AMENDMENT AGREEMENT #11 to FUND SERVICES AGREEMENT
Exhibit 28 h (3)
AMENDMENT AGREEMENT #11 to FUND SERVICES AGREEMENT
AMENDMENT AGREEMENT #11 (the “Amendment”) dated as of June 23, 2009 between PROSHARES TRUST (“ProShares”) and ▇.▇. ▇▇▇▇▇▇ INVESTOR SERVICES CO. (“▇.▇. ▇▇▇▇▇▇”).
WITNESSETH
WHEREAS, ProShares and ▇.▇. ▇▇▇▇▇▇ have entered into a Fund Services Agreement dated as of June 16, 2006 and amended as of January 19, 2007, February 16, 2007, September 18, 2007, December 10, 2007, January 25, 2008, March 12, 2008, June 10, 2008, August 22, 2008, December 8, 2008 and June 1, 2009 (the “Agreement”), and
WHEREAS, ProShares and ▇.▇. ▇▇▇▇▇▇ wish to amend the Agreement and to have the Agreement, as amended herein, govern the rights and obligations of ProShares and ▇.▇. ▇▇▇▇▇▇,
NOW, THEREFORE, in consideration of the mutual agreements herein contained, ProShares and ▇.▇. ▇▇▇▇▇▇ 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.
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/ ▇▇▇ Doberman |
| Name: ▇▇▇ Doberman |
| Title: Secretary |
| ▇.▇. ▇▇▇▇▇▇ INVESTOR SERVICES CO. |
| /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ |
| Title: Executive Director |
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SCHEDULE A
ProShares 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 Russell2000
ProShares Short SmallCap600
ProShares Short Russell2000
ProShares UltraShort SmallCap600
ProShares UltraShort Russell2000
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
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ProShares UltraShort Semiconductors
ProShares UltraShort Technology
ProShares UltraShort Utilities
ProShares Ultra Russell1000 Value
ProShares Ultra Russell1000 Growth
ProShares Ultra MidCap Value
ProShares Ultra MidCap Growth
ProShares Ultra Russell2000 Value
ProShares Ultra Russell2000 Growth
ProShares UltraShort Russell1000 Value
ProShares UltraShort Russell1000 Growth
ProShares UltraShort MidCap Growth
ProShares UltraShort MidCap Value
ProShares UltraShort Russell2000 Value
ProShares UltraShort Russell2000 Growth
ProShares Short MSCI Emerging Markets
ProShares Short MSCI EAFE
ProShares UltraShort MSCI Emerging Markets
ProShares UltraShort MSCI Japan
ProShares UltraShort MSCI EAFE
ProShares UltraShort FTSE/Xinhua China 25
ProShares UltraShort 7-10 Year Treasury
ProShares UltraShort 20+ Year Treasury
ProShares Ultra FTSE/Xinhua China 25
ProShares Ultra MSCI Japan
ProShares Ultra Telecommunications
ProShares UltraShort Telecommunications
ProShares Short Financials
ProShares Short Oil & Gas
ProShares UltraShort iBoxx $ Investment Grade
ProShares UltraShort iBoxx $ High Yield
ProShares Ultra Biotechnology
ProShares UltraShort Biotechnology
ProShares Ultra MSCI EAFE
ProShares Ultra MSCI Emerging Markets
ProShares Ultra Russell3000
ProShares UltraShort MSCI Europe
ProShares UltraShort MSCI Pacific ex-Japan
ProShares UltraShort MSCI Brazil
4
ProShares UltraShort MSCI Mexico Investable Market
ProShares UltraShort Russell3000
ProShares Credit Suisse 130/30
ProShares UltraPro S&P500
Proshares UltraPro Short S&P500
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