EXHIBIT (h)(8)(ii)
SECOND AMENDMENT TO FINANCIAL GUARANTY AGREEMENT
SECOND AMENDMENT, dated as of March 28, 2002 (the "Amendment"), to the
Financial Guaranty Agreement, dated as of July 3, 2001, as amended by the First
Amendment dated as of January 14, 2002 (the "Agreement"), among MBIA INSURANCE
CORPORATION (the "Insurer"), ING INVESTMENTS, LLC ("ING") (successor to ING
Pilgrim Investments, LLC), AELTUS INVESTMENT MANAGEMENT, INC. ("Aeltus") and ING
EQUITY TRUST (the "Fund") (formerly known as Pilgrim Equity Trust).
WITNESSETH:
WHEREAS, ING, Aeltus and the Fund have requested, and, upon this
Amendment becoming effective, the Insurer has agreed, that certain provisions of
the Agreement be amended in the manner provided for in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. All capitalized terms defined in the Agreement
and used herein shall have the meanings given to them therein.
2. General Amendments. The Agreement and all Exhibits thereto are
hereby amended by deleting all references to the word "Pilgrim" and inserting in
lieu thereof the word "ING" and deleting all references to "PPF" and inserting
in lieu thereof "IPPF."
3. Amendment to Second WHEREAS Clause. The second WHEREAS Clause
of the Agreement is hereby amended by deleting the reference to $750,000,000 and
inserting $2,000,000,000 in lieu thereof.
4. Amendments to Section 1.1. Section 1.1 of the Agreement is
hereby amended by (a) deleting therefrom the definitions of the following
defined terms in their respective entireties and substituting in lieu thereof
the following new definitions:
`"Fixed Income Portfolio' shall mean, with respect to any
IPPF, all investments of such IPPF which are Fixed Income Securities.
`Fixed Income Security' shall mean any investment of an IPPF
which is an Eligible IPPF Investment defined in Section 3.1(b)(ii),
(iii) or (iv), other than a U.S. Treasury Zero or a U.S. Agency Zero
with a remaining maturity of 180 days or less.
'Guarantee per Share' shall mean, with respect to any Class of
Shares of any IPPF on any Valuation Date, (i) on the Inception Date
with respect to such IPPF, the NAV for such Class of Shares at the
close of business on the immediately preceding Business Day, and (ii)
thereafter on any Valuation Date, the Guarantee per Share for such
Class of Shares on the immediately preceding Valuation Date divided by
the sum of one plus the quotient of (i) the amount of any Distribution
Per Share with respect to such Class of Shares and such IPPF, effective
since the immediately preceding Valuation Date, divided by (ii) the NAV
for such Class of Shares at the close of business on the day on which
such Distribution Per Share was effective.
`Inception Date' shall mean, (i) with respect to any IPPF
without a Quiet Period, the Business Day immediately following the last
day of the Offering Period with respect to such IPPF and (ii) with
respect to any IPPF with a Quiet Period, the Business Day immediately
following the last day of the Quiet Period with respect to such PPF.
`U.S. Agency Zeroes' shall mean non-callable non-interest
bearing obligations of (a) any of the following agencies of the Federal
Government of the United States of America: Federal National Mortgage
Association, Federal Home Loan Mortgage Corporation, Federal Home Loan
Bank, Resolution Funding Corporation, Financing Corporation and
Tennessee Valley Authority or (b) a Government Trust Certificate, which
represents an interest in a government trust, the property of which
consists of (i) a promissory note of a foreign government no less than
90% of which is backed by a full faith and credit guaranty issued by
the Federal Government of the United States of America (issued pursuant
to Title III of the Foreign Operations, Export, Financing and Related
Borrowers Programs Appropriations Act, 1988) and (ii) a security
interest in obligations of the United States Treasury backed by the
full faith and credit of the United States of America sufficient to
support the remaining balance (no more than 10%) of all payments of
principal and interest on such promissory note; provided, however,
that, in the case of clause (a) or (b), any such obligations that are
rated less than AAA by S&P or less than Aaa by Xxxxx'x shall not be
U.S. Agency Zeroes."
(b) adding the following new defined term thereto in alphabetical order:
`"Quiet Period' shall mean, with respect to an IPPF, the
period, if any, described in the Final Prospectus with respect to each
Class of Shares of such IPPF that immediately follows the Offering
Period with respect to such IPPF during which the assets of such IPPF
continue to be invested exclusively in short-term investments." ; and
(c) inserting the phrase ", without duplication," before the colon in clause (a)
of the definition of "Total Net Assets."
5. Amendment to Section 2.6. Section 2.6(a)(i) of the Agreement
is hereby amended by inserting the phrase "in the event the Fund does not pay
them as contemplated by Section 7.5" after the word "counsel" within the
parenthetical thereof.
6. Amendment to Section 3.1. Section 3.1(b)(i) of the Agreement
is hereby amended by deleting clause (1) thereof in its entirety and inserting
in lieu thereof the following new clause (1):
"(1) direct obligations of, and obligations fully guaranteed as to full
and timely payment by the full faith and credit of, the United States of
America, U.S. Agency Notes and U.S. Agency Zeroes;".
7. Amendment to Section 3.2. Section 3.2 of the Agreement is
hereby amended by (a) adding the following proviso to Section 3.2(c) thereof:
2
"; provided, however that during the 180 day period prior to the
Maturity Date of such IPPF the aggregate Market Value of all Cash
Equivalents held by such IPPF on any Valuation Date may exceed 4% of
the Total Net Assets with respect to such IPPF on such Valuation Date
provided that no more than 4% of the Total Net Assets with respect to
such IPPF consist of Cash Equivalents described in clauses (2), (3) or
(4) of Section 3.1(b)(i)."and
(b) inserting the parenthetical phrase "(other than Cash Equivalents)" after the
words "all U.S. Treasury Zeroes or U.S. Agency Zeroes" in Section 3.2(1)
thereof.
8. Amendment to Section 3.5. Section 3.5(a) of the Agreement is
hereby amended by inserting the phrase ", without duplication," before the colon
in clause (1) thereof.
9. Amendment to Section 4.2. Section 4.2(b) of the Agreement is
hereby amended by inserting the parenthetical phrase "(other than Cash
Equivalents)" at the end of clause (v) thereof.
10. Amendment to Section 7.5. Section 7.5 of the Agreement is
hereby amended by (a) deleting the reference to "Pilgrim" in the first sentence
and inserting "The Fund" in lieu thereof, and (b) deleting the reference to
"Pilgrim" in the last sentence and inserting "the Fund" in lieu thereof.
11. Amendment to Annex A. Annex A to the Agreement is hereby
amended by inserting the word "approximate" before "index weight" in the last
sentence of the paragraph under the heading "Screening and Weighting" thereof.
12. Amendment to Exhibit A. Exhibit A to the Agreement is hereby
amended by deleting said Exhibit in its entirety and substituting in lieu
thereof new Exhibit A in the form of Annex 1 to this Amendment.
13. Amendments to Exhibits H-1 and H-2. Exhibits H-l and H-2 to
the Agreement are hereby amended by deleting said Exhibits in their respective
entireties and substituting in lieu thereof new Exhibits H-1 and H-2 in the
forms of Annexes 2 and 3, respectively, to this Amendment.
14. Conditions of Effectiveness. This Amendment shall become
effective on the date on which the Insurer, ING, Aeltus and the Fund shall have
executed and delivered this Amendment.
15. No other Amendments; Confirmation. Except as expressly
amended, modified and supplemented by this Amendment or by any prior amendment,
the provisions of the Agreement are and shall remain in full force and effect.
3
16. Governing Law. This Amendment and the rights and obligation of
the parties hereto shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
17. Counterparts. This Amendment may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
4
IN WITNESS WHEREOF, each of the undersigned have caused this Amendment
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
MBIA INSURANCE CORPORATION
/s/ Xxxx X. Xxxxxx
---------------------------------
By: Xxxx X. Xxxxxx
Title: Assistant Secretary
ING INVESTMENTS, LLC
/s/ XXXXXXX X. XXXXXX
----------------------------------
By: XXXXXXX X. XXXXXX
Title: EXECUTIVE VICE PRESIDENT
AELTUS INVESTMENT MANAGEMENT, INC.
/s/ XXXX XXX XXXXXXXXX
----------------------------------
By: XXXX XXX XXXXXXXXX
Title: SENIOR VICE PRESIDENT
ING EQUITY TRUST
/s/ XXXXXXX X. XXXXXX
----------------------------------
By: XXXXXXX X. XXXXXX
Title: EXECUTIVE VICE PRESIDENT
5
ANNEX 1
FORM OF POLICY
INSURANCE POLICY
MBIA Insurance Corporation
Xxxxxx, Xxx Xxxx 00000
Policy No. ____-____-____
MBIA Insurance Corporation (the "Insurer"), in consideration of the
payment of the premium and subject to the terms of this Policy, hereby
unconditionally and irrevocably guarantees to the ING Equity Trust (the "Fund"),
on behalf of the shareholders (the "IPPF Shareholders") of the units of
beneficial interest in the Fund designated the ING Principal Protection Fund
[________] (the "IPPF'), the payment by the Fund of the Deficit (as defined
below) on____________________,__________(the "Maturity Date") in an amount up to
$________________________(the "Initial Aggregate Guarantee Amount"), for which a
Demand for Payment in the form attached hereto as Attachment 1 and made a part
of this Policy (the "Demand for Payment") has been presented to State Street
Bank and Trust Company, N.A. (the "Fiscal Agent") in accordance with the terms
of this Policy. As used herein, the term "Deficit" refers to the sum of the
product with respect to each Class of Shares (as defined below) of (a) the
number of shares of such Class of Shares on the Maturity Date times (b) amount,
if any, by which the Guarantee Per Share (as defined below) with respect to such
Class of Shares on the Maturity Date exceeds (ii) the NAV (as defined below) for
such Class of Shares on the Maturity Date. Payments under this Policy shall be
made only at the time set forth in this Policy, and no accelerated payments
shall be made.
1. One (1) Business Day (as defined below) after receipt by the
Fiscal Agent of a Demand for Payment, duly executed by the Fund, the Insurer
will make a deposit of funds immediately available in an account with the Fiscal
Agent, in New York, New York, or its successor, sufficient for the payment to
the Fund of the Deficit.
2. Demand for Payment hereunder may be made by telecopy, telex or
telegram of the executed Demand for Payment in care of the Fiscal Agent. If a
Demand for Payment made hereunder does not, in any instance, conform to the
terms and conditions of this Policy, the Insurer shall give notice to the Fund,
as promptly as reasonably practicable, that such Demand for Payment was not
effected in accordance with the terms and conditions of this Policy and briefly
state the reason(s) therefor. Upon being notified that such Demand for Payment
was not effected in accordance with this Policy, the Fund may attempt to correct
any such nonconforming Demand for Payment if, and to the extent that, the Fund
is entitled and able to do so.
3. The amount payable by the Insurer under this Policy shall be
limited to the Initial Aggregate Guarantee Amount.
6
4. Any service of process on the Insurer or notice to the Insurer
may be made to the Insurer at its offices located at 000 Xxxx Xxxxxx, Xxxxxx,
Xxx Xxxx 00000, and such service of process shall be valid and binding.
5. The term of this Policy shall expire upon the earliest to
occur of (a) the second Business Day immediately succeeding the Maturity Date,
(b) the payment by the Insurer of the Deficit and (c) the date on which the
Aggregate Guarantee Amount (as defined herein) equals zero (the "Expiration
Date").
6. This Policy shall be governed by and interpreted under the
laws of the State of New York. Any suit hereunder in connection with any payment
may be brought only by the Fund within three years after (i) a Demand for
Payment, with respect to such payment, is made pursuant to the terms of this
Policy and the Insurer has failed to make such payment or (ii) payment would
otherwise have been due hereunder but for the failure on the part of the Fund to
deliver to the Insurer a Demand for Payment pursuant to the terms of this
Policy.
7. This Policy, including Attachments 1 and 2 hereto, sets forth
in full the terms of the obligations of the Insurer. Reference in this Policy to
other documents or instruments is for identification purposes, and such
reference shall not modify or affect the terms hereof or cause such documents or
instruments to be deemed incorporated herein.
8. This Policy is noncancelable.
9. This Policy is neither transferable nor assignable.
10. This Policy shall be returned to the Insurer by the Fund on
the Expiration Date together with a notice substantially in the form of
Attachment 2 hereto.
11. The terms defined in this paragraph shall have the meanings
provided herein for all purposes of this Policy:
"Aeltus" means Aeltus Investment Management, Inc. a
Connecticut corporation.
"Aggregate Guarantee Amount" means, on any date of
determination, the aggregate Guarantee Amounts with respect to all IPPF
Shareholders on such date.
"Business Day" means any day other than a day on which banks
located in the City of New York, New York are authorized by law to
close or on which the New York Stock Exchange is closed for business.
"Class of Shares" means each class of shares of capital stock
designated in the Articles Supplementary creating the IPPF.
"Covered Expenses" means, for any Class of Shares, the annual
fund operating expenses covered by the expense limitation with respect
to such IPPF set forth in the Expense Limitation Agreement and
enumerated in the Final Prospectus relating to such Class of Shares as
of the last day of the Offering Period.
7
"Distribution Per Share" means, with respect to any Class of
Shares, an amount equal to the quotient of the amount of any
distribution or payment by the Fund in respect of, or allocated to,
such Class of Shares that is not a Covered Expense or a transaction
related brokerage expense, and shall include, without limitation, any
distribution of income, dividends, capital gains or principal to the
IPPF Shareholders of such Class of Shares and any payment of income
taxes or excise taxes allocated to such Class of Shares divided by the
number of shares of such Class of Shares outstanding on the date of
such distribution or payment.
"Expense Limitation Agreement" means the Expense Limitation
Agreement between the Fund on behalf of the IPPF and the Investment
Adviser and the Sub-Adviser with respect to the IPPF.
"Final Prospectus" means for any Class of Shares the
prospectus pursuant to which the shares of such Class of Shares were
offered for sale, including the Statement of Additional Information
with respect to such Class of Shares filed with the U.S. Securities and
Exchange Commission pursuant to Rule 497 under the Securities Act of
1933, as amended.
"Guarantee Amount" means, with respect to any IPPF Shareholder
of any Class of Shares, on any date of determination, an amount equal
to the product of (i) the Guarantee per Share for such Class of Shares
held by such IPPF Shareholder on such date and (ii) the total number of
such shares held by such IPPF Shareholder.
"Guarantee per Share" means, with respect to any Class of
Shares (i) on the Inception Date, the NAV for such Class of Shares at
the close of business on the immediately preceding Business Day and
(ii) thereafter on any Business Day, the Guarantee per Share for such
Class of Shares on the immediately preceding Business Day divided by
the sum of one plus the quotient of (A) the amount of any Distribution
Per Share with respect to such Class of Shares effective since the
immediately preceding Business Day divided by (B) the NAV for such
Class of Shares at the close of business on the day such Distribution
Per Share was effective.
"Inception Date" means__________________, 2002.
"ING" means ING Investments, LLC, an Arizona limited liability
company.
"Investment Adviser" means ING or any successor thereto
appointed by the Board of Trustees of the Fund as adviser to the IPPF.
"NAV" means, with respect to any Class of Shares of an IPPF,
(a) on the commencement date of such IPPF, the net asset value per
share of such Class of Shares established by the Fund for such date and
(b) on any date of determination thereafter the quotient of (i) the
excess of (x) the market value of the assets allocated to that Class of
Shares determined as of the close of regular trading on the New York
Stock Exchange by the Fund in the manner described in the Final
Prospectus with respect to such Class of Shares over (y) the market
value of any liabilities allocated to and/or associated with such
8
Class of Shares determined as of the close of regular trading on the
New York Stock Exchange by the Fund in the manner described in the
Final Prospectus with respect to such Class of Shares divided by (ii)
the number of outstanding shares of that Class of Shares at such time.
The assets, income, gain, loss and liabilities (other than those
liabilities relating specifically to a Class of Shares) of each IPPF
shall be allocated to each Class of Shares of such IPPF on each date of
determination on a pro rata basis based on the NAV of such Class of
Shares on the preceding date of determination.
"Offering Period" means the period during which the shares of
the IPPF were offered for sale to investors described in the Final
Prospectus with respect to each Class of Shares.
"Sub-Adviser" means Aeltus or any successor thereto appointed
by the Board of Trustees of the Fund as sub-adviser to the IPPF.
THIS POLICY IS NOT COVERED BY THE PROPERTY/CASUALTY INSURANCE
FUND SPECIFIED IN ARTICLE SEVENTY-SIX OF THE NEW YORK STATE INSURANCE LAW.
IN WITNESS WHEREOF, the Insurer has caused this Policy to be executed
in facsimile on its behalf by its duly authorized officers this____________day
of_____________, 2002.
MBIA INSURANCE CORPORATION
By _________________________________
President
By _________________________________
Assistant Secretary
9
DEMAND FOR PAYMENT
State Street Bank and Trust Company, N.A.
as Fiscal Agent for MBIA Insurance
Corporation
00xx Xxxxx
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [Municipal Registrar and
Paying Agency]
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: President
Reference is made to the Insurance Policy No. ___ - ____ -___ (the
"Policy") issued by MBIA Insurance Corporation (the "Insurer"). The terms which
are capitalized herein and not otherwise defined have the meanings specified in
the Policy unless the context otherwise requires.
ING Equity Trust (the "Fund") hereby certifies that: [Choose one of the
following]
(a) The Fund, on behalf of the shareholders (the "IPPF
Shareholders") of the units of beneficial interest in the Fund
designated the ING Principal Protection Fund [_____](the "IPPF"), is
the beneficiary under the Policy.
The Fund, on behalf of the IPPF Shareholders, demands payment
of $__________ , the amount by which (i) the Aggregate Guarantee Amount exceeds
(ii) the Total Net Assets as of the Maturity Date, and directs that payment
under the Policy be made to the following account by bank wire transfer of
federal or other immediately available funds one (1) Business Day after receipt
by the Fiscal Agent of this Demand for Payment in accordance with the terms of
the Policy: ___________________.
10
Any Person Who Knowingly And With Intent To Defraud Any Insurance Company Or
Other Person Files An Application for Insurance Or Statement Of Claim Containing
Any Materially False Information, Or Conceals For The Purpose Of Misleading
Information Concerning Any Fact Material Thereto, Commits A Fraudulent Insurance
Act, Which Is A Crime, And Shall Also Be Subject To A Civil Penalty Not To
Exceed Five Thousand Dollars And The Stated Value Of The Claim For Each Such
Violation
ING EQUITY TRUST
By:________________________________
Name:
Title:
11
EXPIRATION DATE
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: President
Reference is made to the Insurance Policy No._______-______-____(the
"Policy") issued by MBIA Insurance Corporation (the "Insurer"). The terms which
are capitalized herein and not otherwise defined have the meanings specified in
the Policy unless the context otherwise requires.
[The undersigned hereby certifies and confirms that on the Maturity
Date the Aggregate Guarantee Amount was equal to or less than the Total Net
Assets as of the Maturity Date.] [The Insurer has paid $_______________, the
Deficit, under the Policy.] [The undersigned hereby certifies and confirms that
the Aggregate Guarantee Amount equals zero.]
The original of the Policy is enclosed herewith.
ING EQUITY TRUST
By:_______________________________
Name:
Title:
12
ANNEX 2
FORM OF PRELIMINARY APPLICATION
[NOTE: The Preliminary Application must be delivered to MBIA at least two but
not more than five Business Days before the Inception Date.]
[Date(1)]
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention:
Reference is made to the Financial Guaranty Agreement, dated as of July
3, 2001, as amended by the First Amendment dated as of January 14, 2002, and
further amended by the Second Amendment dated as of March_______, 2002, among
MBIA Insurance Corporation (the "Insurer"), ING Investments, LLC ("ING")
(successor to ING Pilgrim Investments, LLC), Aeltus Investment Management, Inc.
("Aeltus") and ING Equity Trust (the "Fund") (formerly known as Pilgrim Equity
Trust) (the "Financial Guaranty Agreement"; terms defined therein being used
herein as therein defined),. This notice constitutes a preliminary application
for a financial guaranty (the "Policy") with respect to ING Principal Protection
Fund [_] (the "IPPF") pursuant to Section 2.2 of the Financial Guaranty
Agreement and the Fund hereby requests the issuance of the Policy under the
Financial Guaranty Agreement, and in that connection the Fund specifies the
following information with respect to the Policy requested hereby:
(A) Name of IPPF:_____________________________________
(B) Aggregate amount to be invested in the IPPF(2):
__________________
(1) Date on or before December 27, 2002 (i.e., two Business Days prior to
the date on which the Insurer's obligation to issue Policies pursuant
to the Financial Guaranty Agreement terminates, as per Section 2.1 of
such Agreement).
(2) Aggregate Guarantee Amount with respect to the IPPF on the Inception
Date will equal the amount entered for line (B) plus (minus) earnings
on such amount during period from the date hereof to and including the
Inception Date, but amount entered on line (B) may not be less than
$10,000,000.
(C) Sum of initial Aggregate Guarantee Amounts with
respect to each existing IPPF(3):____________________
(D) Inception Date with respect to the
IPPF:________________
(E) Maturity Date with respect to the
IPPF(4):________________
The Fund hereby certifies that:
(i) Attached hereto are true complete and correct copies
of each of the Investment Management Agreement with respect to the
IPPF, the Sub-Adviser Agreement with respect to the IPPF, the Expense
Limitation Agreement with respect to the IPPF and the Custodian Service
and Monitoring Agreement with respect to the IPPF duly executed by the
parties thereto;
(ii) Attached hereto is a true complete and correct copy
of the Establishment and Designation of Series and Classes (the
"Establishment and Designation") with respect to the IPPF, certified by
the Secretary of State of the Commonwealth of Massachusetts;
(iii) Attached hereto is a true complete and correct copy
of the Final Prospectus with respect to each Class of Shares of the
IPPF;
(iv) Attached hereto are true complete and correct copies
of the resolutions duly adopted by the Board of Trustees of the Fund
authorizing the creation of the IPPF and the filing of the
Establishment and Designation with respect to the IPPF and the
execution, delivery and performance of the Investment Management
Agreement with respect to the IPPF, the Expense Limitation Agreement
with respect to the IPPF and the Custodian Service and Monitoring
Agreement with respect to the IPPF, certified by a Secretary or
Assistant Secretary of the Fund;
(v) Attached hereto are true complete and correct copies
of the resolutions duly adopted by the Board of Directors of ING
authorizing the execution, delivery and performance of the Investment
Management Agreement with respect to the IPPF, the Sub-Adviser
Agreement with respect to the IPPF and the Expense Limitation Agreement
with respect to the IPPF, certified by a Secretary or Assistant
Secretary of ING;
__________________
(3) Sum of amounts in clauses (B) and (C) may not exceed $2,000,000,000.
(4) The date which is the day immediately preceding the fifth anniversary
of the Inception Date.
14
(vi) Attached hereto are true complete and correct copies
of the resolutions duly adopted by the Board of Directors of Aeltus
authorizing the execution of the Sub-Adviser Agreement with respect to
the IPPF and the Expense Limitation Agreement with respect to the IPPF,
certified by a Secretary or Assistant Secretary of Aeltus;
(vii) Attached hereto is a certificate of the Secretary or
Assistant Secretary of ING as to the incumbency and signature of the
officers or other employees of ING authorized to sign the Investment
Management Agreement with respect to the IPPF, the Sub-Adviser
Agreement with respect to the IPPF and the Expense Limitation Agreement
with respect to the IPPF, on behalf of ING, together with evidence of
the incumbency of such Secretary or Assistant Secretary;
(viii) Attached hereto is a certificate of the Secretary or
Assistant Secretary of Aeltus as to the incumbency and signature of the
officers or other employees of Aeltus authorized to sign the
Sub-Adviser Agreement with respect to the IPPF and the Expense
Limitation Agreement with respect to the IPPF, on behalf of Aeltus,
together with evidence of the incumbency of such Secretary or Assistant
Secretary;
(ix) Attached hereto is a certificate of the Secretary or
Assistant Secretary of the Fund as to the incumbency and signature of
the officers or other employees of the Fund authorized to sign the
Investment Management Agreement with respect to the IPPF, the Expense
Limitation Agreement with respect to the IPPF and the Custodian Service
and Monitoring Agreement with respect to the IPPF on behalf of the
Fund, together with evidence of the incumbency of such Secretary or
Assistant Secretary.
Very truly yours,
ING EQUITY TRUST
By:________________________________
Name:
Title:
ANNEX 3
FORM OF FINAL APPLICATION
[Date(1)]
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention:
Reference is made to the Financial Guaranty Agreement, dated
as of July 3, 2001, as amended by the First Amendment dated as of January 14,
2002, and further amended by the Second Amendment dated as of
March______________, 2002, among MBIA Insurance Corporation (the "Insurer"), ING
Investments, LLC ("ING") (successor to ING Pilgrim Investments, LLC), Aeltus
Investment Management, Inc. ("Aeltus") and ING Equity Trust (the "Fund")
(formerly known Pilgrim Equity Trust) (the "Financial Guaranty Agreement"; terms
defined therein being used herein as therein defined). This notice constitutes
the final application for a financial guaranty (the "Policy") with respect to
ING Principal Protection Fund [_] (the "IPPF") pursuant to Section 2.2 of the
Financial Guaranty Agreement and the Fund hereby requests the issuance of the
Policy under the Financial Guaranty Agreement, and in that connection the Fund
specifies the following information with respect to the Policy requested hereby:
(A) Name of IPPF:____________________________
(B) Aggregate Guarantee Amount with respect to IPPF on
Inception Date(2):
(C) Sum of initial Aggregate Guarantee Amounts with
respect to each existing IPPF(3):________________
(D) Inception Date with respect to the IPPF: _________
(E) Maturity Date with respect to the IPPF(4):__________
_______________
(1) Date on or before December 31, 2002.
(2) Must be for an exact sum which is not less than $10,000,000.
(3) Sum of amounts in clauses (B) and (C) may not exceed $2,000,000,000.
16
The Fund hereby certifies that:
1. Each of the representations and warranties made by
the Fund in or pursuant to the Transaction Documents shall be true and
correct in all material respects on and as of the date hereof;
2. No Default or Event of Default shall have occurred
and be continuing on the date hereof;
3. No statute, rule, regulation or order shall have been
enacted, entered or deemed applicable by any Government Authority which
would make the transactions contemplated by any of the Transaction
Documents illegal or otherwise prevent the consummation thereof; and
4. Each of the conditions specified in Section 2.3(b) of
the Financial Guaranty Agreement with respect to the Policy has been
satisfied.
Very truly yours,
ING EQUITY TRUST
By: _____________________________
Name:
Title:
________________
(4) The date which is the day immediately preceding the fifth anniversary
of the Inception Date.
