Exhibit (D)(11)
AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT
ING MUTUAL FUNDS
This AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT (this "Agreement"),
effective May 29, 2003, is hereby amended and restated the 1st day of February
2005, by and between ING Investments, LLC (the "Investment Manager") and ING
Mutual Funds (the "Registrant"). The Registrant is a series fund investment
company, and is entering into this Agreement on behalf of, and this Agreement
shall apply to, each series of the Registrant set forth on SCHEDULE A hereto
(each a "Fund," and collectively, the "Funds"), as such schedule may be amended
from time to time to add or delete series.
WHEREAS, the Registrant is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management company; and
WHEREAS, the Registrant and the Investment Manager desire that the
provisions of this Agreement do not adversely affect a Fund's status as a
"regulated investment company" under Subchapter M of the Internal Revenue Code
of 1986, as amended (the "Code"), do not interfere with a Fund's ability to
compute its taxable income under Code Section 852, do not adversely affect the
status of the distributions a Fund makes as deductible dividends under Code
Section 562, and do comply with the requirements of Revenue Procedure 99-40 (or
any successor pronouncement of the Internal Revenue Service); and
WHEREAS, the Registrant and the Investment Manager have entered into an
investment management agreement (the "Management Agreement"), pursuant to which
the Investment Manager provides investment advisory services to each Fund; and
WHEREAS, the Registrant and the Investment Manager have determined that it
is appropriate and in the best interests of a Fund and its shareholders to
maintain the expenses of a Fund at a level below the level to which each such
Fund might otherwise be subject.
NOW, THEREFORE, the parties hereto agree as follows:
1. Expense Limitation.
1.1. Applicable Expense Limit. To the extent that the ordinary operating
expenses, including but not limited to investment advisory fees
payable to the Investment Manager, but excluding interest, taxes,
other investment-related costs, leverage expenses (as defined below),
extraordinary expenses such as litigation, other expenses not incurred
in the ordinary course of such Fund's business, and expenses of any
counsel or other persons or services retained by such Fund's trustees
who are not "interested persons," as that term is defined in the 1940
Act, of the Investment Manager (the "Fund Operating Expenses"),
incurred by a class of a Fund listed on SCHEDULE A during any term of
this Agreement(the "Term") exceed the Operating Expense Limit, as
defined in Section 1.2 below, for such
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class for such Term, such excess amount (the "Excess Amount") shall be
the liability of the Investment Manager. For the purposes of this
Agreement, leverage expenses shall mean fees, costs and expenses
incurred by a Fund's use of leverage (including, without limitation,
expenses incurred by a Fund in creating, establishing and maintaining
leverage through borrowings or the issuance of preferred shares).
1.2. Operating Expense Limit. The Operating Expense Limit in any Term with
respect to each class of a Fund shall be the amount specified in
Schedule A.
1.3. Daily Computation. The Investment Manager shall determine on each
business day whether the aggregate Term to date Fund Operating
Expenses for any class of a Fund exceed the Operating Expense Limit,
as such Operating Expense Limit has been pro-rated to the date of such
determination (the "Pro-Rated Expense Cap"). If, on any business day,
the aggregate Term to date Fund Operating Expenses for any class of a
Fund do not equal the Pro-Rated Expense Cap for that class, the amount
of such difference shall be netted against the previous day's accrued
amount for Excess Amounts or Recoupment Amounts (as defined below),
and the difference shall be accrued for that day as an Excess Amount
or Recoupment Amount as applicable.
1.4. Payment. At the end of each month, the accruals made pursuant to
Section 1.3 above shall be netted, and the result shall be remitted by
the Investment Manager to a Fund if such netting results in an Excess
Amount, and it shall be remitted to the Investment Manager if such
netting results in a Recoupment Amount and the Investment Manager is
entitled to a Recoupment Amount pursuant to Section 2.1 below. Any
such amounts remitted to a Fund, or repaid by a Fund, shall be
allocated among the classes of a Fund in accordance with the terms of
a Fund's Multiple Class Plan Pursuant to Rule 18f-3 under the 1940
Act. The Registrant may offset amounts owed to a Fund pursuant to this
Agreement against a Fund's advisory fee payable to the Investment
Manager.
2. Right to Recoupment. If the Investment Manager has waived or reduced any
management fees, or made any payments pursuant to Section 1.4 above,
relating to any of the 36 months immediately preceding any month end
calculation pursuant to Section 1.4 above, the Investment Manager shall be
entitled to recoup from a Fund any such investment advisory fees waived or
reduced, and any such payments made (collectively, a "Recoupment Amount"),
if (i) on the date of any calculation under Section 1.3, the aggregate Term
to date Fund Operating Expenses for any class of a Fund are less than that
day's Pro-Rated Expense Cap for that class, and (ii) such Recoupment
Amounts have not already been recouped. Any amounts recouped from a class
of a Fund shall be recouped in accordance with the principles of a Fund's
Multiple Class Plan Pursuant to Rule 18f-3 under the 1940 Act. Amounts
recouped shall be allocated to the oldest Recoupment Amounts during such 36
month period until fully recouped, and thereafter to the next oldest
Recoupment Amounts, and so forth.
3. Term and Termination. This Agreement shall have an initial term with
respect to a Fund
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ending on the date indicated on SCHEDULE A, as such schedule may be amended
from time to time. Thereafter, this Agreement shall automatically renew for
one-year terms with respect to a Fund unless the Investment Manager
provides written notice of the termination of this Agreement to a lead
Independent Trustee of the Registrant within ninety (90) days of the end of
the then current term for that Fund. In addition, this Agreement shall
terminate with respect to a Fund upon termination of the Management
Agreement with respect to such Fund, or it may be terminated by the
Registrant, without payment of any penalty, upon written notice to the
Investment Manager at its principal place of business within ninety (90)
days of the end of the then current term for a Fund.
4. Miscellaneous.
4.1 Captions. The captions in this Agreement are included for convenience
of reference only and in no other way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
4.2 Interpretation. Nothing herein shall be deemed to require the
Registrant or a Fund to take any action contrary to the Registrant's
articles of incorporation, declaration of trust, or similar governing
document, an applicable prospectus or statement of additional
information, or any applicable statutory or regulatory requirement, or
to relieve or deprive the Registrant's board of trustees of its
responsibility for and control of the conduct of the affairs of the
Registrant or a Funds.
4.3 Definitions. Any question of interpretation of any term or provision
of this Agreement, including but not limited to the investment
advisory fee, the computations of net asset values, and the allocation
of expenses, having a counterpart in or otherwise derived from the
terms and provisions of the Management Agreement or the 1940 Act,
shall have the same meaning as and be resolved by reference to such
Management Agreement or the 1940 Act.
4.4 Amendments. This Agreement may be amended only by a written agreement
signed by each of the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their respective officers thereunto duly authorized, as of the day and year
first above written.
ING MUTUAL FUNDS ING INVESTMENTS, LLC
By: /s/ Xxxxxx X. Naka By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxx X. Naka Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President Title: Executive Vice President
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SCHEDULE A
TO THE
AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT
ING MUTUAL FUNDS
OPERATING EXPENSE LIMITS
OPERATING EXPENSE LIMIT
PERCENTAGE (AS A PERCENTAGE
NAME OF FUND* OF AVERAGE NET ASSETS)
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Class A Class B Class C
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ING Global Equity Dividend Fund
Initial Term Expires March 1, 2006 1.40% 2.15% 2.15%
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HE
* This Agreement shall automatically renew for one-year terms with respect to
a Fund unless otherwise terminated in accordance with the Agreement.
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