Common use of FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PARTIES Clause in Contracts

FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PARTIES. The respective obligations of the Acquiring Trust, on behalf of the Acquiring Fund, and the Acquired Trust, on behalf of the Acquired Fund, hereunder are subject to the further conditions that on or before the Closing Date: 8.1. On the Closing Date, the Commission shall not have issued an unfavorable report under Section 25(b) of the 1940 Act, nor instituted any proceeding seeking to enjoin the consummation of the transactions contemplated by this Agreement under Section 25(c) of the 1940 Act and no action, suit or other proceeding shall be threatened or pending before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein. 8.2. All consents of other parties and all other consents, orders and permits of federal, state and local regulatory authorities (including those of the Commission and of state blue sky and securities authorities) deemed necessary by the Acquiring Trust, on behalf of the Acquiring Fund, and the Acquired Trust, on behalf of the Acquired Fund, 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 Acquiring Fund or the Acquired Fund. 8.3. At any time prior to the Closing, any of the foregoing conditions of this Section 8 may be waived (i) by the Board of Trustees of the Acquiring Trust if, in the judgment of the Board of the Trustees of the Acquiring Trust, such waiver will not have a material adverse effect on the interests of shareholders of the Acquiring Fund, or (ii) by the Board of Trustees of the Acquired Trust, if, in the judgment of the Board of Trustees of the Acquired Trust, such waiver will not have a material adverse effect on the interests of the shareholders of the Acquired Fund.

FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PARTIES. The respective obligations of the Acquiring Trust, on behalf of the Acquiring Fund, and the Acquired Trust, on behalf of the Acquired Fund, Fund hereunder are subject to the further conditions that on or before the Closing Date: 8.1. On the Closing Date, the Commission shall not have issued an unfavorable report under Section 25(b) of the 1940 Act, nor instituted any proceeding seeking to enjoin the consummation of the transactions contemplated by this Agreement under Section 25(c) of the 1940 Act and no action, suit or other proceeding shall be threatened or pending before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein. 8.2. All consents of other parties and all other consents, orders and permits of federal, state and local regulatory authorities (including those of the Commission and of state blue sky and securities authorities) deemed necessary by the Acquiring Trust, on behalf of the Acquiring Fund, and the Acquired Trust, on behalf of the Acquired Fund, or the Acquiring Fund 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 Acquiring Fund or the Acquired Fund. 8.3. The Acquired Fund and the Acquiring Fund shall have received a favorable opinion of Ropes & Xxxx LLP dated on the Closing Date (which opinion will be subject to certain qualifications) satisfactory to both parties substantially to the effect that, on the basis of the existing provisions of the Code, Treasury regulations promulgated thereunder, current administrative rules, and court decisions, although the matter is not free from doubt, generally for federal income tax purposes: (a) The Reorganization should constitute a reorganization within the meaning of Section 368(a) of the Code, and the Acquired Fund and the Acquiring Fund each should be "a party to a reorganization" within the meaning of Section 368(b) of the Code; (b) No gain or loss should be recognized by the Acquired Fund (i) upon the transfer of its assets to the Acquiring Fund in exchange for the Acquiring Fund Shares and the assumption by the Acquiring Fund of the liabilities of the Acquired Fund or (ii) upon the distribution of the Acquiring Fund Shares by the Acquired Fund to its shareholders in liquidation, as contemplated in Section 1 hereof; (c) No gain or loss should be recognized by the Acquiring Fund upon the receipt of the assets transferred to it pursuant to this Agreement in exchange for Acquiring Fund Shares and the assumption by the Acquiring Fund of the liabilities of the Acquired Fund; (d) The tax basis in the hands of the Acquiring Fund of the assets of the Acquired Fund transferred to the Acquiring Fund in the transactions contemplated by this Agreement should be the same as the tax basis of such assets in the hands of the Acquired Fund immediately prior to the transfer; (e) The Acquiring Fund's holding periods with respect to the assets of the Acquired Fund should include the respective periods for which the assets were held by the Acquired Fund; (f) Acquired Fund shareholders should recognize no gain or loss on the distribution of Acquiring Fund Shares to them in exchange for their Acquired Fund Shares; (g) The aggregate tax basis of the Acquiring Fund Shares that an Acquired Fund shareholder receives in connection with the transactions contemplated by this Agreement should be the same as the aggregate tax basis of Acquired Fund Shares exchanged therefor; (h) An Acquired Fund shareholder's holding period for his or her Acquiring Fund Shares received pursuant to this Agreement should be determined by including the holding period of the Acquired Fund Shares exchanged for the Acquiring Fund Shares, provided that the shareholder held Acquired Fund Shares as a capital asset on the date of the exchange; and (i) The Acquiring Fund should succeed to and take into account the items of the Acquired Fund described in Section 381(c) of the Code, subject to the conditions and limitations specified in Sections 381, 382, 383 and 384 of the Code and the regulations thereunder. The opinion will express no view with respect to the effect of the Reorganization on any transferred asset as to which any unrealized gain or loss is required to be recognized under federal income tax principles (i) at the end of a taxable year or upon the termination thereof, or (ii) upon the transfer of such asset regardless of whether such a transfer would otherwise be a non-taxable transaction. The opinion will be based on certain factual certifications made by officers of the Trust, of Acquired Fund's principal shareholder, The Guardian Life Insurance Company of America, and of the Funds' investment adviser, RS Investment Management Co. LLC, and will also be based on customary assumptions. The opinion is not a guarantee that the tax consequences of the Reorganizations will be as described above. The opinion will note and distinguish certain published precedent. There is no assurance that the Internal Revenue Service or a court would agree with the opinion. 8.4. At any time prior to the Closing, any of the foregoing conditions of this Section 8 may be waived (i) by the Board of Trustees of the Acquiring Trust if, in the judgment of the Board of the Trustees of the Acquiring Trust, such waiver will not have a material adverse effect on the interests of shareholders of the Acquiring Fund, or (ii) by the Board of Trustees of the Acquired Trust, if, in the judgment of the Board of Trustees of the Acquired Trust, such waiver will not have a material adverse effect on the interests of the shareholders of the Acquired Fund or the interests of the shareholders of the Acquiring Fund.

FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PARTIES. The respective obligations of the Acquiring Trust, on behalf of the Acquiring Fund, and the each Acquired Trust, on behalf of the Acquired Fund, Fund hereunder are subject to the further conditions that on or before the Closing Date: 8.1. On the Closing Date, the Commission shall not have issued an unfavorable report under Section 25(b) of the 1940 Act, nor instituted any proceeding seeking to enjoin the consummation of the transactions contemplated by this Agreement under Section 25(c) of the 1940 Act and no action, suit or other proceeding shall be threatened or pending before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein. 8.2. All consents of other parties and all other consents, orders and permits of federal, state and local regulatory authorities (including those of the Commission and of state blue sky and securities authorities) deemed necessary by the Acquiring Trust, on behalf of the Acquiring Fund, and the Fund or each Acquired Trust, on behalf of the Acquired Fund, Fund 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 Acquiring Fund or the an Acquired Fund. 8.3. The Acquired Funds and the Acquiring Fund shall have received a favorable opinion of Ropes & Xxxx LLP dated on the Closing Date (which opinion will be subject to certain qualifications) satisfactory to all parties substantially to the effect that, on the basis of the existing provisions of the Code, U.S. Treasury regulations promulgated thereunder, current administrative rules, pronouncements and court decisions for U.S. federal income tax purposes, with respect to each Reorganization: (a) The Reorganization will constitute a reorganization within the meaning of Section 368(a) of the Code, and the Acquired Fund and the Acquiring Fund participating in the Reorganization each will be “a party to a reorganization” within the meaning of Section 368(b) of the Code; (b) Under Section 1032 of the Code, no gain or loss will be recognized by the Acquiring Fund upon receipt of the assets transferred to the Acquiring Fund pursuant to this Agreement in exchange for the issuance of Acquiring Fund Shares and the assumption by the Acquiring Fund of all of the liabilities of the Acquired Fund; (c) Under Section 362(b) of the Code, the Acquiring Fund’s tax basis in the assets of the Acquired Fund transferred to the Acquiring Fund in the Reorganization will be the same as the Acquired Fund’s tax basis in such assets immediately prior to such transfer; (d) Under Section 1223(2) of the Code, the Acquiring Fund’s holding periods for the assets it receives from the Acquired Fund in the Reorganization will include the Acquired Fund’s holding periods in those assets; (e) Under Section 361 of the Code, no gain or loss will be recognized by the Acquired Fund upon the transfer of its assets to the Acquiring Fund in exchange for Acquiring Fund Shares and the assumption by the Acquiring Fund of all of the Acquired Fund’s liabilities, or upon the distribution of Acquiring Fund Shares by the Acquired Fund to its shareholders in liquidation, as contemplated in Section 1 hereof; (f) Under Section 354 of the Code, no gain or loss will be recognized by the shareholders of the Acquired Fund upon the exchange of their Acquired Fund Shares for Acquiring Fund Shares; (g) Under Section 358 of the Code, the aggregate tax basis of the Acquiring Fund Shares that the Acquired Fund’s shareholders receive in exchange for their Acquired Fund Shares in the Reorganization will be the same as the aggregate tax basis of Acquired Fund Shares exchanged therefor; (h) Under Section 1223(1) of the Code, an Acquired Fund shareholder’s holding period for the Acquiring Fund Shares received in the Reorganization will be determined by including the shareholder’s holding period for the Acquired Fund Shares exchanged therefor, provided that the shareholder held those Acquired Fund Shares as capital assets; and (i) The Acquiring Fund will succeed to and take into account the items of the Acquired Fund described in Section 381(c) of the Code, subject to the conditions and limitations specified in Sections 381, 382, 383 and 384 of the Code and the U.S. Treasury regulations thereunder. Ropes & Xxxx LLP will express no view with respect to the effect of the Reorganizations on any transferred asset as to which any unrealized gain or loss is required to be recognized under U.S. federal income tax principles (i) at the end of a taxable year or upon the termination thereof, or (ii) upon the transfer of such asset regardless of whether such a transfer would otherwise be a non-taxable transaction. The opinion will be based on certain factual certifications made by officers of the Acquired Funds and the Acquiring Trust, on behalf of the Acquiring Fund, and will also be based on customary assumptions. The opinion is not a guarantee that the tax consequences of the Reorganizations will be as described above. There is no assurance that the Internal Revenue Service or a court would agree with Ropes & Xxxx LLP’S opinion. 8.4. At any time prior to the Closing, any of the foregoing conditions of this Section 8 may be waived (i) by the Board of Trustees of the Acquiring Trust if, in the judgment or of the Board of the Trustees of the Acquiring Trust, such waiver will not have a material adverse effect on the interests of shareholders of the Acquiring either Acquired Fund, or (ii) by the Board of Trustees of the Acquired Trust, if, in the judgment of the Board of Trustees of the Acquiring Trust or of an Acquired TrustFund, as applicable, such waiver will not have a material adverse effect on the interests of the shareholders of the Acquired Fund or the interests of the shareholders of the Acquiring Fund.

FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PARTIES. The respective obligations of the Acquiring Trust, on behalf of the Acquiring Fund, and the Acquired Trust, on behalf of the Acquired Fund, Fund hereunder are subject to the further conditions that on or before the Closing Date: 8.1. This Agreement shall have been approved by a majority of the outstanding voting securities (as defined in the 0000 Xxx) of the Acquired Fund in the manner required by the Declaration of Trust, Bylaws and applicable law, and the parties shall have received reasonable evidence of such approval. 8.2. On the Closing Date, the Commission shall not have issued an unfavorable report under Section 25(b) of the 1940 Act, nor instituted any proceeding seeking to enjoin the consummation of the transactions contemplated by this Agreement under Section 25(c) of the 1940 Act and no action, suit or other proceeding shall be threatened or pending before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein. 8.28.3. All consents of other parties and all other consents, orders and permits of federal, state and local regulatory authorities (including those of the Commission and of state blue sky and securities authorities) deemed necessary by the Acquiring Trust, on behalf of the Acquiring Fund, and the Acquired Trust, on behalf of the Acquired Fund, or the Acquiring Fund 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 Acquiring Fund or the Acquired Fund. 8.38.4. The Registration Statement shall have become effective under the 1933 Act and no stop order suspending the effectiveness thereof shall have been issued and, to the best knowledge of the parties hereto, no investigation or proceeding for that purpose shall have been instituted or be pending, threatened or contemplated under the 0000 Xxx. 8.5. The Acquired Fund and the Acquiring Fund shall have received a favorable opinion of Ropes & Xxxx LLP dated on the Closing Date (which opinion will be subject to certain qualifications) satisfactory to both parties substantially to the effect that, although the matter is not free from doubt, on the basis of existing provisions of the Code, the Treasury regulations promulgated thereunder, current administrative rules, and court decisions, all as in force as of the date of the opinion, for federal income tax purposes: (a) The Reorganization will constitute a reorganization within the meaning of Section 368(a) of the Code, and the Acquired Fund and the Acquiring Fund will each be “a party to a reorganization” within the meaning of Section 368(b) of the Code; (b) Under Sections 361 and 357(a) of the Code, no gain or loss will be recognized by the Acquired Fund upon the transfer of its assets to the Acquiring Fund in exchange for the Acquiring Fund Shares and the assumption by the Acquiring Fund of the Acquired Fund’s liabilities, or upon the distribution of the Acquiring Fund Shares by the Acquired Fund to Acquired Fund Shareholders in liquidation, as contemplated in Section 1 hereof; (c) Under Section 354 of the Code, no gain or loss will be recognized by Acquired Fund Shareholders on the distribution of Acquiring Fund Shares to them in exchange for their Acquired Fund Shares; (d) Under Section 358 of the Code, the aggregate tax basis of the Acquiring Fund Shares that Acquired Fund Shareholders receive in exchange for their Acquired Fund Shares will be the same as the aggregate tax basis of the Acquired Fund Shares exchanged therefor; (e) Under Section 1223(1) of the Code, the holding period of the Acquired Fund Shareholders for the Acquiring Fund Shares received pursuant to this Agreement will be determined by including the holding period of the Acquired Fund Shares exchanged therefor, provided that the Acquired Fund Shareholders held the Acquired Fund Shares as a capital asset on the date of the exchange; (f) Under Section 1032 of the Code, no gain or loss will be recognized by the Acquiring Fund upon the receipt of the assets transferred to it pursuant to this Agreement in exchange for Acquiring Fund Shares and the assumption by the Acquiring Fund of the liabilities of the Acquired Fund; (g) Under Section 362(b) of the Code, the Acquiring Fund’s tax basis in the assets that the Acquiring Fund receives from the Acquired Fund will be the same as the Acquired Fund’s tax basis in such assets immediately prior to such exchange; (h) Under Section 1223(2) of the Code, the Acquiring Fund’s holding period in such assets will include the Acquired Fund’s holding period in such assets; and (i) Under Section 381 of the Code, the Acquiring Fund will succeed to the capital loss carryovers of the Acquired Fund, if any, but the use by the Acquiring Fund of any such capital loss carryovers (and of capital loss carryovers of the Acquiring Fund) may be subject to limitation under Sections 381, 382, 383 and 384 of the Code and the regulations thereunder. The opinion will express no view with respect to the effect of the Reorganization on any transferred asset as to which any unrealized gain or loss is required to be recognized under federal income tax principles (i) at the end of a taxable year or upon the termination thereof, or (ii) upon the transfer of such asset regardless of whether such a transfer would otherwise be a non-taxable transaction. The opinion will be based on certain factual certifications made by officers of the Trust and will also be based on customary assumptions. The opinion is not a guarantee that the tax consequences of the Reorganization will be as described above. The opinion will note and distinguish certain published precedent. There is no assurance that the Internal Revenue Service or a court would agree with the opinion. 8.6. At any time prior to the Closing, any of the foregoing conditions of this Section 8 (except for Section 8.1) may be waived (i) by the Board of Trustees of the Acquiring Trust if, in the judgment of the Board of the Trustees of the Acquiring Trust, such waiver will not have a material adverse effect on the interests of shareholders of the Acquiring Fund, or (ii) by the Board of Trustees of the Acquired Trust, if, in the judgment of the Board of Trustees of the Acquired Trust, such waiver will not have a material adverse effect on the interests of the shareholders of the Acquired Fund or the interests of the shareholders of the Acquiring Fund.