Exhibit 4(c)(iv)
SECOND SUPPLEMENTAL INDENTURE
Dated as of October 24, 1997
among
EQUITABLE OF IOWA COMPANIES
PFHI HOLDINGS, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
to
INDENTURE
Dated as of January 17, 1995, as amended and supplemented
by the FIRST SUPPLEMENTAL INDENTURE dated as of July 18, 1996
between
EQUITABLE OF IOWA COMPANIES
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
SECOND SUPPLEMENTAL INDENTURE dated as of October 24, 1997 (the "Second
Supplemental Indenture") by and among Equitable of Iowa Companies, an Iowa
corporation (the "Issuer"), PFHI Holdings, Inc., a Delaware corporation (the
"Successor Company"), and The First National Bank of Chicago, a national
banking association, as trustee (the "Trustee"), under the Indenture dated as
of January 17, 1995 between the Issuer and the Trustee, as amended and
supplemented (the "Indenture").
WHEREAS, the Issuer executed and delivered the Indenture to the Trustee
to provide for the future issuance of the Issuer's unsecured debt securities
(the "Securities") to be issued from time to time in one or more series as
might be determined by the Issuer in an unlimited aggregate principal amount
which may be authenticated and delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Issuer established,
and on February 22, 1995 issued, a series of Securities known as its 8-1/2%
Notes due 2005 (the "1995 Notes"), the form and substance of such 1995 Notes
and the terms, provisions and conditions thereof set forth as provided in the
Indenture and an Officer's Certificate dated as of February 14, 1995;
WHEREAS, pursuant to the terms of Indenture, the Issuer established, and
on July 23, 1996 issued, a series of Securities known as its 8.70%
Subordinated Deferrable Interest Debentures due 2026 (the "1996 Debentures",
and together with the 1995 Notes, the "Indenture Securities"), the form and
substance of such 1996 Debentures and the terms, provisions and conditions
thereof set forth as provided in the Indenture and the First Supplemental
Indenture dated as of July 18,1996 between the Issuer and the Trustee (the
"First Supplemental Indenture");
WHEREAS, pursuant to the Agreement and Plan of Merger dated as of July
7, 1997 by and among the Issuer, the Successor Company and ING Groep N.V.
("ING"), the Issuer will be merged with and into the Successor Company (the
"Merger") on October 24, 1997 (the "Effective Date"), with the Successor
Company being the survivor of the Merger;
WHEREAS, Section 9.1 of the Indenture provides, among other things, that
the Issuer will not merge or consolidate with any other person unless: (i)
either the Issuer shall be the continuing corporation, or the successor
person shall be a person organized under the laws of the United States of
America, any state thereof or the District of Columbia and shall expressly
assume the due and punctual payment of the principal of and interest on the
Securities and the performance of every covenant of the Indenture on the part
of the Issuer to be performed or observed; and (ii) immediately after giving
effect to such transaction, no event of default with respect to the
Securities, or event that after notice or lapse of time, or both, would
become an event of default with respect to the Securities, shall have
occurred and be continuing;
WHEREAS, Section 9.2 of the Indenture provides that in the case of any
such merger in accordance with Section 9.1, and following such assumption by
the successor, such successor shall succeed to and be substituted for the
Issuer with the same effect as if it had been named in the Indenture, and the
Issuer shall be discharged from all obligations and covenants under the
Indenture;
WHEREAS, Section 8.1(c) of the Indenture provides, among other things,
that without the consent of the holders of any of the Securities, the Issuer,
when authorized by resolution by its Board of Directors, and the Trustee may
from time to time and at any time enter into a supplemental indenture to,
among other things, evidence the succession of another entity to the Issuer
and the assumption by the successor entity of the covenants, agreements and
obligations of the Issuer under the Indenture;
WHEREAS, the Issuer and the Successor Company, by due corporate action,
have determined to execute this Second Supplemental Indenture whereby the
Successor Company will assume the due and punctual payment of the principal
of and interest on the Indenture Securities and the performance of every
covenant of the Indenture on the part of the Issuer to be performed or
observed with respect to the Indenture Securities; and
WHEREAS, all things necessary to make this Second Supplemental Indenture
a valid, binding and legal agreement have been performed.
NOW, THEREFORE, in consideration of the foregoing recitals and other
valuable consideration, the receipt whereof is hereby acknowledged, the
Issuer and the Successor Company covenant and agree with the Trustee, for the
equal and proportionate benefit of all the holders of the Indenture
Securities, as follows:
ARTICLE I
ASSUMPTION OF THE INDENTURE AND THE SECURITIES
Section 1.1 ASSUMPTION OF OBLIGATIONS. As of the Effective Date,
contemporaneous with the Merger, the Successor Company does hereby assume the
due and punctual payment of the principal of and interest on all of the
Indenture Securities and the performance of every covenant of the Indenture
on the part of the Issuer to be performed or observed with respect to the
Indenture Securities.
ARTICLE II
CLOSING DOCUMENTS
Section 2.1 DOCUMENTS TO BE GIVEN TO TRUSTEE. In accordance with the
provisions of Section 9.1 of the Indenture, the Trustee shall receive from
the Issuer prior to the Effective Date an Officer's Certificate certifying
that the Merger and this Second Supplemental Indenture comply with the
requirements of the Indenture, and an Opinion of Counsel, each satisfying the
provisions of Section 11.5 of the Indenture.
ARTICLE III
MISCELLANEOUS
Section 3.1 TRUSTEE'S ACCEPTANCE. The Trustee accepts the provisions
of this Second Supplemental Indenture upon the terms and conditions set forth
in the Indenture; PROVIDED, HOWEVER, that the foregoing acceptance shall not
make the Trustee responsible in any manner whatsoever for the correctness of
recitals or statements by other parties herein.
Section 3.2 INDENTURE TO REMAIN IN FULL FORCE AND EFFECT. Except as
herein expressly provided, the Indenture, is in all respects ratified and
confirmed and all its terms, provisions and conditions shall be and remain in
full force and effect.
Section 3.3 RIGHTS OF TRUSTEE. All recitals in this Second
Supplemental Indenture are made by the Issuer and the Successor Company only
and not by the Trustee. All of the provisions contained in the Indenture in
respect of the rights, privileges, immunities, powers and duties of the
Trustee shall be applicable in respect hereof as fully and with like effect
as if set forth herein in full.
Section 3.4 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Second Supplemental Indenture made by the Issuer and the Successor
Company shall bind their respective successors and assigns, whether so
expressed or not.
Section 3.5 NOTICES AND DEMANDS ON ISSUER. Any notice or demand
which by any provision of this Second Supplemental Indenture or the Indenture
is required or permitted to be given or served by the Trustee or by the
holders of the Indenture Securities to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein or in the Indenture) addressed (until
another address of the Issuer is filed by the Issuer with the Trustee) to:
Equitable of Iowa Companies, Inc., 909 Locust Street, Des Moines, Iowa 50309-
2899; Attention: Chief Financial Officer.
Section 3.6 CONFLICT WITH TRUST INDENTURE ACT. If any provision of
this Second Supplemental Indenture limits, qualifies or conflicts with the
duties imposed by operation of Section 318(c) of the Trust Indenture Act, the
imposed duties shall control.
Section 3.7 GOVERNING LAW. This Second Supplemental Indenture shall
be governed by and construed in accordance with the internal laws, but not
the laws as to conflicts or choice of law, of the State of New York.
Section 3.8 TITLES, HEADINGS, ETC.. The Article and Section headings
of this Second Supplemental Indenture are for convenience only and shall not
affect the construction hereof.
Section 3.9 SEPARABILITY CLAUSE. In case any provision in this
Second Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 3.10 EXECUTION IN COUNTERPARTS. This Second Supplemental
Indenture may be executed in any number of counterparts, each of which shall
be deemed an original, but such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the date and year first
above written.
EQUITABLE OF IOWA COMPANIES
By: /s/ Paul E. Larson
_______________________________________
Name: Paul E. Larson
_______________________________________
Title: Executive Vice President and Chief
_______________________________________
Financial Officer
_______________________________________
PFHI HOLDINGS, INC.
By: /s/ Jeffrey E. Morrison
_______________________________________
Name: Jeffrey E. Morrison
_______________________________________
Title: Vice President
_______________________________________
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ Richard D. Manella
_______________________________________
Name: Richard D. Manella
_______________________________________
Title: Vice President
_______________________________________
[Signature Page to Second Supplemental Indenture]