AMENDMENT AGREEMENT #1 to DOMESTIC CUSTODY AGREEMENT
Exhibit (g)(1)
AMENDMENT AGREEMENT #1 to DOMESTIC CUSTODY AGREEMENT
AMENDMENT AGREEMENT #1 (the “Amendment”) dated as of December 15, 2006 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 May 25, 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,
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 1 of the Agreement is hereby amended by replacing it in its entirety with Exhibit 1 annexed hereto.
(b) Schedule A of the Agreement is hereby amended by replacing it in its entirety with Schedule A annexed hereto.
(c) Section 10.13 shall be added as follows:
“10.13. 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 Schedule A 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 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 |
|
Name: Xxxxx Xxxxxxx |
| Title: President |
| JPMORGAN CHASE BANK, N.A. |
|
Name: |
| Title: |
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EXHIBIT 1*
PROSHARES TRUST PORTFOLIOS
THAT ARE PARTIES TO THIS DOMESTIC CUSTODY AGREEMENT
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
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UltraShort Russell1000 Growth ProShares
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. |
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SCHEDULE A
FEE SCHEDULE
FOR
CUSTODY AND AGENCY SERVICES
from
JPMORGAN CHASE BANK, N.A.
| A. | Domestic Custody Core Service Fees |
| Market Value Fees |
Annual Fee | ||
| All domestic assets |
|||
| First $2 billion |
2.50 | bp | |
| Over $2 billion |
1.00 | bp |
| U.S. Market Transaction Charges |
Per Transaction | ||
| DTC |
$ | 1.00 | |
| Fed Book Entry |
$ | 5.00 | |
| Physical Transactions |
$ | 12.00 | |
| Futures/Options |
$ | 12.00 | |
| Wire Transfers |
$ | 8.00 | |
| B. | Out-of-Pocket Fees (Custody Only) |
The Trust shall reimburse JPMorgan for all reasonable out-of-pocket expenses incurred on its behalf.
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FEE SCHEDULE (continued)
FOR
CUSTODY AND AGENCY SERVICES
| C. | Agency Services |
JPMorgan shall be entitled to a Quarterly Administration Fee determined as follows:
The Quarterly Administration Fee payable to JPMorgan shall be the greater of (i) the total Basket Fees (including additional transaction fees described below) for all Trust Portfolios (each a “Fund”) collected by JPMorgan during a given calendar quarter; and (ii) the Minimum Quarterly Administration Fee. “Basket Fees” means the fixed transaction fees set forth on the below sliding scale that are collected from Authorized Participants.
| Fund |
Basket Fee* | ||
| Over 1000 lines |
$ | ||
| 750 to 999 lines |
$ | ||
| 500 to 749 lines |
$ | ||
| 250 to 499 lines |
$ | ||
| Under 249 lines |
$ | ||
The Minimum Quarterly Administration Fee is based on an assumption of nine creation/redemption baskets per quarter (13 weeks) per Fund.
The Minimum Quarterly Administration Fee will be computed as follows: number of Funds available for investment during an entire quarter x $23,625.
If in any calendar quarter the total Basket Fees (including Additional Transaction fees described below, if any) collected by Bank from Authorized Participants does not equal or exceed the Minimum Quarterly Administration Fee then the Trust shall promptly pay the difference to Bank.
NOTE: For purposes of calculating the Minimum Quarterly Administration Fee, for Fund(s) launched during a quarter, the per Fund minimum of $23,625 will be prorated based on the number of days that the Fund is active during the quarter after the first creation basket is issued.
| * | Additional Transaction Fees. |
An additional charge of up to three (3) times the normal Basket Fee (for a total charge of up to four (4) times the normal Basket Fee) will be collected with respect to transactions effected by Authorized Participants outside the Clearing Process.
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