Common use of REPRESENTATIONS OF THE SELLING FUND Clause in Contracts

REPRESENTATIONS OF THE SELLING FUND. The Trust, on behalf of the Selling Fund, represents and warrants as follows: (a) The Trust is a voluntary association, duly organized, validly existing, and in good standing under the laws of the State of Delaware with the power to own all of its properties and assets and to carry on its business as presently conducted. (b) The Selling Fund is a separate series of the Trust duly authorized in accordance with the application provisions of the Trust's Trust Instrument. (c) The Trust is registered as an open-end management investment company under the 1940 Act, and such registration is in full force and effect. (d) The Selling Fund is not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not, result in the violation of any provision of the Trust's Trust Instrument or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Selling Fund is a party or by which it is bound. (e) Except as otherwise designated in writing and accepted by the Acquiring Fund, the Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date. (f) No litigation, administrative proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. (g) The financial statements of the Selling Fund as of September 30, 2001 and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2001 and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements. (h) Since the date of the financial statements referred to in subsection (g) above, there have been no material adverse changes in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business). For the purposes of this subsection (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change. (i) All federal and other tax returns and reports of the Selling Fund required by law to be filed, have been filed, and all federal and other taxes shown due on such returns and reports have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. (j) All issued and outstanding shares of the Selling Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in Section 3.3. The Selling Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Selling Fund shares, and has no outstanding securities convertible into any of the Selling Fund shares. (k) At the Closing Date, the Selling Fund will have good and marketable title to the Selling Fund's assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto. (l) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Selling Fund. Subject to approval by the Selling Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Selling 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. (m) The information to be furnished by the Selling Fund for use in registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. (n) From the effective date of the Registration Statement (as defined in Section 5.7), through the time of the meeting of the Selling Fund Shareholders and on the Closing Date, any written information furnished by the Trust with respect to the Selling Fund for use in the Proxy Materials (as defined in Section 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. (o) For each taxable year of its operations, the Selling Fund has elected to qualify and has qualified as a "regulated investment company" under the Code (a "RIC").

REPRESENTATIONS OF THE SELLING FUND. The Trust, on behalf of the Selling Fund, represents and warrants to the Acquiring Fund as follows: (a) The Trust Selling Fund is a voluntary association, statutory trust duly organized, validly existing, existing and in good standing under the laws of the State of Delaware with the power to own all of its properties and assets and to carry on its business as presently conductedDelaware. (b) The Selling Fund is a separate series of the Trust duly authorized in accordance with the application applicable provisions of the Trust's Selling Fund’s Agreement and Declaration of Trust Instrumentand Bylaws. (c) The Trust Selling Fund is registered as an openclosed-end management investment company under the 1940 Act, and such registration has not been revoked or rescinded and is in full force and effect. (d) The Selling Fund is not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will notnot result, result in the violation of any provision of the Trust's Selling Fund’s Agreement and Declaration of Trust Instrument or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Selling Fund is a party or by which it is bound. (e) Except as otherwise designated disclosed in writing to and accepted in writing by the Acquiring Fund, the Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it the Selling Fund before the Closing Date. (f) No litigation, administrative proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. (g) The financial statements of the Selling Fund as of September 30December 31, 2001 2009, and for the fiscal year then ended ended, have been prepared in accordance with generally accepted accounting principlesprinciples and have been audited by independent auditors, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30December 31, 2001 2009, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements. (h) Since the date of the financial statements referred to in subsection (g) above, there have been no material adverse changes in the Selling Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business)) and there are no known contingent liabilities of the Selling Fund arising after such date. For the purposes of this subsection (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change. (i) All federal U.S. federal, state, local and other tax returns and reports of the Selling Fund required by law to be filed, filed by it (taking into account permitted extensions for filing) have been filedtimely filed and are correct in all material respects. All U.S. federal, and all federal state, local and other taxes required to be paid (whether or not shown due on any such returns and reports return or report) have been paid, or provision shall have been made for the payment thereofthereof and any such unpaid taxes are properly reflected on the financial statements referred to in subsection (h) above. To the best of the Selling Fund's ’s knowledge, no such return tax authority is currently under auditauditing or preparing to audit the Selling Fund, and no assessment for taxes, interest, additions to tax, or penalty has been asserted with respect to such returnsagainst the Selling Fund. (j) All issued and outstanding shares of the Selling Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing DateClosing, be held by the persons and in the amounts set forth in the records of the Selling Fund's ’s transfer agent as provided in Section 3.3. The Selling Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any shares of the Selling Fund sharesFund, and has no outstanding securities convertible into any shares of the Selling Fund sharesFund. (k) At the Closing Datetime of the Closing, the Selling Fund will have good and marketable title to the Selling Fund's ’s assets to be transferred to the Acquiring Fund pursuant to paragraph Section 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, upon delivery and payment for such assets, and the Acquiring Fund will acquire good and marketable title thereto. (l) The Other than approval by the Selling Fund Shareholders, the execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Selling Fund. Subject to approval by the Selling Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Selling 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. (m) The information to be furnished by the Selling Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. (n) From the effective date of the Registration Statement (as defined in Section 5.7), through the time of the meeting of the Selling Fund Shareholders and on the Closing Date, any written information furnished by the Trust with respect to the Selling Fund for use in the Proxy Materials (as defined in Section 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. (o) For each taxable year of its operations, the Selling Fund (i) has elected to qualify qualify, and has qualified or will qualify (in the case of the current taxable year), as a "“regulated investment company" ” under the Code (a "“RIC"”), (ii) has been eligible to and has computed its U.S. federal income tax under Section 852 of the Code, and (iii) has been, and will be as of the Closing Date treated as a separate corporation for U.S. federal income tax purposes pursuant to Section 851(g) of the Code. The Selling Fund will qualify as a RIC as of the Closing Date and will have satisfied as of the close of its most recent prior quarter of its taxable year, the diversification requirements of Section 851(b)(3) of the Code without regard to the last sentence of Section 851(d) of the Code. The Selling Fund has not taken any action, caused any action to be taken or caused any action to fail to be taken which action or failure could cause the Selling Fund to fail to qualify as a RIC under the Code. (p) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), the 1940 Act or Delaware state law, as applicable, for the execution of this Agreement by the Selling Fund, except for the effectiveness of the Registration Statement (as defined in Section 5.7) and the Post-Effective Amendment (as defined in Section 8.5) and the filing of any documents that may be required under Delaware state law and except for such other consents, approvals, authorizations and filings as have been made or received and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Selling Fund as described in Section 5.2.

REPRESENTATIONS OF THE SELLING FUND. The Trust, on behalf of the each Selling Fund, represents and warrants as follows: (a) The Trust is a voluntary association, association duly organized, validly existing, existing and in good standing under the laws of the State of Delaware with the power to own all of its properties and assets and to carry on its business as presently conductedDelaware. (b) The Selling Fund is a separate series of the Trust duly authorized in accordance with the application applicable provisions of the Trust's Trust Instrument. (c) The Trust is registered as an open-end management investment company under the 1940 Act, and such registration is in full force and effect. (d) The Selling Fund is not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not, result in the violation of any provision of the Trust's Trust Instrument or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Selling Fund is a party or by which it is bound. (e) Except as otherwise designated disclosed in writing to and accepted by the Acquiring Fund, the Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date. (f) No litigation, administrative proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. (g) The financial statements of the Selling Fund as of September 30October 31, 2001 2001, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring FundFunds) fairly reflect the financial condition of the Selling Fund as of September 30October 31, 2001 2001, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements. (h) Since the date of the financial statements referred to in subsection (g) above, there have been no material adverse changes in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business). For the purposes of this subsection (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change. (i) All federal federal, state, local and other tax returns and reports of the Selling Fund required by law to be filed, have been filed, and all federal federal, state, local and other taxes shown due on such returns and reports required to be paid (whether or not a return or report is required) have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return tax authority is currently under auditing or preparing to audit, such Selling Fund, and no assessment has been asserted with respect to such returnsagainst a Selling Fund. (j) All issued and outstanding shares of the Selling Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in Section 3.3. The Selling Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Selling Fund shares, and has no outstanding securities convertible into any of the Selling Fund shares. (k) At the Closing Date, the Selling Fund will have good and marketable title to the Selling Fund's assets to be transferred to the Acquiring Fund pursuant to paragraph Section 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto. (l) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Selling Fund. Subject to approval by the Selling Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Selling 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. (m) The information to be furnished by the Selling Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in 4 connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. (n) From the effective date of the Registration Statement (as defined in Section 5.7), through the time of the meeting of the Selling Fund Shareholders and on the each Closing Date, any written information furnished by the Trust with respect to the Selling Fund for use in the Proxy Materials (as defined in Section 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. (o) For each taxable year of its operationsoperations including the short taxable year ending with the Closing Date, the Selling Fund has elected to qualify qualify, and has qualified qualified, as a "regulated investment company" under the Code (a "RIC").