Exhibit 8
CUSTODIAN AGREEMENT
THIS AGREEMENT made on _______________________________, 1996, between
Burridge Funds, a Massachusetts business trust and FIRSTAR TRUST
COMPANY, a corporation organized under the laws of the State of Wisconsin
(hereinafter called "Custodian"),
WHEREAS, Burridge Funds is an open-ended management investment
company under the Investment Company Act of 1940 currently having shares of a
single series, Burridge Capital Development Fund, hereinafter called the
"Fund"; and
WHEREAS, the Fund 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
Fund 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 Burridge Funds on behalf of the
Fund by any two of the President, a Vice President, the Secretary and the
Treasurer of Burridge Funds, or any other persons duly authorized to sign
by the Board of Trustees.
The word "Board" shall mean Board of Trustees of Burridge Funds.
2. Names, Titles, and Signatures of the Fund's Officers
An officer of Burridge Funds 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 Burridge Funds is authorized to issue separate
classes of shares of beneficial interest representing interests in separate
investment portfolios. In the event Burridge Funds establishes one or more
additional series of shares with respect to which it desires to have the
Custodian render services under the terms hereof, it shall so notify
the Custodian in writing, and if the Custodian agrees in writing to provide
such services, such services will be covered by the terms and conditions of
this Agreement.
3. Receipt and Disbursement of Money
A. Custodian shall open and maintain a separate account or accounts in
the name of the Fund, 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 Fund. Upon receipt of proper instructions, which may by
their terms be continuing instructions when deemed appropriate by the parties,
Custodian shall make payments of cash to, or for the account of, the Fund from
such cash only:
(a) for the purchase of securities for the portfolio of the Fund upon the
delivery of such securities to Custodian, registered in the name of
the Fund or of the nominee of Custodian referred to in Section 7 or in
proper form for transfer; all securities accepted by Custodian shall
be accompanied by payment of, or a "due ▇▇▇▇" for, (a)any dividends,
interest, or other distributions of the issuer, due the purchaser;
(b)in the case of a purchase effected through a clearing agency or
book entry system, in accordance with the conditions set forth in
Section15 hereof; (c)in the case of repurchase agreements entered into
between the Fund and Custodian, or another bank; (i)against delivery
of the securities either in certificate form or through an entry
crediting Custodian's account at the Federal Reserve Bank with such
securities or (ii)against delivery of the receipt evidencing purchase
by the Fund of securities owned by Custodian along with written
evidence of the agreement by Custodian to repurchase such securities
from the Fund.
(b) for the repurchase or redemption of shares of beneficial interest of
the Fund upon delivery thereof to Custodian, or upon proper
instructions from Burridge Funds;
(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 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 officers' certificate requesting such payment and stating that it is
for a purpose permitted under
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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 Burridge Funds issues appropriate oral or facsimile instructions to
Custodian and an appropriate officers' certificate is received by Custodian
within two business days thereafter.
B. Custodian shall collect on a timely basis all income and other
payments with respect to 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 timely basis all income and other payables.
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 Fund. Custodian shall collect on a timely basis all income and other
payment with respect to bearer of securities if, on the date of payment by the
issuer, such securities are held by Custodian and shall credit such income, as
collected, to the Fund's custodian account. In any case in which Custodian
does not receive any such due and unpaid income within a reasonable time after
it has made proper demands for the same (which shall be presumed to consist of
at least one demand letter and at least three telephonic demands), it shall so
notify the applicable Fund in writing, including copies of all demand letters,
any written responses thereto, and memoranda of all oral responses thereto and
to telephonic demands, and await proper instructions; Custodian shall not be
obliged to take legal action for collection unless and until reasonably
indemnified to its satisfaction. It shall also notify the applicable Fund as
soon as reasonably practicable whenever income due on securities, in respect to
which such Fund requests such notice, is not collected in due course.
C. Custodian shall, upon receipt of proper instructions, make federal
funds available to the Fund as of specified times agreed upon from
by the Fund and the custodian in the amount of checks received in payment for
shares of the Fund which are deposited into the Fund's account.
D. In any and every case where payment for purchase of securities for the
account of the Fund is made by Custodian in advance of receipt of the securities
purchased, in the absence of specific written instructions from Burridge Funds
on behalf of the Fund to so pay in advance, Custodian shall be absolutely liable
to the Fund for such securities to the same extent as if the securities had been
received by 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,
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
Custodian maintained with a Federal Reserve Bank or of the safe-keeping receipt,
provided that such securities have in fact been so transferred by book entry.
4. Receipt of Securities
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Custodian shall hold in a separate account, and physically segregated at
all times from those of any other persons, firms, or corporations, pursuant to
the provisions of this Agreement, all non-cash property, including securities
received by it from or for the account of the Fund, provided that securities may
be maintained in a securities depository or book entry system in accordance with
the conditions set forth in Section ___ of this Agreement. All such non-cash
property, including securities, shall be held or disposed of by Custodian for,
and subject at all times to the instructions, of Burridge Funds on behalf of the
Fund and pursuant to the terms of this Agreement. Custodian shall have no power
or authority to assign, hypothecate, pledge, or otherwise dispose of any such
securities and investments, except pursuant to the direction of Burridge Funds
on behalf of the Fund and only for the account of the Fund as set forth in
paragraph5 of this Agreement.
5. Segregated Accounts
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.
6. Transfer, Exchange, Redelivery, etc. of Securities
Custodian shall have sole power to release or deliver any securities of
the Fund held by it pursuant to this Agreement. Custodian agrees to transfer,
exchange or deliver securities held by it hereunder only upon receipt of proper
instructions, which may by their terms be continuing instructions when deemed
appropriate by the parties, and only:
(a) for sales of such securities for the account of the Fund upon receipt
by Custodian of payment therefor;
(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;
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(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;
(h) for the purpose of redeeming in kind shares of common stock of the
Fund upon delivery thereof to Custodian;
(i) upon receipt of payment in connection with any repurchase agreement
related to such securities entered into by the Funds; or
(j) 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 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), (g), (h), or (i) of this Section 5
and also, in respect of item (j), 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 Fund issues appropriate
oral or facsimile instructions to Custodian and an appropriate officers'
certificate is received by Custodian within two business days thereafter.
7. 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 Fund, which call for payment
upon presentation and hold the cash received by it upon such payment for the
account of the Fund; (b) collect interest and cash dividends received, with
notice to the Fund, for the account of the Fund; (c) hold for the account of
the Fund 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 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 the Fund's name on such certificates as the owner of the securities
covered thereby, to the extent it may lawfully do so.
8. 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 the
Fund or of any nominee for the Fund or of any 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 the end that the specific securities
held by it hereunder shall be at all times identifiable in its records.
Burridge Funds 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 Fund and which may from time to time be
registered in the name of the Fund. All securities accepted by Custodian on
behalf of the Fund shall be in "street" or other good delivery form.
9. 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 Fund, except in
accordance with the instructions contained in an officers' certificate.
Custodian shall deliver, or cause to be executed and delivered, to the Fund 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 the Fund), but without
indicating the manner in which such proxies are to be voted.
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 Custodian from
issuers of the securities being held for the Fund. With respect to tender or
exchange offers, Custodian shall transmit promptly to the Fund all written
information received by Custodian from issuers of the securities being held for
the Fund. With respect to tender or exchange offers, Custodian shall transmit
promptly to the Fund all written information received by 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 Custodian at least two business days prior
to the date on which Custodian is to take action.
10. Transfer Tax and Other Disbursements
The Fund 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
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Internal Revenue Code and any 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.
11. 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 parties. Until modified in writing, such compensation shall be as
set forth in Exhibit A attached hereto.
So long as and to the extent that it exercises reasonable care, 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 Fund agrees 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, except such as may arise
from its or its nominee's own negligent action, negligent failure to act or
willful misconduct. Custodian is authorized to charge any account of the Fund
for such items.
In the event of any advance of cash for any purpose made by Custodian
resulting from orders or instructions of the Fund, 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
negligent action, negligent failure to act or willful misconduct, any property
at any time held for the account of the Fund shall be security therefore.
Custodian agrees to indemnify and hold harmless Fund from all charges,
expenses, assessments, and claims/liabilities (including counsel fees) incurred
or assessed against it in connection with the performance of this agreement,
except such as may arise from the Fund's own negligent action, negligent
failure to act, or willful misconduct.
12. Subcustodians
Custodian is hereby authorized to engage another bank or trust company as
a Subcustodian for all or any part of the Fund's assets, so long as any such
bank or trust company is a 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 the Fund by the Subcustodian as
fully as if the Custodian was directly responsible for any such losses under
the terms of the Custodian Agreement.
Notwithstanding anything contained herein, if the Fund requires the
Custodian to engage specific Subcustodians for the safekeeping and/or clearing
of assets, the Fund agrees to
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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 Fund's assets, except as may arise from its own negligent
action, negligent failure to act or willful misconduct.
13. Reports by Custodian
Custodian shall furnish the Fund periodically as agreed upon with a
statement summarizing all transactions and entries for the account of Fund.
Custodian shall furnish to the Fund, at the end of every month, a list of the
portfolio securities showing the aggregate cost of each issue and a list of all
securities transactions that remain unsettled at such time. 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 of
auditors employed by, the Fund.
14. Termination or Assignment
This Agreement may be terminated by the Fund, or by Custodian, on ninety
(90) days notice, given in writing and sent by registered mail to Custodian at
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to the Fund at ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 Fund 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 Fund to the Fund, but may deliver them to a
bank or trust company, which is a "bank" defined in the Investment Company Act
of 1940, of its own selection, having an aggregate capital, surplus and
undivided profits, as shown by its last published report of not less than
Twenty-five Million Dollars ($25,000,000) as a Custodian for the Fund 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 Fund 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
Fund, authorized or approved by a resolution of its Board.
15. Deposits of Securities in Securities Depositories
Custodian may deposit and/or maintain securities owned by the Funds in a
clearing agency registered with the Securities and Exchange Commission under
Section 17A of the system authorized by the U.S. Department of the Treasury and
certain federal agencies, each of which is referred to herein as "a Securities
System," in accordance with applicable Federal Reserve Board and Securities and
Exchange Commission rules and regulations, if any, and subject to the following
provisions:
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1. Custodian may keep securities of the Fund in a Securities System
provided that such securities are represented in an account ("Account")
of Custodian in the Securities System which shall not include any
assets of Custodian other than assets held as a fiduciary, custodian,
or otherwise for customers;
2. The records of Custodian with respect to securities of the Fund which
are maintained in the Securities System shall identify by book-entry
those securities belonging to the Fund;
3. 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 Custodian to reflect such payment and
transfer for the account of the Fund. Custodian shall transfer
securities sold or loaned for the account of a Fund upon (i)receipt of
advice from the Securities System that payment or collateral for such
securities has been transferred to the Account, and (ii) the making of
an entry on the records of Custodian to reflect such transfer and
payment for the account of the Fund. Copies of all advices from the
Securities System of transfers of securities for the account of the
Fund shall identify the Fund, be maintained for the Fund by Custodian
and be provided to the Fund at its request.
4. Custodian shall promptly provide Burridge Funds with any report
obtained by Custodian on the Securities System's accounting system,
internal accounting control, and procedures for safeguarding securities
deposited in the Securities System.
5. Anything to the contrary herein notwithstanding, Custodian shall be
liable to the Fund for any loss or damage to the Fund resulting from
use of the Securities System by reasons of any negligence, misfeasance,
or misconduct or Custodian or any of its agents or of any of its or
their employees or from failure of 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 Custodian with respect to any claim against
the Securities System or any other person which 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.
6. Custodian shall not be authorized to act under this Section in the
absence of an appropriate certificate of Burridge Funds that the Board
has approved the use of a particular Securities Systems and any changes
to arrangements in connection therewith.
16. Independent Accountants
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Custodian shall provide the Fund, at such times as Burridge Funds may
reasonably require, with reports by independent public accountants on the
accounting system, internal accounting control and procedures for safeguarding
securities, including securities deposited and/or maintained in a Securities
System, relating to the services provided by Custodian under this Agreement;
such reports, which shall be of sufficient scope and in sufficient detail, as
may reasonably be required by Burridge Funds, to provide reasonable assurance
that any material inadequacies would be disclosed by such examination, and, if
there are not such inadequacies, shall so state.
17. Records
Custodian shall prepare and maintain any records relating to its
activities hereunder in such manner as will meet the obligations of Burridge
Funds pursuant to the provisions of the Investment Company Act of 1940, as
amended, or the rules and regulations promulgated thereunder, and applicable
federal and state tax laws and regulations. To the extent that Custodian in any
capacity prepares or maintains any records required to be maintained and
preserved by the Fund pursuant 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 Fund, its auditors,
and the Securities and Exchange Commission upon request and to preserve such
records for the periods prescribed in Rule 31a-2 under the Investment Company
Act of 1940, as amended and applicable federal and state tax laws and
regulations.
18. Disclaimer of Liability
This Agreement is executed on behalf of Burridge Funds by its officers in
their capacity as officers and not individually. The obligations of Burridge
Funds under this Agreement are not binding upon Burridge Funds' trustees,
officers, or shareholders individually but are binding only upon the assets and
property of the Fund. Burridge Funds' Declaration of Trust is on file with the
Secretary of the Commonwealth of Massachusetts.
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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
________________________________ By ____________________________
Assistant Secretary Vice President
Attest: BURRIDGE FUNDS
________________________________ By ____________________________
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