EXHIBIT 4.10
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CUSTODIAL AGREEMENT
among
CITIBANK, N.A.,
as Indenture Trustee,
U.S. BANK NATIONAL ASSOCIATION,
as Trustee,
and
U.S. BANK NATIONAL ASSOCIATION,
as Custodian
Dated as of -
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.1. Incorporation of Definitions by Reference........................................ 2
ARTICLE 2
APPOINTMENT OF CUSTODIAN
SECTION 2.1. Appointment of Custodian......................................................... 2
SECTION 2.2. Custodian not subject to direction of Trustee.................................... 2
ARTICLE 3
DELIVERY OF ING USA FUNDING AGREEMENTS
SECTION 3.1. Delivery of ING USA Funding Agreements........................................... 2
SECTION 3.2. Limited Interest of Trusts....................................................... 3
SECTION 3.3. Security Interest of Indenture Trustee........................................... 3
SECTION 3.4. Indenture Trustee Covenant to Abide by Custodial Agreement....................... 3
ARTICLE 4
INSPECTION OF ING USA FUNDING AGREEMENTS, BOOKS AND RECORDS
SECTION 4.1. Inspection of ING USA Funding Agreements......................................... 3
SECTION 4.2. Inspection of Books and Records.................................................. 3
ARTICLE 5
DUTIES OF CUSTODIAN
SECTION 5.1. General.......................................................................... 3
SECTION 5.2. Merger, Conversion or Consolidation of Custodian................................. 5
SECTION 5.3. Compliance with Writs, Orders or Decrees......................................... 5
SECTION 5.4. Delegation of Duties............................................................. 6
SECTION 5.5. No Constructive Knowledge........................................................ 6
SECTION 5.6. Reliance......................................................................... 6
SECTION 5.7. Release of ING USA Funding Agreements............................................ 6
SECTION 5.8. Limitations of Custodian Responsibility.......................................... 6
SECTION 5.9. Other Activities of the Custodian................................................ 7
ARTICLE 6
FEES AND COMPENSATION
SECTION 6.1. Compensation, Expenses and Indemnification....................................... 8
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ARTICLE 7
REPRESENTATIONS, WARRANTIES AND COVENANTS OF CUSTODIAN
SECTION 7.1. Representations and Warranties of Custodian..................................... 8
SECTION 7.2. Covenants of Custodian.......................................................... 9
ARTICLE 8
TERMINATION
SECTION 8.1. General......................................................................... 9
SECTION 8.2. Termination by Custodian........................................................ 10
SECTION 8.3. Termination by Indenture Trustee Without Cause.................................. 10
SECTION 8.4. Termination by Indenture Trustee for Cause...................................... 10
SECTION 8.5. Liabilities After Termination................................................... 11
SECTION 8.6. Appointment of Successor Custodian.............................................. 11
SECTION 8.7. Rights and Remedies of Indenture Trustee Regarding Termination.................. 11
SECTION 8.8. Actions Upon Termination........................................................ 12
ARTICLE 9
LIMITATION OF TRUSTEE LIABILITY
SECTION 9.1. Trustee Liability............................................................... 12
ARTICLE 10
GENERAL PROVISIONS
SECTION 10.1. Binding Effect; Successors, Transferees and Assigns............................. 13
SECTION 10.2. Amendments...................................................................... 13
SECTION 10.3. Assignment of ING USA Funding Agreements........................................ 13
SECTION 10.4. Notices......................................................................... 13
SECTION 10.5. Address of Custodian............................................................ 14
SECTION 10.6. Waiver of Certain Rights........................................................ 14
SECTION 10.7. Provisions Separable............................................................ 15
SECTION 10.8. Governing Law................................................................... 15
SECTION 10.9. Waiver of Jury Trial............................................................ 15
SECTION 10.10. Headings Not to Affect Interpretation........................................... 15
SECTION 10.11. Counterparts.................................................................... 15
SECTION 10.12. Acknowledgment of Multiple Roles................................................ 15
EXHIBIT A CERTIFICATE REGARDING CUSTODY OF THE FUNDING AGREEMENT
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THIS CUSTODIAL AGREEMENT (this "CUSTODIAL AGREEMENT") is entered
into as of [.], among U.S. BANK NATIONAL ASSOCIATION, a national banking
association, acting as Custodian (the "CUSTODIAN"), CITIBANK, N.A., a national
banking association duly incorporated and existing under the laws of the United
States of America, not in its individual capacity but solely as the Indenture
Trustee (the "INDENTURE TRUSTEE") for one or more series of the Notes (as
defined below), each to be issued by a common law trust (each a "TRUST")
organized in connection with the Program (as defined in the Indenture (as
defined below)), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association, as trustee (the "TRUSTEE") on behalf of each Trust organized in
connection with the Program.
WHEREAS, the Program provides for the continuous issuance of one or
more series of medium term notes (the "NOTES") pursuant to one or more separate
Indentures for each series of Notes among the relevant Trust and other parties
named therein, as each may be amended, modified, restated, supplemented and/or
replaced from time to time (the "INDENTURE");
WHEREAS, in connection with the issuance and sale of the Notes, each
Trust will purchase from ING USA Annuity and Life Insurance Company ("ING USA")
one or more Funding Agreements (as defined in the Indenture) relating to Notes
issued by such Trust (each such Funding Agreement, an "ING USA FUNDING
AGREEMENT");
WHEREAS, to secure the full and punctual payment of the Secured
Obligations (as defined in the Indenture) in accordance with the terms thereof
and to secure the performance of each Trust's obligations under the related
Notes and Indenture, each Trust will assign and pledge the related ING USA
Funding Agreement to the Indenture Trustee for the ratable benefit of each
Holder (as defined in the Indenture) pursuant to Section 4.01 of the Indenture;
WHEREAS, the parties desire that each ING USA Funding Agreement be
held in the State of Colorado at all times prior to the occurrence and
continuance of an Event of Default (as defined in each such ING USA Funding
Agreement);
WHEREAS, each Trust and the Indenture Trustee 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 ING USA Funding Agreement issued to
such Trust in connection with the Notes issued by such Trust and pledged and
assigned by such Trust to the Indenture Trustee for the ratable benefit of each
Holder pursuant to Section 4.01 of the Indenture; and
WHEREAS, the Custodian has the power and ability sufficient to
undertake and to discharge the duties accepted by it under this Custodial
Agreement;
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NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained herein, and for other good and valuable consideration, the
receipt of which is 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. In accordance with, and
pursuant to, the Indenture, the Indenture Trustee hereby appoints the Custodian
and the Custodian hereby acknowledges and agrees that it will act as custodian
for the benefit of the Indenture Trustee and the Holders with respect to each
ING USA Funding Agreement that is pledged and collaterally assigned to the
Indenture Trustee pursuant to the Indenture for the relevant series of Notes,
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 ING USA Funding Agreement specified in
such notice will be transferred to the Indenture Trustee or another Person in
the manner directed by the Indenture Trustee and (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 Trustee. 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 ING
USA Funding Agreement to the Trustee, on behalf of any Trust, without the
express written consent of the Indenture Trustee.
SECTION 2.3. Custodian not Agent of Indenture Trustee. The Custodian
is an independent contractor in relation to, and not an agent of, the Indenture
Trustee, and shall have no authority to act for or represent the Indenture
Trustee except as expressly set forth herein.
ARTICLE 3
DELIVERY OF ING USA FUNDING AGREEMENTS
SECTION 3.1. Delivery of ING USA Funding Agreements. The Indenture
Trustee shall, for safekeeping, deposit each ING USA Funding Agreement with and
deliver each ING USA Funding Agreement into, or cause each ING USA Funding
Agreement to be deposited with and delivered into, the actual exclusive and
continuous possession and control of the Custodian as custodian of the Indenture
Trustee.
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SECTION 3.2. Limited Interest of Trusts. Each Trust shall retain and
reserve only such interests, claims or rights in the ING USA Funding Agreements
issued to such Trust as are set forth herein, in the Indenture and in the
letters or other such documents as are used to effect such Trust's pledge and
collateral assignment of the applicable ING USA Funding Agreement to the
Indenture Trustee and to record ING USA's acknowledgement thereof.
SECTION 3.3. Security Interest of Indenture Trustee. Delivery of any
ING USA Funding Agreement to the Custodian shall, without any further act or
condition, constitute conclusive evidence against the relevant Trust to which it
was issued 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 and so long as it retains a security interest or other
ownership interest in a Funding Agreement, 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
Funding Agreement be at the location provided in Section 10.5 hereof or at such
other location within the State of Colorado designated by the Custodian.
ARTICLE 4
INSPECTION OF ING USA FUNDING AGREEMENTS, BOOKS AND RECORDS
SECTION 4.1. Inspection of ING USA Funding Agreements. So long as
any Notes are Outstanding, the Indenture Trustee and the Trustee on behalf of
each applicable Trust that issued such Notes, 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
such Trust, upon two Business Days' notice to the Custodian, to examine and
audit each ING USA Funding Agreement 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 ING USA Funding Agreement and, so long as any Notes are
Outstanding, the Indenture Trustee and the Trustee on behalf of each 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 such 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 ING USA
Funding Agreement in the State of Colorado at its address indicated
in Section 10.5 hereof as custodian of the Indenture Trustee,
subject to the provisions of
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this Custodial Agreement, the Indenture and each such ING USA
Funding Agreement;
(b) have and maintain open, notorious, continuous, active and exclusive
possession, dominion and control over each ING USA Funding Agreement
delivered to it under this Custodial Agreement, subject only to the
rights and interest of the Indenture Trustee and the Trust to which
it was issued;
(c) from time to time, certify the receipt of each ING USA Funding
Agreement as may be reasonably requested by the Indenture Trustee or
the Trustee on behalf of each applicable Trust to which it was
issued;
(d) from time to time upon request by (i) the Indenture Trustee or (ii)
the Trust and the Indenture Trustee, submit such information and
take such action as may be reasonably required by the Trustee on
behalf of each applicable Trust or the Indenture Trustee to assure
that each ING USA Funding Agreement is maintained in a proper and
secure condition;
(e) upon receipt of any ING USA Funding Agreement, issue to the
Indenture Trustee and the Trustee on behalf of the applicable Trust
a certificate relating to the relevant ING USA Funding Agreement in
substantially the form of 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 ING USA Funding
Agreement and at the written direction of the Indenture Trustee,
deliver each such ING USA Funding Agreement 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 ING USA Funding Agreement, follow the written
instructions received from the Indenture Trustee;
(i) exercise the same reasonable care and diligence in the possession,
retention and protection of each ING USA Funding Agreement delivered
to it under this Custodial Agreement as it exercises or would
exercise toward its own similar property;
(j) except as otherwise required by applicable law or by a governmental
authority with regulatory jurisdiction over the Custodian, maintain
the confidentiality of the information provided hereunder and in
each ING USA Funding Agreement, and not disclose or in any way
communicate such
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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);
(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 the ING USA
Funding Agreements 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; provided, that this Custodial Agreement sets
forth all matters pertinent to the custodies contemplated hereunder,
and no additional obligations of the Custodian shall be inferred
from the terms of this Custodial Agreement or any other 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 ING USA Funding Agreement 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
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with any such writ, order or decree it shall not be liable to any of the parties
hereto or to any other Person 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 and the
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 an Event of Default unless the
Custodian receives written notice of such 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 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 relevant Trust
and the Indenture Trustee 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 ING USA Funding Agreements. 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 ING USA
Funding Agreement 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 ING USA Funding
Agreement in its custody or for making any inquiry into any such ING
USA Funding Agreement.
(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: 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.
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(d) The Custodian shall not be personally liable for any error in
judgment made in good faith by an officer or employee of the
Custodian.
(e) No provision of this Custodial Agreement shall require the Custodian
to expend or risk its personal funds or otherwise incur any
financial liability in the performance of its rights or duties
hereunder, if the Custodian shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it.
(f) Under no circumstances shall the Custodian be liable for any
representation, warranty, covenant or indebtedness of a Trust or the
Indenture Trustee.
(g) In no event shall the Custodian be liable for (i) acting in
accordance with instructions given pursuant to this Custodial
Agreement from the Indenture Trustee or, if permitted under this
Custodial Agreement, a Trust, (ii) special or consequential damages
or (iii) the acts or omissions of the Custodian's nominees,
correspondents, designees, agents, subagents or sub-custodians
appointed by it without negligence and in good faith.
(h) In the event that the Custodian is unsure of the course of action to
be taken by it hereunder, the Custodian may request instructions
from the Indenture Trustee or, if permitted under this Custodial
Agreement, the relevant Trust, and to the extent the Custodian
follows such instructions in good faith it shall not be liable to
any Person. In the event that no instructions are provided within
the time reasonably requested by the Custodian, it shall have no
duty or liability for its failure to take action or for any action
it takes in good faith.
(i) As to any fact or matter the manner of ascertainment of which is not
specifically prescribed herein, the Custodian may for all purposes
hereof rely on a certificate, signed by a duly authorized officer or
representative of the Indenture Trustee or the relevant Trust as to
such fact or matter, and such certificate shall constitute full
protection to the Custodian for any action taken or omitted to be
taken by it in good faith in reasonable reliance thereon.
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 and its Affiliates, 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.
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(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.
(d) The Custodian shall have the right, but not the obligation to
consult with counsel of 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. Any
expenses of such counsel shall be paid by ING USA in accordance with
the Expense and Indemnity Agreement (defined below) to the extent
provided therein or in accordance with Section 7.10 of the Indenture
to the extent provided therein.
ARTICLE 6
FEES AND COMPENSATION
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 [.] entered into between the Custodian and ING USA.
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 of the Trusts that:
(a) it is a national banking association duly organized and validly
existing under the laws of the United States 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;
(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; and
(d) this Custodial Agreement constitutes a valid and legally binding
obligation of the Custodian enforceable against the Custodian in
accordance with its terms, except as enforcement may be limited by
general principles of equity
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and bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally.
SECTION 7.2. Covenants of Custodian. The Custodian hereby covenants
to the Indenture Trustee and the Trustee for the benefit of each of the Trusts
that:
(a) at all times it will maintain physical custody and possession of
each ING USA Funding Agreement deposited with it pursuant to the
terms of this Custodial Agreement within the State of Colorado at
the location specified in Section 10.5 hereof or at such other
location within the State of Colorado designated by the Custodian,
subject to the provisions of this Custodial Agreement, the Indenture
and each such ING USA Funding Agreement;
(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 of the Trusts in the future that
is not contemplated by this Custodial Agreement or any Trust
Agreement, 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 of the Trusts 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 the Trusts have
paid and discharged of all obligations to the Indenture Trustee with
respect to each of the Notes issued by each Trust and that the
Program has been terminated;
(b) termination of the Indenture and delivery by the Custodian of each
ING USA Funding Agreement 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 hereof.
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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 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 hereof 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 notice to the Custodian and each Trust (or such shorter notice as is
acceptable to the 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 hereof 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, and the Custodian may be removed, by the
Indenture Trustee for cause, upon 10 days' prior 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 hereof 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
breaches, any provision of this Custodial Agreement;
(b) the Custodian 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 any of the Trusts
or 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
10
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 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 indicted or convicted
for 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 (and the acceptance in writing by such successor
Custodian) of a successor Custodian by the Indenture Trustee that is an
established institution in the State of Colorado 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; provided,
however, that if no successor Custodian shall have been appointed and have
accepted appointment within ninety (90) days of the giving of any notice of
resignation by the Custodian, the Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian. 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
11
under this Custodial Agreement (except those that survive termination pursuant
to Section 8.5 above). 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 ING
USA Funding Agreement or otherwise, shall automatically and without further
action by any Person 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 ING USA Funding Agreements and documents relating
thereto then in the custody of the Custodian; and
(ii) deliver to the Indenture Trustee or successor Custodian an
accounting with respect to all books and records it has
maintained relating to each ING USA Funding Agreement 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
hereof) 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 ING USA Funding
Agreement upon receipt of appropriate indemnification and expense
reimbursement.
ARTICLE 9
LIMITATION OF TRUSTEE LIABILITY
SECTION 9.1. Trustee Liability. Notwithstanding any provision hereof
to the contrary, it is expressly understood and agreed by the parties hereto
that (a) this Custodial Agreement is executed and delivered on behalf of the
Trusts by U.S. Bank National Association not individually or personally, but
solely as Trustee, in the exercise of the powers and authority conferred and
vested in it, pursuant to the Trust Agreement, (b) each of the representations,
undertakings and agreements herein made on the part of the
12
Trust is made and intended not as personal representations, undertakings and
agreements by U.S. Bank National Association but is made and intended for the
purpose for binding only the Trusts, (c) nothing herein contained shall be
construed as creating any liability on U.S. Bank National Association,
individually or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereto and by any Person claiming by, through or under the parties
hereto, and (d) under no circumstances shall U.S. Bank National Association be
personally liable for the payment of any indebtedness or expenses of any of the
Trusts or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by any of the Trusts under this
Custodial Agreement or any other related documents; provided, however, that such
waivers shall not affect the liability of U.S. Bank National Association (or any
entity acting as successor or additional trustee) to any Person under any other
agreement to the extent expressly agreed to in its individual capacity
thereunder.
ARTICLE 10
GENERAL PROVISIONS
SECTION 10.1. 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 to the benefit
of and be enforceable by all parties hereto and their respective successors,
transferees and permissible assigns.
SECTION 10.2. 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 10.3. Assignment of ING USA Funding Agreements. No
assignment or purported assignment by collateral assignment, grant of security
interest or similar action by, or on behalf of, any Trust of any ING USA Funding
Agreement shall be recognized by the Custodian or be effective unless approved
in writing by the Indenture Trustee.
SECTION 10.4. 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 10.4. Each such notice, request or other communication shall be
effective (a) if given by facsimile, when such facsimile is transmitted to the
facsimile number specified pursuant to this Section 10.4, (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 10.4.
Such notices, requests and other communications shall be addressed,
if to any of the Trusts, to:
13
ING USA GLOBAL FUNDING TRUST [-]
c/o U.S. Bank National Association, as Trustee
Corporate Trust Services
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ Child, VP
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Indenture Trustee, to:
Citibank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Transaction Services-ING USA Global Funding Trust
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee, to:
U.S. Bank National Association
Corporate Trust Services
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ Child, VP
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 10.5. Address of Custodian. The Custodian shall hold each
ING USA Funding Agreement at the following address:
US Bank Corporate Trust Services
Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 10.6. Waiver of Certain Rights.
(a) 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 ING USA Funding Agreement delivered to it hereunder.
(b) With respect to each of the Trusts, the Indenture Trustee, in acting
under or by virtue of this Custodial Agreement, shall be entitled to
all the rights,
14
authority, privileges and immunities it receives from the relevant
Trust under the Indenture and such Trust hereby waives any of its
rights hereunder that may contravene such rights, authority,
privileges and immunities of the Indenture Trustee thereunder.
SECTION 10.7. 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 10.8. 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 10.9. 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 10.10. 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 10.11. 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.
SECTION 10.12. Acknowledgment of Multiple Roles. The parties
expressly acknowledge and consent to U.S. Bank National Association acting in
the capacity of Trustee of each Trust and in the capacity of Custodian with
respect to each Funding Agreement that is pledged and assigned by each Trust to
the Indenture Trustee. U.S. Bank National Association may, in such dual
capacities, discharge its separate functions fully, without hindrance or regard
to conflict of interest principles, duty of loyalty principles or other breach
of fiduciary duties to the extent that any such conflict or breach arises from
the performance by U.S. Bank National Association of any of its respective
duties in its capacities as Custodian and/or Trustee. The parties hereto waive
all defenses, claims or assertions against U.S. Bank National Association which
are based on the foregoing.
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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 day and
the year first above written.
U.S. BANK NATIONAL
ASSOCIATION, as Custodian
By:______________________________
Name:
Title:
CITIBANK, N.A., not in its
individual capacity but solely as
Indenture Trustee for the benefit
of the holders of the Notes issued
in connection with the Program
By:______________________________
Name:
Title:
U.S. BANK NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Trustee,
on behalf of each Trust organized
in connection with the Program
By:_______________________________
Name:
Title:
16
Exhibit A
Certificate Regarding Custody of the Funding Agreement
In connection with the issuance of the Funding Agreement and the Assignment of
Funding Agreement (set forth in Part IV of the Closing Instrument (as defined in
the Omnibus Instrument)), the Custodian hereby represents that it has received
delivery of the Funding Agreement and is holding the Funding Agreement for the
benefit of the Indenture Trustee subject to the terms and conditions of the
Custodial Agreement dated as of [-] among the Custodian, the Trustee and the
Indenture Trustee and that the Funding Agreement is in the possession of the
Custodian at the address below:
US Bank Corporate Trust Services
Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S. Bank National Association, as
Custodian
By:__________________________________
Name:
Title:
A-1
