AMENDMENT AGREEMENT #1 to FUND SERVlCES AGREEMENT
Exhibit (h)(3)
AMENDMENT AGREEMENT #1 to FUND SERVlCES AGREEMENT
AMENDMENT AGREEMENT #1 (the “Amendment”) dated as of January 19, 2007 between PROSHARES TRUST (“ProShares”) and X.X. XXXXXX INVESTOR SERVICES CO. (“X.X. Xxxxxx”).
WITNESSETH
WHEREAS, ProShares and X.X. Xxxxxx have entered into a Fund Services Agreement
dated as of June 16, 2006 (the “Agreement”), and
WHEREAS, ProShares and X.X. Xxxxxx wish to amend the Agreement and to have the Agreement, as amended herein, govern the rights and obligations of ProShares and X.X. Xxxxxx,
NOW, THEREFORE, in consideration of the mutual agreements herein contained, ProShares and X.X. Xxxxxx hereby acknowledge and agree as follows:
1. Certain Definitions. Unless otherwise defined herein, capitalized terms used herein have the meanings specified in or pursuant to the Agreement.
2. Amendments.
(a) Schedule A of the Agreement is hereby amended by replacing it in its entirety with Schedule A annexed hereto.
(b) Schedule B of the Agreement is hereby amended by replacing it in its entirety with Schedule B annexed hereto.
(c) Section 18 shall be added as follows:
The Trust may delist any Fund at any time as determined in its sole discretion. In such event, a Fund which is delisted shall no longer be considered in the calculation of any fees set forth on Schedule B subsequent to the date of delisting.”
3. Except as specifically amended hereby, all of the terms and conditions of the Agreement shall continue to be in full force and effect and shall be binding upon the parties in accordance with their respective terms.
4. Each of the parties hereby represents and warrants that:
(a) the representations and warranties contained in the Agreement are true on and as of the date hereof as if made by the party on and as of said date, and
(b) the execution, delivery and performance of this Amendment are within the
party’s corporate power and have been duly authorized by all necessary corporate action, and this Amendment constitutes the legal, valid and binding obligation of the party in accordance with its terms.
5. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.
6. This Amendment shall be construed in accordance with and be governed by the laws of the State of New York (without reference to choice of law doctrine).
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective officers or authorized representatives as of the day and year first above written.
PROSHARES TRUST | ||
/s/ Xxxxx Xxxxxxx | ||
Name: | Xxxxx Xxxxxxx | |
Title: | President | |
X.X. XXXXXX INVESTOR SERVICES CO. | ||
/s/ Xxxxxxx X. Xxxxxx | ||
Name: | Xxxxxxx X. Xxxxxx | |
Title: | SVP |
FUND SERVICES AGREEMENT
SCHEDULE A*
Short S&P 500 ProShares
Short QQQ ProShares
Short Dow 30 ProShares
Short MidCap ProShares
UltraShort S&P 500 ProShares
UltraShort QQQ ProShares
UltraShort Dow 30 ProShares
UltraShort MidCap ProShares
Ultra S&P 500 ProShares
Ultra QQQ ProShares
Ultra Dow 30 ProShares
Ultra MidCap ProShares
Ultra Smallcap600 ProShares
Ultra Russel12000 ProShares
Short SmallCap600 ProShares
Short Russel12000 ProShares
UltraShort SmallCap600 ProShares
UltraShort Russel12000 ProShares
Ultra Basic Materials ProShares
Ultra Consumer Goods ProShares
Ultra Consumer Services ProShares
Ultra Financials ProShares
Ultra Health Care ProShares
Ultra Industrials ProShares
Ultra Oil & Gas ProShares
Ultra Real Estate ProShares
Ultra Semiconductors ProShares
Ultra Technology ProShares
Ultra Utilities ProShares
UltraShort Basic Materials ProShares
UltraShort Consumer Goods ProShares
UltraShort Consumer Services ProShares
UltraShort Financials ProShares
UltraShort Health Care ProShares
UltraShort Industrials ProShares
UltraShort Oil & Gas ProShares
UltraShort Real Estate ProShares
UltraShort Semiconductors ProShares
UltraShort Technology ProShares
UltraShort Utilities ProShares
FUND SERVICE AGREEMENT
SCHEDULE B
FEES AND EXPENSES Fund Accounting, Fund Administration and Standard Fund
Regulatory Services
FEES AND EXPENSES
Fund Accounting, Fund Administration and Standard Fund Regulatory Services
The per annum fees set forth on this Schedule B include the (1) per fund charges for Ultra funds (2) per fund charges for Short and UltraShort funds, and (3) out-of-pocket expenses described in Section 5, which will be valid for the services described in this Agreement, and will not be subject to change for a period of three (3) years following the effective date of this Agreement, or the commencement of operations, whichever is later.
(1) Ultra Fund Charge (calculated monthly based on average daily net assets)
Fee Schedule |
|||
$0 to $50 million | 20 bp | ||
$50 million to $100 million | 5 bp | ||
$100 million to $250 million | 3 bp | ||
$250 million to $500 million | 2 bp | ||
$500 million to $1 billion |
1 bp | ||
over $1 billion |
.25 bp | ||
Minimum fee |
$ | 100,000 |
X.X. Xxxxxx will waive the minimum for the first 12 months for each fund
(2) Short and Ultra Short Funds Charge (calculated monthly based on average daily net assets)
Fee Schedule |
|||
$0 to $50 million |
16 bp | ||
$50 million to $100 million |
3 bp | ||
$100 million to $250 million |
2.5 bp | ||
$250 million to $500 million |
2 bp | ||
$500 million to $1 billion |
1 bp | ||
over $1 billion |
.25 bp | ||
Minimum fee |
$ | 80,000 |
X.X. Xxxxxx will waive the minimum for the first 12 months for each fund.
(3) Out-of-Pocket Expenses
The Trust will reimburse X.X. Xxxxxx for Fund expenses incurred by X.X. Xxxxxx on behalf of the ‘Trust, including those set forth in Section 5 of this Agreement, provided that such expenses are without markup, customary and commercially reasonable. With respect to the foregoing, X.X. Xxxxxx shall provide, upon request by the Trust, invoices and other reasonable items requested by the Trust in order to verify such expenses.
(4) Miscellaneous
X.X. Xxxxxx will provide the Trust with tax equalization services at no additional charge. X.X. Xxxxxx will also provide the Trust with monthly and ad hoc wash sale reporting at no additional charge.