Exhibit (g)(5)
RESTATED AMENDMENT TO CUSTODIAN CONTRACT
This Amendment to the Custodian Contract is made as of October 6, 2000
by and between LB Series Fund, Inc. (the "Fund") and State Street Bank and
Trust Company (the "Custodian"). Capitalized terms used in this Amendment
without definition shall have the respective meanings given to such terms in
the Custodian Contract referred to below.
WHEREAS, the Fund and the Custodian entered into a Custodian Contract
dated as of December 2, 1986 (as amended and in effect from time to time,
the "Contract"); and
WHEREAS, the Fund is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets, and the Fund has made the Opportunity Growth
Portfolio, Mid Cap Growth Portfolio, World Growth Portfolio, Growth
Portfolio, Income Portfolio, High Yield Portfolio and Money Market Portfolio
subject to the Contract (each such series, together with all other series
subsequently established by the Fund and made subject to the Contract in
accordance with the terms thereof, shall be referred to as a "Portfolio",
and, collectively, the "Portfolios"); and
WHEREAS, the Fund and the Custodian desire to amend certain provisions
of the Contract to reflect revisions to Rule 17f-5 ("Rule 17f-5") and the
adoption of Rule 17f-7 ("Rule 17f-7") promulgated under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund and the Custodian desire to amend and restate certain
other provisions of the Contract relating to the custody of assets of each
of the Portfolios held outside of the United States.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereby agree to
amend the Contract, pursuant to the terms thereof, as follows:
I. The amendment to the Contract relating to foreign custody and dated
March 15, 1995 is hereby deleted, and the parties hereto agree that it
shall be and is replaced in its entirety by the provisions set forth
below.
3. PROVISIONS RELATING TO RULES 17f-5 AND 17f-7
3.1. DEFINITIONS.
Capitalized terms in this Article 3 shall have the following meanings:
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited
to, such country's political environment, economic and financial
infrastructure (including any Eligible Securities Depository operating in
the country), prevailing or developing custody and settlement practices, and
laws and regulations applicable to the safekeeping and recovery of Foreign
Assets held in custody in that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of
Rule 17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank
(as defined in Rule 17f-5), a bank holding company meeting the requirements
of an Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other
appropriate action of the U.S. Securities and Exchange Commission (the
"SEC")), or a foreign branch of a Bank (as defined in Section 2(a)(5) of the
▇▇▇▇ ▇▇▇) meeting the requirements of a custodian under Section 17(f) of the
1940 Act;
"Eligible Securities Depository" has the meaning set forth in section (b)(1)
of Rule 17f-7.
"Foreign Assets" means any of the Portfolios' investments (including foreign
currencies) for which the primary market is outside the United States and
such cash and cash equivalents as are reasonably necessary to effect the
Portfolios' transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(2) of
Rule 17f-5.
3.2. THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
3.2.1 DELEGATION TO THE CUSTODIAN AS FOREIGN CUSTODY MANAGER. The
Fund represents and warrants that, by resolution adopted by its Board of
Directors (the "Board"), the Board has delegated to the Custodian, subject
to Section (b) of Rule 17f-5, the responsibilities set forth in this Section
3.2 with respect to Foreign Assets of the Portfolios held outside the United
States, and the Custodian hereby accepts such delegation as Foreign Custody
Manager with respect to the Portfolios.
3.2.2 COUNTRIES COVERED. The Foreign Custody Manager shall be
responsible for performing the delegated responsibilities defined below only
with respect to the countries listed on Schedule A to this Contract, which
list of countries may be amended from time to time by the Fund with the
agreement of the Foreign Custody Manager. The Foreign Custody Manager shall
list on Schedule A the Eligible Foreign Custodians selected by the Foreign
Custody Manager to maintain the Foreign Assets, which list of Eligible
Foreign Custodians may be amended from time to time in the sole discretion
of the Foreign Custody Manager. The Foreign Custody Manager will provide
amended versions of Schedule A in accordance with Section 3.2.5 hereof.
Upon the receipt by the Foreign Custody Manager of Proper Instructions to
open an account or to place or maintain Foreign Assets in a country listed
on Schedule A, and the fulfillment by the Fund, on behalf of the Portfolios,
of the applicable account opening requirements for such country, the Foreign
Custody Manager shall be deemed to have been delegated by the Board on
behalf of the Portfolios responsibility as Foreign Custody Manager with
respect to that country and to have accepted such delegation. Execution of
this Amendment by the Fund shall be deemed (i) to be a Proper Instruction to
open an account, or to place or maintain Foreign Assets, in each country
listed on Schedule A in which the Custodian has previously placed or
currently maintains Foreign Assets pursuant to the terms of the Contract
(the parties agreeing that the countries in which the Custodian has
previously maintained or currently maintains Foreign Assets are listed on
Schedule B) and (ii) to be a delegation by the Board on behalf of the
Portfolios to the Custodian of responsibility as Foreign Custody Manager
with respect to the countries listed on Schedule B and the acceptance by the
Custodian of such delegation. Following the receipt of Proper Instructions
directing the Foreign Custody Manager to close the account of a Portfolio
with the Eligible Foreign Custodian selected by the Foreign Custody Manager
in a designated country, the delegation by the Board on behalf of the
Portfolios to the Custodian as Foreign Custody Manager for that country
shall be deemed to have been withdrawn and the Custodian shall use
commercially reasonable efforts to effect closing such account and to cease
to be the Foreign Custody Manager of the Portfolios with respect to that
country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written notice to
the Fund, such withdrawal to take effect thirty days (or such longer period
to which the parties agree in writing) after receipt of any such notice by
the Fund, the Custodian shall have no further responsibility as Foreign
Custody Manager to the Fund with respect to the country as to which the
Custodian's acceptance of delegation is withdrawn.
3.2.3 SCOPE OF DELEGATED RESPONSIBILITIES:
(a) SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. Subject to the
provisions of this Section 3.2, the Foreign Custody Manager may place and
maintain the Foreign Assets in the care of the Eligible Foreign Custodian
selected by the Foreign Custody Manager in each country listed on Schedule
A, as amended from time to time. In performing its delegated
responsibilities as Foreign Custody Manager to place or maintain Foreign
Assets with an Eligible Foreign Custodian, the Foreign Custody Manager shall
determine that the Foreign Assets will be subject to reasonable care, based
on the standards applicable to custodians in the country in which the
Foreign Assets will be held by that Eligible Foreign Custodian, after
considering all factors relevant to the safekeeping of such assets,
including, without limitation the factors specified in Rule 17f-5(c)(1).
(b) CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS. The Foreign
Custody Manager shall determine that the contract governing the foreign
custody arrangements with each Eligible Foreign Custodian selected by the
Foreign Custody Manager will satisfy the requirements of Rule 17f-5(c)(2).
(c) MONITORING. In each case in which the Foreign Custody
Manager maintains Foreign Assets with an Eligible Foreign Custodian selected
by the Foreign Custody Manager, the Foreign Custody Manager shall establish
a system to monitor in accordance with Rule 17f-5(c)(3) (i) the
appropriateness of maintaining the Foreign Assets with such Eligible Foreign
Custodian and (ii) the contract governing the custody arrangements
established by the Foreign Custody Manager with the Eligible Foreign
Custodian. In the event the Foreign Custody Manager determines that the
custody arrangements with an Eligible Foreign Custodian it has selected are
no longer appropriate, the Foreign Custody Manager shall notify the Board in
accordance with Section 3.2.5 hereunder.
3.2.4 GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY. For
purposes of this Section 3.2, the Foreign Custody Manager shall not be
responsible for such Country Risk as is incurred by placing and maintaining
the Foreign Assets in each country for which the Custodian is serving as
Foreign Custody Manager of the Portfolios.
3.2.5 REPORTING REQUIREMENTS. The Foreign Custody Manager shall
report the withdrawal of the Foreign Assets from an Eligible Foreign
Custodian or the placement of such Foreign Assets with an Eligible Foreign
Custodian not previously reported to the Board by providing to the Board an
amended Schedule A at the end of the calendar quarter in which an amendment
to such Schedule has occurred. The Foreign Custody Manager shall make
written reports notifying the Board of any other material change in the
foreign custody arrangements of the Portfolios described in this Section 3.2
after the occurrence of the material change.
3.2.6 STANDARD OF CARE AS FOREIGN CUSTODY MANAGER OF A PORTFOLIO. In
performing the responsibilities delegated to it, the Foreign Custody Manager
agrees to exercise reasonable care, prudence and diligence such as a person
having responsibility for the safekeeping of assets of management investment
companies registered under the 1940 Act would exercise.
3.2.7 REPRESENTATIONS WITH RESPECT TO RULE 17f-5. The Foreign
Custody Manager represents to the Fund that (i) it is a U.S. Bank as defined
in section (a)(7) of Rule 17f-5 (ii) that each institution listed on
Schedule A is an Eligible Foreign Custodian and (iii) each institution
listed in Schedule B is an Eligible Securities Depository. The Fund
represents to the Custodian that the Board has determined that it is
reasonable for the Board to rely on the Custodian to perform the
responsibilities delegated pursuant to this Contract to the Custodian as the
Foreign Custody Manager of the Portfolios.
3.2.8 EFFECTIVE DATE AND TERMINATION OF THE CUSTODIAN AS FOREIGN
CUSTODY MANAGER. The Board's delegation to the Custodian as Foreign Custody
Manager of the Portfolios shall be effective as of the date hereof and shall
remain in effect until terminated at any time, without penalty, by written
notice from the terminating party to the non-terminating party, such
termination to become effective thirty (30) days after receipt by the non-
terminating party of such notice. The provisions of Section 3.2.2 hereof
shall govern the delegation to and termination of the Custodian as Foreign
Custody Manager of the Portfolios with respect to designated countries.
3.3 ELIGIBLE SECURITIES DEPOSITORIES.
3.3.1 ANALYSIS AND MONITORING. The Custodian shall (a) provide
each Portfolio's investment manager (and sub-adviser, where applicable), as
identified in proper instructions by the Board, with an analysis of the
custody risks associated with maintaining assets with the Eligible
Securities Depositories set forth on Schedule B hereto in accordance with
section (a)(1)(i)(A) of Rule 17f-7, and (b) monitor such risks on a
continuing basis, and promptly notify the Fund (or its duly-authorized
investment manager or investment adviser) of any material change in such
risks, in accordance with section (a)(1)(i)(B) of Rule 17f-7.
3.3.2 STANDARD OF CARE. The Custodian agrees to exercise reasonable
care, prudence and diligence in performing the duties set forth in Section
3.3.1.
4. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE PORTFOLIOS
HELD OUTSIDE THE UNITED STATES.
4.1. DEFINITIONS.
Capitalized terms in this Article 4 shall have the following meanings:
"Foreign Securities System" means an Eligible Securities Depository listed
on Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
4.2. HOLDING SECURITIES.
The Custodian shall identify on its books as belonging to the Portfolios the
foreign securities held by each Foreign Sub-Custodian or Foreign Securities
System. The Custodian may hold foreign securities for all of its customers,
including the Portfolios, with any Foreign Sub-Custodian in an account that
is identified as belonging to the Custodian for the benefit of its
customers, provided however, that (i) the records of the Custodian with
respect to foreign securities of the Portfolios which are maintained in such
account shall identify those securities as belonging to the Portfolios and
(ii), to the extent permitted and customary in the market in which the
account is maintained, the Custodian shall require that securities so held
by the Foreign Sub-Custodian be held separately from any assets of such
Foreign Sub-Custodian or of other customers of such Foreign Sub-Custodian.
4.3. FOREIGN SECURITIES SYSTEMS.
Foreign securities shall be maintained in a Foreign Securities System in a
designated country through arrangements implemented by the Custodian or a
Foreign Sub-Custodian, as applicable, in such country.
4.4. TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.
4.4.1. DELIVERY OF FOREIGN ASSETS. The Custodian or a Foreign Sub-
Custodian shall release and deliver foreign securities of the Portfolios
held by the Custodian or such Foreign Sub-Custodian, or in a Foreign
Securities System account, only upon receipt of Proper Instructions, which
may be continuing instructions when deemed appropriate by the parties, and
only in the following cases:
(i) upon the sale of such foreign securities for the Portfolio in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded,
including, without limitation: (A) delivery against
expectation of receiving later payment; or (B) in the case of
a sale effected through a Foreign Securities System, in
accordance with the rules governing the operation of the
Foreign Securities System;
(ii) in connection with any repurchase agreement related to foreign
securities;
(iii) to the depository agent in connection with tender or other
similar offers for foreign securities of the Portfolios;
(iv) to the issuer thereof or its agent when such foreign
securities are called, redeemed, retired or otherwise become
payable;
(v) to the issuer thereof, or its agent, for transfer into the
name of the Custodian (or the name of the respective Foreign
Sub-Custodian or of any nominee of the Custodian or such
Foreign Sub-Custodian) or for exchange for a different number
of bonds, certificates or other evidence representing the same
aggregate face amount or number of units;
(vi) to brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market
custom; provided that in any such case the Foreign Sub-
Custodian shall have no responsibility or liability for any
loss arising from the delivery of such securities prior to
receiving payment for such securities except as may arise
from the Foreign Sub-Custodian's own negligence or willful
misconduct;
(vii) 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;
(viii) in the case of warrants, rights or similar foreign 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;
(ix) for delivery as security in connection with any borrowing by
the Portfolios requiring a pledge of assets by the Portfolios;
(x) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(xi) in connection with the lending of foreign securities; and
(xii) for any other purpose, but only upon receipt of Proper
Instructions specifying the foreign securities to be delivered
and naming the person or persons to whom delivery of such
securities shall be made.
4.4.2. PAYMENT OF PORTFOLIO MONIES. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate
by the parties, the Custodian shall pay out, or direct the respective
Foreign Sub-Custodian or the respective Foreign Securities System to pay
out, monies of a Portfolio in the following cases only:
(i) upon the purchase of foreign securities for the Portfolio,
unless otherwise directed by Proper Instructions, by (A)
delivering money to the seller thereof or to a dealer therefor
(or an agent for such seller or dealer) against expectation of
receiving later delivery of such foreign securities; or (B) in
the case of a purchase effected through a Foreign Securities
System, in accordance with the rules governing the operation
of such Foreign Securities System;
(ii) in connection with the conversion, exchange or surrender of
foreign securities of the Portfolio;
(iii) for the payment of any expense or liability of the Portfolio,
including but not limited to the following payments:
interest, taxes, investment advisory fees, transfer agency
fees, fees under this Contract, legal fees, accounting fees,
and other operating expenses;
(iv) for the purchase or sale of foreign exchange or foreign
exchange contracts for the Portfolio, including transactions
executed with or through the Custodian or its Foreign Sub-
Custodians;
(v) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(vi) for payment of part or all of the dividends received in
respect of securities sold short;
(vii) in connection with the borrowing or lending of foreign
securities; and
(viii) for any other purpose, but only upon receipt of Proper
Instructions specifying the amount of such payment and naming
the person or persons to whom such payment is to be made.
4.4.3. MARKET CONDITIONS.
Notwithstanding any provision of this Contract to the contrary, settlement
and payment for Foreign Assets received for the account of the Portfolios
and delivery of Foreign Assets maintained for the account of the Portfolios
may be effected in accordance with the customary established securities
trading or processing practices and procedures in the country or market in
which the transaction occurs, including, without limitation, delivering
Foreign Assets to the purchaser thereof or to a dealer therefor (or an agent
for such purchaser or dealer) with the expectation of receiving later
payment for such Foreign Assets from such purchaser or dealer.
The Custodian shall provide to each Portfolio's adviser (and sub-adviser,
where applicable), as identified in proper instructions by the Board, the
information with respect to custody and settlement practices in countries in
which the Custodian employs a Foreign Sub-Custodian, including without
limitation information relating to Foreign Securities Systems, described on
Schedule C hereto at the time or times set forth on such Schedule. The
Custodian may revise Schedule C from time to time, provided that no such
revision shall result in such adviser or sub-adviser being provided with
substantively less information than had been previously provided hereunder.
4.5. REGISTRATION OF FOREIGN SECURITIES.
The foreign securities maintained in the custody of a Foreign Sub-Custodian
(other than bearer securities) shall be registered in the name of the
applicable Portfolio or in the name of the Custodian or in the name of any
Foreign Sub-Custodian or in the name of any nominee of the foregoing, and
the Fund on behalf of such Portfolio agrees to hold any such nominee
harmless from any liability as a holder of record of such foreign
securities. The Custodian or a Foreign Sub-Custodian shall not be obligated
to accept securities on behalf of a Portfolio under the terms of this
Contract unless the form of such securities and the manner in which they are
delivered are in accordance with reasonable market practice.
4.6. BANK ACCOUNTS.
The Custodian shall identify on its books as belonging to the Fund cash
(including cash denominated in foreign currencies) deposited with the
Custodian. Where the Custodian is unable to maintain, or market practice
does not facilitate the maintenance of, cash on the books of the Custodian,
a bank account or bank accounts shall be opened and maintained outside the
United States on behalf of a Portfolio with a Foreign Sub-Custodian. All
accounts referred to in this Section shall be subject only to draft or order
by the Custodian (or, if applicable, such Foreign Sub-Custodian) acting
pursuant to the terms of this Agreement to hold cash received by or from or
for the account of the Portfolio. Cash maintained on the books of the
Custodian (including its branches, subsidiaries and affiliates), regardless
of currency denomination, is maintained in bank accounts established under,
and subject to the laws of, The Commonwealth of Massachusetts.
4.7. COLLECTION OF INCOME.
The Custodian shall use reasonable commercial efforts to collect all income
and other payments with respect to the Foreign Assets held hereunder to
which the Portfolios shall be entitled and shall credit such income, as
collected, to the applicable Portfolio. In the event that extraordinary
measures are required to collect such income, the Fund and the Custodian
shall consult as to such measures and as to the compensation and expenses of
the Custodian relating to such measures.
4.8. SHAREHOLDER RIGHTS.
With respect to the foreign securities held pursuant to this Article 4, the
Custodian will use reasonable commercial efforts to facilitate the exercise
of voting and other shareholder rights, subject always to the laws,
regulations and practical constraints that may exist in the country where
such securities are issued. The Fund acknowledges that local conditions,
including lack of regulation, onerous procedural obligations, lack of notice
and other factors may have the effect of severely limiting the ability of
the Fund to exercise shareholder rights.
4.9. COMMUNICATIONS RELATING TO FOREIGN SECURITIES.
The Custodian shall transmit promptly to the Fund written information with
respect to materials received by the Custodian via the Foreign Sub-
Custodians from issuers of the foreign securities being held for the account
of the Portfolios (including, without limitation, pendency of calls and
maturities of foreign securities and expirations of rights in connection
therewith). With respect to tender or exchange offers, the Custodian shall
transmit promptly to the Fund written information with respect to materials
so received by the Custodian from issuers of the foreign securities whose
tender or exchange is sought or from the party (or its agents) making the
tender or exchange offer. The Custodian shall not be liable for any
untimely exercise of any tender, exchange or other right or power in
connection with foreign securities or other property of the Portfolios at
any time held by it unless (i) the Custodian or the respective Foreign Sub-
Custodian is in actual possession of such foreign securities or property and
(ii) the Custodian receives Proper Instructions with regard to the exercise
of any such right or power, and both (i) and (ii) occur at least three
business days prior to the date on which the Custodian is to take action to
exercise such right or power.
4.10. LIABILITY OF FOREIGN SUB-CUSTODIANS.
Each agreement pursuant to which the Custodian employs a Foreign Sub-
Custodian shall, to the extent possible, require the Foreign Sub-Custodian
to exercise reasonable care in the performance of its duties, and to
indemnify, and hold harmless, the Custodian from and against any loss,
damage, cost, expense, liability or claim arising out of or in connection
with the Foreign Sub-Custodian's performance of such obligations. At the
Fund's election, the Portfolios shall be entitled to be subrogated to the
rights of the Custodian with respect to any claims against a Foreign Sub-
Custodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that the Portfolios have not been
made whole for any such loss, damage, cost, expense, liability or claim.
4.11. TAX LAW.
The Custodian shall have no responsibility or liability for any obligations
now or hereafter imposed on the Fund, the Portfolios or the Custodian as
custodian of the Portfolios by the tax law of the United States or of any
state or political subdivision thereof. It shall be the responsibility of
the Fund (except taxes attributable to the domicile of the Custodian in
Massachusetts and in such case the Custodian shall notify the Fund) to
notify the Custodian of the obligations imposed on the Fund with respect to
the Portfolios or the Custodian as custodian of the Portfolios by the tax
law of countries other than those mentioned in the above sentence, including
responsibility for withholding and other taxes, assessments or other
governmental charges, certifications and governmental reporting. The sole
responsibility of the Custodian with regard to such tax law shall be to use
reasonable efforts to assist the Fund with respect to any claim for
exemption or refund under the tax law of countries for which the Fund has
provided such information.
4.12. LIABILITY OF CUSTODIAN.
Except as may arise from the Custodian's own negligence or willful
misconduct or the negligence or willful misconduct of a Sub-Custodian, the
Custodian shall be without liability to the Fund for any loss, liability,
claim or expense resulting from or caused by anything which is part of
Country Risk.
The Custodian shall be liable for the acts or omissions of a Foreign Sub-
Custodian to the same extent as set forth with respect to sub-custodians
generally in the Contract and, regardless of whether assets are maintained
in the custody of a Foreign Sub-Custodian or a Foreign Securities System,
the Custodian shall not be liable for any loss, damage, cost, expense,
liability or claim resulting from nationalization, expropriation, currency
restrictions, or acts of war or terrorism, or any other loss where the Sub-
Custodian has otherwise acted with reasonable care.
II. Except as specifically superseded or modified herein, the terms and
provisions of the Contract shall continue to apply with full force and
effect. In the event of any conflict between the terms of the
Contract prior to this Amendment and this Amendment, the terms of this
Amendment shall prevail. If the Custodian is delegated the
responsibilities of Foreign Custody Manager pursuant to the terms of
Article 3 hereof, in the event of any conflict between the provisions
of Articles 3 and 4 hereof, the provisions of Article 3 shall prevail.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed in its name and behalf by its duly authorized representative as of
the date first above written.
WITNESSED BY: STATE STREET BANK AND TRUST COMPANY
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Vice President and Chief Operating Officer
WITNESSED BY: LB SERIES FUND, INC.
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Assistant Secretary Chairman and President