Exhibit (g)ii under Form N-1A
Exhibit (10) under Item 601/Reg. S-K
AMENDMENT TO CUSTODIAN CONTRACT
THIS AMENDMENT (this "AMENDMENT") to that certain Custodian Contract
dated as of December 1, 1993, as amended, modified and supplemented from time to
time (the "CUSTODIAN CONTRACT"), is entered into as of July 3, 2007, by and
among each of the Federated investment companies party to the Custodian
Contract, Federated Services Company, and State Street Bank and Trust company
(the "CUSTODIAN").
WHEREAS, the parties hereto wish to amend the terms of the Custodian
Contract with respect to the investment in or purchase of interests or
participations in structured trade finance loans by the Funds (as defined in the
Custodian Contract) listed on Annex A attached hereto;
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. AMENDMENT TO CUSTODIAN CONTRACT.
The Custodian Contract is hereby amended to add the following new Section
10A:
SECTION 10A. LOAN SERVICING PROVISIONS
SECTION 10A.1 GENERAL. 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, whether in the U.S. or outside the U.S.
(collective, "LOANS") entered into by a Trust or one or more of its Funds listed
on Annex A hereto (each such Trust or Fund is referred to in this Section 10A as
a "Fund").
SECTION 10A.2 SAFEKEEPING. Instruments, certificates, agreements and/or
other documents which the Custodian may receive with respect to Loans, if any
(collectively "FINANCING DOCUMENTS"), from time to time, shall be held by the
Custodian at its offices in Boston, Massachusetts.
SECTION 10A.3 DUTIES OF THE CUSTODIAN. The Custodian shall accept such
Financing Document, if any, with respect to 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 take or
requirements met with respect to the assignment or transfer of the related Loan
or applicable interest or participation in such Loan. 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 on such documents. 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 cause to be delivered to it
by the Fund (or its investment manager acting on its behalf), (ii) without
limiting the generality of the foregoing, delivery of any such Loan (including
without limitation, for purposes of Section 2.8 above) 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 (an "ASSIGNMENT AGREEMENT") or a
confirmation or certification from the Fund (or the investment manager) 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
investment manager 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 bee 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 this
Section 10A shall be deemed to include, without limitation, any such Instrument
and/or Assignment Agreement or Confirmation.
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 10A.4 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
investment manager acting 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 its investment manager
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 investment manager acting on its behalf) as provided herein.
The Custodian shall 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
investment manager acting on its behalf). 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 Proper Instructions from the Fund or the investment manager 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 Proper
Instructions of such parties.
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.
The Custodian shall promptly, upon the Fund's request, release to the Fund's
investment manager or to any party as the Fund or the Fund's investment manager
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 same of any Loan, unless and except to the extent it shall
have received written notice and instruction from the Fund (or the investment
manager acting on its behalf) with respect thereto, and except to the extent it
shall have received the sale proceeds thereof. Notwithstanding any other
provision of this Agreement, the Custodian shall have no responsibility to
ensure that any investment by the Fund with respect to Loans has been
authorized.
In no event shall the Custodian be under any obligation or liability to make any
advance of its own funds with respect to any Loan.
SECTION 10A.4 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 Custodians 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 investment manager to take, all actions necessary to
acquire good title to such Loan (or the participation in such Loan, 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 investment manager acting 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 the inaccuracy therein or incompleteness thereof. With
respect to each such Loan, the Custodian shall be entitled to rely on any
information or 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 bases of such information or notices
received, without any obligation on its part independently to verify,
investigate or recalculate such information.
SECTION 10A.5 ATTACHMENT. In case any portion of the Loans or the
Financing Documents shall be attached or levied upon pursuant to any order of
court, or the delivery or disbursement thereof shall be stayed or enjoined by
any order of court, or any other order, judgment or decrees 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.
2. NO OTHER MODIFICATIONS. Except the extent amended hereby, the terms of
the Custodian Contract shall remain unchanged and unaffected hereby and shall
remain in full force and effect to the extent of, and in accordance with, its
terms.
3. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
4. COUNTERPARTS. This Amendment may be signed in counterparts, which take
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties have caused this Amendment to be
executed in its name and on its behalf by its duly authorized representative as
of the date first set forth above.
FOR EACH OF THE FEDERATED INVESTMENT
COMPANIES PARTY TO THE CUSTODIAN
CONTRACT
By: /s/ J. Xxxxxxxxxxx Xxxxxxx
Name: J. Xxxxxxxxxxx Xxxxxxx
Title: President
FEDERATED SERVICES COMPANY
By: /s/ Xxxxx XxXxxxx III
Name: Xxxxx XxXxxxx III
Title: Senior Vice President
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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Annex A
LOAN SERVICING
FUNDS
FEDERATED TOTAL RETURN SERIES, INC.
Federated Total Return Bond Fund
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