EXHIBIT (d)(5)
AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT
ING VARIABLE INSURANCE TRUST
This AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT (this "Agreement"),
effective March 1, 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") and ING Variable Insurance Trust
(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,"
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 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 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
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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 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 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
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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 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 the Funds.
4.3 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 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 VARIABLE INSURANCE TRUST 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 VARIABLE INSURANCE TRUST
OPERATING EXPENSE LIMITS
MAXIMUM OPERATING EXPENSE LIMIT
NAME OF FUND* (AS A PERCENTAGE OF AVERAGE NET ASSETS)
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ING VP Worldwide Growth Portfolio 1.23%
Initial Term Expires May 1, 2006
/s/H.E.
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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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