Common use of Old Trust Clause in Contracts

Old Trust. on behalf of each Old Fund and First Step Series, represents and warrants to New Company, on behalf of each New Fund, as follows: (a) Old Trust (1) is a statutory trust that is duly organized, validly existing, and in good standing under the laws of the State of Delaware, and its Certificate of Trust has been duly filed in the office of the Secretary of State thereof, (2) has the power to own all its properties and assets and to carry on its business as described in documents filed with the Securities and Exchange Commission (“Commission”), and (3) is duly registered as an open-end management investment company under the 1940 Act, which registration will be in full force and effect as of the Effective Time, and no proceeding has been instituted to suspend that registration; (b) Each Old Fund is a duly established and designated series of Old Trust, and as of the Redesignation Time, each First Step Series will be a duly established and designated series of Old Trust; (c) The execution, delivery, and performance of this Agreement have been duly authorized on or before the date hereof by all necessary action on the part of Old Trust’s Board, which has made the determinations required by Rule 17a-8(a) under the 1940 Act; and this Agreement constitutes a valid and legally binding obligation of Old Trust with respect to each Old Fund and First Step Series, enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, moratorium, and other laws affecting the rights and remedies of creditors generally and general principles of equity; (d) As of the Effective Time, each First Step Series will have good and marketable title to the Assets and full right, power, and authority to sell, assign, transfer, and deliver the Assets hereunder free of any liens or other encumbrances (except securities that are subject to “securities loans” as referred to in section 851(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”), or that are restricted to resale by their terms); and on delivery and payment for the Assets, New Company, on behalf of each New Fund, will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including restrictions that might arise under the Securities Act of 1933, as amended (“1933 Act”); (e) No Old Fund or First Step Series is currently engaged in, and Old Trust’s execution, delivery, and performance of this Agreement and consummation of the Reorganization on behalf of each Old Fund and First Step Series will not result in, (1) a material violation of any provision of its Trust Instrument or By-Laws, Delaware law, or any agreement, indenture, instrument, contract, lease, or other undertaking (each, an “Undertaking”) to which any Old Fund or First Step Series is a party or by which it is bound or (2) the acceleration of any obligation, or the imposition of any penalty, under any Undertaking, judgment, or decree to which any Old Fund or First Step Series is a party or by which it is bound; (f) No litigation, administrative proceeding, action, or investigation of or before any court, governmental body, or arbitrator is presently pending or, to the knowledge of any Old Fund or First Step Series, threatened against any Old Fund or First Step Series regarding any of its respective properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business; and no Old Fund or First Step Series knows of any facts that might form the basis for the institution of any such litigation, proceeding, action, or investigation and is not a party to or subject to the provisions of any order, decree, judgment, or award of any court, governmental body, or arbitrator that materially and adversely affects its business or its ability to consummate the transactions herein contemplated; (g) Each Old Fund’s Investments, Statement of Assets and Liabilities, Statement of Operations, and Statement of Changes in Net Assets (collectively, “Statements”) as of and for the fiscal year (in the case of the last Statement, for the two fiscal years) ended September 30, 2008, in the case of Xxxxxxx & Xxxx Advisors Municipal High Income Fund, and June 30, 2008, in the case of Xxxxxxx & Xxxx Advisors Tax-Managed Equity Fund, have been audited by Deloitte & Touche LLP, each Old Fund’s independent registered public accounting firm; those Statements present fairly, in all material respects, each Old Fund’s financial condition as of the date thereof in accordance with accounting principles generally accepted in the United States and consistently applied (“GAAP”); to each Old Fund’s management’s best knowledge and belief, there are and will be no known contingent liabilities, debts, obligations, or duties of either Old Fund required to be reflected on a balance sheet (including the notes thereto) in accordance with GAAP as of that date that are not disclosed therein; and since September 30, 2008, in the case of Xxxxxxx & Xxxx Advisors Municipal High Income Fund, and since June 30, 2008, in the case of Xxxxxxx & Xxxx Advisors Tax-Managed Equity Fund, there has not been any material adverse change in either Old Fund’s financial condition, assets, liabilities, or business, other than changes occurring in the ordinary course of business, or any incurrence by either Old Fund of indebtedness maturing more than one year from the date that indebtedness was incurred; for these purposes, a decline in net asset value per Old Fund share due to declines in market values of securities the applicable Old Fund holds, the discharge of each Old Fund’s liabilities in the normal course, or the redemption of Old Fund shares by the applicable Old Fund’s shareholders shall not constitute a material adverse change; (h) All issued and outstanding Class Y Old Fund Shares are, and as of the Effective Time will be, duly and validly issued and outstanding, fully paid, and non-assessable by the applicable First Step Series and have been offered and sold in every state and the District of Columbia in compliance in all material respects with applicable registration requirements of the 1933 Act and state securities laws; and no Old Fund or First Step Series has outstanding any options, warrants, or other rights to subscribe for or purchase any Class Y Old Fund Shares, nor are there outstanding any securities convertible into any Class Y Old Fund Shares; (i) As of the Effective Time, all federal and other tax returns, dividend reporting forms, and other tax-related reports of each Old Fund required by law to have then been filed by that time (giving effect to properly and timely filed extensions of time to file) shall have been filed and are or will be correct in all material respects; all federal and other taxes shown as due or required to be shown as due on those returns and reports shall have been paid or provision shall have been made for the payment thereof, except for amounts that alone or in the aggregate would not reasonably be expected to have a material adverse effect; to the best of each Old Fund’s knowledge, no such return is currently under audit and no assessment has been asserted with respect to those returns; and both Old Funds are in compliance in all material respects with applicable Regulations pertaining to the reporting of, and withholding in respect of, distributions on and repurchases, if any, of their shares and are not liable for any material penalties that could be imposed thereunder; (j) For each taxable year of its operation, each Old Fund has met (or for its current taxable year will meet) the requirements of Part I of Subchapter M of Chapter 1 of the Code (“Subchapter M”) for qualification as a regulated investment company (“RIC”) and has been (or for that year will be) eligible to and has computed (or for that year will compute) its federal income tax under section 852 of the Code; from the time Old Trust’s Board approved the transactions contemplated by this Agreement through the Effective Time, each Old Fund has invested and will invest its assets in a manner that ensures its compliance with the foregoing; neither Old Fund has any earnings and profits accumulated in any taxable year in which the provisions of Subchapter M did not apply to it; and neither Old Fund is liable for any material tax pursuant to sections 852 or 4982 of the Code that is due and remains unpaid; (k) Each Old Fund incurred the Liabilities, which are associated with such Old Fund’s Assets, in the ordinary course of its business; and the fair market value of the Assets to be transferred to each New Fund on a going concern basis will equal or exceed the Liabilities to be assumed by such New Fund and those to which such Assets are subject. (l) As of the time of its mailing, at the time of the Shareholders Meeting (as defined in paragraph 4.1), and as of the Effective Time, the Proxy Statement (as defined in paragraph 3.3(a)) will comply in all material respects with applicable provisions of the 1933 Act, the Securities Exchange Act of 1934, as amended, and the 1940 Act and the rules and regulations thereunder (collectively, “Federal Securities Laws”) and will 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 therein, in light of the circumstances under which those statements were made, not misleading; provided that the foregoing shall not apply to statements in, or omissions from, the Proxy Statement made in reliance on and in conformity with information furnished by New Company for use therein; and (m) The New Fund Shares are not being acquired for the purpose of any distribution thereof, other than in accordance with the terms hereof.

Appears in 2 contracts

Samples: Agreement of Redesignation and Reorganization (Waddell & Reed Advisors Funds), Agreement of Redesignation and Reorganization (Waddell & Reed Advisors Funds)

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Old Trust. on behalf of each the Old Fund and First Step SeriesFund’s behalf, represents and warrants to New CompanyTrust, on behalf of each the New Fund’s behalf, as follows: (a) Old Trust (1) is a statutory business trust that is duly organized, validly existing, and in good standing under the laws of the State of DelawareOhio (“Ohio Law”), and its Certificate Agreement and Declaration of Trust has been duly filed in Trust, dated January 2, 2004 (the office “Declaration”), is on file with the Office of the Secretary of State thereofof Ohio, (2) is duly registered under the 1940 Act as an open-end management investment company, and (3) has the power to own all its properties and assets and to carry on its business as described in documents filed with the Securities and Exchange Commission (“Commission”), and (3) is duly registered as an open-end management investment company under the 1940 Act, which its current registration will be in full force and effect as of the Effective Time, and no proceeding has been instituted to suspend that registrationstatement on Form N-1A; (b) Each The Old Fund is a duly established and designated series of Old Trust, and as of the Redesignation Time, each First Step Series will be a duly established and designated series of Old Trust; (c) The execution, delivery, and performance of this Agreement have been duly authorized on or before at the date hereof by all necessary action on the part of Old Trust’s Board, which has made the determinations required by Rule 17a-8(a) under the 1940 Act; and this Agreement constitutes a valid and legally binding obligation of Old Trust Trust, with respect to each the Old Fund and First Step SeriesFund, enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, moratorium, and other laws affecting the rights and remedies of creditors generally and general principles of equity; (d) As of At the Effective Time, each First Step Series Old Trust will have good and marketable title to the Assets for the Old Fund’s benefit and full right, power, and authority to sell, assign, transfer, and deliver the Assets hereunder free of any liens or other encumbrances (except securities that are subject to “securities loans,” as referred to in section 851(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”), or that are restricted to resale by their terms); and on delivery and payment for the Assets, New CompanyTrust, on behalf of each the New Fund’s behalf, will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including restrictions that might arise under the Securities Act of 1933, as amended (“1933 Act”); (e) No Old Fund or First Step Series Trust, with respect to the Old Fund, is not currently engaged in, and Old Trust’s its execution, delivery, and performance of this Agreement and consummation of the Reorganization on behalf of each Old Fund and First Step Series will not result in, (1) a conflict with or material violation of any provision of its Trust Instrument Ohio Law, the Declaration, or Old Trust’s By-Laws, Delaware law, or any agreement, indenture, instrument, contract, lease, lease or other undertaking (each, an “Undertaking”) to which any Old Fund or First Step Series Trust, on the Old Fund’s behalf, is a party or by which it is bound or (2) the acceleration of any obligation, or the imposition of any penalty, under any Undertaking, judgment, or decree to which any Old Fund or First Step Series Trust, on the Old Fund’s behalf, is a party or by which it is bound; (f) At or before the Effective Time, either (1) all material contracts and other commitments of the Old Fund (other than this Agreement and certain investment contracts including options, futures, forward contracts and swap agreements) will terminate, or (2) provision for discharge and/or the New Fund’s assumption of any liabilities of the Old Fund thereunder will be made, without either affected Fund incurring any penalty with respect thereto and without diminishing or releasing any rights Old Trust may have had with respect to actions taken or omitted or to be taken by any other party thereto before the Closing; (g) No litigation, administrative proceeding, action, action or investigation of or before any court, governmental body, body or arbitrator is presently pending or, to Old Trust’s knowledge, threatened against Old Trust, with respect to the knowledge of any Old Fund or First Step Series, threatened against any Old Fund or First Step Series regarding any of its respective properties or assets attributable or allocable to Old Fund, that, if adversely determined, would materially and adversely affect its the Old Fund’s financial condition or the conduct of its business; and no Old Fund or First Step Series Trust, on the Old Fund’s behalf, knows of any no facts that might form the basis for the institution of any such litigation, proceeding, action, action or investigation and is not a party to or subject to the provisions of any order, decree, judgment, or award of any court, governmental body, body or arbitrator that materially and adversely affects its the Old Fund’s business or its Old Trust’s ability to consummate the transactions herein contemplatedcontemplated hereby; (gh) Each The Old Fund’s Investments, Statement of Assets and Liabilities, Schedule of Investments, Statement of Operations, Operations and Statement of Changes in Net Assets (collectivelyeach, a StatementsStatement”) as of at and for the fiscal year (in the case of the last Statement, for the two fiscal years) ended September April 30, 2008, in the case of Xxxxxxx & Xxxx Advisors Municipal High Income Fund, and June 30, 2008, in the case of Xxxxxxx & Xxxx Advisors Tax-Managed Equity Fund2011, have been audited by Deloitte & Touche LLPXxxxx Fund Audit Services, each Old Fund’s Ltd., an independent registered public accounting firm, and are in accordance with generally accepted accounting principles consistently applied in the United States (“GAAP”); and those Statements (copies of which Old Trust has furnished to New Trust) present fairly, in all material respects, each the Old Fund’s financial condition as of the at that date thereof in accordance with accounting principles generally accepted GAAP and the results of its operations and changes in its net assets for the United States period then ended, and consistently applied (“GAAP”); to each Old Fund’s management’s best knowledge and belief, there are and will be no known contingent liabilities, debts, obligations, or duties liabilities of either Old Fund required to be reflected on a balance sheet (including the notes thereto) in accordance with GAAP as of at that date that are not disclosed therein; and since September ; (i) Since April 30, 2008, in the case of Xxxxxxx & Xxxx Advisors Municipal High Income Fund, and since June 30, 2008, in the case of Xxxxxxx & Xxxx Advisors Tax-Managed Equity Fund2011, there has not been any material adverse change in either the Old Fund’s financial condition, assets, liabilities, liabilities or business, other than changes occurring in the ordinary course of business, or any incurrence by either the Old Fund of indebtedness maturing more than one year from the date that indebtedness was incurred; for these purposespurposes of this subparagraph, a decline in net asset value NAV per Old Fund share Share due to declines in market values of securities the applicable Old Fund holds, the discharge of each Old Fund’s Fund liabilities in the normal course, or the redemption of the Old Fund shares Shares by the applicable Old Fund’s its shareholders shall not constitute a material adverse change; (hj) All federal and other tax returns, dividend reporting forms, and other tax-related reports (collectively, “Returns”) of the Old Fund required by law to have been filed by the Effective Time (including any properly and timely filed extensions of time to file) shall have been filed and are or will be correct in all material respects, and all federal and other taxes shown as due or required to be shown as due on those Returns shall have been paid or provision shall have been made for the payment thereof; to the best of Old Trust’s knowledge, no such Return is currently under audit and no assessment has been asserted with respect to those Returns; and the Old Fund is in compliance in all material respects with all applicable Regulations pertaining to the reporting of dividends and other distributions on and redemptions of its shares and to withholding in respect thereof and is not liable for any material penalties that could be imposed thereunder; (k) The Old Fund is not classified as a partnership, and instead is classified as an association that is taxable as a corporation, for federal tax purposes and either has elected the latter classification by filing Form 8832 with the Internal Revenue Service (“Service”) or is a “publicly traded partnership” (as defined in section 7704(b)) that is treated as a corporation; the Old Fund is a “fund” (as defined in section 851(g)(2), eligible for treatment under section 851(g)(1)); for each taxable year of its operation (including its current taxable year), the Old Fund has met (and for that year will meet) the requirements of Part I of Subchapter M of Chapter 1 of Subtitle A of the Code (“Subchapter M”) for qualification as a regulated investment company (“RIC”) and has been (and for that year will be) eligible to and has computed (and for that year will compute) its federal income tax under section 852; Old Fund has not at any time since its inception been liable for, or is now liable for, any material income or excise tax pursuant to sections 852 or 4982; and the Old Fund has no earnings or profits accumulated in any taxable year in which the provisions of Subchapter M did not apply to it; (l) All issued and outstanding Class Y Old Fund Shares are, and as of at the Effective Time will be, duly and validly issued and outstanding, fully paid, and non-assessable by the applicable First Step Series Old Trust and have been offered and sold in every state and the District of Columbia in compliance in all material respects with applicable registration requirements of the 1933 Act and state securities laws; all issued and no outstanding Old Fund or First Step Series Shares will, at the Effective Time, be held by the persons and in the amounts set forth on the Old Fund’s shareholder records, as provided in paragraph 2.3; and the Old Fund has no outstanding any options, warrants, warrants or other rights to subscribe for or purchase any Class Y the Old Fund Shares, nor are there outstanding any securities convertible into any Class Y the Old Fund Shares; (im) As of the Effective Time, all federal and other tax returns, dividend reporting forms, and other tax-related reports of each Old Fund required by law to have then been filed by that time (giving effect to properly and timely filed extensions of time to file) shall have been filed and are or will be correct in all material respects; all federal and other taxes shown as due or required to be shown as due on those returns and reports shall have been paid or provision shall have been made for the payment thereof, except for amounts that alone or in the aggregate would not reasonably be expected to have a material adverse effect; to the best of each Old Fund’s knowledge, no such return is currently under audit and no assessment has been asserted with respect to those returns; and both Old Funds are in compliance in all material respects with applicable Regulations pertaining to the reporting of, and withholding in respect of, distributions on and repurchases, if any, of their shares and are not liable for any material penalties that could be imposed thereunder; (j) For each taxable year of its operation, each Old Fund has met (or for its current taxable year will meet) the requirements of Part I of Subchapter M of Chapter 1 of the Code (“Subchapter M”) for qualification as a regulated investment company (“RIC”) and has been (or for that year will be) eligible to and has computed (or for that year will compute) its federal income tax under section 852 of the Code; from the time Old Trust’s Board approved the transactions contemplated by this Agreement through the Effective Time, each Old Fund has invested and will invest its assets in a manner that ensures its compliance with the foregoing; neither Old Fund has any earnings and profits accumulated in any taxable year in which the provisions of Subchapter M did not apply to it; and neither Old Fund is liable for any material tax pursuant to sections 852 or 4982 of the Code that is due and remains unpaid; (k) Each The Old Fund incurred the Liabilities, which are associated with such Old Fund’s the Assets, in the ordinary course of its business; (n) The Old Fund is not under the jurisdiction of a court in a “title 11 or similar case” (as defined in section 368(a)(3)(A)); (o) Not more than 25% of the value of the Old Fund’s total assets (excluding cash, cash items, and Government securities) is invested in the stock and securities of any one issuer, and not more than 50% of the value of those assets is invested in the stock and securities of five or fewer issuers; (p) The Old Fund’s current prospectus and statement of additional information (1) conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder and (2) at the date on which they were issued did not contain, and as supplemented by any supplement thereto dated prior to or at the Effective Time do 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 therein, in light of the circumstances under which they were made, not misleading; (q) The information to be furnished by Old Trust for use in no-action letters, applications for orders, registration statements, proxy materials and other documents filed or to be filed with any federal, state or local regulatory authority (including the Financial Industry Regulatory Authority, Inc. (“FINRA”)) that may be necessary in connection with the transactions contemplated hereby shall be accurate and complete in all material respects and shall comply in all material respects with federal securities laws and other laws and regulations; and the fair market value of Registration Statement and the Assets to be transferred to each Proxy (as defined in paragraph 3.3(a)(1) and (2), respectively) (other than written information provided by New Fund Trust for inclusion therein) will, on a going concern basis will equal or exceed their respective effective dates, at the Liabilities to be assumed by such New Fund Effective Time, and those to which such Assets are subject. (l) As of the time of its mailing, at the time of the Shareholders Meeting (as defined in paragraph 4.1), and as of the Effective Time, the Proxy Statement (as defined in paragraph 3.3(a)) will comply in all material respects with applicable provisions of the 1933 Act, the Securities Exchange Act of 1934, as amended, and the 1940 Act and the rules and regulations thereunder (collectively, “Federal Securities Laws”) and will 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 therein, in light of the circumstances under which those statements they were made, not misleading; (r) The Declaration permits Old Trust to vary its shareholders’ investment; provided that Old Trust does not have a fixed pool of assets; and each series thereof (including the foregoing shall not apply Old Fund) is a managed portfolio of securities, and Aviemore Asset Management, LLC, investment adviser to statements inthe Old Fund (“Aviemore”), or omissions fromhas the authority to buy and sell securities for the Old Fund; (s) The Old Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in its prospectus, the Proxy Statement made except as previously disclosed in reliance on and in conformity with information furnished by writing to New Company for use thereinTrust; and (mt) The New Fund Shares to be delivered hereunder are not being acquired for the purpose of making any distribution thereof, other than in accordance with the terms hereof.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Stadion Investment Trust)

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Old Trust. on behalf of each Old Fund and First Step SeriesFund's behalf, represents and warrants to New CompanyTrust, on behalf of each the corresponding New Fund's behalf, as follows: (a) Old Trust (1) is a statutory trust that is duly organized, validly existing, existing and in good standing under the laws of the State of DelawareDelaware Law, and its Certificate of Trust has been duly filed in the office of the Secretary of State thereof, (2) is duly registered under the 1940 Act as an open-end management investment company, (3) has the power to own all its properties and assets and to carry on its business as described in documents filed with the Securities and Exchange Commission (“Commission”)its current registration statement on Form N-1A, and (34) is duly registered has never elected not to be classified as an open-end management investment company under the 1940 Act, which registration will be in full force and effect association taxable as of the Effective Time, and no proceeding has been instituted to suspend that registrationa corporation; (b) Each Old Fund is a duly established and designated series of Old Trust, and as of the Redesignation Time, each First Step Series will be a duly established and designated series of Old Trust; (c) The execution, delivery, and performance of this Agreement have been duly authorized on or before at the date hereof by all necessary action on the part of Old Trust’s 's Board, which has made the determinations required by Rule 17a-8(a) under the 1940 Act; and this Agreement constitutes a valid and legally binding obligation of Old Trust Trust, with respect to each Old Fund and First Step SeriesFund, enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, moratorium, and other laws affecting the rights and remedies of creditors generally and general principles of equity; (d) As of At the Effective Time, each First Step Series Old Trust will have good and marketable title to the Assets for Old Fund's benefit and full right, power, and authority to sell, assign, transfer, and deliver the Assets hereunder free of any liens or other encumbrances (except securities that are subject to "securities loans," as referred to in section 851(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”), or that are restricted to resale by their terms); and on delivery and payment for the Assets, New CompanyTrust, on behalf of each New Fund's behalf, will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including restrictions that might arise under the Securities Act of 1933, as amended ("1933 Act"), provided that New Fund will acquire assets that are segregated as collateral for Old Fund's derivative positions, including without limitation, as collateral for swap positions and as margin for futures positions, subject to such segregation and liens that apply to such assets; (e) No Old Fund or First Step Series Trust, with respect to Old Fund, is not currently engaged in, and Old Trust’s its execution, delivery, and performance of this Agreement and consummation of the Reorganization on behalf of each Old Fund and First Step Series will not result in, (1) a conflict with or material violation of any provision of its Delaware Law, Old Trust's Trust Instrument Instrument, dated as of August 19, 2010 ("Declaration") or By-Laws, Delaware law, or any agreement, indenture, instrument, contract, lease, or other undertaking (each, an "Undertaking") to which any Old Fund or First Step Series Trust, on Old Fund's behalf, is a party or by which it is bound or (2) the acceleration of any obligation, or the imposition of any penalty, under any Undertaking, judgment, or decree to which any Old Fund or First Step Series Trust, on Old Fund's behalf, is a party or by which it is bound; (f) At or before the Effective Time, either (1) all material contracts and other commitments of or applicable to Old Fund (other than this Agreement and certain investment contracts, including options, futures, forward contracts, and swap agreements) will terminate, or (2) provision for discharge and/or New Fund's assumption of any liabilities of Old Fund thereunder will be made, without either Fund's incurring any penalty with respect thereto and without diminishing or releasing any rights Old Trust may have had with respect to actions taken or omitted or to be taken by any other party thereto before the Closing; (g) No litigation, administrative proceeding, action, or investigation of or before any court, governmental body, or arbitrator is presently pending or, to the knowledge of any Old Trust's knowledge, threatened against Old Trust, with respect to Old Fund or First Step Series, threatened against any Old Fund or First Step Series regarding any of its respective properties or assets attributable or allocable to Old Fund, that, if adversely determined, would materially and adversely affect its Old Fund's financial condition or the conduct of its business; and no Old Fund or First Step Series Trust, on Old Fund's behalf, knows of any no facts that might form the basis for the institution of any such litigation, proceeding, action, or investigation and is not a party to or subject to the provisions of any order, decree, judgment, or award of any court, governmental body, or arbitrator that materially and adversely affects its Old Fund's business or its Old Trust's ability to consummate the transactions herein contemplatedcontemplated hereby; (gh) Each Old Fund’s Investments, 's Statement of Assets and Liabilities, Schedule of Investments, Statement of Operations, and Statement of Changes in Net Assets (collectivelyeach, “Statements”a "Statement") as of at and for the fiscal year (in the case of the last Statement, for the two fiscal years) ended September 30, 2008, in the case of Xxxxxxx & Xxxx Advisors Municipal High Income Fund, and June 30, 2008, in the case of Xxxxxxx & Xxxx Advisors Tax-Managed Equity Fund2017, have been audited by Deloitte & Touche PricewaterhouseCoopers LLP, each Old Fund’s an independent registered public accounting firm, and are in accordance with generally accepted accounting principles consistently applied in the United States ("GAAP"); and those Statements (copies of which Old Trust has furnished to New Trust), present fairly, in all material respects, each Old Fund’s 's financial condition as of the at that date thereof in accordance with accounting principles generally accepted GAAP and the results of its operations and changes in its net assets for the United States period then ended, and consistently applied (“GAAP”); to each Old Fund’s management’s best knowledge and belief, there are and will be no known contingent liabilities, debts, obligations, or duties liabilities of either Old Fund required to be reflected on a balance sheet (including the notes thereto) in accordance with GAAP as of at that date that are not disclosed therein. Old Fund's Statement of Assets and Liabilities, Schedule of Investments, Statement of Operations, and Statement of Changes in Net Assets at and for the six months ended December 31, 2017, are in accordance with GAAP; and since September 30those Statements (copies of which Old Trust has furnished to New Trust), 2008present fairly, in all material respects, Old Fund's financial condition at that date in accordance with GAAP and the case results of Xxxxxxx & Xxxx Advisors Municipal High Income Fundits operations and changes in its net assets for the period then ended, and since June 30there are no known contingent liabilities of Old Fund required to be reflected on a balance sheet (including the notes thereto) in accordance with GAAP at that date that are not disclosed therein; (i) Since December 31, 2008, in the case of Xxxxxxx & Xxxx Advisors Tax-Managed Equity Fund2017, there has not been any material adverse change in either Old Fund’s 's financial condition, assets, liabilities, or business, other than changes occurring in the ordinary course of business, or any incurrence by either Old Fund of indebtedness maturing more than one year from the date that indebtedness was incurred; for these purposespurposes of this subparagraph, a decline in net asset value NAV per Old Fund share Share due to declines in market values of securities the applicable Old Fund holds, the discharge of each Old Fund’s liabilities in the normal courseFund liabilities, or the redemption of Old Fund shares Shares by the applicable Old Fund’s its shareholders shall not constitute a material adverse change; (hj) All federal and other tax returns, dividend reporting forms, and other tax-related reports (collectively, "Returns") of Old Fund required by law to have been filed by the Effective Time (including any properly and timely filed extensions of time to file) shall have been filed and are or will be correct in all material respects, and all federal and other taxes shown as due or required to be shown as due on those Returns shall have been paid or provision shall have been made for the payment thereof; to the best of Old Trust's knowledge, no such Return is currently under audit and no assessment has been asserted with respect to those Returns; and Old Fund is in compliance in all material respects with all applicable Regulations pertaining to the reporting of dividends and other distributions with respect to, and on redemptions of, its shares and to withholding in respect thereof, and is not liable for any material penalties that could be imposed thereunder; (k) Old Fund is not classified as a partnership, and instead is classified as an association that is taxable as a corporation, for federal tax purposes and either has elected the latter classification by filing Form 8832 with the Internal Revenue Service ("Service") or is a "publicly traded partnership" (as defined in section 7704(b)) that is treated as a corporation; Old Fund is a "fund" (as defined in section 851(g)(2), eligible for treatment under section 851(g)(1)); for each taxable year of its operation (including its current taxable year through the Effective Time ("current year")), Old Fund has met (and for the current year will meet) the requirements of Part I of Subchapter M of Chapter 1 of Subtitle A of the Code ("Subchapter M") for qualification as a "regulated investment company" (as defined in section 851(a)(1)) ("RIC") and has been (and for the current year will be) eligible to and has computed (and for the current year will compute) its federal income tax under section 852; Old Fund has not at any time since its inception been liable for, and is not now liable for, any material income or excise tax pursuant to sections 852 or 4982; and Old Fund has no earnings and profits accumulated in any taxable year in which the provisions of Subchapter M did not apply to it; (l) All issued and outstanding Class Y Old Fund Shares are, and as of at the Effective Time will be, duly and validly issued and outstanding, fully paid, and non-assessable by the applicable First Step Series Old Trust and have been offered and sold in every state and the District of Columbia in compliance in all material respects with applicable registration requirements of the 1933 Act and state securities laws; all issued and no outstanding Old Fund or First Step Series has outstanding any optionsShares will, warrants, or other rights to subscribe for or purchase any Class Y Old Fund Shares, nor are there outstanding any securities convertible into any Class Y Old Fund Shares; (i) As of at the Effective Time, all federal be held by the persons and other tax returns, dividend reporting forms, and other tax-related reports of each Old Fund required by law to have then been filed by that time (giving effect to properly and timely filed extensions of time to file) shall have been filed and are or will be correct in all material respects; all federal and other taxes shown as due or required to be shown as due on those returns and reports shall have been paid or provision shall have been made for the payment thereof, except for amounts that alone or in the aggregate would not reasonably be expected to have a material adverse effect; to the best of each amounts set forth on Old Fund’s knowledge's shareholder records, no such return is currently under audit and no assessment has been asserted with respect to those returns; and both Old Funds are as provided in compliance in all material respects with applicable Regulations pertaining to the reporting of, and withholding in respect of, distributions on and repurchases, if any, of their shares and are not liable for any material penalties that could be imposed thereunderparagraph 2.3; (jm) For each taxable year of its operation, each Old Fund has met (or for its current taxable year will meet) the requirements of Part I of Subchapter M of Chapter 1 of the Code (“Subchapter M”) for qualification as a regulated investment company (“RIC”) and has been (or for that year will be) eligible to and has computed (or for that year will compute) its federal income tax under section 852 of the Code; from the time Old Trust’s Board approved the transactions contemplated by this Agreement through the Effective Time, each Old Fund has invested and will invest its assets in a manner that ensures its compliance with the foregoing; neither Old Fund has any earnings and profits accumulated in any taxable year in which the provisions of Subchapter M did not apply to it; and neither Old Fund is liable for any material tax pursuant to sections 852 or 4982 of the Code that is due and remains unpaid; (k) Each Old Fund incurred the Liabilities, which are associated with such Old Fund’s the Assets, in the ordinary course of its business; (n) Old Fund is not under the jurisdiction of a court in a "title 11 or similar case" (as defined in section 368(a)(3)(A)); (o) Not more than 25% of the value of Old Fund's total assets (excluding cash, cash items, and Government securities) is invested in the stock and securities of any one issuer, and not more than 50% of the value of those assets is invested in the stock and securities of five or fewer issuers; for purposes of this representation, Old Fund shall be treated as holding its proportionate share of the assets held by any other RICs (including exchange-traded funds that are RICs) in which it invests; (p) Old Fund's current prospectus and statement of additional information (1) conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder and (2) at the date on which they were issued did not contain, and as supplemented by any supplement thereto dated prior to or at the Effective Time do 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 therein, in light of the circumstances under which they were made, not misleading; (q) The information to be furnished by Old Trust for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents filed or to be filed with any federal, state, or local regulatory authority (including the Financial Industry Regulatory Authority, Inc. ("FINRA")) that may be necessary in connection with the transactions contemplated hereby shall be accurate and complete in all material respects and shall comply in all material respects with federal securities laws and other laws and regulations; and the fair market value of information Old Trust provided for inclusion in the Assets to be transferred to each Registration Statement and the Proxy (as defined in paragraph 3.3(a)(1) and (2), respectively) (other than written information provided by New Fund Trust for inclusion therein) will, on a going concern basis will equal or exceed their respective effective dates, at the Liabilities to be assumed by such New Fund Effective Time, and those to which such Assets are subject. (l) As of the time of its mailing, at the time of the Shareholders Meeting (as defined in paragraph 4.1), and as of the Effective Time, the Proxy Statement (as defined in paragraph 3.3(a)4.2) will comply in all material respects with applicable provisions of the 1933 Act, the Securities Exchange Act of 1934, as amended, and the 1940 Act and the rules and regulations thereunder (collectively, “Federal Securities Laws”) and will 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 therein, in light of the circumstances under which those statements they were made, not misleading; provided that the foregoing shall not apply to statements in, or omissions from, the Proxy Statement made in reliance on and in conformity with information furnished by New Company for use therein; and; (mr) Old Fund's investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in its prospectus and statement of additional information, except as previously disclosed in writing to New Trust; (s) The New Fund Shares to be delivered hereunder are not being acquired for the purpose of making any distribution thereof, other than in accordance with the terms hereof; (t) [RESERVED] (u) Old Trust has maintained with respect to Old Fund, in all material respects, all books and records required of a registered investment company in compliance with the requirements of section 31 of the 1940 Act and rules thereunder, and those books and records are true and correct in all material respects; (v) Old Trust has adopted and implemented written policies and procedures in accordance with Rule 38a-1 under the 1940 Act; (w) Old Fund does not have any unamortized or unpaid organizational fees or expenses; (x) Old Fund has not changed its taxable year-end since inception and will not change its taxable year-end prior to the Closing; (y) [RESERVED]; and (z) Old Trust is undertaking the Reorganization for bona fide business purposes (and not a purpose to avoid federal income tax).

Appears in 1 contract

Samples: Agreement and Plan of Reorganization and Termination (OSI ETF Trust)

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