Common use of CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS Clause in Contracts

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of the Corporation, on behalf of each Acquiring Fund, to consummate the transactions provided for herein shall be subject, at its election, to the performance by the corresponding Acquired Fund of all of the obligations to be performed by it hereunder at or before the Closing and, in addition thereto, the following further conditions: 7.1 All representations and warranties of the Corporation, on behalf of the Acquired Fund, 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, with the same force and effect as if made at and as of the Closing; and there shall be (i) no pending or threatened litigation brought by any person (other than the Acquiring Fund, its adviser or any of their affiliates) against the Acquired Fund or its investment adviser, directors or officers arising out of this Agreement and (ii) no facts known to the Acquired Fund which the Acquired Fund reasonably believes might result in such litigation. 7.2 The Acquired Fund shall have delivered to the Acquiring Fund a statement of the Acquired Fund’s assets and liabilities as of the Closing, certified by the Treasurer or an Assistant Treasurer of the Corporation. 7.3 The Acquired Fund shall have delivered to the Acquiring Fund at the Closing a certificate executed in its name by the Corporation’s President, Treasurer, an Assistant Treasurer or a Vice President, in a form reasonably satisfactory to the Acquiring Fund, and dated as of the Closing Date, to the effect that the representations and warranties of the Corporation with respect to the Acquired Fund made in this Agreement are true and correct and as of the Closing, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquiring Fund shall reasonably request. 7.4 The Acquired Fund shall have performed all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by the Acquired Fund at or before the Closing.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of the Corporation, on behalf of each Acquiring Fund, Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by Pacific Capital and the corresponding Acquired Fund of all of the obligations to be performed by it them hereunder at on or before the Closing Date and, in addition thereto, to the following further conditions: 7.1 All representations and warranties of the Corporation, on behalf of the Acquired Fund, 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, with the same force and effect as if made at and as of the Closing; and there shall be (i) no pending or threatened litigation brought by any person (other than the Acquiring Fund, its adviser or any of their affiliates) against the Acquired Fund or its investment adviser, directors or officers arising out of this Agreement and (ii) no facts known to the Acquired Fund which the Acquired Fund reasonably believes might result in such litigation. 7.2 6.1. The Acquired Fund shall have delivered to the Acquiring Fund a statement of certificate executed on the Acquired Fund’s assets behalf by Pacific Capital’s President or any Vice President and liabilities as of the Closing, certified by the its Treasurer or an Assistant Treasurer of the Corporation. 7.3 The Acquired Fund shall have delivered to the Acquiring Fund at the Closing a certificate executed in its name by the Corporation’s President, Treasurer, an Assistant Treasurer or a Vice President, in a form and substance reasonably satisfactory to the Acquiring Fund, Fund and dated as of the Closing Date, to the effect that the representations and warranties of the Corporation with respect to Pacific Capital and the Acquired Fund made in this Agreement are true and correct at and as of the ClosingClosing Date, except as they may be affected by the transactions contemplated by this Agreement, and as that Pacific Capital and the Acquired Fund have complied with all the covenants and agreements and satisfied all of the conditions on their parts to such other matters as be performed or satisfied under this Agreement at or prior to the Acquiring Fund shall reasonably requestClosing Date. 7.4 6.2. The Acquired Fund shall have performed all furnished to the Acquiring Fund a copy of the covenants tax books and complied with all records of the provisions Acquired Fund necessary for purposes of preparing any tax returns required by this Agreement law to be performed filed by the Acquiring Fund after the Closing Date, as well as a statement of the Acquired Fund’s assets and liabilities, with values determined as provided in Section 2 of this Agreement, together with a list of Investments with their respective tax costs, all as of the Valuation Date, certified on the Acquired Fund’s behalf by Pacific Capital’s President (or complied with any Vice President) and Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquired Fund since [ ], 2010. 6.3. The assets of the Acquired Fund to be acquired by the Acquiring Fund shall not include any assets which the Acquiring Fund, by reason of limitations contained in FundVantage’s Agreement and Declaration of Trust or of investment restrictions disclosed in the Acquiring Fund Prospectus in effect on the Closing Date, may not properly acquire. 6.4. All actions and proceedings taken by the Acquired Fund at in connection with the transactions contemplated by this Agreement and all material documents related thereto shall be reasonably satisfactory in form and substance to the Acquiring Fund. 6.5. The Acquired Fund shall have furnished to the Acquiring Fund a certificate, signed on its behalf by the President or before any Vice President and the ClosingTreasurer or any Assistant Treasurer of Pacific Capital, as to the adjusted tax basis in the hands of the Acquired Fund of the securities delivered to the Acquiring Fund pursuant to this Agreement, together with any such other evidence as to such adjusted tax basis as the Acquiring Fund may reasonably request. 6.6. The Acquired Fund’s custodian shall have delivered to the Acquiring Fund a certificate identifying all of the assets of the Acquired Fund held by such custodian as of the Valuation Date. 6.7. The Acquired Fund’s transfer agent shall have provided to the Acquiring Fund’s transfer agent (i) the originals or true copies of all of the records of the Acquired Fund in the possession of the Acquired Fund’s transfer agent as of the Closing Date, (ii) a record specifying the number of Acquired Fund Shares outstanding as of the Valuation Date and (iii) a record specifying the name and address of each holder of record of any Acquired Fund Shares and the number of Acquired Fund Shares held of record by each such shareholder as of the Valuation Date. The Acquired Fund’s transfer agent shall also have provided the Acquiring Fund with a certificate confirming that the acts specified in the preceding sentence have been taken and that the information so supplied is complete and accurate to the best knowledge of the transfer agent. 6.8. All of the issued and outstanding shares of the Acquired Fund shall have been offered for sale and sold in conformity with all applicable state securities or blue sky laws (including any applicable exemptions therefrom) and, to the extent that any audit of the records of the Acquired Fund or its transfer agent by the Acquiring Fund or its agents shall have revealed otherwise, either (i) the Acquired Fund shall have taken all actions determined by the Acquiring Fund or its counsel to be necessary to remedy any prior failure on the part of the Acquired Fund to have offered for sale and sold such shares in conformity with such laws or (ii) the Acquired Fund shall have furnished (or caused to be furnished) surety, or deposited (or caused to be deposited) assets in escrow, for the benefit of the Acquiring Fund in amounts sufficient and upon terms satisfactory, as determined by the Acquiring Fund or its counsel, to indemnify the Acquiring Fund against any expense, loss, claim, damage or liability whatsoever that may be asserted or threatened by reason of such failure on the part of the Acquired Fund to have offered and sold such shares in conformity with such laws. 6.9. The Acquiring Fund shall have received a favorable opinion of Xxxxxxx XxXxxxxxx LLP, counsel to the Acquired Fund for the transactions contemplated hereby, dated the Closing Date, with such assumptions and limitations as shall be in the opinion of Xxxxxxx XxXxxxxxx LLP appropriate to render the opinions expressed therein, and in a form satisfactory to the Acquiring Fund, to the following effect: (a) Pacific Capital has been formed and is validly existing as a voluntary association with transferable shares of beneficial interest commonly referred to as a “Massachusetts business trust” under the laws of the Commonwealth of Massachusetts and has power as a voluntary association to own all of its properties and assets and to carry on its business as an open-end registered investment company as described in the Acquired Fund Prospectus, and the Acquired Fund is a separate series thereof duly constituted in accordance with the Declaration of Trust and Bylaws of Pacific Capital. (b) This Agreement has been duly authorized, executed and delivered by Pacific Capital, on behalf of the Acquired Fund, and assuming the due authorization, execution and delivery of this Agreement by FundVantage, on behalf of the corresponding Acquiring Fund, is a valid and binding obligation of the Acquired Fund enforceable against Pacific Capital and the Acquired Fund in accordance with its terms, subject to such counsel’s standard exceptions. (c) The Acquired Fund has the power as a series of a business trust to sell, assign, transfer and deliver the assets and liabilities to be transferred by it hereunder. (d) The execution and delivery of this Agreement by Pacific Capital on behalf of the Acquired Fund did not, and the performance by Pacific Capital and the Acquired Fund of their obligations hereunder will not, violate Pacific Capital’s Declaration of Trust or Bylaws, or any provision of any agreement described in or filed with the Acquired Fund Prospectus or the Acquired Fund’s registration statement on Form N-1A to which Pacific Capital or the Acquired Fund is a party or by which it is bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any judgment or decree to which Pacific Capital or the Acquired Fund is a party or by which it or its property is bound. (e) To the knowledge of such counsel, no consent, approval, authorization or order of any Massachusetts or federal court or governmental authority is required for the consummation by Pacific Capital or the Acquired Fund of the transactions contemplated by this Agreement, except such as have been obtained. (f) Pacific Capital is registered with the Securities and Exchange Commission as an investment company under the 1940 Act. (g) In addition, such counsel shall confirm whether, as of the Closing Date, it is representing Pacific Capital or the Acquired Fund in any pending litigation in which Pacific Capital or the Acquired Fund is a named defendant.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of the Corporation, on behalf of each Acquiring Fund, to consummate the transactions provided for herein shall be subject, at its election, to the performance by the corresponding Acquired Fund of all of the obligations to be performed by it hereunder at or before the Closing and, in addition thereto, the following further conditions: 7.1 (a) All representations and warranties of the Corporation, on behalf of the Acquired Fund, Funds 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 E-4 (b) The Acquiring Funds shall have received an opinion of counsel for the transactions contemplated Acquired Funds, dated as of the Effective Time, addressed to and in form and substance satisfactory to counsel for the Acquiring Funds, to the effect that (i) the Acquired Funds are duly organized and validly existing series of MSIF under the laws of the State of Maryland; (ii) MSIF is an open-end management investment company registered under the 1940 Act; (iii) this Agreement and the Reorganization provided for herein and the execution of this Agreement have been duly authorized and approved by all requisite action of each of the Acquired Funds and this Agreement has been duly executed and delivered by MSIF on behalf of the Acquired Funds and is a valid and binding obligation of the Acquired Funds, subject to applicable bankruptcy, insolvency, fraudulent conveyance and similar laws or court decisions regarding enforcement of creditors' rights generally; (iv) to the best of counsel's knowledge after reasonable inquiry, no consent, approval, order or other authorization of any Federal or state court or administrative or regulatory agency is required for each of the Acquired Funds to enter into this Agreement or carry out its terms that has not been obtained other than where the failure to obtain any such consent, approval, order or authorization would not have a material adverse effect on the operations of the Acquired Funds; and (v) upon consummation of this Agreement, as the Acquiring Funds shall have acquired all of the ClosingAcquired Funds' assets listed in the Statement of Assets and Liabilities, with the same force free and effect as if made at and as clear of the Closing; and there shall be (i) no pending all liens, encumbrances or threatened litigation brought by any person (other than the Acquiring Fund, its adviser or any of their affiliates) against the Acquired Fund or its investment adviser, directors or officers arising out of this Agreement and (ii) no facts known to the Acquired Fund which the Acquired Fund reasonably believes might result in such litigationadverse claims. 7.2 (c) The Acquired Fund Funds shall have delivered to the Acquiring Fund a statement of Funds at the Effective Time the Acquired Fund’s assets Funds' Statement of Assets and liabilities as Liabilities, prepared in accordance with generally accepted accounting principles consistently applied, together with a certificate of the Closing, certified by the Treasurer or an Assistant Treasurer of the Corporation. 7.3 The Acquired Fund shall have delivered Funds as to the Acquiring Fund at the Closing a certificate executed in its name by the Corporation’s President, Treasurer, an Assistant Treasurer or a Vice President, in a form reasonably satisfactory to the Acquiring Fund, and dated as aggregate asset value of the Closing Date, to the effect that the representations and warranties of the Corporation with respect to the Acquired Fund made in this Agreement are true and correct and as of the Closing, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquiring Fund shall reasonably requestFunds' portfolio securities. 7.4 The Acquired Fund shall have performed all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by the Acquired Fund at or before the Closing.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of the Corporation, on behalf of each Acquiring Fund, Funds to consummate complete the transactions provided for herein shall be subject, at its the FundX Investment Trust’s election, to the performance by the corresponding Acquired Fund of all of the obligations to be performed by it hereunder at or before the Closing and, in addition thereto, the following further conditions: 7.1 (a) All representations and warranties of the Corporation, on behalf of the Acquired Fund, Funds 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 ClosingEffective Time, with the same force and effect as if made at on and as of the Closing; and there shall be (i) no pending or threatened litigation brought by any person (other than the Acquiring Fund, its adviser or any of their affiliates) against the Acquired Fund or its investment adviser, directors or officers arising out of this Agreement and (ii) no facts known to the Acquired Fund which the Acquired Fund reasonably believes might result in such litigationEffective Time. 7.2 The Acquired Fund (b) PMP shall have delivered to the Acquiring Fund Funds a statement of the each Acquired Fund’s assets Assets and liabilities Liabilities, as of the ClosingEffective Time, which is prepared in accordance with GAAP and certified by the Treasurer or an Assistant Treasurer of the CorporationPMP. 7.3 The Acquired Fund (c) PMP shall have delivered to the Acquiring Fund at the Closing Funds a certificate executed in the name of PMP by its name by the Corporation’s President, Treasurer, an Assistant President or Vice President and its Treasurer or a Vice PresidentAssistant Treasurer, in a form reasonably satisfactory to the Acquiring Fund, Funds and dated as of the Closing DateEffective Time, to the effect that the representations and warranties of the Corporation with respect to the Acquired Fund Funds, made in this Agreement are true and correct at and as of the ClosingEffective Time, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquiring Fund FundX Investment Trust shall reasonably request. 7.4 (d) The Acquired Fund Funds shall have performed all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by the Acquired Fund at Funds, on or before the ClosingEffective Time. (e) The Acquired Funds and the Acquiring Funds shall have agreed on the number of full and fractional Acquiring Fund Shares to be issued in connection with the Reorganization after such number has been calculated in accordance with paragraph 2.3. (f) FundX Investment Trust, on behalf of the Acquiring Funds, shall have received on the Closing Date the opinion of Pxxx Xxxxxxxx LLP, counsel to PMP (or local Massachusetts counsel with respect to matters governed by the laws of the Commonwealth of Massachusetts) (each such opinion may reasonably rely on certificates of officers or Trustees of PMP) dated as of the Closing Date, covering the following points: (i) PMP Trust is a business trust duly organized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts and has the power to own all of the Acquired Funds’ properties and assets, and to carry on its business, including that of the Acquired Funds, as presently conducted; (ii) The Agreement has been duly authorized, executed and delivered by PMP, on behalf of the Acquired Funds, and, assuming due authorization, execution and delivery of the Agreement by FundX Investment Trust, on behalf of the Acquiring Funds, is a valid and binding obligation of the PMP, on behalf of the Acquired Funds, enforceable against PMP in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles; (iii) The execution and delivery of the Agreement did not, and the consummation of the transactions contemplated hereby will not, result in a material violation of PMP’s Declaration of Trust or its By-Laws or any provision of any agreement (known to such counsel) to which PMP is a party or by which it is bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any agreement not disclosed to FundX Investment Trust, judgment or decree to which PMP is a party or by which it is bound; (iv) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the Commonwealth of Massachusetts is required to be obtained by PMP in order to consummate the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act (it being understood that counsel has made no independent investigation or analysis with respect to state securities laws and is not opining on such laws); (v) PMP is a registered investment company classified as a management company of the open-end type with respect to each series of shares it offers, including those of the Acquired Funds, under the 1940 Act and its registration with the Commission as an investment company under the 1940 Act is in full force and effect; (vi) The outstanding shares of the Acquired Funds are registered under the 1933 Act, and such registration is in full force and effect; and (vii) To the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to PMP or any Acquired Fund or any of their respective properties or assets, and neither PMP nor any Acquired Fund is a party to or subject to the provisions of any order, decree or judgment of any court or governmental body which materially and adversely affects its business.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of the Corporation, on behalf of each Acquiring Fund, to consummate the transactions provided for herein shall be subject, at its election, to the performance by the corresponding Acquired Fund of all of the obligations to be performed by it hereunder at or before the Closing and, in addition thereto, the following further conditions: 7.1 (a) All representations and warranties of the Corporation, on behalf of the Acquired Fund, Funds 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 ClosingEffective Time, with the same force and effect as if made at on and as of the Closing; Effective Time. (b) The Acquiring Funds shall have received an opinion of counsel, dated as of the Effective Time, addressed to and there shall be in form and substance satisfactory to counsel for the Acquiring Funds, to the effect that (i) no pending or threatened litigation brought by any person (other than the Acquiring Fund, its adviser or any of their affiliates) against the Acquired Fund or its Funds are duly organized and validly existing series of the Trust under the laws of the Commonwealth of Massachusetts; (ii) the Trust is an open-end management investment adviser, directors or officers arising out company registered under the 1940 Act; (iii) this Agreement and the Reorganization provided for herein and the execution of this Agreement have been duly authorized and approved by all requisite action of each of the Acquired Funds and this Agreement has been duly executed and delivered by the Trust on behalf of the Acquired Funds and is a valid and binding obligation of the Acquired Funds, subject to applicable bankruptcy, insolvency, fraudulent conveyance and similar laws or court decisions regarding enforcement of creditors' rights generally; (iv) to the best of counsel's knowledge after reasonable inquiry, no consent, approval, order or other authorization of any Federal or state court or administrative or regulatory agency is required for each of the Acquired Funds to enter into this Agreement or carry out its terms that has not been obtained other than where the failure to obtain any such consent, approval, order or authorization would not have a material adverse effect on the operations of the Acquired Funds; and (iiv) no facts known to upon consummation of this Agreement, the Acquiring Funds shall have acquired all of the Acquired Fund which Funds's assets listed in the Acquired Fund reasonably believes might result in such litigationStatement of Assets and Liabilities, free and clear of all liens encumbrances or adverse claims. 7.2 (c) The Acquired Fund Funds shall have delivered to the Acquiring Fund a statement of Funds at the Effective Time the Acquired Fund’s assets Funds' Statement of Assets and liabilities as Liabilities, prepared in accordance with generally accepted accounting principles consistently applied, together with a certificate of the Closing, certified by the Treasurer or an Assistant Treasurer of the Corporation. 7.3 The Acquired Fund shall have delivered Funds as to the Acquiring Fund at the Closing a certificate executed in its name by the Corporation’s President, Treasurer, an Assistant Treasurer or a Vice President, in a form reasonably satisfactory to the Acquiring Fund, and dated as aggregate asset value of the Closing Date, to the effect that the representations and warranties of the Corporation with respect to the Acquired Fund made in this Agreement are true and correct and as of the Closing, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquiring Fund shall reasonably requestFunds' portfolio securities. 7.4 The Acquired Fund shall have performed all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by the Acquired Fund at or before the Closing.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The 7.1. With respect to the Reorganization, the obligations of the CorporationAcquiring Entity, on behalf of each the Acquiring FundFunds, to consummate the transactions provided for herein and the effectiveness of the Reorganizations shall be subject, at its the Acquiring Funds’ election, to the performance by the corresponding Acquired Fund Target Entity and the Target Funds of all of the obligations to be performed by it hereunder at on or before the Closing Effective Date and, in addition thereto, the following further conditions: 7.1 (a) All representations and warranties of the Corporation, on behalf of Target Entity and the Acquired Fund, Target Funds 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 ClosingEffective Date, with the same force and effect as if made at on and as of the Closing; and there shall be Effective Date; (ib) no pending or threatened litigation brought by any person (other than the Acquiring Fund, its adviser or any of their affiliates) against the Acquired Fund or its investment adviser, directors or officers arising out of this Agreement and (ii) no facts known to the Acquired Fund which the Acquired Fund reasonably believes might result in such litigation. 7.2 The Acquired Fund Target Entity shall have delivered to the Acquiring Fund a statement of Entity on the Acquired Fund’s assets and liabilities as of the Closing, certified by the Treasurer or an Assistant Treasurer of the Corporation. 7.3 The Acquired Fund shall have delivered to the Acquiring Fund at the Closing Effective Date a certificate executed in its name by the Corporation’s President, its President or Vice President and Treasurer, an Assistant Treasurer or a Vice President, in a form and substance reasonably satisfactory to the Acquiring Fund, Entity and dated as of the Closing Effective Date, to the effect that the representations and warranties of the Corporation or with respect to the Acquired Fund Target Funds made in this Agreement are true and correct in all material respects at and as of the ClosingEffective Date, except as they may be affected by the transactions contemplated by this Agreement; (c) The Target Entity, on behalf of the Target Funds, shall have delivered to the Acquiring Entity (i) a statement of the Target Funds’ Assets, together with a list of portfolio securities of the Target Funds showing the adjusted tax basis of such securities by lot and the holding periods of such securities, as of the Effective Date, certified by the Treasurer of the Target Entity, (ii) the Target Fund Shareholder Documentation, (iii) the FIN 48 Workpapers, and as (iv) to such other matters as the Acquiring Fund extent permitted by applicable law, all information pertaining to, or necessary or useful in the calculation or demonstration of, the investment performance of the Target Funds; (d) The Target Custodian shall reasonably request.have delivered the certificate contemplated by Sections 3.2(b) of this Agreement, duly executed by an authorized officer of the Target Custodian; 7.4 (e) The Acquired Fund Target Entity and the Target Funds shall have performed all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by the Acquired Fund at Target Entity and the Target Funds, on or before the ClosingEffective Date; (f) The Acquiring Entity shall have received a favorable opinion of Sxxxxxxx Ronon Sxxxxxx & Yxxxx LLP, counsel to the Target Entity, dated the Effective Date and in a form satisfactory to the Acquiring Entity, to the following effect: (i) The Target Entity is duly organized, validly existing and in good standing under the laws of the State of Delaware and has power to own all of its properties and assets and to carry on its business as presently conducted and each Target Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the organizational documents of the Target Entity; (ii) This Agreement has been duly authorized, executed and delivered on behalf of the Target Entity and, assuming the N-14 Registration Statement complies with applicable federal securities laws and assuming the due authorization, execution and delivery of this Agreement by all other parties, is the valid and binding obligation of the Target Entity enforceable against the Target Entity in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and other equitable principles; (iii) The execution and delivery of this Agreement did not, and the performance by the Target Entity of its obligations hereunder, including the transfer of the Assets, will not, violate the Target Entity’s organizational documents; (iv) The Target Entity is registered with the Commission as an open-end management investment company under the 1940 Act, and, to such counsel’s knowledge, its registration with the Commission is in full force and effect; (v) Except as disclosed in writing to the Acquiring Entity, such counsel knows of no material legal proceedings pending against the Target Entity; and (vi) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by the Target Entity of the transactions contemplated by this Agreement except such as have been obtained; and (g) In connection with the opinion contemplated by Section 7.1(f) of this Agreement, it is understood that counsel may reasonably rely upon the representations made in this Agreement as well as certificates of officers of the Target Entity.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of the CorporationMainStay Funds Trust, on behalf of each the Acquiring FundFunds, to consummate complete the transactions provided for herein shall be subject, at its MainStay Funds Trust’s election, to the performance by Eclipse Funds, on behalf of the corresponding Acquired Fund Funds, of all of the obligations to be performed by it hereunder at on or before the Closing Date and, in addition thereto, the following further conditions: 7.1 All representations and warranties of the CorporationEclipse Funds, on behalf of the Acquired FundFunds, contained in this Agreement Plan 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 AgreementPlan, as of the ClosingClosing Date, with the same force and effect as if made at on and as of the Closing; and there shall be (i) no pending or threatened litigation brought by any person (other than the Acquiring Fund, its adviser or any of their affiliates) against the Acquired Fund or its investment adviser, directors or officers arising out of this Agreement and (ii) no facts known to the Acquired Fund which the Acquired Fund reasonably believes might result in such litigation.Closing Date; 7.2 The Acquired Fund Eclipse Funds shall have delivered to the Acquiring Fund Funds a statement of the each Acquired Fund’s assets Assets and liabilities Liabilities, as of the ClosingClosing Date, certified by the Treasurer or an Assistant Treasurer of Eclipse Funds; 7.3 Eclipse Funds, on behalf of the Corporation. 7.3 The Acquired Fund Funds, shall have delivered to the Acquiring Fund at the Closing Funds a certificate executed in the names of the Acquired Funds by its name by the Corporation’s President, Treasurer, an Assistant President or Vice President and its Treasurer or a Vice PresidentAssistant Treasurer, in a form reasonably satisfactory to the Acquiring Fund, Funds and dated as of the Closing Date, to the effect that the representations and warranties of the Corporation with respect to Eclipse Funds, on behalf of the Acquired Fund Funds, made in this Agreement Plan are true and correct at and as of the ClosingClosing Date, except as they may be affected by the transactions contemplated by this AgreementPlan, and as to such other matters as the Acquiring Fund MainStay Funds Trust shall reasonably request.; 7.4 The Eclipse Funds, on behalf of the Acquired Fund Funds, shall have performed all of the covenants and complied with all of the provisions required by this Agreement Plan to be performed or complied with by Eclipse Funds, on behalf of the Acquired Fund at Funds, on or before the ClosingClosing Date; 7.5 The Acquired Funds and the Acquiring Funds shall have agreed on the number of full and fractional Investor Class, Class A, Class B, Class C, Class I, Class R1, Class R2 and Class R3 Acquiring Fund Shares (as applicable) to be issued in connection with the Reorganization after such number has been calculated in accordance with paragraph 1.1; and 7.6 The Acquired Funds shall have declared and paid a distribution or distributions prior to the Closing that, together with all previous distributions, shall have the effect of distributing to its shareholders (i) all of its investment company taxable income and all of its net realized capital gains, if any, for the period from the close of its last fiscal year to 4:00 p.m. Eastern time on the Closing Date; and (ii) any undistributed investment company taxable income and net realized capital gains from any period to the extent not otherwise already distributed.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of the Corporation, on behalf of each Acquiring Fund, to consummate the transactions provided for herein shall be subject, at its election, to the performance by the corresponding Acquired Fund of all of the obligations to be performed by it hereunder at or before the Closing and, in addition thereto, the following further conditions: 7.1 (a) All representations and warranties of the Corporation, on behalf of the Acquired Fund, Funds 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 ClosingEffective Time, with the same force and effect as if made at on and as of the Closing; Effective Time. (b) The Acquiring Funds shall have received an opinion of counsel for the Acquired Funds, dated as of the Effective Time, addressed to and there shall be in form and substance satisfactory to counsel for the Acquiring Funds, to the effect that (i) no pending or threatened litigation brought by any person (other than the Acquiring Fund, its adviser or any of their affiliates) against the Acquired Fund or its Funds are duly organized and validly existing series of MSIF under the laws of the State of Maryland; (ii) MSIF is an open-end management investment adviser, directors or officers arising out company registered under the 1940 Act; (iii) this Agreement and the Reorganization provided for herein and the execution of this Agreement have been duly authorized and approved by all requisite action of each of the Acquired Funds and this Agreement has been duly executed and delivered by MSIF on behalf of the Acquired Funds and is a valid and binding obligation of the Acquired Funds, subject to applicable bankruptcy, insolvency, fraudulent conveyance and similar laws or court decisions regarding enforcement of creditors' rights generally; (iv) to the best of counsel's knowledge after reasonable inquiry, no consent, approval, order or other authorization of any Federal or state court or administrative or regulatory agency is required for each of the Acquired Funds to enter into this Agreement or carry out its terms that has not been obtained other than where the failure to obtain any such consent, approval, order or authorization would not have a material adverse effect on the operations of the Acquired Funds; and (iiv) no facts known to upon consummation of this Agreement, the Acquiring Funds shall have acquired all of the Acquired Fund which Funds' assets listed in the Acquired Fund reasonably believes might result in such litigationStatement of Assets and Liabilities, free and clear of all liens, encumbrances or adverse claims. 7.2 (c) The Acquired Fund Funds shall have delivered to the Acquiring Fund a statement of Funds at the Effective Time the Acquired Fund’s assets Funds' Statement of Assets and liabilities as Liabilities, prepared in accordance with generally accepted accounting principles consistently applied, together with a certificate of the Closing, certified by the Treasurer or an Assistant Treasurer of the Corporation. 7.3 The Acquired Fund shall have delivered Funds as to the Acquiring Fund at the Closing a certificate executed in its name by the Corporation’s President, Treasurer, an Assistant Treasurer or a Vice President, in a form reasonably satisfactory to the Acquiring Fund, and dated as aggregate asset value of the Closing Date, to the effect that the representations and warranties of the Corporation with respect to the Acquired Fund made in this Agreement are true and correct and as of the Closing, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquiring Fund shall reasonably requestFunds' portfolio securities. 7.4 The Acquired Fund shall have performed all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by the Acquired Fund at or before the Closing.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of the Corporation, on behalf of each Acquiring Fund, to consummate the transactions provided for herein shall be subject, at its election, to the performance by the corresponding Acquired Fund of all of the obligations to be performed by it hereunder at or before the Closing and, in addition thereto, the following further conditions: 7.1 (a) All representations and warranties of the Corporation, on behalf of the Acquired Fund, Funds 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 ClosingEffective Time, with the same force and effect as if made at on and as of the Closing; Effective Time. At the Effective Time, AIC shall have received a certificate from the President or Vice President of UAM, dated as of such date, certifying on behalf of UAM that as of such date that the conditions set forth in this clause (a) have been met. (b) The Acquiring Funds shall have received an opinion of counsel for the Acquired Funds, dated as of the Effective Time, addressed to and there shall be in form and substance satisfactory to counsel for the Acquiring Funds, to the effect that (i) no pending or threatened litigation brought by any person (other than UAM is duly organized under the Acquiring Fund, its adviser or any laws of their affiliates) against the State of Maryland and the Acquired Fund or its Funds are validly existing series of UAM; (ii) UAM is an open-end management investment adviser, directors or officers arising out company registered under the 1940 Act; (iii) this Agreement and the Reorganization provided for herein and the execution of this Agreement have been duly authorized and approved by all requisite corporate action of UAM and this Agreement has been duly executed and delivered by UAM on behalf of the Acquired Funds and is a valid and binding obligation of UAM on behalf of the Acquired Funds, subject to applicable bankruptcy, insolvency, fraudulent conveyance and similar laws or court decisions regarding enforcement of creditors' rights generally and such counsel shall express no opinion with respect to the application of equitable principles on any proceeding, whether at law or in equity, as to the enforceability of any provision of the Agreement relating to remedies after default, as to availability of any specific or equitable relief of any kind or with respect to the provision of this Agreement intended to limit liability for a particular matter for a particular Acquired Fund and its assets, including but not limited to Section 21 of this Agreement; and (iiiv) no facts known to the Acquired Fund which best of counsel's knowledge, no consent, approval, order or other authorization of any Federal or state court or administrative or regulatory agency is required for UAM to enter into this Agreement on behalf of the Acquired Fund reasonably believes might result Funds or carry out its terms that has not been obtained other than where the failure to obtain any such consent, approval, order or authorization would not have a material adverse effect on the operations of the Acquired Funds. Such opinion may rely upon opinions of Xxxxxxx, Xxxxxxx and Xxxxxx, LLP to the extent set forth in such litigationopinion. 7.2 (c) The Acquired Fund Funds shall have delivered to the Acquiring Fund a statement of Funds at the Effective Time the Acquired Fund’s assets Funds' Statement of Assets and liabilities as Liabilities, prepared in accordance with generally accepted accounting principles consistently applied, together with a certificate of the Closing, certified by the Treasurer or an Assistant Treasurer of the CorporationAcquired Funds as to the aggregate asset value of the Acquired Funds' portfolio securities. 7.3 The Acquired Fund shall have delivered to (d) At the Acquiring Fund at the Closing a certificate executed in its name by the Corporation’s PresidentEffective Time, Treasurer, an Assistant Treasurer or a Vice President, in a form reasonably satisfactory to the Acquiring Fund, and dated as of the Closing Date, to the effect that the representations and warranties of the Corporation with respect to the Acquired Fund made in this Agreement are true and correct and as of the Closing, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquiring Fund shall reasonably request. 7.4 The Acquired Fund UAM shall have performed all of the covenants and complied in all material respects with all each of the provisions its agreements and covenants required by this Agreement to be performed or complied with by UAM prior to or at the Acquired Fund at Effective Time and AIC shall have received a certificate from the President or before Vice President of UAM, dated as of such date, certifying on behalf of UAM that the Closingconditions set forth in this clause (d) have been, continue to be, satisfied.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of the Corporation, on behalf of each Acquiring Fund, to consummate the transactions provided for herein shall be subject, at its election, to the performance by the corresponding Acquired Fund of all of the obligations to be performed by it hereunder at or before the Closing and, in addition thereto, the following further conditions: 7.1 (a) All representations and warranties of the Corporation, on behalf of the Acquired Fund, Funds 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 ClosingEffective Time, with the same force and effect as if made at on and as of the Closing; Effective Time. At the Effective Time, AIC shall have received a certificate from the President or Vice President of UAM, dated as of such date, certifying on behalf of UAM that as of such date that the conditions set forth in this clause (a) have been met. (b) The Acquiring Funds shall have received an opinion of counsel on behalf of the Acquired Funds, dated as of the Effective Time, addressed and there shall be in form and substance satisfactory to counsel for the Acquiring Funds, to the effect that (i) no pending or threatened litigation brought by any person (other than UAM is duly organized under the Acquiring Fund, its adviser or any laws of their affiliates) against the State of Maryland and the Acquired Fund or its Funds are validly existing series of UAM; (ii) UAM is an open-end management investment adviser, directors or officers arising out company registered under the 1940 Act; (iii) this Agreement and the Reorganization provided for herein and the execution of this Agreement have been duly authorized and approved by all requisite corporate action on behalf of UAM and this Agreement has been duly executed and delivered by UAM on behalf of the Acquired Funds and is a valid and binding obligation of UAM on behalf of the Acquired Funds, subject to applicable bankruptcy, insolvency, fraudulent conveyance and similar laws or court decisions regarding enforcement of creditors' rights generally and such counsel shall express no opinion with respect to the application of equitable principles on any proceeding, whether at law or in equity, as to the enforceability of any provision of this Agreement relating to remedies after default, as to availability of any specific or equitable relief of any kind or with respect to the provision of this Agreement intended to limit liability for a particular matter for a particular Acquired Fund and its assets, including but not limited to Section 21 of this Agreement; and (iiiv) no facts known to the Acquired Fund which best of counsel's knowledge, no consent, approval, order or other authorization of any Federal or state court or administrative or regulatory agency is required for UAM to enter into this Agreement on behalf of the Acquired Fund reasonably believes might result Funds or carry out its terms that has not been obtained other than where the failure to obtain any such consent, approval, order or authorization would not have a material adverse effect on the operations of the Acquired Funds. Such opinion may rely upon opinions of Xxxxxxx, Baetjer and Xxxxxx, LLP to the extent set forth in such litigationopinion. 7.2 The (c) Each Acquired Fund shall have delivered to the its respective Acquiring Fund at the Effective Time the Acquired Fund's Statement of Assets and Liabilities, prepared in accordance with generally accepted accounting principles consistently applied, together with a statement certificate of the Treasurer or Assistant Treasurer of the UAM as to the aggregate asset value of the Acquired Fund’s assets and liabilities as of the Closing, certified by the Treasurer or an Assistant Treasurer of the Corporation's portfolio securities. 7.3 The Acquired Fund shall have delivered to (d) At the Acquiring Fund at the Closing a certificate executed in its name by the Corporation’s PresidentEffective Time, Treasurer, an Assistant Treasurer or a Vice President, in a form reasonably satisfactory to the Acquiring Fund, and dated as of the Closing Date, to the effect that the representations and warranties of the Corporation with respect to the Acquired Fund made in this Agreement are true and correct and as of the Closing, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquiring Fund shall reasonably request. 7.4 The Acquired Fund UAM shall have performed all of the covenants and complied in all material respects with all each of the provisions its agreements and covenants required by this Agreement to be performed or complied with by UAM prior to or at the Acquired Fund at Effective Time and AIC shall have received a certificate from the President or before Vice President of UAM, dated as of such date, certifying on behalf of UAM that the Closingconditions set forth in this clause (d) have been, continue to be, satisfied.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of the Corporation, on behalf of each Acquiring Fund, to consummate the transactions provided for herein shall be subject, at its election, to the performance by the corresponding Acquired Fund of all of the obligations to be performed by it hereunder at or before the Closing and, in addition thereto, the following further conditions: 7.1 (a) All representations and warranties of the Corporation, on behalf of the Acquired Fund, Funds 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 ClosingEffective Time, with the same force and effect as if made at on and as of the Closing; Effective Time. At the Effective Time, AIC shall have received a certificate from the President or Vice President of UAM, dated as of such date, certifying on behalf of UAM that as of such date that the conditions set forth in this clause (a) have been met. (b) The Acquiring Funds shall have received an opinion of counsel for the Acquired Funds, dated as of the Effective Time, addressed to and there shall be in form and substance satisfactory to counsel for the Acquiring Funds, to the effect that (i) no pending or threatened litigation brought by any person (other than the Acquiring Fund, its adviser or any UAM is duly organized under the laws of their affiliates) against the State of Maryland and the Acquired Fund or its Funds are validly existing series of UAM; (ii) UAM is an open-end management investment adviser, directors or officers arising out company registered under the 1940 Act; (iii) this Agreement and the Reorganization provided for herein and the execution of this Agreement have been duly authorized and approved by all requisite corporate action of UAM and this Agreement has been duly executed and delivered by UAM on behalf of the Acquired Funds and is a valid and binding obligation of UAM on behalf of the Acquired Funds, subject to applicable bankruptcy, insolvency, fraudulent conveyance and similar laws or court decisions regarding enforcement of creditors' rights generally and such counsel shall express no opinion with respect to the application of equitable principles on any proceeding, whether at law or in equity, as to the enforceability of any provision of the Agreement relating to remedies after default, as to availability of any specific or equitable relief of any kind or with respect to the provision of this Agreement intended to limit liability for a particular matter for a particular Acquired Fund and its assets, including but not limited to Section 21 of this Agreement; and (iiiv) no facts known to the Acquired Fund which best of counsel's knowledge, no consent, approval, order or other authorization of any Federal or state court or administrative or regulatory agency is required for UAM to enter into this Agreement on behalf of the Acquired Fund reasonably believes might result Funds or carry out its terms that has not been obtained other than where the failure to obtain any such consent, approval, order or authorization would not have a material adverse effect on the operations of the Acquired Funds. [Such opinion may rely upon opinions of Xxxxxxx, Xxxxxxx and Xxxxxx, LLP to the extent set forth in such litigationopinion.] 7.2 (c) The Acquired Fund Funds shall have delivered to the Acquiring Fund a statement of Funds at the Effective Time the Acquired Fund’s assets Funds' Statement of Assets and liabilities as Liabilities, prepared in accordance with generally accepted accounting principles consistently applied, together with a certificate of the Closing, certified by the Treasurer or an Assistant Treasurer of the CorporationAcquired Funds as to the aggregate asset value of the Acquired Funds' portfolio securities. 7.3 The Acquired Fund shall have delivered to (d) At the Acquiring Fund at the Closing a certificate executed in its name by the Corporation’s PresidentEffective Time, Treasurer, an Assistant Treasurer or a Vice President, in a form reasonably satisfactory to the Acquiring Fund, and dated as of the Closing Date, to the effect that the representations and warranties of the Corporation with respect to the Acquired Fund made in this Agreement are true and correct and as of the Closing, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquiring Fund shall reasonably request. 7.4 The Acquired Fund UAM shall have performed all of the covenants and complied in all material respects with all each of the provisions its agreements and covenants required by this Agreement to be performed or complied with by UAM prior to or at the Acquired Fund at Effective Time and AIC shall have received a certificate from the President or before Vice President of UAM, dated as of such date, certifying on behalf of UAM that the Closingconditions set forth in this clause (d) have been, continue to be, satisfied.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of each of the Corporation, on behalf of each Acquiring Fund, Funds to consummate complete the transactions provided for herein shall be subjectbe, at its election, subject to the performance by the corresponding each Acquired Fund of all of the obligations to be performed by it hereunder at on or before the Closing Date and, in addition thereto, the following further conditions, unless waived by the Acquiring Fund in writing: 7.1 7.1. All representations and warranties of the Corporation, FFTW Funds on behalf of the Acquired Fund, Funds 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, Closing Date with the same force and effect as if made at on and as of the Closing; and there shall be (i) no pending or threatened litigation brought by any person (other than the Acquiring Fund, its adviser or any of their affiliates) against the Acquired Fund or its investment adviser, directors or officers arising out of this Agreement and (ii) no facts known to the Acquired Fund which the Acquired Fund reasonably believes might result in such litigation.Closing Date; 7.2 The 7.2. Each Acquired Fund shall have delivered to the corresponding Acquiring Fund a statement the Statement of Assets and Liabilities of the Acquired Fund’s assets Fund pursuant to Paragraph 5.7, together with a list of its portfolio securities showing the federal income tax bases and liabilities holding periods of such securities, as of the ClosingClosing Date, certified by the FFTW Funds’ Treasurer or an Assistant Treasurer of the Corporation.Treasurer; 7.3 The Acquired Fund 7.3. FFTW Funds shall have delivered to the Acquiring Fund at Trust on the Closing Date a certificate of FFTW Funds on behalf of each Acquired Fund executed in its name by the Corporation’s President, its President or Vice President and a Treasurer or Assistant Treasurer, an Assistant Treasurer or a Vice President, in a form and substance reasonably satisfactory to the Acquiring Fund, Trust and dated as of the Closing Date, to the effect that the representations and warranties of the Corporation with respect to the Acquired Fund made FFTW Funds contained in this Agreement are true and correct at and as of the ClosingClosing Date, except as they may be affected by the transactions contemplated by this Agreement, that each of the conditions to Closing in this Article 7 have been met, and as to such other matters as the Acquiring Fund Trust shall reasonably request.; 7.4 The 7.4. FFTW Funds on behalf of each of the Acquired Funds shall have delivered to the Acquiring Trust and Dechert LLP an Acquired Fund Tax Representation Certificate, satisfactory to the Acquiring Trust and Dechert LLP, substantially in the form attached to this Agreement as Annex B, concerning certain tax-related matters with respect to the Acquired Funds; 7.5. The Acquiring Trust shall have performed all received at the Closing a favorable opinion as to the due authorization of this Agreement by FFTW Funds and related matters of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, dated as of the covenants and complied with all Closing Date, in a form reasonably satisfactory to the Acquiring Trust; and 7.6. With respect to the Acquired Funds, the Board of Directors of FFTW Funds shall have determined that the provisions required by this Agreement to be performed or complied with by Reorganization is in the best interests of the Acquired Fund at or before and, based upon such determination, shall have approved this Agreement and the Closingtransactions contemplated hereby.

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS. The obligations of the Corporation, on behalf of each Acquiring Fund, Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by Pacific Capital and the corresponding Acquired Fund of all of the obligations to be performed by it them hereunder at on or before the Closing Date and, in addition thereto, to the following further conditions: 7.1 All representations and warranties of the Corporation, on behalf of the Acquired Fund, 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, with the same force and effect as if made at and as of the Closing; and there shall be (i) no pending or threatened litigation brought by any person (other than the Acquiring Fund, its adviser or any of their affiliates) against the Acquired Fund or its investment adviser, directors or officers arising out of this Agreement and (ii) no facts known to the Acquired Fund which the Acquired Fund reasonably believes might result in such litigation. 7.2 6.1. The Acquired Fund shall have delivered to the Acquiring Fund a statement of certificate executed on the Acquired Fund’s assets behalf by Pacific Capital’s President or any Vice President and liabilities as of the Closing, certified by the its Treasurer or an Assistant Treasurer of the Corporation. 7.3 The Acquired Fund shall have delivered to the Acquiring Fund at the Closing a certificate executed in its name by the Corporation’s President, Treasurer, an Assistant Treasurer or a Vice President, in a form and substance reasonably satisfactory to the Acquiring Fund, Fund and dated as of the Closing Date, to the effect that the representations and warranties of the Corporation with respect to Pacific Capital and the Acquired Fund made in this Agreement are true and correct at and as of the ClosingClosing Date, except as they may be affected by the transactions contemplated by this Agreement, and as that Pacific Capital and the Acquired Fund have complied with all the covenants and agreements and satisfied all of the conditions on their parts to such other matters as be performed or satisfied under this Agreement at or prior to the Acquiring Fund shall reasonably requestClosing Date. 7.4 6.2. The Acquired Fund shall have performed all furnished to the Acquiring Fund a copy of the covenants tax books and complied with all records of the provisions Acquired Fund necessary for purposes of preparing any tax returns required by this Agreement law to be performed filed by the Acquiring Fund after the Closing Date, as well as a statement of the Acquired Fund’s assets and liabilities, with values determined as provided in Section 2 of this Agreement, together with a list of Investments with their respective tax costs, all as of the Valuation Date, certified on the Acquired Fund’s behalf by Pacific Capital’s President (or complied with any Vice President) and Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquired Fund since January 31, 2010. 6.3. The assets of the Acquired Fund to be acquired by the Acquiring Fund shall not include any assets which the Acquiring Fund, by reason of limitations contained in FundVantage’s Agreement and Declaration of Trust or of investment restrictions disclosed in the Acquiring Fund Prospectus in effect on the Closing Date, may not properly acquire. 6.4. All actions and proceedings taken by the Acquired Fund at in connection with the transactions contemplated by this Agreement and all material documents related thereto shall be reasonably satisfactory in form and substance to the Acquiring Fund. 6.5. The Acquired Fund shall have furnished to the Acquiring Fund a certificate, signed on its behalf by the President or before any Vice President and the ClosingTreasurer or any Assistant Treasurer of Pacific Capital, as to the adjusted tax basis in the hands of the Acquired Fund of the securities delivered to the Acquiring Fund pursuant to this Agreement, together with any such other evidence as to such adjusted tax basis as the Acquiring Fund may reasonably request. 6.6. The Acquired Fund’s custodian shall have delivered to the Acquiring Fund a certificate identifying all of the assets of the Acquired Fund held by such custodian as of the Valuation Date. 6.7. The Acquired Fund’s transfer agent shall have provided to the Acquiring Fund’s transfer agent (i) the originals or true copies of all of the records of the Acquired Fund in the possession of the Acquired Fund’s transfer agent as of the Closing Date, (ii) a record specifying the number of Acquired Fund Shares outstanding as of the Valuation Date and (iii) a record specifying the name and address of each holder of record of any Acquired Fund Shares and the number of Acquired Fund Shares held of record by each such shareholder as of the Valuation Date. The Acquired Fund’s transfer agent shall also have provided the Acquiring Fund with a certificate confirming that the acts specified in the preceding sentence have been taken and that the information so supplied is complete and accurate to the best knowledge of the transfer agent. 6.8. All of the issued and outstanding shares of the Acquired Fund shall have been offered for sale and sold in conformity with all applicable state securities or blue sky laws (including any applicable exemptions therefrom) and, to the extent that any audit of the records of the Acquired Fund or its transfer agent by the Acquiring Fund or its agents shall have revealed otherwise, either (i) the Acquired Fund shall have taken all actions determined by the Acquiring Fund or its counsel to be necessary to remedy any prior failure on the part of the Acquired Fund to have offered for sale and sold such shares in conformity with such laws or (ii) the Acquired Fund shall have furnished (or caused to be furnished) surety, or deposited (or caused to be deposited) assets in escrow, for the benefit of the Acquiring Fund in amounts sufficient and upon terms satisfactory, as determined by the Acquiring Fund or its counsel, to indemnify the Acquiring Fund against any expense, loss, claim, damage or liability whatsoever that may be asserted or threatened by reason of such failure on the part of the Acquired Fund to have offered and sold such shares in conformity with such laws. 6.9. The Acquiring Fund shall have received a favorable opinion of Xxxxxxx XxXxxxxxx LLP, counsel to the Acquired Fund for the transactions contemplated hereby, dated the Closing Date, with such assumptions and limitations as shall be in the opinion of Xxxxxxx XxXxxxxxx LLP appropriate to render the opinions expressed therein, and in a form satisfactory to the Acquiring Fund, to the following effect: (a) Pacific Capital has been formed and is validly existing as a voluntary association with transferable shares of beneficial interest commonly referred to as a “Massachusetts business trust” under the laws of the Commonwealth of Massachusetts and has power as a voluntary association to own all of its properties and assets and to carry on its business as an open-end registered investment company as described in the Acquired Fund Prospectus, and the Acquired Fund is a separate series thereof duly constituted in accordance with the Declaration of Trust and Bylaws of Pacific Capital. (b) This Agreement has been duly authorized, executed and delivered by Pacific Capital, on behalf of the Acquired Fund, and assuming the due authorization, execution and delivery of this Agreement by FundVantage, on behalf of the corresponding Acquiring Fund, is a valid and binding obligation of the Acquired Fund enforceable against Pacific Capital and the Acquired Fund in accordance with its terms, subject to such counsel’s standard exceptions. (c) The Acquired Fund has the power as a series of a business trust to sell, assign, transfer and deliver the assets and liabilities to be transferred by it hereunder. (d) The execution and delivery of this Agreement by Pacific Capital on behalf of the Acquired Fund did not, and the performance by Pacific Capital and the Acquired Fund of their obligations hereunder will not, violate Pacific Capital’s Declaration of Trust or Bylaws, or any provision of any agreement described in or filed with the Acquired Fund Prospectus or the Acquired Fund’s registration statement on Form N-1A to which Pacific Capital or the Acquired Fund is a party or by which it is bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any judgment or decree to which Pacific Capital or the Acquired Fund is a party or by which it or its property is bound. (e) To the knowledge of such counsel, no consent, approval, authorization or order of any Massachusetts or federal court or governmental authority is required for the consummation by Pacific Capital or the Acquired Fund of the transactions contemplated by this Agreement, except such as have been obtained. (f) Pacific Capital is registered with the Securities and Exchange Commission as an investment company under the 1940 Act. (g) In addition, such counsel shall confirm whether, as of the Closing Date, it is representing Pacific Capital or the Acquired Fund in any pending litigation in which Pacific Capital or the Acquired Fund is a named defendant.