Exhibit (D)(10)
AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT
ING MUTUAL FUNDS
This AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT (this "Agreement"),
effective the 23rd day of September 2002, as restated the 1st day of August,
2003, is hereby amended and restated the 1st day of February 2005, by and
between ING Investments, LLC (the "Investment Manager"), ING Mutual Funds (the
"Registrant") and ING Clarion Real Estate Securities L.P. (formerly Clarion CRA
Securities, L.P.) (the "Sub-Adviser"). 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," 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, the Investment Manager and the Sub-Adviser 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 Investment Manager and the Sub-Adviser have entered into an
investment management sub-advisory agreement (the "Sub-Advisory Agreement"),
pursuant to which the Sub-Adviser provides investment advisory services to one
or more of the Funds; and
WHEREAS, the Registrant, the Investment Manager and the Sub-Adviser have
determined that it is appropriate and in the best interests of the Funds and
their shareholders to maintain the expenses of each 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
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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 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 the 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 the Fund in accordance with the
terms of the 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 the Fund's advisory fee payable to the Investment Manager.
2. Right to Recoupment. If the Investment Manager has waived or reduced any
investment advisory 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 the Fund's Multiple Class Plan Pursuant to Rule 18f-3 under
the 1940 Act. Amounts recouped shall be allocated to
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the oldest Recoupment Amounts during such 36-month period until fully recouped,
and thereafter to the next oldest Recoupment Amounts, and so forth.
3. Contribution by Sub-Advisers.
3.1 Waiver and/or reduction of fees. The Sub-Adviser agrees to waive and/or
reduce its investment advisory fees under the Sub-Advisory Agreement, in the
same percentage, and for the same time period, for any Fund subject to the
Sub-Advisory Agreement for which the Investment Manager waives and/or reduces
its investment advisory fees under the Management Agreement.
3.2 Payment of Excess Amounts. The Sub-Adviser shall pay to the Investment
Manager a portion of any Excess Amounts paid by the Investment Manager hereunder
with regard to any Fund subject to the Sub-Advisory Agreement. The Sub-Adviser's
portion of such Excess Amounts shall be the same percentage of such Excess
Amounts as the percentage of the investment advisory fees for such Fund that the
Sub-Adviser receives from the Investment Manager. The Investment Manager may
offset amounts owed to the Investment Manager pursuant to this Section 3.2
against the sub-advisory fees paid to the Sub-Adviser. Otherwise, the Investment
Manager shall provide an invoice to the Sub-Adviser and the Sub-Adviser shall
pay such invoice promptly upon receipt.
3.3 Allocation of Recoupments. The Investment Manager shall promptly remit
to the Sub-Adviser a portion of any amounts recouped by the Investment Manager
pursuant to Section 2 of this Agreement that relate to the waiver and/or
reduction of fees or the payment of Excess Amounts by the Sub-Adviser. The
portion to be paid to the Sub-Adviser shall be the same percentage of the
Recoupment Amount as the percentage of the waiver and/or reduction of fees or
the payment of Excess Amounts by the Sub-Adviser bears to the total waiver
and/or reduction of fees or the payment of Excess Amounts to which such
recoupment relates.
3.4 Accounting. The Investment Manager will provide to the Sub-Adviser
reasonable access to the books and records of the applicable Fund and the
Investment Manager for the purpose of confirming the amounts waived, reduced,
paid or recouped by the Investment Manager under this Agreement.
3.5 Term and Termination of Sub-Advisers' Obligations and Rights. The
Sub-Adviser's obligations under Sections 3.1 and 3.2, and its rights under
Section 3.3, shall begin as of the date the Sub-Adviser becomes a signatory
hereto and shall end upon the earlier of the termination of this Agreement, the
Management Agreement or the Sub-Advisory Agreement.
4. Term and Termination. This Agreement shall have an initial term with respect
to each Fund 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 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
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Investment Manager at its principal place of business within 90 days of the end
of the then current term for a Fund.
5. Miscellaneous.
5.1 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.
5.2 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 the Funds.
5.3 Definitions. Any question of interpretation of any term or provision of
this Agreement, including but not limited to the investment management 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, the Sub-Advisory Agreement or the 1940 Act, shall have the
same meaning as and be resolved by reference to such Management Agreement,
Sub-Advisory Agreement or the 1940 Act.
5.4 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
--------------------------------- ------------------------------------
Name: Xxxxxx X. Naka Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President Title: Executive Vice President
ING CLARION REAL ESTATE SECURITIES L.P.
By: X. Xxxxxx Xxxxxxxx
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Name: X. Xxxxxx Xxxxxxxx
Title: Managing Director
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SCHEDULE A
TO THE
AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT
ING MUTUAL FUNDS
OPERATING EXPENSE LIMITS
MAXIMUM OPERATING EXPENSE LIMIT PERCENTAGE
(AS A PERCENTAGE OF AVERAGE NET ASSETS)
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NAME OF FUND* Class A Class B Class C Class I
------------ ------- ------- ------- -------
ING Global Real Estate Fund
Initial Term Expires March 1, 2006 1.75% 2.50% 2.50% 1.50%
____
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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