Exhibit 4.15
DECLARATION OF TRUST
OF
IM CAPITAL TRUST I
THIS DECLARATION OF TRUST, dated as of December 10, 2001 (this
"Declaration of Trust"), is made by and among Iron Mountain Incorporated, a
Pennsylvania corporation, as sponsor (the "Sponsor"), The Bank of New York
(Delaware), a Delaware banking corporation, as trustee (the "Delaware Trustee"),
The Bank of New York, a New York banking corporation, as trustee (the "Property
Trustee"), and John P. Lawrence, as trustee (the "Regular Trustee" and, together
with the Delaware Trustee and the Property Trustee, the "Trustees"). The Sponsor
and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "IM Capital Trust I" (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trust hereby acknowledges receipt of such amount in
trust from the Sponsor, which amount shall constitute the initial trust estate.
The Trustees hereby declare that they will hold the trust estate in trust for
the Sponsor. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust, satisfactory to each such party and substantially in the
form to be included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the trust preferred securities of the Trust (the
"Preferred Securities") and the trust common securities of the Trust referred to
therein. Prior to the execution and delivery of such amended and restated
Declaration of Trust, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
4. The Sponsor, as the sponsor of the Trust, is hereby authorized, in
its discretion, (i) to prepare and file with the Securities and Exchange
Commission (the "Commission") and to execute, in each case on behalf of the
Trust, (a) the Registration Statement on Form S-3 or other appropriate form (the
"1933 Act Registration Statement"), including the prospectus and the exhibits
included therein, any pre-effective or post-effective amendments thereto and any
registration statements filed subsequent thereto under Rule 462(b) promulgated
under the Securities Act of 1933, as amended (the "1933 Act"), relating to the
registration under the 1933 Act of the Preferred Securities and certain other
securities, (b) any preliminary prospectus or prospectus or supplement thereto
relating to the Preferred Securities required to be filed pursuant to the 1933
Act, and (c) a Registration Statement on Form 8-A or other appropriate form (the
"1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the Preferred
Securities under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and such other documents, forms or filings as may be required by the 1933
Act, the 1934 Act, or the Trust Indenture
Act of 1939, as amended, in each case relating to the Preferred Securities; (ii)
to prepare and file with the New York Stock Exchange or other exchange (each, an
"Exchange") or the National Association of Securities Dealers ("NASD") and
execute on behalf of the Trust a listing application or applications and all
other applications, statements, certificates, agreements and other instruments
as shall be necessary or desirable to cause the Preferred Securities to be
listed on any such Exchange or the NASD's Nasdaq National Market; (iii) to
prepare, file and execute on behalf of the Trust such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents as the Sponsor, on behalf of the Trust,
may deem necessary or desirable to register, or establish the exemption from
registration of, the Preferred Securities under the securities or "Blue Sky"
laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem
necessary or desirable; (iv) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Preferred Securities;
and (v) to negotiate the terms of, and execute, deliver and perform on behalf of
the Trust, one or more underwriting agreements with one or more underwriters,
purchase agreements, dealer manager agreements, escrow agreements and other
documents and agreements, in each case relating to the offering of the Preferred
Securities as the Sponsor, on behalf of the Trust, may deem necessary or
desirable. In the event that any filing referred to in clauses (i), (ii) and
(iii) above is required by the rules and regulations of the Commission, any
Exchange, the NASD or state securities or "Blue Sky" laws, to be executed on
behalf of the Trust by one or more of the Trustees, any of the Regular Trustees,
in their capacity as trustees of the Trust, are hereby authorized to join in any
such filing and to execute on behalf of the Trust any and all of the foregoing,
it being understood that the Regular Trustees, in their capacity as trustees of
the Trust, shall not be required to join in any such filing or execute on behalf
of the Trust any such document unless required by the rules and regulations of
the Commission, any Exchange, the NASD or state securities or "Blue Sky" laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of trustees of the Trust initially shall be three (3) and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Sponsor is entitled to appoint or
remove without cause any trustee of the Trust at any time. Any trustee of the
Trust may resign upon thirty (30) days' prior notice to the Sponsor provided,
however, such notice shall not be required if it is waived by the Sponsor.
7. The Delaware Trustee, in its capacity as trustee of the Trust, shall
not have any of the powers or duties of the Trustees set forth herein (except as
may be required under the Business Trust Act) and shall be a trustee of the
Trust for the sole and limited purpose of fulfilling the requirements of Section
3807 of the Business Trust Act.
8. The Sponsor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts), and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against any and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such
Indemnified Persons with respect to the performance of this Declaration of
Trust, the creation, operation or termination of the Trust or the transactions
contemplated hereby; provided, however, that the Sponsor shall not be required
to indemnify any Indemnified Person for any Expenses which are a result of the
willful misconduct, bad faith or gross negligence of such Indemnified Person.
9. The Trust may be dissolved and terminated before the issuance of the
Preferred Securities at the election of the Sponsor.
10. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
IRON MOUNTAIN INCORPORATED,
as Sponsor
By: /s/ John P. Lawrence
Name: John P. Lawrence
Title: Vice President and Treasurer
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ William T. Lewis
Name: William T. Lewis
Title: Senior Vice President
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Kisha A. Holder
Name: Kisha A. Holder
Title: Assistant Treasurer
/s/ John P. Lawrence
JOHN P. LAWRENCE,
as Regular Trustee