Common use of Section 15(f) Clause in Contracts

Section 15(f). (a) Buyer acknowledges that Seller is entering into this Agreement and the Ancillary Agreements in reliance upon the benefits and protections provided by Section 15(f) of the Investment Company Act as it applies to Adviser and the applicable Advisory Clients. Buyer (x) shall not take, and shall cause its controlled Affiliates (including, after the Closing, Adviser) not to take, any action that would have the effect, directly or indirectly, of causing the requirements of any of the provisions of Section 15(f) of the Investment Company Act not to be met in respect of the Transactions, and (y) shall not fail to take, and shall cause its controlled Affiliates (including, after the Closing, Adviser) not to fail to take, any action if the failure to take such action as would have the effect, directly or indirectly, of causing the requirements of any of the provisions of Section 15(f) of the Investment Company Act not to be met in respect of the Transactions. In that regard, Buyer shall conduct its business and shall cause each of its controlled Affiliates (including, after the Closing, Adviser) to conduct its business so as to assure that, in each case to the extent within its, or its controlled Affiliates, control: (i) for a consecutive period of not less than three (3) years immediately after the Closing, at least seventy-five percent (75%) of the members of the boards of directors or trustees of each Fund are not (A) “interested persons” (within the meaning of Section 2(a)(19) of the Investment Company Act) of the investment adviser of such Fund after the Closing or (B) “interested persons” (within the meaning of Section 2(a)(19) of the Investment Company Act) of the investment adviser of such Fund immediately prior to the Closing; and (ii) there shall not be imposed on any Fund an “unfair burden” (as set forth and described in Section 15(f) of the Investment Company Act) as a result of the Transactions, or any express or implied terms, conditions or understandings applicable thereto. (b) For a consecutive period of three (3) years immediately after the Closing, Buyer shall not engage, and shall cause its Affiliates not to engage, in any transaction or series of related transactions that would constitute an “assignment” (as defined in the Investment Company Act) to any third party of any Investment Company Advisory Agreement between (i) either (A) Buyer or any of its Affiliates or (B) Adviser, and (ii) any investment company registered under the Investment Company Act for which Adviser serves as an investment adviser or sub-adviser as of the Closing without first obtaining a covenant, for the benefit of Seller, in all material respects the same as that contained in this Section 6.7; provided, however, that the foregoing shall not apply in the event that Section 15(f) of the Investment Company Act no longer applies to the Transactions. Notwithstanding anything to the contrary contained herein, the covenants of the Parties contained in this Section 6.7 are intended only for the benefit of the Parties and for no other Person.

Section 15(f). (a) Buyer acknowledges that and Seller is entering have entered into this Agreement and the Ancillary Agreements in reliance upon the benefits and protections provided by Section 15(f) of the Investment Company Act as it applies to Adviser Act. Each of Buyer and the applicable Advisory Clients. Buyer Seller (xi) shall not take, and shall cause its controlled Affiliates (including, after the Closing, Adviser) not to take, any action not contemplated by this Agreement that would have the effect, directly or indirectly, of causing the requirements of any of the provisions of Section 15(f) of the Investment Company Act not to be met in respect of this Agreement and the Transactionstransactions contemplated hereby, and (yii) shall not fail to take, and shall cause its controlled Affiliates (including, after the Closing, Adviser) not to fail to take, take any action if the failure to take such action as would have the effect, directly or indirectly, of causing the requirements of any of the provisions of Section 15(f) of the Investment Company Act not to be met in respect of this Agreement and the Transactions. In that regardtransactions contemplated hereby. (b) Seller shall use commercially reasonable efforts to assure that, at the Closing, and Buyer shall use commercially reasonable efforts to conduct its business and to cause each of its Affiliates to conduct its business so as to assure that, for the three-year period following the Closing, the composition of the Gold Fund Board (including the board of directors or trustees (as applicable) of the surviving entity of the Gold Fund Reorganization) is in compliance at such times with Section 15(f)(1)(A) of the Investment Company Act. (c) For a period of two years after the Closing, Buyer shall conduct its business and shall cause each of its controlled Affiliates (including, after the Closing, Adviser) to conduct its business so as to assure that, in each case to the extent within its, or its controlled Affiliates, control: (i) for a consecutive period of not less than three (3) years immediately after the Closing, at least seventy-five percent (75%) of the members of the boards of directors or trustees of each Fund are not (A) “interested persons” (within the meaning of Section 2(a)(19) of the Investment Company Act) of the investment adviser of such Fund after the Closing or (B) “interested persons” (within the meaning of Section 2(a)(19) of the Investment Company Act) of the investment adviser of such Fund immediately prior to the Closing; and (ii) that there shall not be imposed on any the Gold Fund (including the surviving entity of the Gold Fund Reorganization) an “unfair burden” (as set forth and described in Section 15(f) of the Investment Company Act) as a result of the Transactionstransactions contemplated by this Agreement and the Ancillary Agreements, or any express or implied terms, conditions or understandings applicable thereto. (bd) For a consecutive period of three (3) years immediately after from the Closing, Buyer shall not engage, and shall cause its Affiliates not to engage, in any transaction or series of related transactions that would constitute an “assignment” (as defined in the Investment Company Act) to any a third party of any Investment Company Advisory Agreement investment advisory agreement between (i) either (A) Buyer or any of its Affiliates or (B) Adviser, and (ii) any investment company registered under the Investment Company Act for which Adviser serves as an investment adviser or sub-adviser as Gold Fund (including the surviving entity of the Closing without first obtaining Gold Fund Reorganization) unless it obtains a covenant, for the benefit of Seller, covenant in all material respects the same as that contained in this Section 6.75.18; provided, however, provided that if Buyer or any of its Affiliates obtains an exemptive order from the foregoing shall not apply in SEC as contemplated by Section 15(f)(3) of the event that Investment Company Act (or if Section 15(f) of the Investment Company Act no longer applies to the Transactions. Notwithstanding anything transactions contemplated by this Agreement or the Ancillary Agreements, including as a result of any SEC staff interpretation), then this covenant shall be deemed to be modified to the contrary contained hereinextent necessary to permit Buyer and its Affiliates to act in a manner consistent with such SEC exemptive order or such applicable SEC staff interpretation. (e) If Section 15(f) of the Investment Company Act no longer applies to the transactions contemplated by this Agreement or the Ancillary Agreements, then the covenants of the Parties contained in this Section 6.7 are intended only for 5.18 shall be deemed to be modified to the benefit of extent necessary to permit Buyer and its Affiliates to act in a manner consistent with such change(s) to the Parties and for no other PersonInvestment Company Act.