EXHIBIT 10.4
EXPENSE AND INDEMNITY AGREEMENT
This Expense and Indemnity Agreement (this "Agreement") is entered into as
of [.], by and between ING USA Annuity and Life Insurance Company,
an Iowa insurance company ("ING USA"), and U.S. Bank National Association, as
custodian (the "Custodian").
WHEREAS, in consideration of the Custodian's services to each Trust
created in connection with the Program and pursuant to the Program Documents,
ING USA hereby agrees to the following compensation arrangements and terms of
indemnity.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party hereby agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. All capitalized terms not otherwise
defined herein will have the meanings set forth in the Standard Indenture Terms
attached as Exhibit 4.1 to Registration Statement on Form S-3 (File No.
333-156411) filed with the Securities and Exchange Commission (the "Commission")
by ING USA on December 23, 2008, as may be amended. The following terms, as used
herein, have the following meanings:
"Excluded Amounts" means (i) any obligation of any Trust to make any
payment to any Holder in accordance with the terms of the applicable Indenture
or such Trust's Notes, (ii) any obligation or expense of any Trust to the extent
that such obligation or expense has actually been paid utilizing funds available
to such Trust from payments under the applicable Funding Agreement, (iii) any
cost, loss, damage, claim, action, suit, expense, disbursement, tax, penalty or
liability of any kind or nature whatsoever resulting from or relating to any
insurance regulatory or other governmental authority asserting that (a) any
Trust's Notes are, or are deemed to be, (1) participations in the applicable
Funding Agreement or (2) contracts of insurance, or (b) the offer, purchase,
sale and/or transfer of any Trust's Notes and/or the pledge and collateral
assignment of the applicable Funding Agreement by any Trust to the Indenture
Trustee on behalf of the Holders of such Trust's Notes (1) constitutes the
conduct of the business of insurance or reinsurance in any jurisdiction or (2)
requires such Trust or any Holder of such Trust's Notes to be licensed as an
insurer, insurance agent or broker in any jurisdiction, (iv) any cost, loss,
damage, claim, action, suit, expense, disbursement, tax, penalty or liability of
any kind or nature whatsoever imposed on the Custodian that results from the bad
faith, misconduct or negligence of the Custodian, (v) any costs and expenses
attributable solely to the Custodian's administrative overhead unrelated to the
Program, (vi) any tax imposed on fees paid to the Custodian, (vii) any
withholding taxes imposed on or with respect of payments made under the
applicable Funding Agreement, the applicable Indenture or a Trust's Note and
(viii) any Additional Amounts paid to any Holder.
"Fees" means the fees agreed to between ING USA and the Custodian as set
forth in the fee schedule attached as Exhibit A to this Agreement.
"Obligation" means any and all (i) costs and expenses reasonably incurred
(including the reasonable fees and expenses of counsel) relating to the
offering, sale or issuance of any Notes by any Trust under the Program or the
safekeeping of any Collateral and (ii) costs, expenses and taxes of each Trust;
provided, however, that Obligations do not include Excluded Amounts.
ARTICLE II
SERVICES AND FEES
Section 2.01 Fees. ING USA hereby agrees to pay the Custodian its Fees.
Such Fees may be subject to amendment in the event of a substantive change in
the nature of the Custodian's duties under the Program, as may be agreed to in
writing from time to time by the Custodian and ING USA.
Section 2.02 Payment of Obligations.
(a) In the event that the Custodian delivers written notice and evidence,
reasonably satisfactory to ING USA, of any Obligation of the Custodian, ING USA
shall, upon receipt of such notice, promptly pay such Obligation. Notice of any
Obligation (including any invoices) should be sent to ING USA at its address set
forth in Section 4.04, or at such other address as such party shall hereafter
furnish in writing.
(b) At the written request and expense of ING USA, the Custodian will (i)
from time to time execute all such instruments and other agreements and take all
such other actions as may be necessary or desirable, or that ING USA may
reasonably request in writing, to protect any interest of ING USA with respect
to any Obligation or to enable ING USA to exercise or enforce any right,
interest or remedy it may have with respect to any such Obligation, and (ii)
release to ING USA any amount received from a party other than ING USA in
connection with any Obligation or any portion thereof, promptly after any such
amount is received by the Custodian.
(c) ING USA and the Custodian hereby agree that all payments due under
this Agreement in respect of any Obligation shall be effected, and any
responsibility of ING USA to pay such Obligation pursuant to this Agreement
shall be discharged, by the payment by ING USA to the account of the person to
whom such Obligation is owed. For the avoidance of doubt, amounts due hereunder
from ING USA to the Custodian are not subject to the cap set forth in Section
6.06 of the Indenture.
ARTICLE III
INDEMNIFICATION
Section 3.01 Indemnification. Subject to the remaining sections of this
Article III, ING USA covenants to fully indemnify and defend the Custodian and
its executive officers and directors (each, an "Indemnified Person") for, and to
hold them harmless against, any and all loss, liability, claim, damage or
reasonable expense (including the reasonable compensation, expenses and
disbursements of its counsel) arising out of the acceptance by the Custodian, in
its capacity as Custodian, of the performance of its duties and/or the exercise
of its respective rights under the Custodial Agreement, including the reasonable
costs and expenses of defending itself against or investigating any claim of
liability in the premises, except to the extent such loss,
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liability, claim, damage or expense arises out of or is related to the bad
faith, misconduct or negligence of the Custodian. Notwithstanding anything to
the contrary, ING USA shall have no obligation to indemnify or defend the
Custodian for any loss, liability, claim, damage or expense relating to (i) any
costs and expenses attributable solely to the Custodian's administrative
overhead unrelated to the Program or (ii) any tax imposed on the Fees paid to
the Custodian.
Section 3.02 Proceedings. An Indemnified Person shall give prompt written
notice to ING USA of any action, suit or proceeding commenced or threatened
against the Indemnified Person. In case any such action, suit or proceeding
shall be brought involving an Indemnified Person, ING USA may, in its sole
discretion, elect to assume the defense of the Indemnified Person, and, if it so
elects, ING USA shall, in consultation with such Indemnified Person, select
counsel, reasonably acceptable to the Indemnified Person, to represent the
Indemnified Person and pay the reasonable fees and expenses of such counsel. In
any such action, investigation or proceeding, the Indemnified Person shall have
the right to retain its own counsel but ING USA shall not be obligated to pay
the fees and disbursements of such counsel unless (i) ING USA and the
Indemnified Person shall have mutually agreed to the retention of such counsel,
(ii) the named parties to any such action, investigation or proceeding
(including any impleaded parties) include both ING USA and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them or
(iii) ING USA fails, within ten (10) days prior to the date the first response
or appearance is required to be made in any such proceeding, to assume the
defense of such proceeding with counsel reasonably satisfactory to the
Indemnified Person; provided that ING USA has received written notice of such
action, investigation or proceeding at least twenty-five (25) days prior to the
date the first response or appearance is required to be made. It is understood
that ING USA shall not, in connection with any proceeding or related proceeding
in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified Persons.
Section 3.03 Contribution. Solely to the extent, if any, that the
indemnification provided for herein is finally determined by a court of
competent jurisdiction to be invalid or unenforceable, in whole or in part, in
accordance with its terms, then ING USA shall contribute to the amount paid or
payable by an Indemnified Person as a result of such liability in such
proportion as is appropriate to reflect the relative benefits received by ING
USA, on one hand, and the Custodian, on the other hand, from the transactions
contemplated by the Program Documents. For this purpose, the benefits received
by ING USA shall be the aggregate value of the relevant Collateral, and the
benefits received by the Custodian shall be the Fees it has been paid up to that
point, as the Custodian, less costs and unreimbursed expenses incurred by it, as
Custodian, in relation to such Collateral. If, however, the allocation provided
by the immediately preceding two sentences is not permitted by applicable law,
then ING USA shall contribute to such amount paid or payable by the Indemnified
Person in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of ING USA, on the one hand, and the
Custodian, on the other hand, in connection with the actions or omissions which
resulted in such liability, (but solely to the extent such fault results from or
is attributable to the Custodian's bad faith, willful misconduct or negligence).
Section 3.04 Subrogation. ING USA shall be subrogated to any right of the
Indemnified Person in respect of the matter as to which any indemnity was paid
hereunder.
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Section 3.05 Settlement. The Indemnified Person may not settle any action,
investigation or proceeding without the consent of ING USA, not to be
unreasonably withheld.
Section 3.06 Survival. Notwithstanding any provision contained herein to
the contrary, the obligations of ING USA under this Article III to any
Indemnified Person shall survive the termination of this Agreement pursuant to
Section 4.03.
Section 3.07 General. The indemnification provided for herein supersedes
in all respects any indemnification provision contained in any other Program
Document to which the Custodian is or becomes a party.
ARTICLE IV
MISCELLANEOUS
Section 4.01 Waiver. No waiver, modification or amendment of this
Agreement shall be valid unless executed in writing by the parties hereto.
Section 4.02 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles.
Section 4.03 Termination. This Agreement shall terminate and be of no
further force and effect upon the date on which (i) there are no Fees and there
is no Obligation (other than any Obligation directly related to the
indemnification obligations of ING USA set forth in Article III hereof) due and
payable under this Agreement and (ii) each Program Document has terminated;
provided, however, that this Agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time the Custodian must restore
payment of any sums paid under any Obligation or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 4.04 Notices. All notices, demands, instructions and other
communications required or permitted to be given to or made upon either party
hereto shall be in writing (including by facsimile transmission) and shall be
personally delivered or sent by guaranteed overnight delivery or by facsimile
transmission (to be followed by personal or guaranteed overnight delivery) and
shall be deemed to be given for purposes of this Agreement on the day that such
writing is received by the intended recipient thereof in accordance with the
provisions of this Section 4.04. Unless otherwise specified in a notice sent or
delivered in accordance with the foregoing provisions of this Section 4.04,
notices, demands, instructions and other communications in writing shall be
given to or made upon the respective parties thereto at their respective
addresses (or their respective facsimile numbers) indicated below:
To the Custodian:
US Bank Corporate Trust Services
Vice President
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
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Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To ING USA:
ING USA Annuity and Life Insurance Company
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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IN WITNESS WHEREOF, the parties have executed this Expense and Indemnity
Agreement by their duly authorized officers as of the date hereof.
ING USA ANNUITY AND LIFE INSURANCE
COMPANY
By: ________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as
Custodian
By: ________________________
Name:
Title:
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EXHIBIT A
FEES
The Custodian shall be entitled to receive the following fees at the
times set forth below:
$[_________] per annum. The Fees shall be due and payable upon
receipt of an invoice by ING USA.
