Exhibit (g)(1)(v)
SECOND AMENDMENT TO CUSTODY AGREEMENT
This Second Amendment of Custody Agreement is made as of January 17,
2002, by and between THE PRUDENTIAL SERIES FUND, INC. and PRUDENTIAL'S GIBRALTAR
FUND (collectively the "Fund") and STATE STREET BANK AND TRUST COMPANY
("Custodian"). This Amendment shall only apply to The Prudential Series Fund,
Inc. and its portfolios. 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 Custodian have entered into a Custody Agreement
dated May 19, 1997 and supplemented by Restated Supplement dated as of July 1,
2001, and as first amended as of March 1, 2000 (the "Agreement"); and
WHEREAS, the Fund and Custodian desire to amend certain provisions of
the Agreement to provide for the custody and handling of interests in Loans (as
defined below).
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
I. New Section 24 is hereby added to the Agreement, as of the effective
date of this Amendment, as set forth below.
24. Special Provisions Regarding Interest in Loans. The following
----------------------------------------------
provisions shall apply with respect to investments, property or assets in the
nature of loans, or interests or participations in loans, including without
limitation interests in syndicated bank loans and bank loan participations
(collectively, "Loans").
24.1 Safekeeping. Instruments, certificates, agreements and/or other
-----------
documents which the Custodian may receive in respect of Loans, if any
(collectively "Financing Documents"), from time to time, shall be held by the
Custodian at its offices in Boston, Massachusetts.
24.2 Duties of the Custodian.
-----------------------
1) The Custodian shall accept such Financing Documents, if any, in
respect of Loans as may be delivered to it from time to time by
the Fund. The Custodian shall be under no obligation to examine
the contents or determine the sufficiency of any such Financing
Documents or to provide any certification with respect thereto,
whether received by the Custodian as original documents,
photocopies, by facsimile or otherwise. Without limiting the
foregoing, the Custodian is under no duty to examine any such
Financing Documents to determine whether necessary steps have
been taken or requirements met in respect of the assignment or
transfer of the related Loan or applicable interest or
participation therein. The Custodian
shall be entitled to assume the genuineness, sufficiency and
completeness of any Financing Documents received, and the
genuineness and due authority of any signature appearing
thereon.
2) Notwithstanding any term of this Agreement to the contrary,
with respect to any Loans, (i) the Custodian shall be under no
obligation to determine, and shall have no liability for, the
sufficiency of, or to require delivery of, any instrument,
document or agreement constituting, evidencing or representing
such Loan, other than to receive such Financing Documents, if
any, as may be delivered or caused to be delivered to it by
the Fund (or its investment manager or investment adviser (the
"Adviser") on its behalf), (ii) without limiting the
generality of the foregoing, delivery of any such Loan may be
made to the Custodian by, and may be represented solely by,
delivery to the Custodian of a facsimile or photocopy of an
assignment agreement (an "Assignment Agreement") or a
confirmation or certification from the Fund (or the Adviser)
to the effect that it has acquired such Loan and/or has
received or will receive , and will deliver to the Custodian,
appropriate Financing Documents constituting, evidencing or
representing such Loan (such confirmation or certification,
together with any Assignment Agreement, collectively, an
"Assignment Agreement or Confirmation"), in any case without
delivery of any promissory note, participation certificate or
similar instrument (collectively, an "Instrument"), (iii) if
an original Instrument shall be or shall become available with
respect to any such Loan, it shall be the sole responsibility
of the Fund (or the Adviser acting on its behalf) to make or
cause delivery thereof to the Custodian, and the Custodian
shall be under no obligation at any time or times to determine
whether any such original Instrument has been issued or made
available with respect to such Loan, and shall not be under
any obligation to compel compliance by the Fund to make or
cause delivery of such Instrument to the Custodian, and (iv)
any reference to Financing Documents appearing in Section
24.3(a) shall be deemed to include, without limitation, any
such Instrument and/or Assignment Agreement or Confirmation.
3) If payments with respect to a Loan ("Loan Payment") are not
received by the Custodian on the date on which they are due,
as reflected in the Payment Schedule (as such term is defined
in Section 24.3 below) of the Loan ("Payment Date"), or in the
case of interest payments, not received either on a scheduled
interest payable date, as reported to the Custodian by the
Fund (or the Adviser, on its behalf) for the Loan (the
"Interest Payable Date"), or in the amount of their accrued
interest payable, the Custodian shall promptly, but in no
event later than one business day after the Payment Date or
the Interest Payable Date, give telephonic notice to the party
obligated under the Financing Documents to make such Loan
Payment (the "Obligor") of its failure to make timely payment,
and (2) if such payment is not received within three business
days of its due date, shall notify the Fund (or the Adviser on
its behalf) of such Obligor's
failure to make the Loan Payment. The Custodian shall have no
responsibility with respect to the collection of Loan Payments
which are past due, other than the duty to notify the Obligor
and the Fund (or the Adviser on its behalf) as provided
herein.
4) The Custodian shall have no responsibilities or duties
whatsoever under this Agreement, with respect to Loans or the
Financing Documents, except for such responsibilities as are
expressly set forth herein. Without limiting the generality of
the foregoing, the Custodian shall have no obligation to
preserve any rights against prior parties or to exercise any
right or perform any obligation in connection with the Loans
or any Financing Documents (including, without limitation, no
obligation to take any action in respect of or upon receipt of
any consent solicitation, notice of default or similar notice
received from any bank agent or Obligor, except that the
Custodian shall undertake reasonable efforts to forward any
such notice to the Fund or the Adviser). In case any question
arises as to its duties hereunder, the Custodian may request
instructions from the Fund and shall be entitled at all times
to refrain from taking any action unless it has received
Authorized Instructions from the Fund or the Adviser and the
Custodian shall in all events have no liability, risk or cost
for any action taken, with respect to a Loan, pursuant to and
in compliance with the Authorized Instructions of such
parties.
5) The Custodian shall be only responsible and accountable for
Loan Payments actually received by it and identified as for
the account of the Fund; any and all credits and payments
credited to the Fund, with respect to Loans, shall be
conditional upon clearance and actual receipt by the Custodian
of final payment thereon.
6) The Custodian shall promptly, upon the Fund's request, release
to the Fund's Adviser or to any party as the Fund or the
Adviser may specify, any Financing Documents being held on
behalf of the Fund. Without limiting the foregoing, the
Custodian shall not be deemed to have or be charged with
knowledge of the sale of any Loan, unless and except to the
extent it shall have received written notice and instruction
from the Fund (or the Adviser on its behalf) with respect
thereto, and except to the extent it shall have received the
sale proceeds thereof.
7) In no event shall the Custodian be under any obligation or
liability to make any advance of its own funds in respect
of any Loan.
24.3 Responsibility of the Fund. With respect to each Loan held by
--------------------------
the Custodian hereunder in accordance with the provisions hereof, the Fund shall
(a) cause the Financing Documents evidencing such Loan to be delivered to the
Custodian; (b) include with such Financing Documents an amortization schedule of
payments (the "Payment Schedule") identifying the amount and due dates of
scheduled principal payments, the Interest Payable Date(s) and related payment
amount information, and
such other information with respect to the related Loan and Financing Documents
as the Custodian reasonably may require in order to perform its services
hereunder (collectively, "Loan Information"), in such form and format as the
Custodian reasonably may require; (c) take, or cause the Adviser to take, all
actions necessary to acquire good title to such Loan (or the participation
therein, as the case may be), as and to the extent intended to be acquired; and
(d) cause the Custodian to be named as its nominee for payment purposes under
the Financing Documents or otherwise provide for the direct payment of the
Payments to the Custodian. The Custodian shall be entitled to rely upon the Loan
Information provided to it by the Fund (or the Adviser on its behalf) without
any obligation on the part of the Custodian independently to verify,
investigate, recalculate, update or otherwise confirm the accuracy or
completeness thereof; and the Custodian shall have no liability for any delay or
failure on the part of the Fund in providing necessary Loan Information to the
Custodian, or for any inaccuracy therein or incompleteness thereof. With respect
to each such Loan, the Custodian shall be entitled to rely on any information
and notices it may receive from time to time from the related bank agent,
Obligor or similar party with respect to the related Loan, and shall be entitled
to update its records on the basis of such information or notices received,
without any obligation on its part independently to verify, investigate or
recalculate such information.
24.4 Instructions; Authority to Act. The certificate of the Secretary
------------------------------
or an Assistant Secretary of the Trust, identifying certain individuals to be
officers of the Trust or employees of the Adviser of the Fund authorized to sign
any such instructions, may be received and accepted as conclusive evidence of
the incumbency and authority of such to act and may be considered by the
Custodian to be in full force and effect until it receives written notice to the
contrary from the Secretary or Assistant Secretary of the Trust. Notwithstanding
any other provision of this Agreement, the Custodian shall have no
responsibility to ensure that any investment by the Trust or any Fund with
respect to Loans has been authorized.
24.5 Attachment. In case any portion of the Loans or the Financing
----------
Documents shall be attached or levied upon pursuant to an order of court, or the
delivery or disbursement thereof shall be stayed or enjoined by an order of
court, or any other order, judgment or decree shall be made or entered by any
court affecting the property of the Fund or any act of the Custodian relating
thereto, the Custodian is hereby expressly authorized in its sole discretion to
obey and comply with all orders, judgments or decrees so entered or issued,
without the necessity of inquire whether such court had jurisdiction, and, in
case the Custodian obeys or complied with any such order, judgment or decree, it
shall not be liable to anyone by reason of such compliance.
24.6 Payment of Fund Monies. Upon receipt of Authorized Instructions
----------------------
(as defined in the Custody Agreement), the Custodian shall deliver cash and/or
other assets of the Fund upon purchase of Loans to parties identified in such
Authorized Instructions, which delivery may be made without contemporaneous
receipt by the Custodian of cash or other assets, including Financing Documents,
in exchange therefor. Upon such delivery of cash or other assets in accordance
with such Authorized Instructions, the Custodian shall have no further
responsibility or obligation to the Fund as a custodian of the Fund with
respect to the cash or assets so delivered. In preparing reports of monies
received by or paid out of the Fund or of assets comprising the Fund, the
Custodian shall be entitled to rely upon information received from time to time
regarding the Loans or Loan Payments and shall not be responsible for the
accuracy or completeness of such information included in the Custodian's reports
until such assets are received by the Custodian.
II. Except as specifically superseded or modified hereby, the terms and
provisions of the Agreement shall continue to apply with full force and
effect. In the event of any conflict between the terms of the Agreement
prior to this Amendment and this Amendment, the terms of this Amendment
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.
STATE STREET BANK and TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
-------------------
Title: Senior Vice President
---------------------
THE PRUDENTIAL SERIES FUND, INC.
PRUDENTIAL'S GIBRALTAR FUND
By: /s/ Xxxx X. Xxxx
----------------
Name: Xxxx X. Xxxx
------------
Title: Vice President
--------------
