Exhibit (h)(1)
FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this ____________ day of ___________, 2006 by and
between Market Vectors ETF Trust, a Delaware business trust having its principal
place of business at 00 Xxxx Xxxxxx, Xxx Xxxx, XX (hereinafter called the
"Fund") and The Bank of New York, a New York corporation authorized to do a
banking business, having its principal place of business at Xxx Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter called the "Bank").
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the Fund and
the Bank hereby agree as follows:
1. The Fund hereby appoints the Bank to perform the duties
hereinafter set forth.
2. The Bank hereby accepts appointment and agrees to perform the
duties hereinafter set forth.
3. Subject to the provisions of paragraphs 4 and 5 below, the Bank
shall compute the net asset value per share of each Series of shares listed on
Schedule I hereto (the "Series") of the Fund and shall value the securities held
by the Fund (the "Securities") at such times and dates and in the manner
specified in the then currently effective Prospectus and Statement of Additional
Information (the "Prospectus") of the Fund, except that notwithstanding any
language in the Prospectus, in no event shall the Bank be required to determine,
or have any obligations with respect to, whether a market price represents any
fair or true value, nor to adjust any price to reflect any events or
announcements, including, without limitation, those with respect to the issuer
thereof, it being agreed that all such determinations and considerations shall
be solely for the Fund.
4. To the extent valuation of Securities or computation of a
Series' net asset value as specified in the Fund's then currently effective
Prospectus is at any time inconsistent with any applicable laws or regulations,
the Fund shall immediately so notify the Bank in writing and thereafter shall
either furnish the Bank at all appropriate times with the values of such
Securities and each Series' net asset
value, or subject to the prior approval of the Bank, instruct the Bank in
writing to value Securities and compute each Series' net asset value in a manner
which the Fund then represents in writing to be consistent with all applicable
laws and regulations. The Fund may also from time to time, subject to the prior
approval of the Bank, instruct the Bank in writing to compute the value of the
Securities or a Series' net asset value in a manner other than as specified in
paragraph 3 of this Agreement. By giving such instruction, the Fund shall be
deemed to have represented that such instruction is consistent with all
applicable laws and regulations and the then currently effective Prospectus of
the Fund. The Fund shall have sole responsibility for determining the method of
valuation of Securities and the method of computing each Series' net asset
value.
5. The Fund shall furnish the Bank with any and all instructions,
explanations, information, specifications and documentation deemed necessary by
the Bank in the performance of its duties hereunder, including, without
limitation, the amounts or written formula for calculating the amounts and times
of accrual of Fund liabilities and expenses. The Bank shall not be required to
include as Fund liabilities and expenses, nor as a reduction of net asset value,
any accrual for any federal, state, or foreign income taxes unless the Fund
shall have specified to the Bank the precise amount of the same to be included
in liabilities and expenses or used to reduce net asset value. The Fund shall
also furnish the Bank with bid, offer, or market values of Securities if the
Bank notifies the Fund that same are not available to the Bank from a security
pricing or similar service utilized, or subscribed to, by the Bank which the
Bank in its judgment deems reliable at the time such information is required for
calculations hereunder. At any time and from time to time, the Fund also may
furnish the Bank with bid, offer, or market values of Securities and instruct
the Bank to use such information in its calculations hereunder. The Bank shall
at no time be required or obligated to commence or maintain any utilization of,
or subscriptions to, any securities pricing or similar service.
6. The Bank shall advise the Fund, the Fund's custodian and the
Fund's transfer agent of the net asset value of each Series upon completion of
the computations required to be made by the Bank pursuant to this Agreement.
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7. The Bank shall, as agent for the Fund, maintain and keep current
the books, accounts and other documents, if any, listed in Appendix A hereto and
made a part hereof, as such Appendix A may be amended from time to time, and
preserve any such books, accounts and other documents in accordance with the
applicable provisions of Rule 31a-2 of the General Rules and Regulations under
the Investment Company Act of 1940, as amended (the "Rules"). Such books,
accounts and other documents shall be made available upon request for inspection
by officers, employees and auditors of the Fund during the Bank's normal
business hours.
8. All records maintained and preserved by the Bank pursuant to
this Agreement which the Fund is required to maintain and preserve in accordance
with the above-mentioned Rules shall be and remain the property of the Fund and
shall be surrendered to the Fund promptly upon request in the form in which such
records have been maintained and preserved. Upon request of the Fund, the Bank
shall provide in hard copy or on micro-film, whichever the Bank shall elect, any
records included in any such delivery which are maintained by the Bank on a
computer disc, or are similarly maintained, and the Fund shall reimburse the
Bank for its expenses of providing the same.
9. The Bank, in performing the services required of it under the
terms of this Agreement, shall be entitled to rely fully on the accuracy and
validity of any and all instructions, explanations, information, specifications
and documentation furnished to it by the Fund and shall have no duty or
obligation to review the accuracy, validity or propriety of such instructions,
explanations, information, specifications or documentation, including, without
limitation, evaluations of Securities; the amounts or formula for calculating
the amounts and times of accrual of Series' liabilities and expenses; the
amounts receivable and the amounts payable on the sale or purchase of
Securities; and amounts receivable or amounts payable for the sale or redemption
of Fund shares effected by or on behalf of the Fund. In the event the Bank's
computations hereunder rely, in whole or in part, upon information, including,
without limitation, bid, offer, or market values of Securities or other assets,
or accruals of interest or earnings thereon, from a pricing or similar service
utilized, or subscribed to, by the Bank which the Bank in its judgment deems
reliable, the Bank shall not be responsible for, under any duty to inquire into,
or deemed
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to make any assurances with respect to, the accuracy or completeness of such
information, nor shall the Bank be required to determine, or have any
obligations with respect to, whether a market price represents any fair or true
value, nor to adjust any price to reflect any events or announcements,
including, without limitation, those with respect to the issuer thereof.
10. The Bank shall not be required to inquire into any valuation of
Securities or other assets by the Fund or any third party described in preceding
paragraph 9 hereof, even though the Bank in performing services similar to the
services provided pursuant to this Agreement for others may receive different
valuations of the same or different securities of the same issuers.
11. The Bank, in performing the services required of it under the
terms of this Agreement, shall not be responsible for determining whether any
interest accruable to the Fund is or will be actually paid, but will accrue such
interest until otherwise instructed by the Fund.
12. The Bank shall not be responsible or liable for any failure or
delay in the performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its reasonable
control, including without limitation, acts of God; earthquakes; fires; floods;
wars; civil or military disturbances; sabotage; epidemics; riots; interruptions,
loss, or malfunctions of utilities, computer (hardware or software) or
communication services; accidents; labor disputes; acts of civil or military
authority or governmental actions. Nor shall the Bank be responsible for delays
or failures to supply the information or services specified in this Agreement
where such delays or failures are caused by the failure of any person(s) other
than the Bank to supply any instructions, explanations, information,
specifications, or documentation deemed necessary by the Bank in the performance
of its duties under this Agreement.
13. No provision of this Agreement shall prevent the Bank from
offering services similar or identical to those covered by this Agreement to any
other corporations, associations, or entities of any kind. Any and all
operational procedures, techniques and devices developed by the Bank in
connection with the performance of its duties and obligations under this
Agreement, including those developed in conjunction with the Fund, shall be and
remain the property of the Bank, and the Bank shall be free to
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employ such procedures, techniques and devices in connection with the
performance of any other contract with any other person whether or not such
contract is similar or identical to this Agreement.
14. The Bank may, with respect to questions of law, apply to and
obtain the advice and opinion of counsel to the Fund or its own counsel and
shall be entitled to rely on the advice or opinion of such counsel. The costs of
any such advice or opinion shall be borne by the Fund.
15. The Bank shall be entitled to rely upon any oral instructions
received by the Bank and reasonably believed by the Bank to be given by or on
behalf of the Fund, even if the Bank subsequently receives written instructions
contradicting such oral instructions. The books and records of the Bank with
respect to the content of any oral instruction shall be binding and conclusive.
16. Notwithstanding any other provision contained in this Agreement,
the Bank shall have no duty or obligation with respect to, including, without
limitation, any duty or obligation to determine, or advise or notify the Fund
of: (a) the taxable nature of any distribution or amount received or deemed
received by, or payable to, the Fund; (b) the taxable nature or effect on the
Fund or its shareholders of any corporate actions, class actions, tax reclaims,
tax refunds, or similar events; (c) the taxable nature or taxable amount of any
distribution or dividend paid, payable or deemed paid, by the Fund to its
shareholders; or (d) the effect under any federal, state, or foreign income tax
laws of the Fund making or not making any distribution or dividend payment, or
any election with respect thereto.
17. The Bank shall not be liable for any loss, damage or expense,
including counsel fees and other costs and expenses of a defense against any
claim or liability, resulting from, arising out of, or in connection with its
performance hereunder, including its actions or omissions, or errors, unless
such loss, damage or expense arises out of the negligence or willful misconduct
of the Bank. In no event shall the Bank be liable to the Company or any third
party for special, indirect, or consequential damages, or for lost profits or
loss of business, arising under or in connection with this Agreement, even if
previously informed of the possibility of such damages and regardless of the
form of action.
18. Without limiting the generality of the foregoing, the Fund shall
indemnify the Bank against and save the Bank harmless from any loss, damage, or
expense, including counsel fees and other
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costs and expenses of a defense against any claim or liability, arising from any
one or more of the following:
(a) Errors in records or instructions, explanations,
information, specifications, or documentation of any kind, as the case may be,
supplied to the Bank by any third party described in preceding paragraph 9
hereof or by or on behalf of the Fund;
(b) Action or inaction taken or omitted to be taken by the
Bank pursuant to written or oral instructions of the Fund or otherwise without
negligence or willful misconduct;
(c) Any action taken or omitted to be taken by the Bank in
good faith in accordance with the advice or opinion of counsel for the Fund or
its own counsel;
(d) Any improper use by the Fund or its agents, distributor,
or investment advisor of any valuations or computations supplied by the Bank
pursuant to this Agreement;
(e) The method of valuation of the Securities and the method
of computing each Series' net asset value; or
(f) Any valuations of Securities or net asset value provided
by the Fund.
19. In consideration for all of the services to be performed by the
Bank as set forth herein the Bank shall be entitled to receive reimbursement for
all out-of-pocket expenses and such compensation as may be agreed upon in
writing from time to time between the Bank and the Fund.
20. Attached hereto as Appendix B is a list of persons duly
authorized by the Board of Directors of the Fund to execute this Agreement and
give any written or oral instructions, or written or oral specifications, by or
on behalf of the Fund. From time to time the Fund may deliver a new Appendix B
to add or delete any person and the Bank shall be entitled to rely on the last
Appendix B actually received by the Bank.
21. The Fund represents and warrants to the Bank that it has all
requisite power to execute and deliver this Agreement, to give any written or
oral instructions contemplated hereby, and to perform the actions or obligations
contemplated to be performed by it hereunder, and has taken all necessary action
to authorize such execution, delivery and performance.
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22. This Agreement shall not be assignable by the Fund without the
prior written consent of the Bank, or by the Bank without the prior written
consent of the Fund.
23. Either of the parties hereto may terminate this Agreement by
giving the other party a notice in writing specifying the date of such
termination, which shall not be less than ninety (90) days after the date of
giving of such notice. Upon the date set forth in such notice, the Bank shall
deliver to the Fund all records then the property of the Fund and, upon such
delivery, the Bank shall be relieved of all duties and responsibilities under
this Agreement.
24. This Agreement may not be amended or modified in any manner
except by written agreement executed on behalf of both parties hereto.
25. This Agreement is executed in the State of New York and all laws
and rules of construction of the State of New York (other than those relating to
choice of laws) shall govern the rights, duties and obligations of the parties
hereto. The Fund and the Bank hereby consent to the exclusive jurisdiction of a
state or federal courts situated in New York City, New York in connection with
any dispute arising hereunder. The Fund hereby irrevocably waives, to the
fullest extent permitted by applicable law, any objection which it may now or
hereafter have to the laying of venue of any such preceding brought in such a
court and any claim that such proceeding brought in such a court has been
brought in an inconvenient form. The Fund and the Bank each hereby irrevocably
waives any and all rights to trial by jury in any legal proceeding arising out
of or relating to this Agreement.
26. The performance and provisions of this Agreement are intended to
benefit only the Bank and the Fund, and no rights shall be granted to any other
person by virtue of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
*____________________________________________
By:__________________________________________
Attest:
___________________________
THE BANK OF NEW YORK
By:__________________________________________
Attest:
___________________________
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APPENDIX A TO FUND ACCOUNTING AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AND
*____________________________________
I. The Bank of New York (the "Bank"), as agent for *_______________
(the "Fund"), shall maintain the following records on a daily basis for each
Series.
1. Report of priced portfolio securities
2. Statement of net asset value per share
II. The Bank shall maintain the following records on a monthly basis
for each Series:
1. General Ledger
2. General Journal
3. Cash Receipts Journal
4. Cash Disbursements Journal
5. Subscriptions Journal
6. Redemptions Journal
7. Accounts Receivable Reports
8. Accounts Payable Reports
9. Open Subscriptions/Redemption Reports
10. Transaction (Securities) Journal
11. Broker Net Trades Reports
III. The Bank shall prepare a Holdings Ledger on a quarterly basis,
and a Buy-Sell Ledger (Broker's Ledger) on a semiannual basis for each Series.
Schedule D shall be produced on an annual basis for each Series.
The above reports may be printed according to any other required
frequency to meet the requirements of the Internal Revenue Service, The
Securities and Exchange Commission and the Fund's Auditors.
IV. For internal control purposes, the Bank uses the Account
Journals produced by The Bank of New York Custody System to record daily
settlements of the following for each Series:
1. Securities bought
2. Securities sold
3. Interest received
4. Dividends received
5. Capital stock sold
6. Capital stock redeemed
7. Other income and expenses
All portfolio purchases for the Fund are recorded to reflect expected
maturity value and total cost including any prepaid interest.
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I, _______________________, of *_____________________________, a
__________________ (STATE) corporation (the "Fund"), do hereby certify that:
The following individuals serve in the following positions with the
Fund, and each has been duly elected or appointed by the Board of Directors of
the Fund to each such position and qualified therefor in conformity with the
Fund's Articles of Incorporation and By-Laws, and the signatures set forth
opposite their respective names are their true and correct signatures. Each such
person is authorized to give written or oral instructions or written or oral
specifications by or on behalf of the Fund to the Bank.
Name Position Signature
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SCHEDULE I
SERIES
