Exhibit (h)(5)
AMENDMENT #38 to FUND SERVICES AGREEMENT
AMENDMENT #38 (the “Amendment”) dated as of June 11, 2015 by and between PROSHARES TRUST (“ProShares”)
and X.X. XXXXXX INVESTOR SERVICES CO. (“X.X. Xxxxxx”) to the Fund Services Agreement dated June 16, 2006 (as amended and in effect on the date hereof, the “Agreement”).
WITNESSETH
WHEREAS,
ProShares and X.X. Xxxxxx have entered into 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.
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) and the applicable provisions of the 1940 Act.
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/ Xxxx X. Xxxxxxx |
| Name: Xxxx X. Xxxxxxx |
| Title: President |
X.X. XXXXXX INVESTOR SERVICES CO.
|
| /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Executive Director |
2
FUND SERVICES AGREEMENT
SCHEDULE A
| 1. |
ProShares Short S&P500 |
| 4. |
ProShares Short MidCap400 |
| 5. |
ProShares UltraShort S&P500 |
| 6. |
ProShares UltraShort QQQ |
| 7. |
ProShares UltraShort Dow30 |
| 8. |
ProShares UltraShort MidCap400 |
| 9. |
ProShares Ultra S&P500 |
| 11. |
ProShares Ultra Dow30 |
| 12. |
ProShares Ultra MidCap400 |
| 13. |
ProShares Ultra SmallCap600 |
| 14. |
ProShares Ultra Russell2000 |
| 15. |
ProShares Short SmallCap600 |
| 16. |
ProShares Short Russell2000 |
| 17. |
ProShares UltraShort SmallCap600 |
| 18. |
ProShares UltraShort Russell2000 |
| 19. |
ProShares Ultra Basic Materials |
| 20. |
ProShares Ultra Consumer Goods |
| 21. |
ProShares Ultra Consumer Services |
| 22. |
ProShares Ultra Financials |
| 23. |
ProShares Ultra Health Care |
| 24. |
ProShares Ultra Industrials |
| 25. |
ProShares Ultra Oil & Gas |
| 26. |
ProShares Ultra Real Estate |
| 27. |
ProShares Ultra Semiconductors |
| 28. |
ProShares Ultra Technology |
| 29. |
ProShares Ultra Utilities |
| 30. |
ProShares UltraShort Basic Materials |
| 31. |
ProShares UltraShort Consumer Goods |
| 32. |
ProShares UltraShort Consumer Services |
| 33. |
ProShares UltraShort Financials |
| 34. |
ProShares UltraShort Health Care |
| 35. |
ProShares UltraShort Industrials |
| 36. |
ProShares UltraShort Oil & Gas |
| 37. |
ProShares UltraShort Real Estate |
| 38. |
ProShares UltraShort Semiconductors |
| 39. |
ProShares UltraShort Technology |
3
| 40. |
ProShares UltraShort Utilities |
| 41. |
ProShares Ultra Russell1000 Value |
| 42. |
ProShares Ultra Russell1000 Growth |
| 43. |
ProShares Ultra Xxxxxxx MidCap Value |
| 44. |
ProShares Ultra Xxxxxxx XxxXxx Growth |
| 45. |
ProShares Ultra Russell2000 Value |
| 46. |
ProShares Ultra Russell2000 Growth |
| 47. |
ProShares UltraShort Russell1000 Value |
| 48. |
ProShares UltraShort Russell1000 Growth |
| 49. |
ProShares UltraShort Xxxxxxx MidCap Value |
| 50. |
ProShares UltraShort Xxxxxxx XxxXxx Growth |
| 51. |
ProShares UltraShort Russell2000 Value |
| 52. |
ProShares UltraShort Russell2000 Growth |
| 53. |
ProShares Short MSCI Emerging Markets |
| 54. |
ProShares Short MSCI EAFE |
| 55. |
ProShares UltraShort MSCI Emerging Markets |
| 56. |
ProShares UltraShort MSCI Japan |
| 57. |
ProShares UltraShort MSCI EAFE |
| 58. |
ProShares UltraShort FTSE China 50 |
| 59. |
ProShares UltraShort 7-10 Year Treasury |
| 60. |
ProShares UltraShort 20+ Year Treasury |
| 61. |
ProShares Ultra FTSE China 50 |
| 62. |
ProShares Ultra MSCI Japan |
| 63. |
ProShares Ultra Telecommunications |
| 64. |
ProShares UltraShort Telecommunications |
| 65. |
ProShares Short Financials |
| 66. |
ProShares Short Oil & Gas |
| 67. |
ProShares Ultra MSCI EAFE |
| 68. |
ProShares Ultra MSCI Emerging Markets |
| 69. |
ProShares Ultra Russell3000 |
| 70. |
ProShares UltraShort Europe |
| 71. |
ProShares UltraShort MSCI Pacific ex-Japan |
| 72. |
ProShares UltraShort MSCI Brazil Capped |
| 73. |
ProShares UltraShort MSCI Mexico Capped IMI |
| 74. |
ProShares UltraShort Russell3000 |
| 75. |
ProShares Large Cap Core Plus |
| 76. |
ProShares UltraPro S&P500 |
| 77. |
ProShares UltraPro Short S&P500 |
| 78. |
ProShares Short 20+ Year Treasury |
4
| 79. |
ProShares Ultra 7-10 Year Treasury |
| 80. |
ProShares Ultra 20+ Year Treasury |
| 81. |
ProShares UltraPro Dow30 |
| 82. |
ProShares UltraPro MidCap400 |
| 83. |
ProShares UltraPro Russell2000 |
| 84. |
ProShares UltraPro QQQ |
| 85. |
ProShares UltraPro Short Dow30 |
| 86. |
ProShares UltraPro Short MidCap400 |
| 87. |
ProShares UltraPro Short Russell2000 |
| 88. |
ProShares UltraPro Short QQQ |
| 89. |
ProShares Short Basic Materials |
| 90. |
ProShares Short Real Estate |
| 91. |
ProShares Short FTSE China 50 |
| 92. |
ProShares Ultra Nasdaq Biotechnology |
| 93. |
ProShares UltraShort Nasdaq Biotechnology |
| 94. |
ProShares Ultra S&P Regional Banking |
| 95. |
ProShares Short S&P Regional Banking |
| 96. |
ProShares Ultra Europe |
| 97. |
ProShares Ultra MSCI Pacific ex-Japan |
| 98. |
ProShares Ultra MSCI Brazil Capped |
| 99. |
ProShares Ultra MSCI Mexico Capped IMI |
| 100. |
ProShares RAFI Long/Short |
| 101. |
ProShares Hedge Replication ETF |
| 102. |
ProShares UltraShort TIPS |
| 103. |
ProShares Short High Yield |
| 104. |
ProShares Short Investment Grade Corporate |
| 105. |
ProShares Ultra Short 3-7 Year Treasury |
| 106. |
ProShares Short 7-10 Year Treasury |
| 107. |
ProShares Ultra High Yield |
| 108. |
ProShares Ultra Investment Grade Corporate |
| 109. |
ProShares German Sovereign/Sub-Sovereign ETF |
| 110. |
ProShares UltraPro 10 Year TIPS/TSY Spread |
| 111. |
ProShares UltraPro Short 10 Year TIPS/TSY Spread |
| 112. |
ProShares 30 Year TIPS/TSY Spread |
| 113. |
ProShares Short 30 Year TIPS/TSY Spread |
| 114. |
ProShares UltraPro MSCI Emerging Markets |
| 115. |
ProShares UltraPro Short MSCI Emerging Markets |
| 116. |
ProShares UltraPro 20+ Year Treasury |
| 117. |
ProShares UltraPro Short 20+ Year Treasury |
| 118. |
ProShares USD Covered Bond |
| 119. |
ProShares UltraPro Financials |
| 120. |
ProShares UltraPro Short Financials |
5
| 121. |
ProShares Merger ETF |
| 122. |
ProShares Global Listed Private Equity ETF |
| 123. |
ProShares High Yield Interest Rate Hedged |
| 124. |
ProShares S&P 500 Dividend Aristocrats ETF |
| 125. |
ProShares Investment Grade – Interest Rate Hedged |
| 126. |
ProShares Short Term USD Emerging Markets Bond ETF |
| 127. |
ProShares DJ Brookfield Global Infrastructure ETF |
| 128. |
ProShares CDS North American HY Credit ETF |
| 129. |
ProShares CDS Short North American HY Credit ETF |
| 132. |
ProShares MSCI EAFE Dividend Growers ETF |
| 134. |
ProShares Morningstar Alternatives Solution ETF |
| 135. |
ProShares USD Emerging Markets Bond – Interest Rate Hedged |
| 136. |
ProShares Xxxxxxx 2000 Dividend Growers ETF |
| 137. |
ProShares S&P MidCap 400 Dividend Aristocrats ETF |
| 138. |
ProShares Ultra Gold Miners |
| 139. |
ProShares Ultra Junior Miners |
| 140. |
ProShares UltraShort Gold Miners |
| 141. |
ProShares UltraShort Junior Miners |
| 142. |
ProShares UltraPro Nasdaq Biotechnology |
| 143. |
ProShares UltraPro Short Nasdaq Biotechnology |
| 144. |
ProShares Ultra Oil & Gas Exploration & Production |
| 145. |
ProShares UltraShort Oil & Gas Exploration & Production |
| 146. |
ProShares Ultra Homebuilders |
| 147. |
ProShares UltraShort Homebuilders |
| 148. |
ProShares Hedged FTSE Europe ETF |
| 149. |
ProShares Hedged FTSE Japan ETF |
6
FUND SERVICE AGREEMENT
SCHEDULE B
FEE
Schedule
Fund Accounting, Fund Administration and Standard Fund Regulatory Services
The annual fees set forth on this Schedule B include the (1) per fund fees for funds that hold securities, other than cash equivalents, (2) per fund
fees for funds that do not hold securities, except for cash equivalents, and (3) out-of-pocket expenses described in Section 5, which will be valid for the services described in this Agreement. JPM will monitor the funds for securities
holdings on a quarterly basis and will obtain the Trust’s prior approval for any proposed changes.
| |
(1) |
Annual fee for funds that hold securities other than cash equivalents (calculated monthly based on average daily net assets) |
Beginning with an effective date of January 1st, 2012
|
|
|
|
|
| $0 to $50 million |
|
|
[Redacted |
] |
| Over $50 million to $100 million |
|
|
[Redacted |
] |
| Over $100 million to $250 million |
|
|
[Redacted |
] |
| Over $250 million to $500 million |
|
|
[Redacted |
] |
| Over $500 million to $1 billion |
|
|
[Redacted |
] |
| Over $1 billion |
|
|
[Redacted |
] |
|
|
| Minimum asset-based fee |
|
|
[Redacted |
] |
The minimum fee does not apply for the initial year for any new fund.
JPM will waive [Redacted] bps of the annual asset based fee for assets of each fund from [Redacted] million for the initial
twelve months of this amended agreement beginning with an effective date of June 1, 2011. For funds where the total annual asset based fee does not exceed the minimum asset based fee for the initial year of this amendment, the minimum
asset-based fee will be decreased by the amount equal to: the average assets of the fund for the first year x [Redacted].
Annual
Cost Lot Selection Fee: [Redacted] per fund, after the initial year for any new fund.
Annual PFIC Identification Fee:
[Redacted] per fund that holds equity securities, after the initial year for any new fund.
Annual Fee for periodic Capital Gain
Estimates (up to ten): [Redacted] per fund, after the initial year for any new fund, includes calculations of equalization credits and deferred losses due to wash sales (note: this fee may be adjusted as mutually agreed periodically to
account for changes in circumstances):
7
| |
(2) |
Annual fee for funds that do not hold securities other than cash equivalents (calculated monthly based on average daily net assets) |
Beginning with an effective date of January 1st, 2012
|
|
|
|
|
| $0 to $50 million |
|
|
[Redacted |
] |
| Over $50 million to $100 million |
|
|
[Redacted |
] |
| Over $100 million to $250 million |
|
|
[Redacted |
] |
| Over $250 million to $500 million |
|
|
[Redacted |
] |
| Over $500 million to $1 billion |
|
|
[Redacted |
] |
| Over $1 billion |
|
|
[Redacted |
] |
|
|
| Minimum asset-based fee |
|
|
[Redacted |
] |
The minimum fee does not apply for the initial year for any new fund.
JPM will waive [Redacted] of the annual asset based fee for assets of each fund from [Redacted] million for the initial twelve
months of this amended agreement beginning with an effective date of June 1, 2011. For funds where the total annual asset based fee does not exceed the minimum asset based fee for the initial year of this amendment, the minimum asset-based fee
will be decreased by the amount equal to: the average assets of the fund for the first year x [Redacted].
Annual Fee for periodic
Capital Gain Estimates (up to ten): [Redacted] per fund, after the initial year for any new fund, includes calculations of equalization credits (note: this fee may be adjusted as mutually agreed periodically to account for changes in
circumstances).
| |
3. |
Fund Accounting & Administration Fee Schedule for ProShares Morningstar Alternative Solutions ETF |
*All Fees in: US Dollar
|
|
|
|
|
| Annual Fee |
|
Annual Fee (in BPS) |
|
| Fund of Funds* |
|
|
[Redacted |
] |
| * |
A cap on Fund Accounting & Administration fees for the Fund of Funds will be set at [Redacted]. |
Annual Cost Lot Selection Fee: [Redacted]
8
Annual Fee for periodic Capital Gain Estimates (up to ten): [Redacted], includes
calculations of equalization credits and deferred losses due to wash sales (note: this fee may be adjusted as mutually agreed periodically to account for changes in circumstances):
| |
4. |
Out-of-Pocket Expenses |
A list of out-of-pocket expenses is provided in Section 5.
X.X. Xxxxxx must obtain the Trust’s approval for any additional out-of-pocket expenses. The Trust will reimburse X.X. Xxxxxx for Fund expenses incurred by X.X. Xxxxxx on behalf of the Trust, 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.
Fee Schedule Acknowledgement
The foregoing fee schedule
covers administration services to be performed by X.X. Xxxxxx and/or certain subsidiaries and/or affiliates for ProShares.
The signature below indicates
that I, as a duly authorized representative of ProShares, have reviewed and accept this fee schedule, which will take effect upon the earlier of (i) October 2, 2014 or (ii) the start of provision of the services described herein by
X.X. Xxxxxx for ProShares. The terms and conditions contained herein are proprietary and confidential, and shall not be disclosed to third parties without express prior written consent by X.X. Xxxxxx.
|
|
|
|
|
| Accepted by: |
|
|
|
|
|
|
|
| ProShares Trust |
|
|
|
JPMorgan Chase Bank, N.A. |
|
|
|
| /s/ Xxxx X. Xxxxxxx |
|
|
|
/s/ Xxxx Xxxxxx |
| Name: Xxxx X. Xxxxxxx |
|
|
|
Name: Xxxx Xxxxxx |
| Title: President |
|
|
|
Title: Vice President |
| Date: |
|
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|
Date: |
9
