Exhibit (h)(6)
TDAX FUNDS, INC.
OPERATING EXPENSES LIMITATION AGREEMENT
THIS OPERATING EXPENSES LIMITATION AGREEMENT (the "Agreement") is
effective as of the 24th day of July, 2007, by and between TDAX Funds, Inc., a
Maryland corporation (the "Company"), on behalf of each of the funds listed on
Appendix A (each a "Fund," and collectively, the "Funds"), XShares Advisors LLC
(the "Advisor"), and Amerivest Investment Management, LLC (the "Sub-Advisor").
WITNESSETH:
WHEREAS, the Advisor renders advice and services to the Funds
pursuant to the terms and provisions of an Investment Advisory Agreement between
the Company and the Advisor dated as of the 24th day of July, 2007 (the
"Investment Advisory Agreement"); and
WHEREAS, the Company's Board of Directors and the Advisor have
retained the Sub-Advisor to render investment advisory and other services
pursuant to the terms and provisions of a Sub-Advisory Agreement between the
Advisor and the Sub-Advisor dated as of the 24th day of July, 2007 (the
"Sub-Advisory Agreement"); and
WHEREAS, Sub-Advisor desires to limit each Fund's Operating Expenses
(as that term is defined in paragraph 2 of this Agreement) pursuant to the terms
and provisions of this Agreement, and the Company (on behalf of each Fund)
desires to allow the Sub-Advisor to implement those limits;
NOW THEREFORE, in consideration of the covenants and the mutual
promises hereinafter set forth, the parties, intending to be legally bound
hereby, mutually agree as follows:
1. LIMIT ON OPERATING EXPENSES. The Sub-Advisor hereby agrees to
limit each Fund's current Operating Expenses to an annual rate, expressed as a
percentage of each Fund's respective average annual net assets to the amounts
listed in Appendix A (the "Annual Limits"). In the event that the current
Operating Expenses of a Fund, as accrued each month, exceed its Annual Limit,
the Sub-Advisor will pay to the Fund, on a monthly basis, the excess expense
within a reasonable time after being notified that an excess expense payment is
due.
2. DEFINITION. For purposes of this Agreement, the term "Operating
Expenses" with respect to each Fund, is defined to include all expenses
necessary or appropriate for the operation of each Fund, including the Advisor's
investment advisory or management fee detailed in the Investment Advisory
Agreement and other expenses described in the Investment Advisory Agreement, but
does not include any front-end or contingent deferred loads, acquired fund fees
and expenses, taxes, leverage interest,
Exhibit (h)(6)
brokerage commissions, expenses incurred in connection with any merger or
reorganization, or extraordinary expenses such as litigation.
3. REIMBURSEMENT OF FEES AND EXPENSES. The Sub-Advisor retains its
right to receive reimbursement of any excess expense payments paid by it
pursuant to this Agreement made in the prior three fiscal years, to the extent
that such reimbursement would not exceed the Fund's Annual Limit, if applicable,
for such fiscal year.
4. TERM. This Agreement shall become effective on the date specified
herein and shall remain in effect indefinitely, unless sooner terminated as
provided in Paragraph 5 of this Agreement.
5. TERMINATION. This Agreement may be terminated at any time, and
without payment of any penalty, by the Board of Directors of the Company (the
"Board"), on behalf of each Fund, upon sixty (60) days' written notice to the
Sub-Advisor. The Sub-Advisor agrees and intends that this commitment will renew
automatically on the first day of each October for a 12 month term unless the
Sub-Advisor provides the Board of Directors with notice of termination of this
commitment prior to the expiration of its then current term. This Agreement will
automatically terminate if the Investment Advisory Agreement or Sub-Advisory
Agreement are terminated, with such termination effective upon the effective
date of the Investment Advisory Agreement's or Sub-Advisory Agreement's
termination.
6. IMPACT OF BREACH. In the event Sub-Advisor fails to make excess
expense payments in accordance with Section 1 of this Agreement, the Advisor
shall pay such excess expense payments from its own resources and shall deduct
such excess expense payments from the Sub-Advisor's fee, as necessary.
7. ASSIGNMENT. This Agreement and all rights and obligations
hereunder may not be assigned without the written consent of the other party.
8. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute or rule, or shall be otherwise
rendered invalid, the remainder of this Agreement shall not be affected thereby.
9. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Maryland without giving effect to
the conflict of laws principles thereof; provided that nothing herein shall be
construed to preempt, or to be inconsistent with, any federal law, regulation or
rule, including the Investment Company Act of 1940, and the Investment Advisers
Act of 1940, and any rules and regulation promulgated thereunder.
[SIGNATURE PAGE TO FOLLOW]
Exhibit (h)(6)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and attested by their duly authorized officers, all on the day
and year first above written.
TDAX FUNDS, INC. XSHARES ADVISORS LLC
on behalf of
each of the Funds listed on Appendix A
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
------------------------------- ------------------------
Title: President Title: Chief Financial Officer
------------------------------ ------------------------
AMERIVEST INVESTMENT MANAGEMENT, LLC
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------
Title: President
Exhibit (h)(6)
APPENDIX A
Fund Operating Expense Limit
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TDAX Independence 2010 Exchange-Traded Fund .65%
TDAX Independence 2020 Exchange-Traded Fund .65%
TDAX Independence 2030 Exchange-Traded Fund .65%
TDAX Independence 2040 Exchange-Traded Fund .65%
TDAX Independence In-Target Exchange-Traded Fund .65%
