ADDENDUM TO THE DIREXION FUNDS FUND ADMINISTRATION SERVICING AGREEMENT
ADDENDUM
TO THE DIREXION FUNDS
THIS
ADDENDUM, dated as of the 1st
day
of May, 2007, to the Fund Administration Servicing Agreement dated as
of February 16, 2004, as amended, (the “Fund Administration Agreement”) is by
and between Direxion Funds, a Massachusetts business trust,
(the “Trust”) and U.S. Bancorp Fund Services, LLC, a Wisconsin
limited liability company (“USBFS”).
RECITALS
WHEREAS,
the Trust and USBFS have entered into a Fund Administration Agreement;
and
WHEREAS,
the parties
desire to modify said Fund Administration Agreement; and
WHEREAS,
Section 6 of the Fund Administration Agreement allows for its modification
by a
written instrument executed by both parties.
NOW,
THEREFORE, the
parties agree to add and/or amend the following provisions:
A. The
following shall be added to Section 2, the Services and Duties of
USBFS:
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A. (8)
Diligent Board Books, effective July 1, 2007.
B. Exhibit
B, the fee schedule, is hereby superseded and replaced with Exhibit B attached
hereto.
C.
The
following provisions shall be added following Section 14 of the Fund
Administration Agreement:
15. Additional
Services to be provided by USBFS
The
Trust
desires USBFS to provide, and USBFS agrees to provide, the services that
are
listed below (each, a “System”). Each System is described and may be
subject to additional terms and conditions specified in its respective exhibit
noted below, as such may be amended from time to time:
Eagle
Portal (Appendix I)
The
Trust
hereby acknowledges that exhibits are an integral part of this Agreement
and, to
the extent services included in Appendix I are selected by the Trust,
such services shall also be subject to the terms of this
Agreement. To the extent the terms and conditions of this Agreement
conflict with the terms and conditions included in Appendix I, as
applicable, the exhibits shall control. The provisions
of Appendix I, as applicable, shall continue in effect for as
long as this Agreement remains in effect, unless sooner terminated pursuant
to
Section 10 hereof.
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16. System
Maintenance
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The
Trust
understands that USBFS will perform periodic maintenance to the System(s),
which
may cause temporary service interruptions. To the extent possible,
USBFS shall notify the Trust of all planned outages and will perform any
necessary maintenance during non-business hours.
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17.
Additional Representations and Warranties
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The
parties hereby warrant that neither party shall knowingly insert into any
interface, other software, or other program provided by such party to the
other
hereunder, any “back door,” “time bomb,” “Trojan Horse,” “worm,” “drop dead
device,” “virus” or other computer software code or routines or hardware
components designed to disable, damage or impair the operation of any System,
program or operation hereunder. For failure to comply with this
warranty, the non-complying party shall immediately replace all copies of
the
affected work product, System or software. All costs incurred with
replacement including, but not limited to, cost of media, shipping, deliveries
and installation, shall be borne by such party.
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18.
Proprietary Rights
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A. The
Trust acknowledges and agrees that by virtue of accessing the System(s),
it
shall not obtain any rights in or to any of the software, templates, screen
and
file formats, interface protocols, formats and development tools and
instructions, hardware, processes, trade secrets, instruction manuals,
enrollment authorization, authentication and other business processes,
proprietary information or distribution and communication networks used to
allow
access to the System(s) owned by or licensed to USBFS. Any interface
and other software or programs provided to the Trust in order to provide
connectivity to the System(s) shall be used by the Trust only for the period
during which this Agreement is in effect and only in accordance with the
terms
of this Agreement, and shall not be used by the Trust to provide connectivity
to
or through any other system or person without USBFS’s prior written
approval. The Trust shall not copy, decompile or reverse engineer any
software or programs provided to the Trust hereunder. The Trust also
agrees not to take any action which would mask, delete or otherwise alter
any
on-screen disclaimers and copyright, trademark and service ▇▇▇▇ notifications,
or any “point and click” features relating to acknowledgment and acceptance of
such disclaimers and notifications.
B. The
Trust agrees that USBFS would not have an adequate remedy at law in the event
of
the Trust’s breach or threatened breach of its obligations under this Section 14
of this Agreement and that USBFS would suffer irreparable injury and damage
as a
result of any such breach. Accordingly, in the event the Trust
breaches or threatens to breach the obligations set forth in this Section
of
this Agreement, in addition to and not in lieu of any legal or other remedies
USBFS may pursue hereunder or under applicable law, the Trust hereby consents
to
the granting of equitable relief (including the issuance of a temporary
restraining order, preliminary injunction or permanent injunction) against
it by
a court of competent jurisdiction, without the necessity of proving actual
damages or posting any bond or other security therefor, prohibiting any such
breach or threatened breach. In any proceeding upon a motion for such
equitable relief, the Trust’s ability to answer in damages shall not be
interposed as a defense to the granting of such equitable relief. The
provisions of this Section relating to equitable relief shall survive
termination of this Agreement.
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C. Each
party acknowledges and agrees that it obtains no rights in or to any of the
software, hardware, processes, trade secrets, and proprietary information
or
distribution and communication networks of the other hereunder. Except in
the
normal course of business and in conformity with Federal copyright law or
with
the other party’s consent, neither party nor any of its affiliates shall
disclose, use, copy, decompile or reverse engineer any software or other
programs provided to such party by the other in connection
herewith.
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19.
Additions to Standard of Care; Indemnification; Limitation of
Liability
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A.
USBFS
shall not be liable for any loss or damages resulting from fraudulent,
unauthorized, or otherwise improper use of any identification or security
codes
or systems access mechanisms assigned by USBFS in connection with access
to the
System(s), except a loss or damages arising out of or relating to the USBFS’s
refusal or failure to comply with the terms of this Agreement or from its
bad
faith, gross negligence, or willful misconduct in the performance of its
duties
under this Agreement.
B. The
Trust understands that certain services made available through the System(s)
are
provided through the use of the equipment, software, and other related services
pursuant to certain contracts between various vendors and USBFS. The
Trust agrees to release and hold harmless USBFS against any and all claims,
demands, losses, expenses and liabilities of any and every nature (including
reasonable attorneys’ fees) (collectively, “Liabilities”) which may arise from
or by reason of the Trust’s use of such equipment, software or services provided
by such vendors to USBFS, except Liabilities arising out of or relating to
the
USBFS’s refusal or failure to comply with the terms of this Agreement or from
its bad faith, gross negligence, or willful misconduct in the performance
of its
duties under this Agreement.
C. USBFS
CANNOT AND DOES NOT GUARANTEE AVAILABILITY OF THE
SYSTEM(S). Accordingly, USBFS’s sole liability to the Trust or any
third party (including end users) for any claims, notwithstanding the form
of
such claims (e.g., contract, negligence, or otherwise), arising out of the
delay
of or interruption in the System(s) to be provided by USBFS hereunder shall
be
to use its best reasonable efforts to commence or resume the System(s) as
promptly as is reasonably possible.
D. Because
the ability of USBFS to deliver the System(s) is dependent upon the Internet
and
equipment, software, systems, data and services provided by various
telecommunications carriers, equipment manufacturers, firewall providers
and
encryption system developers and other vendors and third parties, USBFS shall
not be liable for delays or failures to perform its obligations hereunder
to the
extent that such delays or failures are attributable to circumstances beyond
its
reasonable control which interfere with the delivery of the System(s) by
means
of the Internet or any of the equipment, software and services which support
the
Internet provided by such third parties. USBFS shall also not be
liable for the actions or omissions of any third party wrongdoers (i.e.,
hackers
not employed by USBFS or its affiliates) or of any third parties involved
in the
System(s) and shall not be liable for the selection of any such third party,
unless USBFS selected the third party in bad faith or in a grossly negligent
manner.
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20.
Warranties
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The
Trust
acknowledges that it is responsible for determining the suitability and accuracy
of the information provided through its access to the
System(s). USBFS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESSED OR
IMPLIED, WITH RESPECT TO THE SUITABILITY AND ACCURACY OF THE
SYSTEM(S). However, USBFS will assist the Trust in verifying the
accuracy of any of the information available to the Trust through the
System(s).
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21.
Addition to File Security and Retention;
Confidentiality
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USBFS
and
its agents will provide reasonable security to ensure that unauthorized third
parties do not have access to the Trust’s databases, files, and other
information provided by the Trust to USBFS for use with the System(s), the
names
of end users or end user transaction or account data (collectively, “Trust
Files”). USBFS’s security provisions with respect to the System(s),
the Trust’s web site(s) and the Trust Files will be no less protected than
USBFS’s security provisions with respect to its own proprietary
information. USBFS agrees that any and all Trust Files maintained by
USBFS for the Trust hereunder shall be available for inspection by the Trust’s
regulatory authorities during regular business hours, upon reasonable prior
written notice to USBFS, and will be maintained and retained in accordance
with
applicable requirements of the 1940 Act. USBFS will not use, or
permit the use of, names of end users for the purpose of soliciting any
business, product, or service whatsoever except where the communication is
necessary and appropriate for USBFS’s delivery of the System(s).
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Appendix
I
Eagle
Portal (a/k/a “Advisor Information Source”, or “AIS”) for Direxion
Funds
USBFS
utilizes the Eagle Portal, a web-based report delivery system that generates
holdings, position, and tax reports. Data from IDC, CPORT, S&P, and GICs
populate the data warehouse from which reports are generated. Reports can
be
customer run or scheduled for automatic delivery to a portal
inbox. This is an internal software application which is maintained
and monitored by internal staff.
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Duties
and Responsibilities of USBFS
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USBFS
shall:
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A.
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Provide
access to the System 24 hours a day, 7 days a week, subject to
scheduled
maintenance and events outside of USBFS’s reasonable
control. Unless an emergency is encountered, no routine
maintenance will occur during the hours of 8:00 a.m. to 3:00 p.m.
Central
Time.
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B.
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Supply
necessary software to access the System, if
necessary.
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C.
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Provide
training and connectivity support as outlined in the standard pricing
model included herein.
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D.
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Maintain
and support the System, which shall include providing error corrections,
minor enhancements and interim upgrades to the System and providing
help
desk support to provide assistance to the Trust’s employees and agents
with their use of the System. Maintenance and support, as used
herein, shall not include (i) access to or use of any substantial
added
functionality, new interfaces, new architecture, new platforms,
new
versions or major development efforts, unless made generally available
by
USBFS to System customers, as determined solely by USBFS or (ii)
maintenance of customized features.
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E.
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Provide
monthly invoices of fees as stated in the standard pricing model
or the
fee schedule.
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F.
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Establish
systems to guide assist and permit End Users (as defined below)
who access
the System from the Trust’s web site(s) to electronically perform
inquiries and create and transmit transaction requests to
USBFS.
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G.
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Address
and mail, at the Trust’s expense, notification and promotional mailings
and other communications provided by the Trust to shareholders
regarding
the availability of the System.
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H.
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Issue
to each shareholder, financial adviser or other person or entity
who
desires to make inquiries concerning the Trust or perform transactions
in
accounts with the Trust using the System (the “End User”) a unique user ID
and password for authentication purposes, which may be changed
upon an End
User’s reasonable request in accordance with policies to be determined
by
USBFS and the Trust. USBFS will require the End User to use
his/her user ID and password in order to access the
System.
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I.
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Utilize
encryption and secure transport protocols intended to prevent fraud
and
ensure confidentiality of End User accounts and
transactions. In no event shall USBFS use encryption weaker
than a 40-bit RC4 Stream. USBFS will take reasonable actions,
including periodic scans of Internet interfaces and the System,
to protect
the Internet web site that provides the System and related network,
against viruses, worms and other data corruption or disabling devices,
and
unauthorized, fraudulent or illegal use, by using appropriate virus
detection and destructive software and by adopting such other security
procedures as may be necessary.
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J.
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Establish
and provide to the Trust written procedures, which may be amended
from
time to time by USBFS with the written consent of the Trust, regarding
End
User access to the System. Such written procedures shall
establish security standards for the System, including, without
limitation:
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(1)
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Encryption/secure
transport protocols.
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(2)
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End
User lockout standards (e.g., lockout after three unsuccessful
attempts to
gain access to the
System).
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(3)
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User
ID and password issuance and re-issuance
standards.
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(4)
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Access
standards, including limits on access to End Users whose accounts
are
coded for privilege.
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(5)
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Automatic
logoff standards (e.g., if the session is inactive for longer than
15
minutes).
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K.
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Ensure
that the HTTPS Server is accessible via the
Internet.
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Duties
and Responsibilities of the Trust
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The
Trust shall:
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A.
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Provide
and maintain, at its own expense, one or more personal computers
for
accessing the System that will accommodate and be compatible with
the
software provided by USBFS.
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B.
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Follow
any and all procedures necessary to access the System as may be
set forth
in any user guide or instruction manual provided and which may
be amended
or supplemented from time to time.
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C.
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Provide
for the security of all codes and system access mechanisms relating
to the
System and implement such security procedures and/or devices to
ensure the
integrity of the System when accessed by the Trust from its principal
place of business.
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D.
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The
Trust hereby acknowledges that all programs, software, manuals
and other
written information relating to the System shall remain the exclusive
property of USBFS at all times.
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E.
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The
Trust acknowledges that it is responsible for determining the suitability
and accuracy of the information obtained through its access to
the
System. USBFS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESSED
OR IMPLIED, WITH RESPECT TO THE SUITABILITY AND ACCURACY OF FUND
DATA,
SYSTEMS, INDUSTRY INFORMATION AND PROCESSES ACCESSED THROUGH THE
SYSTEM.
However, USBFS will assist the Trust in verifying the accuracy
of any of
the information made available to the Trust through the System
and covered
by this Agreement.
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F.
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In
the event of termination of this Agreement, the Trust shall immediately
end its access to the System and return all codes, system access
mechanisms, programs, manuals and other written information to
USBFS, and
shall destroy or erase all such information on any diskettes or
other
storage medium, unless such access continues to be permitted pursuant
to a
separate agreement between the Trust and USBFS that is in
effect.
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G.
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Assume
exclusive responsibility for the consequences of any instructions
it may
give to USBFS, for the Trust’s or End Users’ failure to properly access
the System in the manner prescribed by USBFS, and for the Trust’s failure
to supply accurate information to
USBFS.
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H.
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Promptly
notify USBFS of any problems or errors with the System of which
the Trust
becomes aware or any changes in policies or procedures of the Trust
requiring changes to the System.
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I.
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Comply,
and instruct End Users to comply, with all the End User enrollment
and
authorization procedures.
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J.
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Obtain
and pay for connectivity to the HTTPS
Server.
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K.
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Have
the proper equipment and software to enable End Users to access
the HTTPS
Server and download the files and obtain all related maintenance,
including support in the event of download
problems.
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Except
to
the extent supplemented hereby, the Fund Administration Agreement shall remain
in full force and effect.
IN
WITNESS WHEREOF, the parties hereto have caused this Addendum to be executed
by
a duly authorized officer on one or more counterparts as of the day and year
first written above.
| DIREXION FUNDS | U.S. BANCORP FUND SERVICES, LLC |
| By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| Title: Chief Financial Officer | Title: S. V. P. |
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