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EXHIBIT 4.3
FIRST SUPPLEMENTAL INDENTURE, dated as of October 1, 1998 (the
"First Supplemental Indenture"), by and among Apartment Investment and
Management Company, a Maryland corporation (the "Company"), Insignia Financial
Group, Inc., a Delaware corporation (the "Issuer"), and First Union National
Bank (formerly First Union National Bank of South Carolina), a national banking
association, as Trustee (the "Trustee") under the Indenture, dated as of
November 1, 1996, by and between the Issuer and the Trustee (the "Indenture").
Capitalized terms used herein and not defined herein shall have the meanings
given such terms in the Indenture.
WHEREAS, the Company, the Issuer, Insignia/ESG Holdings, Inc.,
a Delaware corporation, and AIMCO Properties, L.P., a Delaware limited
partnership, entered into an Amended and Restated Agreement and Plan of Merger,
dated as of May 26, 1998 (the "Merger Agreement"), whereby the Issuer will be
merged with and into the Company, with the Company being the surviving
corporation (the "Merger"); and
WHEREAS, Section 12.1 of the Indenture prohibits the Issuer
from merging with any other corporation where such other corporation is the
continuing corporation, unless, among other things, such continuing corporation
expressly assumes the due and punctual payment of the Issuer's 6 1/2%
Convertible Subordinated Debentures Due 2016 (the "Debentures"), according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed or observed by the
Issuer, by supplemental indenture satisfactory to the Trustee.
NOW, THEREFORE, inconsideration of the foregoing, the parties
hereto agree as follows:
1. The Company hereby expressly and unconditionally assumes
the due and punctual payment of the principal of, premium, if any, and interest
on all the Debentures issued pursuant to the Indenture according to their tenor
and the Company hereby expressly and unconditionally assumes the performance or
observance of all of the covenants and conditions of the Debentures and the
Indenture to be performed or observed by the Issuer as if the Company had been
originally named in the Indenture as the "Company" (as such term is defined
therein).
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2. The Company hereby represents and warrants that, assuming
that the Issuer is not in default in the performance of any of the covenants or
conditions to be performed or observed by the Issuer under the Indenture
immediately prior to the consummation of the Merger, the Company will not be in
default in the performance or observance of any such covenants or conditions
immediately after the consummation of the Merger.
3. Except as provided herein, all of the terms and conditions
of the Indenture shall remain in full force and effect. This First Supplemental
Indenture is an indenture supplemental to and in implementation of the
Indenture, and the Indenture and this First Supplemental Indenture shall
henceforth be read and construed together.
4. The Trustee accepts the succession of the Company as issuer
under the Indenture as evidenced by this First Supplemental Indenture. Without
limiting the generality of the foregoing, the Trustee assumes no responsibility
for the correctness of the recitals herein contained, which shall be taken as
the statements of the Company. The Trustee makes no representation and shall
have no responsibility as to the validity of this First Supplemental Indenture.
5. Notwithstanding any provision contained herein or in the
Indenture, it is hereby acknowledged that the Company will (i) consummate the
Merger, (ii) consummate the transfer of substantially all the assets of the
Issuer (including the Common Securities of the Insignia Trust) to certain
subsidiaries of the Company and partially-owned subsidiary partnerships of the
Company in exchange for fair value and (iii) perform all other necessary or
desirable actions in connection with the Merger and the post-Merger
restructuring of the assets obtained from the Issuer in the Merger.
6. In case any provision in this First Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions of this First Supplemental Indenture
or of the Indenture shall not in any way be affected or impaired thereby.
7. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
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8. This First Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed on the date first above written.
APARTMENT INVESTMENT AND MAN
AGEMENT COMPANY
By: /s/ PETER KOMPANIEZ
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Name: Peter Kompaniez
Title: President
FIRST UNION NATIONAL BANK
By: /s/ R. DOUGLAS MILNER
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Name: R. Douglas Milner
Title: Vice President
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