AMENDMENT AGREEMENT #1 to FUND SERVICES AGREEMENT
Exhibit(h)(3)
AMENDMENT AGREEMENT #1 to FUND SERVICES AGREEMENT
AMENDMENT AGREEMENT #1 (the “Amendment”) dated as of December 15, 2006 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:
“18. 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 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 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.
|
|
Name: Xxxxx Xxxxxxx |
| Title: President |
| X.X. XXXXXX INVESTOR SERVICES CO.
|
Name: |
| Title: |
2
SCHEDULE A*
Short S&P500 ProShares
Short QQQ ProShares
Short Dow30 ProShares
Short MidCap ProShares
UltraShort S&P500 ProShares
UltraShort QQQ ProShares
UltraShort Dow30 ProShares
UltraShort MidCap ProShares
Ultra S&P500 ProShares
Ultra QQQ ProShares
Ultra Dow30 ProShares
Ultra MidCap ProShares
Short Russell2000 ProShares
Short S&P SmallCap600 ProShares
Short Russell1000 Value ProShares
Short Russell1000 Growth ProShares
Xxxxx Xxxxxxx XxxXxx Value ProShares
Xxxxx Xxxxxxx MidCap Growth ProShares
Short Russell2000 Value ProShares
Short Russell2000 Growth ProShares
Short Basic Materials ProShares
Short Biotechnology ProShares
Short Consumer Goods ProShares
Short Consumer Services ProShares
Short Financials ProShares
Short Health Care ProShares
Short Industrials ProShares
Short Oil & Gas ProShares
Short Precious Metals ProShares
Short Real Estate ProShares
Short Semiconductors ProShares
Short Technology ProShares
Short Telecommunications ProShares
Short Utilities ProShares
Xxxxx Xxxxxxx XxxXxx
UltraShort Russell1000 ProShares
UltraShort Russell2000 ProShares
UltraShort S&P SmallCap600 ProShares
UltraShort Russell1000 Value ProShares
UltraShort Russell1000 Growth ProShares
3
UltraShort Xxxxxxx MidCap Value ProShares
UltraShort Xxxxxxx XxxXxx Growth ProShares
UltraShort Russell2000 Value ProShares
UltraShort Russell2000 Growth ProShares
UltraShort Basic Materials ProShares
UltraShort Biotechnology ProShares
UltraShort Consumer Goods ProShares
UltraShort Consumer Services ProShares
UltraShort Financials ProShares
UltraShort Health Care ProShares
UltraShort Industrials ProShares
UltraShort Oil & Gas ProShares
UltraShort Precious Metals ProShares
UltraShort Real Estate ProShares
UltraShort Semiconductors ProShares
UltraShort Technology ProShares
UltraShort Telecommunications ProShares
UltraShort Utilities ProShares
UltraShort Russell1000 ProShares
Ultra Xxxxx Xxxxxxx MidCap
Ultra Russell2000 ProShares
Ultra S&P SmallCap600 ProShares
Ultra Russell1000 Value ProShares
Ultra Russell1000 Growth ProShares
Ultra Xxxxxxx XxxXxx Value ProShares
Ultra Xxxxxxx MidCap Growth ProShares
Ultra Russell2000 Value ProShares
Ultra Russell2000 Growth ProShares
Ultra Basic Materials ProShares
Ultra Biotechnology ProShares
Ultra Consumer Goods ProShares
Ultra Consumer Services ProShares
Ultra Financials ProShares
Ultra Health Care ProShares
Ultra Industrials ProShares
Ultra Oil & Gas ProShares
Ultra Precious Metals ProShares
Ultra Real Estate ProShares
Ultra Semiconductors ProShares
Ultra Technology ProShares
Ultra Telecommunications ProShares
Ultra Utilities ProShares
Ultra Russell1000 ProShares
Ultra Xxxxxxx XxxXxx
| * | For the avoidance of doubt, the parties acknowledge and agree that, prior to the commencement of investment operations of any of the foregoing Funds, the Trust may elect to appoint a service provider (other than X.X. Xxxxxx) to any of such Funds to provide similar services as set forth pursuant to this Agreement, as determined in the Trust’s sole discretion. |
4
SCHEDULE B
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 (2) market value fees, 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) Per Fund Charge (calculated monthly based on average net assets) | ||
| First 6 Months |
||
| $0 to $50 million |
10bp | |
| Over $50 million |
No additional charges | |
| Next 6 Months |
||
| $0 to $50 million |
20bp | |
| Over $50 million |
No additional charges | |
| Year 2 |
||
| First Level Charge |
||
| $0 to $50 million or |
20 bp | |
| Over $50 million |
No additional charges | |
| Second Level Charge (in addition to the First Level Charge above for Funds with assets less than $50 million) |
||
| $0 to $20 million or |
$15,000 | |
| $20 million to $50 million* |
$25,000 | |
* In Year 2, the maximum amount a single Fund will pay for the Per Fund Charge will be $100,000 |
||
| Year 3 and thereafter unless otherwise mutually agreed |
||
| Charge per fund |
$100,000 | |
| (2) Market Value Fees (calculated monthly based on average net assets) |
||
| Based on Total Average Net Assets |
||
| First $1 billion |
N/A | |
| $1 billion to $2 billion |
.60 bp | |
| $2 billion to $5 billion |
.35 bp | |
| Over $5 billion |
No additional charge | |
5
| (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 provide the Trust with monthly and ad hoc wash sale reporting at no additional charge.
6
