Exhibit (h)(7)
AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT
ING VARIABLE PRODUCTS TRUST
THIS EXPENSE LIMITATION AGREEMENT, effective this 1st day of November,
2002, by and between ING Investments, LLC (the "Investment Manager") and ING
Variable Products Trust (the "Trust"), on behalf of each series of the Trust set
forth on Schedule A (each a "Fund," and collectively, the "Funds"), as such
schedule may be amended from time to time to add additional series.
WHEREAS, the Trust is a Massachusetts business trust, and is registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), as an
open-end management company of the series type; and each Fund is a series of the
Trust; and
WHEREAS, the Trust 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 Trust and the Investment Manager have entered into
Investment Management Agreements (each a "Management Agreement"), pursuant to
which the Investment Manager provides investment management services to the
Funds for compensation based on the value of the average daily net assets of the
Funds; and
WHEREAS, the Trust and the Investment Manager have determined that it
is appropriate and in the best interests of each Fund and its shareholders to
maintain the expenses of each Fund at a level below the level to which each Fund
may normally be subject;
NOW THEREFORE, the parties hereto agree as follows:
1. Expense Limitation.
1.1. Applicable Expense Limit. Except as otherwise specified on
Schedule A hereto, to the extent that the ordinary operating expenses incurred
by a class of a Fund in any fiscal year, including but not limited to investment
management fees payable to the Investment Manager, but excluding interest,
taxes, brokerage commissions, other investment-related costs, extraordinary
expenses such as litigation, other expenses not incurred in the ordinary course
of the Fund's business, and expenses of any counsel or other persons or services
retained by the Trust's Trustees who are not "interested persons," as that term
is defined in the 1940 Act, of the Investment Manager ("Fund Operating
Expenses"), exceed the Operating Expense Limit, as defined in Section 1.2 below,
such excess amount (the "Excess Amount") shall be the liability of the
Investment Manager.
1.2. Operating Expense Limit. The maximum Operating Expense Limit in
any fiscal year with respect to each class of each Fund shall be the amount
specified in Schedule A based on a percentage of the average daily net assets of
such class of the Fund.
1.3. Method of Computation. To determine the Investment Manager's
obligation with respect to the Excess Amount, each day the Fund Operating
Expenses for each class of a Fund shall be annualized. If the annualized Fund
Operating Expenses for any day of a class of a Fund exceed the Operating Expense
Limit for that class, the Investment Manager shall remit to the appropriate
class of the Fund an amount that, together with the waived or reduced investment
management fee, is sufficient to pay that day's Excess Amount. Any such amounts
remitted to 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 Trust may offset amounts owed to a Fund pursuant
to this Agreement against the advisory fee payable to the Investment Manager.
1.4. Year-End Adjustment. If necessary, on or before the last day of
the first month of each fiscal year, an adjustment payment shall be made by the
appropriate party in order that the amount of the investment management fees
waived or reduced and other payments remitted by the Investment Manager to each
class of a Fund with respect to the previous fiscal year shall equal the Excess
Amount.
2. Recoupment of Fee Waivers and Expense Reimbursements.
2.1. Recoupment. If on any day during which the Management Agreement
with respect to a Fund is in effect, the estimated annualized Fund Operating
Expenses of a class of such Fund for that day are less than the Operating
Expense Limit, the Investment Manager shall be entitled to recoup from such
class of the Fund the investment management fees waived or reduced and other
payments remitted by the Investment Manager to such class of the Fund pursuant
to Section 1 hereof (the "Recoupment Amount") during any of the previous
thirty-six (36) months, to the extent that such class' annualized Operating
Expenses plus the amount recouped equals, for such day, the Operating Expense
Limit provided in Schedule A, provided that such amount paid to the Investment
Manager will in no event exceed the total Recoupment Amount and will not include
any amounts previously recouped. Any such 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.
2.2. Year-End Adjustment. If necessary, on or before the last day of
the first month of each fiscal year, an adjustment payment shall be made by the
appropriate party in order that the actual Fund Operating Expenses of each class
of a Fund for the prior fiscal year (including any recoupment payments hereunder
with respect to such fiscal year) do not exceed the Operating Expense Limit.
3. Term and Termination of Agreement.
This Agreement shall have an initial term with respect to each Fund
ending on the date indicated on Schedule A hereto, as such schedule may be
amended from time to time. Thereafter,
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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 termination of this Agreement to a lead Independent Trustee
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 Trust, 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 contained shall be deemed to
require a Fund or the Trust to take any action contrary to the Trust's
Declaration of Trust or By-Laws, or any applicable statutory or regulatory
requirement to which it is subject or by which it is bound, or to relieve or
deprive the Trust's Board of Trustees of its responsibility for and control of
the conduct of the affairs of the Trust 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 with respect to a Fund 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 PRODUCTS TRUST
/s/ Xxxxxx X. Naka
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By: Xxxxxx X. Naka, Senior Vice President
ING INVESTMENTS, LLC
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Executive Vice President
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SCHEDULE A
TO THE
AMENDED AND RESTATED
EXPENSE LIMITATION AGREEMENT
BY AND BETWEEN
ING INVESTMENTS, LLC
AND
ING VARIABLE PRODUCTS TRUST
EFFECTIVE: NOVEMBER 1, 2002
EXPIRATION OF INITIAL TERM: DECEMBER 31, 2003
OPERATING EXPENSE LIMITS
This Agreement relates to the following Funds:
Maximum Operating Expense Limit
Name of Fund (as a percentage of average net assets)
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Class R Class S
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ING VP SmallCap Opportunities Portfolio 0.90% 1.10%
ING XX XxxXxx Opportunities Portfolio 0.90% 1.10%
ING VP Growth Opportunities Portfolio 0.90% 1.10%
ING VP Research Enhanced Index Portfolio 0.90% 1.10%
ING VP Growth + Value Portfolio 0.80% 1.00%
ING VP MagnaCap Portfolio 0.90% 1.10%
ING VP International Value Portfolio 1.00% 1.20%
ING VP High Yield Bond Portfolio 0.80% 1.00%
ING VP International SmallCap Growth Portfolio N/A 1.35%
ING VP International Portfolio N/A 1.25%
ING VP Emerging Countries Portfolio N/A 1.35%
ING VP Large Company Value Portfolio N/A 1.10%
ING VP LargeCap Growth Portfolio N/A 1.10%
ING VP Financial Services Portfolio N/A 1.10%
ING VP Convertible Portfolio N/A 1.10%
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HE
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