SECOND AMENDMENT TO THE CUSTODY AGREEMENT
SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of this 16th date of October, 2014, to the Custody Agreement dated as of September 12, 2012, as amended January 25, 2013 (the "Agreement"), is entered into by and between FACTORSHARES TRUST, a Delaware statutory trust and U.S. BANK, N.A., a national banking association (the "Custodian").
RECITALS
WHEREAS, the parties have entered into the Agreement; and
WHEREAS, the Company and the Custodian desire to amend the Agreement to add the ISE Cyber Security ETF and to amend the fees; and
WHEREAS, Article XV, Section 15.02 of the Agreement allows for its amendment by a written instrument executed by both parties.
NOW, THEREFORE, the parties agree as follows:
Exhibit B is hereby superseded and replaced in its entirety with Amended Exhibit B attached hereto.
Amended Exhibit C is hereby superseded and replaced in its entirety with Amended Exhibit C attached hereto.
Except to the extent amended hereby, the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed by a duly authorized officer on one or more counterparts as of the date and year first written above.
| FACTORSHARES TRUST | U.S. BANK, N.A. |
| By: /s/ Xxxxxx Xxxxxxx, III | By: /s/ Xxxxxxx X. XxXxx |
| Name: Xxxxxx Xxxxxxx, III | Name: Xxxxxxx X. XxXxx |
| Title: President | Title: Senior Vice President |
10/2014
1
Amended Exhibit B to the Custody Agreement
Separate Series of FactorShares Trust
|
Name of Series
PureFunds ISE Junior Silver (Small Cap Miners/Explorers) ETF
ISE Cyber Security ETF
|
10/2014
2
Amended Exhibit C to the Custody Agreement -
FactorShares Trust - PureFunds ISE Junior Silver (Small Cap Miners/Explorers) ETF
|
Exchange Traded Funds
DOMESTIC CUSTODY SERVICES - FEE SCHEDULE at January, 2013
|
Annual Fee Based Upon Market Value Per Fund*
__basis point on average daily market value
Minimum annual fee per fund - $__
Plus portfolio transaction fees
Portfolio Transaction Fees
$__/book entry DTC transaction/Federal Reserve transaction/principal paydown
$__/U.S. Bank repo agreement transaction
$__/short sale
$__/option/future contract written, exercised or expired
$__/mutual fund trade/Fed wire/margin variation Fed wire
$__/physical transaction
$__ /segregated account per year
|
§
|
A transaction is a purchase/sale of a security, free receipt/free delivery, maturity, tender or exchange.
|
|
§
|
No charge for the initial conversion free receipt.
|
|
§
|
Overdrafts – charged to the account at prime interest rate plus __.
|
Chief Compliance Officer Support Fee*
|
§
|
$__/year
|
Out-Of-Pocket Expenses
Including but not limited to expenses incurred in the safekeeping, delivery and receipt of securities, shipping, transfer fees, deposit withdrawals at custodian (DWAC) fees, and extraordinary expenses based upon complexity.
* Subject to annual CPI increase, Milwaukee MSA.
Fees are billed monthly.
10/2014
3
|
Amended Exhibit C (continued) to the Custody Agreement
GLOBAL SUB-CUSTODIAL SERVICES
ANNUAL FEE SCHEDULE at January, 2013- PureFunds ISE Junior Silver (Small Cap Miners/Explorers) ETF
|
||||||||
|
Country
|
Instrument
|
Safekeeping
(BPS)
|
Transaction
Fee
|
Country
|
Instrument
|
Safekeeping
(BPS)
|
Transaction
Fee
|
|
|
Argentina
|
All
|
__
|
__
|
Lithuania
|
All
|
__
|
__
|
|
|
Australia
|
All
|
__
|
__
|
Luxembourg
|
All
|
__
|
__
|
|
|
Austria
|
All
|
__
|
__
|
Malaysia
|
All
|
__
|
__
|
|
|
Bahrain
|
All
|
__
|
__
|
Mali*
|
All
|
__
|
__
|
|
|
Bangladesh
|
All
|
__
|
__
|
Malta
|
All
|
__
|
__
|
|
|
Belgium
|
All
|
__
|
__
|
Mauritius
|
All
|
__
|
__
|
|
|
Benin*
|
All
|
__
|
__
|
Mexico
|
All
|
__
|
__
|
|
|
Bermuda
|
All
|
__
|
__
|
Morocco
|
All
|
__
|
__
|
|
|
Botswana
|
All
|
__
|
__
|
Namibia
|
All
|
__
|
__
|
|
|
Brazil
|
All
|
__
|
__
|
Netherlands
|
All
|
__
|
__
|
|
|
Bulgaria
|
All
|
__
|
__
|
New Zealand
|
All
|
__
|
__
|
|
|
Burkina Faso*
|
All
|
__
|
__
|
Niger*
|
All
|
__
|
__
|
|
|
Canada
|
All
|
__
|
__
|
Nigeria
|
All
|
__
|
__
|
|
|
Cayman Islands*
|
All
|
__
|
__
|
Norway
|
All
|
__
|
__
|
|
|
Channel Islands*
|
All
|
__
|
__
|
Oman
|
All
|
__
|
__
|
|
|
Chile
|
All
|
__
|
__
|
Pakistan
|
All
|
__
|
__
|
|
|
China“A” Shares
|
All
|
__
|
__
|
Palestinian Autonomous Area*
|
All
|
__
|
__
|
|
|
China“B” Shares
|
All
|
__
|
__
|
Peru
|
All
|
__
|
__
|
|
|
Columbia
|
All
|
__
|
__
|
Philippines
|
All
|
__
|
__
|
|
|
Costa Rica
|
All
|
__
|
__
|
Poland
|
All
|
__
|
__
|
|
|
Croatia
|
All
|
__
|
__
|
Portugal
|
All
|
__
|
__
|
|
|
Cyprus*
|
All
|
__
|
__
|
Qatar
|
All
|
__
|
__
|
|
|
Czech Republic
|
All
|
__
|
__
|
Romania
|
All
|
__
|
__
|
|
|
Denmark
|
All
|
__
|
__
|
Russia
|
Equities
|
__
|
__
|
|
|
Ecuador
|
All
|
__
|
__
|
Russia
|
MINFINs
|
__
|
__
|
|
|
Egypt
|
All
|
__
|
__
|
Senegal*
|
All
|
__
|
__
|
|
|
Estonia
|
All
|
__
|
__
|
Serbia*
|
All
|
__
|
__
|
|
|
Euromarkets**
|
All
|
__
|
__
|
Singapore
|
All
|
__
|
__
|
|
|
Finland
|
All
|
__
|
__
|
Slovak Republic
|
All
|
__
|
__
|
|
|
France
|
All
|
__
|
__
|
Slovenia
|
All
|
__
|
__
|
|
|
Germany
|
All
|
__
|
__
|
South Africa
|
All
|
__
|
__
|
|
|
Ghana
|
All
|
__
|
__
|
South Korea
|
All
|
__
|
__
|
|
|
Greece
|
All
|
__
|
__
|
Spain
|
All
|
__
|
__
|
|
|
Guinea Bissau*
|
All
|
__
|
__
|
Sri Lanka
|
All
|
__
|
__
|
|
|
Hong Kong
|
All
|
__
|
__
|
Swaziland
|
All
|
__
|
__
|
|
|
Hungary
|
All
|
__
|
__
|
Sweden
|
All
|
__
|
__
|
|
|
Iceland
|
All
|
__
|
__
|
Switzerland
|
All
|
__
|
__
|
|
|
India
|
All
|
__
|
__
|
Taiwan
|
All
|
__
|
__
|
|
|
Indonesia
|
All
|
__
|
__
|
Thailand
|
All
|
__
|
__
|
|
|
Ireland
|
All
|
__
|
__
|
Togo*
|
All
|
__
|
__
|
|
|
Israel
|
All
|
__
|
__
|
Trinidad & Tobago*
|
All
|
__
|
__
|
|
|
Italy
|
All
|
__
|
__
|
Tunisia
|
All
|
__
|
__
|
|
|
Ivory Coast
|
All
|
__
|
__
|
Turkey
|
All
|
__
|
__
|
|
|
Jamaica*
|
All
|
__
|
__
|
UAE
|
All
|
__
|
__
|
|
|
Japan
|
All
|
__
|
__
|
United Kingdom
|
All
|
__
|
__
|
|
|
Jordan
|
All
|
__
|
__
|
Ukraine
|
All
|
__
|
__
|
|
|
Kazakhstan
|
All
|
__
|
__
|
Uruguay
|
All
|
__
|
__
|
|
|
Kenya
|
All
|
__
|
__
|
Venezuela
|
All
|
__
|
__
|
|
|
Latvia
|
Equities
|
__
|
__
|
Vietnam*
|
All
|
__
|
__
|
|
|
Latvia
|
Bonds
|
__
|
__
|
Zambia
|
All
|
__
|
__
|
|
|
Lebanon
|
All
|
__
|
__
|
|||||
* Additional customer documentation and indemnification will be required prior to establishing accounts in these markets.
** Tiered by market value:<$__billion: __bp, >$__ billion and <$__ billion: __bps; >$__billion: __ bps.
10/2014
4
|
Amended Exhibit C (continued) to the Custody Agreement FactorShares Trust -
PureFunds ISE Junior Silver (Small Cap Miners/Explorers) ETF
|
Annual Base Fee - $__per account (fund) will apply.
|
§
|
Euroclear – Eurobonds only. Eurobonds are held in Euroclear at a standard rate, but other types of securities (including but not limited to equities, domestic market debt and mutual funds) will be subject to a surcharge. In addition, certain transactions that are delivered within Euroclear or from a Euroclear account to a third party depository or settlement system, will be subject to a surcharge.
|
|
§
|
For all other markets specified above, surcharges may apply if a security is held outside of the local market.
|
Cash Transactions:
|
§
|
3rd Party Foreign Exchange – a Foreign Exchange transaction undertaken through a 3rd party will be charged $__.
|
Tax Reclamation Services: Tax reclaims that have been outstanding for more than 6 (six) months with the client will be charged $__ per claim.
Out of Pocket Expenses
|
§
|
Charges incurred by U.S. Bank, N.A. for local taxes, stamp duties or other local duties and assessments, stock exchange fees, postage and insurance for shipping, facsimile reporting, extraordinary telecommunications fees, proxy services and other shareholder communications or other expenses which are unique to a country in which the client or its clients is investing will be passed along as incurred.
|
|
§
|
A surcharge may be added to certain out-of-pocket expenses listed herein to cover handling, servicing and other administrative costs associated with the activities giving rise to such expenses. Also, certain expenses are charged at a predetermined flat rate.
|
|
§
|
SWIFT reporting and message fees.
|
10/2014
5
|
Amended Exhibit C to the Custody Agreement – FactorShares Trust
Base Fee (1) for Custody Services at October, 2014 - ISE Cyber Security ETF
|
The following reflects the greater of the basis point fee or minimum per fund-
|
Custody
|
Basis Points on AUM per Fund
|
Annual Minimum per Fund
|
||
|
$0-500m
|
+$500m
|
+$1b
|
$__
|
|
|
__
|
__
|
__
|
||
Note: MLP Funds pricing may vary from the above annual fees and are TBD per investment strategy
The Following Fees are in Addition to the Base Fee-
NOTE: Additional Global Sub-Custodial services and safe keeping fees apply as required (see following page)
Portfolio Transaction Fees- Domestic custody transaction fees associate with Sponsor Trades(2)
|
§
|
$__– Book entry DTC transaction/Federal Reserve transaction/principal pay down
|
|
§
|
$__- Short Sales
|
|
§
|
$__– US Bank Repo agreement/reverse repurchase agreement/time deposit/CD or other non-depository transaction
|
|
§
|
$__– Option/ SWAPS/future contract written, exercised or expired
|
|
§
|
$__– Mutual fund trade/Fed wire/margin variation Fed wire
|
|
§
|
$__– Physical transaction
|
|
§
|
$__– Check disbursement (waived if U.S. Bancorp is Administrator)
|
|
§
|
$__– Segregated account per year
|
|
§
|
A transaction is a purchase/sale of a security, free receipt/free delivery, maturity, tender or exchange.
|
|
§
|
No charge for initial conversion free receipts
|
|
§
|
Overdrafts – charged to the account at prime interest rate plus 2.
|
Out-Of-Pocket Expenses
|
§
|
Intraday indicative value (IIV) agent fees
|
|
§
|
Corporate action services
|
|
§
|
SWIFT reporting and message fees
|
|
§
|
Customized reporting
|
|
§
|
Third-party data provider costs (including GICS, MSCI, Lipper, etc),
|
|
§
|
Supplemental programming and development
|
|
§
|
Cost associated with setting up data feeds
|
|
§
|
Expenses incurred in the safekeeping, delivery and receipt of securities, shipping, transfer fees, deposit withdrawals at custodian (DWAC) fees, and extraordinary expenses based upon complexity.
|
|
(1)
|
Subject to annual CPI increase, Milwaukee MSA.
|
|
(2)
|
“Sponsor trades” are defined as any trades put through the Portfolio, on behalf of the Fund by any portfolio manager/sub advisor and their affiliates authorized by the BOT to act on behalf of the Fund, outside of the create/redeem process. Cash-in-Lieu proceeds received as part of the create/redeem process, and their related transactions are not considered to be “Sponsor trades.”
|
Fees are calculated pro rata and billed monthly.
10/2014
6
|
Amended Exhibit C (continued) – Custody Agreement - FactorShares Global
Sub-Custodial Services Fee Schedule at October, 2014 – ISE Cyber Security ETF
|
Annual Base Fee (1) - a monthly charge per account (fund) will apply based on the number of foreign securities held.
|
§
|
1-25 foreign securities: $__
|
|
§
|
26-50 foreign securities: $__
|
|
§
|
Over 50 foreign securities: $__
|
|
§
|
Euroclear – Eurobonds only. Eurobonds are held in Euroclear at a standard rate, but other types of securities (including but not limited to equities, domestic market debt and mutual funds) will be subject to a surcharge. In addition, certain transactions that are delivered within Euroclear or from a Euroclear account to a third party depository or settlement system, will be subject to a surcharge.
|
|
§
|
For all other markets specified above, surcharges may apply if a security is held outside of the local market.
|
Plus:
Global Custody Transaction Fees- global custody transaction fees associate with Sponsor Trades (2)
(see schedule following page)
|
§
|
A transaction is defined as any purchase, sale, free receipt, free delivery, maturity, tender or exchange of a security
|
Global Safekeeping Fees-
(see schedule following page)
Cash (Fx) Transactions:
|
§
|
3rd Party Foreign Exchange – a Foreign Exchange transaction undertaken through a 3rd party will be charged $__.
|
Tax Reclamation Services:
|
§
|
Tax reclaims that have been outstanding for more than 6 (six) months with the client will be charged $__ per claim.
|
Out of Pocket Expenses- including but not limited to:
|
§
|
Charges incurred by U.S. Bank, N.A. for local taxes, stamp duties or other local duties and assessments, stock exchange fees, postage and insurance for shipping, facsimile reporting, extraordinary telecommunications fees, proxy services and other shareholder communications or other expenses which are unique to a country in which the client or its clients is investing will be passed along as incurred.
|
|
§
|
A surcharge may be added to certain out-of-pocket expenses listed herein to cover handling, servicing and other administrative costs associated with the activities giving rise to such expenses. Also, certain expenses are charged at a predetermined flat rate.
|
|
§
|
SWIFT reporting and message fees.
|
|
(1)
|
Subject to annual CPI increase, Milwaukee MSA.
|
|
(2)
|
“Sponsor trades” are defined as any trades put through the Portfolio, on behalf of the Fund by any portfolio manager/sub advisor and their affiliates authorized by the BOT to act on behalf of the Fund, outside of the create/redeem process. Cash-in-Lieu proceeds received as part of the create/redeem process, and their related transactions are not considered to be “Sponsor trades.”
|
Fees are calculated pro rata and billed monthly.
10/2014
7
|
Amended Exhibit C to the Custody Agreement – FactorShares Global Sub-Custodial Fees
at October, 2014 – ISE Cyber Security ETF
|
|
Country
|
Instrument
|
Safekeeping
(BPS)
|
Transaction
Fee
|
Country
|
Instrument
|
Safekeeping
(BPS)
|
Transaction
Fee
|
|
Argentina
|
All
|
__
|
$__
|
Estonia
|
All
|
__
|
$__
|
|
Australia
|
All
|
__
|
$__
|
Euromarkets**
|
All
|
__
|
$__
|
|
Austria
|
All
|
__
|
$__
|
Finland
|
All
|
__
|
$__
|
|
Bahrain
|
All
|
__
|
$__
|
France
|
All
|
__
|
$__
|
|
Bangladesh
|
All
|
__
|
$__
|
Germany
|
All
|
__
|
$__
|
|
Belgium
|
All
|
__
|
$__
|
Ghana
|
All
|
__
|
$__
|
|
Bermuda
|
All
|
__
|
$__
|
Greece
|
All
|
__
|
$__
|
|
Botswana
|
All
|
__
|
$__
|
Hong Kong
|
All
|
__
|
$__
|
|
Brazil
|
All
|
__
|
$__
|
Hungary
|
All
|
__
|
$__
|
|
Bulgaria
|
All
|
__
|
$__
|
Iceland
|
All
|
__
|
$__
|
|
Canada
|
All
|
__
|
$__
|
India
|
All
|
__
|
$__
|
|
Cayman Islands*
|
All
|
__
|
$__
|
Indonesia
|
All
|
__
|
$__
|
|
Channel Islands*
|
All
|
__
|
$__
|
Ireland
|
All
|
__
|
$__
|
|
Chile
|
All
|
__
|
$__
|
Israel
|
All
|
__
|
$__
|
|
China“A” Shares
|
All
|
__
|
$__
|
Italy
|
All
|
__
|
$__
|
|
China “B” Shares
|
All
|
__
|
$__
|
Jamaica*
|
All
|
__
|
$__
|
|
Columbia
|
All
|
__
|
$__
|
Japan
|
All
|
__
|
$__
|
|
Costa Rica
|
All
|
__
|
$__
|
Jordan
|
All
|
__
|
$__
|
|
Croatia
|
All
|
__
|
$__
|
Kazakhstan
|
All
|
__
|
$__
|
|
Cyprus*
|
All
|
__
|
$__
|
Kenya
|
All
|
__
|
$__
|
|
Czech Republic
|
All
|
__
|
$__
|
Latvia
|
Equities
|
__
|
$__
|
|
Denmark
|
All
|
__
|
$__
|
Latvia
|
Bonds
|
__
|
$__
|
|
Ecuador
|
All
|
__
|
$__
|
Lebanon
|
All
|
__
|
$__
|
|
Egypt
|
All
|
__
|
$__
|
Lithuania
|
All
|
__
|
$__
|
|
Luxembourg
|
All
|
__
|
$__
|
Slovak Republic
|
All
|
__
|
$__
|
|
Malaysia
|
All
|
__
|
$__
|
Slovenia
|
All
|
__
|
$__
|
|
Malta
|
All
|
__
|
$__
|
South Africa
|
All
|
__
|
$__
|
|
Mauritius
|
All
|
__
|
$__
|
South Korea
|
All
|
__
|
$__
|
|
Mexico
|
All
|
__
|
$__
|
Spain
|
All
|
__
|
$__
|
|
Morocco
|
All
|
__
|
$__
|
Sri Lanka
|
All
|
__
|
$__
|
|
Namibia
|
All
|
__
|
$__
|
Swaziland
|
All
|
__
|
$__
|
|
Netherlands
|
All
|
__
|
$__
|
Sweden
|
All
|
__
|
$__
|
|
New Zealand
|
All
|
__
|
$__
|
Switzerland
|
All
|
__
|
$__
|
|
Nigeria
|
All
|
__
|
$__
|
Taiwan
|
All
|
__
|
$__
|
|
Norway
|
All
|
__
|
$__
|
Thailand
|
All
|
__
|
$__
|
|
Oman
|
All
|
__
|
$__
|
Trinidad & Tobago*
|
All
|
__
|
$__
|
|
Pakistan
|
All
|
__
|
$__
|
Tunisia
|
All
|
__
|
$__
|
|
Palestinian Autonomous Area*
|
All
|
__
|
$__
|
Turkey
|
All
|
__
|
$__
|
|
Peru
|
All
|
__
|
$__
|
UAE
|
All
|
__
|
$__
|
|
Philippines
|
All
|
__
|
$__
|
United Kingdom
|
All
|
__
|
$__
|
|
Poland
|
All
|
__
|
$__
|
Ukraine
|
All
|
__
|
$__
|
|
Portugal
|
All
|
__
|
$__
|
Uruguay
|
All
|
__
|
$__
|
|
Qatar
|
All
|
__
|
$__
|
Venezuela
|
All
|
__
|
$__
|
|
Romania
|
All
|
__
|
$__
|
Vietnam*
|
All
|
__
|
$__
|
|
Russia
|
Equities
|
__
|
$__
|
Zambia
|
All
|
__
|
$__
|
|
Russia
|
MINFINs
|
__
|
$__
|
||||
|
Serbia*
|
All
|
__
|
$__
|
||||
|
Singapore
|
All
|
__
|
| 10/2014 | 8 |
