CUSTODIAN AGREEMENT
THIS AGREEMENT made on January 1, 1993, between Monetta Trust, a
Massachusetts Business Trust currently offering shares in series designated
Monetta Mid Cap Equity Fund, Intermediate Bond Fund, and Monetta Government
Money Market Fund (hereinafter called the "Funds"), and FIRSTAR TRUST COMPANY, a
corporation organized under the laws of the State of Wisconsin (hereinafter
called "Custodian"),
W I T N E S S E T H :
WHEREAS, the Trust desires that the securities and cash of each Fund 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
Trust and Custodian agree as follows:
1. Definitions
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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 Trust by any two of the
President, a Vice President, the Secretary and Treasurer of the Trust, or any
other persons duly authorized to sign by the Board.
The word "Board" shall mean Board of Trustees of the Trust.
2. Names, Titles and Signatures of the Trust's Officers
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An officer of the Trust 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, together with any
changes which may occur from time to time.
Additional Series. The Trust is authorized to issue separate classes of
shares of beneficial interest representing interests in separate investment
portfolios. The parties intend that each portfolio established by the Trust, now
or in the future, be covered by the terms and conditions of this agreement.
3. Receipt and Disbursement of Money
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A. Custodian shall open and maintain a separate account or accounts in
the name of each of the Funds, 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 Funds. Custodian shall make payments of cash to,
or for the account of, a Fund from such cash only:
(a) for the purchase of securities for the portfolio of that Fund upon the
delivery of such securities to Custodian, registered in the name of
that Fund 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 beneficial interest of
that Fund upon delivery thereof to Custodian, or upon proper
instructions from the Trust;
(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 that Fund held by or to be
delivered to Custodian; or
(e) for other proper corporate purposes certified by resolution of the
Board.
Before making any such payment, Custodian shall receive (and may rely upon)
an officer's certificate requesting such payments and stating that it is for a
purpose permitted under the terms of items (a), (b), (c), or (d) of this
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 Trust 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 each Fund.
C. Custodian shall, upon receipt of a proper instructions, make federal
funds available to a Fund as of specified times agreed upon from time to time by
the Trust and the custodian in the amount of checks received in payment for
shares of a Fund which are deposited into that Fund's account.
4. Segregated Accounts
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Upon receipt of proper instructions, the Custodian shall establish and
maintain a segregated account(s) for and on behalf of the portfolio, into which
account(s) may be transferred cash and/or securities.
5. Transfer, Exchange, Redelivery, etc. of Securities
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Custodian shall have sole power to release or deliver any securities of a
Fund 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 a Fund 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;
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(g) for the purpose of exchanging interim receipts or temporary securities
for definitive securities;
(h) for the purpose of redeeming in kind shares of common stock of the
Funds upon delivery thereof to Custodian; or
(i) for other proper corporate purposes.
As to any deliveries made by Custodian pursuant to items (a), (b), (d),
(e), (f), and (9), securities or cash receivable in exchange therefore 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), (9), or (h) of this Section 5 and
also, in respect of item (i), 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 Trust 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
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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 a Fund, which call for payment upon
presentation and hold the cash received by it upon such payment for the account
of such Fund; (b) collect interest and cash dividends received, with notice to a
Fund, for the account of such Fund; (c) hold for the account of each Fund
hereunder all stock dividends, rights and similar securities issued with respect
to any securities held by each such fund hereunder; and (d) execute as agent on
behalf of each Fund, all necessary ownership certificates required by the
Internal Revenue Code or the Income Tax Regulations of the United States
Treasury Department or under the laws of any state now or hereafter in effect,
inserting such Fund'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
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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 Internal Revenue Code and any
Regulations of the Treasury Department issued hereunder 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. Custodian shall use its best efforts to end that specific
securities held by it hereunder shall be at all times identifiable in its
records.
The Trust 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 a Fund and which may from time to time be registered
in the name of a Fund.
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8. Voting and Other Action
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Neither Custodians nor any nominee of Custodian shall vote any of the
securities held hereunder by or for the account of a Fund, except in accordance
with the instructions contained in an officers' certificate. Custodian shall
deliver, or cause to be executed and delivered, to the Corporation all notices,
proxies and proxy soliciting materials with relation to such securities, such
proxies to be executed by the registered holder of such securities (if
registered otherwise than in the name of a Fund), but without indicating the
manner in which such proxies are to be voted.
9. Transfer Tax and Other Disbursements
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The Trust shall pay or reimburse Custodian from time to time for any
transfer taxes payable upon transfer 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 certificate in connection with
securities delivered to it or by it under this Agreement as may be required
under the provisions of the Internal Revenue Code andy Regulations of the
Treasury Department issued thereunder, or under the laws of any state, to exempt
from taxation any exemptable transfers and/or deliveries of any such securities.
10. Concerning Custodian
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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 Trust agrees with respect to each Fund to indemnify and hold harmless
Custodian and its nominee from all taxes, charges, expenses, assessments, claims
and liabilities (including counsel fees) incurred or assessed against it or by
its nominee in connection with the performance of this Agreement as to each
Fund, except such as may arise from Custodian's or its nominee's own negligent
action, negligent failure to act or willful misconduct. Custodian is authorized
to charge any account of the Fund or Funds with respect to which such liability
or charge arose for such items. In the event of any advance of cash for any
purpose made by Custodian resulting from orders of instructions of the Trust, 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 and its
nominee's own negligent action, negligent failure to act or willful misconduct,
any property at any time held for the account of the Fund or Funds with respect
to which such liability or charge arose shall be security therefore.
11. Subcustodians
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Custodian is hereby authorized to engage another bank or trust company as a
Subcustodian for all or any part of a Fund's assets, so long as any such bank or
trust company organized under the laws of any state of the United States, having
an aggregate capital, surplus and undivided profit, as shown by its last
published report, of not less than Two Million Dollars ($2,000,000) 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 a
Fund by the Subcustodian as fully as if the Custodian was directly responsible
for any such losses under the items of the Custodian Agreement.
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Notwithstanding anything contained herein, if the Trust requires the
Custodian to engage specific Subcustodians for the safekeeping and/or clearing
of assets of a Fund, the Trust agrees, to the extent of the assets of the Fund
which are so held, to indemnify and hold harmless Custodian form all claims,
expenses and liabilities incurred or assessed against Custodian in connection
with the use of such Subcustodian in regard to the Fund's assets, except as may
arise from Custodian's own negligent action, negligent failure to act or willful
misconduct.
12. Reports by Custodian
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Custodian shall furnish the Trust periodically as agreed upon with a
statement summarizing all transactions and entries for the account of each Fund.
Custodian shall furnish to the Trust, at the end of every month, a list of the
portfolio securities of each Fund 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 officer of, and of
auditors employed by, the Trust.
13. Termination of Assignment
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This Agreement may be terminated by the Trust, or by Custodian, on ninety
(90) days notice, given in writing and sent by registered mail to Custodian at
X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, or to the Trust at Suite 207, 0000X
Xxxxx Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000-0000, 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 Trust 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 Funds to the Trust, but
may deliver them to a bank or trust company of its own selection, having an
aggregate capital, surplus and undivided profits, as shown by its last published
report of not less than Two Million Dollars ($2,000,000) as a Custodian of the
Trust 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 Trust 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 Trust Agreement may not be assigned by Custodian without the consent
of the Trust, authorized or approved by a resolution of its Board.
14. Deposits of Securities in Securities Depositories
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No provisions 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 approves by resolution the use of such central
securities clearing agency or securities depository.
15. Records
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To the extent that Custodian in any capacity prepares or maintains any
records required to be maintained and preserved by the Trust to the provisions
of the Investment Company Act of 1940, as amended, or the rules and regulations
promulgated thereunder, Custodian agrees to make any such records available to
the Trust upon request and to preserve such records for the periods prescribed
in Rule 31 a-2 under the Investment Company Act of 1940, as amended.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and their respective corporate seals to be affixed hereto as of the
date first above-written by their respective officers thereunto duly authorized.
Executed in several counterparts, each of which is an original.
Attest: Firstar Trust Company
/s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxx
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Assistant Secretary Vice President
Attest: Monetta Trust
/s/ Xxxxx Xxxxxxx XxXxxxxx /s/ Xxxxxx X. Xxxxxxxxx
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FIRST AMENDMENT TO CUSTODIAN AGREEMENT
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This Amendment is executed as of the date set forth below by and between
MONETTA TRUST (the "Trust") and FIRSTAR TRUST COMPANY, formerly known as First
Wisconsin Trust Company (the "Custodian").
The Trust and the Custodian have previously entered into that certain
Custodian Agreement dated January 1, 1993 (the "Agreement"), and now desire to
amend the Agreement as set forth below.
The Trust and the Custodian agree that Section 15 of the Agreement is
created to read as follows:
15. Repurchase Transactions
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The Custodian is hereby authorized to enter into repurchase
transactions on behalf of the Trust with Firstar Bank Milwaukee, N.A.
(the "Bank") under a Master Repurchase Agreement (Public Securities
Association Prototype) between the Bank and the Custodian, as
custodian for many of its customers. Such repurchase transactions will
be recorded both in the Trust's custody accounts(s) and as a separate
entry in the Custodian's master repurchase account with the Bank.
Except as specifically amended hereby, the Agreement shall remain in full
force and effect in accordance with its terms.
Dated as of the 15th day of July 1993.
MONETTA TRUST
By: /s/ Xxxxxx X. Xxxxxxxxx
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By:
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Attest:
/s/ Xxxxx Xxxxxxx XxXxxxxx
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FIRSTAR TRUST COMPANY
By: /s/ Xxxxx X. Xxxxx
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By:
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Attest:
/s/ Xxxx X. Xxxxxxxx
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