Exhibit (j)
CUSTODIAN SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of
this 15th day of October, 1999, by and between LCM
Internet Growth Fund, Inc., a Maryland corporation
(hereinafter referred to as the "Company"), and Firstar
Bank Milwaukee, N.A., a corporation organized under the
laws of the State of Wisconsin (hereinafter referred to
as the "Custodian").
WHEREAS, the Company is a closed-end management
investment company which is registered under the
Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Company desires that its
securities and cash shall be hereafter held and
administered by Custodian pursuant to the terms of this
Agreement.
NOW, THEREFORE, in consideration of the mutual
agreements herein made, the Company and Custodian agree
as follows:
1. Definitions
The word "securities" as used herein includes
stocks, shares, bonds, debentures, notes, mortgages or
other obligations, and any certificates, receipts,
warrants or other instruments representing rights to
receive, purchase or subscribe for the same, or
evidencing or representing any other rights or
interests therein, or in any property or assets.
The words "officers' certificate" shall mean a
request or direction or certification in writing signed
in the name of the Company by any two of the President,
a Vice President, the Secretary and the Treasurer of
the Company, or any other persons duly authorized to
sign by the Board of Directors.
The word "Board" shall mean Board of Directors
of the LCM Internet Growth Fund, Inc.
2. Names, Titles, and Signatures of the Company's Officers
An officer of the Company will certify to
Custodian the names and signatures of those persons
authorized to sign the officers' certificates described
in Section 1 hereof, and the names of the members of
the Board of Directors, together with any changes which
may occur from time to time.
3. Receipt and Disbursement of Money
A. Custodian shall open and maintain a
separate account or accounts in the name of the
Company, subject only to draft or order by Custodian
acting pursuant to the terms of this Agreement.
Custodian shall hold in such account or accounts,
subject to the provisions hereof,
all cash received by it from or for the account of the
Company. Custodian shall make payments of cash to, or for
the account of, the Company from such cash only:
(a) for the purchase of securities for the portfolio of
the Company upon the delivery of such
securities to Custodian, registered in the
name of the Company or of the nominee of
Custodian referred to in Section 7 or in
proper form for transfer;
(b) for the purchase or redemption of shares of the
common stock of the Company upon delivery
thereof to Custodian, or upon proper
instructions from the Company;
(c) for the payment of interest, dividends, taxes,
investment adviser's fees or operating
expenses (including, without limitation
thereto, fees for legal, accounting,
auditing and custodian services and
expenses for printing and postage);
(d) for payments in connection with the conversion,
exchange or surrender of securities owned
or subscribed to by the Company held by or
to be delivered to Custodian; or
(e) for other proper corporate purposes certified by
resolution of the Board of Directors of
the Company.
Before making any such payment, Custodian shall
receive (and may rely upon) an officers' certificate
requesting such payment and stating that it is for a
purpose permitted under the terms of items (a), (b),
(c), or (d) of this Section 3, Subsection A, and also,
in respect of item (e), upon receipt of an officers'
certificate specifying the amount of such payment,
setting forth the purpose for which such payment is to
be made, declaring such purpose to be a proper
corporate purpose, and naming the person or persons to
whom such payment is to be made, provided, however,
that an officers' certificate need not precede the
disbursement of cash for the purpose of purchasing a
money market instrument, or any other security with
same or next-day settlement, if the President, a Vice
President, the Secretary or the Treasurer of the
Company issues appropriate oral or facsimile
instructions to Custodian and an appropriate officers'
certificate is received by Custodian within two
business days thereafter.
B. Custodian is hereby authorized to endorse
and collect all checks, drafts or other orders for the
payment of money received by Custodian for the account
of the Company.
C. Custodian shall, upon receipt of proper
instructions, make federal funds available to the
Company as of specified times agreed upon from time to
time by the Company and the Custodian in the amount of
checks received in payment for shares of the Company
which are deposited into the Company's account.
D. If so directed by the Company, Custodian
will invest any and all available cash in overnight
cash-equivalent investments as specified by the
investment adviser to the FundCompany.
4. Segregated Accounts
Upon receipt of proper instructions, the
Custodian shall establish and maintain a segregated
account(s) for and on behalf of the Company, into which
account(s) may be transferred cash and/or securities.
5. Transfer, Exchange, Redelivery, etc. of Securities
Custodian shall have sole power to release or
deliver any securities of the Company held by it
pursuant to this Agreement. Custodian agrees to
transfer, exchange or deliver securities held by it
hereunder only:
(a) for sales of such securities for the account of the
Company upon receipt by Custodian of
payment therefore;
(b) when such securities are called, redeemed or retired
or otherwise become payable;
(c) for examination by any broker selling any such
securities in accordance with "street
delivery" custom;
(d) in exchange for, or upon conversion into, other
securities alone or other securities and
cash whether pursuant to any plan of
merger, consolidation, reorganization,
recapitalization or readjustment, or
otherwise;
(e) upon conversion of such securities pursuant to their
terms into other securities;
(f) upon exercise of subscription, purchase or other
similar rights represented by such
securities;
(g) for the purpose of exchanging interim receipts or
temporary securities for definitive
securities; or
(h) for other proper corporate purposes.
As to any deliveries made by Custodian pursuant
to items (a), (b), (d), (e), (f), and (g), securities
or cash receivable in exchange therefor shall be
deliverable to Custodian.
Before making any such transfer, exchange or
delivery, Custodian shall receive (and may rely upon)
an officers' certificate requesting such transfer,
exchange or delivery, and stating that it is for a
purpose permitted under the terms of items (a), (b),
(c), (d), (e), (f),or (g), of this Section 5 and also,
in respect of item (h), upon receipt of an officers'
certificate specifying the
securities to be delivered,
setting forth the purpose for which such delivery is to
be made, declaring such purpose to be a proper
corporate purpose, and naming the person or persons to
whom delivery of such securities shall be made,
provided, however, that an officers' certificate need
not precede any such transfer, exchange or delivery of
a money market instrument, or any other security with
same or next-day settlement, if the President, a Vice
President, the Secretary or the Treasurer of the
Company issues appropriate oral or facsimile
instructions to Custodian and an appropriate officers'
certificate is received by Custodian within two
business days thereafter.
6. Custodian's Acts Without Instructions
Unless and until Custodian receives an
officers' certificate to the contrary, Custodian shall:
(a) present for payment all coupons and other income
items held by it for the account of the Company, which
call for payment upon presentation and hold the cash
received by it upon such payment for the account of the
Company; (b) collect interest and cash dividends
received, with notice to the Company, for the account
of the Company; (c) hold for the account of the Company
hereunder all stock dividends, rights and similar
securities issued with respect to any securities held
by it hereunder; and (d) execute, as agent on behalf of
the Company, all necessary ownership certificates
required by the Internal Revenue Code of 1986, as
amended (the "Code") or the Income Tax Regulations (the
"Regulations") of the United States Treasury Department
(the "Treasury Department") or under the laws of any
state now or hereafter in effect, inserting the
Company's name on such certificates as the owner of the
securities covered thereby, to the extent it may
lawfully do so.
7. Registration of Securities
Except as otherwise directed by an officers'
certificate, Custodian shall register all securities,
except such as are in bearer form, in the name of a
registered nominee of Custodian as defined in the Code
and any Regulations of the Treasury Department issued
thereunder or in any provision of any subsequent
federal tax law exempting such transaction from
liability for stock transfer taxes, and shall execute
and deliver all such certificates in connection
therewith as may be required by such laws or
regulations or under the laws of any state. All
securities held by Custodian hereunder shall be at all
times identifiable in its records held in an account or
accounts of Custodian containing only the assets of the
Company.
The Company shall from time to time furnish to
Custodian appropriate instruments to enable Custodian
to hold or deliver in proper form for transfer, or to
register in the name of its
registered nominee, any securities which it may hold
for the account of the Company and which may from time
to time be registered in the name of the Company.
8. Voting and Other Action
Neither Custodian nor any nominee of Custodian
shall vote any of the securities held hereunder by or
for the account of the Company, except in accordance
with the instructions contained in an officers'
certificate. Custodian shall deliver, or cause to be
executed and delivered, to the Company all notices,
proxies and proxy soliciting materials with respect to such
securities, such proxies to be executed by the
registered holder of such securities (if registered
otherwise than in the name of the Company), but without
indicating the manner in which such proxies are to be
voted.
9. Transfer Tax and Other Disbursements
The Company shall pay or reimburse Custodian
from time to time for any transfer taxes payable upon
transfers of securities made hereunder, and for all
other necessary and proper disbursements and expenses
made or incurred by Custodian in the performance of
this Agreement.
Custodian shall execute and deliver such
certificates in connection with securities delivered to
it or by it under this Agreement as may be required
under the provisions of the Code and any Regulations of
the Treasury Department issued thereunder, or under the
laws of any state, to exempt from taxation any exempt
transfers and/or deliveries of any such securities.
10. Concerning Custodian
Custodian shall be paid as compensation for its
services pursuant to this Agreement such compensation
as may from time to time be agreed upon in writing
between the two parties. Until modified in writing,
such compensation shall be as set forth in Exhibit A
attached hereto.
Custodian shall not be liable for any action
taken in good faith upon any certificate herein
described or certified copy of any resolution of the
Board, and may rely on the genuineness of any such
document which it may in good faith believe to have
been validly executed.
The Company agrees to indemnify and hold
harmless Custodian and its nominee from all taxes,
charges, expenses, assessments, claims and liabilities
(including reasonable counsel fees) incurred or
assessed against it or by its nominee in connection
with the performance of this Agreement, except such as
may arise from its or its nominee's own bad faith,
negligent action, negligent failure to act or willful
misconduct. Custodian is authorized to charge any
account of the Company for such items. In the event of
any advance of cash for any purpose made by Custodian
resulting from orders or instructions of the Company,
or in the event that Custodian or its nominee shall
incur or be assessed any taxes, charges, expenses,
assessments, claims or liabilities in connection with
the performance of this Agreement, except such as may
arise from its or its nominee's own bad faith,
negligent action, negligent failure to act or willful
misconduct, any property at any time held for the
account of the Company shall be security therefor.
Custodian agrees to indemnify and hold harmless
the Company from all charges, expenses, assessments,
and claims/liabilities (including reasonable counsel
fees) incurred or assessed against it in connection
with the performance of this Agreement, except such as
may arise from the Company's own bad faith, negligent
action, negligent failure to act, or willful
misconduct.
11. Subcustodians
Custodian is hereby authorized to engage
another bank or trust company as a subcustodian for all
or any part of the Company's assets, so long as any
such bank or trust company is itself qualified under
the 1940 Act and the rules and regulations thereunder
and provided further that, if the Custodian utilizes
the services of a subcustodian, the Custodian shall
remain fully liable and responsible for any losses
caused to the Company by the subcustodian as fully as
if the Custodian was directly responsible for any such
losses under the terms of this Agreement.
Notwithstanding anything contained herein, if
the Company requires the Custodian to engage specific
subcustodians for the safekeeping and/or clearing of
assets, the Company agrees to indemnify and hold
harmless Custodian from all claims, expenses and
liabilities incurred or assessed against it in
connection with the use of such subcustodian in regard
to the Company's assets, except as may arise from
Custodian's own bad faith, negligent action, negligent
failure to act or willful misconduct.
12. Reports by Custodian
Custodian shall furnish the Company
periodically as agreed upon with a statement
summarizing all transactions and entries for the
account of the Company. Custodian shall furnish to the
Company, at the end of every month, a list of the
portfolio securities for the Company showing the
aggregate cost of each issue. The books and records of
Custodian pertaining to its actions under this
Agreement shall be open to inspection and audit at
reasonable times by officers of, and by auditors
employed by, the Company.
13. Termination or Assignment
This Agreement may be terminated by the
Company, or by Custodian, on ninety (90) days notice,
given in writing and sent by registered mail to:
Xx. Xxxxx X. Xxxxx
Attn.: Mutual Fund Services
Firstar Bank Milwaukee, N.A.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
or to the Company at:
Xx. Xxxxx X. Xxxxxxx
LCM Internet Growth Fund, Inc.
000 X. Xxxxxxxxxx Xxxx.
Xxxxxxx, XX 00000
as the case may be. Upon any termination of this
Agreement, pending appointment of a successor to
Custodian or a vote of the shareholders of the Company
(if required) to dissolve or
to function without a custodian of its cash, securities and other
property, Custodian shall not deliver cash, securities or other
property of the Company to the Company, but may deliver
them to a bank or trust company of its own selection
that meets the requirements of the 1940 Act as a
Custodian for the Company to be held under terms
similar to those of this Agreement, provided, however,
that Custodian shall not be required to make any such
delivery or payment until full payment shall have been
made by the Company of all liabilities constituting a
charge on or against the properties then held by
Custodian or on or against Custodian, and until full
payment shall have been made to Custodian of all its
fees, compensation, costs and expenses, subject to the
provisions of Section 10 of this Agreement.
This Agreement may not be assigned by Custodian
without the consent of the Company, authorized or
approved by a resolution of its Board of Directors.
14. Deposits of Securities in Securities Depositories
No provision of this Agreement shall be deemed
to prevent the use by Custodian of a central securities
clearing agency or securities depository, provided,
however, that Custodian and the central securities
clearing agency or securities depository meet all
applicable federal and state laws and regulations, and
the Board of Directors of the Company approves by
resolution the use of such central securities clearing
agency or securities depository.
15. Records
Custodian shall keep records relating to its
services to be performed hereunder, in the form and
manner, and for such period, as it may deem advisable
and is agreeable to the Company but not inconsistent
with the rules and regulations of appropriate
government authorities, in particular Section 31 of the
1940 Act and the rules thereunder. Custodian agrees
that all such records prepared or maintained by the
Custodian relating to the services performed by
Custodian hereunder are the property of the Company and
will be preserved, maintained, and made available in
accordance with such section and rules of the 1940 Act
and will be promptly surrendered to the Company on and
in accordance with its request.
16. Governing Law
This Agreement shall be governed by Wisconsin
law. However, nothing herein shall be construed in a
manner inconsistent with the 1940 Act on any rule or
regulation promulgated by the Securities and Exchange
Commission thereunder.
17.Year 2000 Representation
Custodian hereby represents and warrants that
it does not anticipate that the "Year 2000 Problem"
will have a material impact on its ability to perform
its duties under this Agreement. The "Year 2000
Problem" refers to the inability of computer systems to
properly process and calculate date-related information
and data from and after January 1, 2000.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed by a duly
authorized officer on one or more counterparts as of
the day and year first written above.
LCM INTERNET GROWTH FUND, INC. FIRSTAR BANK MILWAUKEE, N.A.
By: /s/ Xxxxxxx X. Xxxxx, Xx. By: /s/ Xxxxxx Xxxxxxxxx
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Attest: /s/ Xxxxxxx X. Xxxxxx Attest: /s/ Xxxxxxxx X. Xxxxx
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Custody Services
Annual Fee Schedule - Domestic Funds
Exhibit A
Annual fee based upon market value
2 basis points per year
Minimum annual fee - $3,000
Investment transactions (purchase, sale, exchange, tender, redemption,
maturity, receipt, delivery):
$12.00 per book entry security (depository or Federal Reserve system)
$25.00 per definitive security (physical)
$25.00 per mutual fund trade
$75.00 per Euroclear
$ 8.00 per principal reduction on pass-through certificates
$35.00 per option/futures contract
$15.00 per variation margin
$15.00 per Fed wire deposit or withdrawal
Variable Amount Demand Notes: Used as a short-term
investment, variable amount notes offer safety and
prevailing high interest rates. Our charge, which is
1/4 of 1%, is deducted from the variable amount note
income at the time it is credited to your account.
Plus reasonable out-of-pocket expenses. Foreign
securities custody services will be quoted separately.
Fees and out-of-pocket expenses are billed to the
Company monthly, based upon market value at the
beginning of the month
