THE MERGER FUND FUND ACCOUNTING SERVICING AGREEMENT THIS AGREEMENT is made and entered into this 11th day of January, 2006,
THE
MERGER FUND
THIS
AGREEMENT is made and entered into this 11th
day of
January, 2006,
by
and
between
THE MERGER FUND, a
Massachusetts trust, (the “Trust”) and
U.S. BANCORP FUND SERVICES, LLC, a
Wisconsin limited liability company (“USBFS”).
WHEREAS,
the Trust is registered under the Investment Company Act of 1940, as amended
(the “1940 Act”), as an open-end management investment company, and is
authorized to issue shares of beneficial interest in separate series, with
each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS,
USBFS is, among other things, in the business of providing mutual fund
accounting services to investment companies; and
WHEREAS,
the Trust desires to retain USBFS to provide accounting services to the Trust;
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt of which
is
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
| 1. |
Appointment
of USBFS as Fund Accountant
|
The
Trust
hereby appoints USBFS as fund accountant of the Trust on the terms and
conditions set forth in this Agreement, and USBFS hereby accepts such
appointment and agrees to perform the services and duties set forth in this
Agreement. The services and duties of USBFS shall be confined to those matters
expressly set forth herein, and no implied duties are assumed by or may be
asserted against USBFS hereunder.
| 2. |
Services
and Duties of USBFS
|
USBFS
shall provide the following accounting services to the Trust:
A. Portfolio
Accounting Services:
| (1) |
Maintain
portfolio records on a trade date+1 basis using security trade information
communicated from the Trust’s investment adviser.
|
| (2) |
For
each valuation date, obtain prices from a pricing source approved by
the
board of trustees of the Trust (the “Board of Trustees”) and apply those
prices to the portfolio positions. For those securities where market
quotations are not readily available, the Board of Trustees shall approve,
in good faith, procedures for determining the fair value for such
securities.
|
| (3) |
Identify
interest and dividend accrual balances as of each valuation date and
calculate gross earnings on investments for each accounting period.
|
| (4) |
Determine
gain/loss on security sales and identify them as short-term or long-term;
account for periodic distributions of gains or losses to shareholders
and
maintain undistributed gain or loss balances as of each valuation date.
|
| (5) |
On
a daily basis, reconcile cash of the Trust with the Trust’s
custodian.
|
| (6) |
Transmit
a copy of the portfolio valuation to the Trust’s investment adviser
daily.
|
| (7) |
Review
the impact of current day’s activity on a per share basis, and review
changes in market value.
|
B. Expense
Accrual and Payment Services:
| (1) |
For
each valuation date, calculate the expense accrual amounts as directed
by
the Trust as to methodology, rate or dollar amount.
|
| (2) |
Process
and record payments for Trust expenses upon receipt of written
authorization from the Trust.
|
| (3) |
Account
for Trust expenditures and maintain expense accrual balances at the
level
of accounting detail, as agreed upon by USBFS and the
Trust.
|
| (4) |
Provide
expense accrual and payment reporting.
|
C. Trust
Valuation and Financial Reporting Services:
| (1) |
Account
for Trust share purchases, sales, exchanges, transfers, dividend
reinvestments, and other Trust share activity as reported by the Trust’s
transfer agent on a timely basis.
|
| (2) |
Apply
equalization accounting as directed by the
Trust.
|
| (3) |
Determine
net investment income (earnings) for the Trust as of each valuation
date.
Account for periodic distributions of earnings to shareholders and
maintain undistributed net investment income balances as of each valuation
date.
|
| (4) |
Maintain
a general ledger and other accounts, books, and financial records for
the
Trust in the form as agreed upon.
|
2
| (5) |
Determine
the net asset value of the Trust according to the accounting policies
and
procedures set forth in the Trust's current prospectus.
|
| (6) |
Calculate
per share net asset value, per share net earnings, and other per share
amounts reflective of Trust operations at such time as required by
the
nature and characteristics of the Trust.
|
| (7) |
Communicate
to the Trust, at an agreed upon time, the per share net asset value
for
each valuation date.
|
| (8) |
Prepare
monthly reports that document the adequacy of accounting detail to
support
month-end ledger balances.
|
| (9) |
Prepare
monthly security transactions listings.
|
D. Tax
Accounting Services:
| (1) |
Maintain
accounting records for the investment portfolio of the Trust to support
the tax reporting required for “regulated investment companies” under the
Internal Revenue Code of 1986, as amended (the
“Code”).
|
| (2) |
Maintain
tax lot detail for the Trust’s investment portfolio.
|
| (3) |
Calculate
taxable gain/loss on security sales using the tax lot relief method
designated by the Trust.
|
| (4) |
Provide
the necessary financial information to calculate the taxable components
of
income and capital gains distributions to support tax reporting to
the
shareholders.
|
E. Compliance
Control Services:
| (1) |
Support
reporting to regulatory bodies and support financial statement preparation
by making the Trust's accounting records available to the Trust, the
Securities and Exchange Commission (the “SEC”), and the independent
accountants.
|
| (2) |
Maintain
accounting records according to the 1940 Act and regulations provided
thereunder.
|
| (3) |
Perform
its duties hereunder in compliance with all applicable laws and
regulations and provide any sub-certifications reasonably requested
by the
Trust in connection with any certification required of the Trust pursuant
to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “SOX Act”) or any rules or
regulations promulgated by the SEC thereunder, provided the same shall
not
be deemed to change USBFS’s standard of care as set forth
herein.
|
3
| (4) |
Cooperate
with the Trust’s independent accountants and take all reasonable action in
the performance of its obligations under this Agreement to ensure that
the
necessary information is made available to such accountants for the
expression of their opinion on the Trust’s financial statements without
any qualification as to the scope of their
examination.
|
| 3. |
License
of Data; Warranty; Termination of
Rights
|
| A. |
The
valuation information and evaluations being provided to the Trust by
USBFS
pursuant hereto (collectively, the “Data”) are being licensed, not sold,
to the Trust. The Trust has a limited license to use the Data only
for
purposes necessary to valuing the Trust’s assets and reporting to
regulatory bodies (the “License”). The Trust does not have any license nor
right to use the Data for purposes beyond the intentions of this Agreement
including, but not limited to, resale to other users or use to create
any
type of historical database. The License is non-transferable and not
sub-licensable. The Trust’s right to use the Data cannot be passed to or
shared with any other entity.
|
The
Trust
acknowledges the proprietary rights that USBFS and its suppliers have in the
Data.
| B. |
THE
TRUST HEREBY ACCEPTS THE DATA AS IS, WHERE IS, WITH NO WARRANTIES,
EXPRESS
OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OR ANY
OTHER
MATTER.
|
| C. |
USBFS
may stop supplying some or all Data to the Trust if USBFS’s suppliers
terminate any agreement to provide Data to USBFS. Also, USBFS may stop
supplying some or all Data to the Trust if USBFS reasonably believes
that
the Trust is using the Data in violation of the License, or breaching
its
duties of confidentiality provided for hereunder, or if any of USBFS’s
suppliers demand that the Data be withheld from the Trust. USBFS will
provide notice to the Trust of any termination of provision of Data
as
soon as reasonably possible.
|
| 4. |
Pricing
of Securities
|
| A. |
For
each valuation date, USBFS shall obtain prices from a pricing source
recommended by USBFS and approved by the Board of Trustees and apply
those
prices to the portfolio positions of the Trust. For those securities
where
market quotations are not readily available, the Board of Trustees
shall
approve, in good faith, procedures for determining the fair value for
such
securities.
|
4
If
the
Trust desires to provide a price that varies from the price provided by the
pricing source, the Trust shall promptly notify and supply USBFS with the price
of any such security on each valuation date. All pricing changes made by the
Trust will be in writing and must specifically identify the securities to be
changed by CUSIP, name of security, new price or rate to be applied, and, if
applicable, the time period for which the new price(s) is/are
effective.
| B. |
In
the event that the Trust at any time receives Data containing evaluations,
rather than market quotations, for certain securities or certain other
data related to such securities, the Trust acknowledges the following:
(i)
evaluated securities are typically complicated financial instruments.
There are many methodologies (including computer-based analytical modeling
and individual security evaluations) available to generate approximations
of the market value of such securities, and there is significant
professional disagreement about which method is best. No evaluation
method, including those used by USBFS and its suppliers, may consistently
generate approximations that correspond to actual “traded” prices of the
securities; (ii) methodologies used to provide the pricing portion
of
certain Data may rely on evaluations; however, the Trust acknowledges
that
there may be errors or defects in the software, databases, or
methodologies generating the evaluations that may cause resultant
evaluations to be inappropriate for use in certain applications; and
(iii)
the Trust assumes all responsibility for edit checking, external
verification of evaluations, and ultimately the appropriateness of
using
Data containing evaluations, regardless of any efforts made by USBFS
and
its suppliers in this respect. The foregoing terms are the most favorable
terms available to any of USBFS’s other fund clients for which similar
services are provided.
|
| 5. |
Changes
in Accounting Procedures
|
Any
resolution passed by the Board of Trustees that affects accounting practices
and
procedures under this Agreement shall be effective upon written receipt of
notice and acceptance by USBFS.
| 6. |
Changes
in Equipment, Systems, Etc.
|
USBFS
reserves the right to make changes from time to time, as it deems advisable,
relating to its systems, programs, rules, operating schedules and equipment,
so
long as such changes do not adversely affect the services provided to the Trust
under this Agreement.
| 7. |
Compensation
|
USBFS
shall be compensated for providing the services set forth in this Agreement
in
accordance with the fee schedule set forth on Exhibit
A
hereto
(as amended from time to time). USBFS shall also be compensated for such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, and reproduction charges) as are reasonably incurred by USBFS in
performing its duties hereunder. The Trust shall pay all such fees and
reimbursable expenses within 30 calendar days following receipt of the billing
notice, except for any fee or expense subject to a good faith dispute. The
Trust
shall notify USBFS in writing within 30 calendar days following receipt of
each
invoice if the Trust is disputing any amounts in good faith. The Trust shall
pay
such disputed amounts within 10 calendar days of the day on which the parties
agree to the amount to be paid. With the exception of any fee or expense the
Trust is disputing in good faith as set forth above, unpaid invoices shall
accrue a finance charge of 1½% per month after the due date. Notwithstanding
anything to the contrary, amounts owed by the Trust to USBFS shall only be
paid
out of the assets and property of the particular Trust involved.
5
| 8. |
Representations
and Warranties
|
| A. |
The
Trust hereby represents and warrants to USBFS, which representations
and
warranties shall be deemed to be continuing throughout the term of
this
Agreement, that:
|
|
(1)
|
It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
|
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by the
Trust in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of the Trust, enforceable in accordance with its
terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other
laws of general application affecting the rights and remedies of
creditors
and secured parties; and
|
|
(3)
|
It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement.
|
| B. |
USBFS
hereby represents and warrants to the Trust, which representations
and
warranties shall be deemed to be continuing throughout the term of
this
Agreement, that:
|
|
(1)
|
It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
|
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by USBFS
in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of USBFS, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other
laws of general application affecting the rights and remedies of
creditors
and secured parties; and
|
6
|
(3)
|
It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement.
|
| 9. |
Standard
of Care; Indemnification; Limitation of
Liability
|
| A. |
USBFS
shall exercise reasonable care in the performance of its duties under
this
Agreement. Neither USBFS nor its suppliers shall be liable for any
error
of judgment or mistake of law or for any loss suffered by the Trust
or any
third party in connection with its duties under this Agreement, including
losses resulting from mechanical breakdowns or the failure of
communication or power supplies beyond USBFS’s control, except a loss
arising out of or relating to USBFS’s refusal or failure to comply with
the terms of this Agreement or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this Agreement.
Notwithstanding any other provision of this Agreement, if USBFS has
exercised reasonable care in the performance of its duties under this
Agreement, the Trust shall indemnify and hold harmless USBFS and its
suppliers from and against any and all claims, demands, losses, expenses,
and liabilities of any and every nature (including reasonable attorneys’
fees) that USBFS or its suppliers may sustain or incur or that may
be
asserted against USBFS or its suppliers by any person arising out of
or
related to (X) any action taken or omitted to be taken by it in performing
the services hereunder (i) in accordance with the foregoing standards,
or
(ii) in reliance upon any written or oral instruction provided to USBFS
by
any duly authorized officer of the Trust, as approved by the Board
of
Trustees, or (Y) the Data, or any information, service, report, analysis
or publication derived therefrom, except for any and all claims, demands,
losses, expenses, and liabilities arising out of or relating to USBFS’s
refusal or failure to comply with the terms of this Agreement or from
its
bad faith, negligence or willful misconduct in the performance of its
duties under this Agreement. This indemnity shall be a continuing
obligation of the Trust, its successors and assigns, notwithstanding
the
termination of this Agreement. As used in this paragraph, the term
“USBFS”
shall include USBFS’s directors, officers and
employees.
|
The
Trust
acknowledges that the Data are intended for use as an aid to institutional
investors, registered brokers or professionals of similar sophistication in
making informed judgments concerning securities. The Trust accepts
responsibility for, and acknowledges it exercises its own independent judgment
in, its selection of the Data, its selection of the use or intended use of
such,
and any results obtained. Nothing contained herein shall be deemed to be a
waiver of any rights existing under applicable law for the protection of
investors.
7
USBFS
shall indemnify and hold the Trust harmless from and against any and all claims,
demands, losses, expenses, and liabilities of any and every nature (including
reasonable attorneys' fees) that the Trust may sustain or incur or that may
be
asserted against the Trust by any person arising out of any action taken or
omitted to be taken by USBFS as a result of USBFS’s refusal or failure to comply
with the terms of this Agreement, or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this Agreement. This indemnity
shall be a continuing obligation of USBFS, its successors and assigns,
notwithstanding the termination of this Agreement. As used in this paragraph,
the term “Trust” shall include the Trust’s directors, officers and
employees.
In
the
event of a mechanical breakdown or failure of communication or power supplies
beyond its control, USBFS shall take all reasonable steps to minimize service
interruptions for any period that such interruption continues. USBFS will make
every reasonable effort to restore any lost or damaged data and correct any
errors resulting from such a breakdown at the expense of USBFS. USBFS agrees
that it shall, at all times, have reasonable contingency plans with appropriate
parties, making reasonable provision for emergency use of electrical data
processing equipment to the extent appropriate equipment is available.
Representatives of the Trust shall be entitled to inspect USBFS’s premises and
operating capabilities at any time during regular business hours of USBFS,
upon
reasonable notice to USBFS. Moreover, USBFS shall provide the Trust, at such
times as the Trust may reasonably require, copies of reports rendered by
independent accountants on the internal controls and procedures of USBFS
relating to the services provided by USBFS under this Agreement.
Notwithstanding
the above, USBFS reserves the right to reprocess and correct administrative
errors at its own expense.
In
no
case shall either party be liable to the other for (i) any special, indirect
or
consequential damages, loss of profits or goodwill (even if advised of the
possibility of such); (ii) any delay by reason of circumstances beyond its
control, including acts of civil or military authority, national emergencies,
labor difficulties, fire, mechanical breakdown, flood or catastrophe, acts
of
God, insurrection, war, riots, or failure beyond its control of transportation
or power supply; or (iii) any claim that arose more than one year prior to
the
institution of suit therefor.
| B. |
In
order that the indemnification provisions contained in this section
shall
apply, it is understood that if in any case the indemnitor may be asked
to
indemnify or hold the indemnitee harmless, the indemnitor shall be
fully
and promptly advised of all pertinent facts concerning the situation
in
question, and it is further understood that the indemnitee will use
all
reasonable care to notify the indemnitor promptly concerning any situation
that presents or appears likely to present the probability of a claim
for
indemnification. The indemnitor shall have the option to defend the
indemnitee against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects, it will
so
notify the indemnitee and thereupon the indemnitor shall take over
complete defense of the claim, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no case
confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor’s prior written consent.
|
8
| C. |
The
indemnity and defense provisions set forth in this Section 9 shall
indefinitely survive the termination and/or assignment of this
Agreement.
|
| D. |
If
USBFS is acting in another capacity for the Trust pursuant to a separate
agreement, nothing herein shall be deemed to relieve USBFS of any of
its
obligations in such other capacity.
|
| 10. |
Notification
of Error
|
The
Trust
will notify USBFS of any discrepancy between USBFS’s and the Trust’s records,
including, but not limited to, failing to account for a security position in
the
Trust’s portfolio, by the later of: (i) three business days after receipt of any
reports rendered by USBFS to the Trust; (ii) three business days after discovery
of any error or omission not covered in the balancing or control procedure;
or
(iii) three business days after receiving notice from any shareholder regarding
any such discrepancy.
| 11. |
Data
Necessary to Perform Services
|
The
Trust
or its agent shall furnish to USBFS the data necessary to perform the services
described herein at such times and in such form as mutually agreed
upon.
| 12. |
Proprietary
and Confidential Information
|
| A. |
USBFS
agrees on behalf of itself and its directors, officers, and employees
to
treat confidentially and as proprietary information of the Trust, all
records and other information relative to the Trust and prior, present,
or
potential shareholders of the Trust (and clients of said shareholders),
and not to use such records and information for any purpose other than
the
performance of its responsibilities and duties hereunder, except (i)
after
prior notification to and approval in writing by the Trust, which approval
shall not be unreasonably withheld and may not be withheld where USBFS
may
be exposed to civil or criminal contempt proceedings for failure to
comply, (ii) when requested to divulge such information by duly
constituted authorities, or (iii) when so requested by the Trust. Records
and other information which have become known to the public through
no
wrongful act of USBFS or any of its employees, agents or representatives,
and information that was already in the possession of USBFS prior to
receipt thereof from the Trust or its agent, shall not be subject to
this
paragraph.
|
9
Further,
USBFS will adhere to the privacy policies adopted by the Trust pursuant to
Title
V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, as may be modified from time to time. In this
regard, USBFS shall have in place and maintain physical, electronic and
procedural safeguards reasonably designed to protect the security,
confidentiality and integrity of, and to prevent unauthorized access to or
use
of, records and information relating to the Trust and its shareholders.
| B. |
The
Trust, on behalf of itself and its directors, officers, and employees,
will maintain the confidential and proprietary nature of the Data and
agrees to protect it using the same efforts, but in no case less than
reasonable efforts, that it uses to protect its own proprietary and
confidential information.
|
| 13. |
Records
|
USBFS
shall keep records relating to the services to be performed hereunder in the
form and manner, and for such period, as it may deem advisable and is agreeable
to the Trust, but not inconsistent with the rules and regulations of appropriate
government authorities, in particular, Section 31 of the 1940 Act and the rules
thereunder. USBFS agrees that all such records prepared or maintained by USBFS
relating to the services to be performed by USBFS hereunder are the property
of
the Trust and will be preserved, maintained, and made available in accordance
with such applicable sections and rules of the 1940 Act and will be promptly
surrendered to the Trust or its designee on and in accordance with its
request.
| 14. |
Compliance
with Laws
|
The
Trust
has and retains primary responsibility for all compliance matters relating
to
the Trust, including but not limited to compliance with the 1940 Act, the Code,
the SOX Act, the USA PATRIOT Act of 2002 and the policies and limitations of
the
Trust relating to its portfolio investments as set forth in its current
prospectus and statement of additional information. USBFS’s services hereunder
shall not relieve the Trust of its responsibilities for assuring such compliance
or the Board of Trustee’s oversight responsibility with respect thereto.
Notwithstanding the foregoing, USBFS has adopted compliance policies and
procedures necessary or appropriate to meets its obligations under the 1940
Act,
the Code, the SOX Act, the USA PATRIOT Act of 2002 and this Agreement.
10
| 15. |
Term
of Agreement; Amendment
|
This
Agreement shall become effective as of the date first written above and will
continue in effect for a period of two (2) years. Subsequent to the initial
two-year term, this Agreement may be terminated by either party upon giving
90
days prior written notice to the other party or such shorter period as is
mutually agreed upon by the parties. Notwithstanding the foregoing, this
Agreement may be terminated by any party upon the breach of the other party
of
any material term of this Agreement if such breach is not cured within 15 days
of notice of such breach to the breaching party. This Agreement may not be
amended or modified in any manner except by written agreement executed by USBFS
and the Trust, and authorized or approved by the Board of Trustees.
| 16. |
Duties
in the Event of Termination
|
In
the
event that, in connection with termination, a successor to any of USBFS’s duties
or responsibilities hereunder is designated by the Trust by written notice
to
USBFS, USBFS will promptly, upon such termination and at the expense of the
Trust, transfer to such successor all relevant books, records, correspondence
and other data established or maintained by USBFS under this Agreement in a
form
reasonably acceptable to the Trust (if such form differs from the form in which
USBFS has maintained the same, the Trust shall pay any expenses associated
with
transferring the data to such form), and will cooperate in the transfer of
such
duties and responsibilities, including provision for assistance from USBFS’s
personnel in the establishment of books, records and other data by such
successor. If no such successor is designated, then such books, records and
other data shall be returned to the Trust.
| 17. |
Assignment
|
This
Agreement shall extend to and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that this Agreement shall
not be assignable by the Trust without the written consent of USBFS, or by
USBFS
without the written consent of the Trust accompanied by the authorization or
approval of the Board of Trustees.
| 18. |
Governing
Law
|
This
Agreement shall be construed in accordance with the laws of the State of
Wisconsin, without regard to conflicts of law principles. To the extent that
the
applicable laws of the State of Wisconsin, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control, and nothing herein shall be construed in a manner inconsistent with
the
1940 Act or any rule or order of the SEC thereunder.
11
| 19. |
No
Agency Relationship
|
Nothing
herein contained shall be deemed to authorize or empower either party to act
as
agent for the other party to this Agreement, or to conduct business in the
name,
or for the account, of the other party to this Agreement.
| 20. |
Services
Not Exclusive
|
Nothing
in this Agreement shall limit or restrict USBFS from providing services to
other
parties that are similar or identical to some or all of the services provided
hereunder.
| 21. |
Invalidity
|
Any
provision of this Agreement which may be determined by competent authority
to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case, the
parties shall in good faith modify or substitute such provision consistent
with
the original intent of the parties.
| 22. |
Notices
|
Any
notice required or permitted to be given by either party to the other shall
be
in writing and shall be deemed to have been given on the date delivered
personally or by courier service, or three days after sent by registered or
certified mail, postage prepaid, return receipt requested, or on the date sent
and confirmed received by facsimile transmission to the other party’s address
set forth below:
Notice
to
USBFS shall be sent to:
U.S.
Bancorp Fund Services, LLC
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
and
notice to the Trust shall be sent to:
The
Merger Fund
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
| 23. |
Multiple
Originals
|
This
Agreement may be executed on two or more counterparts, each of which when so
executed shall be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
a duly authorized officer on one or more counterparts as of the date first
above
written.
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THE
MERGER FUND
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U.S
BANCORP FUND SERVICES, LLC
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By:
/s/
▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
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By:
/s/
▇▇▇ ▇.
▇▇▇▇▇▇▇
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Name:
_________________________
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Name:
▇▇▇ ▇.
▇▇▇▇▇▇▇
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Title:
__________________________
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Title:
President
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13