EXHIBIT(h)(8)(v)
FIFTH AMENDMENT TO FINANCIAL GUARANTY AGREEMENT
FIFTH AMENDMENT, dated as of November 12,2002 (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 Second Amendment dated as of March
28,2002, the Third Amendment dated as of August 20,2002, and the Fourth
Amendment dated as of October 24, 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 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. Defined Terms. All capitalized terms defined in the Agreement and
used herein shall have the meanings given to them therein.
2. Amendments to Section 1.1 Section 1.1 of the Agreement is hereby
amended by the addition of the following new definition in alphabetical order:
"`Qualified Repurchase Agreements" shall mean, with respect to any PPF
and any Valuation Date, repurchase agreements that (i) mature in no
more than seven days, (ii) are 102% fully collateralized with cash,
U.S. Treasury securities or U.S. agency debentures, (iii) are
marked-to-market and remargined daily, and (iv) are issued by sellers
that at the time of issue have a short-term rating of P-l from Moody's
and A-l or A-1+ from Standard and Poor's, or in the absence of a
short-term rating of the issuer, the parent of the issuer has a
short-term rating of P-l from Moody's and A-l or A-1+ from Standard and
Poor's, provided that a repurchase agreement will not be a Qualified
Repurchase Agreement if immediately after its purchase the aggregate
amount of all Qualified Repurchase Agreements would exceed 10% of the
Total Net Assets."
3. Amendment to Section 3.1. Section 3.1 (b)(i) of the Agreement is
hereby amended by deleting the word "and" immediately before, and by inserting
the phrase "and (5) Qualified Repurchase Agreements;" immediately after, clause
(4) thereof.
4. Amendment to Section 3.2.(c). Section 3.2. (c) of the Agreement is
hereby amended by deleting the entire Section and adding the following new
Section:
"the aggregate Market Value of all Cash Equivalents held by such PPF
(less Cash Associated with Futures and Cash Margin with respect to such PPF) on
any Valuation Date shall not exceed 4% of the Total Net Assets with respect to
such PPF on such Valuation Date; provided, however, that during the 180 day
period prior to the Maturity Date of such PPF the
aggregate market Value of all Cash Equivalents held by such PPF on any Valuation
Date may exceed 4% of the total Net Assets with respect to such PPF on such
Valuation Date provided that no more than 4% of the Total Net Assets with
respect to such PPF consist of Cash Equivalents described in clauses (2), (3),
(4), or (5) of Section 3.1 (b)(i);"
5. 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 there new Exhibits H-l and H-2 in the forms
of Annexes 1 and 2, respectively, to this Amendment.
6. 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.
7. 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.
8. 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.
9. 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
------------------------------------
By: XXXXX X. XXXXX
Title: MANAGING DIRECTOR
ING INVESTMENTS, LLC
/s/ Xxxxxxxx X. Xxxxxxxx
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By: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
AELTUS INVESTMENT MANAGEMENT, INC.
/s/ Xxxxxxx Xxxxxxx
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By: Xxxxxxx Xxxxxxx
Title: Sr. Vice President
ING EQUITY TRUST
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
By: Xxxxxxxx X. Xxxxxxxx
Title: 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 as of October 24, 2002, and the
Fifth Amendment dated as of November 12, 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 $3,800,000,000.
(D) Inception Date with respect to the
IPPF:________________________________
(E) Maturity Date with respect to the
IPPF(4):________________________________
The Fund hereby certifies that:
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;
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;
Attached hereto is a true complete and correct copy of the
Final Prospectus with respect to each Class of Shares of the IPPF;
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;
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;
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;
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
__________________
(4) The date which is the day immediately preceding the fifth anniversary
of the Inception Date.
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;
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;
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 as of October 24,2002, and the Fifth
Amendment dated as of November 12,2002, 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):___________________
________________
(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 $3,800,000,000.
(D) Inception Date with respect to the
IPPF:___________________________
(E) Maturity Date with respect to the
IPPF(4):___________________________
The Fund hereby certifies that:
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;
No Default or Event of Default shall have occurred and be
continuing on the date hereof;
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
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.
