisions herein, Interest on
the 6.20% ING Perpetual Debt Securities (calculated in accordance with the
Interest Calculation Basis) will be payable from October 28, 2003 or from the
most recent Interest Payment Date to which interest has been paid or duly pro
vided for, quarterly in arrears on January 15, April 15, July 15 and October 15
in each year, commencing on January 15, 2004.
(d) Accrued Interest Payments. The aggregate amount of any Accrued
Interest Payments on the 6.20% ING Perpetual Debt Securities will bear Interest
at the Fixed Interest Rate (to the extent permitted by applicable law) as if
such Accrued Interest Payments were considered part of principal and will become
payable as and when the Payment in respect of which such Interest has accrued
becomes payable. The amount of Interest which accrues (the "ADDITIONAL
INTEREST") in respect of any such Accrued Interest Payments shall be calculated
by the Trustee in consultation with the Company and shall be added, for purposes
only of the calculation of the amount of Additional Interest due on any Interest
Payment Date or Deferred Interest Satisfaction Date, as the case may be, to the
corresponding amount of Payments unpaid as at such Interest Payment Date or
Deferred Interest Satisfaction Date, as applicable, as if such amount would
itself constitute a Payment.
When used with respect to any 6.20% ING Perpetual Debt Securities,
"INTEREST PAYMENT DATE" means the date for payment of any Interest on such 6.20%
ING Perpetual Debt Securities, as determined by the Company and set forth in
this Third Supplemental Indenture and the form of 6.20% ING Perpetual
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Debt Securities attached as Exhibit A hereto. If any Interest Payment Date would
otherwise fall on a day which is not a Business Day, it shall be postponed to
the next day that is a Business Day.
(e) Required Deferral of Payments.
(i) Other than in the case of a Mandatory Payment Event or a
Mandatory Partial Payment Event, the Company is required to give a
Deferral Notice in accordance with Section 2.04(h) hereof and to defer any
payment where the Required Deferral Condition has occurred or is
continuing on the 20th Business Day preceding the date on which such
Payment would be due and payable and no Interest Payment shall be payable
on such Interest Payment Date. When used with respect to any 6.20% ING
Perpetual Debt Securities, "REQUIRED DEFERRAL INTEREST PAYMENT" means any
Payment deferred in accordance with this Section 2.04(e).
(ii) Interest will not accrue on any Required Deferral Interest
Payment except under circumstances described under Section 4.03 hereof.
(iii) Any Required Deferral Interest Payment, except in the case of
a Mandatory Payment Event or a Mandatory Partial Payment Event, shall be
satisfied on the relevant Deferred Interest Satisfaction Date if the
Required Deferral Condition is no longer met as of the 20th Business Day
preceding any subsequent Interest Payment Date and the Company (x) does
not validly elect to defer such payment in accordance with Section
2.04(f)(i) hereof; or (y) has not elected to pay such Deferred Interest
Payment earlier in accordance with Section 2.04(f)(iii) hereof.
(iv) At least 16 Business Days prior to the relevant Deferred
Interest Satisfaction Date, the Company shall give notice to the Trustee
of the Deferred Interest Satisfaction Date on which such Required Deferral
Interest Payment will be satisfied. As soon as practicable after receiving
such notice but within two business days, the Trustee shall provide notice
to the Company of the amount of Accrued Interest Payments, (including any
Additional Interest) if any, payable on such Deferred Interest
Satisfaction Date.
(v) At least 16 Business Days prior to such Deferred Interest
Satisfaction Date, the Company shall provide a notice to the Paying Agent,
the Calculation Agent and the Holders in accordance with Section 106 of
the Subordinated Indenture (a) that the Company will satisfy such Required
Deferral Interest Payment on the relevant Deferred Interest
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Satisfaction Date, (b) the amount of the Accrued Interest Payments
(including Additional Interest), if any, payable on such Deferred Interest
Satisfaction Date, as calculated by the Trustee and (c) the Special Record
Date for such Deferred Interest Satisfaction Date.
(f) Elective Deferral of Payments.
(i) The Company may defer any Payment that is due and payable under
the 6.20% ING Perpetual Debt Securities, other than in the case of a
Mandatory Payment Event or a Mandatory Partial Payment Event, by giving a
Deferral Notice to the Trustee, the Calculation Agent and the Holders in
accordance with Section 2.04(h) hereof, including any Payment referred to
in Section 2.04(e)(iii), 2.04(e)(iv), 2.04(e)(v) hereof (except as
otherwise provided therein), and no Interest Payment shall be payable on
such Interest Payment Date. When used with respect to any 6.20% ING
Perpetual Debt Securities, "ELECTIVE DEFERRAL INTEREST PAYMENT" means any
Payment deferred in accordance with this Section 2.04(f).
(ii) Elective Deferral Interest Payments will accrue interest at the
Deferral Interest Rate from, and including, the date on which (but for
such deferral) the Deferred Interest Payment would otherwise have been due
to be made to, but excluding, the relevant Deferred Interest Satisfaction
Date.
(iii) Except in the case of a Mandatory Payment Event or a Mandatory
Partial Payment Event, the Company may satisfy any Elective Deferral
Interest Payment at any time; provided, however, any such Payment shall be
satisfied by delivering a notice in accordance with Section 4.03(c)(i)
hereof not less than 16 Business Days prior to the relevant Deferred
Interest Satisfaction Date informing of the Company's election to so
satisfy such Payment and specifying the relevant Deferred Interest
Satisfaction Date.
(g) Conditions Precedent for any Payment.
(i) Except in a bankruptcy, all payments on the 6.20% ING Perpetual
Debt Securities will be conditional upon not triggering the Required
Deferral Condition.
(ii) Unless the Company obtains permission from its relevant
regulator, it shall satisfy any Deferred Interest Payments only in
accordance with the Alternative Interest Satisfaction Mechanism set forth
in Article 4 below; provided, however, that the Company is not required to
utilize the Alternative Interest Satisfaction Mechanism to satisfy any
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Mandatory Partial Payment payable on a Mandatory Partial Payment Date that
coincides with the date on which a Deferred Interest Payment has become
mandatorily due and payable in full.
(h) Deferral Notice.
(i) The Company shall give any Deferral Notice not less than 16
Business Days prior to the date on which any Payment would, in the absence
of deferral, be due and payable.
(ii) The Company must give a Deferral Notice in the case of a
Required Deferral Condition.
(iii) Any Deferral Notice as to a Payment required to be paid
pursuant to a Mandatory Payment Event or a Mandatory Partial Payment Event
will have no force or effect.
SECTION 2.05. Mandatory Payment Events; Mandatory Partial Payment Events.
(a) Deferred Interest Payments. Upon the occurrence of a Mandatory Payment
Event or a Mandatory Partial Payment Event, all Deferred Interest Payments will
become mandatorily due and payable in full on the date of either such event,
notwithstanding any further Deferral Notice or an occurrence or continuance of a
Required Deferral Condition.
(b) Satisfaction of Interest Payments following a Mandatory Payment Event.
The Interest Payments payable on the next four consecutive Interest Payment
Dates following a Mandatory Payment Event will be mandatorily due and payable in
full, notwithstanding any Deferral Notice as to such Interest Payments or the
occurrence or continuance of any Required Deferral Condition; provided, however,
that if the Mandatory Payment Event is (x) a payment on a Junior Security, a
Junior Guarantee or a security benefitting from a Junior Guarantee or relates to
the purchase or other acquisition of any Junior Security, Parity Security or a
security benefitting from a Junior Guarantee or a Parity Guarantee, and (y) such
payment is in respect of a semi-annual or quarterly payment or the security
purchased or acquired was payable semi-annually or quarterly, only the Interest
Payments payable on the next two Interest Payment Dates or the next Interest
Payment, respectively, shall be mandatorily due and payable notwithstanding any
Deferral Notice as to such Interest Payment or the occurrence or continuance of
any Required Deferral Condition. Such Mandatory Interest Payments may, at the
Company's election, be satisfied in accordance with the Alternative Interest
Satisfaction Mechanism.
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(c) Satisfaction of Interest Payments following a Mandatory Partial
Payment Event. Mandatory Partial Payments will be mandatorily due and payable,
on the next four consecutive Interest Payment Dates, following a Mandatory
Partial Payment Event, notwithstanding any Deferral Notice or occurrence of the
Required Deferral Condition; provided, however, that if such Mandatory Partial
Payment (x) is a payment on a Parity Security, a Parity Guarantee or a security
benefitting from a Parity Guarantee, and (y) such payment is in respect of a
semi-annual or quarterly payment, only Mandatory Partial Payments payable on the
next two consecutive Interest Payment Dates or the next Interest Payment Date,
respectively, shall be mandatorily due and payable notwithstanding any Deferral
Notice as to such Interest Payment or the occurrence or continuance of any
Required Deferral Condition. Such Mandatory Partial Payments may, at the
Company's election, be satisfied in accordance with the Alternative Interest
Satisfaction Mechanism.
ARTICLE 3
OPTIONAL REDEMPTION AND REDEMPTION UPON CERTAIN EVENTS
SECTION 3.01. Optional Redemption. (a) Any redemption made in accordance
with this Article 3 shall be made in accordance with Sections 1101 through
Section 1108 of the Subordinated Indenture.
(b) Upon giving not less than 30 nor more than 60 days' notice to the
Holders of 6.20% ING Perpetual Debt Securities, and provided the Solvency
Conditions are satisfied at the time of such notice and at the time of
redemption, the 6.20% ING Perpetual Debt Securities may be redeemed in whole
(but not in part) at the Base Redemption Price, at the option of the Company and
without the consent of the Holders or the Trustee, as follows:
(i) on January 15, 2009, and thereafter on any Interest Payment
Date;
(ii) upon the occurrence of a Tax Event, provided that the Company
has already delivered to the Trustee, in a form satisfactory to the
Trustee, a written legal opinion of independent Dutch counsel of
recognized standing, selected by the Company, confirming that such Tax
Event has occurred; or
(iii) upon the occurrence of a Regulatory Event.
(c) Cancellation of any 6.20% ING Perpetual Debt Securities redeemed by
the Company pursuant to this Indenture will be effectuated by reducing the
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principal amount of the 6.20% ING Perpetual Debt Securities, and any 6.20% ING
Perpetual Debt Securities so cancelled will be discharged. Any 6.20% ING
Perpetual Debt Securities purchased by the Company may be held, reissued, resold
or, at the Company's option, cancelled. Such cancellation shall be effectuated
by decreasing in an equal amount the number of 6.20% ING Perpetual Debt
Securities represented by the global security.
(d) In the event the Base Redemption Price in respect of any 6.20% ING
Perpetual Debt Securities is improperly withheld or refused and is not paid by
the Company, Interest on the 6.20% ING Perpetual Debt Securities will continue
to be payable and accrue in accordance with Section 2.04(d) hereof until the
date the Base Redemption Price is actually paid (the "DELAYED REDEMPTION PAYMENT
DATE"). Prior to the payment of any Base Redemption Price which previously has
been improperly withheld or refused, the Company shall inform the Trustee of the
proposed Delayed Redemption Payment Date and the Trustee shall, as soon as
practicable after receiving such notice, provide notice to the Company of the
amount of Accrued Interest Payments (together with Additional Interest) payable
in connection therewith. The Company shall then provide notice to the Paying
Agent, if different than the Trustee, and the Holders in accordance with Section
106 of the Subordinated Indenture of (i) the Delayed Redemption Payment Date,
(ii) the Special Record Date for the Delayed Redemption Payment Date and (iii)
the Accrued Interest Payments payable on such date, as calculated by the
Trustee.
SECTION 3.02. Optional Purchase. The Company may at any time, subject to
satisfaction of the Solvency Conditions, purchase 6.20% ING Perpetual Debt
Securities on the open market in any manner and at any price.
ARTICLE 4
ALTERNATIVE INTEREST SATISFACTION MECHANISM
SECTION 4.01. Conditions Precedent. Subject to the provisions of Article 5
of this Third Supplemental Indenture and Article 5 of the Subordinated Indenture
and notwithstanding any other provision of this Indenture to the contrary, the
Company's ability to use the Alternative Interest Satisfaction Mechanism to
satisfy its Payment obligations with respect to the 6.20% ING Perpetual Debt
Securities is subject to Section 4.04 and Section 4.05 hereof.
SECTION 4.02. Notices of Exercise of Alternative Interest Satisfaction
Mechanism. The Company shall give notice to the Trustee, the Paying Agent, if
different than the Trustee, the Calculation Agent and the Holders of the 6.20%
ING Perpetual Debt Securities in accordance with Sections 105 and 106, as
19
applicable, of the Subordinated Indenture and in accordance with the Calculation
Agency Agreement at least 16 Business Days prior to the relevant Interest
Payment Date or Deferred Interest Satisfaction Date, as applicable, of its
election pursuant to Section 2.04 hereof, to pay all or part of a Deferred
Interest Payment or to make any other Payment pursuant to the Alternative
Interest Satisfaction Mechanism, subject to Section 4.03(b) below.
SECTION 4.03. Alternative Interest Satisfaction Mechanism.
(a) Unless otherwise expressly provided in this Indenture, the Company
shall satisfy any Deferred Interest Payments in accordance with the Alternative
Interest Satisfaction Mechanism.
(b) Subject to the satisfaction of the Solvency Conditions, the Company
may, at its option, satisfy any Payment in accordance with the Alternative
Interest Satisfaction Mechanism; provided, however, that at the time of such
election the Company shall have sufficient authorized Ordinary Shares to issue
such shares to satisfy such Payment in full.
(c) Subject to and in accordance with the terms of the Calculation Agency
Agreement, under the "ALTERNATIVE INTEREST SATISFACTION MECHANISM":
(i) the Company shall give notice to the Trustee, the Paying Agent,
if different than the Trustee, the Calculation Agent and the Holders of
the 6.20% ING Perpetual Debt Securities as provided in Section 4.02
hereof;
(ii) on or prior to the eleventh business day prior to the relevant
Interest Payment Date or Deferred Interest Satisfaction Date, the
Calculation Agent shall, pursuant to the Calculation Agency Agreement,
calculate the number of Payment Ordinary Shares that have an aggregate
market value (converted from euros into U.S. dollars) of not less than
110% of the relevant Payment and shall notify the Trustee and the Company
accordingly of such number of Payment Ordinary Shares to be issued;
(iii) on or prior to the eleventh business day prior to the relevant
Interest Payment Date or Deferred Interest Satisfaction Date, the
Calculation Agent shall, pursuant to the Calculation Agency Agreement,
calculate the number of Associated Cost Ordinary Shares required to be
issued by the Company as, on sale, produce a net amount (converted, where
necessary, into euros) of not less than the Associated Costs and shall
notify the Trustee and the Company of such number of Associated Cost
Ordinary Shares to be issued;
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(iv) by the close of business on or before the seventh business day
prior to the relevant Interest Payment Date or Deferred Interest
Satisfaction Date, the Company shall notify the Calculation Agent that it
has a sufficient number of Ordinary Shares and corporate authorization to
issue such number of Payment Ordinary Shares and Associated Cost Ordinary
Shares as shall have been notified to the Trustee and the Company by the
Calculation Agent in accordance with Sections 4.03(c)(ii) and 4.03(c)(iii)
above;
(v) the Calculation Agent will use reasonable efforts on normal
market terms to procure purchasers for such Ordinary Shares as soon as
reasonably practicable following receipt of the notice referred to in
clause (iv) above, in accordance with the terms of the Calculation Agency
Agreement, but no later than the fourth business day prior to the relevant
Interest Payment Date or Deferred Interest Satisfaction Date;
(vi) one business day prior to the relevant Interest Payment Date or
Deferred Interest Satisfaction Date, the Company will issue or transfer
such Payment Ordinary Shares and Associated Cost Ordinary Shares in the
open market as instructed by the Calculation Agent, and will collect any
sales proceeds;
(vii) upon receipt of the sales proceeds, the Company shall
immediately transfer the sales proceeds (or such amount of sales proceeds
as is necessary to make the relevant Payment in full (after conversion
from euros into U.S. dollars as necessary)) to the Trustee or its agent
who shall convert any proceeds received in a currency other than U.S.
dollars into U.S. dollars;
(viii) the Trustee will apply the sales proceeds received from the
Company (as converted, if applicable) on the day the relevant Payment is
due, towards the Payment to be satisfied;
(ix) if, following the procedures set forth in Sections 4.03(c)(i)
to 4.03(c)(viii) above, there is a shortfall in the proceeds necessary to
satisfy the relevant Payment that is due or to pay the Associated Costs,
the Calculation Agent, pursuant to its obligations under the Calculation
Agency Agreement, shall promptly notify the Trustee, the Paying Agent, if
different than the Trustee, and the Company, and the Calculation Agent,
the Trustee, the Paying Agent and the Company shall then take such steps
as are reasonably necessary to ensure, so far as practicable, that through
issuing and selling additional Payment Ordinary Shares or Associated Cost
Ordinary Shares in accordance with Sections 4.03(c)(i) to 4.03(c)(viii)
21
above, proceeds from the additional sales together with the proceeds
referred to in Section 4.03(c)(vi) above are at least equal to,
respectively, the relevant Payment and any Associated Costs, such that the
Payment and any Associated Costs may be satisfied in full on the relevant
Interest Payment Date or Deferred Interest Satisfaction Date; provided
that for such purpose, Sections 4.03(c)(i) to 4.03(c)(viii) above shall be
modified as follows:
(A) references therein to "Payment" shall be deemed to be
references to the amount by which the aggregate sum then paid to the
Trustee by the Company in respect of the relevant Payment pursuant
to the provisions of this Section 4.03 is less than the full amount
due (the "PAYMENT SHORTFALL");
(B) references therein to "Associated Costs" shall be deemed
to be references to the aggregate of (a) the amount by which the sum
received by the Company in respect of Associated Costs is less than
the Associated Costs and (b) the Associated Costs determined in
accordance with the Calculation Agency Agreement but by reference to
the numbers of additional Ordinary Shares required to be issued in
order to satisfy the Shortfall (such aggregate being the "COSTS
SHORTFALL"); and
(C) all matters required to be done by a stated time shall be
done as soon as practicable.
For the purposes of this Section 4.03(c)(ix), "SHORTFALL" means the
aggregate of the Payment Shortfall and the Costs Shortfall;
(x) if the aggregate amounts paid to the Paying Agent are less than
the amount necessary to satisfy any Payment, after the Trustee receives
any Shortfall amounts it will pay such amounts to the Paying Agent for
payment to the Holders;
(xi) if, despite these provisions, such a Shortfall still exists on
the relevant Interest Payment Date or Deferred Interest Satisfaction Date,
the Company may, in accordance with the provisions of this Indenture,
either pay an amount equal to such Shortfall as soon as practicable to the
Trustee or continue to issue Payment Ordinary Shares or Associated Cost
Ordinary Shares, as the case may be, until the Trustee has received funds
equal to the full amount of such Shortfall. The Company shall be obligated
to issue additional Ordinary Shares to cover any Shortfall unless it
satisfies the Shortfall by making a direct payment to the Trustee; and
22
(xii) if, pursuant to the Alternative Interest Satisfaction
Mechanism, proceeds are raised in excess of the amount required to pay the
applicable Payments plus the Associated Costs in connection with using the
Alternative Interest Satisfaction Mechanism, any remaining proceeds shall
be retained by the Company.
SECTION 4.04. Insufficient Payment Ordinary Shares. (a) (i) If the Company
is to satisfy a Payment pursuant to the Alternative Interest Satisfaction
Mechanism and it does not, on the date when the number of Payment Ordinary
Shares required to be issued is determined, have a sufficient number of Ordinary
Shares available for issue, it shall notify the Trustee, the Calculation Agent
and the Holders that all or part, as the case may be, of the relevant Payment
cannot be satisfied due to an insufficient number of authorized Ordinary Shares.
(ii) Upon the occurrence of the circumstances contemplated in
Section 4.04(a)(i), the Payment or part thereof shall be satisfied
following the date of the Company's next annual general meeting or
extraordinary general meeting of its shareholders at which a resolution is
passed authorizing a sufficient number of Ordinary Shares to be made
available to satisfy all or such part of the relevant Payment.
(iii) However, if the number of Ordinary Shares authorized to be
issued at any such meeting contemplated in Section 4.04(a)(ii) above is
insufficient to satisfy all or such part of the relevant Payment, then
those Ordinary Shares so issued will be applied by the Company in partial
satisfaction of all or such part of the Relevant Payment.
(b) Following the passage of a resolution which authorizes the Company to
issue additional Ordinary Shares for this purpose:
(i) the Company shall give notice to the Trustee at least 16
Business Days prior to the date upon which the relevant Payment or, as the
case may be, the part thereof is to be made and the Trustee shall provide
notice to the Company and the Calculation Agent of the amount of the
Accrued Interest Payments (together with Additional Interest), if any,
payable in connection with such Payment; and
(ii) the Company shall provide at least 16 Business Days notice in
accordance with Section 106 of the Subordinated Indenture to the
Calculation Agent and the Holders of the date upon which the relevant
Payment or, as the case may be, the part thereof is to be made, which
notice shall include the amount of the Accrued Interest Payments (together
with Additional Interest), if any, payable in connection with such
Payment, as calculated by the Trustee.
23
(c) The relevant Payment or, as the case may be, the part thereof which is
not so satisfied will, unless it is a Required Deferred Interest Payment and has
not been subsequently either satisfied or deferred pursuant to an Elective
Deferral Interest Payment, will continue to accrue Interest at the Deferral
Interest Rate from (and including) the date on which Payment would otherwise
have been due to (but excluding) the date on which such Payment or part thereof
is satisfied or, in the event of a Market Disruption Event, the date on which
such payment or part thereof, would, but for the occurrence of such Market
Disruption Event, have been satisfied (from which date Interest (if any) will
accrue on such Payment as provided below).
(d) If the Company does not have a sufficient number of Ordinary Shares
and does not hold an annual general meeting within six months of giving the
notice set forth in Section 4.03(c)(i) above, at which a resolution to make a
sufficient number of Ordinary Shares available is proposed, the Trustee will by
notice require the Company to convene an extraordinary general meeting at which
such a resolution will be proposed on a date falling within 10 weeks of such
notice from the Trustee.
(e) In the event that a resolution to make a sufficient number of Ordinary
Shares available is proposed at any such annual general meeting or extraordinary
general meeting is rejected, the resolution will be proposed at each general
annual meeting or any extraordinary general meeting thereafter until such time
as the resolution has been passed by the Company's shareholders.
SECTION 4.05. Market Disruption Event. (a) If a Market Disruption Event
exists on or after the 15th Business Day preceding any date upon which a Payment
or part thereof is due to be made or satisfied pursuant to the Alternative
Interest Satisfaction Mechanism, the Company may give notice to the Trustee, the
Paying Agent, the Calculation Agent and the Holders as soon as possible after
the Market Disruption Event has arisen or occurred, whereupon the relevant
Payment will be deferred until such time as, in the opinion of the Company, the
Market Disruption Event no longer exists.
(b) Any such deferred Payment or part thereof will be satisfied as soon as
practicable after the Market Disruption Event no longer exists. The Company
shall notify the Trustee of the date on which such deferred Payment or part
thereof will be satisfied and the Trustee shall provide notice to the Company
and the Calculation Agent of the amount of the Accrued Interest Payments
(together with Additional Interest), if any, payable in connection with such
deferred Payment. The Company shall then notify the Paying Agent, the
Calculation Agent and the Holders in accordance with Section 106 of the
Subordinated Indenture of the date on which such deferred Payment or part
thereof will be satisfied and the amount
24
of the Accrued Interest Payments (together with Additional Interest), if any,
payable in connection with such deferred Payment, as calculated by the Trustee.
(c) Interest will not accrue on any deferred Payment or part thereof
during a Market Disruption Event; provided, however, that if the Company does
not make a relevant payment or part thereof for a period of 14 days or more
after its due date, even if the Market Disruption Event is continuing, such
deferred Payments or part thereof will accrue Interest from (and including) the
date on which the relevant Payment or part thereof was due to be made to (but
excluding) the date on which such Payment or part thereof is made. Any such
Interest shall accrue at the Fixed Interest Rate and shall be satisfied only in
accordance with the Alternative Interest Satisfaction Mechanism and as soon as
reasonably practicable after the relevant deferred Payment is made. No liability
shall attach to the Trustee or its agents if, as a result of a Market Disruption
Event or any other event outside the control of the Trustee or any such agent,
the Trustee or any such agent is unable to comply with its duties in connection
with any payment made pursuant to the Alternative Interest Satisfaction
Mechanism.
ARTICLE 5
REMEDIES
SECTION 5.01. Defaults; Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) "PAYMENT DEFAULT", wherever used herein with respect to the 6.20% ING
Perpetual Debt Securities, means solely the following event (regardless of the
reason for such Payment Default and whether it is voluntary, involuntary or is
effected by operation of law pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
The Company fails to pay or set aside for payment the amount due to
satisfy any Payment on the 6.20% ING Perpetual Debt Securities when due, and
such failure continues for 14 days; provided, however, that if the Company fails
to make any Mandatory Interest Payment as a result of failure to satisfy the
Solvency Conditions, or due to a deferral of an Interest Payment as permitted
under the terms of this Indenture, that payment will constitute an Outstanding
Payment and will accumulate with any other Outstanding Payments until paid, but
will not constitute a Payment Default.
(b) If a Payment Default occurs and is continuing, the Trustee may pursue
all legal remedies available to it, including commencing a judicial proceeding
for the collection of the sums so due and unpaid or a bankruptcy
25
proceeding in The Netherlands (but not elsewhere) of the Company, but the
Trustee may not declare the principal amount of any outstanding 6.20% ING
Perpetual Debt Securities to be due and payable. If the Company fails to make
payment and the Solvency Conditions are not satisfied at the end of the 14-day
period set forth in Section 5.01(a) hereof, such failure does not constitute a
Payment Default but instead constitutes a "PAYMENT EVENT". On a Payment Event,
the Trustee may institute bankruptcy proceedings against the Company exclusively
in The Netherlands, but may not pursue any other legal remedy, including a
judicial proceeding for the collection of the sums due and unpaid.
(c) Notwithstanding the foregoing, Holders of the 6.20% ING Perpetual Debt
Securities have the absolute and unconditional right to institute suit for the
enforcement of any payment when due and such right may not be impaired without
the consent of the Holder as provided in Section 508 of the Subordinated
Indenture. In addition, to the extent the Trustee is not permitted to pursue the
remedies provided for in clause 5.01(b) above as a matter of Dutch law, the
Holders of the 6.20% ING Perpetual Debt Securities may pursue such remedies in
accordance with the terms of the Subordinated Indenture.
(d) Without prejudice to Section 5.04 and Section 5.05 of the Subordinated
Indenture, the Trustee is and shall be fully authorized by each and any holder
of record of a 6.20% ING Perpetual Debt Security to commence proceedings in The
Netherlands in accordance with Section 5.01(a) and 5.01(b) above, in the name
and on behalf of such holder, as if the Trustee were such holder of record, with
a view to having the Company declared bankrupt in The Netherlands.
(e) The provisions of this Section 5.01 replace Sections 501, 502 and 503
of the Subordinated Indenture in their entirety which is hereby amended and
restated in its entirety by this Section 5.01.
ARTICLE 6
COVENANTS OF THE ISSUER
SECTION 6.01. Dividend Restrictions for Deferred Interest Payments. From
the date the Company delivers a Deferral Notice until any Deferred Interest
Payment is paid in full on the 6.20% ING Perpetual Debt Securities, the Company
agrees that it will not recommend to its shareholders, and to the fullest extent
permitted by applicable law will otherwise act to prevent, any action that would
constitute a Mandatory Payment Event or Mandatory Partial Payment Event.
26
SECTION 6.02. Calculation Agent. (a) For so long as any 6.20% ING
Perpetual Debt Securities remain outstanding, there shall at all times be a
Calculation Agent hereunder. The current Calculation Agent is set forth in
Article 1 hereof. If the Calculation Agent is unable or unwilling to act as
such, or if it fails to make a determination, calculation or otherwise fails to
perform its duties under the Indenture or the Calculation Agency Agreement, the
Company shall appoint an independent investment bank acceptable to the Trustee
to act as such in its place. Neither the termination of the appointment of the
Calculation Agent nor the resignation of the Calculation Agent will be effective
without a successor having been appointed.
(b) All calculations and determinations made by the Calculation Agent with
respect to the 6.20% ING Perpetual Debt Securities (absent manifest error) are
final and binding on the Company, the Trustee, the Paying Agent and the Holders.
(c) Neither the Company nor the Trustee have any responsibility to anyone
for any errors or omissions in any calculation by the Calculation Agent.
SECTION 6.03. Mandatory Interest Payments. Subject to satisfaction of the
Solvency Conditions, the Company agrees that it will not defer any Payment on
the 6.20% ING Perpetual Debt Securities on the Interest Payment Date falling on
a Mandatory Interest Payment Date.
SECTION 6.04. Deferral of Certain Payments. The Company agrees that if
Payments stated to be payable on any date have not been made on the Company's
preference shares or any other Parity Securities, then it will defer Payments on
the 6.20% ING Perpetual Debt Securities payable on such date, unless a Mandatory
Interest Payment is due.
SECTION 6.05. Sufficiency of Ordinary Shares.
(a) The Company represents and warrants that at the date of this Third
Supplemental Indenture, the Company has a sufficient number of authorized but
unissued Ordinary Shares necessary, and, subject to the approval of the
Company's Supervisory Board, the Company's Executive Board has the necessary
authority to make, during the next 12-month period, (i) the Interest Payments
required to be made on the 6.20% ING Perpetual Debt Securities and (ii) the
interest payments required to be made on the Parity Perpetual Securities (each,
a "PARITY INTEREST PAYMENT"), assuming the Alternative Interest Satisfaction
Mechanism or, in the case of the Parity Perpetual Securities, any similar
mechanism by which Parity Interest Payments may be satisfied pursuant to a sale
of the Company's Ordinary Shares, is used for each Interest Payment and Parity
Interest Payment during such 12-month period.
27
(b) The Company agrees to keep available for issue a sufficient number of
authorized but unissued Ordinary Shares as it reasonably considers would be
required to be issued as Payment Ordinary Shares in connection with the next
four Interest Payments. Should the Company fail to comply with this condition,
no damages shall be payable in connection with such failure. The Trustee may
require that the Company, as soon as practicable, hold an extraordinary general
meeting of its shareholders at which a resolution will be passed to remedy such
failure as provided in Section 4.04(d) hereof.
(c) The Trustee is not obligated to monitor whether the Company has a
sufficient number of unissued Ordinary Shares available for issuance as Payment
Ordinary Shares and the Trustee is entitled to assume, unless it has actual
knowledge to the contrary, that the Company is complying with its obligations to
do so.
SECTION 6.06. Ranking. The Company agrees that, for so long as any 6.20%
ING Perpetual Debt Securities remain outstanding, it will not issue any
preference shares (or other securities which are akin to preference shares as
regards distributions on a return of Assets or upon a liquidation, moratorium of
payments or bankruptcy of the Company or in respect of distributions or payments
of dividends and/or any other amounts thereunder by the Company) or give any
guarantee or contractual support arrangement in respect of any of its preference
shares or such other securities or in respect of any other entity if such
preference shares, preferred securities, guarantees or contractual support
arrangements would rank (as regards distributions on a return of Assets or on a
liquidation, moratorium of payments or bankruptcy of the Company or in respect
of distributions of payments of dividends and/or any other amounts thereunder by
the Company) senior to the 6.20% ING Perpetual Debt Securities, unless the
Company amends the terms of the 6.20% ING Perpetual Debt Securities such that
the 6.20% ING Perpetual Debt Securities rank pari passu effectively from a
financial point of view with any such preference shares, such other securities
akin to preference shares or such guarantee or support undertaking.
SECTION 6.07. Payment of Proceeds from Sale of Payment Ordinary Shares and
Associated Cost Ordinary Shares. The Company agrees that immediately on receipt
of the proceeds of the sale of Payment Ordinary Shares or Associated Cost
Ordinary Shares in connection with the Alternative Interest Satisfaction
Mechanism, it shall (a) pay proceeds from the sale of Payment Ordinary Shares to
the Trustee (or any Paying Agent), either in Euros or converted into U.S.
dollars, in such amount as shall enable the Trustee to make the relevant Payment
in full on the relevant Interest Payment Date or Deferred Interest Satisfaction
Date, and (b) pay proceeds from the sale of Associated Cost Ordinary Shares in
Payment of all Associated Costs.
28
SECTION 6.08. Listing. The Company will use reasonable efforts to maintain
the listing of the 6.20% ING Perpetual Debt Securities on the stock exchange on
which they were listed on or about the Issue Date or, if it is unable to do so
having used such efforts or if the maintenance of any such listing is agreed by
the Trustee to be unduly burdensome, use all reasonable efforts to obtain and
maintain a quotation or listing of such 6.20% ING Perpetual Debt Securities on
such other stock exchange or exchanges or securities market or markets as the
Company may (with the prior written approval of the Trustee) decide so that the
6.20% ING Perpetual Debt Securities are listed on at least one stock exchange or
securities market. The Company will also use its best efforts to furnish to any
stock exchange(s) or securities market(s) such information as such stock
exchange(s) or securities market(s) may require to be furnished in accordance
with its requirements.
SECTION 6.09. Calculation Agency Agreement. The Company shall comply with
and perform all its obligations under the Calculation Agency Agreement and use
its reasonable efforts to procure that the Calculation Agent complies with and
performs all of its respective obligations under the Calculation Agency
Agreement and not make any amendment or modification to such agreement without
the prior written approval of the Trustee.
SECTION 6.10. Officer's Certificate on Deferral. If the Company elects or
is obliged to defer any Payment in accordance with Section 2.04 hereof, it shall
deliver to the Trustee, no later than the sixteenth business day prior to the
relevant Interest Payment Date, an Officer's Certificate, certifying that the
Required Deferral Condition was met on the 20th Business Day prior to the
relevant Interest Payment Date and if the Company shall elect to satisfy a
Deferred Interest Payment on an earlier date than the Interest Payment Date
following that on which the Required Deferral Condition fails to be met, deliver
to the Trustee not later than the sixteenth Business Day prior to making such
payment an Officer's Certificate certifying that the Required Deferral Condition
was no longer, on a date no more than 16 Business Days prior to the delivery of
such certificate, met.
SECTION 6.11. Officer's Certificate for Market Disruption Event. If, in
the opinion of the Company, there exists a Market Disruption Event as a
consequence of which a Payment may be deferred under Section 4.05 hereof, it
shall deliver to the Trustee within two Business Days of such Market Disruption
Event having arisen or the Company having become aware of the same, an Officer's
Certificate specifying the details of such Market Disruption Event.
29
ARTICLE 7
SUBORDINATION
SECTION 7.01. Agreement to Subordinate. (a) The Company covenants and
agrees, and each Holder of 6.20% ING Perpetual Debt Securities issued hereunder,
by such Holder's acceptance thereof, likewise covenants and agrees, that the
6.20% ING Perpetual Debt Securities issued hereunder (i)(A) shall rank pari
passu with respect to each other, (B) shall be similarly subordinated as, and
accordingly rank pari passu with, the Trust Preferred Securities Guarantees and
(C) shall rank pari passu with other Parity Guarantees, the Parity Perpetual
Securities and other debt obligations expressed to be similarly subordinated as
and, accordingly, ranking pari passu with, the 6.20% ING Perpetual Debt
Securities, such other Parity Guarantees and the Parity Perpetual Securities,
and (ii) are and will be subordinated ("achtergesteld"), and accordingly be
subject in right of payment to prior payment in full upon liquidation,
moratorium of payments or bankruptcy of the Company, of all Senior Debt.
(b) The Company further covenants and agrees, and each Holder of 6.20% ING
Perpetual Debt Securities issued hereunder, by such Holder's acceptance thereof,
likewise covenants and agrees, that the rights regarding payments and the
issuance of Ordinary Shares in accordance with the Alternative Interest
Satisfaction Mechanism will be subject to the Solvency Conditions. In the event
of liquidation, moratorium of payments or bankruptcy of the Company, the
Payments payable on the 6.20% ING Perpetual Debt Securities shall be an amount
equal to the lesser of (i) the aggregate amount of Payments pursuant to the
terms and conditions of the 6.20% ING Perpetual Debt Securities without giving
effect to this Section 7.01(b) and (ii) an amount equal to (A) the remaining
assets of the Company after satisfaction of all claims which, as a matter of
law, are prior to those of holders of 6.20% ING Perpetual Debt Securities or any
Parity Security, Parity Guarantee or any similarly subordinated debt multiplied
by (B) a fraction, (x) the numerator of which is the aggregate amount of
Payments due on the 6.20% ING Perpetual Debt Securities pursuant to the terms
and conditions thereof without giving effect to this Section 7.01(b) and (y) the
denominator of which is the sum (without duplication) of the aggregate amount of
all claims under the 6.20% ING Perpetual Debt Securities, the aggregate
liquidation preference of, and aggregate amount of all claims under, any
outstanding Parity Securities and Parity Guarantees and similarly subordinated
debt obligations with a formula or arrangement substantially similar to this
Section 7.01(b), without application of this Section 7.01(b) and the
corresponding similar formula or arrangement.
SECTION 7.02. Section 1401 of the Subordinated Indenture. The provisions
of Section 7.01 hereof replace in their entirety Section 1401 of the
Subordinated Indenture which is hereby amended and restated in its entirety by
Section 7.01 hereof. In addition Section 1402 through Section 1414 of Article
30
Fourteen of the Subordinated Indenture is hereby amended by replacing the term
"Senior Debt" as used in such sections with the term "Senior Debt" as defined in
this Third Supplemental Indenture.
ARTICLE 8
FORM OF 6.20% ING PERPETUAL DEBT SECURITIES
SECTION 8.01. Form of 6.20% ING Perpetual Debt Securities. The 6.20% ING
Perpetual Debt Securities shall be substantially in the form of Exhibit A
hereto. Exhibit A hereto is hereby incorporated into and expressly made a part
of this Third Supplemental Indenture.
ARTICLE 9
ORIGINAL ISSUE OF 6.20% ING PERPETUAL DEBT SECURITIES
SECTION 9.01. Original Issue of 6.20% ING Perpetual Debt Securities. 6.20%
ING Perpetual Debt Securities in the initial aggregate principal amount of
$500,000,000 may, upon execution of this Third Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver such 6.20% ING Perpetual Debt
Securities to or upon the written order of the Company, in accordance with
Section 303 of the Subordinated Indenture.
There is no limit on the amount of 6.20% ING Perpetual Debt Securities
which may be issued subsequent to this Third Supplemental Indenture.
ARTICLE 10
WINDING UP
SECTION 10.01. Winding Up. If any action causes the Company's liquidation
(except solely for the purpose of the Company's reconstruction, amalgamation or
the substitution of a successor in business for the Company, the terms of which
have previously been approved in writing by the Trustee or by not less than a
majority of the Holders) the Company will pay with respect to each 6.20% ING
Perpetual Debt Security (in lieu of any other payment) an amount that would have
been payable in respect of the 6.20% ING Perpetual Debt Securities if, on and
after the day immediately before the winding up began, any Holder of
31
those 6.20% ING Perpetual Debt Securities had been the holder of the Company's
most senior class of preference shares (the "NOTIONAL PREFERENCE SHARES") which
have a preferential right to a return of Assets upon liquidation over and so
rank ahead of the holders of all other classes of the Company's issued shares
for the time being in the Company's capital, but ranking junior to Senior Debt
claims. Any such payment shall be made on the assumption that the amount that
such Holder was entitled to receive in respect of each Notional Preference Share
on a return of Assets upon such liquidation was an amount equal to the principal
amount of $25.00 of the relevant 6.20% ING Perpetual Debt Security and any other
Outstanding Payments together with, and to the extent not otherwise included
within the foregoing, the pro rata share of any Winding-Up Claims attributable
to the 6.20% ING Perpetual Debt Security.
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge. The Company covenants and
agrees, and each Holder of 6.20% ING Perpetual Debt Securities issued hereunder,
by such Holder's acceptance thereof, likewise covenants and agrees, that all
6.20% ING Perpetual Debt Securities shall be issued as Securities subject to the
provisions of Article 4 of the Subordinated Indenture.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Issuance of Definitive Securities. (a) So long as DTC holds
the global 6.20% ING Perpetual Debt Securities, the global securities will not
be exchangeable for definitive securities unless: (i) DTC notifies the Trustee
that it is unwilling or unable to continue to hold the book-entry 6.20% ING
Perpetual Debt Securities or DTC ceases to be a clearing agency registered under
the Exchange Act and the Trustee does not appoint a successor to DTC which is
registered under the Exchange Act within 120 days; (ii) a Payment Default has
occurred and is continuing; (iii) a Payment Event has occurred; (iv) in the
event of the Company's winding up it fails to make a payment on the 6.20% ING
Perpetual Debt Securities when due; or (v) at any time following a determination
by the Company in its sole discretion that the global securities of a particular
series should be exchanged for definitive debt securities of that series in
registered form.
(b) Each person having an ownership or other interest in 6.20% ING
Perpetual Debt Securities must rely exclusively on the rules and procedures of
DTC, Euroclear or Clearstream, Luxembourg, as the case may be, or any other
32
securities intermediary through which that person holds its interest to receive
or direct the delivery of possession of any definitive security.
(c) Any definitive securities will be issued in registered form only in
denominations of $25.00 and any integral multiples thereof and shall be
substantially in the form of the global security included as Exhibit A hereto
with such insertions, omissions, substitutions and other variations as
appropriate for definitive securities as evidenced by the execution of such
securities. To the extent permitted by law, the Company and the Trustee are
entitled to treat the person in whose name any definitive security is registered
as its absolute owner.
(d) Payments in respect of each series of definitive securities will be
made to the person in whose name the definitive securities are registered as it
appears in the register for that series. Payments will be made in respect of the
6.20% ING Perpetual Debt Securities by check drawn on a bank in New York or, if
the Holder requests, by transfer to the Holder's account in New York. Definitive
securities must be presented to the Paying Agent for redemption.
(e) If the Company issues definitive securities in exchange for global
6.20% ING Perpetual Debt Securities, DTC, as holder of the global 6.20% ING
Perpetual Debt Securities, will surrender it against receipt of the definitive
securities, cancel the book-entry securities of that series and distribute the
definitive securities of that series to the person in the amounts that DTC
specifies.
(f) If definitive securities are issued in the limited circumstances as
set forth above, such securities may be transferred in whole or in part in
denominations of any whole number of securities upon surrender of the definitive
securities certificates together with the form of transfer endorsed on it, duly
completed and executed at the specified office of the trustee. If only part of a
securities certificate is transferred, a new securities certificate representing
the balance not transferred will be issued to the transferor.
SECTION 12.02. Ratification of Subordinated Indenture; Third Supplemental
Indenture Controls. The Subordinated Indenture, as supplemented by this Third
Supplemental Indenture, is in all respects ratified and confirmed. This Third
Supplemental Indenture shall be deemed part of the Subordinated Indenture in the
manner and to the extent herein and therein provided. The provisions of this
Third Supplemental Indenture shall supersede the provisions of the Subordinated
Indenture to the extent the Subordinated Indenture is inconsistent herewith.
SECTION 12.03. Trustee Not Responsible for Recitals. The recitals herein
contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the accuracy thereof. The Trustee makes no
33
representation as to the validity or sufficiency of this Third Supplemental
Indenture or the 6.20% ING Perpetual Debt Securities. The Trustee shall not be
accountable for the use or application by the Company of the 6.20% ING Perpetual
Debt Securities or the proceeds thereof.
SECTION 12.04. Governing Law. This Third Supplemental Indenture and each
6.20% ING Perpetual Debt Security shall be governed by and construed in
accordance with the laws of the State of New York, except for Article 7, which
shall be governed by and construed in accordance with the laws of The
Netherlands.
SECTION 12.05. Severability. If any provision in the Subordinated
Indenture, this Third Supplemental Indenture or in the 6.20% ING Perpetual Debt
Securities is determined to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 12.06. Counterparts. The parties may sign any number of copies of
this Third Supplemental Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. Any signed copy shall be
sufficient proof of this Third Supplemental Indenture.
34
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed as of the day and year first above written.
ING GROEP N.V.
as Issuer
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee and
Paying Agent
By:
-----------------------------------------
Name:
Title:
EXHIBIT A
FORM OF 6.20% ING Perpetual Debt Securities
A-1
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
The rights of the Holders of the Securities are, to the extent and in the manner
set forth in Section 1401 of the Subordinated Indenture and Article 7 of the
Third Supplemental Indenture, subordinated to Senior Debt, and this Security is
issued subject to the provisions of Article 14 of the Subordinated Indenture and
Article 7 of the Third Supplemental Indenture, and the Holder of this Security,
by accepting the same, agrees to and shall be bound by such provisions. The
terms of this paragraph are governed by, and shall be construed in accordance
with, the laws of The Netherlands.
ING Groep N.V.
6.20% ING PERPETUAL DEBT SECURITIES (THE "SECURITIES")
No. 1
CUSIP No.: 456837 40 0 $500,000,000
ISIN No.: US4568374007
COMMON CODE: 017924826
ING Groep N.V., a holding company duly organized and existing under the
laws of The Netherlands, having its corporate seat in Amsterdam, The Netherlands
(herein called the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to CEDE & Co., or registered assigns, the principal sum of Five Hundred Million
Dollars ($500,000,000) (but only at such times as set forth in the Indenture
with respect to Optional Redemption and Redemption Upon Certain Events in
Article 3 of the Third Supplemental Indenture) and to pay interest thereon from
October 28, 2003 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, quarterly in arrears on January 15, April
15, July 15 and October 15 in each year, commencing on January 15, 2004, and at
such other times as are set forth in the Indenture at the rate of 6.20% per
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the January 1, April 1, July 1 or October 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. If interest is
required to be calculated for any period less than a year, it will be calculated
based on a 360-day year consisting of twelve 30-day months. If any Interest
Payment Date would otherwise fall on a day that is not a Business Day, it shall
be postponed to the next day which is a Business Day (without any interest or
other payment in respect of the delay).
Subject to the immediately following paragraph, if applicable, any Payment
on this Security which is payable, and is paid or duly provided for, on any
Interest Payment Date or on any date on which the Company makes any Payment
(including any payment of Additional Amounts in accordance with Section 1006 of
the Subordinated Indenture) shall be paid in U.S. dollars to the registered
Holder, including through a Paying Agent by wire-transfer of same-day funds to
the
Holder or, at the option of the Company, by check mailed to the address of the
Holder as it appears in the Company's Security Register. For so long as this
Security is held in global form, all payments shall be made in U.S. dollars by
wire-transfer of same-day funds.
The Company shall under certain circumstances, and in accordance with the
Indenture, defer payments of interest on this Security. Any interest on this
Security which is not paid or duly provided for on any applicable Interest
Payment Date, together with any other payments in respect of this Security not
paid on any date on which such Payment has become due and payable or would have
become due and payable except that payment is not made as permitted by the
Indenture, so long as the same remains unpaid, shall constitute "Outstanding
Payments." Outstanding Payments will accumulate until paid. Outstanding Payments
on this Security, when paid, as provided subject to the conditions in the
Indenture, will be paid on the Deferred Interest Satisfaction Date to the Holder
in whose name this Security is registered at the close of business on a Special
Record Date for the Payment due on such Deferred Interest Satisfaction Date to
be fixed by the Trustee, notice of which shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which this Security may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
Outstanding Payments, other than Accrued Interest Payments, shall not bear
interest. Accrued Interest Payments will accrue interest at the Fixed Interest
Rate. The amount of interest so accrued in respect of any Accrued Interest
Payments will be satisfied as and when the Outstanding Payments are satisfied in
accordance herewith. The amount of additional interest payable with respect to
any Accrued Interest Payments will be calculated by the Trustee in accordance
with the provisions of the Indenture.
Except in the case of a Mandatory Payment Event or a Mandatory Partial
Payment Event, the Company may satisfy any Elective Deferral Interest Payment at
any time on not less than 16 Business Days' notice to the Trustee, the
Calculation Agent and Holders in accordance with the Indenture, and any Required
Deferral Interest Payment shall be satisfied on the relevant Deferred Interest
Satisfaction Date, by giving not less than 16 Business Days' notice to the
Trustee, the Calculation Agent and Holders, if the Required Deferral Condition
is no longer met on the 20th Business Day preceding any subsequent Interest
Payment Date, provided that the Company has not previously paid such amount and
does not validly elect to defer such payment as an Elective Deferral Interest
Payment.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
ING Groep N.V.
By:
-----------------------
Name:
Title:
By:
-----------------------
Name:
Title:
Attest:
-----------------------
This is one of the Securities of the series designated herein and referred to in
the Indenture.
Dated: October 28, 2003
The Bank of New York,
As Trustee
By
-----------------------
Authorized Signatory
[Reverse of Security]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under a Subordinated Debt Indenture, dated as of July 18, 2002 (herein
called the "Subordinated Indenture"), and a Third Supplemental Indenture, dated
as of October 28, 2003 (herein called the "Third Supplemental Indenture" and
together with the Subordinated Indenture, the "Indenture"), between the Company
and The Bank of New York, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the terms of the Securities and the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the holders of Senior Debt and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities are subject to all such terms. This
Security is one of the series designated on the face hereof and there is no
limitation on the amount of Securities of such series which may be issued.
Except in a bankruptcy, all payments on this Security will be conditional
upon not triggering the Required Deferral Condition. The "Required Deferral
Condition" will be met if the Company determines that the Solvency Conditions
(i) are not satisfied on the Relevant Date, or (ii) will not be satisfied
following the relevant Payment. The "Solvency Conditions" are satisfied where
(i) the Company is able to make payments on its Senior Debt as such payments
become due, and (ii) the Company's Assets exceed the sum of its Liabilities
(excluding Liabilities not considered Senior Debt). The amount payable in
respect of the principal of this Security will be determined in accordance with
the provisions of Article 14 of the Subordinated Indenture and Articles 7 and 10
of the Third Supplemental Indenture.
The Securities will constitute direct, unsecured subordinated obligations
of the Company, subject to the Solvency Conditions, and the subordination
provisions described herein and in the Indenture, and will rank pari passu
without any preference among themselves.
If the Company fails to pay or set aside for payment the amount due to
satisfy any Payment on the Securities when due and such failure continues for 14
days, it will constitute a "Payment Default" ( provided, however, that if the
Company fails to make any Mandatory Interest Payment as a result of failure to
satisfy the Solvency Conditions, or due to a deferral of an Interest Payment as
permitted under the terms of the Indenture, that payment will constitute an
Outstanding Payment and will accumulate with any other Outstanding Payments
until paid, but will not constitute a Payment Default). If any Payment Default
occurs and is continuing, the Trustee may pursue all legal remedies available to
it, including commencing a judicial proceeding for the collection of the sums
due and unpaid or a bankruptcy proceeding in The Netherlands (but not elsewhere)
of the Company, but the Trustee may not declare the principal amount of any
outstanding Securities to be due and payable. If the Company fails to make
payment when due, and such failure continues for 14 days, and the Solvency
Conditions are not satisfied at the end of such 14-day period, such failure does
not constitute a Payment Default but instead constitutes a "Payment Event." On a
Payment Event, the Trustee may institute bankruptcy proceedings exclusively in
The Netherlands, but may not pursue any other legal remedy, including a judicial
proceeding for the collection of the sums due and unpaid. To the extent the
Trustee is not permitted to pursue the remedies provided for herein as a matter
of Dutch law, the Holders of the Securities may pursue such remedies in
accordance with the terms of the Subordinated Indenture. Notwithstanding the
foregoing, Holders of this Security have the absolute and unconditional right to
institute suit for the enforcement of any payment when
due and such right may not be impaired without the consent of the Holder as
provided in Section 508 of the Subordinated Indenture.
Payments under the Securities will be made without withholding or
deduction for or on account of any present or future tax, duty, assessment or
governmental charge imposed by the government of The Netherlands upon or as a
result of such payments, or the government of a jurisdiction in which a
successor to the Company is organized (or any political subdivision or taxing
authority thereof or therein) (a "Relevant Jurisdiction") ("Taxes"), unless
required by law. To the extent any such Taxes are so levied or imposed, the
Company will, subject to the exceptions and limitations set forth in Section
1006 of the Indenture, pay such additional amounts ("Additional Amounts") to the
Holder of any Security who is not a resident of a Relevant Jurisdiction as may
be necessary in order that the net payment of the principal of and interest on
such Security and any other amounts payable on such Security, after withholding
for or on account of such Taxes imposed upon or as a result of such payment,
will not be less than the amount provided for in such Security to be then due
and payable.
Except as provided below, the Securities are not redeemable at the option
of the Company prior to January 15, 2009.
The Securities may be redeemed in whole (but not in part), at the option
of the Company and without the consent of the Holders or the Trustee, at a
redemption price equal to their aggregate principal amount, together with any
Outstanding Payments accrued to and including the date fixed for redemption,
subject to the Solvency Condition: (i) on January 15, 2009, or any Interest
Payment Date thereafter; (ii) upon the occurrence of a Tax Event, provided that
the Company has already delivered to the Trustee a written legal opinion in a
form satisfactory to the Trustee of independent Dutch counsel of recognized
standing, selected by the Company, confirming that a Tax Event has occurred; or
(iii) upon the occurrence of a Regulatory Event.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (i) agrees to and shall be bound by such provisions; (ii)
authorizes and directs the Trustee on his or her behalf to take such actions as
may be necessary or appropriate to effectuate the subordination so provided; and
(iii) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or hereafter
created, incurred, assumed or guaranteed, and waives reliance by each such
holder upon said provisions.
References herein to principal, interest amounts, Accrued Interest
Payments, Payments or Outstanding Payments on the Securities shall be deemed
also to refer to any Additional Amounts which may be payable under the foregoing
provisions.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected (considered together as one
class for
this purpose). The Indenture also contains provisions (i) permitting the Holders
of a majority in principal amount of the Securities of each series at the time
outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and (ii)
permitting the Holders of a majority in principal amount of the Securities at
the time outstanding of any series to be affected under the Indenture (with each
such series considered separately for this purpose), on behalf of the Holders of
all Securities of such series, to waive certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $25.00 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series shall be represented by a Global Security and are not
exchangeable for definitive Securities of this series except in specific
circumstances set forth in the Indenture.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security is a Global Security and is subject to the provisions of the
Indenture relating to Global Securities, including the limitations in Section
305 thereof on transfers and exchanges of Global Securities.
This Security and the Indenture shall be governed by and construed in
accordance with the laws of the State of New York except for the subordination
provisions contained herein and in the Indenture, which shall be governed by and
construed in accordance with the laws of The Netherlands.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
