EXHIBIT B
AGREEMENT AND PLAN OF
REORGANIZATION, CONVERSION AND TERMINATION
THIS AGREEMENT is made as of the __ day of _________, 1997, by and
between the Canandaigua National Collective Investment Fund for Qualified
Trusts, a collective investment trust duly organized under the regulations
of the U.S. Comptroller of the Currency ("OCC") and the laws of the State
of New York (the "Current Trust"), on behalf of its two portfolios, the
Equity Portfolio and the Bond Portfolio (each a "Current Portfolio" and
collectively the "Current Portfolios") and The Canandaigua Funds, a
business trust duly formed under the laws of the State of Delaware (the
"Successor Trust"), with an equal number of series as the Current Trust.
This Agreement is intended to be and is adopted as a plan of
reorganization within the meaning of Section 368 (a) (1) (F) of the U.S.
Internal Revenue Code of 1986, as amended (the "Code"), and is intended to
effect the conversion of the Current Portfolios, each a separate series of
units of beneficial interest of the Current Trust, into an equal number of
separate series of a Delaware business trust. The conversion will involve
the transfer of all of the assets of each Current Portfolio to a
corresponding series of the Successor Trust (the "Corresponding Series")
solely in exchange (1) by the Corresponding Series for assumption of all
liabilities of that Current Portfolio and (2) for the issuance of shares of
beneficial interest (the "Series Shares") by the Corresponding Series to
the Current Trust, followed by the constructive distribution on the Closing
Date (as defined below) of such Series Shares to the holders of units of
beneficial interest of that Current Portfolio in exchange for their shares
of that Current Portfolio in liquidation and termination of that Current
Portfolio, all upon the terms and conditions hereinafter set forth in this
Agreement.
In consideration of the premises and of the covenants and agreements
hereinafter set forth the parties hereto covenant and agree as follows.
1. TRANSFER OF ASSETS OF EACH CURRENT PORTFOLIO IN EXCHANGE FOR
ASSUMPTION OF LIABILITIES AND ISSUANCE OF SHARES OF THE SUCCESSOR
TRUST; TERMINATION OF THE CURRENT PORTFOLIOS
1.1 Subject to the terms and conditions set forth herein and on the
basis of the representations and warranties contained herein the Current
Trust agrees to transfer the assets of each Current Portfolio as set forth
in paragraph 1.2 to a separate Corresponding Series of the Successor Trust
(each a "Series" of the Successor Trust) established by the Successor Trust
solely for the purpose of acquiring all of the assets of that Current
Portfolio which Series have not issued any Series Shares or commenced
operations. The Successor Trust on behalf of each Series agrees that in
exchange therefor (1) each Series shall assume all of the liabilities of
the Current Portfolio whose assets are acquired by the Corresponding
Series, whether contingent or otherwise, then existing and further (2) the
Successor Trust shall deliver to the Current Trust as trustee for that
Current Portfolio the number of full and fractional Series Shares of each
Corresponding Series equal to the value of the assets of that Current
Portfolio, minus the liabilities assumed, as described in paragraph 3.1 on
the Closing Date provided for in paragraph 3.1. Such transactions shall
take place at the Closing provided for in paragraph 3.1.
1.2 The assets of each Current Portfolio to be acquired by the
Corresponding Series shall include, without limitation, all cash, cash
equivalents, securities, receivables (including interest and dividends
receivable), any claims or rights of action or rights to register shares
under applicable securities laws, any books or records of each Current
Portfolio and other property owned by that Current Portfolio and any
deferred or prepaid expenses shown as assets on the books of that Current
Portfolio on the Closing Date provided for in paragraph 3.1.
1.3 Immediately upon delivery to the Current Trust, on behalf of each
Current Portfolio, of Series Shares of each Corresponding Series, the
Supervisory Committee of the Current Trust or any officer duly authorized
by them as the then sole shareholder of the Successor Trust shall (i) elect
as Trustees of the Successor Trust the persons who currently serve as
members of the Supervisory Committee of the Current Trust; (ii) ratify the
selection of the independent accountants; (iii) approve an investment
advisory agreement for the Successor Trust in the form currently in place
with respect to the Current Trust; and (iv) to adopt for the Corresponding
Series the investment objectives, investment policies and investment
restrictions of each Current Portfolio.
1.4 As provided in paragraph 3.3, on the Closing Date the Current
Trust, on behalf of each Current Portfolio, will distribute in liquidation
to the unitholders of each Current Portfolio the Series Shares received
from the Corresponding Series pro rata in proportion to their respective
shares of beneficial interest in that Current Portfolio to the unitholders
of record of that Current Portfolio determined as of the close of business
on the Closing Date, in exchange for the outstanding units of such Current
Portfolio. Such distribution will be accomplished by the transfer of the
Series Shares then credited to the account of that Current Portfolio on the
share records of the Successor Trust to open accounts on those records in
the names of such Current Portfolio unitholders and representing the
respective pro rata number of the Series Shares received from the
Corresponding Series due such Current Portfolio unitholders. The Successor
Trust shall not issue certificates representing Trust Series Shares in
connection with such distribution. Fractional Trust Series Shares shall be
rounded to the third place after the decimal point.
1.5 Immediately after the distribution of the Series Shares as set
forth in Section 1.4 each Current Portfolio, and the Current Trust, shall
be terminated and any such further actions shall be taken in connection
therewith as are required by applicable law.
1.6 Ownership of the Series Shares of each Series Shareholder shall
be maintained separately on the books of The Canandaigua National Bank and
Trust Company ("Canandaigua National Bank") as the Successor Trust's
transfer agent.
1.7 Any reporting responsibility of the Current Trust with respect to
a Current Portfolio is and shall remain the responsibility of the Current
Trust up to and including the Closing Date, and any later date on which a
Current Portfolio may be terminated.
2. VALUATION
2.1 The value of each Current Portfolio's net assets to be acquired
by the Successor Trust on behalf of the Corresponding Series hereunder
shall be the net asset value computed as of the valuation time provided in
the Current Trust's Prospectus on the Closing Date using the valuation
procedures set forth in that Prospectus or Statement of Additional
Information.
2.2 The value of full and fractional Series Shares of the
Corresponding Series to be issued in exchange for each Current Portfolio's
net assets shall be equal to the value of the net assets of that Current
Portfolio on the Closing Date, and the number of such Series Shares shall
equal the number of full and fractional units of that Current Portfolio
issued and outstanding on the Closing Date.
2.3 All computations of value shall be made by American Data Services
in accordance with its regular practice as Administrator for the Current
Trust.
3. CLOSING AND CLOSING DATE
3.1 The transfer of each Current Portfolio's assets in exchange for
the assumption by the Corresponding Series of that Current Portfolio's
liabilities and the issuance of Series Shares of the Corresponding Series
to that Current Portfolio, as described above, together with related acts
necessary to consummate such acts (the "Closing"), shall occur at the
principal office of the Successor Trust at 00 Xxxxx Xxxx Xxxxxx,
Xxxxxxxxxxx, Xxx Xxxx 00000 on _______________, 1997 ("Closing Date"), or
at such other place or date as the parties may agree in writing. All acts
taking place at the Closing shall be deemed to take place simultaneously as
of the last daily determination of the net asset value of any Current
Portfolio or at such other time and or place as the parties may agree.
3.2 In the event that on the Closing Date (a) the New York Stock
Exchange is closed to trading or trading thereon is restricted or (b)
trading or reporting of trading on said Exchange or in any market in which
portfolio securities of any Current Portfolio are traded is disrupted so
that accurate appraisal of the value of the total net assets of a Current
Portfolio is impracticable, the Closing shall be postponed until the first
business day upon which trading shall have been fully resumed and reporting
shall have been restored.
3.3 The Current Trust shall deliver at the Closing a certificate or
separate certificates of an authorized officer stating that it has notified
the Custodian, as custodian for the Current Trust and the Successor Trust,
of each Current Portfolio's conversion to a series of the Successor Trust.
3.4 Canandaigua National Bank, as shareholder servicing agent for
each Current Portfolio, shall deliver at the Closing a certificate as to
the conversion on its books and records of each Current Portfolio
unitholder account to an account as a holder of Series Shares of the
Corresponding Series. The Successor Trust shall issue and deliver a
confirmation to each Current Portfolio evidencing the Series Shares to be
credited on the Closing Date or provide evidence satisfactory to the
Current Trust that such Series Shares have been credited to each Current
Portfolio's account on the books of the Successor Trust. At the Closing
each party shall deliver to the other such bills of sale, checks,
assignments, stock certificates, receipts or other documents as such other
party or its counsel may reasonably request.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Current Trust represents and warrants as follows:
(a) The Current Trust is a collective investment trust duly formed
and validly existing under the rules and regulations of the OCC and the
laws of the State of New York; and each Current Portfolio is a duly
established and designated series of the Current Trust;
(b) The Current Trust is duly registered as an open-end management
investment company under the Investment Company Act of 1940, as amended
(the "1940 Act"), and such registration is in full force and effect;
(c) The Current Trust is not, and the execution, delivery and
performance of this Agreement will not result, in violation of any
provision of its Declaration of Trust or the Rules and Procedures of the
Supervisory Committee, as amended or restated from time to time, or, to the
Current Trust's knowledge, of any agreement, indenture, instrument,
contract, lease or other undertaking to which the Current Trust is a party
or by which the Current Trust is bound;
(d) The Current Trust has no material contracts or other commitments
(other than this Agreement) applicable to a Current Portfolio that will not
be terminated without liability to that Current Portfolio or the Current
Trust on or prior to the Closing Date;
(e) To the Current Trust's knowledge, no material litigation or
administrative proceeding or investigation of or before any court or
governmental body presently is pending or threatened against the Current
Trust or any of its properties or assets except as previously disclosed in
writing to the Successor Trust. The Current Trust knows of no facts that
might form the basis for the institution of such proceedings and the
Current Trust 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 herein contemplated;
(f) At the date hereof and at the Closing Date all Federal, state and
other tax returns and reports, including information returns and payee
statements, of each Current Portfolio required by law to have been filed or
furnished by such dates shall have been filed or furnished and all Federal,
state and other taxes, interest and penalties shall have been paid so far
as due or provision shall have been made for the payment thereof and to the
best of the Current Trust's knowledge no such return is currently under
audit and no assessment has been asserted with respect to any of such
returns or reports;
(g) All issued and outstanding units of each Current Portfolio are,
and at the Closing Date will be, duly and validly issued and outstanding
and fully paid and non-assessable under New York law;
(h) The information to be furnished by the Current Trust for use in
applications for orders, registration statements, proxy materials and other
documents which may be necessary in connection with the transactions
contemplated hereby shall be accurate and complete and shall comply in all
material respects with Federal securities and other laws and regulations
thereunder applicable thereto;
(i) All of the issued and outstanding units of each Current Portfolio
will at the time of the Closing be held by the persons and in the amounts
as certified in accordance with the provisions of paragraph 3.4;
(j) On the Closing Date each Current Portfolio will have good and
marketable title to its assets to be transferred to the Corresponding
Series pursuant to paragraph 1.2, and the Current Trust will have 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 Corresponding Series will acquire good and
marketable title thereto;
(k) The execution, delivery and performance of this Agreement will
have been duly authorized prior to the Closing Date by all necessary action
on the part of the Current Trust and upon its proper execution, this
Agreement will constitute a valid and binding obligation of the Current
Trust enforceable in accordance with its terms, subject to approval of the
unitholders of each Current Portfolio, and will not conflict with the
Current Trust's Declaration of Trust or Rules and Procedures of the
Supervisory Committee, or any provision of any agreement to which the
Current Trust is a party or by which it is bound or, to the knowledge of
the Current Trust, result in the acceleration of any obligation or the
imposition of any penalty under any agreement, judgment or decree to which
the Current Trust is a party or by which it is bound;
(l) To the Current Trust's knowledge, no consent, approval,
authorization or order of any court or governmental authority is required
for the consummation by the Current Trust of the transactions contemplated
herein, except such as shall have been obtained prior to the Closing Date
under (i) the Securities Act of 1933, as amended (the "1933 Act"), the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the 1940
Act; (ii) the OCC; (iii) the Pension and Welfare Benefits Administration of
the U. S. Department of Labor ("PWBA"); and (iv) such as may be required
under state securities laws.
(m) The Statements of Assets and Liabilities and Operations, the
Statement of Changes in Net Assets, Per Share Data and Ratios, and the
Schedule of Investments of each Current Portfolio at (copies of which have
been furnished to the Successor Trust) have been audited by Xxxxx Xxxxx and
Xxxxxxxx, P.C., independent public accountants, in accordance with
generally accepted auditing standards. Such financial statements are
presented in accordance with generally accepted accounting principles, and
fairly present, in all material respects, the financial condition of each
Current Portfolio as of such date, and there are no material known
liabilities of any Current Portfolio at such date (contingent or otherwise)
not disclosed therein; and
(n) Since _____________, there has not been any material adverse
change in any Current Portfolio's financial condition, assets, liabilities
or business, other than changes occurring in the ordinary course of
business, or any incurrence by a Current Portfolio of indebtedness maturing
more than one year from the date such indebtedness was incurred, except as
otherwise disclosed to and accepted by the Successor Trust;
(o) A meeting of the Current Trust's unitholders was held on March
28, 1997 to consider and act upon this Agreement and all other actions
necessary to obtain unitholder approval of the transactions contemplated
hereby have been completed.
4.2 The Successor Trust represents and warrants as follows:
(a) The Successor Trust is a Delaware business trust duly organized,
validly existing and in good standing under the laws of the State of
Delaware; that the Successor Trust has filed its Certificate of Trust with
the Secretary of State of Delaware; and that each Series is a duly
established and designated series of the Successor Trust established and
designated by resolution of the Successor Trustees of the Successor Trust;
(b) Each Series is a duly established Series of the Successor Trust.
(c) The Successor Trust is not, and the execution, delivery and
performance of this Agreement will not result, in violation of any
provision of the Declaration of Trust or Bylaws of the Successor Trust or,
to the Successor Trust's knowledge, of any agreement, indenture,
instrument, contract, lease or other undertaking to which the Successor
Trust is a party or by which the Successor Trust is bound;
(d) To the Successor Trust's knowledge, no material litigation or
administrative proceeding or investigation of or before any court or
governmental body is presently pending or threatened against the Successor
Trust or any of its properties or assets, except as previously disclosed in
writing to the Current Trust. The Successor Trust knows of no facts that
might form the basis for the institution of such proceedings, and the
Successor Trust 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 herein contemplated;
(e) The Successor Trust intends for each Series to be a regulated
investment company under Section 851 of the Code;
(f) Prior to the Closing Date, there shall be no issued and
outstanding Successor Trust Series Shares or any other securities issued by
the Series;
(g) The execution, delivery and performance of this Agreement will
have been duly authorized prior to the Closing Date by all necessary action
on the part of the Successor Trust, and, upon its proper execution, this
Agreement will constitute a valid and binding obligation of the Successor
Trust enforceable against the Series in accordance with its terms;
(h) The Series Shares at the Closing will have been duly authorized
and, when so issued and delivered, will be duly and validly issued shares
of the Series, fully paid and non-assessable under Delaware law;
(i) The information to be furnished by the Successor Trust with
respect to each Series for use in applications for orders, registration
statements, proxy materials and other documents which may be necessary in
connection with the transactions contemplated hereby shall be accurate and
complete and shall comply in all material respects with Federal securities
and other laws and regulations applicable thereto;
(j) The Successor Trust, on behalf of each Series, shall use all
reasonable efforts to obtain the approvals and authorizations required by
the 1933 Act, the 1940 Act and such state securities laws as it may deem
appropriate in order to operate after the Closing Date;
(k) To the Successor Trust's knowledge, no consent, approval,
authorization or order of any court or governmental authority is required
for the consummation by each Series of the transactions contemplated
herein, except such as shall have been obtained prior to the Closing Date
under the 1933 Act, the 1934 Act and the 1940 Act and such as may be
required under state securities laws.
5. COVENANTS OF THE CURRENT TRUST AND THE SUCCESSOR TRUST
5.1 The Current Trust covenants that the Series Shares are not being
acquired for the purpose of making any distribution thereof, other than in
accordance with the terms of this Agreement.
5.2 The Current Trust covenants that it will assist the Successor
Trust in obtaining such information as the Successor Trust reasonably
requests concerning the beneficial ownership of the units of each Current
Portfolio.
5.3 The Current Trust will, from time to time, as and when requested
by the Successor Trust execute and deliver, or cause to be executed and
delivered, all such assignments and other instruments, and will take or
cause to be taken such further action, as the Successor Trust may deem
necessary or desirable in order to vest in, and confirm to, the Successor
Trust on behalf of each Series, title to, and possession of, all the assets
of each Current Portfolio to be sold, assigned, transferred and delivered
to the Corresponding Series hereunder and otherwise to carry out the intent
and purpose of this Agreement.
5.4 The Successor Trust will, from time to time as and when requested
by the Current Trust, execute and deliver or cause to be executed and
delivered all such assignments and other instruments, and will take or
cause to be taken such further action, as the Current Trust may deem
necessary or desirable in order to vest in, and confirm to, the Current
Trust, title to, and possession of, the Series Shares issued, sold,
assigned, transferred and delivered hereunder and otherwise to carry out
the intent and purpose of this Agreement.
5.5 Subject to the provisions of this Agreement, the Successor Trust
and the Current Trust each will take, or cause to be taken, all action and
will do or cause to be done all things reasonably necessary, proper or
advisable to consummate and make effective the transactions contemplated by
this Agreement.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CURRENT TRUST
The obligations of the Current Trust to consummate the transactions
provided for herein shall be subject to the performance by the Successor
Trust of all the obligations to be performed by the Successor Trust
hereunder on or before the Closing Date and, in addition thereto, to the
following further conditions:
6.1 All representations and warranties of the Successor Trust
contained in this Agreement shall be true and correct in all material
respects as of the date hereof and except as they may be affected by the
transactions contemplated by this Agreement, as of the Closing Date, with
the same force and effect as if made on and as of the Closing Date, and
6.2 The Successor Trust shall have delivered on the Closing Date to
the Current Trust a certificate executed in the Successor Trust's name by
its President or Vice President, in form and substance satisfactory to the
Current Trust, dated as of the Closing Date, to the effect that the
representations and warranties of the Successor Trust made in this
Agreement are true and correct at and as of the Closing Date, except as
they may be affected by the transactions contemplated by this Agreement,
and as to such other matters as the Company shall reasonably request.
Each of the foregoing conditions precedent may be waived by the Current
Trust.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SUCCESSOR TRUST
The obligations of the Successor Trust to consummate the transactions
provided for herein shall be subject to the performance by the Current
Trust of all the obligations to be performed by the Current Trust hereunder
on or before the Closing Date and, in addition thereto, to the following
further conditions:
7.1 All representations and warranties of the Current Trust contained
on this Agreement shall be true and correct in all material respects as of
the date hereof and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Closing Date, with the same force
and effect as if made on and as of the Closing Date;
7.2 The Current Trust shall have delivered to the Successor Trust on
the Closing Date a statement of its assets and liabilities, prepared in
accordance with generally accepted accounting principles consistently
applied, together with a certificate of the Treasurer or Assistant
Treasurer of the Current Trust as to the aggregate asset value of each
Current Portfolio's portfolio securities as of the Closing Date; and
7.3 The Current Trust shall have delivered to the Successor Trust on
the Closing Date a certificate executed in the Current Trust's name by its
President or Vice President, in form and substance satisfactory to the
Successor Trust, dated as of the Closing Date, to the effect that the
representations and warranties of the Current Trust made in this Agreement
are true and correct at and as of the Closing Date, except as they may be
affected by the transactions contemplated by this Agreement, and as to such
other matters as the Successor Trust shall reasonably request.
Each of the foregoing conditions precedent may be waived by the Successor
Trust.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CURRENT TRUST AND
THE SUCCESSOR TRUST
The obligations of the Current Trust and the Successor Trust are each
subject to the further conditions that on or before the Closing Date:
8.1 This Agreement and the transactions contemplated herein with
respect to each Current Portfolio and its Corresponding Series shall have
been approved by the requisite vote of the unitholders of each Current
Portfolio in accordance with applicable law;
8.2 On the Closing Date no action, suit or other proceeding shall be
pending before any court or governmental agency in which it is sought to
restrain or prohibit or to obtain damages or other relief in connection
with, the transactions contemplated hereby;
8.3 All consents of other parties and all other consents, orders and
permits of Federal, state and local regulatory authorities (including those
of the Securities and Exchange Commission, the OCC, the PWBA, and of state
securities authorities) deemed necessary by the Successor Trust or the
Current Trust to permit consummation, in all material respects, of the
transactions contemplated hereby shall have been obtained, except where
failure to obtain any such consent, order or permit would not involve a
risk of a material adverse effect on the assets or properties of the
Successor Trust or the Current Trust, provided that either party hereto may
for itself waive any of such conditions;
8.4 The Successor Trust shall have taken all necessary action so that
it shall be a registered open-end investment company under the 0000 Xxx.
8.5 The Current Trust and the Successor Trust shall have received on
or before the Closing Date an opinion of Xxxxxxxxx & Xxxxxxx LLP
satisfactory to the Current Trust and the Successor Trust, substantially to
the effect that for Federal income tax purposes:
(a) The acquisition of all of the assets of a Current Portfolio by
the Corresponding Series solely in exchange for the issuance of Series
Shares of such Series to the Current Trust on behalf of that Current
Portfolio and the assumption of that Current Portfolio's liabilities by
such Series, followed by the distribution in liquidation by the Current
Trust of such Series Shares to the unitholders of that Current Portfolio in
exchange for their units of that Current Portfolio and the liquidation and
termination of that Current Portfolio, will constitute a reorganization
within the meaning of Section 368 (a) (1) of the Code (the
"Reorganization"), and that Current Portfolio and the Corresponding Series
will each be "a party to a reorganization" within the meaning of Section
368(b) of the Code;
(b) No gain or loss will be recognized by each Current Portfolio (i)
upon the transfer of all of its assets to the Corresponding Series solely
in exchange for the issuance of Series Shares of the Corresponding Series
to the Current Trust on behalf of such Current Portfolio and the assumption
by the Corresponding Series of that Current Portfolio's liabilities and
(ii) the distribution by the Current Trust of such Series Shares to the
shareholders of such Current Portfolio;
(c) No gain or loss will be recognized by any Series upon its receipt
of a Current Portfolio's assets solely in exchange for the issuance of the
Series Shares of such Series to the corresponding Current Portfolio and the
assumption by that Series of the liabilities of the corresponding Current
Portfolio;
(d) The tax basis of each Current Portfolio's assets in the hands of
the Corresponding Series will be, in each instance, the same as the basis
of those assets in that Current Portfolio's hands immediately before the
transfer;
(e) Each Series' tax holding period for the assets transferred to
such Series by a Current Portfolio will, in each instance, include the
Current Portfolio's tax holding period for those assets;
(f) No gain or loss will be recognized by a Current Portfolio
unitholder upon the exchange of all of their units in a Current Portfolio
solely for Series Shares as part of the transaction;
(g) The tax basis of the Series Shares to be received by unitholders
of a Current Portfolio will be the same as the tax basis of the Current
Portfolio units surrendered in exchange therefor;
(h) The tax holding period of the Series Shares to be received by
Current Portfolio unitholders will include, for each Current Portfolio
unitholder, his tax holding period for the Current Portfolio units
surrendered in exchange therefor, provided that the units of such Current
Portfolio were held as capital assets on the date of the exchange; and
(i) (A) under Section 408(e) of the Code with respect to XXX accounts
maintained in conformity with Section 408(a) thereof, or (B) under Section
501(a) of the Code with respect to single or commingled pension or profit-
sharing trusts, including a single or commingled pension or profit-sharing
trust benefitting one or more self-employed individuals, maintained in
conformity with Section 401(a) thereof, the Reorganization does not trigger
(I) any taxes or penalties under the Employee Retirement Income Security
Act of 1974, as amended, nor (II) a disqualification of such trusts with
respect to their tax-exempt status under Section 408(e) or 501(a) of the
Code, as the case may be.
The Current Trust and Successor Trust each agree to make and provide
representations with respect to the Current Portfolios and the
Corresponding Series which are reasonably necessary to enable Xxxxxxxxx &
Xxxxxxx LLP to deliver an opinion substantially as set forth in this
paragraph 8.5.
Each of the foregoing conditions precedent to the obligations of a
party may be waived by that party.
9. ENTIRE AGREEMENT
The Successor Trust and the Current Trust agree that neither party has
made any representation, warranty or covenant not set forth herein and that
this Agreement constitutes the entire agreement between the parties. The
representations, warranties and covenants contained herein or in any
document delivered pursuant hereto or in connection herewith shall survive
the consummation of the transactions contemplated hereunder.
10. TERMINATION
10.1 This Agreement may be terminated by the mutual agreement of the
Successor Trust and the Current Trust. In addition, either the Successor
Trust or the Current Trust may at its option terminate this Agreement at or
prior to the Closing Date because:
(a) A material breach by the other of any representations,
warranties or agreements contained herein to be performed at or prior
to the Closing Date; or
(b) A condition herein expressed to be precedent to the
obligations of the terminating party has not been met and it
reasonably appears that it will not or cannot be met.
10.2 In the event of any such termination, there shall be no liability
for damages on the part of the Successor Trust or the Current Trust, or
their respective trustees or officers, to the other party or its trustees
or officers.
11. AMENDMENT
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the parties; provided,
however, that following the Shareholders' Meeting called by the Current
Trust pursuant to paragraph 5.1, no such amendment may have the effect of
changing the provisions for determining the number of Series Shares to be
paid to the unitholders of the Current Trust under this Agreement to their
detriment without their further approval.
12. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT
12.1 The article and paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
12.2 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
12.3 This Agreement shall be governed by and construed in accordance
with the rules and regulations of the OCC and the laws of the State of
Delaware.
12.4 This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, but no
assignment or transfer hereof or of any rights or obligations hereunder
shall be made by any party without the written consent of the other party.
Nothing herein expressed or implied is intended or shall be construed to
confer upon or give any person, firm or corporation other than the parties
hereto and their respective successors and assigns any rights or remedies
under or by reason of this Agreement.
12.5 The parties hereto recognize that the Current Trust is a
collective investment trust and the Successor Trust is a business trust and
all parties agree that any claim arising hereunder or by reason hereof
shall not be enforceable against the Supervisory Committee of the Current
Trust, the unitholders of the Current Trust, the Successor Trustees or the
Successor Trust but only against the assets of the applicable Current
Portfolio and of its Corresponding Series, respectively.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officer.
Canandaigua National Collective Investment Fund for
Qualified Trusts
By:_________________________________
Title:_________________________________
The Canandaigua Funds
By:________________________________
Title:________________________________
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