EXHIBIT 4.12
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (this "CUSTODIAL AGREEMENT") is
entered into as of o, 2006 among Bankers Trust Company, N.A., a national banking
association, acting as custodian (the "CUSTODIAN"), Citibank, N.A. in its
capacity as indenture trustee (the "INDENTURE TRUSTEE") for the holders of the
notes (the "NOTES") to be issued by each trust (each a "TRUST") organized in
connection with the Principal Life Insurance Company Secured Notes Program (the
"PROGRAM"), and U.S. Bank Trust National Association, as trustee (the "TRUSTEE")
on behalf of each Trust organized in connection with the Program.
WHEREAS, in connection with the issuance and sale of the
Notes by each Trust, the Trustee, on behalf of each Trust, will purchase
from Principal Life Insurance Company ("PRINCIPAL LIFE") a funding agreement (a
"FUNDING AGREEMENT"), the payment obligations of which are fully and
unconditionally guaranteed by Principal Financial Group, Inc. ("PFG") pursuant
to a guarantee issued to such Trust (the "GUARANTEE");
WHEREAS, the parties desire that each Funding Agreement
and Guarantee be held in the State of Iowa at all times prior to the
occurrence and continuance of an Event of Default (as defined in each such
Funding Agreement) or a breach of PFG's obligations under the terms of the
Guarantee;
WHEREAS, the parties desire that the Custodian be
appointed as custodian for the Indenture Trustee, to hold in safe custody for
the benefit of the Indenture Trustee, on the terms and conditions provided in
this Custodial Agreement, each Funding Agreement and Guarantee; and
WHEREAS, the Custodian has the power and ability
sufficient to undertake and to discharge the duties accepted by it under this
Custodial Agreement;
NOW, THEREFORE, in consideration of the foregoing
premises and the covenants contained herein, and for other good and valuable
consideration, the receipt of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. Incorporation of Definitions by Reference.
All capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the Standard Indenture Terms filed as an
exhibit to the registration statement concerning the Program.
ARTICLE 2
APPOINTMENT OF CUSTODIAN
SECTION 2.1. Appointment of Custodian. The Indenture
Trustee hereby appoints the Custodian and the Custodian hereby acknowledges that
it will act as custodian for the Indenture Trustee with respect to each Funding
Agreement and Guarantee that is collaterally assigned to the Indenture Trustee
pursuant to the Indenture and with respect to
each Funding Agreement and each Guarantee in which a security interest is
granted to the Indenture Trustee pursuant to the Indenture, and that comes into
the physical custody or possession of the Custodian under this Custodial
Agreement, until the earlier of (a) such time when the Indenture Trustee
notifies the Custodian in writing to the contrary, whereupon such physical
custody and possession of each Funding Agreement and Guarantee specified in such
notice will be transferred to the Indenture Trustee or another Person in the
manner directed by the Indenture Trustee or (b) the termination of this
Custodial Agreement. Acceptance by the Custodian of this appointment is
conclusively evidenced by its execution of this Custodial Agreement.
SECTION 2.2. Custodian Not Subject to Direction of Any
Trust. In no event shall the Custodian, in such custodial role, be construed to
be subject to the direction of the Trustee, on behalf of any Trust, or deliver
any such Funding Agreement or Guarantee to the Trustee, on behalf of any Trust,
without the express written consent of the Indenture Trustee.
ARTICLE 3
DELIVERY OF FUNDING AGREEMENTS AND GUARANTEES
SECTION 3.1. Delivery of Funding Agreements and
Guarantees. The Indenture Trustee shall, for safekeeping, deposit each Funding
Agreement and Guarantee with and deliver each Funding Agreement and Guarantee
into, or cause each Funding Agreement and Guarantee to be deposited with and
delivered into, the actual, exclusive and continuous possession and control of
the Custodian as custodian for the Indenture Trustee.
SECTION 3.2. Limited Interest of Each Trust. Each Trust
shall retain and reserve only such interests, claims or rights in the Funding
Agreements and Guarantees as are set forth herein, in the Indenture or other
such documents as are used (i) to effect the applicable Trust's collateral
assignment of the applicable Funding Agreement and applicable Guarantee to the
Indenture Trustee and to record Principal Life's acknowledgement thereof and
(ii) to grant a security interest in the applicable Funding Agreement and
applicable Guarantee to the Indenture Trustee and to record PFG's and Principal
Life's, respectively, acknowledgement thereof.
SECTION 3.3. Security Interest of Indenture Trustee.
Delivery of any Funding Agreement or Guarantee to the Custodian shall, without
any further act or condition, constitute conclusive evidence against the
applicable Trust and all third parties of the Indenture Trustee's security
interest therein.
SECTION 3.4. Indenture Trustee Covenant to Abide by
Custodial Agreement. The Indenture Trustee hereby covenants that, at all times
prior to an Event of Default or a breach of PFG's obligation under the Guarantee
and so long as it retains a security interest or other ownership interest in a
Funding Agreement or Guarantee, it will take no action to terminate or to cause
the termination of this Custodial Agreement, and it will abide by the
requirement herein that the physical custody and possession of each such
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Funding Agreement and each such Guarantee be at the location provided in Section
9.5 or at such other location within the State of Iowa designated by the
Custodian.
ARTICLE 4
INSPECTION OF FUNDING AGREEMENTS, GUARANTEES, BOOKS AND RECORDS
SECTION 4.1. Inspection of Funding Agreements and
Guarantees. So long as any Notes are Outstanding, the Indenture Trustee and the
Trustee, on behalf of the applicable Trust, by or through their attorneys,
agents or employees, shall each be entitled, but shall be under no obligation,
at any mutually agreeable time, during normal business hours, at the expense of
the applicable Trust, upon two Business Days' notice to the Custodian, to
examine and audit each Funding Agreement and Guarantee held by the Custodian.
SECTION 4.2. Inspection of Books and Records. The
Custodian shall maintain appropriate books and records relating to services
performed by it with respect to each Funding Agreement and Guarantee and, so
long as any Notes are Outstanding, the Indenture Trustee and the Trustee, on
behalf of the applicable Trust, by or through their attorneys, agents or
employees, shall each be entitled, but shall be under no obligation, at any
mutually agreeable time, during normal business hours, at the expense of the
applicable Trust, upon two Business Days' notice to the Custodian, to examine
such books and records.
ARTICLE 5
DUTIES OF CUSTODIAN
SECTION 5.1. General. The Custodian shall:
(a) on behalf of the Indenture Trustee, accept and hold each
Funding Agreement and Guarantee in the State of Iowa at
its address indicated in Section 9.5 as custodian for
the Indenture Trustee, subject to the provisions of this
Custodial Agreement, the Indenture and each such Funding
Agreement and Guarantee;
(b) have and maintain open, continuous and exclusive
possession, dominion and control over each Funding
Agreement and Guarantee delivered to it under this
Custodial Agreement, subject only to the rights and
interest of the Indenture Trustee and the applicable
Trust;
(c) from time to time, certify the receipt of each Funding
Agreement and Guarantee as may be reasonably requested
by the Indenture Trustee or the Trustee, on behalf of
the applicable Trust;
(d) from time to time upon request by (i) the Indenture
Trustee, or (ii) the Trustee, on behalf of the
applicable Trust, and the Indenture Trustee, submit such
information and take such action as may be reasonably
required by the Trustee, on behalf of the applicable
Trust or the Indenture Trustee to assure
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that each Funding Agreement and Guarantee is maintained
in a proper and secure condition;
(e) upon receipt of any Funding Agreement or Guarantee,
issue to the Indenture Trustee and the applicable Trust
a certificate relating to the applicable Funding
Agreement and related Guarantee in substantially the
form attached as Exhibit A attached hereto, which is
made a part hereof;
(f) upon its receipt of written notice from the Indenture
Trustee that an Event of Default has occurred with
respect to any Funding Agreement or a breach of the
obligations of PFG under any Guarantee has occurred and
at the written direction of the Indenture Trustee,
deliver each such Funding Agreement and related
Guarantee to the Indenture Trustee;
(g) at its own expense, maintain at all times during the
term of this Custodial Agreement and keep in full force
and effect (i) fidelity insurance, (ii) theft of
documents insurance and (iii) forgery insurance;
provided, that such insurance shall be in amounts, with
standard coverage and subject to deductibles, as are
customary for similar insurance typically maintained by
financial institutions that act as custodians in similar
transactions;
(h) unless otherwise specified herein, in providing services
hereunder with respect to any Funding Agreement or
Guarantee, follow the written instructions received from
the Indenture Trustee;
(i) exercise reasonable care and diligence, consistent with
customary standards for such custody, in the possession,
retention and protection of each Funding Agreement and
Guarantee delivered to it under this Custodial
Agreement;
(j) except as otherwise required by applicable law, maintain
the confidentiality of the information provided
hereunder and in each Funding Agreement and Guarantee,
and not disclose or in any way communicate such
information to third parties without the express written
consent of the Trustee, on behalf of the applicable
Trust (provided, however, that notwithstanding anything
herein to the contrary and except as reasonably
necessary to comply with any applicable federal and
state securities laws, the Custodian (and each employee,
representative or other agent of the Custodian) may
disclose to any and all persons, without limitation of
any kind, the U.S. federal and state income tax
treatment and tax structure of the transaction and all
materials of any kind (including opinions or other tax
analyses) that are provided to the Custodian relating to
such U.S. federal and state income tax treatment and tax
structure, where "tax structure" is any fact that may be
relevant to understanding the U.S. federal or state
income tax treatment of the transaction);
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(k) request written direction from the Indenture Trustee and
rely upon such written direction in the event that (i)
any dispute shall arise between the parties with respect
to the disposition of any Funding Agreement or Guarantee
held hereunder or (ii) the Custodian shall be uncertain
as to how to proceed in a situation not explicitly
addressed by the terms of this Custodial Agreement
whether because of conflicting demands by the other
parties hereto or otherwise; and
(l) have only those duties as are specifically provided
herein, which shall be deemed purely ministerial in
nature, and shall under no circumstance be deemed a
fiduciary for any of the parties to this Custodial
Agreement.
SECTION 5.2. Merger, Conversion or Consolidation of
Custodian. Notwithstanding anything herein to the contrary, any banking
association or corporation into which the Custodian may be merged, converted or
with which the Custodian may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Custodian shall be a party,
or any banking association or corporation to which all or substantially all of
the corporate trust business of the Custodian shall be transferred, shall
succeed to all the Custodian's rights, obligations and immunities hereunder
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
SECTION 5.3. Compliance with Writs, Orders or Decrees.
In the event that any Funding Agreement or Guarantee shall be attached,
garnished or levied upon by any court order, or the delivery thereof shall be
stayed or enjoined by an order of a court, or any order, judgment or decree
shall be made or entered by any court order affecting the property deposited
under this Custodial Agreement, the Custodian is hereby expressly authorized, in
its sole discretion, to obey and comply with all writs, orders or decrees so
entered or issued, which it is advised by legal counsel of its own choosing is
binding upon it, whether with or without jurisdiction, and in the event the
Custodian obeys or complies with any such writ, order or decree it shall not be
liable to any of the parties hereto or to any other Person, firm or corporation
by reason of such compliance notwithstanding such writ, order or decree be
subsequently reversed, modified, annulled, set aside or vacated.
SECTION 5.4. Delegation of Duties. The Custodian shall
not employ any third party institution to carry out any of the services to be
provided hereunder without the express written consent of the Indenture Trustee,
which consent shall not be unreasonably withheld.
SECTION 5.5. No Constructive Knowledge. The Custodian
shall not be deemed to have knowledge of the occurrence of a Default or Event of
Default unless the Custodian receives a written notice of such Default or Event
of Default from the Indenture Trustee or the Trustee, on behalf of the
applicable Trust.
SECTION 5.6. Reliance. In performance of its duties
under this Custodial Agreement, the Custodian shall be permitted to rely on any
certificate, instrument, document or communication believed by it to be genuine,
correct and signed by the proper
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Person or Persons. The Trustee, on behalf of the applicable Trust, and the
Indenture Trustee shall each execute and deliver to the Custodian a certificate
of incumbency for the purpose of establishing the identity of the
representatives of the Trustee, on behalf of the applicable Trust, and the
Indenture Trustee, respectively, entitled to issue instructions or directions to
the Custodian on behalf of each such party. In the event of any change in the
identity of such representatives, a new certificate of incumbency shall be
executed and delivered to the Custodian by the appropriate party. Until such
time as the Custodian shall receive a new incumbency certificate, the Custodian
shall be fully protected in relying without inquiry on any then current
incumbency certificate on file with the Custodian.
SECTION 5.7. Release of Funding Agreements and
Guarantees. Except as consented to by the Indenture Trustee or as otherwise
provided in the Indenture and this Custodial Agreement, the Custodian shall not
release any Funding Agreement or Guarantee from its possession without receiving
a prior written request duly executed on behalf of the Indenture Trustee.
SECTION 5.8. Limitations of Custodian Responsibility.
(a) The Custodian assumes no responsibility under this
Custodial Agreement other than to render the services
contemplated hereunder.
(b) The Custodian assumes no responsibility for the
effectiveness, genuineness, validity or enforceability
of any Funding Agreement or Guarantee in its custody or
for making any inquiry into any such Funding Agreement
or Guarantee.
(c) The Custodian shall not be liable or deemed to be in
default for any failure or delay in performance of any
duty in whole or in part arising out of or caused by any
of the following: a major external flood; earthquake;
"act of God;" failure of public utility; act of war; act
of terrorism; or rebellion or revolution in the United
States.
SECTION 5.9. Other Activities of the Custodian.
(a) Nothing herein shall prevent the Custodian or any of its
Affiliates from engaging in other businesses, or from
rendering services of any kind to any Trust, the
Indenture Trustee or any other Person or entity to the
extent permitted by applicable law.
(b) It is understood that the Custodian and any of its
Affiliates may engage in any other business and furnish
custodial services to others.
(c) The Custodian will be free, in its sole discretion, to
effect transactions on behalf of itself or for others,
which may be the same as or different from those
effected under this Custodial Agreement.
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(d) The Custodian shall have the right, but not the
obligation to consult with counsel of its choice and
shall not be liable for action taken or omitted to be
taken by the Custodian either in accordance with the
advice of such counsel or in accordance with any opinion
of counsel to any Trust addressed and delivered to the
Custodian.
ARTICLE 6
COMPENSATION, EXPENSES AND INDEMNIFICATION
SECTION 6.1. Compensation, Expenses and Indemnification.
The Custodian shall be entitled to compensation, expenses and indemnification as
set forth in that certain Expense and Indemnity Agreement (the "EXPENSE AND
INDEMNITY AGREEMENT"), dated as of o, 2006 entered into between the Custodian
and Principal Life.
ARTICLE 7
REPRESENTATIONS, WARRANTIES AND COVENANTS OF CUSTODIAN
SECTION 7.1. Representations and Warranties of
Custodian. The Custodian hereby represents and warrants to the Indenture Trustee
and the Trustee, for the benefit of each Trust, that:
(a) it is a national banking association duly organized and
validly existing and in good standing under the laws of
the State of Iowa and has full power and authority to
own its assets and to transact the business in which it
is currently engaged and is duly qualified and in good
standing under the laws of each jurisdiction where its
ownership or lease of property or the conduct of its
business requires, or the performance of this Custodial
Agreement would require, such qualification;
(b) it, and each Person acting on its behalf, has full power
and authority to execute and deliver this Custodial
Agreement and to perform all of its obligations under
this Custodial Agreement; and
(c) this Custodial Agreement, and each instrument and
document required hereunder that was executed and
delivered by, or on behalf of, the Custodian, has been
executed and delivered by a duly authorized officer of
the Custodian.
SECTION 7.2. Covenants of Custodian. The Custodian
hereby covenants to the Indenture Trustee and the Trustee, for the benefit of
each Trust, that:
(a) at all times it will maintain physical custody and
possession of each Funding Agreement and Guarantee
deposited with it pursuant to the terms of this
Custodial Agreement within the State of Iowa at the
location specified in Section 9.5 or at such other
location within the State of Iowa designated by the
Custodian;
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(b) each instrument and document required to be executed or
delivered by, or on behalf of, the Custodian, shall be
executed and delivered by a duly authorized officer of
the Custodian;
(c) prior to any affiliation with any Trust in the future,
it shall notify the Indenture Trustee of any such
contemplated affiliation; and
(d) it shall not institute, or join any other Person in
instituting, against any Trust any bankruptcy,
reorganization, arrangement, insolvency, moratorium or
liquidation proceedings or other proceedings under
federal or state bankruptcy or similar laws until at
least one year and one day (or, if longer, the
applicable preference period then in effect) after the
payment in full of all Notes issued by any Trust in
connection with the Program.
ARTICLE 8
TERMINATION
SECTION 8.1. General. This Custodial Agreement and the
duties and responsibilities of the Custodian hereunder shall remain in effect
until the occurrence of one or more of the following events:
(a) delivery to the Custodian by the Indenture Trustee of a
written certification signed by the Indenture Trustee
that each Trust organized in connection with the Program
has paid and discharged all obligations with respect to
the Notes issued by each such Trust and that the Program
has been terminated;
(b) termination of each Indenture entered into by each Trust
organized in connection with the Program, and delivery
by the Custodian of each Funding Agreement and Guarantee
in its possession hereunder to the Indenture Trustee or
as the Indenture Trustee shall direct in writing and
certification by the Indenture Trustee that the Program
has been terminated; or
(c) termination of this Custodial Agreement pursuant to
Section 8.2, 8.3 or 8.4.
SECTION 8.2. Termination by Custodian. This Custodial
Agreement may be terminated by the Custodian, at any time, and the Custodian may
resign, upon 30 days' prior written notice to the Trustee, on behalf of each
Trust and the Indenture Trustee; provided, however, that no termination or
resignation pursuant to this Section 8.2 shall be effective until the date as of
which a successor Custodian shall be appointed in accordance with Section 8.6
and shall have agreed in writing to assume all of the Custodian's duties and
obligations under this Custodial Agreement.
SECTION 8.3. Termination by Indenture Trustee Without
Cause. This Custodial Agreement may be terminated at any time by the Indenture
Trustee, without cause, and the Indenture Trustee may remove the Custodian, upon
30 days' prior written notice to the Custodian and each Trust (or such shorter
notice as is acceptable to the
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Custodian and each Trust); provided, however, that no termination or removal
pursuant to this Section 8.3 shall be effective until the date as of which a
successor Custodian shall be appointed in accordance with Section 8.6 and shall
have agreed in writing to assume all of the Custodian's duties and obligations
under this Custodial Agreement.
SECTION 8.4. Termination by Indenture Trustee for Cause.
This Custodial Agreement may be terminated at any time by the Indenture Trustee,
for cause, and the Indenture Trustee may remove the Custodian, upon 10 days'
prior written notice to the Custodian; provided, however, that no termination or
removal pursuant to this Section 8.4 shall be effective until the date as of
which a successor Custodian shall be appointed in accordance with Section 8.6
and shall have agreed in writing to assume all of the Custodian's duties and
obligations under this Custodial Agreement. For purposes of determining "cause"
with respect to any such termination of this Custodial Agreement, such term
shall mean any one of the following events:
(a) the Custodian willfully violates, or takes any action
that it knows materially breaches, any provision of this
Custodial Agreement;
(b) the Custodian materially breaches in any respect any
provision of this Custodial Agreement (other than as
specified in paragraph (a) of this Section 8.4) and
fails to cure such breach within 30 days of its becoming
aware, or its receiving notice from the Indenture
Trustee, of such breach;
(c) the Custodian is wound up or dissolved or there is
appointed over it, or a substantial portion of its
assets, a receiver, administrator, administrative
receiver, trustee or similar officer;
(d) the Custodian (i) ceases to be able to, or admits in
writing its inability to, pay its debts as they become
due and payable, or makes a general assignment for the
benefit of, or enters into any composition or
arrangement with, its creditors generally; (ii) applies
for or consents to the appointment of a receiver,
trustee, assignee, custodian, liquidator or sequestrator
(or other similar official) of the Custodian or of any
substantial part of its properties or assets, or
authorizes such an application or consent, or
proceedings seeking such appointment are commenced
without such authorization, consent or application
against the Custodian and continue undismissed for 60
days; (iii) authorizes or files a voluntary petition in
bankruptcy, or applies for or consents to the
application of any bankruptcy, reorganization,
arrangement, readjustment of debt, insolvency or
dissolution, or authorizes such application or consent,
or proceedings to such end are instituted against the
Custodian without such authorization, application or
consent and are approved as properly instituted and
remain undismissed for 60 days or result in adjudication
of bankruptcy or insolvency; (iv) permits or suffers all
or any substantial part of its properties or assets to
be sequestered or attached by court order and such order
remains undismissed for 60 days; or (v) engages in any
activity analogous
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to the activities set forth in clauses (i) through (iv)
of this Section 8.4(d) in any applicable jurisdiction;
or
(e) the occurrence of an act by the Custodian that
constitutes fraud or criminal activity in the
performance of its obligations under this Custodial
Agreement, or the Custodian being convicted of a
criminal offense materially related to its primary
businesses.
SECTION 8.5. Liabilities After Termination. If this
Custodial Agreement is terminated as provided herein, none of the parties hereto
shall have any further liability or obligation to the other parties hereto,
except as provided in Sections 5.1(j), 8.6, 8.7 and 8.8 of this Custodial
Agreement.
SECTION 8.6. Appointment of Successor Custodian. Any
removal or resignation of the Custodian while any Notes are Outstanding will be
effective only upon the appointment by the Indenture Trustee (and the acceptance
in writing by such successor Custodian) of a successor Custodian that is an
established institution in the State of Iowa which (a) has demonstrated an
ability to professionally and competently perform duties similar to those
imposed upon the Custodian hereunder and (b) is legally qualified and has the
capacity to act as Custodian hereunder in the assumption of all of the
responsibilities, duties and obligations of the Custodian hereunder. The
Trustee, on behalf of each Trust, the Indenture Trustee, the Custodian and the
successor Custodian shall take such action (or cause the removed or resigning
Custodian to take such action) consistent with this Custodial Agreement as shall
be necessary to effectuate any such succession.
SECTION 8.7. Rights and Remedies of Indenture Trustee
Regarding Termination. In the event of removal of the Custodian pursuant to this
Custodial Agreement by the Indenture Trustee, the Indenture Trustee shall have
all of the rights and remedies available with respect thereto at law or equity,
and, without limiting the foregoing, the Indenture Trustee may by notice in
writing to the Custodian as provided under this Custodial Agreement terminate
all the rights and obligations of the Custodian under this Custodial Agreement
(except those that survive termination pursuant to Section 8.5). Upon the
expiration of any applicable notice period with respect to termination of this
Custodial Agreement, all authority and power of the Custodian under this
Custodial Agreement, whether with respect to each Funding Agreement or Guarantee
or otherwise, shall automatically and without further action by any Person or
entity pass to and be vested in the successor Custodian upon the appointment
thereof and the agreement of such successor Custodian to assume the Custodian's
duties and obligations under this Custodial Agreement.
SECTION 8.8. Actions Upon Termination.
(a) Upon the effective date of termination of this Custodial
Agreement, the Custodian shall, as soon as practicable:
(i) deliver to the Indenture Trustee, the
successor Custodian or to such other Person as
the Indenture Trustee directs in writing all
Funding
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Agreements and Guarantees then in the custody
of the Custodian; and
(ii) deliver to the Indenture Trustee or successor
Custodian an accounting with respect to the
books and records relating to each Funding
Agreement and Guarantee that was delivered to
the Custodian.
(b) Notwithstanding any such termination, the Custodian
shall remain liable to the extent set forth herein (but
subject to Section 8.6) for its acts or omissions
hereunder arising prior to termination and for any
expenses, losses, claims, damages, judgments,
assessments, costs or other liabilities (including
reasonable attorneys' fees) in respect of or arising out
of a material breach of the representations, warranties
or covenants made by the Custodian under this Custodial
Agreement or from any failure of the Custodian to comply
with the provisions of this Section 8.8.
(c) The Custodian agrees that, notwithstanding any
termination, it shall reasonably cooperate in any
proceeding arising in connection with this Custodial
Agreement, the Indenture or any Funding Agreement or
Guarantee upon receipt of appropriate indemnification
and expense reimbursement.
ARTICLE 9
GENERAL PROVISIONS
SECTION 9.1. Binding Effect; Successors, Transferees and
Assigns. This Custodial Agreement shall be binding upon the parties hereto,
their respective successors, transferees and assigns, and shall inure the
benefit of and be enforceable by all parties hereto and their respective
successors, transferees and permissible assigns.
SECTION 9.2. Amendments. This Custodial Agreement may
not be amended without the express written consent of the Custodian, the
Indenture Trustee and the Trustee acting on behalf of each Trust.
SECTION 9.3. Assignment of Funding Agreements and
Guarantees. No collateral assignment, grant of security interest or similar
action by, or on behalf of, any Trust of any Funding Agreement or Guarantee
shall be recognized by the Custodian or be effective unless approved in writing
by the Indenture Trustee.
SECTION 9.4. Notices. All notices, requests and other
communications under this Custodial Agreement shall be in writing (including
bank wire, facsimile or similar writing) and shall be given to the relevant
Person at its address or facsimile number set forth below or such other address
or facsimile number as such Person may hereafter specify for such purpose by not
less than 10 Business Days' prior notice to each other Person specified in this
Section 9.4. Each such notice, request or other communication shall be effective
(a) if given by facsimile, when such facsimile is transmitted to the
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facsimile number specified pursuant to this Section 9.4, (b) if given by mail,
48 hours after such communication is deposited in the mails with first class
postage prepaid, or (c) if given by any other means, when delivered or received
at the address specified in this Section 9.4.
Such notices, requests and other communications shall be
addressed, if to the Trust, to:
Principal Life Income Fundings Trust
c/o U.S. Bank Trust National Association, as Trustee
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: 212-509-3384
if to the Indenture Trustee, to:
Citibank, N.A.
Citibank Agency & Trust
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: 000-000-0000
if to the Trustee, to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: 212-509-3384
SECTION 9.5. Address of Custodian. The Custodian shall
hold each Funding Agreement and Guarantee at the following address:
Bankers Trust Company, N.A.
000 0xx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Brick
Facsimile: 000-000-0000
SECTION 9.6. Waiver of Certain Rights. The Custodian
hereby waives, relinquishes and releases any rights which it may have by way of
contract or law, whether through exercise of a right of set-off, security
interest, counterclaim or otherwise, to obtain any property or payment from,
under or with respect to any Funding Agreement or Guarantee delivered to it
hereunder.
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SECTION 9.7. Provisions Separable. Any provision of this
Custodial Agreement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or affecting the validity or enforceability or
legality of such provision in any other jurisdiction.
SECTION 9.8. Governing Law. This Custodial Agreement
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to its choice of law principles.
SECTION 9.9. Waiver of Jury Trial. Each of the parties
to this Custodial Agreement hereby irrevocably waives any and all right to a
trial by jury with respect to any legal proceeding arising out of or relating to
this or any related transaction.
SECTION 9.10. Headings Not to Affect Interpretation. The
headings contained in this Custodial Agreement are for convenience only, and
they neither form a part of this Custodial Agreement nor are they to be used in
the construction or interpretation hereof.
SECTION 9.11. Counterparts. This Custodial Agreement may
be executed and delivered in any number of counterparts, each of which, when so
executed and delivered, shall be an original; provided, however, that such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Custodial
Agreement to be duly executed by their respective authorized officers, as of the
date first above written.
BANKERS TRUST COMPANY, N.A., as Custodian
By:
--------------------------------------
Name: Xxxxxx X. Brick
Title: Vice President
CITIBANK, N.A., as Indenture Trustee for
the benefit of the holders of the Notes
issued in connection with the Program
By:
--------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee, on behalf of
each Trust organized in connection with
the Program
By:
--------------------------------------
Name:
Title:
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EXHIBIT A
CERTIFICATE REGARDING CUSTODY OF THE
FUNDING AGREEMENT AND THE GUARANTEE
In connection with the issuance of the Funding Agreement, the
Assignment of Funding Agreement (set forth in Part IV of the Closing Instrument
(as defined in the Omnibus Instrument)) and the issuance of the Guarantee, the
Custodian hereby represents that it has received delivery of the Funding
Agreement and the Guarantee and is holding the Funding Agreement and the
Guarantee for the benefit of the Indenture Trustee and that the Funding
Agreement and the Guarantee are in the possession of the Custodian at the
address below:
Bankers Trust Company, N.A.
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
A-1
