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EXHIBIT 10.1
EXPENSE AND INDEMNITY AGREEMENT
This Expense and Indemnity Agreement (this "Agreement") is
entered into as
of [_______], 2005, by and between ING USA Annuity and Life
Insurance Company,
an Iowa insurance company ("ING USA"), and U.S. Bank National
Association, as
trustee (the "Trustee"), on behalf of itself and on behalf of
each Trust
organized in connection with the Program.
WHEREAS, in consideration of the Trustee providing services to
each Trust
created in connection with the Program and pursuant to the
Program Documents
under which the Trustee will have certain duties and
obligations, ING USA hereby
agrees to the following compensation arrangements and terms of
indemnity with
the Trustee and reimbursement arrangements and terms of
indemnity with each
Trust organized in connection with the Program; and
WHEREAS, the Trustee is entering into this Agreement on behalf
of itself
and on behalf of each Trust to be organized in connection with
the Program and,
therefore, this Agreement shall inure to the benefit of and be
binding upon each
such Trust.
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.
[__________])
filed with the Securities and Exchange Commission by ING USA on
[_________],
2005, 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 Trustee that
results from the bad
faith, misconduct or negligence of the Trustee, (v) any costs
and expenses
attributable solely to the Trustee's
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administrative overhead unrelated to the Program, (vi) any tax
imposed on fees
paid to the Trustee, (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 Trustee
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
administration of any Trust 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 Trustee its
Fees. Such
Fees may be subject to amendment in the event of a substantive
change in the
nature of the Trustee's duties under the Program, as may be
agreed to in writing
from time to time by the Trustee and ING USA.
Section 2.02 Payment of Obligations. (a) In the event that the
Trustee
delivers written notice and evidence, reasonably satisfactory to
ING USA, of any
Obligation of the Trustee or any Trust, 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 4.05
herein, or at such other address as such party shall hereafter
furnish in
writing.
(b) At the written request and expense of ING USA, the Trustee
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 on behalf of
itself or any
Trust, 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 ING
USA relating to any Obligation or any portion of any Obligation,
promptly after
any such amount relating to such Obligation, or any portion of
any such
Obligation, is otherwise received by the Trustee or any Trust
from a party other
than ING USA.
(c) ING USA and the Trustee, on behalf of itself and each Trust,
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 Trustee are not
subject to the
cap set forth in Section 6.06 of the Indenture.
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ARTICLE III
INDEMNIFICATION
Section 3.01 Indemnification.
(a) Subject to the remaining sections of this Article III, ING
USA
covenants to fully indemnify and defend the Trustee and its
executive officers
and directors (each, a "Trustee 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 Trustee, in
its capacity as
Trustee, of administration of the applicable Trust Agreement or
any Trust and/or
the performance of the Trustee's duties and/or
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