Representations, Warranties and Agreements of Company. Company represents and warrants to and agrees with Trust and the Acquiring Series that: (a) Company is a corporation validly existing under the laws of the State of Maryland and has power to own all of its properties and assets and to carry out its obligations under this Agreement. (b) Company is registered under the 1940 Act as an open-end investment company of the management type, and such registration has not been revoked or rescinded and is in full force and effect. Company has elected to qualify and has qualified, or intends to elect and qualify, each of the Acquired Series as a regulated investment company under Part I of Subchapter M of the Code as of and since its first taxable year, and each such Acquired Series qualifies, or intends to elect and qualify, and intends to continue to qualify as a regulated investment company for its taxable year ending upon its liquidation. Each Acquired Series has been a regulated investment company under such sections of the Code, or intends to elect and qualify, at all times since its inception. (c) The statements of assets and liabilities, including the schedules of portfolio investments as of December 31, 1997, and the related statements of operations for the year then ended, and statements of changes in net assets for each of the two years in the period then ended, for Company, such statements (for periods after December 31, 1995) having been audited by Ernst & Young LLP, independent auditors of Company, have been furnished to Trust. Such statements of assets and liabilities fairly present the financial position of Company as of such date and such statements of operations and changes in net assets fairly reflect the results of operations and changes in net assets for the periods covered thereby in conformity with generally accepted accounting principles, and there are no known material liabilities of Company as of such dates which are not disclosed therein. (d) The Prospectus of Company dated April 30, 1998 (the "Company Prospectus") and its related Statement of Additional Information dated April 30, 1998, in the forms filed under the 1933 Act with the Commission and previously furnished to Trust, did not as of their date and do not as of the date hereof contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (e) Except as may have been previously disclosed to Trust, there are no material legal, administrative or other proceedings pending or, to the knowledge of Company, threatened against Company. (f) There are no material contracts outstanding to which Company is a party, other than as disclosed in the Company Prospectus and the corresponding Statement of Additional Information, and there are no such contracts or commitments (other than this Agreement) which will be terminated with liability to Company on or prior to the Exchange Date. (g) Company has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statements of assets and liabilities at December 31, 1997 and those incurred in the ordinary course of Company's business as an investment company since that date. (h) As used in this Agreement, the term "Investments" shall mean Company's investments shown on the statements of assets and liabilities at December 31, 1997 referred to in Section 2(g) hereof, as supplemented with such changes as Company shall make after December 31, 1997 in the ordinary course of its business.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Liquidation (Riverfront Funds Inc)
Representations, Warranties and Agreements of Company. Company represents and warrants to and agrees with Trust and the Acquiring Series that:
(a) Company is a corporation validly existing under the laws of the State of Maryland and has power to own all of its properties and assets and to carry out its obligations under this Agreement.
(b) Company is registered under the 1940 Act as an open-end investment company of the management type, and such registration has not been revoked or rescinded and is in full force and effect. Company has elected to qualify and has qualified, or intends to elect and qualify, each of the Acquired Series as a regulated investment company under Part I of Subchapter M of the Code as of and since its first taxable year, and each such Acquired Series qualifies, or intends to elect and qualify, and intends to continue to qualify as a regulated investment company for its taxable year ending upon its liquidation. Each Acquired Series has been a regulated investment company under such sections of the Code, or intends to elect and qualify, at all times since its inception.
(c) The statements of assets and liabilities, including the schedules of portfolio investments as of December 31, 19971996, and the related statements of operations for the year then ended, and statements of changes in net assets for each of the two years in the period then ended, for Company, such statements (for periods after December 31, 19951994) having been audited by Ernst & Young LLP, independent auditors of Company, have been furnished to Trust. Such statements of assets and liabilities fairly present the financial position of Company as of such date and such statements of operations and changes in net assets fairly reflect the results of operations and changes in net assets for the periods covered thereby in conformity with generally accepted accounting principles, and there are no known material liabilities of Company as of such dates which are not disclosed therein.
(d) The Prospectus of Company dated April 30January 2, 1998 1997 (the "Company Prospectus") and its related Statement of Additional Information dated April 30January 2, 19981997, in the forms filed under the 1933 Act with the Commission and previously furnished to Trust, did not as of their date and do not as of the date hereof contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(e) Except as may have been previously disclosed to Trust, there are no material legal, administrative or other proceedings pending or, to the knowledge of Company, threatened against Company.
(f) There are no material contracts outstanding to which Company is a party, other than as disclosed in the Company Prospectus and the corresponding Statement of Additional Information, and there are no such contracts or commitments (other than this Agreement) which will be terminated with liability to Company on or prior to the Exchange Date.
(g) Company has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statements of assets and liabilities at December 31, 1997 1996 and those incurred in the ordinary course of Company's business as an investment company since that date.
(h) As used in this Agreement, the term "Investments" shall mean Company's investments shown on the statements of assets and liabilities at December 31, 1997 1996 referred to in Section 2(g) hereof, as supplemented with such changes as Company shall make after December 31, 1997 1996 in the ordinary course of its business.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Liquidation (Riverfront Funds Inc)
Representations, Warranties and Agreements of Company. (A) The Company hereby represents and warrants to to, and agrees with Trust and the Acquiring Series with, Dealer that:
(a) Company is a corporation validly existing under the laws The Shares initially issuable upon exercise of the State Warrant by the net share settlement method (the “Warrant Shares”) have been reserved for issuance by all required corporate action of Maryland Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and has power otherwise as contemplated by the terms of the Warrant following the exercise of the Warrant in accordance with the terms and conditions of the Warrant, will be validly issued, fully-paid and non-assessable, and the issuance of the Warrant Shares will not be subject to own all of its properties and assets and to carry out its obligations under this Agreement.any preemptive or similar rights;
(b) Company is registered under an “eligible contract participant” (as such term is defined in the 1940 Act Commodity Exchange Act, as an open-end investment company of amended (the management type, and such registration has not been revoked or rescinded and is in full force and effect. Company has elected to qualify and has qualified, or intends to elect and qualify, each of the Acquired Series as a regulated investment company under Part I of Subchapter M of the Code as of and since its first taxable year, and each such Acquired Series qualifies, or intends to elect and qualify, and intends to continue to qualify as a regulated investment company for its taxable year ending upon its liquidation. Each Acquired Series has been a regulated investment company under such sections of the Code, or intends to elect and qualify, at all times since its inception.“CEA”));
(c) The statements Company is not, on the date hereof, in possession of assets and liabilities, including the schedules of portfolio investments as of December 31, 1997, and the related statements of operations for the year then ended, and statements of changes in net assets for each of the two years in the period then ended, for any material non-public information with respect to Company, such statements (for periods after December 31, 1995) having been audited by Ernst & Young LLP, independent auditors of Company, have been furnished to Trust. Such statements of assets and liabilities fairly present the financial position of Company as of such date and such statements of operations and changes in net assets fairly reflect the results of operations and changes in net assets for the periods covered thereby in conformity with generally accepted accounting principles, and there are no known material liabilities of Company as of such dates which are not disclosed therein.;
(d) The Prospectus Without limiting the generality of Company dated April 30, 1998 (the "Company Prospectus") and its related Statement of Additional Information dated April 30, 1998, in the forms filed under the 1933 Act with the Commission and previously furnished to Trust, did not as of their date and do not as Section 13.1 of the date hereof contain Equity Definitions, Company acknowledges that Dealer is not making any untrue statement representations or warranties with respect to the treatment of a material fact the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or omit to state a material fact required to be stated therein any successor issue statements) or necessary to make the statements therein not misleading.under FASB’s Liabilities & Equity Project;
(e) Except as may have been previously disclosed Prior to Trustor on the Trade Date, there are no material legal, administrative or other proceedings pending or, Company shall deliver to the knowledge Dealer a resolution of Company, threatened against Company.’s board of directors authorizing the Transaction;
(f) There are no material contracts outstanding to which Company is a partynot, other than and after giving effect to the transactions contemplated hereby will not, be required to register as disclosed an “investment company” as such term is defined in the Investment Company Prospectus and the corresponding Statement Act of Additional Information1940, and there are no such contracts or commitments (other than this Agreement) which will be terminated with liability to Company on or prior to the Exchange Date.as amended;
(g) On the Trade Date (A) the assets of Company at their fair valuation exceed the liabilities of Company, including contingent liabilities, (B) the capital of Company is adequate to conduct the business of Company and (C) Company has no known liabilities of a material naturethe ability to pay its debts and obligations as such debts mature and does not intend to, contingent or otherwisedoes not believe that it will, other than those shown incur debt beyond its ability to pay as belonging to it on its statements of assets and liabilities at December 31, 1997 and those incurred in the ordinary course of Company's business as an investment company since that date.such debts mature;
(h) As used in this AgreementCompany understands that no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of Dealer or any governmental agency;
(i) During the period starting on the first Expiration Date and ending on the last Expiration Date (the “Settlement Period”), the Shares or securities that are convertible into, or exchangeable or exercisable for Shares, are not, and shall not be, subject to a “restricted period,” as such term "Investments" shall mean Company's investments shown on is defined in Regulation M (“Regulation M”) under the statements Securities Exchange Act of assets and liabilities at December 31, 1997 referred to in Section 2(g) hereof1934, as supplemented amended (“Exchange Act”) and (B) Issuer shall not engage in any “distribution,” as such term is defined in Regulation M, other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M, until the second Exchange Business Day immediately following the Settlement Period;
(j) Prior to the Trade Date, the Company has not taken any action which is designed to or which has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of any security of the Company in connection with such changes as the offering of the Convertible Notes;
(k) None of the Company shall make after December 31or any of its subsidiaries is in violation of its certificate of incorporation or certificate of formation, 1997 or its bylaws or limited liability company agreement (or other organizational documents), or in default in the ordinary course performance or observance of any material obligation, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its business.properties may be bound, other than such defaults that individually or in the aggregate would not have a Material Adverse Effect on this Transaction or Dealer’s rights or obligations relating to
Appears in 1 contract
Samples: Additional Warrants Confirmation (Hornbeck Offshore Services Inc /La)
Representations, Warranties and Agreements of Company. (A) The Company hereby represents and warrants to to, and agrees with Trust and the Acquiring Series with, Dealer that:
(a) Company is a corporation validly existing under the laws The Shares initially issuable upon exercise of the State Warrant by the net share settlement method (the “Warrant Shares”) have been reserved for issuance by all required corporate action of Maryland Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and has power otherwise as contemplated by the terms of the Warrant following the exercise of the Warrant in accordance with the terms and conditions of the Warrant, will be validly issued, fully-paid and non-assessable, and the issuance of the Warrant Shares will not be subject to own all of its properties and assets and to carry out its obligations under this Agreement.any preemptive or similar rights;
(b) Company is registered under an “eligible contract participant” (as such term is defined in the 1940 Act Commodity Exchange Act, as an open-end investment company of amended (the management type, and such registration has not been revoked or rescinded and is in full force and effect. Company has elected to qualify and has qualified, or intends to elect and qualify, each of the Acquired Series as a regulated investment company under Part I of Subchapter M of the Code as of and since its first taxable year, and each such Acquired Series qualifies, or intends to elect and qualify, and intends to continue to qualify as a regulated investment company for its taxable year ending upon its liquidation. Each Acquired Series has been a regulated investment company under such sections of the Code, or intends to elect and qualify, at all times since its inception.“CEA”));
(c) The statements Company is not, on the date hereof, in possession of assets and liabilities, including the schedules of portfolio investments as of December 31, 1997, and the related statements of operations for the year then ended, and statements of changes in net assets for each of the two years in the period then ended, for any material non-public information with respect to Company, such statements (for periods after December 31, 1995) having been audited by Ernst & Young LLP, independent auditors of Company, have been furnished to Trust. Such statements of assets and liabilities fairly present the financial position of Company as of such date and such statements of operations and changes in net assets fairly reflect the results of operations and changes in net assets for the periods covered thereby in conformity with generally accepted accounting principles, and there are no known material liabilities of Company as of such dates which are not disclosed therein.;
(d) The Prospectus Without limiting the generality of Company dated April 30, 1998 (the "Company Prospectus") and its related Statement of Additional Information dated April 30, 1998, in the forms filed under the 1933 Act with the Commission and previously furnished to Trust, did not as of their date and do not as Section 13.1 of the date hereof contain Equity Definitions, Company acknowledges that Dealer is not making any untrue statement representations or warranties with respect to the treatment of a material fact the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or omit to state a material fact required to be stated therein any successor issue statements) or necessary to make the statements therein not misleading.under FASB’s Liabilities & Equity Project;
(e) Except as may have been previously disclosed Prior to Trustor on the Trade Date, there are no material legal, administrative or other proceedings pending or, Company shall deliver to the knowledge Dealer a resolution of Company, threatened against Company.’s board of directors authorizing the Transaction;
(f) There are no material contracts outstanding to which Company is a partynot, other than and after giving effect to the transactions contemplated hereby will not, be required to register as disclosed an “investment company” as such term is defined in the Investment Company Prospectus and the corresponding Statement Act of Additional Information1940, and there are no such contracts or commitments (other than this Agreement) which will be terminated with liability to Company on or prior to the Exchange Date.as amended;
(g) On the Trade Date (A) the assets of Company at their fair valuation exceed the liabilities of Company, including contingent liabilities, (B) the capital of Company is adequate to conduct the business of Company and (C) Company has no known liabilities of a material naturethe ability to pay its debts and obligations as such debts mature and does not intend to, contingent or otherwisedoes not believe that it will, other than those shown incur debt beyond its ability to pay as belonging to it on its statements of assets and liabilities at December 31, 1997 and those incurred in the ordinary course of Company's business as an investment company since that date.such debts mature;
(h) As used in this AgreementCompany understands that no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of Dealer or any governmental agency;
(i) During the period starting on the first Expiration Date and ending on the last Expiration Date (the “Settlement Period”), the Shares or securities that are convertible into, or exchangeable or exercisable for Shares, are not, and shall not be, subject to a “restricted period,” as such term "Investments" shall mean Company's investments shown on is defined in Regulation M (“Regulation M”) under the statements Securities Exchange Act of assets and liabilities at December 31, 1997 referred to in Section 2(g) hereof1934, as supplemented amended (“Exchange Act”) and (B) Issuer shall not engage in any “distribution,” as such term is defined in Regulation M, other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M, until the second Exchange Business Day immediately following the Settlement Period;
(j) Prior to the Trade Date, the Company has not taken any action which is designed to or which has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of any security of the Company in connection with such changes as the offering of the Convertible Notes;
(k) None of the Company shall make after December 31or any of its subsidiaries is in violation of its certificate of incorporation or certificate of formation, 1997 or its bylaws or limited liability company agreement (or other organizational documents), or in default in the ordinary course performance or observance of any material obligation, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its business.properties may be bound, other than such defaults that individually or in the aggregate would not have a Material Adverse Effect on this Transaction or Dealer’s rights or obligations relating to this Transaction. “Material Adverse Effect” means any change in the capital stock, increase in long-term debt or any decreases in consolidated net current assets or stockholders’ equity of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
Appears in 1 contract
