CUSTODIAN AND DEPOSITORY AGREEMENT
CUSTODIAN AND DEPOSITORY AGREEMENT between Monetta Fund, Inc. (the
"Fund"), a corporation organized and existing under the laws of the State of
Maryland, and First Wisconsin Trust Company, a financial institution organized
and existing under the laws of the State of Wisconsin (the "Custodian").
In consideration of the mutual covenants and agreements hereinafter
contained, the parties hereto agree as follows:
ARTICLE I
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EMPLOYMENT OF CUSTODIAN AND
PROPERTY TO BE HELD BY IT
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The Fund hereby employs the Custodian as the custodian of its assets.
The Fund agrees to deliver to the Custodian all securities and cash owned by it,
and all payments of income, payments of principal or capital distributions
received by it with respect to all securities owned by the Fund from time to
time, and the cash consideration received by it for shares of Capital Stock,
$.01 par value, of the Fund (the "Shares") as may be issued or sold. The
Custodian shall not be responsible for any property of the Fund held or received
by the Fund and not delivered to the Custodian.
The Custodian may from time to time employ one or more subcustodians
(a "Subcustodian"), but only in accordance with the due authorization of the
Directors of the Fund evidenced by a certified copy of the vote or resolution of
the Board of Directors constituting such authorization, and provided that the
Custodian shall have no more or less responsibility or liability to the Fund on
account of any actions or omissions of a Subcustodian than such Subcustodian has
to the Custodian. The fees and disbursements of a Subcustodian payable by
the Custodian shall be the Fund's responsibility; provided the Fund has approved
the Subcustodian's proposed fee schedule, and the Fund shall make available to
the Custodian sufficient funds for timely payment to the Subcustodian of such
fees and disbursements. The Custodian shall immediately transmit to the
Subcustodian any instructions received from the Fund relating to transactions
requiring action by the Subcustodian.
ARTICLE II
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2. DUTIES OF THE CUSTODIAN WITH RESPECT TO
PROPERTY OF THE FUND HELD BY THE CUSTODIAN
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2.1 Holding Securities. The Custodian shall hold and physically
segregate for the account of the Fund all non-cash property, including all
securities owned by the Fund, other than securities which are maintained
pursuant to Section 2.10 of this Agreement in a clearing agency which acts as a
securities depository or in a book-entry system authorized by the U.S.
Department of the Treasury.
2.2 Delivery of Securities. The Custodian shall release and deliver
securities owned by the Fund held by the Custodian or in a Securities System (as
defined in Section 2.10) account of the Custodian only upon receipt of Proper
Instructions (as defined in Section 2.14), which may be continuing instructions
when so specified, and only in the following cases:
(a) Upon sale of such securities for the account of the Fund
and receipt of payment therefor;
(b) Upon the receipt of payment in connection with any
repurchase agreement related to such securities entered into by the Fund.
(c) In the case of a sale effected through a Securities
System, in accordance with the provisions of Section 2.10 of this
Agreement.
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(d) To the depository agent in connection with tender or other
similar offers for portfolio securities of the Fund.
(e) To the issuer of portfolio securities of the Fund or such
issuer's agent when such securities are called, redeemed, retired or
otherwise become payable; provided that, in any such case, the cash or
other consideration is to be delivered to the Custodian;
(f) To the issuer of portfolio securities of the Fund, or such
issuer's agent, for transfer into the name of the Fund, Custodian,
Subcustodian, agent appointed pursuant to Section 2.9, or any nominee or
nominees thereof; or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate face amount
or number of units; provided that, in any such case, the new securities are
to be delivered to the Fund, Custodian, Subcustodian, agent appointed
pursuant to Section 2.9, or any nominee or nominees thereof;
(g) To the broker selling the same for examination in
accordance with the "street delivery" custom; provided that the Custodian
shall adopt such procedures as the Fund from time to time shall approve, to
ensure the prompt return of such securities to the Custodian by the broker
in the event the broker elects not to accept them;
(h) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the
securities of the issuer of such securities, or pursuant to provisions for
conversion contained in such securities, or pursuant to any deposit
agreement; provided that, in any such case, the new securities and cash, if
any, are to be delivered to the Custodian;
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(i) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or similar
securities or the surrender of interim receipts or temporary securities for
definitive securities; provided that, in any such case, the new securities
and cash, if any, are to be delivered to the Custodian;
(j) For delivery in connection with any loans of securities
made by the Fund, but only against receipt of the collateral determined by
the Fund, which may be in the form of cash or obligations issued by the
United States government, its agencies or instrumentalities;
(k) For delivery as security in connection with any borrowings
by the Fund requiring a pledge of assets by the Fund, but only against
receipt of amounts borrowed;
(l) For any other proper corporate purposes, but only upon
receipt of, in addition to Proper Instructions, a certified copy of a
resolution of the Directors signed by an officer of the Fund and certified
by the Secretary, specifying the securities to be delivered, setting forth
the purpose for which such delivery is to be made, declaring such purposes
to be proper corporate purposes, and naming the person or persons to whom
delivery of such securities shall be made.
2.3 Registration of Securities. Securities held by the Custodian
(other than bearer securities) shall be registered in the name of the Fund,
Custodian, Subcustodian, agent appointed pursuant to Section 2.9, or any nominee
or nominees thereof. All securities accepted by the Custodian on behalf of the
Fund under the terms of this Agreement shall be in "street" or other good
delivery form.
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2.4 Bank Accounts. The Custodian shall open and maintain a separate
account or accounts in the name of the Fund, subject only to draft or order by
the Custodian acting pursuant to the terms of this Agreement, and shall hold in
such account or accounts, subject to the provisions hereof, all cash received by
it from or for the account of the Fund, other than cash maintained by the Fund
in a bank account established and used in accordance with Rule 17f-3 under the
Investment Company Act of 1940, as amended (the "1940 Act") Funds held by the
Custodian for the Fund may be deposited by it to its credit as Custodian in the
Banking Department of the Custodian or in such other banks or trust companies as
it may in its discretion deem necessary or desirable; provided, however, that
every such bank or trust company shall be qualified to act as a custodian under
the 1940 Act and that each such bank or trust company and the funds to be
deposited with each such bank or trust company shall be approved by vote of a
majority of the Directors of the Fund. Such funds shall be deposited by the
Custodian in its capacity as Custodian and shall be withdrawable by the
Custodian only in that capacity.
2.5 Payments for Shares. The Custodian shall receive from the Fund
or the transfer agent of the Fund, as the case may be, and deposit into the
Fund's account such payments as are received for Shares of the Fund issued or
sold by the Fund. The Custodian will provide timely notification to the Fund
and the Transfer Agent of any receipt by it of payments for Shares of the Fund.
2.6 Collection of Income. The Custodian shall collect or cause to be
collected on a timely basis all income and other payments (including stock
dividends and other non-cash distributions) with respect to the registered
securities held hereunder to which the Fund shall be entitled either by law or
pursuant to custom in the securities business, and shall collect on a
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timely basis all income and other payments with respect to bearer securities if,
on the date of payment by the issuer, such securities are held by the Custodian
or agent thereof and shall credit such income, as collected, to the Fund's
custodian account. Without limiting the generality of the foregoing, the
Custodian shall detach and present for payment all coupons and other income
items requiring presentation as and when they become due and shall collect
interest when due on securities held hereunder.
The Custodian shall credit all Fund income on payment date. The
Custodian shall advance the amount of such income, if necessary, and shall make
such funds available for investment on the following business day. The
Custodian shall also advance funds for investment on the maturity date for bonds
and on the settlement date on all security sale transactions, even though the
proceeds from the maturities and sales are ordinarily not "good funds" until the
next day.
2.7 Payment of Fund Monies. Upon receipt of Proper Instructions,
which may be continuing instructions when so specified, the Custodian shall pay
out monies of the Fund in the following cases only:
(a) Upon the purchase of securities, currency or other property
for the account of the Fund but only (i) against the delivery of such
securities, currency or other property to the Custodian (or to a
Subcustodian or to any bank, banking firm or trust company doing business
in the United States or abroad which is qualified under the 1940 Act, to
act as a custodian and has been designated by the Custodian as its agent
for this purpose) registered in the name of the Fund, Custodian,
Subcustodian, agent appointed under Section 2.9, or any nominee or nominees
thereof or in proper form for transfer;
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(ii) in the case of a purchase effected through a Securities System, in
accordance with the conditions set forth in Section 2.10 hereof or (iii) in
the case of repurchase agreements entered into between the Fund and the
Custodian, or another bank, (a) against delivery of the securities either
in certificate form or through an entry crediting the Custodian's account
at the Federal Reserve Bank with such securities or (b) against delivery of
the receipt evidencing purchase by the Fund of securities owned by the
Custodian or other bank along with written evidence of the agreement by the
Custodian or other bank to repurchase such securities from the Fund;
(b) In connection with conversion, exchange or surrender of
securities owned by the Fund as set forth in Section 2.2 hereof;
(c) For the payment of any expense or liability incurred by the
Fund, including but not limited to the following payments for the account
of the Fund: interest, taxes, management, accounting, transfer agent and
legal fees, and operating expenses of the Fund whether or not such expenses
are to be in whole or in part capitalized or treated as deferred expenses;
(d) For the payment of any dividends declared pursuant to the
governing documents of the Fund;
(e) For any other proper corporate purposes, but only upon
receipt of, in addition to the proper instructions, a certified copy of a
resolution of the Directors of the Fund signed by an officer of the Fund
and certified by the Secretary, specifying the amount of such payment,
setting forth the purpose for which such payment is to be made,
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declaring such purpose to be a proper purpose, and naming the person or
persons to whom such payment is to be made;
(f) To a Subcustodian.
2.8 Liability for Payment in Advance of Receipt of Securities
Purchased. In any and every case where payment for purchase of securities for
the account of the Fund is made by the Custodian in advance of receipt of the
securities purchased in the absence of specific written instructions from the
Fund to so pay in advance, the Custodian shall be absolutely liable to the Fund
for such securities to the same extent as if the securities had been received by
the Custodian, except that in the case of repurchase agreements entered into by
the Fund with a bank which is a member of the Federal Reserve System, the
Custodian may transfer funds to the account of such bank prior to the receipt of
written evidence that the securities subject to such repurchase agreement have
been transferred by book-entry into a segregated non-proprietary account of the
Custodian maintained with the Federal Reserve Bank of Chicago or of the safe-
keeping receipt; provided that such securities have in fact been so transferred
by book-entry.
2.9 Appointment of Agents. The Custodian may at any time or times
appoint (and may at any time remove), subject to the due authorization of the
Fund's Board of Directors evidenced by a certified copy of the vote or
resolution of the Board of Directors constituting such authorization, any other
bank or trust company which is itself qualified under the 1940 Act, to act as a
Subcustodian of the Fund's assets as its agent to carry out such of the
provisions of this Article II as the Custodian may from time to time direct;
provided, however, that the appointment of any agent shall not relieve the
Custodian of any of its responsibilities or liabilities hereunder.
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2.10 Deposit of Fund Assets in Securities Systems. The Custodian may
deposit and/or maintain securities owned by the Fund in a clearing agency
registered with the Securities and Exchange Commission under Section 17A of the
Securities Exchange Act of 1934, which acts as a securities depository, or in
the book-entry system authorized by the U.S. Department of the Treasury and
certain federal agencies, collectively referred to herein as "Securities
Systems", in accordance with applicable Federal Reserve Board and Securities and
Exchange Commission rules and regulations, if any, and subject to the following
provisions:
(a) The Custodian may keep securities of the Fund in a Securities
Sytem provided that such securities are represented in an account
("Account") of the Custodian in the Securities System which shall not
include any assets of the Custodian other than assets held as a fiduciary,
custodian, or otherwise for customers.
(b) The records of the Custodian with respect to securities of
the fund which are maintained in a Securities System shall identify by
book-entry those securities belonging to the Fund.
(c) The Custodian shall pay for securities purchased for the
account of the fund upon (i) receipt of advice from the Securities System
that such securities have been transferred to the Account, and (ii) the
making of an entry on the records of the Custodian to reflect such payment
and transfer for the account of the Fund. The Custodian shall transfer
securities sold for the account of the Fund upon (i) receipt of advice from
the Securities System that payment for such securities has been transferred
to the Account, and (ii) the making of an entry on the records of the
Custodian to reflect such transfer and payment for the account of the Fund.
Copies of all advices from the
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Securities System of transfers of securities for the account of the Fund
shall identify the Fund, be maintained for the Fund by the Custodian and be
provided to the Fund at its request. The Custodian shall furnish the Fund
confirmation of each transfer to or from the account of the Fund in the
form of a written advice or notice and shall furnish to the Fund copies of
daily transaction sheets reflecting each day's transactions in the
Securities System for the account of the Fund on the next business day.
(d) The Custodian shall provide the Fund with any report obtained
by the Custodian on the Securities System's accounting system, internal
accounting control and procedures for safeguarding securities deposited in
the Securities System.
(e) The Custodian shall have received the initial or annual
certificate, as the case may be, required by Article IX hereof.
(f) Anything to the contrary in this Agreement notwithstanding,
the Custodian shall be liable to the Fund for any loss or damage to the
Fund resulting from the use of the Securities System by reason of any
negligence, misfeasance or misconduct of the Custodian or any of its agents
or of any of its or their employees or from any failure of the Custodian or
any such agent to enforce effectively such rights as it may have against
the Securities system; at the election of the Fund, it shall be entitled to
be subrogated to the rights of the Custodian with respect to any claim
against the Securities system or any other person which the Custodian may
have as a consequence of any such loss or damage if and to the extent that
the Fund has not been made whole for any such loss or damage.
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2.11 Ownership Certificates for Tax Purposes. The Custodian shall
execute ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other payments with
respect to securities of the Fund held by it and in connection with transfers of
securities.
2.12 Proxies. The Custodian shall, with respect to the securities
held hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of the
Fund or a nominee of the Fund, all proxies, without indication of the manner in
which such proxies are to be voted, and shall promptly deliver to the Fund such
proxies, all proxy soliciting materials and all notices relating to such
securities.
2.13 Communications Relating to Fund Portfolio Securities. The
Custodian shall transmit promptly to the Fund all written information
(including, without limitation, pendency of calls and maturities of securities
and expirations of rights in connection therewith) received by the Custodian
from issuers of the securities being held for the Fund. With respect to tender
or exchange offers, the Custodian shall transmit promptly to the Fund all
written information received by the Custodian from issuers of the securities
whose tender or exchange is sought and from the party (or his agents) making the
tender or exchange offer. If the Fund desires to take action with respect to
any tender offer, exchange offer or any other similar transaction, the Fund
shall notify the Custodian at least three business days prior to the date on
which the Custodian is to take such action.
2.14 Proper Instructions. "Proper Instructions" as used throughout
this Article II means a writing signed or initialled by the President or any
Vice President of the Fund or
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authenticated telecommunications from such officers of the Fund. Each such
writing shall set forth the specific transaction or type of transaction
involved, including a specific statement of the purpose for which such action is
requested. Oral instructions will be considered Proper Instructions if the
Custodian reasonably believes them to have been given by a person authorized to
give such instructions with respect to the transaction involved. The Fund shall
cause all oral instructions to be confirmed in writing or by authenticated
telecommunications.
2.15 Actions Permitted without Express Authority. The Custodian may
in its discretion, without express authority from the Fund:
(a) make payments to itself or others for minor expenses of
handling securities or other similar items relating to its duties under
this contract; provided that all such payments shall be accounted for to
the Fund;
(b) surrender securities in temporary form for securities in
definitive form;
(c) endorse for collection, in the name of the Fund, checks,
drafts and other negotiable instruments; and
(d) in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase, transfer and
other dealings with the securities and property of the Fund except as
otherwise directed by the Directors of the Fund.
2.16 Evidence of Authority. The Custodian shall be protected in
acting upon any instructions, notice, request, consent, certificate or other
instrument or paper believed by it to be genuine and to have been properly
executed by or on behalf of the Fund. The Custodian may
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receive and accept a certified copy of a vote of the Directors of the Fund as
conclusive evidence (a) of the authority of any person to act in accordance with
such vote or (b) of any determination or of any action by the Directors pursuant
to the Articles of Incorporation as described in such vote, and such vote may be
considered as in full force and effect until receipt by the Custodian of written
notice to the contrary.
2.17 Conditions on Custodian's Authority. Actions authorized to be
taken by the Custodian without Proper Instructions shall be in compliance with
all laws, rules, orders, licenses and approvals applicable to the Fund, whether
imposed by U.S. or state governmental authorities.
ARTICLE III
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DUTIES OF CUSTODIAN WITH RESPECT TO BOOKS OF ACCOUNT
AND CALCULATION OF NET ASSET VALUE AND NET INCOME
-------------------------------------------------
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Directors of the Fund to keep the books
of account of the Fund and/or compute the net asset value per share of the
outstanding shares of the Fund but shall not itself keep such books of account
or be responsible for computing such net asset value per share.
ARTICLE IV
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RECORDS
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The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet the
obligations of the Fund under the 1940 Act, with particular attention to Section
31 thereof and Rules 31a-1 and 31a-2 thereunder, applicable federal and state
tax laws and any other law or administrative rules or procedures which may be
applicable to the Fund. All such records shall be the property of the Fund and
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shall at all times during the regular business hours of the Custodian be open
for inspection by duly authorized officers, employees or agents of the Fund and
employees and agents of the Securities and Exchange Commission.
The Custodian shall provide to the Fund monthly and annual accounting
statements detailing and summarizing all transactions that have occurred in the
account. The Custodian shall also provide daily reports each morning setting
forth all transactions and accounting activity for the previous day.
The Custodian shall, at the Fund's request, supply the Fund with a
tabulation of securities owned by the Fund and held by the Custodian and shall,
when requested to do so by the Fund and for such compensation as shall be agreed
upon between the Fund and the Custodian, include certificate numbers in such
tabulations.
ARTICLE V
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OPINION OF FUND'S INDEPENDENT ACCOUNTANT
----------------------------------------
The Custodian shall take all reasonable action, as the Fund may from
time to time request, to obtain from year to year favorable opinions from the
Fund's independent accounts with respect to its activities hereunder in
connection with the preparation of the Fund's periodic reports to the Securities
and Exchange Commission and with respect to any other requirements of such
Commission.
ARTICLE VI
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REPORTS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS
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The Custodian shall provide the Fund, at such times as the Fund may
reasonably require, with reports by independent public accountants on the
accounting system, internal
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accounting control and procedures for safeguarding securities, including
securities deposited and/or maintained in a Securities System, relating to the
services provided by the Custodian under this Contract; such reports, which
shall be of sufficient scope and in sufficient detail, as may reasonably be
required by the Fund, to provide reasonable assurance that any material
inadequacies would be disclosed, shall state in detail material inadequacies
disclosed by such examination, and, if there are no such inadequacies, shall so
state.
ARTICLE VII
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COMPENSATION OF CUSTODIAN
-------------------------
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian, as agreed upon from time to time between the
Fund and the Custodian. Such compensation shall be detailed in a Schedule of
Charges, to be annexed to this agreement as Schedule I and incorporated by
reference hereto.
ARTICLE VIII
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RESPONSIBILITY OF CUSTODIAN
---------------------------
So long as and to the extent that it is in the exercise of reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement and shall be held harmless in acting
upon any notice, request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party or parties.
The Custodian shall be held to the exercise of reasonable care in carrying out
the provisions of this Agreement, but shall be kept indemnified by and shall be
without liability to the Fund for any action taken or omitted by it in good
faith without negligence. It shall be entitled to rely on and
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may act upon advice of counsel (who may be counsel for the Fund) on all matters,
and shall be without liability for any action reasonably taken or omitted
pursuant to such advice.
If the Fund requires the Custodian to take any action with respect to
securities, which action involves the payment of money or which action may, in
the opinion of the Custodian, result in the Custodian or its nominee assigned to
the Fund being liable for the payment of money or incurring liability of some
other form, the Fund, as a prerequisite to requiring the Custodian to take such
action, shall provide indemnity to the Custodian in an amount and form
satisfactory to it.
ARTICLE IX
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EFFECTIVE PERIOD, TERMINATION AND AMENDMENT
-------------------------------------------
This Agreement shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided, may
be amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not sooner
than thirty (30) days after the date of such delivery or mailing; provided,
however that the Custodian shall not act under Section 2.10 hereof in the
absence of receipt of an initial certificate of the Secretary of the Fund that
the Directors of the Fund have approved the initial use of a particular
Securities System and the receipt of an annual certificate of the Secretary or
an Assistant Secretary that the Directors have reviewed the use by the Fund of
such Securities System, as required in each case by Rule 17f-4 under the 1940
Act; provided further, however, that the Fund shall not amend or terminate this
Contract in contravention of any applicable federal or state regulations, or any
provision of the Articles of Incorporation, and further
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provided, that the Fund may at any time by action of its Directors (i)
substitute another bank or trust company for the Custodian by giving notice as
described above to the Custodian; or, (ii) immediately terminate this Contract
in the event of the appointment of a conservator or receiver for the Custodian
by the Comptroller of the Currency or upon the happening of a like event at the
direction of an appropriate regulatory agency or court of competent
jurisdiction.
Upon termination of this Agreement, the Fund shall pay to the
Custodian such compensation as may be due as of the date of such termination and
shall likewise reimburse the Custodian for its costs, expenses and
disbursements.
ARTICLE X
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SUCCESSOR CUSTODIAN
-------------------
If a successor custodian shall be appointed by the Directors of the
Fund, the Custodian shall, upon termination, deliver to such successor custodian
at the office of the Custodian, duly endorsed and in the form for transfer, all
securities, funds and other properties then held by it hereunder.
If no such successor custodian shall be appointed, the Custodian
shall, in like manner, upon receipt of a certified copy of a vote of the
Directors of the Fund, deliver at the office of the Custodian such securities,
funds and other properties in accordance with such vote.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Fund to procure the certified copy of vote referred to or of the
Directors to appoint a successor custodian, the Custodian shall be entitled to
fair compensation for its services during such period as the Custodian retains
possession of such securities, funds and other properties and the provisions of
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this Agreement relating to the duties and obligations of the Custodian shall
remain in full force and effect.
ARTICLE XI
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INTERPRETIVE AND ADDITIONAL PROVISIONS
--------------------------------------
In connection with the operation of this Contract, the Custodian and
the Fund may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. Any such interpretive or
additional provisions shall be in writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the Articles of Incorporation of the Fund. No interpretive or additional
provisions made as provided in the preceding sentence shall be deemed to be an
amendment of this Agreement.
ARTICLE XII
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WISCONSIN LAW TO APPLY
----------------------
This Contract shall be construed and the provisions thereof
interpreted under and in accordance with the laws of Wisconsin; provided,
however, that nothing herein shall be construed as inconsistent with the 1940
Act.
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IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 25th day of October, 1985.
MONETTA FUND, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
President
FIRST WISCONSIN TRUST COMPANY
By:________________________________
First Vice President
ATTEST:____________________________
Assistant Secretary
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