EXHIBIT (h)(5)(ix)
NINTH AMENDMENT TO FINANCIAL GUARANTY AGREEMENT
NINTH AMENDMENT, dated as of January 31, 2004 (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 Seventh Amendment dated March 24, 2003 and
the Eighth Amendment dated September 26, 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 effected, 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. Amendment to Section 1.1 of the Agreement. Section 1.1 of the
Agreement is hereby amended by deleting therefrom the definition of the
following defined term in its entirety and substituting in lieu thereof the
following new definition:
"Interpolated Covered Expense Ratio" shall mean, with respect to any PPF,
on any such Valuation Date, an amount equal to the Higher Covered Expense Ratio
with respect to such PPF plus the product of (a) the Lower Covered Expense Ratio
minus the Higher Covered Expense Ratio and (b) the quotient of (x) the equity
percentage generated from Sub-Advisor's proprietary asset allocation computer
model utilizing the Lower Covered Expense Ratio minus 20% and (y) 30% minus 20%;
provided; however, that in no event shall such amount be less than the Lower
Covered Expense Ratio.
2. Amendment to Section 2.1 of the Agreement. Section 2.1 of the
Agreement is hereby deleted in its entirety and replaced with the following:
2.1 Policies.
During the period commencing on the Effective Date and ending on
January 31, 2005, the Insurer agrees, subject to the conditions hereinafter set
forth, to issue Policies to the Fund in an aggregate amount equal to the sum of
the original aggregate amounts of all policies issued prior to February 1, 2004
plus $400,000,000. Each Policy shall (i) be issued on an Inception Date with
respect to a PPF, (ii) guarantee the Aggregate Guarantee Amount with respect to
such PPF on the Maturity Date, (iii) be in an amount equal to the Aggregate
Guarantee Amount on the Inception Date with respect to such PPF, (iv) be in an
amount not less than $10,000,000 and (v) terminate by its terms on the latest of
(A) the second Business Day immediately succeeding the Maturity Date with
respect to such PPF, (B) any date on which the
Aggregate Guarantee Amount with respect to such PPF equals zero or (C) the
payment by the Insurer of all amounts owing under such Policy.
3. 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.
4. 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.
5. 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.
AELTUS INVESTMENT MBIA INSURANCE CORPORATION
MANAGEMENT, INC.
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By: By:
Title: Title:
ING EQUITY TRUST ING INVESTMENTS, LLC
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
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By: Xxxxxxx Xxxxxx By: Xxxxxxx Xxxxxx
Title:Executive Vice President Title: Executive Vice President
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.
AELTUS INVESTMENT MBIA INSURANCE CORPORATION
MANAGEMENT, INC.
/s/ XXXXXXX X. XXXXXX
--------------------------------- ----------------------------------
By: XXXXXXX X. XXXXXX By:
Title: SVP & CFO Title:
ING EQUITY TRUST ING INVESTMENTS, LLC
--------------------------------- ----------------------------------
By: By:
Title: Title:
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.
AELTUS INVESTMENT MBIA INSURANCE CORPORATION
MANAGEMENT, INC.
/s/ Xxxxxxx X. Xxxxx
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By: By: Xxxxxxx X. Xxxxx
Title: Title: Director
ING EQUITY TRUST ING INVESTMENT, LLC
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By: By:
Title: Title:
