FORM OF EXPENSE LIMITATION AGREEMENT
ING INVESTORS TRUST
This EXPENSE LIMITATION AGREEMENT (this "Agreement"), effective this 25th
day of February 2004, is made by and between ING Investments, LLC (the
"Manager") and ING Investors Trust (the "Registrant"). If the Registrant is a
series fund investment company, then Registrant is entering into this Agreement
on behalf of, and this Agreement shall apply to, each series of 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. If the
Registrant is not a series fund investment company, then this Agreement shall
apply to the Registrant, and the use of the terms "Fund" or "Funds" herein shall
refer to the Registrant.
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 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 Manager have entered into an investment
management agreement (the "Management Agreement"), pursuant to which the Manager
provides investment advisory services to each Fund; and
WHEREAS, the Registrant and the 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
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 Manager (the "Fund Operating Expenses"), incurred by a Fund listed
on SCHEDULE A in any fiscal year exceed the Operating Expense Limit, as defined
in Section 1.2 below, for such Fund for such fiscal year, such excess amount
(the "Excess Amount") shall be the liability of the Manager. For the purposes of
this Agreement, leverage expenses shall mean fees, costs and expenses
1
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 fiscal year
with respect to each Fund shall be the amount specified in SCHEDULE A.
1.3 DAILY COMPUTATION. The Manager shall determine on each business day
whether the aggregate fiscal year to date Fund Operating Expenses for any 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 fiscal year to date Fund Operating Expenses
for any 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
Manager to the Fund if such netting results in an Excess Amount, and it shall be
remitted to the Manager if such netting results in a Recoupment Amount and the
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 to a
Fund in accordance with 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
Manager.
2. RIGHT TO RECOUPMENT. If the 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 Manager shall be entitled to recoup from a Fund any such
investment advisory fees waived or reduced and any such payments made
("Recoupment Amounts"), if (i) on the date of any calculation under Section 1.3,
the aggregate fiscal year to date Fund Operating Expenses for any Fund are less
than that day's Pro-Rated Expense Cap for that Fund, and (ii) such Recoupment
Amounts have not already been recouped. Any amounts recouped from a Fund shall
be recouped in accordance with 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 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 Manager at its principal place of business
within 90 days of the end of the then current term for a Fund.
2
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 INVESTORS TRUST ING INVESTMENTS, LLC
By: By:
-------------------------------------------- --------------------------------------------
Name: ▇▇▇▇▇▇ ▇. Naka Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President Title: Executive Vice President
3
FORM OF SCHEDULE A
TO THE
EXPENSE LIMITATION AGREEMENT
ING INVESTORS TRUST
OPERATING EXPENSE LIMITS
MAXIMUM OPERATING EXPENSE LIMIT
NAME OF FUND* (AS A PERCENTAGE OF AVERAGE NET ASSETS)
------------- ---------------------------------------
ING Lifestyle Aggressive Growth Portfolio 0.14%
Initial Term Expires December 31, 2005
ING Lifestyle Growth Portfolio 0.14%
Initial Term Expires December 31, 2005
ING Lifestyle Moderate Growth Portfolio 0.14%
Initial Term Expires December 31, 2005
ING Lifestyle Moderate Portfolio 0.14%
Initial Term Expires December 31, 2005
-----
HE
* This Agreement shall automatically renew for one-year terms with respect to
a Fund unless otherwise terminated in accordance with the Agreement.
4