DUTIES OF MSS 1.01 Subject to the terms and conditions set forth in this Agreement, the Trust hereby employs and appoints MSS to act, and MSS agrees to act, as transfer agent for the Trust’s authorized and issued shares of beneficial interest of each class of each portfolio of the Trust (the “Shares”), and as dividend disbursing and redemption agent for the Trust.
1.02 MSS agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by agreement between the Trust and MSS, MSS shall:
(i) Receive for acceptance, orders for the purchase of Shares, and promptly deliver payment and appropriate documentation therefore to the Custodian of the Trust authorized by the Board of Trustees of the Trust (the “Custodian”);
(ii) Pursuant to purchase orders, issue the appropriate number of Shares and hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and redemption directions and deliver the appropriate documentation therefore to the Custodian;
(iv) At the appropriate time as and when it receives monies paid to it by the Custodian with respect to any redemption, pay over or cause to be paid over in the appropriate manner such monies as instructed by the redeeming Shareholders;
(v) Effect transfers of Shares by the registered owners thereof upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and distributions declared by the Trust;
(vii) Maintain records of account for and advise the Trust and its Shareholders as to the foregoing;
(viii) Maintain an Anti-Money Laundering Program in compliance with the USA Patriot Act of 2001 and regulation thereunder, and provide to the Trust a copy of MSS’s Anti-Money Laundering Program;
(ix) Perform such services as are necessary to implement and enforce the Trust’s Anti-Money Laundering Program;
(x) Provide necessary and reasonable access to properly authorized federal examiners so that they can obtain all necessary information and records relating to the AML Program and to inspect MSS’s implementation and operation of the AML Program; and
(xi) Record the issuance of shares of the Trust and maintain pursuant to SEC Rule 17Ad-10(e) a record of the total number of shares of the Trust which are authorized, based upon data provided to it by the Trust, and issued and outstanding. MSS shall also provide the Trust on a regular basis with the total number of shares which are authorized, issued and outstanding and shall have no obligation, when recording the issuance of shares, to monitor the issuance of such shares or to take cognizance of any laws relating to the issue or sale of such shares, which functions shall be the sole responsibility of the Trust.
(b) In addition, MSS shall perform all of the customary services of a transfer agent, dividend disbursing and redemption agent, including but not limited to: maintaining all Shareholder accounts, preparing Shareholder meeting lists, mailing proxies, receiving and tabulating proxies, mailing Shareholder reports and prospectuses to current Shareholders, withholding taxes for U.S. resident and non-resident alien accounts, preparing and filing U.S. Treasury Department Forms 1099 and other appropriate forms required with respect to dividends and distributions by federal authorities for all Shareholders, preparing and mailing confirmation forms and statements of account to Shareholders for all purchases and redemptions of Shares and other confirmable transactions in Shareholder accounts, preparing and mailing activity statements for Shareholders, and providing Shareholder account information and provide a system and reports which will enable the Trust to monitor the total number of Shares sold in each State. Procedures applicable to certain of these services may be established from time to time by agreement between the Trust and MSS.
DUTIES OF GFS GFS’s duties with respect to Fund Accounting, Fund Administration and Transfer Agency services are detailed in Appendices I, II and III to this Agreement.
(a) In order for GFS to perform the Services, the Trust (i) shall cause all service providers to the Funds of the Trust to furnish any and all information to GFS, and assist GFS as may be required and (ii) shall ensure that GFS has access to all records and documents maintained by the Trust or any service provider to the Trust or a Fund of the Trust.
(b) GFS shall, for all purposes herein, be deemed to be an independent contractor and shall, unless otherwise expressly provided or authorized, have no authority to act for or represent the Trust in any way or otherwise be deemed an agent of the Trust.
(c) Whenever, in the course of performing its duties under this Agreement, GFS determines, on the basis of information supplied to GFS by the Trust, that a violation of applicable law has occurred, or that, to its knowledge, a possible violation of applicable law may have occurred, or with the passage of time could occur, GFS shall promptly notify the Trust and its legal counsel of such violation.
Duties of Members Each Member must have a duty as set forth in Exhibit 1 to this agreement. The Members agree that the failure to satisfy a Member’s duties may result in the expulsion or removal of that Member.
(a) If a Member fails at their duties for a period of one hundred twenty (120) consecutive days, the Member will lose their membership interest. The start date of the failure must be documented.
(b) If a Member fails to do their duties for one hundred twenty (120) days out of any two hundred thirty nine (239) day period, the Company will consider such a failure and whether the Member will be expelled and lose their membership interest in accordance with this Article and Section 00-00-000 of the Act. The dates of failure in question must be documented.
(c) If a Member disputes the completion of another Member’s duties and attempts to take over that Member’s interest, they must do so in writing by certified delivery to the Member’s residential address as listed in Exhibit 1. If certified delivery is not available, hand delivery by a third party is acceptable.
(d) If a Member receives a complaint as described above, the Member must fulfill their established duties within fourteen (14) days.
(e) If there is a dispute as to what any Member’s duties are or if those duties are being fulfilled, and the Members have gone through the dispute process outlined in the above subsections (a) through (d) of this Section 4.06, the Members agree to enter into binding mediation or arbitration to decide if the Member’s duties are being performed in compliance with the agreed duties as outlined in Exhibit 1 of this Agreement. If the Members fail to reach an agreement through arbitration or mediation, the Members in dispute agree to file a complaint in the appropriate Court to procure a decision as to the fulfillment of Members’ duties. Upon a decision by the Court that a Member has failed to meet its duties, the Member will assign and forfeit their membership interest to the other remaining Member(s). The assignment of the non-compliant Member’s membership interest will result in a debt owed to the non-compliant Member by the Company. The debt owed to the expelled Member shall be the aggregate sum of any capital contributions submitted to the Company by the expelled Member.
(f) The value of the non-compliant Member’s interest being transferred to the remaining Member(s) must be determined before the transfer can be completed. During the course of the transfer, the non-compliant Member will maintain complete powers of membership in the Company.
(g) In the event of a dispute of Member’s duties, Members may negotiate an exchange of membership interests for a lesser amount of Member duties, provided that modification is memorialized and attached to Exhibit 1.
Duties of Manager (a) Citi Management shall act as the Manager for the Trust and as such shall furnish continuously an investment program and shall determine from time to time what securities shall be purchased, sold or exchanged and what portion of the assets of the Trust shall be held uninvested, subject always to the restrictions of the Trust's Amended and Restated Declaration of Trust, dated as of September 28, 2001, and By-Laws, as each may be amended and restated from time to time (respectively, the "Declaration" and the "By-Laws"), the provisions of the 1940 Act, and the then-current Registration Statement of the Trust. The Manager shall also make recommendations as to the manner in which voting rights, rights to consent to corporate action and any other rights pertaining to the Trust's portfolio securities shall be exercised. Should the Board of Trustees of the Trust at any time, however, make any definite determination as to investment policy applicable to the Trust and notify the Manager thereof in writing, the Manager shall be bound by such determination for the period, if any, specified in such notice or until similarly notified that such determination has been revoked. The Manager shall take, on behalf of the Trust, all actions which it deems necessary to implement the investment policies determined as provided above, and in particular to place all orders for the purchase or sale of securities for the Trust's account with the brokers or dealers selected by it, and to that end the Manager is authorized as the agent of the Trust to give instructions to the custodian or any subcustodian of the Trust as to deliveries of securities and payments of cash for the account of the Trust. In connection with the selection of such brokers or dealers and the placing of such orders, brokers or dealers may be selected who also provide brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) to the Trust and/or the other accounts over which the Manager or its affiliates exercise investment discretion. The Manager is authorized to pay a broker or dealer who provides such brokerage and research services a commission for executing a portfolio transaction for the Trust which is in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if the Manager determines in good faith that such amount of commission is reasonable in relation to the value of the brokerage and research services provided by such broker or dealer. This determination may be viewed in terms of either that particular transaction or the overall responsibilities which the Manager and its affiliates have with respect to accounts over which they exercise investment discretion. In making purchases or sales of securities or other property for the account of the Trust, the Manager may deal with itself or with the Trustees of the Trust or the Trust's underwriter or distributor or with its or their respective affiliates, or affiliates of affiliates, to the extent such actions are permitted by the 1940 Act. In providing the services and assuming the obligations set forth herein, the Manager may employ, at its own expense, or may request that the Trust employ at the Trust's expense, one or more subadvisers; provided that in each case the Manager shall supervise the activities of each subadviser. Any agreement between the Manager and a subadviser shall be subject to the renewal, termination and amendment provisions applicable to this Agreement. Any agreement between the Trust and a subadviser may be terminated by the Manager at any time on not more than 60 days' nor less than 30 days' written notice to the Trust and the subadviser. To the extent authorized by the Board of Trustees and subject to applicable provisions of the 1940 Act, the investment program to be provided hereunder may entail the investment of all or a portion of the assets of the Trust in one or more investment companies.
(b) Subject to the direction and control of the Board of Trustees of the Trust, Citi Management shall perform such administrative and management services as may from time to time be reasonably requested by the Trust, which shall include without limitation: (i) providing office space, equipment and clerical personnel necessary for maintaining the organization of the Trust and for performing the administrative and management functions herein set forth; (ii) supervising the overall administration of the Trust, including negotiation of contracts and fees with and the monitoring of performance and billings of the Trust's transfer agent, investor servicing agents, cusxxxxxx xnd other independent contractors or agents; and (iii) arranging for maintenance of books and records of the Trust. Notwithstanding the foregoing, Citi Management shall not be deemed to have assumed any duties with respect to, and shall not be responsible for, the distribution of shares of beneficial interest in the Trust, nor shall the Manager be deemed to have assumed or have any responsibility with respect to functions specifically assumed by any transfer agent, fund accounting agent, custodian or investor servicing agent of the Trust. In providing administrative and management services as set forth herein, the Manager may, at its own expense, employ one or more subadministrators; provided that the Manager shall remain fully responsible for the performance of all administrative and management duties set forth herein and shall supervise the activities of each subadministrator.
Duties of the Custodian with Respect to Property of the Fund Held By the Custodian in the United States
Duties of Master Servicer (a) Subject to the written direction of the Issuer, the Master Servicer, for the benefit of the Issuer (to the extent provided herein), shall provide for, arrange and maintain, or take such actions as are necessary to provide for, arrange and maintain, the servicing and administration of the Student Loans in accordance with prudent industry practices with one or more Servicers in accordance with this Agreement and shall perform the other actions required by the Master Servicer under this Agreement, with reasonable care. The Master Servicer shall have full authority to do anything it reasonably deems appropriate in connection with providing for, arranging and maintaining such servicing and administration relationships with Servicers, including without limitation (1) entering into one or more Servicing Agreements with the Servicers and/or with the Issuer and the Servicers, (2) providing or arranging for the replacement of any Servicing Agreement that expires or is terminated, (3) consulting with any Servicer regarding the negotiation, execution and performance of any Servicing Agreement or the servicing and administration of any related Student Loan, and (4) terminating any Servicing Agreement that may exist in accordance with the terms and conditions of such Servicing Agreement, provided, that upon termination of any such Servicing Agreement, the Master Servicer shall arrange for an appropriate Servicing Agreement with a Servicer pertaining to and maintaining continuous servicing of the Student Loans previously serviced under the terminated Servicing Agreement. The servicing arrangements provided for by the Master Servicer shall maintain servicing standards in accordance in all material respects with all applicable agreements and indentures of the Issuer and all applicable federal and state laws, including all applicable standards, guidelines and requirements of the Higher Education Act and any Guarantee Agreement with respect to the Student Loans, the failure to comply with which would adversely affect the eligibility of one or more of the Student Loans for Guarantee Payments or would have a material adverse effect on the Noteholders. The Master Servicer may perform its responsibilities hereunder through other agents or independent contractors, but shall not thereby be released from any of its responsibilities as hereinafter set forth. As part of its master servicing responsibilities hereunder, the Master Servicer, for the benefit of the Issuer, shall oversee, administer and enforce the obligations of each Servicer under the related Servicing Agreement. Such enforcement, including, without limitation, the legal prosecution of claims, termination of such Servicing Agreements and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as the Master Servicer, in its good faith business judgment, would require were it the owner of the related Student Loans.
Duties of Trustees (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived) the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to it which are specifically required to be furnished to it pursuant to any provision of this Agreement, shall examine them to determine whether they are in the form required by this Agreement; provided, however, that the Trustee shall not be responsible for the accuracy or content of any such certificate, statement, opinion, report, or other order or instrument furnished by the Company or Servicer to the Trustee pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the Trustee or the Delaware Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default and after the curing of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement,
(ii) Neither the Trustee nor the Delaware Trustee shall be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee or the Delaware Trustee, and, in the absence of bad faith on the part of the Trustee or the Delaware Trustee, such trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to such trustee and conforming to the requirements of this Agreement; and
(iii) Neither the Trustee nor the Delaware Trustee shall be personally liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Certificateholders holding Certificates which evidence Percentage Interests aggregating not less than 25% relating to the time, method and place of conducting any proceeding for any remedy available to such trustee, or relating to the exercise of any trust or power conferred upon such trustee under this Agreement.
(d) Within ten Business Days after the occurrence of any Event of Default known to the Trustee, the Trustee shall transmit by mail to the Rating Agencies notice of each Event of Default. Within 90 days after the occurrence of any Event of Default known to the Trustee, the Trustee shall transmit by mail to all Certificateholders (with a copy to the Rating Agencies) notice of each Event of Default, unless such Event of Default shall have been cured or waived; provided, however, the Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Trustee in good faith determines that the withholding of such notice is in the best interests of the Certificateholders; and provided, further, that in the case of any Event of Default of the character specified in Section 7.01(a)(i) or Section 7.01(a)(ii), no such notice to Certificateholders or to the Rating Agencies shall be given until at least 30 days after the occurrence thereof.
Other Duties of OFI OFI shall, at its own expense, provide and supervise the activities of all administrative and clerical personnel as shall be required to provide effective corporate administration for the Fund, including the compilation and maintenance of such records with respect to its operations as may reasonably be required; the preparation and filing of such reports with respect thereto as shall be required by the Commission; composition of periodic reports with respect to its operations for the shareholders of the Fund; composition of proxy materials for meetings of the Fund's shareholders and the composition of such registration statements as may be required by federal securities laws for continuous public sale of shares of the Fund. OFI shall, at its own cost and expense, also provide the Fund with adequate office space, facilities and equipment.
Duties of Company The Company shall at all times during the term of Options:
(a) Reserve and keep available for issue such number of shares of its authorized and unissued common stock as will be sufficient to satisfy the requirements of this Agreement;
(b) Pay all original issue taxes with respect to the issue of shares pursuant hereto and all other fees and expenses necessarily incurred by the Company in connection therewith;
(c) Use its best efforts to comply with all laws and regulations which, in the opinion of counsel for the Company, shall be applicable thereto.
Duties of Provider 5. D e-Identified Data. Section 5 (De-Identified Data) of Article IV (Duties of Provider) of the SDPA is hereby modified by deleting “indirectly” from the last sentence and by deleting the second to last sentence and replacing with the following sentence: “Except for Subprocessors, Provider agrees not to transfer de- identified Student Data to any party unless (a) that party agrees in writing not to attempt re-identification, and (b) that party agrees to comply with all applicable federal, state, and local laws, rules, and regulations pertaining to Student Data privacy and security, all as may be amended from time to time.”
