Exhibit 10.1
INVESTMENT MANAGEMENT AND SERVICES AGREEMENT
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This Investment Management and Services Agreement (the "Agreement") by and
between American Enterprise Life Insurance Company (the "Company") and
RiverSource Investments, LLC (the "Investment Manager") is effective the 1st
day of October 2005.
Whereas the Company is a life insurance companies domiciled in the state of
Indiana (the "Relevant State"); and
Whereas the Company owns assets that it wishes to invest in securities
permitted for domestic life insurance companies under the laws of the
Relevant State; and
Whereas, the Company wishes the Investment Manager to provide investment
management and asset-liability management services for its investments; and
Whereas the Investment Manager is a Minnesota limited liability company that
has extensive experience in and an established infrastructure for the kind
of investment management and asset-liability management services
contemplated for the Company; and
Whereas, the Investment Manager or an affiliate has historically provided
investment management and asset-liability management services for the
Company and the Company wishes to continue to obtain such services under
this Agreement.
NOW THEREFORE; it is mutually agreed:
1. OWNERSHIP OF INVESTMENTS. The investments managed by the Investment
Manager under this Agreement shall be those securities held in one or more
accounts identified from time to time by the Company and agreed upon by the
Investment Manager (collectively, the "Account"), which is annexed to and
made a part of this Agreement. The term "Investments" as used herein shall
refer to the securities held in the Account as well as any investments that
the Investment Manager shall determine should be entered into on behalf of
the Company including but not limited to equities of all types and kinds,
bonds, debentures, notes, bank deposits, banker's acceptances, repurchase
agreements, mutual fund shares, money market instruments, real property,
mortgage loans, derivatives and leveraged loans. It is agreed that at all
times the Company's Investments are owned by the Company.
2. INVESTMENT MANAGEMENT. Subject to the oversight of the Board of Directors
of the Company and the Executive Committee or Investment Committee
thereunder, the Investment Manager shall manage the Investments of the
Company, including the purchase, retention and disposition thereof, in
accordance with the Investment Guidelines (as hereinafter defined) of the
Company. The term "Committee" as used herein shall refer to the Executive
Committee or Investment Committee of the Company, whichever applies.
a. In connection therewith, the Investment Manager shall:
(i) provide continuous, discretionary investment management services for the
Investments;
(ii) determine from time to time what Investments will be purchased,
retained, or sold and what portion, if any, of the assets will be invested
or held uninvested as cash, in accordance with the directions of the
Committee; and
(iii) act as agent and attorney-in-fact to act on behalf of the Account with
respect to purchases, sales, exchanges, conversions and other transactions
in the Investments.
b. In the performance of its duties and obligations under this Agreement,
the Investment Manager shall act in conformity with the Investment
Guidelines of the Company and under the oversight of the Committee and the
Company's Board of Directors, and consistent with applicable laws and
regulations, as furnished in accordance with Section 5 below, and such other
information furnished to it by the Company as described under Section 5
below.
c. The Investment Manager shall be responsible for and shall vote proxies
from the issuers of any Investments in the Account in a manner consistent
with the proxy voting policies of the Investment Manager in effect from time
to time. The Investment Manager shall not be responsible for any other
corporate actions relating to the Account, including administrative filings
such as proofs of claims or claims in class actions. However, the Investment
Manager will assist the Company with respect to these matters by providing
historical transaction information as reasonably requested by the custodian
or the Company.
d. The Investment Manager shall provide the Company, any of the Company's
agents and employees and the Committee with reasonable access to information
regarding its internal operating procedures and guidelines, as they pertain
to the Investments held by the Company.
e. The Investment Manager shall provide the Company with further assistance
reasonably related to the foregoing services in a prompt and responsive
manner.
f. The parties further agree that the Investment Manager shall have no
responsibility with respect to assets credited to the Account, or held
outside the Account, to the extent the Company or the Committee has provided
directions for the acquisition, holding or disposition of those assets, or
with respect to assets over which the Investment Manager has no authority or
control.
g. The Investment Manager shall attend periodic meetings with the Committee
in person or by telephone, as reasonably requested and provide such
information or reports at such times and in such manner as the Company may
reasonably request.
h. The Investment Manager shall perform its duties and obligation hereunder
through its officers, directors, partners and employees. In rendering the
services contemplated by this Agreement, the Investment Manager may utilize
the services of an affiliate or enter into agreements with unaffiliated
third parties pursuant to which the third parties may assist it in
performing any of the services set forth in this Agreement; provided,
however, that the Investment Manager shall obtain prior written approval of
the Company prior to engaging any unaffiliated third party to provide the
core investment management or asset-liability management services
contemplated under this Agreement. The Company acknowledges and agrees that
the Investment Manager may retain one or more third-party pricing services
and one or more proxy voting agents to assist in the execution of proxy
votes.
3. ASSET-LIABILITY MANAGEMENT. During the term of this Agreement, the
Investment Manager shall provide asset-liability services with respect to
the Investments designed to assist the Company in managing the relationship
between its assets and liabilities. In connection therewith, the Investment
Manager shall:
a. measure, monitor and recommend strategies to manage interest-rate risk
through strategies that fit within the Company's overall objectives
described in the Investment Guidelines (defined below); and
b. prepare and deliver such asset/liability reports, and responses to other
reasonable requests for specific recommendations and input, as the Company
or the Committee may reasonably request from time to time.
4. OTHER SERVICES.
(a) For the avoidance of doubt the Investment Manager shall have no
responsibility under this Agreement for matters which are not described
herein ("Additional Services").
(b) Where the Company requests the Investment Manager to perform
any Additional Services, it shall be for both parties to agree the extent
and the terms upon which such Additional Services are to be provided
pursuant to a separate written Agreement between the parties.
5. INFORMATION FURNISHED TO THE INVESTMENT MANAGER. Consistent with the
provisions of Section 1 hereof, the Company shall make available to the
Investment Manager such information as to the Company's Investments,
investment portfolio requirements, quantitative requirements, liability and
such other information as will reasonably enable the Investment Manager to
furnish the services under this Agreement including, but not necessarily
limited to, a statement of the requirements, if any, imposed by law upon the
type, distribution and quality of the Investments (or by other law
applicable to the Company's business with respect to the Investments) and
such investment policies, objectives and guidelines as the Company shall
state (collectively, the "Investment Guidelines"), which may be amended from
time to time by the Company. The Company shall communicate any changes in
the Investment Guidelines to the Investment Manager in writing at least ten
(10) business days before the date on which they shall become effective. The
Company agrees to give the Investment Manager prompt written notice if the
Company believes any Account recommendations, advice or Investments are in
violation of the Investment Guidelines.
For purposes of this Section 5, the requirements imposed by law upon the
type, distribution and quality of the Investments, or by other law
applicable to the Company's business with respect to the Investments, shall
include the law of the Relevant State applicable to life insurance companies
domiciled within the Relevant States. These requirements shall include not
only the requirements of the Relevant States' Insurance Law, but also the
requirements of all Regulations, Circular Letters and Administrative
Guidelines of the Relevant State's Insurance Departments relating to the
investment of funds for the Company.
The Company will furnish to the Investment Manager any other information
that the Investment Manager may reasonably request with respect to the
services performed or to be performed by the Investment Manager under this
Agreement.
The Investment Manager shall at all times use its best efforts to comply
with the Investment Guidelines and the instructions of persons designated by
the Company. In determining the requirements and limitations of any laws
governing the investments managed under this Agreement, the Investment
Manager may rely on an interpretation of such laws by counsel to the
Company.
6. RECORDS. The Investment Manager will maintain all records, memoranda,
instructions or authorizations which the Company has described in reasonable
detail to the Investment Manager as required by law, or for tax purposes,
and relating to the acquisition or disposition of Investments by the
Investment Manager for the Company. Such records, memoranda, instructions
and authorizations shall be the property of the Company. To the extent
practicable, the Investment Manager will make available to the Company, at
its administrative offices, copies or originals of such records, memoranda,
instructions or authorizations upon reasonable request and, as necessary, to
comply with its obligations hereunder. In addition, all such records,
memoranda, instructions or authorizations shall be available to the Company
for audit and inspection during the Investment Manager's regular business
hours at the Investment Manager's place of business. All such records,
memoranda, instructions or authorizations shall also be made available to
any regulatory authorities with supervision over the Company, upon request.
If this Agreement is terminated, then to the extent practicable, the
Investment Manager will turn over all such records, memoranda, instructions
and authorizations to the Company upon reasonable request, but shall be
permitted to make copies of them before turning them over to the Company and
shall be permitted to retain such copies.
7. BROKERAGE. The Investment Manager is authorized to use its discretion to
select the brokers or dealers that will execute transactions in Investments
for the Account and the Investment Manager will use its best efforts to
obtain the best available price and most favorable execution, consistent
with this Agreement. The Investment Manager may effect individual
transactions in Investments at commission rates in excess of the minimum
commission rates available, to the extent authorized by law, if the
Investment Manager determines in good faith that such amount of commission
was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or the Investment Manager's overall responsibilities
with respect to the Investments. The Company understands that the Company
may not receive best execution in any individual transaction.
The Company may give the Investment Manager reasonable written requests
directing brokerage to certain broker-dealers. To the extent the Company
wishes to establish a directed brokerage arrangement, the Company shall send
a written instruction to the Investment Manager naming the broker-dealer and
describing the nature of the brokerage direction or the directed commission
arrangement. Any such directed brokerage arrangement shall be subject to the
Investment Manager's prior approval. The Investment Manager shall not be
responsible for any loss caused by any act or omission of any broker-dealer;
provided, however, that with respect to any broker-dealer that has been
selected by the Investment Manager, the Investment Manager has acted
prudently in such selection.
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
a. The Company represents and warrants that:
(i) It is duly authorised to retain the Investment Manager and to
exercise its powers and obligations under this Agreement; and
(ii) It complies with all applicable laws, regulations and codes of
conduct to which it is subject in carrying out its obligations
under this Agreement.
(iii) Each person identified by the Company as authorized and
empowered to provide instructions related to this Agreement on
behalf of the Company has been duly authorized by the Company to do
so.
(iv) The Company is and will continue to be the owner of all assets
in the Account, and will inform the Investment Manager if there are
any restrictions on transfer of any
Investments.
(vi) The Company is establishing and will be maintaining the
Account solely for the purpose of investing the Investments and not
with a view to obtaining information regarding portfolio holdings
or investment decisions in order to effect securities transactions
based upon such information or to provide such information to
another party. The Company and its authorized persons shall not use
Account holdings information for any of the foregoing purposes.
b. The Investment Manager shall be entitled to rely on the foregoing as
continuing representations and warranties by the Company until such time as
the Company notifies the Investment Manager in writing to the contrary.
9. REPRESENTATIONS AND WARRANTIES OF THE INVESTMENT MANAGER.
a. The Investment Manager represents and warrants that:
(i) It is duly organized and validly existing under the laws of its
place of organization
(ii) It is registered with the U.S. Securities and Exchange
Commission as an investment adviser and is duly authorised to carry
out its investment management business and to exercise its powers
and obligations under this Agreement;
(iii) It shall notify the Company if its authorisation to act as an
investment adviser is materially altered, revoked or suspended; and
(iv) It complies with all applicable laws, regulations and codes of
conduct to which it is subject in carrying out its obligations
under this Agreement.
b. The Company shall be entitled to rely on the foregoing as continuing
representations and warranties by the Investment Manager until such time as
the Investment Manager notifies the Company in writing to the contrary.
10. LIMITATION OF LIABILITY. In furnishing the Company with services as
provided herein, the Investment Manager (including any officer, director or
agent) shall exercise its best judgment and shall not be held liable to the
Company, its creditors or the holders of its securities or deposits for
errors of judgment or for any loss except a loss resulting from the willful
misfeasance, bad faith or negligence in the performance of its duties, or
reckless disregard of its obligations and duties under the terms of this
Agreement. The U.S. federal securities laws impose liabilities under certain
circumstances on persons who act in good faith, and therefore nothing herein
shall in any way constitute a waiver or limitation of any rights which the
Company may have under any U.S. federal securities laws. It is further
understood and agreed that the Investment Manager may rely upon information
furnished to it by the Company that it reasonably believes to be accurate
and reliable. The Company understands and acknowledges that the Investment
Manager does not warrant any rate of return, market value or performance of
any Investments in the Account.
11. INDEMNIFICATION.
a. The Investment Manager shall indemnify the Company against any and
all loss, liability, claim, damage or expense (including reasonable
attorney's fees) whatsoever suffered or
incurred by the Company in connection with or arising out of the
Investment Manager's material breach of any of the terms of this
Agreement or law applicable to it, except to the extent such loss,
liability, claim damage or expense was a direct result of the negligence,
bad faith, or willful misconduct of the Company or any of its employees,
agents, affiliates or other entities acting on its behalf. This indemnity
shall remain in full force and effect regardless of any termination
of this Agreement.
b. The Company shall indemnify the Investment Manager against any and
all loss, liability, claim, damage or expense (including reasonable
attorney's fees) whatsoever suffered or incurred by the Investment
Manager in connection with or arising out of the Company's material
breach of any of the terms of this Agreement or law applicable to
it, except to the extent such loss, liability, claim damage or
expense was a direct result of the negligence, bad faith, or
willful misconduct of the Investment Manager or any of its
employees, agents, affiliates or other entities acting on its
behalf. This indemnity shall remain in full force and effect
regardless of any termination of this Agreement.
c. The following indemnification procedures shall apply to the extent
indemnification is sought pursuant to Section 11 a. or b. above.
(i) The party seeking indemnification (the "Indemnified Party")
shall promptly notify the party from whom indemnification is sought
(the "Indemnifying Party") after becoming aware of, and shall
promptly provide to the Indemnifying Party all information and
documentation necessary to support and verify, any damages that the
Indemnified Party shall have determined have given or could give
rise to an action for indemnification hereunder. The Indemnifying
Party shall be given access to all books, records and information
in the possession or under the control of the Indemnified Party
which the Indemnifying Party reasonably determines to be related to
such action.
(ii) Any claim arising from, or which is the subject of, any action
shall be paid after such action and the liability for damages
thereunder have been finally determined. An action and the
liability for damages thereunder shall be deemed to be "finally
determined" when the parties to such action have so determined by
mutual agreement or, if disputed, when a final non-appealable order
of a court or arbitrator having competent jurisdiction has been
entered.
(iii) In any pending or threatened claim, action, suit or
proceeding in which indemnification may be sought, including
without limitation any third party actions, the Indemnified Party
shall not, without the prior written consent of the Indemnifying
Party, settle, compromise or consent to the entry of any judgment.
(iv) Promptly after receipt by the Indemnified Party of notice of
the commencement of any action to which the Indemnifying Party is
not a party, the Indemnified Party shall, if a claim for the
indemnification for such action may be made against the
Indemnifying Party, notify the Indemnifying Party in writing of its
commencement. Any failure or delay in so notifying the Indemnifying
Party shall not relieve the Indemnifying Party of its obligations
to indemnify pursuant to the terms and provisions of this
Agreement, except to the extent that the Indemnifying Party is
materially prejudiced thereby.
(v) The Indemnifying Party shall be entitled to assume the defense
of any such action with counsel satisfactory to the Indemnified
Party; provided, however, that upon the request of the Indemnified
Party, the Indemnifying Party shall provide reasonable evidence of
its ability to perform its obligations hereunder.
(vi) After notice from the Indemnifying Party to the Indemnified
Party of its election to assume the defense thereof, the
Indemnifying Party, at its sole cost, shall have the right to
conduct and have control over the negotiations, settlement,
defense, payment, or other proceedings and dispositions of such
action.
(vii) After notice from the Indemnifying Party to the Indemnified
Party of its election to assume the defense thereof, the
Indemnifying Party shall not be liable to the Indemnified Party
under the foregoing indemnification provisions for any legal or
other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than (1) those relating
to the investigation of such action or the furnishing of documents
or witnesses in connection with such action and (2) all reasonable
fees and expenses of separate counsel retained by the Indemnified
Party if (i) the Indemnifying Party shall have agreed to the
retention of such counsel or (ii) the Indemnifying Party and the
Indemnified Party, on the advice of their respective counsel, shall
have concluded that the representation of them by the same counsel
would be inappropriate due to their actual or potential differing
interests in the conduct of the defense of such action.
(viii) In any action or proceeding the defense of which the
Indemnifying Party assumes, the Indemnified Party shall have the
right to participate and retain counsel at its own expense.
12. COMPENSATION TO THE INVESTMENT MANAGER. The Company agrees to pay to the
Investment Manager for the services under this Agreement a fee for each
calendar month of each year in accordance with Exhibit A, which is annexed
to and made a part of this Agreement. The Investment Manager shall submit to
the Company within thirty (30) days of the end of each calendar month a
written statement of the amount estimated to be owed by the Company for
services and the use of facilities pursuant to this Agreement in that
calendar month, and the Company shall pay to the Investment Manager within
fifteen (15) days following receipt of such written statement the amount set
forth in the statement. Within sixty (60) days after the end of each
calendar year, upon request of the Company, the Investment Manager shall
submit to the Company a statement of actual apportioned expenses for such
prior calendar year showing the basis for the apportionment of each item.
The Company may request a written statement from the Investment Manager
setting forth, in reasonable detail, the nature of the services rendered or
expense incurred or other relevant information to support the charge. Any
difference between the amount of the estimated apportioned expenses paid by
the Company in the amount of the actual apportioned expenses shall be paid
to either the Investment Manager or to the Company, as the case may be,
within fifteen (15) days of the statement of actual apportioned expenses.
In addition to the fee, the Company shall be responsible for any and all
custodial fees, brokerage commissions, transfer taxes, and for all other
reasonable out-of-pocket expenses incurred in connection with the services
provided under this Agreement. In the event of the termination of this
Agreement, the fee accrued shall be prorated on the basis of the number of
days that this Agreement is in effect during the month relative to the total
number of days in such month. All allocations shall be in accordance with
the laws of the Relevant State.
13. ASSIGNMENT. No assignment, as defined by Section 202 of the Investment
Advisers Act of 1940 (the "Advisers Act"), of this Agreement by the
Investment Manager shall be effective without the consent of the Company.
14. TRANSACTIONS FOR THE INVESTMENT MANAGER AND OTHER ACCOUNTS. The Company
recognizes that the Investment Manager and its affiliates provide
and may continue to provide
asset management, research, brokerage, investment advisory and other
services to other institutions and other persons, or for their own account
or the accounts of other affiliates, which may or may not have investment
policies and investments similar to those of the Company. The Investment
Manager shall be free to provide such investment advice and other services
and the Company hereby consents thereto. The Company recognizes that the
Investment Manager and its affiliates may give advice and take action in the
performance of duties to other clients that may differ from the advice
given, or the timing and nature of action taken, with respect to the
Account, and that the Investment Manager and its affiliates may trade and
have positions in investments of issuers and that the Company may own
equivalent or related Investments in such issuers, and where action may or
may not be taken or recommended for the Account. Nothing in this Agreement
shall be deemed to impose upon the Investment Manager or its affiliates any
obligation to purchase or sell, or recommend for purchase or sale for the
Account or with regard to derivatives, any security or any other property
which the Investment Manager or its affiliates may purchase, sell or hold
for their own accounts or the account of any other client.
By reason of their various activities, the Investment Manager and its
affiliates may from time to time acquire information about various
corporations and their securities. The Company recognizes that the
Investment Manager may not always be free to divulge such information, or to
act upon it.
15. RECEIPT BY THE COMPANY OF DISCLOSURE DOCUMENT. By appointing the
Adviser, the Company acknowledges that the Company has received a copy of
Part II of the Investment Manager's Form ADV or other brochure meeting the
requirements of Rule 204-3 under the Advisers Act ("Investment Manager
Disclosure Brochure"). If the Company did not receive the Investment Manager
Disclosure Brochure at least 48 hours prior to appointing the Investment
Manager, the Company may terminate the authority granted to the Investment
Manager pursuant to this Agreement without penalty within five (5) business
days of appointing the Investment Manager.
16. INDEPENDENT CONTRACTOR. The Investment Manager shall be deemed to be an
independent contractor and, except as expressly provided or authorized in
this Agreement, shall have no authority to act for or represent the Company.
The Company shall always retain the ultimate authority to make investment
decisions and decisions about other services on its own behalf. Investments
made or held for the Account, or otherwise, under this Agreement shall at
all times be within the control of the Board of Directors of the Company.
17. ERISA. The Company represents and warrants that none of the Company's
assets managed or permitted to be managed under this Agreement is subject to
the Employee Retirement Income Security Act of 1974 ("ERISA"). The Company
further represents and warrants that, if any of such assets ever becomes
subject to ERISA, the Company will immediately so notify the Investment
Manager.
18. CONFIDENTIALITY. All information and advice furnished by the Investment
Manager to the Company under this Agreement shall be confidential and shall
not be disclosed to third parties, except as required by law. All
information furnished by the Company to the Investment Manager under this
Agreement shall be confidential and shall not be disclosed to any
unaffiliated third party, except as permitted or required by law, where it
is necessary to effect transactions or provide other services to the
Company, or where the Company requests or authorizes the Investment Manager
to do so.
The obligations under this Section 18 shall not apply to confidential
information to the extent such information (i) is or becomes published or
otherwise generally available to the public through no wrongful act of the
information recipient, (ii) is information which the information recipient
can show was properly in its possession prior to receipt from the
information owner,
(iii) is or becomes available to the information recipient from a source
other than the information owner having no obligation of nondisclosure with
respect thereto, (iv) is information which the information recipient can
show was independently developed by the information recipient, (v) is
required by law to be disclosed, provided, however, that the information
recipient shall make reasonable efforts to have confidential treatment
accorded to the confidential information and, to the extent permitted by
law, shall make reasonable efforts to notify the information owner as
appropriate prior to disclosure thereof, or (vi) is requested by any
regulator, including any self-regulatory organization of which the
information recipient is a member, to be disclosed, provided, however, that
the information recipient will take reasonable steps to notify the regulator
of the confidential nature of the confidential information.
Notwithstanding anything in this Section 18 to the contrary, the Investment
Manager may share Confidential Information with its affiliates in accordance
with its privacy policies in effect from time to time.
19. NOTICES. Any notice under this Agreement shall be given in writing,
addressed, and delivered, or mailed postpaid, to the party to this Agreement
entitled to receive such, at such party's principal place of business as set
out here:
INVESTMENT MANAGER:
RiverSource Investments, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager of Global Administration
With a copy to:
Ameriprise Financial, Inc.
50605 Ameriprise Financial Center
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Legal Officer, RiverSource Investments, LLC
COMPANY:
American Enterprise Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
with a copy to General Counsel
or to such other address as either party may designate in writing
mailed to the other.
20. LAW GOVERNING THIS AGREEMENT. For purposes of contract interpretation,
this Agreement shall be governed by the laws of the State of Minnesota. As
set forth in Section 5 of this Agreement, the requirements imposed by law
upon the type, distribution and quality of the Investments, or by other law
applicable to the Company's business with respect to the Investments, shall
include the law of the Relevant State applicable to life insurance companies
domiciled within the Relevant State.
21. TERMINATION. This Agreement shall continue and remain in effect for an
unlimited duration commencing on the date of this Agreement unless and until
terminated by either party as hereinafter provided. This Agreement may be
terminated be either the Company or Investment Manager at any given time by
giving the other party at least sixty days' previous written notice of such
intention to terminate.
22. AMENDMENT OF THIS AGREEMENT. This Agreement may be amended only by an
instrument in writing signed by the parties hereto.
23. ENTIRE AGREEMENT. This Agreement represents the entire agreement as to
its subject matter between the parties and supercedes any prior agreement
whether written or oral. Nothing herein shall prevent any affiliate that has
been appointed by the Investment Manager to provide services under this
Agreement from entering into and/or retaining a separate agreement with the
Investment Manager and/or the Company where necessary to meet any
requirements associated with inter-company arrangements, provided, however,
that the terms of any such separate agreement shall not be in conflict with
the terms of this Agreement.
24. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together only one Agreement.
25. USE OF NAME. Company agrees that the Investment Manager may identify
Company by name in Investment Manager's current client list. Such list may
be used with third parties.
26. ARBITRATION.
(A) COMPANY UNDERSTANDS AND AGREES THAT:
I) ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
II) THE PARTIES WAIVE THEIR RIGHT TO SEEK REMEDIES IN
COURT, INCLUDING THE RIGHT TO JURY TRIAL;
III) PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED
THAN, AND DIFFERENT FROM, COURT PROCEEDINGS;
IV) THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE
FACTUAL FINDINGS OR LEGAL REASONING, AND ANY PARTY'S RIGHT TO APPEAL OR TO
SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED; AND
V) THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A
MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES
INDUSTRY.
(B) ANY CONTROVERSY ARISING OUT OF, OR RELATING TO THE ACCOUNT, TO
TRANSACTIONS WITH THE INVESTMENT MANAGER OR ITS RESPECTIVE AGENTS AND/OR
EMPLOYEES, OR TO THIS AGREEMENT OR THE BREACH THEREOF, SHALL BE SETTLED BY
ARBITRATION AND CONDUCTED PURSUANT TO THE FEDERAL ARBITRATION ACT BEFORE THE
AMERICAN ARBITRATION ASSOCIATION OR THE NATIONAL ASSOCIATION OF SECURITIES
DEALERS INC., THE CHICAGO STOCK EXCHANGE INC., THE NEW YORK STOCK EXCHANGE,
THE AMERICAN STOCK EXCHANGE TO THE EXTENT THE INVESTMENT MANAGER MAY BE A
MEMBER OF SUCH EXCHANGE, THE MUNICIPAL SECURITIES RULEMAKING BOARD OR THE
INDEPENDENT NON-INDUSTRY ARBITRATION FORUM AS COMPANY MAY ELECT. IF COMPANY
DOES NOT MAKE SUCH ELECTION BY REGISTERED MAIL ADDRESSED TO THE INVESTMENT
MANAGER AT THE INVESTMENT MANAGER'S MAIN OFFICE WITHIN 10 DAYS AFTER DEMAND
BY THE INVESTMENT MANAGER THAT COMPANY MAKE SUCH ELECTION, THE INVESTMENT
MANAGER MAY MAKE SUCH
ELECTION. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATORS MAY BE ENTERED
IN ANY COURT HAVING JURISDICTION THEREOF.
(C) NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION, NOR SEEK TO ENFORCE ANY PREDISPUTE ARBITRATION AGREEMENT
AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION; OR
WHO IS A MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH
RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL: (I)
THE CLASS CERTIFICATION IS DENIED; (II) THE CLASS IS DECERTIFIED; OR (III)
THE COMPANY IS EXCLUDED FROM THE CLASS BY THE COURT.
(D) SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT
CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT
STATED HEREIN.
27. MISCELLANEOUS.
(a) Severability. If any term of this Agreement is found to be invalid or
unenforceable, all other provisions will remain in force. The failure of the
Investment Manager to insist on strict compliance with this Agreement is not
considered a waiver of the Investment Manager's rights under this Agreement.
(b) Headings. All section and paragraph headings are for convenience of
reference only and do not form part of this Agreement.
(c) Force Majeure. No party to this Agreement will be responsible for
nonperformance resulting from acts beyond the reasonable control of such
party, provided that such party uses commercially reasonable efforts to
avoid or remove such causes of nonperformance and continues performance
under this Agreement with reasonable dispatch as soon as such causes are
removed.
28. AUTHORIZED PERSONS. The Company shall make available to the Investment
Manager a list of the persons authorized and empowered to provide
instructions related to this Agreement on behalf of the Company.
29. CUSTODY. The Investment Manager shall not act as custodian for the
Account and shall not take possession of any Investments. The Company shall
maintain or establish, in the Company's name, an account with a
broker-dealer, bank or trust company in which the Company shall maintain or
deposit the assets managed or permitted to be managed under this Agreement.
The broker/dealer, bank or trust company selected by the Company shall be
the custodian of the Investments. The custodian designated by the Company
may be an affiliate of the Investment Manager. The Company will cause the
custodian to take all necessary steps to settle purchases, sales and trades
made on behalf of the Account, including delivery of certificated
securities, payments of funds and such other acts as may be necessary to
fulfill such custodial responsibilities. The Investment Manager shall give
notice and directions with respect to transactions in a manner that shall be
agreed upon with the custodian. The Investment Manager shall not be
responsible for any loss caused by any act or omission of the custodian. The
Company shall execute any and all documents that the Investment Manager may
from time to time transmit to the Company for the purpose of carrying out
securities transactions for the Account.
THIS AGREEMENT CONTAINS A PREDISPUTE ARBITRATION CLAUSE IN SECTION 26.
In witness whereof, the parties hereto have executed the foregoing Agreement
effective as of the day and year first above written.
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY RIVERSOURCE INVESTMENTS, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print name: ▇▇▇▇ ▇▇▇▇▇▇▇ Print name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print title: Vice President and General Counsel Print title: Senior Vice
President Fixed Income
EXHIBIT A
COMPENSATION TO INVESTMENT MANAGER
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The fee that shall be paid to the Investment Manager under the Agreement for
each calendar month of each year shall be equal to the Investment Manager's
allocated cost in providing the services set forth in the Agreement.
Dated: October 1, 2005