AGREEMENT
DEPOSITORY AND CUSTODIAL AGREEMENT made as of this 31st day of December 2006,
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between Ameriprise Certificate Company, a Delaware corporation hereinafter
referred to as "ACC", and Ameriprise Trust Company, a Minnesota state
chartered bank ("Custodian").
In consideration of the mutual agreements herein made, ACC and
Custodian agree as follows:
I. SAFEKEEPING
A. Required Reserves
ACC agrees to deliver to and maintain with Custodian certain assets,
including qualified investments having at any time an aggregate value at least
equal to the required certificate reserves as computed under the provisions of
Section 28(a) of the Investment Company Act of 1940, as amended ("xxx 0000
Xxx"). Provided, however, that the amount of qualified investments maintained
on deposit in separate accounts as required by any state, but not to exceed
the amount of reserves required under Section 28(a) for the certificates held
by or issued to residents of such state, shall be deducted from the amount of
qualified investments required to be maintained on deposit with Custodian.
B. Qualified Investments
"Qualified investments" as used herein are investments of a kind
which life insurance companies are permitted to invest in or hold under the
provisions of the Code of the District of Columbia, as amended, and other
investments as the Securities and Exchange Commission (the "SEC") shall by
rule, regulation, or order authorize as qualified investments. Such assets
shall be valued for the purpose of determining compliance with the deposit
requirements in accordance with the District of Columbia Code where
applicable, and otherwise as prescribed by the SEC. Any asset deposited with
Custodian shall be accompanied by a statement made by an authorized person
from ACC (as provided in Section VII.A. below) that in the opinion of that
person the asset is qualified and giving the value thereof.
C. Deposits and Withdrawals
Custodian agrees to hold, either physically in its own safekeeping
room or with Depository Trust Company or a domestic bank meeting the
requirements of the 1940 Act, (for all Federal Reserve Bank eligible
securities), securities belonging to ACC delivered to it by ACC or others for
ACC, and pursuant to ACC's written order, in the case of securities purchases,
to charge ACC and pay designated persons against delivery of such securities,
and, in the case of securities sales, to remit proceeds to ACC and deliver
securities against payment for such securities. Upon written order Custodian
shall return to ACC or designated third persons securities held hereunder, but
only to the extent that such withdrawal shall not, after adding the value of
any qualified investments which ACC may deposit in substitution for the
securities withdrawn, decrease the aggregate value of qualified investments
below the required reserve amount as provided in Subsection A of this Section.
ACC's written order must include a certification by an authorized person
stating the facts entitling it to make such withdrawal. Notwithstanding the
foregoing, ACC may from time to time request access to mortgage related
documents and may temporarily borrow them from Custodian for copying,
examination, title searches and similar purposes. ACC shall leave written
evidence of such borrowing with Custodian and shall promptly return the
securities when it has finished using them.
D. "Certificate" Defined
Whenever used in this Agreement, the term "certificate" shall mean a
"face-amount certificate" as that term is defined in Section 2(a)(15) of the
1940 Act.
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II. HANDLING OF SECURITIES
A. Transfer, Etc.
Custodian agrees to transfer, exchange or deliver, when provided with
appropriate written orders from ACC, together with instruments enabling
Custodian to hold or deliver in proper form for transfer, securities held
thereunder as directed and at least in the following cases:
1. Deliveries of securities sold by ACC.
2. Deliveries of securities to the issuer thereof, its transfer
agent or other proper agent, or to any committee or other
organization to be exchanged for other securities in
connection with a reorganization or recapitalization of the
issuer or any split-up or similar transaction involving such
securities.
3. Deliveries of securities upon conversion thereof pursuant to
their terms into other securities.
4. Deliveries of warrants and similar securities upon exercise
or sale of the rights evidenced thereby.
5. Exchange securities in temporary form for permanent or
definite securities.
B. Custodian's Acts Without Instructions
Unless and until Custodian receives contrary authorized instructions
from ACC, Custodian shall:
1. Detach from and present at the proper time for payment all
coupons and other income items which require presentation
and which are held by Custodian hereunder. All items of
income from dividends and interest on securities which are
depository eligible (i.e., depositable with Depository Trust
Company and/or Federal Reserve Book Entry) shall be credited
to ACC's account and made available in federal funds on the
date succeeding the date such items are payable without
regard to actual receipt by Custodian; income on
non-eligible securities, physically held in Custodian vault,
shall be credited to ACC's account upon receipt of funds
from the paying agent. Custodian shall undertake at its own
expense such procedures as may be necessary to collect such
items of income as are not actually received by Custodian
and the credit of such items to ACC's account shall be
subject to final payment. Provided, however, that ACC shall
collect all interest and principal payments made on
mortgages and real estate properties.
2. Present for payment all securities which may mature or be
called, redeemed, retired or which may otherwise become
payable and credit the proceeds thereof, and any other
principal payments, to the account of ACC and furnish ACC
with a description of the source of each such payment. ACC
shall be credited, and federal funds made available of on
the maturity date of short-term securities customarily
settled on a "same-day" basis. Redemptions shall be credited
to the account of ACC upon collection and federal funds made
available on the next business day.
C. Liability
Whenever, according to written order from ACC, Custodian shall be
required to make any delivery of securities against the receipt of the sale
price, Custodian shall make delivery in accordance with ACC's authorized
instructions against payment, receipt of the sums payable thereon or against
interim receipts or other proper delivery receipts and credit to the account
of ACC such sums as authorized by ACC with
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appropriate advice to ACC showing the source of such payments.
Custodian shall, at a minimum, be obligated to exercise due care in
accordance with reasonable commercial standards in discharging its duty to
obtain and maintain financial assets for ACC.
ACC hereby agrees to be responsible for all fees and expenses as set
forth in the fee schedule, and, except in cases where Custodian has failed to
exercise due care in accordance with reasonable commercial standards, to
indemnify and hold harmless Custodian or nominee from all taxes, expenses
(including counsel fees), assessments, liabilities, claims, damages, actions,
suits, or other charges incurred by or assessed against Custodian or nominee
in connection with this account. It is expressly understood and agreed that
Custodian shall have no lien at any time upon any funds, deposits or property
in its possession or control, except as provided in Section V.
D. Deregistration of Securities
All securities in registered form deposited with and held physically
by Custodian hereunder shall be registered in the name of a nominee of ACC or
a nominee of Custodian acceptable to ACC unless otherwise directed by order of
ACC.
E. Segregation of Securities
Except as to securities in transit or in connection with other
transactions necessary or appropriate in the ordinary course of business
relating to the management of the securities, Custodian agrees to place and
hold all securities in its custody under this agreement in such place or
places and in such facility or facilities and to safeguard the securities in
substantially the same manner as like securities of Custodian. Such securities
shall be all times be physically segregated from the securities of Custodian
and of other persons, firms or corporations and of other accounts so that at
all times such securities may be identified as belonging solely to ACC, except
for those securities permitted to be deposited with a clearing corporation as
defined in and in accordance with Minnesota law.
III. HANDLING OF ASSETS
Custodian agrees to take the following actions only as provided in
authorized instructions from ACC:
A. Receive assets from persons other than ACC, and, if the same are
in proper form for transfer or are in bearer form, cause payment to be made
therefore, in the amount provided and in the names directed by the authorized
instructions of ACC and thereafter hold such securities subject to this
Agreement.
B. Deliver assets to brokers or others upon and in accordance with
ACC's authorized instructions against payment, receipt of the sums payable
thereon or against interim receipts or other proper delivery receipts and
credit to the account of ACC such sums as authorized by ACC with appropriate
information to ACC showing the source of such payments.
C. Provide settlement of all purchases and sales under III A and III
B when the actual deliveries take place.
D. Remit principal and income cash from custodianship accounts in
accordance with authorized instructions from ACC.
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IV. REPORTS AND INSPECTIONS
A. Statements / Reports by Custodian
Custodian shall furnish to ACC a daily transaction and a monthly
position holdings interface report. Custodian will also furnish an inventory
at such reasonable times as requested by ACC.
Custodian shall maintain control accounts for the assets of ACC and
shall update the control records of these accounts for all securities
payments.
Upon ACC's written request, Custodian shall furnish ACC or ACC's
public accountants or other examiners with a certified inventory of all assets
then held hereunder at Custodian's premises or on its agents' premises and/or
make assets available for inspection in connection with ACC's annual audits or
other periodic examinations. However, to the extent that assets are placed
with other depositories as authorized by ACC or with a clearing corporation as
defined and in accordance with Minnesota law, those assets are not available
for physical inspection.
ACC and Custodian shall agree on a net cash settlement amount prior
to 9:30 a.m. on each business day for Article II and Article III items and
settlement shall be made in Federal funds. A second daily net settlement may
be required for "same day settlement" transactions.
Custodian agrees to provide, promptly upon request by ACC, such
reports as are available concerning its internal accounting controls and
financial strength.
B. Statements by ACC
ACC shall make monthly reports to Custodian stating, as of the last
day of the preceding month:
1) the aggregate value of qualified investments on deposit with
Custodian,
2) the aggregate amount of reserves required to be maintained in
respect of all outstanding certificates, and
3) the amount of reserves required to be deposited in separate
accounts by various states in respect of the certificates issued to
or held by the residents thereof, as well as the value of qualified
assets actually deposited pursuant to such requirements.
The first monthly statement every year shall be made and certified by
an independent public accountant and the others shall be verified by an
authorized person from ACC. Custodian may conclusively rely upon such
statements, unless it has knowledge or notice that such statements are not
true.
Custodian shall promptly examine the monthly statements filed by ACC
and compare the amount of required reserves, after subtracting the required
amounts of qualified investments on deposit with the states, to the value of
assets actually on deposit with it. If it appears that the amount of assets on
deposit with Custodian are less than required hereunder, it shall within 30
days of ascertaining such fact notify ACC and the SEC in writing of such
deficiency.
C. Proxies
Custodian shall deliver immediately to ACC all proxies, notices and
communications with relation to securities held by it hereunder, which it may
receive from sources other than ACC. Unless otherwise directed by written
order from ACC, proxies will be executed in blank by the registered holder of
such securities (if registered in the name of Custodian or its nominee)
without indicating the manner in which such proxies are to be voted.
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V. PROCEDURES IN CASE OF DEFAULT BY ACC
A. Collateral Security
The assets maintained with Custodian shall be held and kept, subject
to the right of withdrawal, by Custodian so long as any liability exists upon
any of the certificates secured thereby. Said assets shall be deemed delivered
to Custodian as collateral security for the payment by ACC to certificate
holders of cash payments due under the terms and conditions of such
certificates, provided that a certificate holder on whose behalf a separate
deposit is maintained pursuant to a state deposit requirement shall not be
entitled to participate in the proceeds of the deposit maintained by Custodian
until the separate deposit has been exhausted. In the event of a general
liquidation of ACC by judicial proceedings, such certificate holder shall not
receive any dividend from the proceeds of the deposit maintained with
Custodian hereunder except upon such basis that the percentage of his claim
received from both deposits shall not exceed that received by the holders of
certificates secured only by the deposit maintained with Custodian hereunder.
B. Curing Defaults
If ACC fails to make any cash payment provided in any outstanding
certificate, Custodian shall, upon the written request of the holder, and
after giving thirty days' written notice of its intention to do so, use so
much of the assets maintained with it as is necessary to pay and discharge the
liability if not cured by the end of the thirty day period. To that end,
Custodian shall have the right to sell any asset then held by it and not due
at probate sale, or at public auction, giving ACC at least ten days' written
notice of the time, place, and manner of sale; to collect any asset then due
or which becomes due during the continuance of said default, with or without
suit, and to foreclose any asset then subject to foreclosure in Custodian's
name or in that of ACC, giving to ACC at least five days' written notice of
the time and place of the sale. Custodian shall apply the proceeds realized,
or so much as shall be necessary, to the discharge of the liability in
default. If ACC in good faith disputes the right of any person under any
certificate to receive it or the amount claimed and so notifies Custodian in
writing thereof, no default, for the purposes of this section, shall be deemed
to arise until such dispute is settled between the parties thereto or is
determined by final judgment of a court of competent jurisdiction.
C. Notification
If Custodian shall determine to apply any asset maintained with it to
the discharge of a default by the collection, sale or foreclosure of the same,
it shall forthwith notify ACC in writing of its intention so to do,
identifying the asset or assets, and shall thereafter be entitled to all then
unpaid interest, dividends or other income due or to become due thereon,
provided that if any of said assets be not sold, collected or foreclosed, ACC,
upon the discharge of the default, shall become entitled to any such interest,
dividends or other income not applied in the discharge of such default.
D. Attorney-in-Fact
For the purpose of realizing the amount necessary to discharge the
default, ACC does hereby irrevocably make, constitute and appoint Custodian
its attorney-in-fact in respect to assets maintained with it to complete and
to make or execute any assignments, transfers, endorsements, cancellations,
satisfactions, collections, and settlements, in the name of ACC or otherwise,
and to do any and all acts appropriate in the premises.
E. Bankruptcy
Should said ACC be adjudged a bankrupt under the Federal Bankruptcy
Act or insolvent by final judgment or decree of any court of competent
jurisdiction, and a trustee in bankruptcy or a general receiver be appointed,
Custodian shall, if and when authorized by an order of the court, surrender
and deliver all
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assets then maintained with it hereunder, subject to any legal claims which it
may have thereon for compensation for services or for reimbursement for unpaid
expenses or advancements, to such trustee or receiver, and shall thereupon be
relieved of any and all further duties in respect thereto. Provided, however,
that such surrender and delivery shall be without prejudice to any rights
which certificate holders may have in said assets to have them applied
according to the usual rules and principles of law applicable to collateral
security.
VI. CUSTODIAN FEES
ACC shall pay quarterly to Custodian the fees and charges set forth
in Exhibit A of this Agreement and such fees and charges as shall be agreed to
in writing from time to time thereafter by Custodian and ACC.
VII. NAMES AND SIGNATURES OF AUTHORIZED PERSONS
A. Authorized Persons
ACC shall file with Custodian a certified list designating the person
or persons authorized to act hereunder for and on behalf of ACC along with
specimen signatures and the title of said person or persons. Custodian is
authorized to rely and act upon orders signed by such person or persons in the
form described in paragraph B, as were so designated in the most recent
certified list from ACC which has been delivered to Custodian and received by
it.
B. Form of Order
Orders shall be deemed to include orders sent to Custodian by
telecopy facsimile, video (CRT) terminals, or similar means of communication
as may be agreed upon between the parties from time to time. Telephonic orders
may be transmitted for commercial instruments bearing maturity dates of one
year or less, by any person named in the certified list of authorized
personnel referred to in paragraph "A", to be followed by written verification
in the same manner described hereinafter. All other orders by ACC under this
Custodial Agreement shall be in writing addressed to Custodian and signed on
behalf of ACC by any two persons named in the certified list, provided at
least one of them is an officer.
VIII. AMENDMENT AND TERMINATION OF AGREEMENT
A. Amendments
This Agreement may be amended by mutual agreement of the parties
hereto.
B. Termination
ACC may terminate this Agreement at any time by written notice
thereof and appoint a successor Custodian. The written notice of termination
must be delivered together with a copy of the Resolution of ACC's Board of
Directors authorizing such termination, and certified by the Secretary and
Assistant Secretary of ACC, by registered mail to Custodian.
Custodian may resign as Custodian by giving ACC sixty days' written
notice of such termination by registered mail addressed to ACC at its
principal place of business. ACC shall appoint a successor Custodian within
six months of receiving the notice of resignation. If ACC fails to so appoint
a successor, Custodian may petition any competent court for the appointment of
a successor Custodian. If the appointee and ACC fail to agree upon the
compensation to be paid to the appointee, the court may fix the amount.
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No substitution or resignation shall become effective until a
successor Custodian has been appointed and has accepted such appointment. Upon
service of written notice of such appointment and acceptance, Custodian shall
deliver all securities belonging to ACC held by it to the successor Custodian.
Any successor Custodian appointed hereunder must be a bank with an
aggregate capital, surplus and undivided profits of at least $500,000,
pursuant to Section 26(a)(1) of the 1940 Act.
IX. SUCCESSOR CUSTODIAN
A. Automatic Succession
Any bank or trust company into which Custodian or any successor
Custodian may be merged or converted or with which it or any successor
Custodian may be consolidated or any bank or trust company resulting from any
merger, conservation or consolidation to which Custodian or any successor
Custodian shall be a party or any bank or trust company succeeding to the
business of Custodian or any successor Custodian, shall be substituted as
successor Custodian under this Agreement and any amendments thereof without
the execution of any instrument or any further act on the part of ACC or
Custodian or any successor Custodian.
X. Xxxxxx
Any such successor Custodian shall have all powers, duties, and
obligations of the preceding Custodian under this Agreement and any amendments
thereof shall succeed to all the exemptions and privileges of the preceding
Custodian under this Agreement and any amendments thereof.
X. DISCLOSURE OF INFORMATION
ACC and Custodian agree that the information communicated by either party to
this Agreement to the other will be regarded as having been disclosed in
confidence and that neither party will use such information except in
rendering the services covered in this Agreement. If an inspection of
documents and/or securities or for the provision of information is made
pursuant to an order of a court of competent jurisdiction or made by a
governmental agency, Custodian shall have no liability for complying with such
request.
XI. CONSTRUCTION OF AGREEMENT
Custodian and ACC acknowledge that they have read this Agreement,
including Exhibit A, physically attached and made a part hereof, and agree
that this Agreement constitutes the entire understanding, agreement and
contract between them and supersedes any and all prior or contemporaneous oral
or written communications or representations with respect to their rights and
obligations and the subject matter hereof, and any and all such prior or
contemporaneous oral or written communications or representations are merged
herein. This Agreement shall not be modified, interpreted, supplemented or
amended or in any way revised or altered, except by an instrument in writing
signed by the duly authorized officers of the parties hereto. It is understood
that this Agreement shall be governed by and construed in accordance with the
laws of the State of Minnesota.
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XII. NOTICES
All notices, requests, or other communications ("notices") herein
required or provided for hereunder shall be in writing and shall be deemed to
have been duly given four days after mailing, if mailed by United States
certified or registered mail, postage prepaid, return receipt requested, to
the parties or the representatives at the following addresses:
For Custodian Ameriprise Trust Company
000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
For ACC: Ameriprise Certificate Company
000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. (Xxx) Xxxxxxxx
XIII. SUBCUSTODIANS
The Custodian may make arrangements, where appropriate, with other
banks meeting the requirements of the 1940 Act, for the custody of securities.
Any such bank selected by the Custodian to act as subcustodian shall be deemed
to be the agent of the Custodian.
Consistent with the requirements of Rule 17f-4 of the 1940 Act,
Custodian agrees to require any subcustodian, at a minimum, to exercise due
care in accordance with reasonable commercial standards in discharging its
duty as a securities intermediary to obtain and thereafter maintain financial
assets corresponding to the security entitlements of its entitlement holders.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
AMERIPRISE TRUST COMPANY
/s/ Xxxxxxx Xxxxx
-----------------------------
Xxxxxxx Xxxxx
Vice President
AMERIPRISE CERTIFICATE COMPANY
/s/ Xxxxxxx X. (Xxx) Xxxxxxxx
-----------------------------
Xxxxxxx X. (Xxx) Xxxxxxxx
President
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EXHIBIT A
Ameriprise Certificate Company
Annual Fee Schedule
1. Maintenance Charge Per Account $ .05 per $1000 of assets
2. Transaction Charge - Debt/Equity Issue $ 20.00 per transaction
Commercial Paper $ 20.00 per transaction
Securities Loan -
a. DTC Receive/Deliver $ 20.00 per transaction
b. Physical Receive/Deliver $ 25.00 per transaction
c. Exchange Collateral $ 15.00 per transaction
A transaction consists of the receipt or withdrawals of securities and
commercial paper and/or a change in the security position.
3. Mortgage Safekeeping No charge
4. Coupon Bonds -
Monitoring and processing coupons No charge
5. Out-of-Pocket Charges -
Included but are not limited to:
Postage
Shipping
Insurance
Courier Service
Wire Charges
Transfer Fees
Foreign Sub-Custody Charges
