AMENDMENT #1 to AGENCY SERVICES AGREEMENT
Exhibit (h)(4)
AMENDMENT #1 to AGENCY SERVICES AGREEMENT
AMENDMENT #1 (the “Amendment”) dated as of January 19, 2007 between
PROSHARES TRUST (“ProShares”) and JPMORGAN CHASE BANK, N.A. (“Bank).
WITNESSETH
WHEREAS, ProShares and the Bank have entered into an Agency Services Agreement dated as of June 13, 2006 (the “Agreement”), and
WHEREAS, ProShares and the Bank wish to amend the Agreement and to have the Agreement, as amended herein, govern the rights and obligations of ProShares and the Bank with respect to each and every transaction which is (a) outstanding on the date hereof and (b) entered into on or after the date hereof,
NOW, THEREFORE, in consideration of the mutual agreements herein contained, ProShares and the Bank 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) Exhibit A of the Agreement is hereby amended by replacing it in its entirety with Exhibit A annexed hereto.
(b) Section 23 shall be added as follows:
“23. DELISTING.
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 as referenced in Section 6 of the Agreement 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 he 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.
/s/ Xxxxx Xxxxxxx | ||
Name: |
Xxxxx Xxxxxxx | |
Title: |
President |
JPMORGAN CHASE BANK, N.A. | ||
/s/ Xxxxxxx X. Xxxxxxxx | ||
Name: |
Xxxxxxx X. Xxxxxxxx | |
Title: |
President |
EXHIBIT A*
LIST OF PROSHARES ETF SERIES
Ultra S&P 500 ProShares
Ultra QQQ ProShares
Ultra Dow 30 ProShares
Ultra MidCap 400 ProShares
Ultra SmallCap600 ProShares
Ultra 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
Short S&P 500 ProShares
Short QQQ ProShares
Short Dow 30 ProShares
Short MidCap 400 ProShares
Short SmallCap600 ProShares
Short Russel12000 ProShares
UltraShort S&P 500 ProShares
UltraShort QQQ ProShares
UltraShort Dow 30 ProShares
UltraShort MidCap 400 ProShares
UltraShort SmallCap600 ProShares
UltraShort Russe112000 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