Exhibit 1.2
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 24, 1997
TO
INDENTURE
DATED AS OF OCTOBER 2, 1997
BETWEEN
ASSISTED LIVING CONCEPTS, INC.
AND
XXXXXX TRUST AND SAVINGS BANK
AS TRUSTEE
__________________________________
6.0% CONVERTIBLE SUBORDINATED DEBENTURES
DUE 2002
__________________________________
FIRST SUPPLEMENTAL INDENTURE
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FIRST SUPPLEMENTAL INDENTURE, dated as of October 24, 1997 between
Assisted Living Concepts, Inc., a Nevada corporation (the "Company"), and Xxxxxx
Trust and Savings Bank, an Illinois state banking association (the "Trustee"),
to that certain Indenture, dated as of October 2, 1997, between the Company and
the Trustee (the "Indenture").
WHEREAS, the parties hereto have entered into the Indenture which
provides for the issuance by the Company of the individual series of securities
thereunder, upon the Company and Trustee entering into a supplemental indenture
to the Indenture authorizing such series; and
WHEREAS, the Company wishes to issue its first series of securities
thereunder, designated its 6.0% Convertible Subordinated Debentures due 2002
(the "Debentures"); and
WHEREAS, all acts necessary to constitute this First Supplemental
Indenture as a valid, binding and legal obligation of the Company have been done
and performed.
NOW, THEREFORE, witnesseth that, in consideration of the premises and
of the covenants contained herein, it is hereby agreed as follows:
ARTICLE ONE
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The Terms of the Debentures
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In accordance with Sections 2.01 and 2.02 of the Indenture, the
Company will issue its series of Debentures in the aggregate principal amount of
$75,000,000 ($86,250,000 if the underwriters' over-allotment option is exercised
in full). Each Debenture shall be substantially in the following form:
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ASSISTED LIVING CONCEPTS, INC.
6.0% Convertible Subordinated Debenture Due 2002
ASSISTED LIVING CONCEPTS, INC., a Nevada corporation, promises to pay
to
S P E C I M E N
or registered assigns, the principal sum of ________ Million Dollars, on
November 1, 2002
Cusip 04543L AD 1
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: __________, 1997
CERTIFICATE OF AUTHENTICATION
XXXXXX TRUST AND SAVINGS BANK, as
Trustee, certifies that this
is one of the Securities
referred to in the within
mentioned Indenture.
By: ____________________
Authorized Signatory
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SEAL
Dated: __________, 1997
ASSISTED LIVING CONCEPTS, INC.
By: _______________________
President
By: _______________________
Secretary
The rest of this page intentionally left blank.
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ASSISTED LIVING CONCEPTS, INC.
6.0% Convertible Debenture Due 2002
1. Interest. Assisted Living Concepts, Inc., a Nevada corporation
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(the "Company"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company will pay interest
semiannually on May 1 and November 1 of each year beginning May 1, 1998.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from October 24, 1997;
provided that, if there is no existing Default in the payment of interest, and
if this Security is authenticated between a record date referred to on the face
hereof and the next succeeding interest payment date, interest shall accrue from
such interest payment date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the
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Securities (except defaulted interest) to the Persons who are the registered
Holders of the Securities at the close of business on the April 15 or
October 15 next preceding the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company will
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. The Company,
however, may pay principal and interest by its check payable in such money. It
may mail an interest check to a Holder's registered address.
The final installment of principal of and premium, if any, on this
Security shall be payable only upon surrender of this Security at the office or
agency of the Trustee in the Borough of Manhattan, City and State of New York or
the City of Chicago, State of Illinois. Payments of principal of and premium,
if any, and interest on this Security shall be made at the office or agency of
the Trustee maintained in the Borough of Manhattan, City and State of New York
or the City of Chicago, State of Illinois, or, in the case of any such payments
other than the final payment of principal and premium, if any, at the Company's
option, by check mailed to the Person entitled thereto at such Person's address
last appearing on the Company's register.
3. Registrar and Agents. Initially, Xxxxxx Trust and Savings Bank
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will act as Registrar, Paying Agent, Conversion Agent and agent for service of
notices and demands. The Company may change any Registrar, co-registrar, Paying
Agent, Conversion Agent and agent for service of notices and demands without
notice. The Company or any of its Subsidiaries may act as Paying Agent or
Conversion Agent. The address of Xxxxxx Trust and Savings Bank is 000 Xxxx
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
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4. Indenture; Limitations. The Company issued the Securities under
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an Indenture dated as of October 2, 1997 (the "Indenture") between the Company
and Xxxxxx Trust and Savings Bank (the "Trustee"). Capitalized terms herein are
used as defined in the Indenture unless otherwise defined herein. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb) as in effect on the date of the Indenture. The Securities are
subject to all such terms, and the Holders of the Securities are referred to the
Indenture and said Act for a statement of them.
The Securities are general unsecured obligations of the Company
limited to $75,000,000 aggregate principal amount ($86,250,000 if the
underwriters' over-allotment option is exercised in full). The Indenture
imposes certain limitations on the ability of the Company to, among other
things, make payments in respect of its Capital Stock, merge or consolidate with
any other Person and sell, lease, transfer or otherwise dispose of its
properties or assets.
5. Redemption by the Company. The Company may redeem the Securities,
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in whole or from time to time in part, at its option at any time on or after
November 15, 2000, at a redemption price equal to 100% of the principal amount
thereof, plus accrued interest to the Redemption Date.
6. Notice of Redemption. Notice of redemption will be mailed at
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least 30 days, but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 principal amount may be redeemed in part, but
only in whole multiples thereof. On and after the Redemption Date interest
ceases to accrue on Securities or portions of them called for redemption.
7. Conversion. A Holder of a Security may convert such Security
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into shares of common stock of the Company at any time prior to maturity. The
initial conversion price is $22.57 per share, subject to adjustment in certain
events. To determine the number of shares issuable upon conversion of a
Security, divide the principal amount to be converted by the conversion price in
effect on the conversion date. The Company will deliver a check for any
fractional share.
To convert a Security, a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the Security to the
Conversion Agent, (3) furnish appropriate endorsements and transfer documents if
required by the Registrar or Conversion Agent and (4) pay any transfer or
similar tax if required. No payment or adjustment is to be made on conversion
for interest accrued hereon or for dividends on shares of common stock issued on
conversion; provided, however, that if a Security is surrendered for conversion
after the record date for a payment of interest and on or before the interest
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payment date, then, notwithstanding such conversion, the interest falling due to
such interest payment date will be paid to the Person in whose name the Security
is registered at the close of business on such record date and any Security
surrendered for conversion during the period from the close of business on any
regular record payment date to the opening of business on the corresponding
interest payment date must be accompanied by payment of an amount equal to the
interest payable on such interest payment date. A Holder may convert a portion
of a Security if the portion is $1,000 principal amount or an integral multiple
thereof.
If the Company is a party to a consolidation or merger or a transfer
or lease of all or substantially all of its assets, the right to convert a
Security into shares of common stock may be changed into a right to convert it
into securities, cash or other assets of the Company or another Person.
8. Subordination. This Security is subordinated to all Senior
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Indebtedness of the Company. To the extent and in the manner provided in the
Indenture, Senior Indebtedness must be paid before any payment may be made to
any Holders of Securities. Any Securityholder by accepting this Security agrees
to the subordination and authorizes the Trustee to give it effect.
In addition to all other rights of Senior Indebtedness described in
the Indenture, the Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of any instrument relating to the
Senior Indebtedness or extension or renewal of the Senior Indebtedness.
9. Denominations; Transfer; Exchange. This Security is one of a
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duly authorized issue of Securities of the Company designated as its 6.0%
Convertible Subordinated Debentures due 2002 limited in aggregate principal
amount to $75,000,000 ($86,250,000 if the underwriters' over-allotment option is
exercised in full). The Securities are in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof. A
Holder may register the transfer of or exchange Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption or
register the transfer of or exchange any Securities for a period of 15 days
before a selection of Securities to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Security may
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be treated as its owner for all purposes.
11. Unclaimed Money. If money for the payment of principal or
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interest on any Securities remains unclaimed for
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three years, the Trustee and the Paying Agent will pay the money back to the
Company at its request. After that, Holders may look only to the Company for
payment.
12. Discharge Prior to Redemption or Maturity. The Indenture will
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be discharged and canceled except for certain sections thereof upon payment of
all the Securities, or upon the irrevocable deposit with the Trustee of funds or
U.S. Government Obligations maturing on or before such payment date or
Redemption Date, sufficient to pay principal, premium, if any, and interest on
such payment or redemption.
13. Amendment and Waiver. Subject to certain exceptions, without
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notice to the Holders of the Securities, the Indenture or the Securities may be
amended with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding and any existing default or compliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities then outstanding. Without the consent of
or notice to any Securityholder, the Company may amend the Indenture or the
Securities to, among other things, provide for uncertificated Securities, to
establish another series of securities as permitted by the Indenture, to cure
any ambiguity, defect or inconsistency or make any other change that does not
adversely affect the rights of any Securityholder.
14. Successors. When a successor assumes all the obligations of its
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predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
15. Defaults and Remedies. If an Event of Default, as defined in the
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Indenture, occurs and is continuing, the Trustee or the Holders of a majority in
principal amount of Securities may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to
it, subject to the provisions of the TIA, before it enforces the Indenture or
the Securities. Subject to certain limitations, Holders of a majority in
principal amount of the Securities then outstanding may direct the Trustee in
its exercise of any trust or power with respect to the Securities. The Company
is required to file periodic reports with the Trustee as to the absence of any
Default or Event of Default.
16. Trustee Dealings with the Company. Xxxxxx Trust and Savings
---------------------------------
Bank, the Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not Trustee.
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17. No Recourse Against Others. No stockholder, director, officer or
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incorporator, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Securities.
18. Authentication. This Security shall not be valid until the
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Trustee or an authenticating agent appointed by the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations. Customary abbreviations may be used in the name
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of a Securityholder or an assignee, such as: TEN COM (=tenants in common), TEN
ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. IT ALSO WILL FURNISH THE TEXT OF
THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO: ASSISTED LIVING
CONCEPTS, INC., 0000 X.X. XXXXXXXXXX, XXXXX 000, XXXXXXXX, XXXXXX 00000,
ATTENTION: PRESIDENT.
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ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and have
your signature guaranteed:
For value received, I or we assign and transfer this Security to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
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..............................................................
..............................................................
..............................................................
..............................................................
(Print or type assignee's name, address and zip code)
and irrevocably appoint........................................
......................................................... agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
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Date:.........................................................
Your signature:...............................................
(Sign exactly as your name appears on the other
side of this Security)
Signature Guarantee:..........................................
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CONVERSION NOTICE
To convert this Security into shares of common stock of the Company, check the
box:
---
---
To convert only part of this Security, state the principal amount to be
converted (which must be a minimum of $1,000 or any multiple thereof):
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$
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If you want the Security certificate, if any, made out in another person's name,
fill in the form below:
(INSERT OTHER PERSON'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
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..............................................................
..............................................................
..............................................................
.............................................................
(Print or type other person's name, address and zip code)
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Date:.........................................................
Your Signature:...............................................
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed By: ________________________________________
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date first written
above.
ASSISTED LIVING CONCEPTS, INC.
By:___________________________
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By:____________________________
Authorized Signatory
