EXHIBIT 4.2
GLACIER WATER SERVICES, INC.
_____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES DUE __________, 2028
OFFICERS' CERTIFICATE AND COMPANY ORDER
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Pursuant to the Indenture dated as of __________, 1998 (the "Indenture"),
between Glacier Water Services, Inc., a Delaware corporation (the "Company") and
Wilmington Trust Company, as Debenture Trustee (the "Debenture Trustee") and
resolutions adopted by the Pricing Committee of the Company's Board of Directors
on _________, 1998; this Officers' Certificate is being delivered to the
Debenture Trustee to establish the terms of one series of securities (the
"Securities") in accordance with Section 3.1 of the Indenture, to establish the
form of the Securities of such series in accordance with Section 2.1 of the
Indenture, to request the authentication and delivery of the Securities of such
series pursuant to Section 3.3 of the Indenture and to comply with the
provisions of Section 1.2 of the Indenture. This Officers' Certificate shall be
treated for all purposes under the Indenture as a supplemental indenture
thereto.
All conditions precedent provided for in the Indenture relating to the
establishment of (i) a series of Securities and (ii) the form of Securities of
such series have been complied with.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
I. Establishment of Series of Securities pursuant to Section 3.1 of the
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Indenture.
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There are hereby established pursuant to Section 3.1 of the Indenture a
series of Securities which shall have the following terms:
A. The Securities of such series shall bear the title "_____% Junior
Subordinated Deferrable Interest Debentures Due ____________, 2028."
B. The aggregate principal amount of such series of Securities to be
issued pursuant to this Officers' Certificate and Company Order shall be limited
to the sum of (i) $67,010,300 (except for Securities authenticated and delivered
upon registration of, transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 of the
Indenture and except for any Securities which, pursuant to Section 3.3 of the
Indenture, are deemed never to have been authenticated and delivered
thereunder).
C. The date on which the principal of the Securities is due and
payable shall be ______________, 2028.
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D. The Securities shall bear interest at the rate of _____% per
annum (based upon a 360-day year of twelve 30-day months), compounded quarterly,
from and including the date of original issuance or from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, as the case may be, payable monthly in arrears on the 15th day of each
calendar month of each year (each, an "Interest Payment Date"), commencing
________, 1998, until the principal thereof is paid or made available for
payment. The Business Day next preceding an Interest Payment Date shall be the
"Regular Record Date" for the interest payable on such Interest Payment Date.
Accrued interest that is not paid on such applicable Interest Payment Date will
bear additional interest on the amount thereof (to the extent permitted by law)
at a rate per annum of ______% thereof compounded quarterly.
In addition, so long as no Event of Default with respect to the Securities
has occurred or is continuing, the Company has the right under the Indenture at
any time during the term of such Securities to defer the payment of interest at
any time or from time to time for a period not exceeding 60 consecutive monthly
periods with respect to each Extension Period, provided that no Extension Period
may extend beyond the Stated Maturity. At the end of such Extension Period, the
Company must pay all interest then accrued and unpaid (together with interest
thereon at the annual rate of _____%, compounded quarterly, to the extent
permitted by applicable law).
E. Principal of (and premium, if any) and interest on the Securities
will be payable, and, except as provided in Section 3.5 of the Indenture with
respect to a Global Security (as defined below), the transfer of the Securities
will be registrable and Securities (except as provided in paragraph (Q) hereof)
will be exchangeable for Securities bearing identical terms and provisions at
the corporate trust office of Wilmington Trust Company in the City of
Wilmington, Delaware.
F. The Securities will be redeemable in whole at any time and in
part from time to time, at the option of the Company at any time on or after
__________, 2003, at a redemption price equal to the accrued and unpaid interest
on the Securities so redeemed to the date fixed for redemption, plus 100% of the
principal amount thereof.
In addition, upon the occurrence of a Tax Event or an Investment Company
Event (as each such term is defined below) the Company may, at its option,
prepay the Securities in whole (but not in part) at any time within 90 days of
the occurrence of such Tax Event or Investment Company Event, at a redemption
price equal to the accrued and unpaid interest on the Securities so redeemed to
the date fixed for redemption, plus 100% of the principal amount thereof.
"Tax Event" means the receipt by the Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or
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regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities of the Trust, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date of such opinion, subject to
United States Federal income tax with respect to income received or accrued on
the Securities, (ii) interest payable by the Company on the Securities is not,
or within 90 days of the date of such opinion, will not be, deductible by the
Company, in whole or in part, for United States Federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Investment Company Event" means, in respect of the Trust, the receipt by
the Trust of an Opinion of Counsel, rendered by a law firm experienced in such
matters, to the extent that, as a result of a change in law or regulation or a
change in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, the Trust is or will
be considered an "investment company" that is required to be registered under
the 1940 Act, which change becomes effective on or after the date of original
issuance of the Preferred Securities of the Trust.
G. The Company shall not be obligated to redeem or purchase any
Securities pursuant to any sinking fund or analogous provisions or at the option
of the Holder.
H. The Securities will be issued only in fully registered form and
the authorized minimum denomination of the Securities shall be $25.00 and any
integral multiple of $25.00 in excess thereof.
I. The Securities shall be denominated, and payments of principal of
(and premium, if any) and interest on the Securities of such series will be
made, in United States dollars.
J. The Securities shall be subject to the Events of Default
specified in Section 5.1, paragraphs (1) through (5), of the Indenture.
K. The portion of the principal amount of the Securities which shall
be payable upon declaration of acceleration of maturity thereof shall not be
other than the principal amount thereof, provided, that, if such acceleration is
declared by the Holders of at least 25% in aggregate liquidation amount of the
Preferred Securities then outstanding, then, upon such declaration of
acceleration, the Securities which shall be payable shall be the principal
amount thereof plus accrued interest (including any Additional Interest).
L. The Securities will be issued in fully registered form, without
coupons. The Securities will not be issued in bearer form.
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M. The amount of payments of principal of and any premium or
interest on the Securities will not be determined with reference to an index.
N. The Securities shall not be issued in the form of a temporary
Global Security (as defined below).
O. The Securities will initially be in certificated form registered
in the name of the name of Wilmington Trust Company as Property Trustee for the
Trust (the "Certificated Securities"). The Securities may, in the sole
discretion of the Company, be deposited with, and on behalf of, The Depository
Trust Company, New York, New York, as Depositary, and will be represented by a
global security (a "Global Security") registered in the name of a nominee of the
Depositary. If and so long as the Depositary or its nominee is the registered
holder of any Global Security, the Depositary or its nominee, as the case may
be, will be considered the sole Holder of the Securities of such series
represented by such Global Security for all purposes under the Indenture and the
Securities. The Certificated Securities or the Global Securities, as the case
may be, shall bear no legends.
P. The Trustee shall be Paying Agent.
Q. The Securities will not be convertible into any other securities
or property of the Company. The Securities of any series may not be exchanged
for Securities of any other series.
R. The Trust Agreement, the Amended and Restated Trust Agreement and
the Guarantee Agreement are in the forms attached hereto as Exhibits A, B and C
respectively.
S. The Securities are subordinate and subject in right of payment to
the prior payment in full of all amounts then due and payable in respect of all
Senior Debt and Subordinated Debt, as provided in the Indenture.
T. The Securities shall have additional terms, which terms shall not
be inconsistent with the provisions of the Indenture.
II. Establishment of Forms of Securities Pursuant to Section 2.1 of
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Indenture.
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It is hereby established pursuant to Section 2.1 of the Indenture that the
Securities shall be substantially in the form attached as Exhibit D hereto.
III. Order for the Authentication and Delivery of Securities Pursuant to
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Section 3.3 of the Indenture.
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It is hereby ordered pursuant to Section 3.3 of the Indenture that the
Trustee authenticate, in the manner provided by the Indenture, Securities in the
aggregate principal amount of
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$67,010,300 registered in the name of Wilmington Trust Company, as Property
Trustee, which Securities have been heretofore duly executed by the proper
officers of the Company and delivered to you as provided in the Indenture, and
to deliver said authenticated Securities to Wilmington Trust Company or its
custodian on or before 9:30 a.m., Los Angeles time, on __________, 1998.
IV. Other Matters.
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Attached as Exhibit E hereto are true and correct copies of resolutions
adopted by the Pricing Committee of the Board of Directors of the Company at a
meeting on _________, 1998. Attached as Exhibit F hereto are true and correct
copies of resolutions adopted by the Board of Directors of the Company at a
meeting on November ___, 1997, authorizing the issuance of the Securities. Such
resolutions have not been further amended, modified or rescinded and remain in
full force and effect; and such resolutions (together with this Officers'
Certificate) are the only resolutions or other action adopted by the Company's
Board of Directors or any committee thereof or by any Authorized Officers
relating to the offering and sale of the Securities.
The undersigned have read the pertinent sections of the Indenture including
the related definitions contained therein. The undersigned have examined the
resolutions adopted by the Board of Directors and the Pricing Committee of the
Board of Directors of the Company. In the opinion of the undersigned, the
undersigned have made such examination or investigation as is necessary to
enable the undersigned to express an informed opinion as to whether or not the
conditions precedent to the establishment of (i) a series of Securities, (ii)
the forms of such Securities and (iii) authentication of such series of
Securities, contained in the Indenture have been complied with. In the opinion
of the undersigned, such conditions have been complied with.
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IN WITNESS WHEREOF, the undersigned have executed this Certificate this
___th day of ________ 1998.
Glacier Water Services, Inc.
By: _______________________________
Name: Xxxxx X. Xxxxxx
Title: President and Chief
Operation Officer
By ________________________________
Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
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