EXHIBIT (h)(8)(vii)
SEVENTH AMENDMENT TO FINANCIAL GUARANTY AGREEMENT
SEVENTH AMENDMENT, dated as of March 24, 2003 (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 Second Amendment dated as of March
28, 2002, the Third Amendment dated as of August 20, 2002, the Fourth Amendment
dated October 30, 2002, the Fifth Amendment dated November 12, 2002, the Sixth
Amendment dated February 10, 2003 (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 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. Amendment to Second WHEREAS Clause. The second WHEREAS clause
of the Agreement is hereby amended by deleting the reference to $4,400,000,000
and inserting $5,400,000,000 in lieu thereof.
3. Amendment to Section 1.1 of the Agreement. Section 1.1 is
hereby amended by the addition of the following language in the definition of
"Qualified Repurchase Agreements": "except that during the initial ten days of
the Guarantee Period there shall be no limitation on Qualified Repurchase
Agreements as a percentage of Total Net Assets."
4. Amendment to Section 2.1 of the Agreement. Section 2.1 is
hereby amended by deleting December 31, 2003 and inserting January 31, 2004, and
deleting "$4,400,000,000" and inserting "$5,400,000,000" in lieu thereof in the
first sentence thereof.
5. Amendment to Section 3.2 of the Agreement. Section 3.2 (c) is
hereby amended by the addition of the following language: "except that this
limit shall not apply during the initial ten days of the Guarantee Period."
6. Amendments to Exhibits H-l 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-l and H-2 in the
forms of Annexes 1 and 2, respectively, to this Amendment.
7. 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.
8. 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.
9. 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.
10. 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.
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/ XXXXX X. XXXXX
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By: XXXXX X. XXXXX
Title: Managing Director
ING INVESTMENTS
/s/ Xxxxxxx X. Xxxxxx
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By: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
AELTUS INVESTMENT MANAGEMENT, INC.
/s/ XXXXXXX XXXXXXX
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By: XXXXXXX XXXXXXX
Title: Senior Vice President
ING EQUITY TRUST
/s/ Xxxxxxx X. Xxxxxx
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By: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
ANNEX 1
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, the
Second Amendment dated as of March 28, 2002, the Third Amendment dated as of
August 20, 2002, the Fourth Amendment dated October 30, 2002, the Fifth
Amendment dated November 12, 2002, the Sixth Amendment dated February 10, 2003,
the Seventh Amendment dated March 24, 2003, 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):________________________________
(C) Sum of initial Aggregate Guarantee Amounts with
respect to each existing IPPF(3):____________________
___________________
(1) Date on or before January 31, 2004 (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.
(3) Sum of amounts in clauses (B) and (C) may not exceed $5,400,000,000.
(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;
(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
_________________
(4) The date which is the day immediately preceding the fifth anniversary
of the Inception Date.
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 2
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, the
Second Amendment dated as of March 28, 2002, the Third Amendment dated as of
August 20, 2002, the Fourth Amendment dated October 30, 2002, the Fifth
Amendment dated November 12, 2002, the Sixth Amendment dated February 10, 2003,
the Seventh Amendment dated March 24, 2003, 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:
_______________
(1) Date on or before January 31, 2004.
(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 $5,400,000,000.
(E) Maturity Date with respect to the
IPPF(4):________________________________________
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.
