<PAGE>
Exhibit 10(u)
FIFTH AMENDMENT TO SELLING AGENT AGREEMENT
The purpose of this document is to amend the Selling Agent
Agreement dated
June 1, 1990 between IDS Financial Services Inc. (the "Company" and
now
known as Ameriprise Financial Services, Inc. ("AFSI")) and
American
Express Bank International ("AEBI"), as subsequently amended (the
"Selling
Agent Agreement").
Unless specifically stated to the contrary, the terms of this
Amendment are
retroactive to the initial effective date of the Selling Agent
Agreement on
June 1, 1990, as they clarify the respective responsibilities
and
obligations the Parties (i.e., AFSI and AEBI) and IDS Certificate
Company
(the "Issuer" and now known as Ameriprise Certificate Company)
have
undertaken since that date.
Terms used in this Amendment have the same meaning as they do in
the Selling
Agent Agreement.
1. Effective
October 1, 2005, Ameriprise Certificate Company will
replace IDS Certificate Company in the text of the Selling
Agent
Agreement in recognition of the current name of such
organization.
2. Section I of
the Selling Agent Agreement is amended to add
subsection 4.1, which states as follows:
(4.1) Effective October 1, 2005, AEBI will no longer market or
offer
Certificates, and the Issuer and the Company will no longer
accept
new applications for Certificates from AEBI. However, the terms
of
this Agreement will continue to be in effect with respect to
Certificates marketed and offered prior to that date.
3. Sections
I(3), I(6), I(8), IV(6), V(2), and other applicable Sections
of
the Selling Agent Agreement are read together to provide that
the
Company and the Issuer have and will continue to ensure that
the
registration of products on the official transfer agent records of
the
Issuer accurately reflects the instructions for such registrations
that
have
been provided by AEBI. In this regard, AEBI has been and
continues
to
be responsible for ensuring that such instructions are
accurate,
complete and lawful. The Indemnification provisions of Section V of
the
Selling Agent Agreement are applicable to the Parties'
respective
obligations in this
regard.
4. Section I(7)
of the Selling Agent Agreement is amended to add the
following provisions to the end of the Section:
Effective January 1, 2005, with respect to AEBI's obligations
to:
i) obtain and maintain current Forms W-8BEN (or any other form
required by U.S. Treasury Department regulations) for all
clients
in compliance with applicable laws and regulations; and ii)
deliver Forms 1042-S to clients, AEBI will act as the
"withholding
agent," as defined in U.S. Treasury Regulation 1.1441-7(a),
with
all
<PAGE>
attendant responsibilities and obligations. AEBI will
indemnify the Company and the Issuer in accordance with
Section V of the Selling Agent Agreement for any claim
brought in accordance with such Section V arising from the
failure of AEB to perform its obligations hereunder. The
Company will, and the Company will cause the Issuer to,
provide such information to AEBI as necessary for AEBI to
act as withholding agent and comply with applicable laws and
regulations.
5. Section V of
the Selling Agent Agreement is amended to add
subsection V(4) which states as follows:
(4)
The Parties to
this Agreement are solely responsible for any
failure to satisfy their obligations under this Agreement.
Such responsibility includes any regulatory penalty or fine
and/or any
liability arising from a civil or criminal
action, or settlement thereof, including but not limited to
compensation or remediation to clients, arising from any
such failure to satisfy such obligations. The Parties'
indemnification obligations and right to receive
indemnification will survive the termination of the
Agreement for the time period relating to all applicable
statutes of limitation, unless subsequently agreed to in
writing by the Parties.
6. Section VI(5)
of the Selling Agent Agreement is amended as follows:
Any notice, under this Agreement shall be given in writing,
by electronic mail or addressed and delivered or mailed
postpaid to the Party to this Agreement entitled to receive
the same,
i. If to
Company, Paula R. Meyer, 596 Ameriprise
Financial Center, Minneapolis, MN 55474,
paula.r.meyer@ampf.com; and
ii. If to AEBI, Mary
Ann Fitzgibbon,
200 Vesey Street, New York, NY 10285,
maryann.f.fitzgibbon@aexp.com.
7. Section VIII
titled "ARBITRATION" is added to the Selling Agent
Agreement to read as follows:
(1)
The Parties also
understand and agree that if they are
unable to resolve any issue under the Selling Agent
Agreement or this Amendment, such dispute will be resolved
through arbitration within the following parameters:
a. Arbitration is final and binding on the Parties;
i. The Parties
reserve the right to seek injunctive
relief in a court of competent jurisdiction, but
waive any other right to seek remedies in court,
including the right to jury trial;
2
<PAGE>
ii. Pre-arbitration
discovery is generally more
limited
than, and different from, court
proceedings;
iii. 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
str
