Exhibit 4(c)(vi)
FIRST 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 March 31, 1997
between
EQUITABLE OF IOWA COMPANIES
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
FIRST SUPPLEMENTAL INDENTURE dated as of October 24, 1997 (the "First
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 March 31, 1997 between the Issuer and the Trustee, as amended and
supplemented (the "Indenture").
WHEREAS, on April 3, 1997, the Issuer issued $51,550,000 in aggregate
principal amount of 8.424% Series A Subordinated Deferrable Interest
Debentures due 2027 (the "Series A 1997 Debentures") pursuant to the terms of
the Indenture;
WHEREAS, on June 6, 1997, in accordance with the terms of the Indenture
and an exchange offer made by the Issuer pursuant to the Registration Rights
Agreement dated as of April 3, 1997, the Issuer issued $51,550,000 in
aggregate principal amount of 8.424% Series B Subordinated Deferrable
Interest Debentures due 2027 (the "Series B 1997 Debentures") in exchange for
all the outstanding Series A 1997 Debentures, which Series A 1997 Debentures
were thereafter cancelled by the Trustee and returned to the Company;
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 10.01 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
Series B 1997 Debentures 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 Series B 1997 Debentures, or event that after notice or lapse
of time, or both, would become an event of default with respect to the
Series B 1997 Debentures, shall have occurred and be continuing;
WHEREAS, Section 10.02 of the Indenture provides that in the case of any
such merger in accordance with Section 10.01, 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 9.01(a) of the Indenture provides, among other things,
that without the consent of the holders of any of the Series B 1997
Debentures, 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 First Supplemental Indenture whereby the
Successor Company will assume the due and punctual payment of the principal
of and interest on the Series B 1997 Debentures and the performance of every
covenant of the Indenture on the part of the Issuer to be performed or
observed with respect to the Series B 1997 Debentures; and
WHEREAS, all things necessary to make this First 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 Series B 1997
Debentures, 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
Series B 1997 Debentures and the performance of every covenant of the
Indenture on the part of the Issuer to be performed or observed with respect
to the Series B 1997 Debentures.
ARTICLE II
CLOSING DOCUMENTS
Section 2.1 DOCUMENTS TO BE GIVEN TO TRUSTEE. In accordance with the
provisions of Section 10.01 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 First Supplemental Indenture comply with the
requirements of the Indenture, and an Opinion of Counsel, each satisfying the
provisions of Section 13.06 of the Indenture.
ARTICLE III
MISCELLANEOUS
Section 3.1 TRUSTEE'S ACCEPTANCE. The Trustee accepts the provisions
of this First 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 First
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 First 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 First Supplemental Indenture or the Indenture
is required or permitted to be given or served by the Trustee or by the
holders of the Series B 1997 Debentures 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 First 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 First 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 First Supplemental Indenture are for convenience only and shall not
affect the construction hereof.
Section 3.9 SEPARABILITY CLAUSE. In case any provision in this First
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 First 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 First
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 First Supplemental Indenture]