EXHIBIT 2.3
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SECOND SUPPLEMENTAL INDENTURE
between
ING GROEP N.V.,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
Dated as of December 12, 2002
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
$1,000,000,000 principal amount of 7.20% 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 7.20% ING PERPETUAL DEBT
SECURITIES
SECTION 2.01. Designation and Principal Amount ......................... 12
SECTION 2.02. Maturity ................................................. 12
SECTION 2.03. Form, Issuance, Registration and Exchange ................ 12
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............... 19
SECTION 4.04. Insufficient Payment Ordinary Shares...................... 22
SECTION 4.05. Market Disruption Event................................... 24
ARTICLE 5
REMEDIES
SECTION 5.01. Defaults; Collection of Indebtedness and Suits for
Enforcement by Trustee........................................... 25
2
ARTICLE 6
COVENANTS OF THE ISSUER
SECTION 6.01. Dividend Restrictions for Deferred Interest Payments....... 26
SECTION 6.02. Calculation Agent.......................................... 26
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.................................................... 28
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................................... 29
SECTION 7.02. Section 1401 of the Subordinated Indenture................. 30
ARTICLE 8
FORM OF 7.20% ING PERPETUAL DEBT SECURITIES
SECTION 8.01. Form of 7.20% ING Perpetual Debt Securities................ 30
ARTICLE 9
ORIGINAL ISSUE OF 7.20% ING PERPETUAL DEBT SECURITIES
SECTION 9.01. Original Issue of 7.20% 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; Second
Supplemental Indenture Controls................................. 33
SECTION 12.03. Trustee Not Responsible for Recitals....................... 33
SECTION 12.04. Governing Law.............................................. 33
SECTION 12.05. Severability............................................... 33
SECTION 12.06. Counterparts............................................... 34
EXHIBIT A Form of 7.20% ING Perpetual Debt Securities........... A-l
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SECOND SUPPLEMENTAL INDENTURE dated as of December 12, 2002 (the
"SECOND 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 ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, and The Bank of New York, a New York banking
corporation having its Corporate Trust Office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇, 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 Second 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 Second 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 $1,000,000,000
aggregate principal amount of securities, entitled the 7.20% ING Perpetual Debt
Securities (the "7.20% ING PERPETUAL DEBT SECURITIES"), the form and substance
of such 7.20% 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 Second 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 7.20% ING Perpetual Debt
Securities and ING Financial Markets LLC, as Calculation Agent with respect to
the 7.20% ING Perpetual Debt Securities;
WHEREAS, the 7.20% 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 Second Supplemental Indenture and requested that the Trustee execute and
deliver this Second Supplemental Indenture, and all requirements necessary to
make this Second 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
7.20% 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
7.20% 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 Second Supplemental Indenture;
(b) unless otherwise specified, a reference to a
Section or Article is to a Section or Article of this Second
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 Second Supplemental Indenture
and the Subordinated Indenture as it relates to the series of
7.20% 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 7.20% 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 December 12, 2002, between the Company and the Calculation Agent,
relating to the 7.20% 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 7.20% 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 7.20% 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 Second
Supplemental Indenture.
"7.20% ING PERPETUAL DEBT SECURITIES" has the meaning set forth in the
recitals of this Second Supplemental Indenture, and shall include, unless the
context otherwise requires, any further 7.20% ING Perpetual Debt Securities
which the Company is permitted to issue and which will form a single series with
the 7.20% ING Perpetual Debt Securities.
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"INTEREST" means interest payments on the 7.20% 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 7.20% 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 December 12, 2002.
"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 7.20% 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 7.20% 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 7.20% ING Perpetual Debt Security in an amount that
results in payment of a proportion of a full Interest Payment on the 7.20% 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 holders 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 7.20% ING Perpetual
Debt Securities as regards any such distribution or payment or (b) rank pari
passu as expressed by such 7.20% ING Perpetual Debt Securities' own terms with
the 7.20% 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 and the Company's 7.05% ING Perpetual
Debt Securities issued on July 18, 2002.
"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 7.20% 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 7.20% 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.
"PAYMENT DEFAULT" has the meaning set forth in Section 5.01(a) hereof.
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"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 March 1, June 1, September 1 and
December 1 preceding an Interest Payment Date.
"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 7.20% 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;
(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
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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 Second 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 7.20% 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 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
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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 7.20% 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 December 6, 2002, 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 7.20% ING Perpetual Debt Securities.
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ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE 7.20%
ING PERPETUAL DEBT SECURITIES
SECTION 2.01. Designation and Principal Amount. The following series of
Securities are hereby authorized as the 7.20% ING Perpetual Debt Securities,
initially to be issued in the aggregate principal amount of $1,000,000,000.
SECTION 2.02. Maturity. The 7.20% ING Perpetual Debt Securities have no
maturity date.
SECTION 2.03. Form, Issuance, Registration and Exchange. The 7.20% 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 7.20% 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 7.20% ING Perpetual Debt Securities are exchanged
for definitive securities in the limited instances described
in Section 12.01 hereof; (ii) beneficial interests in global
7.20% ING Perpetual Debt Securities may be held through
organizations that participate, directly or indirectly, in the
DTC system; (iii) beneficial interests in the global 7.20% ING
Perpetual Debt Securities and all transfers relating to the
global 7.20% 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 7.20% ING Perpetual
Debt Security, it will be considered the sole holder of the
global 7.20% ING Perpetual Debt Security for all purposes
under the Indenture.
SECTION 2.04. Payments.
(a) Payment Method. (i) Any Payment on 7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% ING Perpetual Debt Securities will
bear Interest from the Issue Date at a fixed rate per annum on their outstanding
principal amount equal to 7.20% (the "FIXED INTEREST RATE").
(c) Interest Payment Dates. Subject to the provisions herein,
Interest on the 7.20% ING Perpetual Debt Securities (calculated in accordance
with the Interest Calculation Basis) will be payable from December 12, 2002 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, quarterly in arrears on March 15, June 15, September 15 and
December 15 in each year, commencing on March 15, 2003.
(d) Accrued Interest Payments. The aggregate amount of any Accrued
Interest Payments on the 7.20% 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 7.20% ING Perpetual Debt Securities,
"INTEREST PAYMENT DATE" means the date for payment of any Interest on such 7.20%
ING Perpetual Debt Securities, as determined by the Company and set forth in
this Second Supplemental Indenture and the form of 7.20% 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 7.20% 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 7.20% 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 7.20% 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
7.20% 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
16
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 7.20% ING Perpetual Debt Securities, and provided the Solvency
Conditions are satisfied at the time of such notice and at the time of
redemption, the 7.20% 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 December 15, 2007, 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 7.20% 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 7.20% ING Perpetual Debt Securities, and any 7.20% ING
Perpetual Debt Securities so cancelled will be discharged. Any 7.20% 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 7.20% ING Perpetual Debt
Securities represented by the global security.
(d) In the event the Base Redemption Price in respect of any 7.20%
ING Perpetual Debt Securities is improperly withheld or refused and is not paid
by the Company, Interest on the 7.20% 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 7.20% 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 Second 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
7.20% 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 7.20%
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 7.20% 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;
(ix) 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
7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% 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
Second 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 7.20% 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 uninsured 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
7.20% 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 7.20% ING Perpetual Debt Securities, unless the
Company amends the terms of the 7.20% ING Perpetual Debt Securities such that
the 7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% ING Perpetual Debt Securities issued hereunder,
by such Holder's acceptance thereof, likewise covenants and agrees, that the
7.20% 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 7.20% 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
7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% 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 7.20% 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 replaces in its 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 Second Supplemental Indenture.
ARTICLE 8
FORM OF 7.20% ING PERPETUAL DEBT SECURITIES
SECTION 8.01. Form of 7.20% ING Perpetual Debt Securities. The 7.20%
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 Second Supplemental Indenture.
ARTICLE 9
ORIGINAL ISSUE OF 7.20% ING PERPETUAL DEBT SECURITIES
SECTION 9.01. Original Issue of 7.20% ING Perpetual Debt Securities.
7.20% ING Perpetual Debt Securities in the initial aggregate principal amount of
$1,000,000,000 may, upon execution of this Second Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver such 7.20% 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 7.20% ING Perpetual Debt Securities
which may be issued subsequent to this Second 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
7.20% ING Perpetual Debt Security (in lieu of any other payment) an amount that
would have been payable in respect of the 7.20% ING Perpetual Debt Securities
if, on and after the day immediately before the winding up began, any Holder of
31
those 7.20% 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 of the relevant 7.20% ING Perpetual Debt Security and any other
Outstanding Payments together with, and to the extent not otherwise included
within the foregoing, the pro rota share of any Winding-Up Claims attributable
to the 7.20% ING Perpetual Debt Security.
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge. The Company covenants and
agrees, and each Holder of 7.20% ING Perpetual Debt Securities issued hereunder,
by such Holder's acceptance thereof, likewise covenants and agrees, that all
7.20% 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 7.20% 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 7.20%
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 7.20% 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 7.20% 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 7.20% 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 7.20% ING Perpetual Debt Securities, DTC, as holder of the global 7.20%
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; Second
Supplemental Indenture Controls. The Subordinated Indenture, as supplemented by
this Second Supplemental Indenture, is in all respects ratified and confirmed.
This Second 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 Second 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 Second Supplemental
Indenture or the 7.20% ING Perpetual Debt Securities. The Trustee shall not be
accountable for the use or application by the Company of the 7.20% ING Perpetual
Debt Securities or the proceeds thereof.
SECTION 12.04. Governing Law. This Second Supplemental Indenture and
each 7.20% 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 Second Supplemental Indenture or in the 7.20% 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 Second 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 Second Supplemental Indenture.
34
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first above
written.
ING GROEP N.V.
as Issuer
By: /s/ Johannes Wolvius
------------------------------
Name: Johannes Wolvius
Title: Authorized Officer
By: /s/ Koos Timmermans
------------------------------
Name: Koos Timmermans
Title: Authorized Officer
THE BANK OF NEW YORK, as Trustee and
Paying Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
35
EXHIBIT A
FORM OF 7.20% ING Perpetual Debt Securities
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
Second 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 Second 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.
7.20% ING PERPETUAL DEBT SECURITIES (THE "SECURITIES")
No. 3
CUSIP No.: 456837 30 1$
ISIN No.: US4568373017
COMMON CODE: 15966637
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 o (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 Second Supplemental
Indenture) and to pay interest thereon from December 12, 2002 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, quarterly in arrears on March 15, June 15, September 15 and December 15 in
each year, commencing on March 15, 2003, and at such other times as are set
forth in the Indenture at the rate of 7.20% 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 March 1, June
1, September 1 or December 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: December 12, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
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 Second Supplemental Indenture, dated as of
December 12, 2002 (herein called the "Second 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 Second 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 December 15, 2007.
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 December 15, 2007, 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.