Common use of Certain Representations, Warranties and Agreements Clause in Contracts

Certain Representations, Warranties and Agreements. (a) Assignor represents and warrants that it is the legal and beneficial owner of the Assigned Share, free and clear of any adverse claim. (b) Assignor hereby represents and warrants that Item 3 of the Schedule of Terms correctly sets forth the aggregate amount of the Loans and the Assigned Share being transferred to Assignee pursuant to this Agreement as described above. (c) Assignor represents and warrants that it has delivered to Agent the Notes delivered to Assignor by Borrower pursuant to the Credit Agreement and requests that Agent exchange such Notes for new Notes executed by Borrower payable to Assignor and Assignee in the amounts necessary to reflect the transaction contemplated by this Agreement. (d) Assignor makes no representation and warranty to Assignee with respect to, and shall not be responsible to Assignee for, the execution, effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of any of the Loan Documents or for any representations, warranties, recitals or statements made therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by or on behalf of Borrower in connection with the Loan Documents and the transactions contemplated thereby or for the financial condition or business affairs of Borrower, nor shall Assignor be required to ascertain or inquire as to (i) the performance or observance of any of the terms, conditions, provisions, covenants or agreements (1) INSERT FEE PROVISION ONLY IF APPLICABLE. Exh. 10.1( A)-2 141 contained in any of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii the existence or possible existence of any Event of Default or Default. (e) Assignee represents and warrants that it satisfies any eligibility requirements to be a Lender under the Credit Agreement; that it is not a foreign person (i.e., a person other than a United States person for United States Federal income tax purposes) or, if it is a foreign person, that it has delivered to Agent the documentation required by paragraph 3(h)(iv) below; that it has experience and expertise in the making or the purchasing of loans such as the Loans; that it has acquired the Assigned Share for its own account and without any present intention of selling all or any portion of such interest; and that it has received, reviewed and approved a copy of the Credit Agreement (including all Exhibits and Schedules thereto) and copies of all other Loan Documents which it has requested. (f) Assignee represents and warrants that it has received from Assignor such financial information regarding Borrower and the other Loan Parties as Assignee has requested, that it has made its own independent investigation of the financial condition and affairs of Borrower and the other Loan Parties in connection with the assignment evidenced by this Agreement, and that it has made and shall continue to make its own appraisal of the creditworthiness of Borrower and the other Loan Parties. Assignor shall have no duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Assignee or to provide Assignee with any other credit or other information with respect thereto, whether coming into its possession before the Settlement Date or at any time or times thereafter, and Assignor shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to Assignee. (g) Each party to this Agreement represents and warrants to the other party hereto that it has full power and authority to enter into this Agreement and to perform its obligations hereunder in accordance with the provisions hereof, that this Agreement has been duly authorized, executed and delivered by such party and that this Agreement constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity.

Certain Representations, Warranties and Agreements. (a) Assignor represents and warrants that it is the legal and beneficial owner of the Assigned Share, free and clear of any adverse claim. (b) Assignor hereby represents and warrants that Item 3 of the Schedule of Terms correctly sets forth (1) the aggregate amount of each of (i) the Loans Revolving Loan Commitment, (ii) Term Loan A and (iii) Term Loan B, and (2) the Assigned Share being transferred to Assignee pursuant to this Agreement as described above. Taking into account Assignee's existing Revolving Loan Commitment and Pro Rata Share of each of Term Loan A and Term Loan B, in each case, if any, prior to the effectiveness of this Agreement, the Total Share of Assignee in all of the Lenders' Revolving Loan Commitment and outstanding Loans under the Credit Agreement is as set forth in Item 3 of the Schedule of Terms. (c) Assignor represents and warrants that it has delivered to Agent the Notes delivered to Assignor by Borrower pursuant to the Credit Agreement and requests that Agent exchange such Notes for new Notes executed by Borrower payable to Assignor and Assignee in the amounts necessary to reflect the transaction contemplated by this Agreement. (d) Assignor makes no representation and warranty to Assignee with respect to, and shall not be responsible to Assignee for, the execution, effectiveness, genuinenessgenuiness, validity, enforceability, collectibility or sufficiency of any of the Loan Documents or for any representations, warranties, recitals or statements made therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by or on behalf of Borrower or any other Loan Party in connection with the Loan Documents and the transactions contemplated thereby or for the financial condition or business affairs of BorrowerBorrower or any other Loan Party, nor shall Assignor be required to ascertain or inquire as to (i) the performance or observance of any of the terms, conditions, provisions, covenants or agreements (1) INSERT FEE PROVISION ONLY IF APPLICABLE. Exh. 10.1( A)-2 141 agreements contained in any of EXHIBIT 10.1(B)-2 the Loan Documents, (ii) the use of the proceeds of the Loans, (iii iii) the use of the Lender Letters of Credit or Risk Participation Agreements or (iv) the existence or possible existence of any Event of Default or Default. (e) Assignee represents and warrants that it satisfies any eligibility requirements to be a Lender under the Credit Agreement; that it is not a foreign person (i.e., a person other than a United States person for United States Federal income tax purposes) or, if it is a foreign person, that it has delivered to Agent the documentation required by paragraph 3(h)(iv) below; that it has experience and expertise in the making or the purchasing of loans such as the Loans; that it has acquired the Assigned Share for its own account and without any present intention of selling all or any portion of such interest; and that it has received, reviewed and approved a copy of the Credit Agreement (including all Exhibits and Schedules thereto) and copies of all other Loan Documents which it has requested. (f) Assignee represents and warrants that it has received from Assignor such financial information regarding Borrower and the other Loan Parties as Assignee has requested, that it has made its own independent investigation of the financial condition and affairs of Borrower and the other Loan Parties in connection with the assignment evidenced by this Agreement, and that it has made and shall continue to make its own appraisal of the creditworthiness of Borrower and the other Loan Parties. Assignor shall have no duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Assignee or to provide Assignee with any other credit or other information with respect thereto, whether coming into its possession before the Settlement Date or at any time or times thereafter, and Assignor shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to Assignee. (g) Each party to this Agreement represents and warrants to the other party hereto that it has full power and authority to enter into this Agreement and to perform its obligations hereunder in accordance with the provisions hereof, that this Agreement has been duly authorized, executed and delivered by such party and that this Agreement constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity.

Certain Representations, Warranties and Agreements. (a) Assignor represents and warrants to Assignee that it Assignor is the legal and beneficial owner of the Assigned Share, free and clear of any adverse claim. (b) Assignor hereby represents and warrants that Item 3 of the Schedule of Terms correctly sets forth the aggregate amount of the Loans and the Assigned Share being transferred to Assignee pursuant to this Agreement as described above. (c) Assignor represents and warrants that it has delivered to Agent the Notes delivered to Assignor by Borrower pursuant to the Credit Agreement and requests that Agent exchange such Notes for new Notes executed by Borrower payable to Assignor and Assignee in the amounts necessary to reflect the transaction contemplated by this Agreement. (d) Assignor makes no representation and warranty to Assignee with respect to, and shall not be responsible to Assignee for, the execution, effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of any of the Loan Documents or for any representations, warranties, recitals or statements made therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by or on behalf of Borrower in connection with the Loan Documents and the transactions contemplated thereby or for the financial condition or business affairs of Borrower, nor shall Assignor be required to ascertain or inquire as to (i) the performance or observance of any of the terms, conditions, provisions, covenants or agreements (1) INSERT FEE PROVISION ONLY IF APPLICABLE. Exh. 10.1( A)-2 141 contained in any of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii the existence or possible existence of any Event of Default or Default. (e) Assignee represents and warrants that it satisfies any eligibility requirements to be a Lender under the Credit Agreement; that it is not a foreign person (i.e., a person other than a United States person for United States Federal income tax purposes) or, if it is a foreign person, that it has delivered to Agent the documentation required by paragraph 3(h)(iv) below; that it has experience and expertise in the making or the purchasing of loans such as the Loans; Assignor that it has acquired the Assigned Share for its own account in the ordinary course of its business and without any present intention a view to distribution of selling all the Notes within the meaning of the Securities Act or any portion of such interestthe Exchange Act or other federal securities laws; and that it has received, reviewed and approved a copy of the Credit Purchase Agreement (including all Exhibits and Schedules thereto) ); and copies of all other Loan Documents which it has requested. (f) Assignee represents and warrants that it has received from Assignor such financial information regarding Borrower Company and the other Loan Parties its Subsidiaries as is available to Assignor and as Assignee has requested, that it has made its own independent investigation of the financial condition and affairs of Borrower Company and the other Loan Parties its Subsidiaries in connection with the assignment evidenced by this Agreement, and that it has made and shall continue to make its own appraisal of the creditworthiness of Borrower Company and the other Loan Partiesits Subsidiaries. Assignor shall have no duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Assignee or to provide Assignee with any other credit or other information with respect thereto, whether coming into its possession before the Settlement Date making of the Initial Takedown or at any time or times thereafter, and Assignor shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to Assignee. (gc) Each party to this Agreement represents and warrants to the other party hereto that it has full power and authority to enter into this Agreement and to perform its obligations hereunder in accordance with the provisions hereof, that this Agreement has been duly authorized, executed and delivered by such party and that this Agreement constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity. (d) Assignor shall not be responsible to Assignee for the execution, effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of any of the Financing Documents or for any representations, warranties, recitals or statements made therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by Assignor to Assignee or by or on behalf of Company or any of its Subsidiaries to Assignor or Assignee in connection with the Financing Documents and the transactions contemplated thereby or for the financial condition or business affairs of Company or any other Person liable for the payment of any obligations, nor shall Assignor be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Financing Documents or as to the use of the proceeds of the Notes or as to the existence or possible existence of any Event of Default or Default.

Certain Representations, Warranties and Agreements. of the Company on behalf of its Acquired Funds. The Company, on behalf of itself and, where appropriate, its Acquired Funds, represents and warrants to, and agrees with, Reserves on behalf of the corresponding Acquiring Funds as follows, with such representations, warranties and agreements made on behalf of the Acquired Funds on a several (and not joint, or joint and several) basis: (a) Assignor represents The Company is a business trust, duly created, validly existing and warrants that it is in good standing under the legal and beneficial owner laws of the Assigned Sharestate of Maryland. The Company is registered with the SEC as an open-end management investment company under the 1940 Act, free and clear of any adverse claimsuch registration is in full force and effect. (b) Assignor hereby represents The Company has the power to own all of its properties and warrants that Item 3 of assets and to consummate the Schedule of Terms correctly sets forth transactions contemplated herein, and has all necessary federal, state and local authorizations to carry on its business as now being conducted and to consummate the aggregate amount of the Loans and the Assigned Share being transferred to Assignee pursuant to this Agreement as described above. (c) Assignor represents and warrants that it has delivered to Agent the Notes delivered to Assignor by Borrower pursuant to the Credit Agreement and requests that Agent exchange such Notes for new Notes executed by Borrower payable to Assignor and Assignee in the amounts necessary to reflect the transaction transactions contemplated by this Agreement. (dc) Assignor makes no representation and warranty to Assignee with respect to, and shall not be responsible to Assignee for, the execution, effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of any of the Loan Documents or for any representations, warranties, recitals or statements made therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by or on behalf of Borrower in connection with the Loan Documents and the transactions contemplated thereby or for the financial condition or business affairs of Borrower, nor shall Assignor be required to ascertain or inquire as to (i) the performance or observance of any of the terms, conditions, provisions, covenants or agreements (1) INSERT FEE PROVISION ONLY IF APPLICABLE. Exh. 10.1( A)-2 141 contained in any of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii the existence or possible existence of any Event of Default or Default. (e) Assignee represents and warrants that it satisfies any eligibility requirements to be a Lender under the Credit Agreement; that it is not a foreign person (i.e., a person other than a United States person for United States Federal income tax purposes) or, if it is a foreign person, that it has delivered to Agent the documentation required by paragraph 3(h)(iv) below; that it has experience and expertise in the making or the purchasing of loans such as the Loans; that it has acquired the Assigned Share for its own account and without any present intention of selling all or any portion of such interest; and that it has received, reviewed and approved a copy of the Credit Agreement (including all Exhibits and Schedules thereto) and copies of all other Loan Documents which it has requested. (f) Assignee represents and warrants that it has received from Assignor such financial information regarding Borrower and the other Loan Parties as Assignee has requested, that it has made its own independent investigation of the financial condition and affairs of Borrower and the other Loan Parties in connection with the assignment evidenced by this Agreement, and that it has made and shall continue to make its own appraisal of the creditworthiness of Borrower and the other Loan Parties. Assignor shall have no duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Assignee or to provide Assignee with any other credit or other information with respect thereto, whether coming into its possession before the Settlement Date or at any time or times thereafter, and Assignor shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to Assignee. (g) Each party to this Agreement represents and warrants to the other party hereto that it has full power and authority to enter into this Agreement and to perform its obligations hereunder in accordance with the provisions hereof, that this This Agreement has been duly authorizedauthorized by the Board of Trustees of the Company on behalf of its Acquiring Funds, and has been executed and delivered by such party duly authorized officers of the Company, and that this Agreement constitutes represents a legal, valid and binding obligation of such partycontract, enforceable against such party in accordance with its terms, except subject as enforceability may be limited by applicable to enforcement to bankruptcy, insolvency, reorganization, moratorium or arrangement, moratorium, and other similar laws of general applicability relating to or affecting creditors' rights generally and to general equity principles. The execution and delivery of this Agreement does not, and, subject to the approval of shareholders referred to in Section 6, the consummation of the transactions contemplated by general principles this Agreement will not, violate the Articles of equityIncorporation or the By-Laws of the Company, or any material agreement or arrangement to which the Company is a party or by which it is bound. (d) The Company's Acquired Funds have elected to qualify and have qualified as regulated investment companies under Part I of Subchapter M of Subtitle A, Chapter 1, of the Code, as of and since their first taxable year; have been regulated investment companies under such Part of the Code at all times since the end of their first taxable year when they so qualified; and qualify and shall continue to qualify as regulated investment companies for their taxable year ending upon its liquidation. (e) The Company has valued, and will continue to value, the portfolio securities and other assets of its Acquired Funds in accordance with applicable legal requirements. (f) The proxy statement and form of proxy (the "Proxy Statement") from its effective date with the SEC, through the time of the shareholders meeting referred to in Section 6 and the Effective Time of the Reorganization, insofar as they relate to the Company, (i) shall comply in all material respects with the provisions of the Securities Exchange Act of 1934 as amended (the "1934 Act") and the 1940 Act, the rules and regulations thereunder, and state securities laws, and (ii) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein not misleading. (g) All of the issued and outstanding shares of the Company's Acquired Funds have been validly issued and are fully paid and non-assessable, and were offered for sale and sold in conformity with the registration requirements of all applicable federal and state securities laws. (h) The Company shall operate the business of its Acquired Funds in the ordinary course between the date hereof and the Effective Time of the Reorganization, it being agreed that such ordinary course of business will include the declaration and payment of customary dividends and distributions and any other dividends and distributions deemed advisable in anticipation of the Reorganization. Notwithstanding anything herein to the contrary, the Company may take all appropriate action necessary in order for the Company to receive the opinion provided for in Sections 9(e) and 10(g). (i) At the Effective Time of the Reorganization, the Company's Acquired Funds will have good and marketable title to the Fund Assets and full right, power and authority to assign, deliver and otherwise transfer such assets. (j) At the Effective Time of the Reorganization, all federal and other tax returns and reports of the Acquired Funds required by law to have been filed by such time shall have been filed, and all federal and other taxes shall have been paid so far as due, or provision shall have been made for the payment thereof and, to the best knowledge of management of the Company, no such return or report shall be currently under audit and no assessment shall have been asserted with respect to such returns or reports.

Certain Representations, Warranties and Agreements. of the Company on behalf of the Acquired Funds. The Company, on behalf of itself and, where appropriate, each Acquired Fund, represents and warrants to, and agrees with, the Trust, on behalf of the Acquiring Fund as follows, with such representations, warranties and agreements made on behalf of the Acquired Funds on a several (and not joint, or joint and several) basis: (a) Assignor represents The Company is a corporation, duly incorporated, validly existing and warrants that it is in good standing under the legal and beneficial owner laws of the Assigned ShareState of Maryland. The Company is registered with the SEC as an open-end management investment company under the 1940 Act, free and clear of any adverse claimsuch registration is in full force and effect. (b) Assignor hereby represents The Company has the power to own all of its properties and warrants that Item 3 of assets and to consummate the Schedule of Terms correctly sets forth transactions contemplated herein, and has all necessary federal, state and local authorizations to carry on its business as now being conducted and to consummate the aggregate amount of the Loans and the Assigned Share being transferred to Assignee pursuant to this Agreement as described above. (c) Assignor represents and warrants that it has delivered to Agent the Notes delivered to Assignor by Borrower pursuant to the Credit Agreement and requests that Agent exchange such Notes for new Notes executed by Borrower payable to Assignor and Assignee in the amounts necessary to reflect the transaction transactions contemplated by this Agreement. (dc) Assignor makes no representation and warranty to Assignee with respect to, and shall not be responsible to Assignee for, the execution, effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of any of the Loan Documents or for any representations, warranties, recitals or statements made therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by or on behalf of Borrower in connection with the Loan Documents and the transactions contemplated thereby or for the financial condition or business affairs of Borrower, nor shall Assignor be required to ascertain or inquire as to (i) the performance or observance of any of the terms, conditions, provisions, covenants or agreements (1) INSERT FEE PROVISION ONLY IF APPLICABLE. Exh. 10.1( A)-2 141 contained in any of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii the existence or possible existence of any Event of Default or Default. (e) Assignee represents and warrants that it satisfies any eligibility requirements to be a Lender under the Credit Agreement; that it is not a foreign person (i.e., a person other than a United States person for United States Federal income tax purposes) or, if it is a foreign person, that it has delivered to Agent the documentation required by paragraph 3(h)(iv) below; that it has experience and expertise in the making or the purchasing of loans such as the Loans; that it has acquired the Assigned Share for its own account and without any present intention of selling all or any portion of such interest; and that it has received, reviewed and approved a copy of the Credit Agreement (including all Exhibits and Schedules thereto) and copies of all other Loan Documents which it has requested. (f) Assignee represents and warrants that it has received from Assignor such financial information regarding Borrower and the other Loan Parties as Assignee has requested, that it has made its own independent investigation of the financial condition and affairs of Borrower and the other Loan Parties in connection with the assignment evidenced by this Agreement, and that it has made and shall continue to make its own appraisal of the creditworthiness of Borrower and the other Loan Parties. Assignor shall have no duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Assignee or to provide Assignee with any other credit or other information with respect thereto, whether coming into its possession before the Settlement Date or at any time or times thereafter, and Assignor shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to Assignee. (g) Each party to this Agreement represents and warrants to the other party hereto that it has full power and authority to enter into this Agreement and to perform its obligations hereunder in accordance with the provisions hereof, that this This Agreement has been duly authorizedauthorized by the Board of Directors of the Company on behalf of each Acquired Fund, and has been executed and delivered by such party duly authorized officers of the Company, and that this Agreement constitutes represents a legal, valid and binding obligation of such partycontract, enforceable against such party in accordance with its terms, except subject as enforceability may be limited by applicable to enforcement to bankruptcy, insolvency, reorganization, moratorium or arrangement, moratorium, and other similar laws of general applicability relating to or affecting creditors' rights generally and to general equity principles. The execution and delivery of this Agreement does not, and, subject to the approval of shareholders referred to in Section 7, the consummation of the transactions contemplated by general principles this Agreement will not, violate the Articles of equityIncorporation or the By-Laws of the Company, or any material agreement or arrangement to which the Company is a party or by which it is bound. (d) Each Acquired Fund has elected to qualify and has qualified as a regulated investment company under Part I of Subchapter M of Subtitle A, Chapter 1, of the Code, as of and since its first taxable year; each has been a regulated investment company under such Part of the Code at all times since the end of its first taxable year when it so qualified; and each qualifies and shall continue to qualify as a regulated investment company for its taxable year ending upon its liquidation. (e) The Company has valued, and will continue to value, the portfolio securities and other assets of the Acquired Funds in accordance with applicable legal requirements. (f) The combined proxy statement/prospectus and form of proxy included within the Trust's registration statement on Form N-14 (the "N-14 Registration Statement"), from its effective date with the SEC through the time of the shareholders meeting referred to in Section 6 and the Effective Time of the Reorganization, insofar as they relate to the Company, or the Acquired Funds (i) shall comply in all material respects with the provisions of the Securities Act of 1933, as amended (the "1933 Act"), the Securities Exchange Act of 1934, as amended (the "1934 Act") and the 1940 Act, the rules and regulations thereunder, and applicable state securities laws, and (ii) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein not misleading. (g) All of the issued and outstanding shares of the Company's Acquired Funds have been validly issued and are fully paid and non-assessable, and were offered for sale and sold in conformity with the registration requirements of all applicable federal and state securities laws. (h) The Company shall operate the business of the Acquired Funds in the ordinary course between the date hereof and the Effective Time of the Reorganization, except that the Company shall complete all measures in respect of the Acquired Funds prior to the Effective Time of the Reorganization to ensure that each Reorganization qualifies as a "reorganization" within the meaning of Section 368(a) of the Code, regardless of whether such measures are in the ordinary course. It is understood that such ordinary course of business will include the declaration and payment of customary dividends and distributions and any other dividends and distributions deemed advisable in anticipation of the Reorganizations. Notwithstanding anything herein to the contrary, the Company shall take all appropriate action necessary in order for the Company to receive the opinion provided for in Sections 9(f), (g) and (h). (i) At the Effective Time of the Reorganization, the Company's Acquired Funds will have good and marketable title to the Fund Assets and full right, power and authority to assign, deliver and otherwise transfer such assets. (j) At the Effective Time of the Reorganization, all federal and other tax returns and reports of the Acquired Funds required by law to have been filed by such time shall have been filed, and all federal and other taxes shall have been paid so far as due, or provision shall have been made for the payment thereof and, to the best knowledge of management of the Company, no such return or report shall be currently under audit and no assessment shall have been asserted with respect to such returns or reports.