REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as follows: a. The Target Fund is a duly established series of Upholdings LLC, which is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry on its business as it is presently conducted and to carry out the Agreement. b. Upholdings LLC and the Target Fund are qualified to do business in all jurisdictions in which they are required to be so qualified, except jurisdictions in which the failure to so qualify would not have a material adverse effect on Upholdings or the Target Fund. c. The Target Fund, although it is not registered as an investment company with the Commission, has been operated since its commencement of operations on March 1st, 2019 in compliance in all material respects with the 1940 Act and the rules and regulations promulgated thereunder. d. No consent, approval, authorization or order of any court or government authority under U.S. federal law, the Delaware Limited Liability Company Act, or any state securities laws, is required to be obtained for the consummation by the Target Fund and Upholdings LLC of the transactions contemplated herein, except as have been obtained. e. The Target Fund’s current offering documents and the offering documents of the Target Fund used at all times prior to the date of this Agreement do not or did not at the time of their use include 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 materially misleading. f. At the Effective Time, the Target Fund will have good and marketable title to the Assets and full right, power, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof. g. All issued and outstanding interests of the Target Fund are duly authorized and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC. h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Target Fund is a party or by which it is bound, (iii) the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund. i. All material contracts or other commitments of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund. j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated. k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes thereto) in accordance with GAAP as of such date not disclosed therein. l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing. m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns. n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund. o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund. p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)). q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code. r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner. s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities. t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests. u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading. v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles. w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations. x. The Target Fund has no unamortized or unpaid organizational fees or expenses. y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto. z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code. aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Alpha Architect ETF Trust), Agreement and Plan of Reorganization (Alpha Architect ETF Trust)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a duly established series of Upholdings LLC, which is a limited liability company statutory trust duly organized, validly existing and in good standing under in conformity with the laws of the State of Delaware, with and has the power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the Investment Company Act of 1940 as a diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement subject, in the case of consummation of the Reorganization to the approval and adoption of this Agreement and the Reorganization by the shareholders of the Target Fund as described in Section 8(a) hereof. The execution, delivery and performance of this Agreement has been duly authorized by all necessary action of the Target Funds Board of Trustees and this Agreement constitutes a valid and binding contract of the Target Fund enforceable against the Target Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto.
(d) The Target Fund has provided or made available (including by electronic format) to the Acquiring Fund the Target Fund's Annual Report to Shareholders for the most recent fiscal year, and the audited financial statements appearing therein, having been audited by Deloitte & Touche LLP, independent registered public accounting firm, fairly present the financial position of the Target Fund as of the respective dates indicated, in conformity with accounting principles generally accepted in the United States applied on a consistent basis.
(e) An unaudited statement of assets, liabilities and capital of the Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time (as defined in Section 3(e)), will be provided or made available (including by electronic format) to the Acquiring Fund at or prior to the Closing Date for the purpose of determining the number of shares of Acquiring Fund Common Shares to be issued to the Target Fund pursuant to Section 3 of this Agreement; each will fairly present the financial position of the Target Fund as of the Valuation Time (as defined in Section 3(e)) in conformity with generally accepted accounting principles applied on a consistent basis.
(f) There are qualified no material legal, administrative or other proceedings pending or, to do the knowledge of the Target Fund, threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Reorganization. The Target Fund is not charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its Agreement and Declaration of Trust or its Bylaws, each as amended to the date hereof, or a party to any contract or other commitment or obligation, and is not subject to any order or decree which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on its statements of assets, liabilities and capital referred to in subsection (e) above, those incurred in the ordinary course of its business as an investment company and those incurred in connection with the Reorganization. As of the Valuation Time, the Target Fund will advise the Acquiring Fund of all jurisdictions known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in subsection (e) above or to the extent already known by the Acquiring Fund.
(j) The Target Fund has filed, or intends to file, or has obtained extensions to file, all federal, state and local tax returns which they are required to be so qualifiedfiled by it, except jurisdictions and has paid or has obtained extensions to pay, all federal, state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the failure to so qualify would not have a material adverse effect on Upholdings or Closing Date occurs. All tax liabilities of the Target FundFund have been adequately provided for on its books, and no tax deficiency or liability of the Target Fund has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid, up to and including the taxable year in which the Closing Date occurs.
c. The Target Fund, although it is not registered as an investment company with (k) At both the Commission, has been operated since its commencement of operations on March 1st, 2019 in compliance in all material respects with the 1940 Act Valuation Time and the rules and regulations promulgated thereunder.
d. No consent, approval, authorization or order of any court or government authority under U.S. federal lawClosing Date, the Delaware Limited Liability Company ActTarget Fund will have full right, or any state securities lawspower and authority to sell, is required assign, transfer and deliver the Target Fund Investments. As used in this Agreement, the term "Target Fund Investments" shall mean (i) the investments of the Target Fund shown on the schedule of its investments as of the Valuation Time furnished to be obtained for the consummation Acquiring Fund; and (ii) all other assets owned by the Target Fund and Upholdings LLC or liabilities incurred as of the transactions contemplated hereinValuation Time. At the Closing Date, except as have been obtained.
e. The Target Fund’s current offering documents and subject only to the offering documents of obligation to deliver the Target Fund used at all times prior to the date of Investments as contemplated by this Agreement do not or did not at the time of their use include 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 materially misleading.
f. At the Effective TimeAgreement, the Target Fund will have good and marketable title to all of the Assets and full right, powerTarget Fund Investments, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests all of the Target Fund are duly authorized Investments free and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or clear of any agreementencumbrances, indenture, instrument, contract, lease liens or other undertaking to which security interests and without any restrictions upon the Target Fund is a party transfer thereof (except those imposed by the federal or by which it is bound, (iii) state securities laws and those imperfections of title or encumbrances as do not materially detract from the acceleration of any obligation, value or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments use of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability Investments or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes title thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto.
z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Blackrock Strategic Equity Dividend Trust), Agreement and Plan of Reorganization (Blackrock Equity Dividend Trust)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a duly established series of Upholdings LLC, which is a limited liability company corporation duly organized, validly existing and in good standing under in conformity with the laws of the State of DelawareMaryland, with and has the power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the 1940 Act as a non-diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement subject, in the case of consummation of the Reorganization to the approval and adoption of this Agreement by the Target Fund Shareholders as described in Sections 8(a) hereof. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Target Fund's Board of Directors and this Agreement constitutes a valid and binding contract of the Target Fund enforceable against the Target Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto.
(d) The Target Fund has provided or made available (including by electronic format) to the Acquiring Fund the most recent audited annual financial statements of the Target Fund which have been prepared in accordance with US GAAP consistently applied and have been audited by Deloitte & Touche LLP, and such statements fairly present the financial condition and the results of operations of the Target Fund as of the respective dates indicated and the results of operations and changes in net assets for the periods indicated, and there are qualified to do business in all jurisdictions in which they no liabilities of the Target Fund whether actual or contingent and whether or not determined or determinable as of such date that are required to be so qualifieddisclosed but are not disclosed in such statements.
(e) An unaudited statement of assets, except jurisdictions in which capital and liabilities of the failure to so qualify would not have a material adverse effect on Upholdings or Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time (together, the "Target Fund Closing Financial Statements"), will be provided or made available (including by electronic format) to the Acquiring Fund at or prior to the Closing Date, for the purpose of determining the number of Acquiring Fund Shares to be issued to the Target Fund Shareholders pursuant to Section 3 of this Agreement; the Target Fund Closing Financial Statements will fairly present the financial position of the Target Fund as of the Valuation Time in conformity with US GAAP consistently applied.
c. The (f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Target Fund, although threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Reorganization. The Target Fund is not registered charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its charter or by-laws, each as amended to the date hereof, or a party to any contract or other commitment or obligation, and is not subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the Target Fund's Annual Report for the year ended July 31, 2014, those incurred since the date thereof in the ordinary course of its business as an investment company and those incurred in connection with the CommissionReorganization. As of the Valuation Time, has been operated since its commencement the Target Fund will advise the Acquiring Fund of operations on March 1stall known liabilities, 2019 contingent or otherwise, whether or not incurred in compliance the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in all material respects with the 1940 Act Target Fund Closing Financial Statements or to the extent already known by the Acquiring Fund.
(j) At both the Valuation Time and the rules and regulations promulgated thereunder.
d. No consent, approval, authorization or order of any court or government authority under U.S. federal lawClosing Date, the Delaware Limited Liability Company ActTarget Fund will have full right, or any state securities lawspower and authority to sell, is required assign, transfer and deliver the Target Fund Investments. As used in this Agreement, the term "Target Fund Investments" shall mean (i) the investments of the Target Fund shown on the schedule of its investments as of the Valuation Time furnished to be obtained for the consummation Acquiring Fund; and (ii) all other assets owned by the Target Fund and Upholdings LLC or liabilities incurred as of the transactions contemplated hereinValuation Time. At the Closing Date, except as have been obtained.
e. The Target Fund’s current offering documents and subject only to the offering documents of obligation to deliver the Target Fund used at all times prior to the date of Investments as contemplated by this Agreement do not or did not at the time of their use include 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 materially misleading.
f. At the Effective TimeAgreement, the Target Fund will have good and marketable title to all of the Assets and full right, powerTarget Fund Investments, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests all of the Target Fund are duly authorized Investments free and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or clear of any agreementencumbrances, indenture, instrument, contract, lease liens or other undertaking to which security interests and without any restrictions upon the Target Fund is a party transfer thereof (except those imposed by the federal or by which it is bound, (iii) state securities laws and those imperfections of title or encumbrances as do not materially detract from the acceleration of any obligation, value or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments use of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability Investments or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes title thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto.
z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 1 contract
Samples: Merger Agreement (Blackrock Muniholdings New Jersey Quality Fund, Inc.)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLCTarget Fund, Upholdings LLC the Target Fund represents and warrants to Alpha Trust the Trust, on behalf of the Acquiring Fund, as follows:
a. (a) The Target Fund is a duly established series of Upholdings LLC, which is a limited liability company duly organized, statutory trust validly existing and in good standing under the laws of the State of Delaware, with power under its Operating Agreementthe Target Fund’s governing documents, as amended from time to time, to own all of its properties and assets and to carry on its business as it is presently conducted and to carry out the Agreementconducted.
b. Upholdings LLC (b) The Target Fund is a commodity pool organized as a Delaware statutory trust. The Target Fund’s shares are registered with the Commission under the Securities Act of 1933, as amended (the “1933 Act”) and listed on NYSE Arca. Since the time the Target Fund are qualified to do business in all jurisdictions in which they are required to be so qualifiedcommenced operations, except jurisdictions in which the failure to so qualify would not have a material adverse effect on Upholdings or the Target Fund.
c. The Target FundFund has satisfied and will continue to satisfy through the Effective Time, although it is not registered as an investment company with the Commission, has been operated since its commencement of operations on March 1st, 2019 in compliance in all material respects with respects, the 1940 Act and the rules and regulations promulgated thereunderconditions for reliance on all such exemptions from registration.
d. (c) No consent, approval, authorization authorization, or order of any court or government governmental authority under U.S. federal law, the Delaware Limited Liability Company Act, or any state securities laws, is required to be obtained for the consummation by the Target Fund and Upholdings LLC of the transactions contemplated herein, except such as have been obtainedobtained under the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the 1940 Act and such as may be required under state securities laws.
e. (d) The Target Fund’s current offering documents prospectus and the offering documents statement of additional information concerning the Target Fund used at all times prior and the annual report on Form 10-K for the year ended December 31, 2019 (“2019 Annual Report”) and the quarterly and current reports filed by the Target Fund subsequent to the date of this Agreement the 2019 Annual Report do not or did not at the time of their use include any untrue statement of a material fact or omit to state a any 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 materially misleading.
f. At (e) Immediately prior to the Effective Time, the Target Fund will have good and marketable title to the Assets and full right, power, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Trust, on behalf of the Acquiring Fund Fund, will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereofthereof other than such restrictions as might arise under the 1933 Act.
g. All issued and outstanding interests of the (f) The Target Fund are duly authorized and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement by the Target Fund will not result, in: in (i) a violation of Delaware law; (ii) law or a material violation or breach of its Operating the Target Fund’s Declaration of Trust and Trust Agreement, or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Target Fund is a party or by which it is bound, (iiiii) the acceleration of any material obligation, or the imposition of any material penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. (g) All material contracts or other commitments of the Target Fund (other than this Agreement and the certain investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writinginstruments) will terminate with respect to the Target Fund without liability or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. (h) Except as otherwise disclosed to and accepted by the Trust, on behalf of the Acquiring Fund Fund, in writing, no action, suit, litigation or administrative proceeding or formal investigation of or before any court, arbitrator, court or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s its properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might are reasonably likely to form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, decree or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. (i) The financial statements Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Target Fund as of September 30at December 31, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and 2019 are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes thereto) prepared in accordance with GAAP as of such date and not disclosed therein.
l. (j) Since September 30December 31, 20202019, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, or any incurrence by the Target Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund in writing. For the purposes of this Subparagraph 4.1(j), a decline in net asset value per Partnership Interest due to declines in market values of securities held by the Target Fund, the discharge of the Target Fund’s liabilities, or the redemption of the Target Fund’s shares by the Target Fund Shareholders shall not constitute a material adverse change. The Managing Owner knows of no facts that are reasonably likely to form the basis of a conclusion that the Target Fund may incur a contingent liability in the future.
m. (k) At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, returns and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports reports, if any, shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i(l) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding shares of the Target Fund Interests willFund, at the Effective Timetime of Closing, be held by the persons and in the amounts set forth in the records of Upholdings, LLCthe State Street Bank and Trust Company, on behalf of the Target Fund, as provided in paragraph Paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the shares of the Target Fund InterestsFund, nor is there outstanding any security convertible into any of the Target Fund’s shares.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f(m) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member Owner, on behalf of the Target Fund, and, subject to the approval of the Managing Member of Target Fund Shareholders (only with respect to those obligations under this Agreement that are contingent on the Target FundFund Shareholder approval), this Agreement will constitute a valid and binding obligation of the Target Fund, Fund enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. n) The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any and other document documents filed or to be filed with any federalFederal, state, state or local regulatory authority (including any national securities exchange or the Financial Industry Regulatory Authority (“FINRA”)), which 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 Federal securities and other laws and regulations thereunder applicable thereto; provided, however, that the representations and warranties of this Subparagraph (n) shall not apply to statements in or omissions from such materials made in reliance upon and in conformity with information that was furnished by the Acquiring Fund for use therein.
z. The Target Fund is not under (o) All materials used in connection with obtaining the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records consent of the Target Fund are true Shareholders to the transaction contemplated by this Agreement will, through and correct in all at the Effective Time, not contain any untrue statement of a material respects and contain no fact or omit to state a material omissions with respect to information fact required to be maintained stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not materially misleading; provided, however, that the laws, rules representations and regulations applicable warranties of this Subparagraph (o) shall not apply to statements in or omissions from such materials made in reliance upon and in conformity with information that was furnished by the Target FundAcquiring Fund for use therein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (WisdomTree Continuous Commodity Index Fund)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to the Acquiring The Target Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust the Surviving Fund that the statements contained in this Section 2.2 are correct and complete in all material respects as followsof the execution of this Agreement. The Target Fund represents and warrants to, and agrees with, the Surviving Fund that:
a. (a) The Target Fund is a statutory trust duly established series of Upholdings LLC, which is a limited liability company duly organized, organized and validly existing and in good standing under the laws of the State of Delaware and is in good standing with the Secretary of State of Delaware, with and has the power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry on its business as it is presently now being conducted and to carry out this Agreement. Each of the Target Fund’s wholly-owned and majority-owned subsidiaries are duly formed and validly existing under the laws of the State of its organization and is in good standing in the State of its organization, and has the power to own all of its assets and to carry on its business as it is now being conducted and to carry out this Agreement, as applicable.
b. Upholdings LLC (b) The Target Fund is a non-diversified, closed-end management investment company that has elected to be regulated as BDC under the 1940 Act, and such election has not been revoked or rescinded and is in full force and effect. From the inception of its operations to the date hereof, the Target Fund are qualified to do business in all jurisdictions in which they are required to be so qualified, except jurisdictions in which the failure to so qualify would not have a material adverse effect on Upholdings or the Target Fund.
c. The Target Fund, although it is not registered as an investment company with the Commission, has been operated since its commencement of operations on March 1st, 2019 in compliance in all material respects with the applicable provisions of the 1940 Act and the rules promulgated thereunder by the SEC, except as previously disclosed in writing to the Surviving Fund. The Target Fund’s investment operations from the inception of its operations to the date hereof have been in compliance in all material respects with the investment policies and regulations promulgated thereunderinvestment restrictions set forth in its applicable prospectus, annual report to shareholders, if applicable, or other public document filed with the SEC, except as previously disclosed in writing to the Surviving Fund.
d. (c) No consent, approval, authorization or order of any court or government governmental authority under U.S. federal law, the Delaware Limited Liability Company Act, or any state securities laws, is required to be obtained for the consummation by the Target Fund and Upholdings LLC of the transactions contemplated herein, except (i) such as have been obtainedobtained or will be obtained under the 1933 Act, the 1934 Act, and the 1940 Act, and (ii) such as may be required by state securities laws.
e. (d) The Target Fund’s current offering documents and the offering documents of the Target Fund used at all times prior to the date of this Agreement do not or did not at the time of their use include 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 materially misleading.
f. At the Effective Time, the Target Fund will have good and marketable title to the Assets and full right, power, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests of the Target Fund are duly authorized and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currentlynot, and the execution, delivery and performance of this Agreement by the Target Fund will not result, in: (i) a in violation of the laws of the State of Delaware law; (ii) a violation or breach of its Operating Agreementthe Second Amended and Restated Agreement and Declaration of Trust, as amended, of the Target Fund or the Bylaws, as amended, of the Target Fund, or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Target Fund is a party or by which it is bound, (iii) and the execution, delivery and performance of this Agreement by the Target Fund will not result in the acceleration of any obligation, or the imposition of any fee, payment or penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, except for those amounts paid or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated payable with respect to the Target Fund’s required termination of contracts, as listed on Schedule A-2.
j. Except as otherwise (e) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement has been duly authorized by all necessary action of the Target Fund Board, and this Agreement constitutes a valid and binding contract enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(f) At the Closing Date, the Target Fund will have good and marketable title to its assets held immediately before the Closing Date, which are free and clear of any material liens, pledges or encumbrances except those previously disclosed to and accepted by the Acquiring Fund in writing, no action, suit, Surviving Fund.
(g) No material litigation or administrative proceeding or investigation of or before any court, arbitrator, court or governmental body is presently pending or, or to its knowledge, knowledge threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets thatheld by it, if adversely determined, would materially and adversely affect its financial condition or the conduct of its businessapplicable. The Target Fund knows of no facts which that might form the basis for the institution of such proceedings which would materially and adversely affect its business and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, decree or judgment of any court or governmental body that which materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. (h) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the Target Fund’s filings with the SEC or that have not otherwise been disclosed to the Surviving Fund prior to the date hereof.
(i) The financial statements consolidated statement of assets and liabilities and statement of operations of the Target Fund as of September 30March 31, 2020 have been 2022 and for the period from January 27, 2022 (date of inception) through March 31, 2022, including the related notes, audited by Sxxxxx Jxxxxxxx PricewaterhouseCoopers LLP, an independent registered public accounting firmfirm to the Target Fund, and are the consolidated statement of assets and liabilities as of September 30, 2022 and statements of operations, changes in accordance with accounting principles generally accepted in net assets and cash flows of the United States Target Fund for the period from January 27, 2022 (date of America (“GAAP”inception) consistently appliedthrough September 30, and such statements (2022, including the related notes, copies of which have been furnished to the Acquiring Surviving Fund) , fairly present fairly, in all material respects, respects the financial condition condition, results of operations, cash flows and changes in net assets of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes thereto) for such period then ended in accordance with GAAP as consistently applied, and the Target Fund has no known liabilities of such date not disclosed therein.
l. Since a material amount, contingent or otherwise, other than those shown on the statements of assets and liabilities referred to above, or those incurred in the ordinary course of its business since September 30, 20202022 and those incurred or to be incurred in connection with the Merger.
(j) On the date hereof and as of the Closing Date, there has not been any material adverse change in the Target Fund’s financial conditionFund will advise the Surviving Fund in writing of all known material liabilities, assetscontingent or otherwise, liabilities whether or business, other than changes occurring not incurred in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund existing or accrued. For purposes of this Section 2.2(j), customary distributions, changes in writing.
m. At the Effective Timeportfolio securities, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports a decline in net asset value per share of the Target Surviving Fund required by law due to have been filed by such date (including any extensions, if any) shall have been filed and are or will be correct declines in all material respects, and all Federal and other taxes shown as due or required to be shown as due on said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation market values of securities in the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within ’s portfolio or the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis discharge of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) liabilities will not on the Closing Date contain any untrue statement of constitute a material fact or omit to state a material fact necessary to make the statements therein not misleadingadverse change.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto.
z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 1 contract
Samples: Merger Agreement (AG Twin Brook Capital Income Fund)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a statutory trust duly established series of Upholdings LLC, which is a limited liability company duly organizedformed, validly existing and in good standing under in conformity with the laws of Delaware Statutory Trust Act (the State of Delaware“DSTA”), with and has the power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the 1940 Act as a non-diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement subject, in the case of consummation of the Reorganization to the approval and adoption of this Agreement by the Target Fund Shareholders as described in Sections 8(a) hereof. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Target Fund's Board of Trustees and this Agreement constitutes a valid and binding contract of the Target Fund enforceable against the Target Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto.
(d) The Target Fund has provided or made available (including by electronic format) to the Acquiring Fund the most recent audited annual financial statements of the Target Fund which have been prepared in accordance with US GAAP consistently applied and have been audited by Deloitte & Touche LLP, and such statements fairly present the financial condition and the results of operations of the Target Fund as of the respective dates indicated and the results of operations and changes in net assets for the periods indicated, and there are qualified to do business in all jurisdictions in which they no liabilities of the Target Fund whether actual or contingent and whether or not determined or determinable as of such date that are required to be so qualifieddisclosed but are not disclosed in such statements.
(e) An unaudited statement of assets, except jurisdictions in which capital and liabilities of the failure to so qualify would not have a material adverse effect on Upholdings or Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time (together, the "Target Fund Closing Financial Statements"), will be provided or made available (including by electronic format) to the Acquiring Fund at or prior to the Closing Date, for the purpose of determining the number of Acquiring Fund Shares to be issued to the Target Fund Shareholders pursuant to Section 3 of this Agreement; the Target Fund Closing Financial Statements will fairly present the financial position of the Target Fund as of the Valuation Time in conformity with US GAAP consistently applied.
c. The (f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Target Fund, although threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Reorganization. The Target Fund is not registered charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its agreement and declaration of trust or by-laws, each as amended to the date hereof, or a party to any contract or other commitment or obligation, and is not subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the Target Fund's Annual Report for the year ended April 30, 2014, those incurred since the date thereof in the ordinary course of its business as an investment company and those incurred in connection with the CommissionReorganization. As of the Valuation Time, has been operated since its commencement the Target Fund will advise the Acquiring Fund of operations on March 1stall known liabilities, 2019 contingent or otherwise, whether or not incurred in compliance the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in all material respects with the 1940 Act Target Fund Closing Financial Statements or to the extent already known by the Acquiring Fund.
(j) At both the Valuation Time and the rules and regulations promulgated thereunder.
d. No consent, approval, authorization or order of any court or government authority under U.S. federal lawClosing Date, the Delaware Limited Liability Company ActTarget Fund will have full right, or any state securities lawspower and authority to sell, is required assign, transfer and deliver the Target Fund Investments. As used in this Agreement, the term "Target Fund Investments" shall mean (i) the investments of the Target Fund shown on the schedule of its investments as of the Valuation Time furnished to be obtained for the consummation Acquiring Fund; and (ii) all other assets owned by the Target Fund and Upholdings LLC or liabilities incurred as of the transactions contemplated hereinValuation Time. At the Closing Date, except as have been obtained.
e. The Target Fund’s current offering documents and subject only to the offering documents of obligation to deliver the Target Fund used at all times prior to the date of Investments as contemplated by this Agreement do not or did not at the time of their use include 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 materially misleading.
f. At the Effective TimeAgreement, the Target Fund will have good and marketable title to all of the Assets and full right, powerTarget Fund Investments, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests all of the Target Fund are duly authorized Investments free and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or clear of any agreementencumbrances, indenture, instrument, contract, lease liens or other undertaking to which security interests and without any restrictions upon the Target Fund is a party transfer thereof (except those imposed by the federal or by which it is bound, (iii) state securities laws and those imperfections of title or encumbrances as do not materially detract from the acceleration of any obligation, value or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments use of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability Investments or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes title thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto.
z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 1 contract
Samples: Merger Agreement (Blackrock Muniyield Pennsylvania Quality Fund)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a statutory trust duly established series of Upholdings LLC, which is a limited liability company duly organizedformed, validly existing and in good standing under in conformity with the laws of DSTA, and has the State of Delaware, with power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the 1940 Act as a non-diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement subject, in the case of consummation of the Reorganization to the approval and adoption of this Agreement by the Target Fund Shareholders as described in Section 8(a) hereof. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Target Fund's Board of Trustees and this Agreement constitutes a valid and binding contract of the Target Fund enforceable against the Target Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto.
(d) The Target Fund has provided or made available (including by electronic format) to the Acquiring Fund the most recent audited annual financial statements of the Target Fund which have been prepared in accordance with US GAAP consistently applied and have been audited by Deloitte & Touche LLP, and such statements fairly present the financial condition and the results of operations of the Target Fund as of the respective dates indicated and the results of operations and changes in net assets for the periods indicated, and there are qualified to do business in all jurisdictions in which they no liabilities of the Target Fund whether actual or contingent and whether or not determined or determinable as of such date that are required to be so qualifieddisclosed but are not disclosed in such statements.
(e) An unaudited statement of assets, except jurisdictions in which capital and liabilities of the failure to so qualify would not have a material adverse effect on Upholdings or Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time (together, the "Target Fund Closing Financial Statements"), will be provided or made available (including by electronic format) to the Acquiring Fund at or prior to the Closing Date, for the purpose of determining the number of Acquiring Fund Shares to be issued to the Target Fund Shareholders pursuant to Section 3 of this Agreement; the Target Fund Closing Financial Statements will fairly present the financial position of the Target Fund as of the Valuation Time in conformity with US GAAP consistently applied.
c. The (f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Target Fund, although threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Reorganization. The Target Fund is not registered charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its agreement and declaration of trust or bylaws, each as amended to the date hereof, or a party to any contract or other commitment or obligation, and is not subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the Target Fund's Annual Report for the fiscal year ended August 31, 2015, those incurred since the date thereof in the ordinary course of its business as an investment company and those incurred in connection with the CommissionReorganization. As of the Valuation Time, has been operated since its commencement the Target Fund will advise the Acquiring Fund of operations on March 1stall known liabilities, 2019 contingent or otherwise, whether or not incurred in compliance the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in all material respects with the 1940 Act Target Fund Closing Financial Statements or to the extent already known by the Acquiring Fund.
(j) At both the Valuation Time and the rules and regulations promulgated thereunder.
d. No consent, approval, authorization or order of any court or government authority under U.S. federal lawClosing Date, the Delaware Limited Liability Company ActTarget Fund will have full right, or any state securities lawspower and authority to sell, is required assign, transfer and deliver the Target Fund Investments. As used in this Agreement, the term "Target Fund Investments" shall mean (i) the investments of the Target Fund shown on the schedule of its investments as of the Valuation Time furnished to be obtained for the consummation Acquiring Fund; and (ii) all other assets owned by the Target Fund and Upholdings LLC or liabilities incurred as of the transactions contemplated hereinValuation Time. At the Closing Date, except as have been obtained.
e. The Target Fund’s current offering documents and subject only to the offering documents of obligation to deliver the Target Fund used at all times prior to the date of Investments as contemplated by this Agreement do not or did not at the time of their use include 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 materially misleading.
f. At the Effective TimeAgreement, the Target Fund will have good and marketable title to all of the Assets and full right, powerTarget Fund Investments, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests all of the Target Fund are duly authorized Investments free and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or clear of any agreementencumbrances, indenture, instrument, contract, lease liens or other undertaking to which security interests and without any restrictions upon the Target Fund is a party transfer thereof (except those imposed by the federal or by which it is bound, (iii) state securities laws and those imperfections of title or encumbrances as do not materially detract from the acceleration of any obligation, value or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments use of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability Investments or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes title thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto.
z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 1 contract
Samples: Merger Agreement (Blackrock Municipal Income Investment Trust)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a duly established series of Upholdings LLC, which is a limited liability company statutory trust duly organized, validly existing and in good standing under in conformity with the laws of the State of Delaware, with and has the power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the Investment Company Act of 1940 as a diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement has been duly authorized by all necessary action of the Target Funds Board of Trustees and this Agreement constitutes a valid and binding contract of the Target Fund enforceable against the Target Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto.
(d) The Target Fund has provided or made available (including by electronic format) to the Acquiring Fund the Target Fund's Annual Report to Shareholders for the fiscal year ended October 31, 2008, and the audited financial statements appearing therein, having been audited by , independent registered public accounting firm, fairly present the financial position of the Target Fund as of the respective dates indicated, in conformity with accounting principles generally accepted in the United States applied on a consistent basis.
(e) An unaudited statement of assets, liabilities and capital of the Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time (as defined in Section 3(e)), will be provided or made available (including by electronic format) to the Acquiring Fund at or prior to the Closing Date for the purpose of determining the number of shares of Acquiring Fund Common Shares to be issued to the Target Fund pursuant to Section 3 of this Agreement; each will fairly present the financial position of the Target Fund as of the Valuation Time (as defined in Section 3(e)) in conformity with generally accepted accounting principles applied on a consistent basis.
(f) There are qualified no material legal, administrative or other proceedings pending or, to do the knowledge of the Target Fund, threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Reorganization. The Target Fund is not charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its Agreement and Declaration of Trust or its Bylaws, each as amended to the date hereof, or a party to any contract or other commitment or obligation, and is not subject to any order or decree which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on its statements of assets, liabilities and capital referred to in subsection (e) above, those incurred in the ordinary course of its business as an investment company and those incurred in connection with the Reorganization. As of the Valuation Time, the Target Fund will advise the Acquiring Fund of all jurisdictions known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in subsection (e) above or to the extent already known by the Acquiring Fund.
(j) The Target Fund has filed, or intends to file, or has obtained extensions to file, all federal, state and local tax returns which they are required to be so qualifiedfiled by it, except jurisdictions and has paid or has obtained extensions to pay, all federal, state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the failure to so qualify would not have a material adverse effect on Upholdings or Closing Date occurs. All tax liabilities of the Target FundFund have been adequately provided for on its books, and no tax deficiency or liability of the Target Fund has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid, up to and including the taxable year in which the Closing Date occurs.
c. The Target Fund, although it is not registered as an investment company with (k) At both the Commission, has been operated since its commencement of operations on March 1st, 2019 in compliance in all material respects with the 1940 Act Valuation Time and the rules and regulations promulgated thereunder.
d. No consent, approval, authorization or order of any court or government authority under U.S. federal lawClosing Date, the Delaware Limited Liability Company ActTarget Fund will have full right, or any state securities lawspower and authority to sell, is required assign, transfer and deliver the Target Fund Investments. As used in this Agreement, the term "Target Fund Investments" shall mean (i) the investments of the Target Fund shown on the schedule of its investments as of the Valuation Time furnished to be obtained for the consummation Acquiring Fund; and (ii) all other assets owned by the Target Fund and Upholdings LLC or liabilities incurred as of the transactions contemplated hereinValuation Time. At the Closing Date, except as have been obtained.
e. The Target Fund’s current offering documents and subject only to the offering documents of obligation to deliver the Target Fund used at all times prior to the date of Investments as contemplated by this Agreement do not or did not at the time of their use include 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 materially misleading.
f. At the Effective TimeAgreement, the Target Fund will have good and marketable title to all of the Assets and full right, powerTarget Fund Investments, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests all of the Target Fund are duly authorized Investments free and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or clear of any agreementencumbrances, indenture, instrument, contract, lease liens or other undertaking to which security interests and without any restrictions upon the Target Fund is a party transfer thereof (except those imposed by the federal or by which it is bound, (iii) state securities laws and those imperfections of title or encumbrances as do not materially detract from the acceleration of any obligation, value or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments use of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability Investments or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes title thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto.
z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (BlackRock Global Opportunities Equity Trust)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a duly established series of Upholdings LLC, which is a limited liability company corporation duly organized, validly existing and in good standing under in conformity with the laws of the State of DelawareMaryland, with and has the power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the 1940 Act as a diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement subject, in the case of consummation of the Reorganization to the approval and adoption of this Agreement and the Reorganization by the Target Fund Shareholders as described in Section 8(a) hereof. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Target Fund’s Board of Directors and this Agreement constitutes a valid and binding contract of the Target Fund enforceable against the Target Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(d) The Target Fund has provided or made available (including by electronic format) to the Acquiring Fund the most recent audited annual financial statements of the Target Fund which have been prepared in accordance with US GAAP consistently applied and have been audited by Deloitte & Touche LLP, and such statements fairly present the financial condition and the results of operations of the Target Fund as of the respective dates indicated and the results of operations and changes in net assets for the periods indicated, and there are qualified to do business in all jurisdictions in which they no liabilities of the Target Fund whether actual or contingent and whether or not determined or determinable as of such date that are required to be so qualifieddisclosed but are not disclosed in such statements.
(e) An unaudited statement of assets, except jurisdictions in which capital and liabilities of the failure to so qualify would not have a material adverse effect on Upholdings or Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time (as defined in Section 3(g) herein) (together, the “Target Fund Closing Financial Statements”), will be provided or made available (including by electronic format) to the Acquiring Fund at or prior to the Effective Time, for the purpose of determining the number of Acquiring Fund Common Shares to be issued to the Target Fund Shareholders pursuant to Section 3 of this Agreement; the Target Fund Closing Financial Statements will fairly present the financial position of the Target Fund as of the Valuation Time in conformity with US GAAP consistently applied.
c. The (f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Target Fund, although threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Reorganization. The Target Fund is not registered charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its charter or by-laws, each as amended to the date hereof, or a party to any contract or other commitment or obligation, and is not subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the Target Fund’s Semi-Annual Report for the period ended February 28, 2014, those incurred since the date thereof in the ordinary course of its business as an investment company and those incurred in connection with the CommissionReorganization. As of the Valuation Time, has been operated since its commencement the Target Fund will advise the Acquiring Fund of operations on March 1stall known liabilities, 2019 contingent or otherwise, whether or not incurred in compliance the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in all material respects with the 1940 Act and Target Fund Closing Financial Statements or to the rules and regulations promulgated thereunderextent already known by the Acquiring Fund.
d. (j) No consent, approval, authorization or order of any court or government governmental authority under U.S. federal law, the Delaware Limited Liability Company Act, or any state securities laws, is required to be obtained for the consummation by the Target Fund and Upholdings LLC of the transactions contemplated hereinReorganization, except such as may be required under the 1933 Act, the 1934 Act and the 1940 Act or state securities laws (which term as used herein shall include the laws of the District of Columbia and Puerto Rico) or the rules of the New York Stock Exchange, each of which will have been obtainedobtained on or prior to the Closing Date.
e. (k) The Target Fund’s current offering documents and N-14 Registration Statement, on its effective date, at the offering documents time of the Target Fund used at all times prior Shareholders meeting called to vote on this Agreement and on the Closing Date, insofar as it relates to the date Target Fund (i) complied or will comply in all material respects with the provisions of this Agreement do the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and (ii) did not or did will not at the time of their use include contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, therein in light of the circumstances under which they were made, not materially misleading.
f. At the Effective Time, the Target Fund will have good and marketable title to the Assets and full right, power, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests of the Target Fund are duly authorized and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, ; and the execution, delivery and performance of this Agreement Joint Proxy Statement/Prospectus included therein did not or will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Target Fund is a party or by which it is bound, (iii) the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
v. The execution; provided, delivery however, that the representations and performance of warranties in this Agreement will have been duly authorized prior subsection shall apply only to statements in or omissions from the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid N-14 Registration Statement made in reliance upon and binding obligation of the Target Fund, enforceable in accordance conformity with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for ordersthe N-14 Registration Statement.
(l) The Target Fund has filed, registration statements or proxy materials intends to file, or for use in any other document filed or has obtained extensions to file, all federal, state and local tax returns which are required to be filed with any by it, and has paid or has obtained extensions to pay, all federal, statestate and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. All tax liabilities of the Target Fund have been adequately provided for on its books, and no tax deficiency or liability of the Target Fund has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by any state or local regulatory tax authority (for taxes in excess of those already paid, up to and including any national securities exchange or FINRA), the taxable year in which 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 and other laws and regulations applicable theretoClosing Date occurs.
z. (m) The Target Fund is not under authorized to issue 200,000,000 shares of common stock, par value $0.01 per share (the jurisdiction of a court in a Title 11 “Target Fund Common Shares”). Each outstanding Target Fund Common Share is fully paid and nonassessable and has full voting rights, except as provided by the Target Fund’s charter or similar case within the meaning of Section 368(a)(3)(Aapplicable law.
(n) All of the Codeissued and outstanding Target Fund Common Shares were offered for sale and sold in conformity with all applicable federal and state securities laws.
aa. (o) The books and records of the Target Fund made available to the Acquiring Fund and/or its counsel are substantially true and correct in all material respects and contain no material misstatements or omissions with respect to information required to be maintained under the laws, rules and regulations applicable to operations of the Target Fund.
(p) The Target Fund has elected to qualify and has qualified as a RIC within the meaning of Section 851 of the Code for each of its taxable years since its inception, and the Target Fund has satisfied the distribution requirements imposed by Section 852 of the Code to maintain RIC status for each of its taxable years.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a statutory trust duly established series of Upholdings LLC, which is a limited liability company duly organizedformed, validly existing and in good standing under in conformity with the laws of Delaware Statutory Trust Act (the State of Delaware“DSTA”), with and has the power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the 1940 Act as a non-diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement subject, in the case of consummation of the Reorganization to the approval and adoption of this Agreement by the Target Fund Shareholders as described in Section 8(a) hereof. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Target Fund’s Board of Trustees and this Agreement constitutes a valid and binding contract of the Target Fund enforceable against the Target Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(d) The Target Fund has provided or made available (including by electronic format) to the Acquiring Fund the most recent audited annual financial statements of the Target Fund which have been prepared in accordance with US GAAP consistently applied and have been audited by Deloitte & Touche LLP, and such statements fairly present the financial condition and the results of operations of the Target Fund as of the respective dates indicated and the results of operations and changes in net assets for the periods indicated, and there are qualified to do business in all jurisdictions in which they no liabilities of the Target Fund whether actual or contingent and whether or not determined or determinable as of such date that are required to be so qualifieddisclosed but are not disclosed in such statements.
(e) An unaudited statement of assets, except jurisdictions in which capital and liabilities of the failure to so qualify would not have a material adverse effect on Upholdings or Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time (together, the “Target Fund Closing Financial Statements”), will be provided or made available (including by electronic format) to the Acquiring Fund at or prior to the Closing Date, for the purpose of determining the number of Acquiring Fund Shares to be issued to the Target Fund Shareholders pursuant to Section 3 of this Agreement; the Target Fund Closing Financial Statements will fairly present the financial position of the Target Fund as of the Valuation Time in conformity with US GAAP consistently applied.
c. The (f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Target Fund, although threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Reorganization. The Target Fund is not registered charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its agreement and declaration of trust or bylaws, each as amended to the date hereof, or a party to any contract or other commitment or obligation, and is not subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the Target Fund’s Annual Report for the fiscal year ended August 31, 2017, those incurred since the date thereof in the ordinary course of its business as an investment company and those incurred in connection with the CommissionReorganization. As of the Valuation Time, has been operated since its commencement the Target Fund will advise the Acquiring Fund of operations on March 1stall known liabilities, 2019 contingent or otherwise, whether or not incurred in compliance the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in all material respects with the 1940 Act Target Fund Closing Financial Statements or to the extent already known by the Acquiring Fund.
(j) At both the Valuation Time and the rules and regulations promulgated thereunder.
d. No consent, approval, authorization or order of any court or government authority under U.S. federal lawClosing Date, the Delaware Limited Liability Company ActTarget Fund will have full right, or any state securities lawspower and authority to sell, is required assign, transfer and deliver the Target Fund Investments. As used in this Agreement, the term “Target Fund Investments” shall mean (i) the investments of the Target Fund shown on the schedule of its investments as of the Valuation Time furnished to be obtained for the consummation Acquiring Fund; and (ii) all other assets owned by the Target Fund and Upholdings LLC or liabilities incurred as of the transactions contemplated hereinValuation Time. At the Closing Date, except as have been obtained.
e. The Target Fund’s current offering documents and subject only to the offering documents of obligation to deliver the Target Fund used at all times prior to the date of Investments as contemplated by this Agreement do not or did not at the time of their use include 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 materially misleading.
f. At the Effective TimeAgreement, the Target Fund will have good and marketable title to all of the Assets and full right, powerTarget Fund Investments, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests all of the Target Fund are duly authorized Investments free and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or clear of any agreementencumbrances, indenture, instrument, contract, lease liens or other undertaking to which security interests and without any restrictions upon the Target Fund is a party transfer thereof (except those imposed by the federal or by which it is bound, (iii) state securities laws and those imperfections of title or encumbrances as do not materially detract from the acceleration of any obligation, value or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments use of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability Investments or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes title thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto.
z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Blackrock Muniyield New Jersey Fund, Inc.)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a statutory trust duly established series of Upholdings LLC, which is a limited liability company duly organizedformed, validly existing and in good standing under in conformity with the laws of Delaware Statutory Trust Act (the State of Delaware“DSTA”), with and has the power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the 1940 Act as a non-diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement subject, in the case of consummation of the Reorganization to the approval and adoption of this Agreement by the Target Fund Shareholders as described in Section 8(a) hereof. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Target Fund’s Board of Trustees and this Agreement constitutes a valid and binding contract of the Target Fund enforceable against the Target Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(d) The Target Fund has provided or made available (including by electronic format) to the Acquiring Fund the most recent audited annual financial statements of the Target Fund which have been prepared in accordance with US GAAP consistently applied and have been audited by Deloitte & Touche LLP, and such statements fairly present the financial condition and the results of operations of the Target Fund as of the respective dates indicated and the results of operations and changes in net assets for the periods indicated, and there are qualified to do business in all jurisdictions in which they no liabilities of the Target Fund whether actual or contingent and whether or not determined or determinable as of such date that are required to be so qualifieddisclosed but are not disclosed in such statements.
(e) An unaudited statement of assets, except jurisdictions in which capital and liabilities of the failure to so qualify would not have a material adverse effect on Upholdings or Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time (together, the “Target Fund Closing Financial Statements”), will be provided or made available (including by electronic format) to the Acquiring Fund at or prior to the Closing Date, for the purpose of determining the number of Acquiring Fund Shares to be issued to the Target Fund Shareholders pursuant to Section 3 of this Agreement; the Target Fund Closing Financial Statements will fairly present the financial position of the Target Fund as of the Valuation Time in conformity with US GAAP consistently applied.
c. The (f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Target Fund, although threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Reorganization. The Target Fund is not registered charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its agreement and declaration of trust or bylaws, each as amended to the date hereof, or a party to any contract or other commitment or obligation, and is not subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the Target Fund’s Annual Report for the fiscal year ended July 31, 2017, those incurred since the date thereof in the ordinary course of its business as an investment company and those incurred in connection with the CommissionReorganization. As of the Valuation Time, has been operated since its commencement the Target Fund will advise the Acquiring Fund of operations on March 1stall known liabilities, 2019 contingent or otherwise, whether or not incurred in compliance the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in all material respects with the 1940 Act Target Fund Closing Financial Statements or to the extent already known by the Acquiring Fund.
(j) At both the Valuation Time and the rules and regulations promulgated thereunder.
d. No consent, approval, authorization or order of any court or government authority under U.S. federal lawClosing Date, the Delaware Limited Liability Company ActTarget Fund will have full right, or any state securities lawspower and authority to sell, is required assign, transfer and deliver the Target Fund Investments. As used in this Agreement, the term “Target Fund Investments” shall mean (i) the investments of the Target Fund shown on the schedule of its investments as of the Valuation Time furnished to be obtained for the consummation Acquiring Fund; and (ii) all other assets owned by the Target Fund and Upholdings LLC or liabilities incurred as of the transactions contemplated hereinValuation Time. At the Closing Date, except as have been obtained.
e. The Target Fund’s current offering documents and subject only to the offering documents of obligation to deliver the Target Fund used at all times prior to the date of Investments as contemplated by this Agreement do not or did not at the time of their use include 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 materially misleading.
f. At the Effective TimeAgreement, the Target Fund will have good and marketable title to all of the Assets and full right, powerTarget Fund Investments, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests all of the Target Fund are duly authorized Investments free and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or clear of any agreementencumbrances, indenture, instrument, contract, lease liens or other undertaking to which security interests and without any restrictions upon the Target Fund is a party transfer thereof (except those imposed by the federal or by which it is bound, (iii) state securities laws and those imperfections of title or encumbrances as do not materially detract from the acceleration of any obligation, value or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments use of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability Investments or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes title thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto.
z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Blackrock Muniyield New Jersey Fund, Inc.)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a duly established series of Upholdings LLC, which is a limited liability company corporation duly organized, validly existing and in good standing under in conformity with the laws of the State of DelawareMaryland, with and has the power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the 1940 Act as a non-diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement subject, in the case of consummation of the Reorganization to the approval and adoption of this Agreement by the Target Fund Shareholders as described in Sections 8(a) hereof. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Target Fund's Board of Directors and this Agreement constitutes a valid and binding contract of the Target Fund enforceable against the Target Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto.
(d) The Target Fund has provided or made available (including by electronic format) to the Acquiring Fund the most recent audited annual financial statements of the Target Fund which have been prepared in accordance with US GAAP consistently applied and have been audited by Deloitte & Touche LLP, and such statements fairly present the financial condition and the results of operations of the Target Fund as of the respective dates indicated and the results of operations and changes in net assets for the periods indicated, and there are qualified to do business in all jurisdictions in which they no liabilities of the Target Fund whether actual or contingent and whether or not determined or determinable as of such date that are required to be so qualifieddisclosed but are not disclosed in such statements.
(e) An unaudited statement of assets, except jurisdictions in which capital and liabilities of the failure to so qualify would not have a material adverse effect on Upholdings or Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time (together, the "Target Fund Closing Financial ----------------------------- Statements"), will be provided or made available (including by electronic ---------- format) to the Acquiring Fund at or prior to the Closing Date, for the purpose of determining the number of Acquiring Fund Shares to be issued to the Target Fund Shareholders pursuant to Section 3 of this Agreement; the Target Fund Closing Financial Statements will fairly present the financial position of the Target Fund as of the Valuation Time in conformity with US GAAP consistently applied.
c. The (f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Target Fund, although threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Reorganization. The Target Fund is not registered charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its charter or by-laws, each as amended to the date hereof, or a party to any contract or other commitment or obligation, and is not subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the Target Fund's Semi-Annual Report for the six months ended January 31, 2015, those incurred since the date thereof in the ordinary course of its business as an investment company and those incurred in connection with the CommissionReorganization. As of the Valuation Time, has been operated since its commencement the Target Fund will advise the Acquiring Fund of operations on March 1stall known liabilities, 2019 contingent or otherwise, whether or not incurred in compliance the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in all material respects with the 1940 Act Target Fund Closing Financial Statements or to the extent already known by the Acquiring Fund.
(j) At both the Valuation Time and the rules Closing Date, the Target Fund will have full right, power and regulations promulgated thereunderauthority to sell, assign, transfer and deliver the Target Fund Investments. As used in this Agreement, the term "Target Fund ----------- Investments" shall mean (i) the investments of the Target Fund shown on the ----------- schedule of its investments as of the Valuation Time furnished to the Acquiring Fund; and (ii) all other assets owned by the Target Fund or liabilities incurred as of the Valuation Time. At the Closing Date, subject only to the obligation to deliver the Target Fund Investments as contemplated by this Agreement, the Target Fund will have good and marketable title to all of the Target Fund Investments, and the Acquiring Fund will acquire all of the Target Fund Investments free and clear of any encumbrances, liens or security interests and without any restrictions upon the transfer thereof (except those imposed by the federal or state securities laws and those imperfections of title or encumbrances as do not materially detract from the value or use of the Target Fund Investments or materially affect title thereto).
d. (k) No consent, approval, authorization or order of any court or government governmental authority under U.S. federal law, the Delaware Limited Liability Company Act, or any state securities laws, is required to be obtained for the consummation by the Target Fund and Upholdings LLC of the transactions contemplated hereinReorganization, except such as may be required under the 1933 Act, the 1934 Act and the 1940 Act or state securities laws (which term as used herein shall include the laws of the District of Columbia and Puerto Rico) or the rules of the New York Stock Exchange, each of which will have been obtainedobtained on or prior to the Closing Date.
e. (l) The Target Fund’s current offering documents and N-14 Registration Statement, on its effective date, at the offering documents time of the Target Fund used at all times prior Shareholders meeting called to vote on this Agreement and on the Closing Date, insofar as it relates to the date Target Fund (i) complied or will comply in all material respects with the provisions of this Agreement do the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and (ii) did not or did will not at the time of their use include contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, therein in light of the circumstances under which they were made, not materially misleading.
f. At the Effective Time, the Target Fund will have good and marketable title to the Assets and full right, power, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests of the Target Fund are duly authorized and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, ; and the execution, delivery and performance of this Agreement Joint Proxy Statement/Prospectus included therein did not or will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Target Fund is a party or by which it is bound, (iii) the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
v. The execution; provided, delivery however, that the representations and performance of -------- ------- warranties in this Agreement will have been duly authorized prior subsection shall apply only to statements in or omissions from the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid N-14 Registration Statement made in reliance upon and binding obligation of the Target Fund, enforceable in accordance conformity with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications the N-14 Registration Statement.
(m) The Preferred Shares Proxy Statement for orders, registration statements or proxy materials or for use the holders of the Target Fund VRDP Shares (as defined in any other document filed or section 2(o) herein) ("Target Fund VRDP ---------------- Holders") with respect to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which may be necessary in connection with the transactions contemplated herebyherein, shall be accurate and complete in all material respects any ------- supplement or amendment thereto or to the documents included or incorporated by reference therein, at the time of the shareholder meeting called to vote on this Agreement and shall on the Closing Date, insofar as it relates to the Target Fund, (i) complied or will comply in all material respects with federal securities the provisions of the 1934 Act and other laws the 1940 Act and the rules and regulations applicable theretothereunder and (ii) did not or will not contain any untrue statement of a material fact or omit to state any 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; and did not or will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
z. (n) The Target Fund has filed, or intends to file, or has obtained extensions to file, all federal, state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. All tax liabilities of the Target Fund have been adequately provided for on its books, and no tax deficiency or liability of the Target Fund has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid, up to and including the taxable year in which the Closing Date occurs.
(o) The Target Fund is not under authorized to issue 200,000,000 shares of common stock, par value $0.10 per share (the jurisdiction "Target Fund Common Shares") and 873 ------------------------- shares of a court in a Title 11 or similar case within preferred stock of Series W-7 Variable Rate Demand Preferred Shares, par value $0.10 per share and liquidation preference $100,000 per share ("Target Fund VRDP Shares" and together with Target Fund Common Shares, the meaning of Section 368(a)(3)(A----------------------- "Target Fund Shares"). Each outstanding Target Fund Share is fully paid and ------------------ nonassessable and has the voting rights provided by the Target Fund's charter and applicable law.
(p) All of the Codeissued and outstanding Target Fund Shares were offered for sale and sold in conformity with all applicable federal and state securities laws.
aa. (q) The Target Fund will not sell or otherwise dispose of any of the Acquiring Fund Common Shares to be received in the Reorganization, except in distribution to Target Fund Shareholders as provided in Section 3 of this Agreement.
(r) The books and records of the Target Fund made available to the Acquiring Fund and/or its counsel are substantially true and correct in all material respects and contain no material misstatements or omissions with respect to information required to be maintained under the laws, rules and regulations applicable to operations of the Target Fund.
(s) The Target Fund has elected to qualify and has qualified as a RIC within the meaning of Section 851 of the Code for each of its taxable years since its inception, and the Target Fund has satisfied the distribution requirements imposed by Section 852 of the Code to maintain RIC status for each of its taxable years.
Appears in 1 contract
Samples: Merger Agreement (Blackrock Muniyield Michigan Quality Fund, Inc.)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a statutory trust duly established series of Upholdings LLC, which is a limited liability company duly organizedformed, validly existing and in good standing under in conformity with the laws of DSTA, and has the State of Delaware, with power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the 1940 Act as a diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement subject, in the case of consummation of the Merger, to the approval and adoption of this Agreement by the Target Fund Shareholders as described in Section 8(a) hereof. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Target Fund’s Board of Trustees and this Agreement constitutes a valid and binding contract of the Target Fund enforceable against the Target Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(d) The Target Fund has provided or made available (including by electronic format) to the Acquiring Fund the most recent audited annual financial statements of the Target Fund which have been prepared in accordance with US GAAP consistently applied and have been audited by Ernst & Young LLP, and such statements fairly present the financial condition and the results of operations of the Target Fund as of the respective dates indicated and the results of operations and changes in net assets for the periods indicated, and there are qualified to do business in all jurisdictions in which they no liabilities of the Target Fund whether actual or contingent and whether or not determined or determinable as of such date that are required to be so qualifieddisclosed but are not disclosed in such statements.
(e) An unaudited statement of assets, except jurisdictions in which capital and liabilities of the failure to so qualify would not have a material adverse effect on Upholdings or Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time (together, the “Target Fund Closing Financial Statements”), will be provided or made available (including by electronic format) to the Acquiring Fund at or prior to the Closing Date, for the purpose of determining the number of Acquiring Fund Common Shares to be issued to the Target Fund Shareholders pursuant to Section 3 of this Agreement; the Target Fund Closing Financial Statements will fairly present the financial position of the Target Fund as of the Valuation Time in conformity with US GAAP consistently applied.
c. The (f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Target Fund, although threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Merger. The Target Fund is not registered charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its Declaration of Trust or By-Laws or a party to any contract or other commitment or obligation, and is not subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Merger.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the Target Fund’s Annual Report for the year ended December 31, 2020, those incurred since the date thereof in the ordinary course of its business as an investment company and those incurred in connection with the CommissionMerger. As of the Valuation Time, has been operated since its commencement the Target Fund will advise the Acquiring Fund of operations on March 1stall known liabilities, 2019 contingent or otherwise, whether or not incurred in compliance the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in all material respects with the 1940 Act and Target Fund Closing Financial Statements or to the rules and regulations promulgated thereunderextent already known by the Acquiring Fund.
d. No consent, approval, authorization or order of any court or government authority under U.S. federal law(j) At both the Valuation Time and immediately prior to the Effective Time (as defined in Section 3(b) herein), the Delaware Limited Liability Company ActTarget Fund will have full right, or any state securities lawspower and authority to effect the transfer of the Target Fund Investments pursuant to the Merger. As used in this Agreement, is required the term “Target Fund Investments” shall mean (i) the investments of the Target Fund shown on the schedule of 4 its investments as of the Valuation Time furnished to be obtained for the consummation Acquiring Fund; and (ii) all other assets owned by the Target Fund and Upholdings LLC or liabilities incurred as of the transactions contemplated herein, except as have been obtained.
e. The Target Fund’s current offering documents and the offering documents of the Target Fund used at all times Valuation Time. Immediately prior to the date of this Agreement do not or did not at the time of their use include 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 materially misleading.
f. At the Effective Time, the Target Fund will have good and marketable title to all of the Assets and full right, power, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrancesTarget Fund Investments, and upon delivery and payment for such Assets, the Effective Time the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests own all of the Target Fund are duly authorized Investments free and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or clear of any agreementencumbrances, indenture, instrument, contract, lease liens or other undertaking to which security interests and without any restrictions upon the Target Fund is a party transfer thereof (except those imposed by the federal or by which it is bound, (iii) state securities laws and those imperfections of title or encumbrances as do not materially detract from the acceleration of any obligation, value or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments use of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability Investments or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes title thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto.
z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 1 contract
Samples: Merger Agreement (Guggenheim Strategic Opportunities Fund)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a statutory trust duly established series of Upholdings LLC, which is a limited liability company duly organizedformed, validly existing and in good standing under in conformity with the laws of DSTA, and has the State of Delaware, with power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the 1940 Act as a diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement subject, in the case of consummation of the Merger, to the approval and adoption of this Agreement by the Target Fund Shareholders as described in Section 8(a) hereof. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Target Fund’s Board of Trustees and this Agreement constitutes a valid and binding contract of the Target Fund enforceable against the Target Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(d) The Target Fund has provided or made available (including by electronic format) to the Acquiring Fund the most recent audited annual financial statements of the Target Fund which have been prepared in accordance with US GAAP consistently applied and have been audited by Ernst & Young LLP, and such statements fairly present the financial condition and the results of operations of the Target Fund as of the respective dates indicated and the results of operations and changes in net assets for the periods indicated, and there are qualified to do business in all jurisdictions in which they no liabilities of the Target Fund whether actual or contingent and whether or not determined or determinable as of such date that are required to be so qualifieddisclosed but are not disclosed in such statements.
(e) An unaudited statement of assets, except jurisdictions in which capital and liabilities of the failure to so qualify would not have a material adverse effect on Upholdings or Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time (together, the “Target Fund Closing Financial Statements”), will be provided or made available (including by electronic format) to the Acquiring Fund at or prior to the Closing Date, for the purpose of determining the number of Acquiring Fund Common Shares to be issued to the Target Fund Shareholders pursuant to Section 3 of this Agreement; the Target Fund Closing Financial Statements will fairly present the financial position of the Target Fund as of the Valuation Time in conformity with US GAAP consistently applied.
c. The (f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Target Fund, although threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Merger. The Target Fund is not registered charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its Declaration of Trust or By-Laws or a party to any contract or other commitment or obligation, and is not subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Merger.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the Target Fund’s Annual Report for the year ended May 31, 2021, those incurred since the date thereof in the ordinary course of its business as an investment company and those incurred in connection with the CommissionMerger. As of the Valuation Time, has been operated since its commencement the Target Fund will advise the Acquiring Fund of operations on March 1stall known liabilities, 2019 contingent or otherwise, whether or not incurred in compliance the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in all material respects with the 1940 Act and Target Fund Closing Financial Statements or to the rules and regulations promulgated thereunderextent already known by the Acquiring Fund.
d. No consent, approval, authorization or order of any court or government authority under U.S. federal law(j) At both the Valuation Time and immediately prior to the Effective Time (as defined in Section 3(b) herein), the Delaware Limited Liability Company ActTarget Fund will have full right, or any state securities lawspower and authority to effect the transfer of the Target Fund Investments pursuant to the Merger. As used in this Agreement, is required the term “Target Fund Investments” shall mean (i) the investments of the Target Fund shown on the schedule of 4 its investments as of the Valuation Time furnished to be obtained for the consummation Acquiring Fund; and (ii) all other assets owned by the Target Fund and Upholdings LLC or liabilities incurred as of the transactions contemplated herein, except as have been obtained.
e. The Target Fund’s current offering documents and the offering documents of the Target Fund used at all times Valuation Time. Immediately prior to the date of this Agreement do not or did not at the time of their use include 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 materially misleading.
f. At the Effective Time, the Target Fund will have good and marketable title to all of the Assets and full right, power, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrancesTarget Fund Investments, and upon delivery and payment for such Assets, the Effective Time the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests own all of the Target Fund are duly authorized Investments free and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or clear of any agreementencumbrances, indenture, instrument, contract, lease liens or other undertaking to which security interests and without any restrictions upon the Target Fund is a party transfer thereof (except those imposed by the federal or by which it is bound, (iii) state securities laws and those imperfections of title or encumbrances as do not materially detract from the acceleration of any obligation, value or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments use of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability Investments or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes title thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto.
z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 1 contract
Samples: Merger Agreement (Guggenheim Strategic Opportunities Fund)
REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND. Except as has been fully disclosed to The Target Fund represents and warrants to, and agrees with, the Acquiring Fund in a written instrument executed by the Managing Member of Upholdings LLC, Upholdings LLC represents and warrants to Alpha Trust as followsthat:
a. (a) The Target Fund is a duly established series of Upholdings LLC, which is a limited liability company corporation duly organized, validly existing and in good standing under in conformity with the laws of the State of DelawareMaryland, with and has the power under its Operating Agreement, as amended from time to time, to own all of its properties and assets and to carry out this Agreement. The Target Fund has all necessary federal, state and local authorizations to carry on its business as it is presently now being conducted and to carry out the this Agreement.
b. Upholdings LLC (b) The Target Fund is duly registered under the 1940 Act as a diversified, closed-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement has been duly authorized by all necessary action of its Board of Directors and this Agreement constitutes a valid and binding contract enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto.
(d) The Acquiring Fund has been furnished with the Target Fund's Annual Report to Stockholders for the fiscal year ended XXXX, 0000, and the audited financial statements appearing therein, having been audited by Deloitte & Touche LLP, independent registered public accounting firm, fairly present the financial position of the Target Fund as of the respective dates indicated, in conformity with accounting principles generally accepted in the United States applied on a consistent basis.
(e) An unaudited statement of assets, liabilities and capital of the Target Fund and an unaudited schedule of investments of the Target Fund, each as of the Valuation Time, will be furnished to the Acquiring Fund at or prior to the Closing Date for the purpose of determining the number of shares of Acquiring Fund Common Shares to be issued to the Target Fund pursuant to Section 3 of this Agreement; each will fairly present the financial position of the Target Fund as of the Valuation Time in conformity with generally accepted accounting principles applied on a consistent basis.
(f) There are qualified no material legal, administrative or other proceedings pending or, to do the knowledge of the Target Fund, threatened against it which assert liability on the part of the Target Fund or which materially affect its financial condition or its ability to consummate the Reorganization. The Target Fund is not charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Target Fund is a party that have not been disclosed in the N-14 Registration Statement or will not otherwise be disclosed to the Acquiring Fund prior to the Valuation Time.
(h) The Target Fund is not obligated under any provision of its Charter or its Bylaws, each as amended to the date hereof, or a party to any contract or other commitment or obligation, and is not subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) The Target Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on its statements of assets, liabilities and capital referred to above, those incurred in the ordinary course of its business as an investment company and those incurred in connection with the Reorganization. As of the Valuation Time, the Target Fund will advise the Acquiring Fund in writing of all jurisdictions known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued as of such time.
(j) The Target Fund has filed, or intends to file, or has obtained extensions to file, all federal, state and local tax returns which they are required to be so qualifiedfiled by it, except jurisdictions and has paid or has obtained extensions to pay, all federal, state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the failure to so qualify would not have a material adverse effect on Upholdings or Closing Date occurs. All tax liabilities of the Target FundFund have been adequately provided for on its books, and no tax deficiency or liability of the Target Fund has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid, up to and including the taxable year in which the Closing Date occurs.
c. The Target Fund, although it is not registered as an investment company with (k) At both the Commission, has been operated since its commencement of operations on March 1st, 2019 in compliance in all material respects with the 1940 Act Valuation Time and the rules and regulations promulgated thereunder.
d. No consent, approval, authorization or order of any court or government authority under U.S. federal lawClosing Date, the Delaware Limited Liability Company ActTarget Fund will have full right, or any state securities lawspower and authority to sell, is required assign, transfer and deliver the Target Fund Investments. As used in this Agreement, the term "Target Fund Investments" shall mean (i) the investments of the Target Fund shown on the schedule of its investments as of the Valuation Time furnished to be obtained for the consummation Acquiring Fund; and (ii) all other assets owned by the Target Fund and Upholdings LLC or liabilities incurred as of the transactions contemplated hereinValuation Time. At the Closing Date, except as have been obtained.
e. The Target Fund’s current offering documents and subject only to the offering documents of obligation to deliver the Target Fund used at all times prior to the date of Investments as contemplated by this Agreement do not or did not at the time of their use include 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 materially misleading.
f. At the Effective TimeAgreement, the Target Fund will have good and marketable title to all of the Assets and full right, powerTarget Fund Investments, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof.
g. All issued and outstanding interests all of the Target Fund are duly authorized Investments free and validly issued and outstanding, fully paid, and non-assessable by Upholdings LLC.
h. Upholdings LLC is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a violation of Delaware law; (ii) a violation or breach of its Operating Agreement, or clear of any agreementencumbrances, indenture, instrument, contract, lease liens or other undertaking to which security interests and without any restrictions upon the Target Fund is a party transfer thereof (except those imposed by the federal or by which it is bound, (iii) state securities laws and those imperfections of title or encumbrances as do not materially detract from the acceleration of any obligation, value or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Target Fund is a party or by which it is bound, or (iv) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Target Fund.
i. All material contracts or other commitments use of the Target Fund (other than this Agreement and the investment contracts, including options, futures, forward contracts and other similar instruments that have been enumerated to the Acquiring Fund in writing) will terminate with respect to the Target Fund without liability Investments or obligation to the Target Fund on or prior to the Effective Time. For the avoidance of doubt, any such contracts or other commitments may remain with respect to other series of Upholdings LLC, or may be amended or assigned in order to apply to any other series of Upholdings LLC, provided that they are fully terminated with respect to the Target Fund.
j. Except as otherwise disclosed to and accepted by the Acquiring Fund in writing, no action, suit, litigation or administrative proceeding or investigation of or before any court, arbitrator, or governmental body is presently pending or, to its knowledge, threatened against Upholdings LLC, the Target Fund or any of the Target Fund’s properties or assets that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Target Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any unsatisfied judgment, injunction, order, decree, regulatory restriction, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
k. The financial statements of the Target Fund as of September 30, 2020 have been audited by Sxxxxx Jxxxxxxx LLP, an independent registered public accounting firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) present fairly, in all material respects, the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Target Fund required to be reflected on a balance sheet (including the notes title thereto) in accordance with GAAP as of such date not disclosed therein.
l. Since September 30, 2020, there has not been any material adverse change in the Target Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, except as otherwise disclosed to and accepted by the Acquiring Fund in writing.
m. At the Effective Time, all Federal and other tax returns, dividend reporting forms, information returns, and other tax-related reports of the Target Fund required by law to have been filed by such date (including any extensions, if any) 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 said returns and reports shall have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment has been asserted with respect to such returns.
n. The Target Fund is characterized and treated as a partnership under the Code and has always been so characterized since the formation of the Target Fund.
o. The Target Fund is characterized as an “investment partnership” within the meaning of Section 731(c)(3)(C)(i) of the Code and has always been so characterized since the formation of the Target Fund.
p. As of the Valuation Time, the Assets of the Target Fund will consist of a “diversified portfolio of stocks and securities” (within the meaning of Treasury Regulation § 1.351-1(c)(6)(i)).
q. No Target Fund Investor contributed to the Target Fund any property other than money, and no partner has been a transferor or transferee in a nonrecognition transaction involving the transfer of an interest in the Target Fund with respect to which the transferor was not an “eligible partner” defined in Section 731(c)(3)(C)(iii) of the Code.
r. No Target Fund Investor is a “C corporation” within the meaning of Treasury Regulations Section §§ 1.337(d)-6(a)(2)(i) and 1.337(d)-7(a)(2)(i) or a partnership in which such a C corporation is a direct or indirect partner.
s. As of the Valuation Time, the aggregate tax basis of the Target Fund’s Assets will exceed the aggregate amount of the Target Fund’s Liabilities.
t. All of the issued and outstanding Target Fund Interests will, at the Effective Time, be held by the persons and in the amounts set forth in the records of Upholdings, LLC, on behalf of the Target Fund, as provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Target Fund Interests.
u. The tax representation certificate to be delivered by the Target Fund to Practus, LLP at the Closing pursuant to Paragraph 6.2(f) hereof (the “Target Fund Tax Representation Certificate”) will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
v. The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Managing Member of the Target Fund, and, subject to the approval of the Managing Member of the Target Fund, this Agreement will constitute a valid and binding obligation of the Target Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
w. The Target Fund is in compliance in all material respects with, and since its inception on March 1st, 2020 through the date of this Agreement has been in compliance in all materials respects with, to the extent applicable, the requirements of the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all rules and regulations under each of the foregoing, and state securities laws and regulations.
x. The Target Fund has no unamortized or unpaid organizational fees or expenses.
y. The information to be furnished by the Target Fund for use in applications for orders, registration statements or proxy materials or for use in any other document filed or to be filed with any federal, state, or local regulatory authority (including any national securities exchange or FINRA), which 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 and other laws and regulations applicable thereto.
z. The Target Fund is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
aa. The books and records of the Target Fund are true and correct in all material respects and contain no material omissions with respect to information required to be maintained under the laws, rules and regulations applicable to the Target Fund.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Blackrock Enhanced Capital & Income Fund, Inc)
