EXHIBIT (h)(8)(iii)
THIRD AMENDMENT TO FINANCIAL GUARANTY AGREEMENT
THIRD AMENDMENT, dated as of August 20, 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, and further amended by the Second
Amendment dated as of Xxxxx 00, 0000 (xxx "Xxxxxxxxx"), xxxxx XXXX 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 $2,000,000,000
and inserting $2,800,000,000 in lieu thereof.
3. Amendment to Section 2.1 of the Agreement. Section 2.1 is
hereby amended by (a) deleting "December 31, 2002" and inserting "June 30, 2003"
in lieu thereof in the first sentence thereof and (b) deleting "$2,000,000,000"
and inserting "$2,800,000,000" in lieu thereof in the first sentence thereof.
4. 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-1 and H-2 in the
forms of Annexes 1 and 2, respectively, to this Amendment.
5. 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.
6. 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.
7. 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.
8. 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, LLC
/s/ Xxxxxxx X. Xxxxxx
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By: Xxxxxxx X. Xxxxxx
Title: Executive VP and CFO
AELTUS INVESTMENT MANAGEMENT, INC.
/s/ XXXX XXX XXXXXXXXX
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By: XXXX XXX XXXXXXXXX
Title: SR. VICE PRESIDENT
ING EQUITY TRUST
/s/ Xxxxxxx X. Xxxxxx
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By: Xxxxxxx X. Xxxxxx
Title: Executive VP and CFO
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 28,2002, and further
amended by the Third Amendment dated as of July______, 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):______________________________________
(C) Sum of initial Aggregate Guarantee Amounts with
respect to each existing IPPF(3):____________________
________________
(1) Date on or before June 26, 2003 (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 $2,800,000,000.
(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 Sub-Adviser
Agreement with respect to the IPPF and the Expense Limitation Agreement
___________________
(4) The date which is the day immediately preceding the fifth anniversary
of the Inception Date.
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 28, 2002, and further
amended by the Third Amendment dated as of July_____, 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 June 30, 2003.
(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 $2,800,000,000.
(4) The date which is the day immediately preceding the fifth anniversary
of the Inception Date.
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:
