EX-4.1



 






 

 






FORM OF




FIFTH SUPPLEMENTAL INDENTURE




between




ING GROEP N.V.,




as Issuer




and




THE BANK OF NEW YORK,




as Trustee




Dated as of December 8, 2005




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

5.775% Fixed/Floating ING Perpetual Debt Securities




 

 








 









 





	 	 	 	 	 
	ARTICLE 1
	 	 	 	 
	Definitions
	 	 	 	 
	Section 1.01. Definition Of Terms
	 	 	2	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	General Terms And Conditions Of The 5.775% Fixed/Floating ING Perpetual Debt Securities
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Designation And Principal Amount
	 	 	14	 
	Section 2.02. Maturity
	 	 	14	 
	Section 2.03. Form, Issuance, Registration And Exchange
	 	 	14	 
	Section 2.04. Payments
	 	 	15	 
	Section 2.05. Mandatory Payment Events; Mandatory Partial Payment Events
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	Optional Redemption And Redemption Upon Certain Events
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Optional Redemption
	 	 	21	 
	Section 3.02. Optional Purchase
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	Alternative Interest Satisfaction Mechanism
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Conditions Precedent
	 	 	23	 
	Section 4.02. Notices Of Exercise Of Alternative Interest Satisfaction Mechanism
	 	 	23	 
	Section 4.03. Alternative Interest Satisfaction Mechanism
	 	 	23	 
	Section 4.04. Insufficient Payment Ordinary Shares
	 	 	26	 
	Section 4.05. Market Disruption Event
	 	 	27	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	Remedies
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. Defaults; Collection Of Indebtedness And Suits For Enforcement By Trustee
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	Covenants Of The Issuer
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Dividend Restrictions For Deferred Interest Payments
	 	 	30	 
	Section 6.02. Calculation Agent
	 	 	30	 
	Section 6.03. Mandatory Interest Payments
	 	 	30	 
	Section 6.04. Deferral Of Certain Payments
	 	 	30	 






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	Section 6.05. Sufficiency Of Ordinary Shares
	 	 	30	 
	Section 6.06. Ranking
	 	 	31	 
	Section 6.07. Payment Of Proceeds From Sale Of Payment Ordinary Shares And Associated Cost Ordinary Shares
	 	 	32	 
	Section 6.08. Calculation Agency Agreement
	 	 	32	 
	Section 6.09. Officer’s Certificate On Deferral
	 	 	32	 
	Section 6.10. Officer’s Certificate For Market Disruption Event
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	Subordination
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Agreement To Subordinate
	 	 	32	 
	Section 7.02. Section 1401 Of The Subordinated Indenture
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	Form Of 5.775% Fixed/Floating ING Perpetual Debt Securities
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Form Of 5.775% Fixed/Floating ING Perpetual Debt Securities
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	Original Issue Of 5.775% Fixed/Floating ING Perpetual Debt Securities
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Original Issue Of 5.775% Fixed/Floating ING Perpetual Debt Securities
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	Winding Up
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Winding Up
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	Satisfaction And Discharge
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Satisfaction And Discharge
	 	 	35	 
	 
	 	 	 	 
	ARTICLE 12
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Issuance Of Definitive Securities
	 	 	35	 
	Section 12.02. Ratification Of Subordinated Indenture;Fifth Supplemental Indenture Controls
	 	 	36	 
	Section 12.03. Trustee Not Responsible For Recitals
	 	 	36	 
	Section 12.04. Governing Law
	 	 	37	 
	Section 12.05. Severability
	 	 	37	 
	Section 12.06. Counterparts
	 	 	37	 






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	EXHIBIT A
	Form of 5.775% Fixed/Floating ING Perpetual Debt Securities	 	A-1	 






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     FIFTH SUPPLEMENTAL INDENTURE dated as of December 8, 2005 (the “Fifth 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 Amstelveenseweg 500, 1081 KL Amsterdam,
P.O. Box 810, 1000 AV Amsterdam, The Netherlands, and The Bank of New York, a New York banking
corporation having its Corporate Trust Office at 101 Barclay Street, New York, New York, 10286, 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 Fifth 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 Fifth 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 up to
$1,000,000,000 aggregate principal amount of securities, entitled the 5.775% Fixed/Floating ING
Perpetual Debt Securities (the “5.775% Fixed/Floating ING Perpetual Debt Securities”), the form and
substance of such 5.775% Fixed/Floating 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 Fifth 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 5.775% Fixed/Floating ING Perpetual Debt Securities and ING Financial Markets LLC, as
Calculation Agent with respect to the 5.775% Fixed/Floating ING Perpetual Debt Securities;



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     WHEREAS, the 5.775% Fixed/Floating 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 Fifth Supplemental
Indenture and requested that the Trustee execute and deliver this Fifth Supplemental Indenture, and
all requirements necessary to make this Fifth 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 5.775% Fixed/Floating
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 5.775% Fixed/Floating 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. Definition 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 Fifth Supplemental Indenture;



     (b) unless otherwise specified, a reference to a Section or Article is to a Section or Article
of this Fifth 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 Fifth Supplemental Indenture and the Subordinated
Indenture as it relates to the series of 5.775% Fixed/Floating ING Perpetual Debt Securities
created hereunder.



     “5.775% Fixed/Floating ING Perpetual Debt Securities” has the meaning set forth in the
recitals of this Fifth Supplemental Indenture, and shall include, unless the context otherwise
requires, any further 5.775% Fixed/Floating ING Perpetual Debt Securities which the Company is
permitted to issue and which will form a single series with the 5.775% Fixed/Floating ING Perpetual
Debt Securities.



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     “Accrued Interest Payment” means Interest that shall continue to accrue after an Interest
Payment Date in respect of an Elective Deferral Interest Payment, 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 5.775% Fixed/Floating ING Perpetual Debt Securities
means a redemption price equal to 100% of the aggregate principal amount of the 5.775%
Fixed/Floating ING Perpetual Debt Securities so redeemed, together with any Outstanding Payments in
respect thereof 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 8,
2005, between the Company and the Calculation Agent, relating to the 5.775% Fixed/Floating 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
5.775% Fixed/Floating ING Perpetual Debt Securities, or its successor or successors for the time
being appointed under the Calculation Agency Agreement.



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     “comparable treasury issue” means the United States treasury security or securities selected
by the quotation agent as having an actual or interpolated maturity comparable to the remaining
life of the 5.775% Fixed/Floating ING Perpetual Debt Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of a comparable maturity to the remaining life (as defined
in the definition of Make-Whole Amount).



     “comparable treasury price” means (a) the average of five reference treasury dealer quotations
for the relevant redemption date, after excluding the highest and lowest of such reference treasury
dealer quotations, or (b) if the quotation agent obtains fewer than five such reference treasury
dealer quotations, the average of all such quotations.



     “Deferral Interest Rate” means until December 8, 2015, an interest rate equal to the Fixed
Interest Rate and after December 8, 2015, the Floating Interest Rate applicable to the relevant
Interest Period.



     “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.



     “determination date” has the meaning set forth in Section 2.04(b) hereof.



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     “DTC” means the Depository Trust Company.



     “Elective Deferral Interest Payment” means any Payment on the 5.775% Fixed/Floating ING
Perpetual Debt Securities that is deferred due to the circumstances set forth in Section 2.04(f)
hereof.



     “First Call Date” means December 8, 2015.



     “Fixed Interest Rate” has the meaning set forth in Section 2.04(b) hereof.



     “Floating Interest Rate” has the meaning set forth in Section 2.04(b) hereof.



     “Indenture” has the meaning set forth in the recitals of this Fifth Supplemental Indenture.



     “IFRS” means International Financial Reporting Standards as issued by the International
Accounting Standard Board and as endorsed by the European Commission.



     “Interest” means interest payments on the 5.775% Fixed/Floating ING Perpetual Debt Securities
as calculated in accordance with Section 2.04(b) and 2.04(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 5.775%
Fixed/Floating 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, on or prior to December 8, 2015, the calculation of
Interest on the basis of a 360-day year of twelve 30-day months; and thereafter, the calculation of
Interest on the basis of the actual number of days elapsed on the basis of a 360-day year.



     “Interest Payment” means, in respect of an Interest Payment Date, the aggregate Interest
Amounts for the Interest Period ending on such Interest Payment Date.



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     “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 8, 2005.



     “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 5.775% Fixed/Floating 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 5.775% Fixed/Floating ING Perpetual Debt Securities with 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.



     “LIBOR Calculation Agent” has the meaning set forth in Section 2.04(b) hereof.



     “London banking day” has the meaning set forth in Section 2.04(b) hereof.



     “Make-Whole Amount” means, as determined by the quotation agent, the sum of the present value
of the principal amount of the 5.775% Fixed/Floating ING Perpetual Debt Securities together with
the present values of scheduled payments of interest accrued from the date of redemption to the
Interest Payment Date on December 8, 2015 (the “remaining life”), in each case discounted to the
date of redemption on the Interest Calculation Basis at the treasury rate plus 40 basis points and
Outstanding Amounts due through the date of redemption.



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     “Make-Whole Tax Event” means the occurrence of the events described in items (ii) and (iii)
under the definition of “Tax Event”, if such events and the related redemption occur prior to the
First Call Date.



     “Mandatory Partial Payment” payable on any Interest Payment Date means a payment in respect of
each 5.775% Fixed/Floating ING Perpetual Debt Security in an amount that results in payment of a
proportion of a full Interest
Payment on the 5.775% Fixed/Floating 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 Guarantees paid on the dividend or payment date in
respect of the relevant Parity Securities and/or Parity Guarantees immediately preceding such
Interest Payment Date.



     “Mandatory Partial Payment Event” means (a) prior to the occurrence of a Regulatory
Notification, 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 benefiting from a Parity Guarantee or makes a payment on any
security issued by it benefiting from a Parity Guarantee, and



     (b) following the occurrence of a Regulatory Notification, 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 securities or other instruments which are (i) Parity Securities and (ii) classified as
equity under IFRS.



     “Mandatory Payment Event” means (a) prior to the occurrence of a Regulatory Notification, 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 benefiting from a Junior Guarantee or makes a payment (other than a
dividend in the form of ordinary shares) on any security issued by it benefiting from a
Junior Guarantee;




     (iii) the Company or any Subsidiary or Undertaking redeems, purchases or otherwise
acquires any of the Company’s Junior Securities,



7









 






any Parity Securities or any securities
issued by any Subsidiary or Undertaking benefiting 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 benefiting from a Junior Guarantee or Parity Guarantee, and



     (b) following the occurrence of a Regulatory Notification, 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 securities or other instruments which are (i) Junior Securities and (ii) classified as
equity under IFRS.



     “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.’s
Eurolist by Euronext or on settlement procedures for transactions in the Ordinary Shares
on Euronext Amsterdam N.V.’s Eurolist by Euronext 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



8









 






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.



     “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 Guarantees” means any guarantee, indemnity or other contractual support arrangements
of the Company of securities of any Subsidiary or Undertaking, under which the holder of such
securities as the party who has the benefit of any such guarantee, indemnity or other contractual
support agreement is entitled, effectively from a financial point of view, to distributions on a
return of assets or on a liquidation, moratorium of payments or bankruptcy of the Company or to
distributions or payments of dividends and/or any other amounts thereunder by the Company, to the
same extent as the most senior class of preference shares and which (a) are expressed to be
similarly subordinated to Senior Debt as, and accordingly rank pari passu with, the 5.775%
Fixed/Floating ING Perpetual Debt Securities as regards any such distribution or payment or (b)
rank pari passu as expressed by such 5.775% Fixed/Floating ING Perpetual Debt Securities’ own terms
with the 5.775% Fixed/Floating ING Perpetual Debt Securities.



     Parity Guarantees include the Company’s guarantees (collectively the “Trust Preferred
Securities Guarantees”) of the 8.439% Non-cumulative Guaranteed Trust Preferred Securities issued
by ING Capital Funding Trust III.



9









 





     “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 27, 2001, the Company’s 7.05% ING Perpetual Debt Securities issued on July 18, 2002, the
Company’s 7.20% ING Perpetual Debt Securities issued on December 6, 2002, the Company’s Variable
Rate ING Perpetual Securities issued on June 20 2003, the Company’s 6.20% ING Perpetual Debt
Securities issued on October 17, 2003, the Company’s Variable Rate ING Perpetual Securities issued
on June 14, 2004, the Company’s 4.176% ING Perpetual Debt Securities issued on June 7, 2005 and the
Company’s 6.125% ING Perpetual Debt Securities issued on September 26, 2005.



     “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 5.775% Fixed/Floating 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 5.775%
Fixed/Floating 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.



     “Payment Event” has the meaning set forth in Section 5.01(b) hereof.



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     “Payment Ordinary Shares” means Ordinary Shares issued by the Company in accordance with
Section 4.03(c)(ii) hereof.



     “quotation agent” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and its successors,
except that if Merrill Lynch, Pierce, Fenner & Smith Incorporated ceases to be a primary U.S.
Government securities dealer in New York City (a “primary treasury dealer”), the Company shall
designate another primary treasury dealer.



     “Record Date” means the Regular Record Date or the Special Record Date, as the case may be.



     “reference treasury dealer” means (a) the quotation agent and (b) any other primary treasury
dealer selected by the quotation agent after consultation with the Company.



     “reference treasury dealer quotations” means, with respect to each reference treasury dealer
and any redemption date, the average, as determined by the quotation agent, of the bid and asked
prices for the comparable treasury issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the quotation agent by such reference treasury dealer at 3:30 p.m.
(New York City time), on the third Business Day preceding such redemption date.



     “Regular Record Date” means, until December 8, 2015, the May 24 or November 23 next preceding
the relevant Interest Payment Date (whether or not a Business Day); and thereafter, the date which
is fifteen calendar days preceding an Interest Payment Date (whether or not a Business Day).



     “Regulatory Event” means any time after the Company becomes subject to capital adequacy
regulations, the relevant regulator makes a determination that securities in the nature of the
5.775% Fixed/Floating 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.



     “Regulatory Notification” means, after the Company becomes subject to capital adequacy
regulations, the relevant regulator shall have notified it to the effect that on any date on which
a payment on the 5.775% Fixed/Floating ING Perpetual Debt Securities would otherwise have been due,
the Company’s capital ratio would after such payment be less than the minimum capital adequacy
requirements as enforced by the relevant regulator.



“Relevant Date” means




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     (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 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 Fifth
Supplemental Indenture.



     “Tax Event” means a determination by the Company that on the next Interest Payment Date:



12









 






     (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 5.775% Fixed/Floating 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 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 5.775% Fixed/Floating 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 2, 2005, and the Company cannot avoid this risk by taking such measures the
Company, acting in good faith, deems appropriate.



     “Telerate page 3750” has the meaning set forth in Section 2.04(b) hereof.



     “three-month LIBOR” has the meaning set forth in Section 2.04(b) hereof.



     “treasury rate” means, with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity or interpolated (on a



13









 




day count basis) of the comparable
treasury issue, assuming a price for the comparable treasury issue (expressed as a percentage of
its principal amount) equal to the comparable treasury price for such redemption date.




     “Trust Preferred Securities Guarantees” has the meaning given such term in the definition of
Parity Guarantees.



     “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 5.775% Fixed/Floating ING Perpetual Debt Securities.



ARTICLE 2

General Terms And Conditions Of The 5.775% Fixed/Floating ING Perpetual Debt Securities




     Section 2.01. Designation And Principal Amount. The following series of Securities are
hereby authorized as the 5.775% Fixed/Floating ING Perpetual Debt Securities, initially to be
issued in the aggregate principal amount of $1,000,000,000.



     Section 2.02. Maturity. The 5.775% Fixed/Floating ING Perpetual Debt Securities have no
maturity date.



     Section 2.03. Form, Issuance, Registration And Exchange. The 5.775% Fixed/Floating ING
Perpetual Debt Securities shall:



     (a) be issued as registered Securities in minimum denominations of $1,000 (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;



14









 





     (b) not be exchangeable at any time for bearer securities; and



     (c) be issued as global 5.775% Fixed/Floating 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 5.775% Fixed/Floating ING Perpetual Debt Securities are exchanged for
definitive securities in the limited instances described in Section 12.01 hereof; (ii) beneficial
interests in global 5.775% Fixed/Floating ING Perpetual Debt Securities may be held through
organizations that participate, directly or indirectly, in the DTC system; (iii) beneficial
interests in the global 5.775% Fixed/Floating ING Perpetual Debt Securities and all transfers
relating to the global 5.775% Fixed/Floating 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
5.775% Fixed/Floating ING Perpetual Debt Security, it will be considered the sole holder of the
global 5.775% Fixed/Floating ING Perpetual Debt Security for all purposes under the Indenture.



     Section 2.04. Payments.



     (a) Payment Method. (i) Any Payment on 5.775% Fixed/Floating 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 5.775% Fixed/Floating ING Perpetual Debt Securities (including any
payment of Additional Amounts in accordance with Section 1006 of the Subordinated Indenture) shall
be paid by the Trustee to the Holder in whose name such 5.775% Fixed/Floating ING Perpetual Debt
Securities are registered on the relevant Record Date, 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 5.775% Fixed/Floating 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 5.775% Fixed/Floating 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 5.775% Fixed/Floating ING Perpetual Debt Securities will bear Interest
from the Issue Date through December 8, 2015 at a fixed rate per annum on their outstanding
principal amount equal to 5.775% (the “Fixed Interest Rate”), and after December 8, 2015 at a
floating rate per annum on their outstanding principal amount equal to three-month LIBOR plus 1.68%
(the “Floating Interest Rate”).



15









 





     As used herein, “three-month LIBOR” means a rate determined on the basis of the offered rates
for three-month U.S. dollar deposits commencing on the first day of the relevant Interest Period,
which appears on page Telerate page 3750 of as of approximately 11:00 a.m., London time, on the
determination date. If such rate does not appear on Telerate page 3750, three-month LIBOR will be
determined on the basis of the rates that three-month U.S. dollar deposits, commencing on the first
date of the relevant Interest Period and in a principal amount of not less than $1,000,000, are
offered to prime banks in the London interbank market by four major banks in the London interbank
market selected by the LIBOR calculation agent, after consultation with the Company, at
approximately 11:00 a.m., London time, on that determination date. The LIBOR calculation agent
will request the principal London office of each of such banks to provide a quotation at its rate.
If at least two such quotations are provided, three-month LIBOR with respect to that determination
date will be the arithmetic mean of such quotations. If fewer than two quotations are provided,
three-month LIBOR with respect to that determination date will be the arithmetic mean of the rates
quoted by three major money center banks in New York City selected by the LIBOR calculation agent,
after consultation with the Company, at approximately 11:00 a.m., New York City time, on the
relevant determination date for loans in U.S. dollars to leading European banks for a three-month
period commencing on the first day of the relevant quarterly period and in a principal amount of
not less
than $1,000,000. However, if the banks selected by the LIBOR calculation agent to provide
quotations are not quoting as described in this paragraph, three-month LIBOR for the applicable
period will be the same as three-month LIBOR as determined on the previous quarterly period.



     For purposes of the definition of “three-month LIBOR”:



     “determination date” for an Interest Period means two London banking days prior to the first
day of the relevant quarterly Interest Period.



     “LIBOR calculation agent” means ING Bank N.V.



     “London banking day” means a day on which dealings in deposits in U.S. dollars are transacted
in the London interbank market.



     “Telerate page 3750” means the display designated as “Page 3750” on the Moneyline/Telerate
Inc. (or such other page as may replace Page 3750) service or such other service or services as may
be nominated by the British Bankers’ Association as the information vendor for the purposes of
displaying London interbank offered rates for U.S. dollar deposits.



     All percentages resulting from any calculations on the 5.775% Fixed/Floating ING Perpetual
Debt Securities will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of



16









 




a percentage point rounded upward (e.g., 9.876545%
(or .09876545) being rounded to 9.87655% (or .0987655)), and all dollar amounts used in or
resulting from such calculation will be rounded to the nearest cent (with one-half cent being
rounded upward).




     (c) Interest Payment Dates. Subject to the provisions herein, Interest on the 5.775%
Fixed/Floating ING Perpetual Debt Securities (calculated in accordance with the Interest
Calculation Basis) will be payable from December 8, 2005 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually in arrears on June 8 and
December 8 in each year, commencing on June 8, 2006, and after December 8, 2015, quarterly in
arrears on March 8, June 8, September 8 and December 8 in each year.



     (d) Accrued Interest Payments. The aggregate amount of any Accrued Interest Payments on the
5.775% Fixed/Floating ING Perpetual Debt Securities will bear Interest at the Deferral 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 5.775% Fixed/Floating ING Perpetual Debt Securities, “Interest
Payment Date” means the date for payment of any Interest, as it may be adjusted as described in the
next succeeding sentence, on such 5.775% Fixed/Floating ING Perpetual Debt Securities, as
determined by the Company and set forth in this Fifth Supplemental Indenture and the form of 5.775%
Fixed/Floating ING Perpetual Debt Securities attached as Exhibit A hereto. With respect to any
Interest Payment Date prior to and including December 8, 2015, 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 (without any interest or other payment with respect to the delay) and, for any
Interest Payment Date after December 8, 2015, if any date on which interest would otherwise be
payable falls on a day that is not a Business Day, then the Interest Payment Date will be the next
succeeding Business Day, except if such next succeeding Business Day falls in the next succeeding
calendar month, in which case the Interest Payment Date will be the immediately preceding Business
Day.



     (e) Required Deferral of Payments.



17









 






     (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 5.775% Fixed/Floating 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)(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
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.



18









 






     (i) The Company may defer any Payment that is due and payable under the 5.775%
Fixed/Floating 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 5.775% Fixed/Floating 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 5.775% Fixed/Floating 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
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.



19









 






     (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 two consecutive Interest Payment Dates or, after December 8, 2015, 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 benefiting from a Junior Guarantee or relates to the purchase or other acquisition of any
Junior Security, Parity Security or a security benefiting 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 Interest Payment Date or, after December 8, 2015, on the next two 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 Interest Payments may, at the Company’s election,
be satisfied in accordance with the Alternative Interest Satisfaction Mechanism.



     (c) Satisfaction of Interest Payments following a Mandatory Partial Payment Event. Mandatory
Partial Payments will be mandatorily due and payable, on the next two consecutive Interest Payment
Dates or, after December 8, 2015, on the next four consecutive Interest Payment Dates, following a
Mandatory Partial Payment Event, notwithstanding any Deferral Notice or



20









 




occurrence of the Required
Deferral Condition; provided, however, that if such Mandatory Partial Payment Event (x) is a
payment on a Parity Security, a Parity Guarantee or a security benefiting 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 Interest Payment Date or, after December 8, 2015, on the next two
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 5.775%
Fixed/Floating ING Perpetual Debt Securities, and provided the Solvency Conditions are satisfied at
the time of such notice and at the time of redemption, the 5.775% Fixed/Floating ING Perpetual Debt
Securities may be redeemed, at the option of the Company and without the consent of the Holders or
the Trustee, as follows:




     (i) in whole or in part at the Base Redemption Price on December 8, 2015, and
thereafter on any Interest Payment Date;




     (ii) in whole (but not in part) at any time, at the Base Redemption Price:




     (A) upon the occurrence of a Tax Event (other than a Make-Whole Tax Event
prior to the First Call Date, in which case subsection (iii) shall apply),
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




     (B) on and after the First Call Date, upon the occurrence of a Regulatory
Event; and



21









 






     (iii) prior to the First Call Date, in whole (but not in part) at any time, at the
greater of the Base Redemption Price and the Make-Whole Amount:




     (A) upon the occurrence of a Make-Whole 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 Make-Whole Tax Event has
occurred; or




     (B) upon the occurrence of a Regulatory Event.



     (c) Cancellation of any 5.775% Fixed/Floating ING Perpetual Debt Securities redeemed by the
Company pursuant to this Indenture will be effectuated by reducing the principal amount of the
5.775% Fixed/Floating ING Perpetual Debt Securities, and any 5.775% Fixed/Floating ING Perpetual
Debt Securities so cancelled will be discharged. Any 5.775% Fixed/Floating 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
5.775% Fixed/Floating ING Perpetual Debt Securities represented by the global security or
securities.



     (d) In the event the Base Redemption Price in respect of any 5.775% Fixed/Floating ING
Perpetual Debt Securities is improperly withheld or refused and is not paid by the Company,
Interest on such 5.775% Fixed/Floating 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 5.775% Fixed/Floating ING Perpetual Debt Securities on the open
market in any manner and at any price.




22










 






ARTICLE 4



Alternative Interest Satisfaction Mechanism




     Section 4.01. Conditions Precedent. Subject to the provisions of Article 5 of this Fifth
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 5.775% Fixed/Floating
ING Perpetual Debt Securities is subject to Section 4.04 and 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 5.775% Fixed/Floating ING Perpetual Debt Securities in
accordance with Sections 105 and 106, as 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 5.775% Fixed/Floating 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



23









 







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;




     (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 Section 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;



24









 






     (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 Section 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 Section
4.03(c)(i) to 4.03(c)(viii) 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, Section 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



25









 







receives any Shortfall amounts it will
pay such amounts to the Paying Agent for payment to the Holders;




     (xi) if, despite these provisions, such a Shortfall still exists on the relevant
Interest Payment Date or Deferred Interest Satisfaction Date, the Company may, in
accordance with the provisions of this Indenture, either pay an amount equal to such
Shortfall as soon as practicable to the Trustee or continue to issue Payment Ordinary
Shares or Associated Cost Ordinary Shares, as the case may be, until the Trustee has
received funds equal to the full amount of such Shortfall. The Company shall be obligated
to issue additional Ordinary Shares to cover any Shortfall unless it satisfies the
Shortfall by making a direct payment to the Trustee; and




     (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



26









 







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.



     (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



27









 







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 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 5.775% Fixed/Floating 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):



28









 





     The Company fails to pay or set aside for payment the amount due to satisfy any Payment on the
5.775% Fixed/Floating 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 proceeding in The Netherlands (but not elsewhere) of the Company, but
the Trustee may not declare the principal amount of any outstanding 5.775% Fixed/Floating 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 5.775% Fixed/Floating 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 Section 5.01(b) above as a matter of Dutch law,
the Holders of the 5.775% Fixed/Floating 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 5.775%
Fixed/Floating 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.



29









 





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
5.775% Fixed/Floating 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.



     Section 6.02. Calculation Agent. (a) For so long as any 5.775% Fixed/Floating 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
5.775% Fixed/Floating 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 5.775% Fixed/Floating 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 5.775% Fixed/Floating 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 Fifth Supplemental Indenture,
the Company has a sufficient number of authorized but



30









 







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 six-month period, (i) the Interest Payments required
to be made on the 5.775% Fixed/Floating 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 six-month period.



     (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 two interest payments until the First Call Date and
following that date, for the next four Interest Payments. Should the Company fail to comply with
this condition, no damages shall be payable in connection with such failure. The Trustee may
require that the Company, as soon as practicable, hold an extraordinary general meeting of its
shareholders at which a resolution will be passed to remedy such failure as provided in Section
4.04(d) hereof.



     (c) The Trustee is not obligated to monitor whether the Company has a sufficient number of
unissued Ordinary Shares available for issuance as Payment Ordinary Shares and the Trustee is
entitled to assume, unless it has actual knowledge to the contrary, that the Company is complying
with its obligations to do so.



     Section 6.06. Ranking. The Company agrees that, for so long as any 5.775% Fixed/Floating
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 5.775% Fixed/Floating ING Perpetual Debt Securities, unless the Company amends the terms of
the 5.775% Fixed/Floating ING Perpetual Debt Securities such that the 5.775% Fixed/Floating 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.



31









 





     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.



     Section 6.08. 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 6.09. 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 6.10. 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.



ARTICLE 7



Subordination




     Section 7.01. Agreement To Subordinate. (a) The Company covenants and agrees, and each
Holder of 5.775% Fixed/Floating ING Perpetual Debt Securities issued hereunder, by such Holder’s
acceptance thereof, likewise



32









 







covenants and agrees, that the 5.775% Fixed/Floating 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 5.775% Fixed/Floating 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 5.775% Fixed/Floating 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 5.775% Fixed/Floating 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 5.775%
Fixed/Floating 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 5.775% Fixed/Floating 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 5.775%
Fixed/Floating 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 5.775% Fixed/Floating ING Perpetual
Debt Securities, the aggregate liquidation preference of, and aggregate amount of all claims under,
any outstanding Parity Securities and Parity Guarantees and similarly subordinated debt obligations
with a formula or arrangement substantially similar to this Section 7.01(b), without application of
this Section 7.01(b) and the corresponding similar formula or arrangement.



     Section 7.02. Section 1401 Of The Subordinated Indenture. The provisions of Section 7.01
hereof replace in their entirety Section 1401 of the Subordinated Indenture which is hereby amended
and restated in its entirety by Section 7.01 hereof. In addition Section 1402 through Section 1414
of Article 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 Fifth Supplemental
Indenture.



33









 





ARTICLE 8



Form Of 5.775% Fixed/Floating ING Perpetual Debt Securities




     Section 8.01. Form Of 5.775% Fixed/Floating ING Perpetual Debt Securities. The 5.775%
Fixed/Floating 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 Fifth
Supplemental Indenture.



ARTICLE 9



Original Issue Of 5.775% Fixed/Floating ING Perpetual Debt Securities




     Section 9.01. Original Issue Of 5.775% Fixed/Floating ING Perpetual Debt Securities. 5.775%
Fixed/Floating ING Perpetual Debt Securities in the initial aggregate principal amount of
$1,000,000,000 may, upon execution of this Fifth Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver such 5.775% Fixed/Floating 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 5.775% Fixed/Floating ING Perpetual Debt Securities which
may be issued subsequent to this Fifth 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
5.775% Fixed/Floating ING Perpetual Debt Security (in lieu of any other payment) an amount that
would have been payable in respect of the 5.775% Fixed/Floating ING Perpetual Debt Securities if,
on and after the day immediately before the winding up began, any Holder of those 5.775%
Fixed/Floating 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



34









 







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 $1,000 of the relevant 5.775%
Fixed/Floating ING Perpetual Debt Security and any other Outstanding Payments together with, and to
the extent not otherwise included within the foregoing, the pro rata share of any Winding-Up Claims
attributable to the 5.775% Fixed/Floating ING Perpetual Debt Security.



ARTICLE 11



Satisfaction And Discharge




     Section 11.01. Satisfaction And Discharge. The Company covenants and agrees, and each
Holder of 5.775% Fixed/Floating ING Perpetual Debt Securities issued hereunder, by such Holder’s
acceptance thereof, likewise covenants and agrees, that all 5.775% Fixed/Floating 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
5.775% Fixed/Floating 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 5.775% Fixed/Floating 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 5.775% Fixed/Floating 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 5.775% Fixed/Floating 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 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
$1,000 and any integral multiples thereof and shall be



35









 







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 5.775% Fixed/Floating 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 5.775% Fixed/Floating
ING Perpetual Debt Securities, DTC, as holder of the global 5.775% Fixed/Floating 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; Fifth Supplemental Indenture
Controls. The Subordinated Indenture, as supplemented by this Fifth Supplemental Indenture, is in
all respects ratified and confirmed. This Fifth 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 Fifth 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 representation as to the validity or sufficiency of this Fifth
Supplemental Indenture or the 5.775% Fixed/Floating ING Perpetual Debt Securities. The Trustee
shall not be accountable for the use or application by the Company of the 5.775% Fixed/Floating ING
Perpetual Debt Securities or the proceeds thereof.



36









 





     Section 12.04. Governing Law. This Fifth Supplemental Indenture and each 5.775%
Fixed/Floating 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 Fifth
Supplemental Indenture or in the 5.775% Fixed/Floating 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 Fifth
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 Fifth Supplemental
Indenture.



37









 





     IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be
duly executed as of the day and year first above written.



	 	 	 	 	 
	 	ING GROEP N.V.

     as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE BANK OF NEW YORK, as Trustee 

     and Paying Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




38









 








EXHIBIT A




FORM OF 5.775% Fixed/Floating 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 Fifth 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 Fifth 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.





     5.775% Fixed/Floating ING Perpetual Debt Securities (the “Securities”)



	 	 	 	 	 
	No.
	 	 	 	 
	CUSIP No.: 456837 AC 7
	 	$	 	 
	ISIN No.: US456837AC74
	 	 	 	 
	COMMON CODE: 023796252
	 	 	 	 






     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 [ ] ($[ ]) (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 Fifth Supplemental
Indenture) and to pay interest thereon from December 8, 2005 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on June
8 and December 8 in each year, commencing on June 8, 2006, and at such other times as are set forth
in the



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Indenture at the fixed rate of 5.775% per annum until December 8, 2015, and after December
8, 2015, quarterly in arrears on March 8, June 8, September 8 and
December 8 in each year, as such Interest Payment Date may be adjusted as provided in the
Indenture, and at such other times as are set forth in the Indenture, at a floating rate of
three-month LIBOR plus 1.68% per annum, until the principal hereof is paid or made available for
payment. Unless otherwise provided herein, 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 May 24 or
November 23 (whether or not a Business Day), as the case may be, next preceding such Interest
Payment Date until December 8, 2015, and thereafter the date (whether or not a Business Day) which
is fifteen calendar days preceding such Interest 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, for interest payable on or prior to December 8, 2015, and for interest payable
thereafter based on the actual number of days elapsed in a 360-day year. With respect to any
Interest Payment Date prior to and including December 8, 2015, 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 (without any interest or other payment with respect to the delay) and, for any
Interest Payment Date after December 8, 2015, if any date on which interest would otherwise be
payable falls on a day that is not a Business Day, then the Interest Payment Date will be the next
succeeding Business Day, except if such next succeeding Business Day falls in the next succeeding
calendar month, in which case the Interest Payment Date will be the immediately preceding Business
Day.



     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



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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 Deferral 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.



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     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 
	 	ING Groep N.V.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 
	Attest:
	 	 
	 

	 	 
	 
	 	 





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This is one of the Securities of the series designated herein and referred to in the Indenture.




Dated: December 8, 2005




	 	 	 	 	 
	 	The Bank of New York,

As Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



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[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
Fifth Supplemental Indenture, dated as of December 8, 2005 (herein called the “Fifth
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 Fifth 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



A-6









 







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 8, 2015.



     The Securities may be redeemed, at the option of the Company and without the consent of the
Holders or the Trustee, at a redemption price equal to the aggregate principal amount of the
Securities so redeemed, together with any Outstanding Payments in respect thereof accrued to and
including the date fixed for redemption (the “Base Redemption Price”), subject to the
Solvency Condition: (i) in whole or in part on December 8, 2015, or any Interest Payment Date
thereafter; (ii) in whole (but not in part) upon the occurrence of a Tax Event (other than a
Make-Whole Tax Event prior to the First Call Date, in which case the next succeeding paragraph
shall apply), provided that the Company has already delivered to the Trustee, in a form
satisfactory to the Trustee, a written



A-7









 







legal opinion of independent Dutch counsel of recognized
standing, selected by the Company, confirming that a Tax Event has occurred; or (iii) in whole (but
not in part) upon the occurrence of a Regulatory Event.



     Prior to the First Call Date, 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, subject to the
Solvency Condition, at the greater of (a) the Base Redemption Price and (b) the Make-Whole Amount:
(i) upon the occurrence of a Make-Whole 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 (ii) 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



A-8









 







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 $1,000 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.



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     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.




A-10