Other Conditions Precedent. If any of the conditions set forth in this paragraph 6.3 have not been satisfied on or before the Effective Time, the Target Fund or the Acquiring Fund shall, at their option, not be required to consummate the transactions contemplated by this Agreement. a. The Agreement and the transactions contemplated herein shall have been approved by (i) the Managing Member of Upholdings LLC in accordance with Upholdings LLC’s Operating Agreement, and (ii) to the extent required, the member investors of the Target Fund. Notwithstanding anything herein to the contrary, neither Upholdings LLC, on behalf of the Target Fund, nor Alpha Trust on behalf of the Acquiring Fund, respectively, may waive the conditions set forth in this paragraph 6.3(a). b. At the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of Upholdings LLC, threatened before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein. c. All consents of other parties and all other consents, orders and permits of Federal, state and local regulatory authorities deemed necessary by the parties to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of the Acquiring Fund or the Target Fund, provided that either party hereto may for itself waive any of such conditions. d. Upholdings LLC and Alpha Trust shall have received an opinion of Practus, LLP as to federal income tax matters substantially to the effect that, based on the facts, representations, assumptions stated therein and in the Target Fund Tax Representation Certificate and the Acquiring Fund Tax Representation Certificate and further conditioned on consummation of the Reorganization in accordance with this Agreement, for federal income tax purposes with respect to the Reorganization: i. The Acquiring Fund will recognize no gain or loss on its receipt of the assets held in the Target Fund’s account received in exchange for the Acquiring Fund Shares pursuant to Section 1032(a) of the Code. ii. The Acquiring Fund’s basis in the assets received from the Target Fund will equal the basis of such assets in the hands of the Target Fund immediately prior to the transfer pursuant to Section 362(a) of the Code, provided, however, if the Target Fund’s aggregate adjusted tax bases of the assets being transferred to the Acquiring Fund exceeds the fair market value of such property immediately after the Reorganization, then the Acquiring Fund’s adjusted basis of such assets will not exceed the fair market value of such property immediately after the Reorganization pursuant to Section 362(e)(2)(A) of the Code provided, however, if the Target Fund takes the position that Proposed Treasury Regulation § 1.475(a)-2 applies to the transfer of its assets to the Acquiring Fund, then the basis of the assets in the hands of the Acquiring Fund will equal the fair market value of such assets as of the Closing. iii. The Acquiring Fund’s holding period of the assets received from the Target Fund in the Reorganization will include the period during which the Target Fund held the assets pursuant to Section 1223(2) of the Code. No opinion will be expressed (a) as to the effect of the Reorganization on the Target Fund, Alpha Trust or the Acquiring Fund with respect to any asset as to which any unrealized gain or loss is required to be recognized for federal income tax purposes under a mxxx-to-market system of accounting (i) at the end of a taxable year or (ii) on the transfer of any such asset (or termination thereof) or (b) as to any other U.S. federal tax issues (except those set forth above) and all state, local or foreign tax issues of any kind. Such opinion shall be based on customary assumptions, limitations and such representations as Practus, LLP may reasonably request, and the Target Fund and Acquiring Fund will cooperate to make and certify the accuracy of such representations. Such opinion may contain such assumptions and limitations as shall be in the opinion of such counsel appropriate to render the opinions expressed therein. Notwithstanding anything herein to the contrary, neither party may waive the condition set forth in this paragraph 6.3(d). e. Interactive Brokers shall have delivered such certificates or other documents as set forth in paragraph 3.2. f. Upholdings LLC shall have delivered such certificates or other documents as set forth in paragraph 3.3. g. The Acquiring Fund shall have issued and delivered to the Managing Member of the Target Fund the confirmation as set forth in paragraph 3.3. h. Each party shall have delivered to the other such bills of sale, checks, assignments, receipts or other documents as reasonably requested by such other party or its counsel.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Alpha Architect ETF Trust), Agreement and Plan of Reorganization (Alpha Architect ETF Trust)
Other Conditions Precedent. If any of the conditions set forth in this paragraph 6.3 have not been satisfied on or before the Effective Time, McMorgan Funds, on behalf of the Target Fund Acquired Fund, or MainStay Funds, on behalf of the Acquiring Fund Fund, shall, at their its option, not be required to consummate the transactions contemplated by this Agreement.
a. (a) The Agreement and the transactions contemplated herein shall have been approved by (i) the Managing Member requisite vote of Upholdings LLC the holders of the outstanding shares of the Acquired Fund in accordance with Upholdings LLC’s Operating Agreementthe provisions of McMorgan Funds' Certificate of Trust, Trust Instrument and By-Laws, applicable Delaware law and the 1940 Act and the regulations thereunder, and (ii) certified copies of the resolutions evidencing such approval shall have been delivered to the extent required, the member investors of the Target Acquiring Fund. Notwithstanding anything herein to the contrary, neither Upholdings LLCMcMorgan Funds and MainStay Funds, on behalf of either the Target Fund, nor Alpha Trust on behalf of Acquired Fund or the Acquiring Fund, respectively, may not waive the conditions set forth in this paragraph 6.3(a).
b. (b) At the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of Upholdings LLCMcMorgan Funds or MainStay Funds, threatened before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein.
c. (c) All consents of other parties and all other consents, orders and permits of Federal, state and local regulatory authorities deemed necessary by the parties McMorgan Funds and MainStay Funds to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of the Acquiring Fund or the Target Acquired Fund, provided that either party hereto may for itself waive any of such conditions.
d. Upholdings LLC (d) The Registration Statement shall have become effective under the 1933 Act and Alpha Trust no stop orders suspending the effectiveness thereof shall have been issued and, to the best knowledge of the parties hereto, no investigation or proceeding for that purpose shall have been instituted or be pending, threatened or contemplated under the 1933 Act.
(e) McMorgan Funds and MainStay Funds shall have received an opinion of Practus, Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP ("XXXXXXXXXX") as to federal income tax matters (the "TAX OPINION") substantially to the effect that, based on the facts, representations, assumptions stated therein and in the Target Fund Tax Representation Certificate and the Acquiring Fund Tax Representation Certificate and further conditioned on consummation of the Reorganization in accordance with this Agreement, for federal income tax purposes with respect to the Reorganizationpurposes:
i. (1) The Acquiring Fund Reorganization will recognize no gain or loss on its receipt constitute a "reorganization" within the meaning of Section 368(a) of the assets held in Code, and the Target Fund’s account received in exchange for Acquired Fund and the Acquiring Fund Shares pursuant each will be a "party to a reorganization" within the meaning of Section 1032(a368(b) of the Code.
ii. (2) No gain or loss will be recognized by the Acquired Fund (a) on the transfer of its Assets to the Acquiring Fund in exchange solely for Acquiring Fund Shares and the Acquiring Fund's assumption of the Liabilities (if any) of the Acquired Fund, and (b) the subsequent distribution by the Acquired Fund of those Acquiring Fund Shares to the Acquired Fund Shareholders.
(3) No gain or loss will be recognized by the Acquiring Fund on receipt of the Assets transferred to it by the Acquired Fund in exchange for Acquiring Fund Shares and the assumption of the Liabilities (if any) of the Acquired Fund.
(4) The Acquiring Fund’s 's basis in the assets Assets received from the Target Acquired Fund will equal be the same as the Acquired Fund's basis of such in those assets in the hands of the Target Fund immediately prior to the transfer pursuant to Section 362(aReorganization.
(5) The Acquiring Fund's holding period for the transferred Assets will include the Acquired Fund's holding period therefor.
(6) No gain or loss will be recognized by the Acquired Fund Shareholders on the exchange of the Code, provided, however, if the Target Fund’s aggregate adjusted tax bases of the assets being transferred to their Acquired Fund Shares solely for Acquiring Fund Shares.
(7) An Acquired Fund Shareholder's basis in the Acquiring Fund exceeds Shares received in the fair market value of such property immediately after Reorganization will be the Reorganization, then same as the Acquiring Fund’s adjusted basis of such assets will not exceed the fair market value of such property immediately after the Reorganization pursuant to Section 362(e)(2)(A) of the Code provided, however, if the Target Acquired Fund takes the position that Proposed Treasury Regulation § 1.475(a)-2 applies to the transfer of its assets to the Acquiring Fund, then the basis of the assets Shares surrendered in the hands of exchange therefor.
(8) An Acquired Fund Shareholder's holding period in the Acquiring Fund will equal the fair market value of such assets as of the Closing.
iii. The Acquiring Fund’s holding period of the assets Shares received from the Target Fund in the Reorganization will include the Acquired Fund Shareholder's holding period during which for the Target Acquired Fund Shares surrendered in exchange therefor, provided such Acquired Fund Shares were held as capital assets on the assets pursuant Closing Date.
(9) The Acquiring Fund will succeed to Section 1223(2) and take into account the items of the CodeAcquired Fund described in Section 381(c), including any earnings and profits, or deficit therein, of the Acquired Fund as of the date of the Closing Date, subject to the conditions and limitations specified in Sections 381, 382, 383 and 384. No Notwithstanding this paragraph 6.3(e), the Tax Opinion may state that no opinion will be is expressed (a) as to the effect of the Reorganization on the Target Fund, Alpha Trust Acquired Fund or the Acquiring Fund Funds or any shareholder thereof with respect to (a) any asset Asset as to which any unrealized gain or loss is required to be recognized for federal income tax purposes under a mxxx-to-market system of accounting (i) at the end of a taxable year (or (ii) on the termination or transfer of any such asset (or termination thereof) under a xxxx-to-market system of accounting, or (b) as the payment by any party of transaction expenses incurred in connection with the Reorganization, except in relation to any other U.S. federal tax issues (except those set forth above) and all state, local or foreign tax issues the qualification of any kind. Such opinion shall be based on customary assumptions, limitations and such representations as Practus, LLP may reasonably request, and the Target Fund and transfer of the Acquired Fund's assets to the Acquiring Fund will cooperate to make and certify as a reorganization under Section 368(a) of the accuracy of such representations. Such opinion may contain such assumptions and limitations as shall be in the opinion of such counsel appropriate to render the opinions expressed thereinCode. Notwithstanding anything herein to the contrary, neither party McMorgan Funds and MainStay Funds, on behalf of either the Acquired Fund or the Acquiring Fund, respectively, may not waive the condition set forth in this paragraph 6.3(d6.3(e).
e. Interactive Brokers (f) State Street shall have delivered such certificates or other documents as set forth in paragraph 3.2.
f. Upholdings LLC (g) The Transfer Agent shall have delivered such certificates or other documents to MainStay Funds a certificate of its authorized officer as set forth in paragraph 3.3.
g. (h) The Acquiring Fund shall have issued and delivered to the Managing Member Secretary of the Target Acquired Fund the confirmation as set forth in paragraph 3.3.
h. (i) Each party shall have delivered to the other such bills of sale, checks, assignments, receipts or other documents as reasonably requested by such other party or its counsel.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Mainstay Funds), Agreement and Plan of Reorganization (Mainstay Funds)
Other Conditions Precedent. If any of the conditions set forth in this paragraph 6.3 have not been satisfied on or before the Effective Time, the Target Acquired Fund or the Acquiring Fund shall, at their its option, not be required to consummate the transactions contemplated by this Agreement.
a. (a) The Agreement and the transactions contemplated herein shall have been approved by (i) the Managing Member requisite rate of Upholdings LLC the holder of outstanding shares of the Acquired Fund in accordance with Upholdings LLCthe Acquired Fund’s Operating AgreementCharter and Bylaws, applicable Maryland law and (ii) the 1940 Act and certified copies of the resolutions evidencing such approval shall have been delivered to the extent required, the member investors of the Target Acquiring Fund. Notwithstanding anything herein to the contrary, neither Upholdings LLC, on behalf of the Target Fund, nor Alpha Trust on behalf of Acquired Fund or the Acquiring Fund, respectively, may not waive the conditions set forth in this paragraph 6.3(a).
b. (b) At the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of Upholdings LLCeither Fund, threatened before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein.
c. (c) All consents of other parties and all other consents, orders and permits of Federal, state and local regulatory authorities deemed necessary by the parties either Fund to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of the Acquiring Fund or the Target Acquired Fund, provided that either party hereto may for itself waive any of such conditions.
d. Upholdings LLC and Alpha Trust (d) The Funds shall have received an opinion of Practus, Xxxx Xxxxxxxx LLP as to federal income tax matters substantially to the effect that, based on the facts, representations, assumptions stated therein and in the Target Fund Tax Representation Certificate and the Acquiring Fund Tax Representation Certificate and further conditioned on consummation of the Reorganization in accordance with this Agreement, for federal income tax purposes with respect to the Reorganizationpurposes:
i. (1) The Reorganization will constitute a tax-free reorganization within the meaning of Section 368(a) of the Code, and the Acquired Fund and the Acquiring Fund will recognize no gain or loss on its receipt each be a party to a reorganization within the meaning of the assets held in the Target Fund’s account received in exchange for the Acquiring Fund Shares pursuant to Section 1032(a368(b) of the Code.
ii. The (2) No gain or loss will be recognized by the Acquired Fund upon the transfer of all of its assets to the Acquiring Fund in exchange solely for the Acquiring Fund Shares and the assumption by the Acquiring Fund of the Acquired Fund’s basis liabilities or upon the distribution of the Acquiring Fund Shares to the Acquired Fund’s shareholders in exchange for their shares of the Acquired Fund.
(3) No gain or loss will be recognized by the Acquiring Fund upon the receipt by it of all of the assets of the Acquired Fund in exchange solely for Acquiring Fund Shares and the assumption by the Acquiring Fund of the liabilities of the Acquired Fund.
(4) The adjusted tax basis of the assets of the Acquired Fund received from by the Target Acquiring Fund will equal be the same as the adjusted tax basis of such assets to the Acquired Fund immediately prior to the Reorganization.
(5) The holding period of the assets of the Acquired Fund received by the Acquiring Fund will include the holding period of those assets in the hands of the Target Acquired Fund immediately prior to the transfer pursuant to Section 362(aReorganization.
(6) No gain or loss will be recognized by the shareholders of the Code, provided, however, if Acquired Fund upon the Target exchange of their Acquired Fund Shares for the Acquiring Fund Shares (except with respect to cash received in lieu of fractional shares) and the assumption by the Acquiring Fund of the liabilities of the Acquired Fund’s .
(7) The aggregate adjusted tax bases of the assets being transferred to the Acquiring Fund exceeds the fair market value of such property immediately after the Reorganization, then the Acquiring Fund’s adjusted basis of such assets will not exceed the fair market value of such property immediately after the Reorganization pursuant to Section 362(e)(2)(A) of the Code provided, however, if the Target Fund takes the position that Proposed Treasury Regulation § 1.475(a)-2 applies to the transfer of its assets to the Acquiring Fund, then the basis of the assets in the hands of the Acquiring Fund will equal Shares received by the fair market value of such assets as shareholders of the ClosingAcquired Fund (reduced by any amount of tax basis allocable to fractional Acquiring Fund Shares for which cash is received) pursuant to the Reorganization will be the same as the aggregate adjusted tax basis of the Acquired Fund Shares held by the Acquired Fund’s shareholders immediately prior to the Reorganization.
iii. (8) The Acquiring Fund’s holding period of the assets Acquiring Fund Shares received from by the Target shareholders of the Acquired Fund in the Reorganization will include the holding period during which the Target Fund held the assets pursuant to Section 1223(2) of the CodeAcquired Fund Shares surrendered in exchange therefore, provided that the Acquired Fund Shares were held as a capital asset on the Closing Date. No opinion will be expressed (a) as to the effect of the Reorganization on (i) the Target Fund, Alpha Trust Acquired Fund or the Acquiring Fund with respect to any asset as to which any unrealized gain or loss is required to be recognized for federal income tax purposes at the end of a taxable year (or on the termination or transfer thereof) under a mxxxxxxx-to-market system of accounting (i) at the end of a taxable year or and (ii) on the transfer any Acquired Fund or Acquiring Fund shareholder that is required to recognize unrealized gains and losses for federal income tax purposes under a xxxx-to-market system of any such asset (or termination thereof) or (b) as to any other U.S. federal tax issues (except those set forth above) and all state, local or foreign tax issues of any kindaccounting. Such opinion shall be based on customary assumptions, limitations and such representations as Practus, Xxxx Xxxxxxxx LLP may reasonably request, and the Target Acquired Fund and Acquiring Fund will cooperate to make and certify the accuracy of such representations. Such opinion may contain such assumptions and limitations as shall be in the opinion of such counsel appropriate to render the opinions expressed therein. Notwithstanding anything herein to the contrary, neither party may waive the condition set forth in this paragraph 6.3(d).
e. Interactive Brokers (e) U.S. Bank shall have delivered such certificates or other documents as set forth in paragraph 3.2.
f. Upholdings LLC (f) The Transfer Agent shall have delivered such certificates or other documents to the Acquiring Fund a certificate of its authorized officer as set forth in paragraph 3.3.
g. (g) The Acquiring Fund shall have issued and delivered to the Managing Member Secretary of the Target Acquired Fund the confirmation as set forth in paragraph 3.3.
h. (h) Each party shall have delivered to the other such bills of sale, checks, assignments, receipts or other documents as reasonably requested by such other party or its counsel.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Helios Total Return Fund Inc)
Other Conditions Precedent. If any of the conditions set forth in this paragraph 6.3 have not been satisfied on or before the Effective Time, World Funds, on behalf of the Target Fund Acquired Fund, or MainStay Funds, on behalf of the Acquiring Fund Fund, shall, at their its option, not be required to consummate the transactions contemplated by this Agreement.
a. (a) The Agreement and the transactions contemplated herein shall have been approved by (i) the Managing Member requisite vote of Upholdings LLC the holders of the outstanding shares of the Acquired Fund in accordance with Upholdings LLC’s Operating Agreementthe provisions of World Funds’ Articles of Incorporation and By-Laws, applicable Maryland law and the 1940 Act and the regulations thereunder, and (ii) certified copies of the resolutions evidencing such approval shall have been delivered to the extent required, the member investors of the Target Acquiring Fund. Notwithstanding anything herein to the contrary, neither Upholdings LLCWorld Funds and MainStay Funds, on behalf of either the Target Fund, nor Alpha Trust on behalf of Acquired Fund or the Acquiring Fund, respectively, may not waive the conditions set forth in this paragraph 6.3(a).
b. (b) At the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of Upholdings LLCWorld Funds or MainStay Funds, threatened before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein.
c. (c) All consents of other parties and all other consents, orders and permits of Federal, state and local regulatory authorities deemed necessary by the parties World Funds and MainStay Funds to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of the Acquiring Fund or the Target Acquired Fund, provided that either party hereto may for itself waive any of such conditions.
d. Upholdings LLC (d) World Funds and Alpha Trust MainStay Funds shall have received an opinion of PractusMxxxxx, LLP Xxxxx & Bxxxxxx LLP, in a form acceptable to Dechert LLP, as to federal income tax matters substantially to the effect that, based on the facts, representations, assumptions stated therein and in the Target Fund Tax Representation Certificate and the Acquiring Fund Tax Representation Certificate and further conditioned on consummation of the Reorganization in accordance with this Agreement, for federal income tax purposes with respect to the Reorganizationpurposes:
i. (1) The Reorganization will constitute a tax-free reorganization within the meaning of Section 368(a) of the Code, and the Acquired Fund and the Acquiring Fund will recognize no gain or loss on its receipt each be a party to a reorganization within the meaning of the assets held in the Target Fund’s account received in exchange for the Acquiring Fund Shares pursuant to Section 1032(a368(b) of the Code.
ii. The (2) No gain or loss will be recognized by the Acquired Fund upon the transfer of all of its assets to the Acquiring Fund in exchange solely for the Acquiring Fund Shares and the assumption by the Acquiring Fund of the Acquired Fund’s basis liabilities or upon the distribution of the Acquiring Fund Shares to the Acquired Fund’s shareholders in exchange for their shares of the Acquired Fund.
(3) No gain or loss will be recognized by the Acquiring Fund upon the receipt by it of all of the assets of the Acquired Fund in exchange solely for Acquiring Fund Shares and the assumption by the Acquiring Fund of the liabilities of the Acquired Fund.
(4) The adjusted tax basis of the assets of the Acquired Fund received from by the Target Acquiring Fund will equal be the same as the adjusted tax basis of such assets to the Acquired Fund immediately prior to the Reorganization.
(5) The holding period of the assets of the Acquired Fund received by the Acquiring Fund will include the holding period of those assets in the hands of the Target Acquired Fund immediately prior to the transfer pursuant to Section 362(aReorganization.
(6) No gain or loss will be recognized by the shareholders of the Code, provided, however, if Acquired Fund upon the Target exchange of their Acquired Fund Shares for the Acquiring Fund Shares (including fractional shares to which they may be entitled) and the assumption by the Acquiring Fund of the liabilities of the Acquired Fund’s .
(7) The aggregate adjusted tax bases of the assets being transferred to the Acquiring Fund exceeds the fair market value of such property immediately after the Reorganization, then the Acquiring Fund’s adjusted basis of such assets will not exceed the fair market value of such property immediately after the Reorganization pursuant to Section 362(e)(2)(A) of the Code provided, however, if the Target Fund takes the position that Proposed Treasury Regulation § 1.475(a)-2 applies to the transfer of its assets to the Acquiring Fund, then the basis of the assets in the hands of the Acquiring Fund will equal Shares received by the fair market value of such assets as shareholders of the ClosingAcquired Fund (including fractional shares to which they may be entitled) pursuant to the Reorganization will be the same as the aggregate adjusted tax basis of the Acquired Fund Shares held by the Acquired Fund’s shareholders immediately prior to the Reorganization.
iii. (8) The Acquiring Fund’s holding period of the assets Acquiring Fund Shares received from by the Target shareholders of the Acquired Fund in the Reorganization (including fractional shares to which they may be entitled) will include the holding period during which the Target Fund held the assets pursuant to Section 1223(2) of the CodeAcquired Fund Shares surrendered in exchange therefore, provided that the Acquired Fund Shares were held as a capital asset on the Closing Date. No opinion will be expressed (a) as to the effect of the Reorganization on (i) the Target Fund, Alpha Trust Acquired Fund or the Acquiring Fund with respect to any asset as to which any unrealized gain or loss is required to be recognized for federal income tax purposes at the end of a taxable year (or on the termination or transfer thereof) under a mxxxmark-to-market system of accounting (i) at the end of a taxable year or and (ii) on the transfer any Acquired Fund or Acquiring Fund shareholder that is required to recognize unrealized gains and losses for federal income tax purposes under a mark-to-market system of any such asset (or termination thereof) or (b) as to any other U.S. federal tax issues (except those set forth above) and all state, local or foreign tax issues of any kindaccounting. Such opinion shall be based on customary assumptions, limitations and such representations as PractusMxxxxx, Xxxxx & Bxxxxxx LLP may reasonably request, and the Target Acquired Fund and Acquiring Fund will cooperate to make and certify the accuracy of such representations. Such opinion may contain such assumptions and limitations as shall be in the opinion of such counsel appropriate to render the opinions expressed therein. Notwithstanding anything herein to the contrary, neither party may waive the condition set forth in this paragraph 6.3(d).
e. Interactive Brokers (e) Brown Brothers shall have delivered such certificates or other documents as set forth in paragraph 3.2.
f. Upholdings LLC (f) The Transfer Agent shall have delivered such certificates or other documents to MainStay Funds a certificate of its authorized officer as set forth in paragraph 3.3.
g. (g) The Acquiring Fund shall have issued and delivered to the Managing Member Secretary of the Target Acquired Fund the confirmation as set forth in paragraph 3.3.
h. (h) Each party shall have delivered to the other such bills of sale, checks, assignments, receipts or other documents as reasonably requested by such other party or its counsel.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Mainstay Funds Trust)
Other Conditions Precedent. If any of the conditions set forth in this paragraph 6.3 have not been satisfied on or before the Effective Time, McMorgan Funds, on behalf of the Target Fund Acquired Fund, or MainStay Funds, on behalf of the Acquiring Fund Fund, shall, at their its option, not be required to consummate the transactions contemplated by this Agreement.
a. (a) The Agreement and the transactions contemplated herein shall have been approved by (i) the Managing Member requisite vote of Upholdings LLC the holders of the outstanding shares of the Acquired Fund in accordance with Upholdings LLC’s Operating Agreementthe provisions of McMorgan Funds' Certificate of Trust, Trust Instrument and By-Laws, applicable Delaware law and the 1940 Act and the regulations thereunder, and (ii) certified copies of the resolutions evidencing such approval shall have been delivered to the extent required, the member investors of the Target Acquiring Fund. Notwithstanding anything herein to the contrary, neither Upholdings LLCMcMorgan Funds and MainStay Funds, on behalf of either the Target Fund, nor Alpha Trust on behalf of Acquired Fund or the Acquiring Fund, respectively, may not waive the conditions set forth in this paragraph 6.3(a).
b. (b) At the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of Upholdings LLCMcMorgan Funds or MainStay Funds, threatened before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein.
c. (c) All consents of other parties and all other consents, orders and permits of Federal, state and local regulatory authorities deemed necessary by the parties McMorgan Funds and MainStay Funds to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of the Acquiring Fund or the Target Acquired Fund, provided that either party hereto may for itself waive any of such conditions.
d. Upholdings LLC (d) The Registration Statement shall have become effective under the 1933 Act and Alpha Trust no stop orders suspending the effectiveness thereof shall have been issued and, to the best knowledge of the parties hereto, no investigation or proceeding for that purpose shall have been instituted or be pending, threatened or contemplated under the 1933 Act.
(e) McMorgan Funds and MainStay Funds shall have received an opinion of Practus, Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP ("XXXXXXXXXX") as to federal income tax matters (the "TAX OPINION") substantially to the effect that, based on the facts, representations, assumptions stated therein and in the Target Fund Tax Representation Certificate and the Acquiring Fund Tax Representation Certificate and further conditioned on consummation of the Reorganization in accordance with this Agreement, for federal income tax purposes with respect to the Reorganizationpurposes:
i. (1) The Acquiring Fund Reorganization will recognize no gain or loss on its receipt constitute a "reorganization" within the meaning of Section 368(a)(1)(F) of the assets held in Code, and the Target Fund’s account received in exchange for Acquired Fund and the Acquiring Fund Shares pursuant each will be a "party to a reorganization" within the meaning of Section 1032(a368(b) of the Code.
ii. (2) No gain or loss will be recognized by the Acquired Fund (a) on the transfer of its Assets to the Acquiring Fund in exchange solely for Acquiring Fund Shares and the Acquiring Fund's assumption of the Liabilities (if any) of the Acquired Fund, and (b) the subsequent distribution by the Acquired Fund of those Acquiring Fund Shares to the Acquired Fund Shareholders.
(3) No gain or loss will be recognized by the Acquiring Fund on receipt of the Assets transferred to it by the Acquired Fund in exchange for Acquiring Fund Shares and the assumption of the Liabilities (if any) of the Acquired Fund.
(4) The Acquiring Fund’s 's basis in the assets Assets received from the Target Acquired Fund will equal be the same as the Acquired Fund's basis of such in those assets in the hands of the Target Fund immediately prior to the transfer pursuant to Section 362(aReorganization.
(5) The Acquiring Fund's holding period for the transferred Assets will include the Acquired Fund's holding period therefor.
(6) No gain or loss will be recognized by the Acquired Fund Shareholders on the exchange of the Code, provided, however, if the Target Fund’s aggregate adjusted tax bases of the assets being transferred to their Acquired Fund Shares solely for Acquiring Fund Shares.
(7) An Acquired Fund Shareholder's basis in the Acquiring Fund exceeds Shares received in the fair market value of such property immediately after Reorganization will be the Reorganization, then same as the Acquiring Fund’s adjusted basis of such assets will not exceed the fair market value of such property immediately after the Reorganization pursuant to Section 362(e)(2)(A) of the Code provided, however, if the Target Acquired Fund takes the position that Proposed Treasury Regulation § 1.475(a)-2 applies to the transfer of its assets to the Acquiring Fund, then the basis of the assets Shares surrendered in the hands of exchange therefor.
(8) An Acquired Fund Shareholder's holding period in the Acquiring Fund will equal the fair market value of such assets as of the Closing.
iii. The Acquiring Fund’s holding period of the assets Shares received from the Target Fund in the Reorganization will include the Acquired Fund Shareholder's holding period during which for the Target Acquired Fund Shares surrendered in exchange therefor, provided such Acquired Fund Shares were held as capital assets on the assets pursuant to Closing Date.
(9) For purposes of Section 1223(2) 381 of the Code. No opinion , the Acquiring Fund will be treated as if there had been no reorganization. Accordingly, the taxable year of the Acquired Fund will not end on the effective date of the Reorganization, and the tax attributes of the Acquired Fund enumerated in Section 381(c) will be taken into account as if there had been no reorganization. The part of the taxable year of the Acquired Fund before the Reorganization and the part of the taxable year of the Acquiring Fund after the Reorganization will constitute a single taxable year of the Acquiring Fund. Therefore, the Acquired Fund will not be required to file a federal income tax return or distribute information returns to its shareholders for any portion of such taxable year. The Acquiring Fund will assume the Target Fund's taxpayer identification number and will not be required to file for a new identification number. Notwithstanding this paragraph 6.3(e), the Tax Opinion may state that no opinion is expressed (a) as to the effect of the Reorganization on the Target Fund, Alpha Trust Acquired Fund or the Acquiring Fund Funds or any shareholder thereof with respect to (a) any asset Asset as to which any unrealized gain or loss is required to be recognized for federal income tax purposes under a mxxx-to-market system of accounting (i) at the end of a taxable year (or (ii) on the termination or transfer of any such asset (or termination thereof) under a xxxx-to-market system of accounting, or (b) as the payment by any party of transaction expenses incurred in connection with the Reorganization, except in relation to any other U.S. federal tax issues (except those set forth above) and all state, local or foreign tax issues the qualification of any kind. Such opinion shall be based on customary assumptions, limitations and such representations as Practus, LLP may reasonably request, and the Target Fund and transfer of the Acquired Fund's assets to the Acquiring Fund will cooperate to make and certify as a reorganization under Section 368(a) of the accuracy of such representations. Such opinion may contain such assumptions and limitations as shall be in the opinion of such counsel appropriate to render the opinions expressed thereinCode. Notwithstanding anything herein to the contrary, neither party McMorgan Funds and MainStay Funds, on behalf of either the Acquired Fund or the Acquiring Fund, respectively, may not waive the condition set forth in this paragraph 6.3(d6.3(e).
e. Interactive Brokers (f) State Street shall have delivered such certificates or other documents as set forth in paragraph 3.2.
f. Upholdings LLC (g) The Transfer Agent shall have delivered such certificates or other documents to MainStay Funds a certificate of its authorized officer as set forth in paragraph 3.3.
g. (h) The Acquiring Fund shall have issued and delivered to the Managing Member Secretary of the Target Acquired Fund the confirmation as set forth in paragraph 3.3.
h. (i) Each party shall have delivered to the other such bills of sale, checks, assignments, receipts or other documents as reasonably requested by such other party or its counsel.
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Other Conditions Precedent. If any of the conditions set forth in this paragraph 6.3 have not been satisfied on or before the Effective Time, the Target Fund or the Acquiring Fund shall, at their its option, not be required to consummate the transactions contemplated by this Agreement.
a. 6.3.1 The Agreement and the transactions contemplated herein shall have been approved by (i) the Managing Member Board of Upholdings LLC in accordance with Upholdings LLC’s Operating Agreement, Trustees of the Trust and (ii) certified copies of the resolutions evidencing such approval shall have been delivered to the extent required, the member investors of the Target Acquiring Fund. Notwithstanding anything herein to the contrary, neither Upholdings LLCthe Trust, on behalf of either the Target Fund, nor Alpha Trust on behalf of Fund or the Acquiring Fund, respectively, may not waive the conditions set forth in this paragraph 6.3(a)6.3.1.
b. 6.3.2 At the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of Upholdings LLCthe Trust, threatened before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein.
c. 6.3.3 All consents of other parties and all other consents, orders and permits of Federal, state and local regulatory authorities deemed necessary by the parties Trust to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of the Acquiring Fund or the Target Fund, provided that either party hereto may for itself waive any of such conditions.
d. Upholdings LLC and Alpha 6.3.4 The Trust shall have received an opinion of PractusGxxxxxx & Kxxx, LLP S.C., as to federal income tax matters substantially to the effect that, based on the facts, representations, assumptions stated therein and in the Target Fund Tax Representation Certificate and the Acquiring Fund Tax Representation Certificate and further conditioned on consummation of the Reorganization in accordance with this Agreement, for federal income tax purposes with respect to the Reorganizationpurposes:
i. (a) The Reorganization will constitute a tax-free reorganization within the meaning of Section 368(a) of the Code, and the Target Fund and the Acquiring Fund will recognize no gain or loss on its receipt each be a party to a reorganization within the meaning of the assets held in the Target Fund’s account received in exchange for the Acquiring Fund Shares pursuant to Section 1032(a368(b) of the Code.
ii. The Acquiring Fund’s basis in the assets received from (b) No gain or loss will be recognized by the Target Fund upon the transfer of all of its assets to the Acquiring Fund in exchange solely for the Acquiring Fund Shares and the assumption by the Acquiring Fund of the Target Fund’s liabilities or upon the distribution of the Acquiring Fund Shares to the Target Fund’s shareholders in exchange for their shares of the Target Fund, except for (1) any gain or loss recognized on (i) “Section 1256 contracts” as defined in Section 1256(b) of the Code or (ii) stock in a “passive foreign investment company” as defined in Section 1297(a) of the Code, and (2) any other gain or loss required to be recognized by reason of the reorganization (i) as a result of the closing of the tax year of the Target Fund, (ii) upon termination of a position, or (iii) upon the transfer of an asset regardless of whether such transfer would otherwise be a nontaxable transaction under the Code.
(c) No gain or loss will equal be recognized by the Acquiring Fund upon the receipt by it of all of the assets of the Target Fund in exchange solely for Acquiring Fund Shares and the assumption by the Acquiring Fund of the liabilities of the Target Fund.
(d) The aggregate tax basis of the assets of the Target Fund received by the Acquiring Fund will be the same as the aggregate tax basis of such assets to the Target Fund immediately prior to the Reorganization.
(e) The holding period of the assets of the Target Fund received by the Acquiring Fund, other than any asset with respect to which gain or loss is required to be recognized as described in (b), above, will include the holding period of those assets in the hands of the Target Fund immediately prior to the transfer Reorganization.
(f) No gain or loss will be recognized by the shareholders of the Target Fund upon the exchange of their Target Fund Shares for the Acquiring Fund Shares (including fractional shares to which they may be entitled).
(g) The aggregate tax basis of the Acquiring Fund Shares received by the shareholders of the Target Fund (including fractional shares to which they may be entitled) pursuant to Section 362(a) the Reorganization will be the same as the aggregate tax basis of the Code, provided, however, if Target Fund Shares held by the Target Fund’s aggregate adjusted tax bases of the assets being transferred shareholders immediately prior to the Acquiring Fund exceeds the fair market value of such property immediately after the Reorganization, then the Acquiring Fund’s adjusted basis of such assets will not exceed the fair market value of such property immediately after the Reorganization pursuant to Section 362(e)(2)(A.
(h) of the Code provided, however, if the Target Fund takes the position that Proposed Treasury Regulation § 1.475(a)-2 applies to the transfer of its assets to the Acquiring Fund, then the basis of the assets in the hands The holding period of the Acquiring Fund will equal Shares received by the fair market value of such assets as shareholders of the Closing.
iii. The Acquiring Fund’s Target Fund (including fractional shares to which they may be entitled) will include the holding period of the assets received from Target Fund Shares surrendered in exchange therefore, provided that the Target Fund in the Reorganization will include the period during which the Target Fund Shares were held the assets pursuant to Section 1223(2) of the Code. No opinion will be expressed (a) as to the effect of the Reorganization a capital asset on the Target Fund, Alpha Trust or the Acquiring Fund with respect to any asset as to which any unrealized gain or loss is required to be recognized for federal income tax purposes under a mxxx-to-market system of accounting (i) at the end of a taxable year or (ii) on the transfer of any such asset (or termination thereof) or (b) as to any other U.S. federal tax issues (except those set forth above) and all state, local or foreign tax issues of any kindClosing Date. Such opinion shall be based on customary assumptions, limitations and such representations as PractusGxxxxxx & Kxxx, LLP S.C., may reasonably request, and the Target Fund and Acquiring Fund will cooperate to make and certify the accuracy of such representations. Such opinion may contain such assumptions and limitations as shall be in the opinion of such counsel appropriate to render the opinions expressed therein. Notwithstanding anything herein to the contrary, neither party may waive the condition set forth in this paragraph 6.3(d)6.3.4.
e. Interactive Brokers 6.3.5 U.S. Bank shall have delivered such certificates or other documents as set forth in paragraph 3.2.
f. Upholdings LLC 6.3.6 The Transfer Agent shall have delivered such certificates or other documents to the Trust a certificate of its authorized officer as set forth in paragraph 3.3.
g. 6.3.7 The Acquiring Fund shall have issued and delivered to the Managing Member Secretary of the Target Fund the confirmation as set forth in paragraph 3.3.
h. 6.3.8 Each party shall have delivered to the other such bills of sale, checks, assignments, receipts or other documents as reasonably requested by such other party or its counsel.
Appears in 1 contract
Other Conditions Precedent. If any of the conditions set forth in this paragraph Paragraph 6.3 have not been satisfied on or before the Effective Time, the Target Fund or the Trust, on behalf of the Acquiring Fund Fund, shall, at their its option, not be required to consummate the transactions contemplated by this Agreement.
a. (a) The Agreement and the transactions contemplated herein shall have been approved consented to by (i) the Managing Member of Upholdings LLC Target Fund Shareholders in accordance with Upholdings LLC’s Operating Agreement, and (ii) to the extent required, the member investors applicable provisions of the Target Fund’s governing documents, as amended from time to time, and applicable Delaware law, and evidence of such approval shall have been delivered to the Acquiring Fund. Notwithstanding anything herein to the contrary, neither Upholdings LLC, on behalf of the Target FundFund and the Trust, nor Alpha Trust on behalf of the Acquiring Fund, respectively, may not waive the conditions set forth in this paragraph Subparagraph 6.3(a).
b. (b) At the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of Upholdings LLCthe Target Fund or the Trust, threatened before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein.
c. (c) All consents of other parties and all other consents, orders and permits of Federal, state and local regulatory authorities deemed necessary by the parties Target Fund and the Trust to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of the Acquiring Target Fund or the Target Acquiring Fund, provided that either party hereto may for itself waive any of such conditions.
d. Upholdings LLC (d) The Acquiring Fund, Target Fund and Alpha the Trust shall have received an opinion of PractusXxxxxx, Xxxxx & Xxxxxxx LLP as to federal income tax matters substantially to the effect that, based on the facts, representations, assumptions stated therein and in the Target Fund Tax Representation Certificate and certificates provided by the Acquiring Fund Tax Representation Certificate and the Trust and further conditioned on consummation of the Reorganization in accordance with this Agreement, for federal income tax purposes with respect to the Reorganizationpurposes:
i. (1) The Acquiring Fund will recognize no gain or loss on its receipt of the assets held in the Target Fund’s account received in exchange for the Acquiring Fund Shares pursuant to Section 1032(a) of the Code.
ii. (2) The Acquiring Fund’s basis in the assets received from the Target Fund will equal the basis of such assets in the hands of the Target Fund immediately prior to the transfer pursuant to Section 362(a) of the Code, provided, however, if the Target Fund’s aggregate adjusted tax bases of the assets being transferred to the Acquiring Fund exceeds the fair market value of such property immediately after the Reorganization, then the Acquiring Fund’s adjusted basis of such assets will not exceed the fair market value of such property immediately after the Reorganization pursuant to Section 362(e)(2)(A) of the Code provided, however, if the Target Fund takes the position that Proposed Treasury Regulation § Section 1.475(a)-2 applies to the transfer of its assets to the Acquiring Fund, then the basis of the assets in the hands of the Acquiring Fund will equal the fair market value of such assets as of the Closing.
iii. (3) The Acquiring Fund’s holding period of the assets received from the Target Fund in the Reorganization will include the period during which the Target Fund held the assets pursuant to Section 1223(2) of the Code. No opinion will be expressed (a) as to the effect of the Reorganization on the Target Fund, Alpha the Trust or the Acquiring Fund with respect to any asset as to which any unrealized gain or loss is required to be recognized for federal income tax purposes under a mxxxxxxx-to-market system of accounting (i) at the end of a taxable year (or termination thereof) or (ii) on the transfer of any such asset (or termination thereof) or (b) as to any other U.S. federal tax issues (except those set forth above) and all state, local or foreign tax issues of any kind. Such opinion shall be based on customary assumptions, limitations and such representations as PractusXxxxxx, Xxxxx & Xxxxxxx LLP may reasonably request, and the Target Fund and Acquiring Fund will cooperate to make and certify the accuracy of such representations. Such opinion may contain such assumptions and limitations as shall be in the opinion of such counsel appropriate to render the opinions expressed therein. Notwithstanding anything herein to the contrary, neither party may waive the condition set forth in this paragraph Subparagraph 6.3(d).
e. Interactive Brokers (e) The Target Fund shall have delivered delivered, or shall have caused to be delivered, such certificates or other documents as set forth in paragraph Paragraph 3.2.
f. Upholdings LLC (f) The Target Fund shall have delivered such certificates delivered, or other documents shall have caused to be delivered, to the Trust a certificate as set forth in paragraph Paragraph 3.3.
g. (g) The Acquiring Fund shall have issued and delivered to the Managing Member of the Target Fund the confirmation as set forth in paragraph Paragraph 3.3.
h. (h) Each party shall have delivered to the other such bills of sale, checks, assignments, receipts or other documents as reasonably requested by such other party or its counsel.
(i) The registration statements under the 1933 Act and the 1940 Act with respect to the issuance of the Acquiring Fund Shares shall be effective and no-stop order with respect thereto or of any part thereof shall have been issued and be in effect, and no proceedings for that purpose shall have been instituted or are pending or threatened with respect thereto by any securities regulatory or other governmental authority (including, without limitation, the Commission).
(j) The Acquiring Fund Shares shall have been approved for listing on the NYSE Arca, Inc. or other U.S. national securities exchange.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (WisdomTree Continuous Commodity Index Fund)
Other Conditions Precedent. If any of the conditions set forth in this paragraph 6.3 have not been satisfied on or before the Effective Time, the Target Fund Acquired Funds or the Acquiring Fund Funds shall, at their option, not be required to consummate the transactions contemplated by this Agreement.
a. (a) The Agreement and the transactions contemplated herein shall have been approved by by: (i) the Managing Member Board of Upholdings LLC in accordance with Upholdings LLC’s Operating Agreement, Trustees of PMP and (ii) the shareholders of each Acquired Fund, and certified copies of the resolutions evidencing such approvals shall have been delivered to the extent required, the member investors of the Target FundAcquiring Funds. Notwithstanding anything herein to the contrary, neither Upholdings LLCPMP, on behalf of the Target FundAcquired Funds, nor Alpha the FundX Investment Trust on behalf of the Acquiring FundFunds, respectively, may waive the conditions set forth in this paragraph 6.3(a).
b. (b) At the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of Upholdings LLCPMP, threatened before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein.
c. (c) All consents of other parties and all other consents, orders and permits of Federal, state and local regulatory authorities deemed necessary by the parties to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of the Acquiring Fund Funds or the Target FundAcquired Funds, provided that either party hereto may for itself waive any of such conditions.
d. Upholdings LLC (d) PMP and Alpha the FundX Investment Trust shall have received an opinion of Practus, LLP the Law Offices of Rxxxxx X. Xxxxxx as to federal income tax matters substantially to the effect that, based on the facts, representations, assumptions stated therein and in the Target Fund Tax Representation Certificate and the Acquiring Fund Tax Representation Certificate and further conditioned on consummation of the Reorganization in accordance with this Agreement, for federal income tax purposes purposes:
(i) The transfer by each Acquired Fund of all of its assets to the corresponding Acquiring Fund in exchange for Acquiring Fund Shares, and the distribution of such shares to the Acquired Fund Shareholders, as provided in this Agreement, will constitute a reorganization within the meaning of Section 368(a)(1) of the Code, and both the Acquired Fund and the Acquiring Fund will each be a party to a reorganization within the meaning of such Code Section;
(ii) No gain or loss will be recognized by an Acquired Fund as a result of such transactions except with respect to certain contracts described in Section 1256(b) of the Reorganization:Code and stock in passive foreign investment companies, as defined in Section 1297(a) of the Code;
i. The Acquiring Fund will recognize no (iii) No gain or loss on its receipt will be recognized by an Acquiring Fund as a result of such transactions;
(iv) No gain or loss will be recognized by the assets held in shareholders of any Acquired Fund upon the Target Fund’s account received in exchange for distribution to them by the FundX Investment Trust of the Acquiring Fund Shares pursuant to Section 1032(a) in exchange for their shares of the Code.Acquired Funds;
ii. (v) The basis of the Acquiring Fund’s basis in the assets Fund Shares received from the Target by each shareholder of an Acquired Fund will equal be the same as the basis of the shareholder's Acquired Fund shares immediately prior to such transactions;
(vi) The basis of the Acquired Fund Assets received by an Acquiring Fund will be the same as the basis of such assets in the hands of the Target Acquired Fund immediately prior to the transfer pursuant to Section 362(asuch transactions;
(vii) of the Code, provided, however, if the Target Fund’s aggregate adjusted tax bases of the assets being transferred to A shareholder's holding period for the Acquiring Fund exceeds Shares will be determined by including the fair market value period for which the shareholder held the shares of the Acquired Fund exchanged therefor, provided that the shareholder held such property immediately after shares of the Reorganization, then Acquired Fund as a capital asset; and
(viii) The holding period of the Acquiring Fund with respect to the Acquired Fund Assets will include the period for which such Acquired Fund Assets were held by the Acquired Fund’s adjusted basis , provided that the Acquired Fund held such Acquired Fund Assets as capital assets; and
(ix) The Acquiring Fund will succeed to and take into account the items of such assets will not exceed the fair market value of such property immediately after the Reorganization pursuant to Acquired Fund described in Section 362(e)(2)(A381(c) of the Code provided, however, if the Target Fund takes the position that Proposed Treasury Regulation § 1.475(a)-2 applies subject to the transfer of its assets to the Acquiring Fundconditions and limitations specified in Sections 381, then the basis 382, 383 and 384 of the assets in Code and the hands of the Acquiring Fund will equal the fair market value of such assets as of the Closing.
iii. The Acquiring Fund’s holding period of the assets received from the Target Fund in the Reorganization will include the period during which the Target Fund held the assets pursuant to Section 1223(2) of the Coderegulations thereunder. No opinion will be expressed (a) as to the effect of the Reorganization on the Target Fund, Alpha Trust on: (i) any Acquired Fund or the any Acquiring Fund with respect to any asset as to which any unrealized gain or loss is required to be recognized for federal income tax purposes at the end of a taxable year (or on the termination or transfer thereof) under a mxxx-to-market system of accounting (i) at the end of a taxable year or and (ii) on the transfer any Acquired Fund or Acquiring Fund shareholder that is required to recognize unrealized gains and losses for federal income tax purposes under a mxxx-to-market system of any such asset (or termination thereof) or (b) as to any other U.S. federal tax issues (except those set forth above) and all state, local or foreign tax issues of any kindaccounting. Such opinion shall be based on customary assumptions, limitations and such representations as Practus, LLP the Law Offices of Rxxxxx X. Xxxxxx may reasonably request, and the Target Fund Acquired Funds and Acquiring Fund Funds will cooperate to make and certify the accuracy of such representations. Such opinion may contain such assumptions and limitations as shall be in the opinion of such counsel appropriate to render the opinions expressed therein. Notwithstanding anything herein to the contrary, neither party may waive the condition set forth in this paragraph 6.3(d).
e. Interactive Brokers shall have delivered such certificates or other documents as set forth in paragraph 3.2.
f. Upholdings LLC shall have delivered such certificates or other documents as set forth in paragraph 3.3.
g. The Acquiring Fund shall have issued and delivered to the Managing Member of the Target Fund the confirmation as set forth in paragraph 3.3.
h. Each party shall have delivered to the other such bills of sale, checks, assignments, receipts or other documents as reasonably requested by such other party or its counsel.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Professionally Managed Portfolios)
Other Conditions Precedent. If any of the conditions set forth in this paragraph 6.3 have not been satisfied on or before the Effective Time, World Funds, on behalf of the Target Fund Acquired Fund, or MainStay Funds, on behalf of the Acquiring Fund Fund, shall, at their its option, not be required to consummate the transactions contemplated by this Agreement.
a. (a) The Agreement and the transactions contemplated herein shall have been approved by (i) the Managing Member requisite vote of Upholdings LLC the holders of the outstanding shares of the Acquired Fund in accordance with Upholdings LLC’s Operating Agreementthe provisions of World Funds’ Articles of Incorporation and By-Laws, applicable Maryland law and the 1940 Act and the regulations thereunder, and (ii) certified copies of the resolutions evidencing such approval shall have been delivered to the extent required, the member investors of the Target Acquiring Fund. Notwithstanding anything herein to the contrary, neither Upholdings LLCWorld Funds and MainStay Funds, on behalf of either the Target Fund, nor Alpha Trust on behalf of Acquired Fund or the Acquiring Fund, respectively, may not waive the conditions set forth in this paragraph 6.3(a).
b. (b) At the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of Upholdings LLCWorld Funds or MainStay Funds, threatened before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein.
c. (c) All consents of other parties and all other consents, orders and permits of Federal, state and local regulatory authorities deemed necessary by the parties World Funds and MainStay Funds to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of the Acquiring Fund or the Target Acquired Fund, provided that either party hereto may for itself waive any of such conditions.
d. Upholdings LLC (d) World Funds and Alpha Trust MainStay Funds shall have received an opinion of PractusMxxxxx, LLP Xxxxx & Bxxxxxx LLP, in a form acceptable to Dechert LLP, as to federal income tax matters substantially to the effect that, based on the facts, representations, assumptions stated therein and in the Target Fund Tax Representation Certificate and the Acquiring Fund Tax Representation Certificate and further conditioned on consummation of the Reorganization in accordance with this Agreement, for federal income tax purposes with respect to the Reorganizationpurposes:
i. (1) The Reorganization should constitute a tax-free reorganization within the meaning of Section 368(a) of the Code, and the Acquired Fund and the Acquiring Fund will recognize no gain or loss on its receipt each be a party to a reorganization within the meaning of the assets held in the Target Fund’s account received in exchange for the Acquiring Fund Shares pursuant to Section 1032(a368(b) of the Code.
ii. The (2) No gain or loss should be recognized by the Acquired Fund upon the transfer of all of its assets to the Acquiring Fund in exchange solely for the Acquiring Fund Shares and the assumption by the Acquiring Fund of the Acquired Fund’s basis liabilities or upon the distribution of the Acquiring Fund Shares to the Acquired Fund’s shareholders in exchange for their shares of the Acquired Fund.
(3) No gain or loss should be recognized by the Acquiring Fund upon the receipt by it of all of the assets of the Acquired Fund in exchange solely for Acquiring Fund Shares and the assumption by the Acquiring Fund of the liabilities of the Acquired Fund.
(4) The adjusted tax basis of the assets of the Acquired Fund received from by the Target Acquiring Fund will equal should be the same as the adjusted tax basis of such assets to the Acquired Fund immediately prior to the Reorganization.
(5) The holding period of the assets of the Acquired Fund received by the Acquiring Fund should include the holding period of those assets in the hands of the Target Acquired Fund immediately prior to the transfer pursuant to Section 362(aReorganization.
(6) No gain or loss should be recognized by the shareholders of the Code, provided, however, if Acquired Fund upon the Target exchange of their Acquired Fund Shares for the Acquiring Fund Shares (including fractional shares to which they may be entitled) and the assumption by the Acquiring Fund of the liabilities of the Acquired Fund’s .
(7) The aggregate adjusted tax bases of the assets being transferred to the Acquiring Fund exceeds the fair market value of such property immediately after the Reorganization, then the Acquiring Fund’s adjusted basis of such assets will not exceed the fair market value of such property immediately after the Reorganization pursuant to Section 362(e)(2)(A) of the Code provided, however, if the Target Fund takes the position that Proposed Treasury Regulation § 1.475(a)-2 applies to the transfer of its assets to the Acquiring Fund, then the basis of the assets in the hands of the Acquiring Fund will equal Shares received by the fair market value of such assets as shareholders of the ClosingAcquired Fund (including fractional shares to which they may be entitled) pursuant to the Reorganization should be the same as the aggregate adjusted tax basis of the Acquired Fund Shares held by the Acquired Fund’s shareholders immediately prior to the Reorganization.
iii. (8) The Acquiring Fund’s holding period of the assets Acquiring Fund Shares received from by the Target shareholders of the Acquired Fund in the Reorganization will (including fractional shares to which they may be entitled) should include the holding period during which the Target Fund held the assets pursuant to Section 1223(2) of the CodeAcquired Fund Shares surrendered in exchange therefore, provided that the Acquired Fund Shares were held as a capital asset on the Closing Date. No opinion will be expressed (a) as to the effect of the Reorganization on (i) the Target Fund, Alpha Trust Acquired Fund or the Acquiring Fund with respect to any asset as to which any unrealized gain or loss is required to be recognized for federal income tax purposes at the end of a taxable year (or on the termination or transfer thereof) under a mxxxmark-to-market system of accounting (i) at the end of a taxable year or and (ii) on the transfer any Acquired Fund or Acquiring Fund shareholder that is required to recognize unrealized gains and losses for federal income tax purposes under a mark-to-market system of any such asset (or termination thereof) or (b) as to any other U.S. federal tax issues (except those set forth above) and all state, local or foreign tax issues of any kindaccounting. Such opinion shall be based on customary assumptions, limitations and such representations as PractusMxxxxx, Xxxxx & Bxxxxxx LLP may reasonably request, and the Target Acquired Fund and Acquiring Fund will cooperate to make and certify the accuracy of such representations. Such opinion may contain such assumptions and limitations as shall be in the opinion of such counsel appropriate to render the opinions expressed therein. Notwithstanding anything herein to the contrary, neither party may waive the condition set forth in this paragraph 6.3(d).
e. Interactive Brokers (e) Brown Brothers shall have delivered such certificates or other documents as set forth in paragraph 3.2.
f. Upholdings LLC (f) The Transfer Agent shall have delivered such certificates or other documents to MainStay Funds a certificate of its authorized officer as set forth in paragraph 3.3.
g. (g) The Acquiring Fund shall have issued and delivered to the Managing Member Secretary of the Target Acquired Fund the confirmation as set forth in paragraph 3.3.
h. (h) Each party shall have delivered to the other such bills of sale, checks, assignments, receipts or other documents as reasonably requested by such other party or its counsel.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Mainstay Funds Trust)
Other Conditions Precedent. If any of the conditions set forth in this paragraph 6.3 have not been satisfied on or before the Effective Time, New River Funds, on behalf of the Target Fund Acquired Fund, or Northern Lights Funds, on behalf of the Acquiring Fund Fund, shall, at their its option, not be required to consummate the transactions contemplated by this Agreement.
a. (a) The Agreement and the transactions contemplated herein shall have been approved by (i) the Managing Member requisite vote of Upholdings LLC the holders of the outstanding shares of the Acquired Fund in accordance with Upholdings LLC’s Operating Agreementthe provisions of New River Funds’ Certificate of Trust, Agreement and Declaration of Trust and By-Laws, applicable laws of the State of Delaware and the 1940 Act and the regulations thereunder, and (ii) certified copies of the resolutions evidencing such approval shall have been delivered to the extent required, the member investors of the Target Acquiring Fund. Notwithstanding anything herein to the contrary, neither Upholdings LLCNew River Funds and Northern Lights Funds, on behalf of either the Target Fund, nor Alpha Trust on behalf of Acquired Fund or the Acquiring Fund, respectively, may not waive the conditions set forth in this paragraph 6.3(a).
b. (b) At the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of Upholdings LLCNew River Funds or Northern Lights Funds, threatened before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein.
c. (c) All consents of other parties and all other consents, orders and permits of Federalfederal, state and local regulatory authorities deemed necessary by the parties New River Funds and Northern Lights Funds to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of the Acquiring Fund or the Target Acquired Fund, provided that either party hereto may for itself waive any of such conditions.
d. Upholdings LLC (d) The Registration Statement shall have become effective under the 1933 Act and Alpha Trust no stop orders suspending the effectiveness thereof shall have been issued and, to the best knowledge of the parties hereto, no investigation or proceeding for that purpose shall have been instituted or be pending, threatened or contemplated under the 1933 Act.
(e) New River Funds and Northern Lights Funds shall have received an opinion of Practus, Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP (“Xxxxxxxxxx”) as to federal income tax matters (the “Tax Opinion”) substantially to the effect that, based on the facts, representations, assumptions stated therein and in the Target Fund Tax Representation Certificate and the Acquiring Fund Tax Representation Certificate and further conditioned on consummation of the Reorganization in accordance with this Agreement, for federal income tax purposes with respect to the Reorganizationpurposes:
i. (1) The Acquiring Fund Reorganization will recognize no gain or loss on its receipt constitute a “reorganization” within the meaning of Section 368(a) of the assets held in Code, and the Target Fund’s account received in exchange for Acquired Fund and the Acquiring Fund Shares pursuant each will be a “party to a reorganization” within the meaning of Section 1032(a368(b) of the Code.
ii. (2) No gain or loss will be recognized by the Acquired Fund (a) on the transfer of its Assets to the Acquiring Fund in exchange solely for Acquiring Fund Shares and the Acquiring Fund’s assumption of the Liabilities (if any) of the Acquired Fund, and (b) the subsequent distribution (whether actual or constructive) by the Acquired Fund of those Acquiring Fund Shares to the Acquired Fund Shareholders in exchange for their shares of the Acquired Fund.
(3) No gain or loss will be recognized by the Acquiring Fund on receipt of the Assets transferred to it by the Acquired Fund in exchange for Acquiring Fund Shares and the assumption by Acquiring Fund of the Liabilities (if any) of the Acquired Fund.
(4) The Acquiring Fund’s basis in the assets Assets received from the Target Acquired Fund will equal be the same as the Acquired Fund’s basis of such in those assets in the hands of the Target Fund immediately prior to the transfer pursuant to Section 362(a) of the Code, provided, however, if the Target Fund’s aggregate adjusted tax bases of the assets being transferred to the Acquiring Fund exceeds the fair market value of such property immediately after the Reorganization, then the Acquiring Fund’s adjusted basis of such assets will not exceed the fair market value of such property immediately after the Reorganization pursuant to Section 362(e)(2)(A) of the Code provided, however, if the Target Fund takes the position that Proposed Treasury Regulation § 1.475(a)-2 applies to the transfer of its assets to the Acquiring Fund, then the basis of the assets in the hands of the Acquiring Fund will equal the fair market value of such assets as of the Closing.
iii. (5) The Acquiring Fund’s holding period for the transferred Assets will include the Acquired Fund’s holding period therefor.
(6) No gain or loss will be recognized by the Acquired Fund Shareholders on the exchange of their Acquired Fund Shares solely for Acquiring Fund Shares.
(7) An Acquired Fund Shareholder’s basis in the Acquiring Fund Shares received in the Reorganization will be the same as the adjusted basis of the assets Acquired Fund Shares surrendered in exchange therefor.
(8) An Acquired Fund Shareholder’s holding period in the Acquiring Fund Shares received from the Target Fund in the Reorganization will include the Acquired Fund Shareholder’s holding period during which for the Target Acquired Fund Shares surrendered in exchange therefor, provided such Acquired Fund Shares were held as capital assets on the assets pursuant to Section 1223(2Closing Date.
(9) For purposes of section 381 of the Code. No opinion , the Acquiring Fund will be treated as if there had been no reorganization. Accordingly, the taxable year of the Acquired Fund will not end on the effective date of the Reorganization, and the tax attributes of the Acquired Fund enumerated in section 381(c) will be taken into account as if there had been no reorganization. The part of the taxable year of the Acquired Fund before the Reorganization and the part of the taxable year of the Acquiring Fund after the Reorganization will constitute a single taxable year of the Acquiring Fund. Therefore, the Acquired Fund will not be required to file a federal income tax return or distribute information returns to its shareholders for any portion of such taxable year. The Acquiring Fund will assume the Acquired Fund's taxpayer identification number and will not be required to file for a new identification number. Notwithstanding this paragraph 6.3(e), the Tax Opinion may state that no opinion is expressed (a) as to the effect of the Reorganization on the Target Fund, Alpha Trust Acquired Fund or the Acquiring Fund Funds or any shareholder thereof with respect to (a) any asset Asset as to which any unrealized gain or loss is required to be recognized for federal income tax purposes under a mxxx-to-market system of accounting (i) at the end of a taxable year (or (ii) on the termination or transfer of any such asset (or termination thereof) under a xxxx-to-market system of accounting, or (b) as the payment by any party of transaction expenses incurred in connection with the Reorganization, except in relation to any other U.S. federal tax issues (except those set forth above) and all state, local or foreign tax issues the qualification of any kind. Such opinion shall be based on customary assumptions, limitations and such representations as Practus, LLP may reasonably request, and the Target Fund and transfer of the Acquired Fund’s assets to the Acquiring Fund will cooperate to make and certify as a reorganization under Section 368(a) of the accuracy of such representations. Such opinion may contain such assumptions and limitations as shall be in the opinion of such counsel appropriate to render the opinions expressed thereinCode. Notwithstanding anything herein to the contrary, neither party New River Funds and Northern Lights Funds, on behalf of either the Acquired Fund or the Acquiring Fund, respectively, may not waive the condition set forth in this paragraph 6.3(d6.3(e).
e. Interactive Brokers (f) The Bank of New York shall have delivered such certificates or other documents as set forth in paragraph 3.2.
f. Upholdings LLC (g) GFS shall have delivered such certificates or other documents to Northern Lights Funds a certificate of its authorized officer as set forth in paragraph 3.3.
g. (h) The Acquiring Fund shall have issued and delivered to the Managing Member Secretary of the Target Acquired Fund the confirmation as set forth in paragraph 3.3.
h. (i) Each party shall have delivered to the other such bills of sale, checks, assignments, receipts or other documents as reasonably requested by such other party or its counsel.
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Samples: Agreement and Plan of Reorganization (Northern Lights Fund Trust)
Other Conditions Precedent. If any Unless waived in writing by the Parties with the consent of the conditions set forth in respective boards trustees of ARC and SCM Trust, as applicable, all obligations under this paragraph 6.3 Agreement are subject to the fulfillment, prior to or at the Closing, of each of the following conditions:
(a) The Registration Statement shall have not been satisfied on or before become effective under the Effective Time1933 Act, and no stop order suspending effectiveness of the Target Fund or the Acquiring Fund shall, at their option, not be required to consummate the transactions contemplated by this Agreement.
a. The Agreement and the transactions contemplated herein Registration Statement shall have been approved by issued and no proceedings for that purpose shall have been instituted or threatened.
(ib) SCM Trust’s registration statement, as amended to add the Managing Member Acquiring Funds as series of Upholdings LLC in accordance with Upholdings LLC’s Operating AgreementSCM Trust, shall have become effective under the 1933 Act and the 1940 Act, and (ii) to the extent required, the member investors no stop order suspending effectiveness of the Target Fund. Notwithstanding anything herein to the contrary, neither Upholdings LLC, on behalf of the Target Fund, nor Alpha Trust on behalf of the Acquiring Fund, respectively, may waive the conditions set forth in this paragraph 6.3(a)SCM Trust’s N-1A Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
b. At the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of Upholdings LLC, threatened before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein.
c. (c) All consents of other parties and all other consents, orders and permits of Federalfederal, state and local regulatory authorities (including those of the SEC and of state “Blue Sky” and securities authorities) deemed necessary by the parties ARC or SCM Trust to permit consummation, in all material respects, of the transactions Fund Transactions contemplated hereby shall have been obtained, except where when failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of the Acquiring an Acquired Fund or the Target Fund, provided that either party hereto may for itself waive any of such conditionsits Transaction Party.
d. Upholdings LLC (d) ARC and Alpha SCM Trust shall have received an opinion of Practus, from Rxxx Xxxxx LLP as to federal income tax matters substantially to the effect that, (based on the upon certain facts, representationsqualifications, assumptions stated therein and representations) in the Target Fund Tax Representation Certificate and the Acquiring Fund Tax Representation Certificate and further conditioned on consummation of the Reorganization in accordance a form reasonably satisfactory to SCM Trust that with this Agreementrespect to each Reorganization, for federal income tax purposes with respect purposes:
(i) the Reorganization will constitute a “reorganization” within the meaning of section 368(a) of the Code, and each Acquiring Fund and each Acquired Fund will be a “party to a reorganization” within the meaning of section 368(b) of the Code;
(ii) the Acquired Fund will recognize no gain or loss (a) upon the transfer of its assets to the Reorganization:Acquiring Fund in exchange for Acquiring Fund shares and the assumption by the Acquiring Fund of all the Acquired Fund’s liabilities, and (b) upon the distribution of those shares to the shareholders of the Acquired Fund, except for (A) gain or loss that may be recognized on the transfer of “section 1256 contracts” as defined in Section 1256(b) of the Code, (B) gain that may be recognized on the transfer of stock in a “passive foreign investment company” as defined in Section 1297(a) of the Code, and (C) any other gain or loss that may be required to be recognized upon the transfer of an asset regardless of whether such transfer would otherwise be a non-recognition transaction under the Code;
i. The (iii) the Acquiring Fund will recognize no gain or loss on its upon the receipt of the assets held in Fund Assets of the Target Fund’s account received Acquired Fund in exchange for shares of the Acquiring Fund Shares pursuant to Section 1032(a) and the assumption of the Code.
ii. The Acquiring Fund’s basis in the assets received from the Target Fund will equal the basis of such assets in the hands Liabilities of the Target Fund immediately prior to Acquired Fund;
(iv) the transfer pursuant to Section 362(a) of the Code, provided, however, if the Target Fund’s aggregate adjusted tax bases of the assets being transferred to the Acquiring Fund exceeds the fair market value of such property immediately after the Reorganization, then the Acquiring Fund’s adjusted basis of such assets will not exceed the fair market value of such property immediately after the Reorganization pursuant to Section 362(e)(2)(A) of the Code provided, however, if the Target Fund takes the position that Proposed Treasury Regulation § 1.475(a)-2 applies to the transfer of its assets to the Acquiring Fund, then the basis of the assets in the hands of the Acquiring Fund will equal the fair market value of such assets as each Fund Asset of the Closing.
iii. The Acquired Fund transferred to the Acquiring Fund’s holding period of the assets received from the Target Fund in the Reorganization will include be the period during which same as the Target basis of that Fund held Asset in the assets pursuant to Section 1223(2) hands of the Code. No opinion will be expressed Acquired Fund immediately before the transfer, increased by the amount of gain (aor decreased by the amount of loss), if any, recognized by the Acquired Fund on the transfer;
(v) as to the effect holding period of each Fund Asset of the Reorganization on Acquired Fund in the Target hands of the Acquiring Fund, Alpha Trust or the Acquiring Fund other than assets with respect to any asset as to which any unrealized gain or loss is required to be recognized recognized, will include the period during which that Fund Asset was held by the Acquired Fund;
(vi) the shareholders of the Acquired Fund will recognize no gain or loss upon the exchange of shares of the Acquired Fund for federal income shares of the Acquiring Fund;
(vii) the aggregate tax purposes under a mxxx-to-market system basis of accounting the Acquiring Fund shares received by each shareholder of the Acquired Fund will equal the aggregate tax basis of Acquired Fund shares surrendered in exchange therefor;
(iviii) at the end holding periods of a taxable year or (ii) the Acquiring Fund shares received by each Acquired Fund shareholder will include the holding periods of the Acquired Fund shares surrendered in exchange therefor, provided that the Acquired Fund shares are held by that shareholder as capital assets on the transfer date of any such asset the exchange;
(or termination thereofix) or (b) as to any other U.S. federal tax issues (except those set forth above) and all state, local or foreign tax issues of any kind. Such opinion shall be based on customary assumptions, limitations and such representations as Practus, LLP may reasonably request, and the Target Fund and Acquiring Fund will cooperate succeed to make and certify take into account the accuracy tax attributes of such representations. Such opinion may contain such assumptions and limitations the Acquired Fund described in Section 381(c) of the Code; and
(x) the taxable year of the Acquired Fund will not end on the Closing Date but will instead continue as the taxable year of the Acquiring Fund.
(e) No suit, action or other proceeding against ARC, the Acquired Funds, SCM Trust or the Acquiring Funds or their respective officers or trustees shall be threatened or pending before any court or other Governmental or Regulatory Body in which it will be, or it is, sought to restrain or prohibit any of the opinion of such counsel appropriate Fund Transactions contemplated by this Agreement or to render obtain damages or other relief in connection with this Agreement or the opinions expressed therein. Notwithstanding anything herein to the contrary, neither party may waive the condition set forth in this paragraph 6.3(d)Fund Transactions contemplated hereby.
e. Interactive Brokers shall have delivered such certificates or other documents as set forth in paragraph 3.2.
f. Upholdings LLC shall have delivered such certificates or other documents as set forth in paragraph 3.3.
g. (f) The Acquiring obligation of ARC and SCM Trust to consummate each Fund shall have issued and delivered to Transaction is not conditioned upon the Managing Member ability of the Target Parties to consummate one or more other Fund the confirmation as set forth in paragraph 3.3.
h. Each party shall have delivered to the other such bills of sale, checks, assignments, receipts or other documents as reasonably requested by such other party or its counsel.Transactions. ARTICLE VII –
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