EXHIBIT 4.16
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FORM OF
AMENDED AND RESTATED
DECLARATION OF TRUST
OF IM CAPITAL TRUST I
DATED AS OF [ , ]
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Certain Sections of this Declaration relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Declaration
Act Section Section
ss.310 (a)(1)..........................................................6.2, 6.3
(a)(2)...............................................................6.3
(a)(3)....................................................Not Applicable
(a)(4) ...................................................Not Applicable
(a)(5)...............................................................6.3
(b)..................................................................6.3
(c).......................................................Not Applicable
ss.311 (a)..................................................................2.2
(b)..................................................................2.2
(c).......................................................Not Applicable
ss.312......................................................................2.2
ss.313 (a)..................................................................2.3
(b)..................................................................2.3
(c)..................................................................2.3
(d)..................................................................2.3
ss.314 (a)..................................................................2.4
(b)..................................................................2.4
(c)..................................................................2.4
(d)..................................................................2.4
(e)..................................................................1.1
ss.315 (a)..................................................................9.2
(b)..................................................................2.7
(c)..................................................................3.9
(d)..................................................................3.9
(e).......................................................Not Applicable
ss.316 (a).............................................................2.6, 7.5
(b).................................................................11.1
(c).................................................................11.2
ss.317 (a)............................................................3.8, 3.16
(b)..................................................................3.7
ss.318 (a)..................................................................2.1
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Declaration.
Table of Contents
Page
ARTICLE 1 INTERPRETATION AND DEFINITIONS..................................................................1
Section 1.1 Interpretation and Definitions.........................................................1
ARTICLE 2 TRUST INDENTURE ACT.............................................................................9
Section 2.1 Trust Indenture Act; Application.......................................................9
Section 2.2 Lists of Holders of the Securities....................................................10
Section 2.3 Reports by the Property Trustee.......................................................10
Section 2.4 Periodic Reports to the Property Trustee..............................................10
Section 2.5 Evidence of Compliance with Conditions Precedent......................................10
Section 2.6 Trust Enforcement Events; Waiver......................................................11
Section 2.7 Trust Enforcement Event; Notice.......................................................12
ARTICLE 3 ORGANIZATION...................................................................................12
Section 3.1 Name and Organization.................................................................12
Section 3.2 Office................................................................................13
Section 3.3 Purpose...............................................................................13
Section 3.4 Authority.............................................................................13
Section 3.5 Title to Property of the Trust........................................................13
Section 3.6 Powers and Duties of the Regular Trustees.............................................13
Section 3.7 Prohibition of Actions by the Trust and the Trustees..................................17
Section 3.8 Powers and Duties of the Property Trustee.............................................18
Section 3.9 Certain Duties and Responsibilities of the Property Trustee...........................20
Section 3.10 Certain Rights of Property Trustee....................................................21
Section 3.11 Delaware Trustee......................................................................23
Section 3.12 Execution of Documents................................................................23
Section 3.13 Not Responsible for Recitals or Issuance of Securities................................23
Section 3.14 Duration of Trust.....................................................................24
Section 3.15 Mergers...............................................................................24
Section 3.16 Property Trustee May File Proofs of Claim.............................................25
ARTICLE 4 THE SPONSOR....................................................................................26
Section 4.1 Responsibilities of the Sponsor.......................................................26
Section 4.2 Indemnification and Expenses of the Trustees..........................................27
Section 4.3 Guarantee of Payment of Trust Obligations.............................................27
ARTICLE 5 THE HOLDER OF THE COMMON SECURITIES............................................................28
Section 5.1 Notes Issuer's Acquisition of the Common Securities...................................28
Section 5.2 Covenants of the Notes Issuer.........................................................28
Section 5.3 Holder of the Common Securities.......................................................28
ARTICLE 6 THE TRUSTEES...................................................................................29
Section 6.1 Number of Trustees....................................................................29
Section 6.2 Delaware Trustee; Eligibility.........................................................29
Section 6.3 Property Trustee; Eligibility.........................................................29
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Table of Contents
(Continued)
Page
Section 6.4 Qualifications of the Regular Trustees Generally......................................30
Section 6.5 Initial Trustees......................................................................30
Section 6.6 Appointment, Removal and Resignation of the Trustees..................................31
Section 6.7 Vacancies among Trustees..............................................................32
Section 6.8 Effect of Vacancies...................................................................32
Section 6.9 Meetings..............................................................................32
Section 6.10 Delegation of Power by the Regular Trustees...........................................33
Section 6.11 Merger, Consolidation, Conversion or Succession to Business...........................33
ARTICLE 7 TERMS OF THE SECURITIES........................................................................33
Section 7.1 General Provisions Regarding the Securities...........................................33
Section 7.2 Distributions.........................................................................36
Section 7.3 Redemption of Securities..............................................................38
Section 7.4 Redemption Procedures.................................................................38
Section 7.5 Voting Rights of the Preferred Securities.............................................39
Section 7.6 Voting Rights of the Common Securities................................................41
Section 7.7 Paying Agent..........................................................................42
Section 7.8 Listing...............................................................................43
Section 7.9 Transfer of the Securities............................................................43
Section 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.....................................44
Section 7.11 Deemed Holders........................................................................44
Section 7.12 Global Securities.....................................................................44
Section 7.13 Authorized Denominations..............................................................46
Section 7.14 [RESERVED]............................................................................46
ARTICLE 8 DISSOLUTION AND TERMINATION OF THE TRUST.......................................................46
Section 8.1 Dissolution and Termination of the Trust..............................................46
Section 8.2 Liquidation Distribution upon Dissolution of the Trust................................47
ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF THE SECURITIES, THE DELAWARE TRUSTEE AND OTHERS..........48
Section 9.1 Liability.............................................................................48
Section 9.2 Exculpation...........................................................................49
Section 9.3 Fiduciary Duty........................................................................49
Section 9.4 Indemnification.......................................................................50
Section 9.5 Outside Businesses....................................................................51
ARTICLE 10 ACCOUNTING.....................................................................................51
Section 10.1 Fiscal Year...........................................................................51
Section 10.2 Certain Accounting Matters............................................................51
Section 10.3 Banking...............................................................................52
Section 10.4 Withholding...........................................................................52
ARTICLE 11 AMENDMENTS AND MEETINGS........................................................................53
Section 11.1 Amendments............................................................................53
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Table of Contents
(Continued)
Page
Section 11.2 Meetings of the Holders of the Securities; Action by Written Consent..................55
ARTICLE 12 REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE...............................56
Section 12.1 Representations and Warranties of the Property Trustee................................56
Section 12.2 Representations and Warranties of the Delaware Trustee................................57
ARTICLE 13 MISCELLANEOUS..................................................................................57
Section 13.1 Notices...............................................................................57
Section 13.2 Governing Law.........................................................................58
Section 13.3 Intention of the Parties..............................................................58
Section 13.4 Headings..............................................................................59
Section 13.5 Successors and Assigns................................................................59
Section 13.6 Partial Enforceability................................................................59
Section 13.7 Counterparts..........................................................................59
Exhibit A. Form of Preferred Securities Certificate
Exhibit B. Form of Common Securities Certificate
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FORM OF AMENDED AND RESTATED DECLARATION OF TRUST 1
This Amended and Restated Declaration of Trust of IM Capital Trust I
("Declaration"), dated as of [ , ], by and among Iron Mountain Incorporated, a
Pennsylvania corporation, as Sponsor, [John P. Lawrence][, and ], as the initial
Regular Trustees, [The Bank of New York], as the initial Property Trustee, [The
Bank of New York (Delaware)], as the initial Delaware Trustee, as Trustees, and
the Holders, from time to time, of the Securities representing undivided
beneficial ownership interests in the assets of IM Capital Trust I to be issued
pursuant to this Declaration.
WHEREAS, certain of the Trustees and the Sponsor established IM Capital
Trust I (the "Trust"), a business trust under the Business Trust Act, pursuant
to a Declaration of Trust dated as of December ___, 2001, (the "Original
Declaration") and a Certificate of Trust (the "Certificate of Trust") filed with
the Secretary of State of the State of Delaware on December ___, 2001; and
WHEREAS, the exclusive purposes and functions of the Trust shall be to
issue the Securities (as defined herein) in exchange for the Notes issued by the
Notes Issuer (each as defined herein) and except as otherwise limited herein, to
engage in only those other activities necessary or incidental thereto; and
WHEREAS, the parties hereto, by this Declaration, amend and restate
each and every term and provision of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial ownership interests in the assets of the Trust
issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation and Definitions. Unless the context otherwise
requires:
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1 Certain additional provisions and defined terms to be added if the
Trust were to issue equity units comprised of (A) a purchase contract under
which (i) the holder of the unit agrees to purchase from Iron Mountain
Incorporated and Iron Mountain Incorporated agrees to sell to the holder a
certain number of shares of its common stock pursuant to a purchase contract
agreement and (ii) Iron Mountain Incorporated agrees to pay such holder contract
adjustment payments and (B) either beneficial ownership of (i) a Preferred
Security or Note, or in certain circumstances following the occurrence of a Tax
Event, the appropriate applicable ownership interest of the treasury portfolio
or (ii) following any remarketing of the Preferred Securities pursuant to a
purchase contract agreement and a remarketing agreement, the appropriate
Treasury Consideration (as defined in the purchase contract agreement).
(a) capitalized terms used in this Declaration but not defined in the
preamble above shall have the meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration shall have the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" shall be
to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections, Recitals
and Exhibits shall be to Articles and Sections of, or Recitals and Exhibits to,
this Declaration unless otherwise specified;
(e) unless otherwise defined in this Declaration, a term defined in the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), shall have
the same meaning when used in this Declaration;
(f) a reference to the singular shall include the plural and vice
versa, and a reference to any masculine form of a term shall include the
feminine or neuter form of a term, as applicable; and
(g) the following terms shall have the following meanings:
"Affiliate" of any specified Person shall mean any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person shall mean the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" shall have meanings correlative to
the foregoing.
"Authorized Officer" of a Person shall mean any Person that is
authorized to bind such Person.
"Beneficial Owner" shall mean, with respect to a Global Security, a
Person who is the beneficial owner of such book-entry interest as reflected on
the books of the Depositary or on the books of a Person maintaining an account
with such Depositary (directly as a Depositary Participant or as an indirect
participant, in each case in accordance with the rules of such Depositary).
"Beneficiaries" shall have the meaning set forth in Section 4.3.
"Business Day" shall mean any day other than a Saturday, Sunday or any
other day on which banking institutions in the [Commonwealth of Massachusetts]
are authorized or obligated by law or executive order to be closed.
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"Business Trust Act" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Certificate" shall mean a Common Security Certificate or a Preferred
Security Certificate.
"Clearing Agency" shall mean an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depository
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Closing Date" shall mean the date on which the Preferred Securities
are issued and sold.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation. A reference to a specific section of
the Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Securities" shall have the meaning specified in Section 7.1(a).
"Common Security Certificate" shall mean a definitive certificate in
fully registered form representing a Common Security, substantially in the form
of Exhibit B hereto.
"Common Shares" shall mean the shares of common shares, par value $.01,
of the Company.
"Company" shall mean Iron Mountain Incorporated, a Pennsylvania
corporation, the Sponsor, Notes Issuer, and the parent of the Trust.
"Compounded Distributions" shall have the meaning specified in Section
7.2(b).
"Corporate Trust Office" shall mean the principal office of the
Property Trustee at which, at any particular time, its corporate trust business
shall be administered, which office at the date hereof is located at [ ], Attn:
[ ] or such other address as the Property Trustee may designate.
"Covered Person" shall mean (A) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Sponsor, (ii) the
Sponsor's Affiliates, (iii) the Trust or (iv) the Trust's Affiliates and (B) any
Holder.
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"Delaware Trustee" shall mean the Trustee meeting the eligibility
requirements set forth in Section 6.2.
"Depositary" shall mean, with respect to Securities issuable in whole
or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as depositary for
such Securities, and initially shall be The Depository Trust Company.
"Depositary Agreement" shall mean the agreement among the Trust, the
Property Trustee and the Depositary dated as of the Closing Date, as the same
may be amended or supplemented from time to time.
"Depositary Participant" shall mean a member of, or participant in, the
Depositary.
"Direct Action" shall have the meaning specified in Section 3.8(e).
"Distribution" shall mean a distribution payable to the Holders in
accordance with Section 7.2.
"Exchange Act" shall mean the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations of the Commission promulgated thereunder.
"First Delivery Date" shall have the meaning specified in the
Underwriting Agreement.
"Fiscal Year" shall have the meaning specified in Section 10.1.
"Foreign Person" shall mean any Person that is not a United States
Person.
"Global Certificate" shall have the meaning specified in Section
7.1(h).
"Global Security" shall mean a global Preferred Security Certificate
registered in the name of a Depositary or its nominee.
"Guarantee" shall mean the guarantee of the Company for the benefit of
the beneficial holders of the Preferred Securities issued pursuant to the
Guarantee Agreement, dated as of [ , ], of the Sponsor, as may be amended from
time to time, in respect of the Securities.
"Holder" shall mean any holder of Preferred Securities or Common
Securities, as registered on the books and records of the Trust, such holder
being a beneficial owner within the meaning of the Business Trust Act, provided
that in determining whether the Holders of the requisite liquidation amount of
Preferred Securities have voted on any matter provided for in this Declaration,
then for the purpose of such determination only (and not for any other purpose
hereunder), if the Preferred Securities remain in the form of one or more Global
Securities and if the Depositary that is the holder of such Global Securities
has sent an omnibus proxy to the
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Depositary Participants to whose accounts the Preferred Securities are credited
on the record date, the term "Holders" shall mean such Depositary Participants
acting at the direction of the Beneficial Owners.
"Indemnified Person" shall mean any Trustee, any Affiliate of any
Trustee, any Paying Agent, any officers, directors, shareholders, members,
partners, employees, representatives or agents of any Trustee, Affiliate of a
Trustee or Paying Agent, or any officer, employee or agent of the Trust or any
of its Affiliates.
"Indenture" shall mean the indenture dated as of [ , ], as supplemented
by a supplemental indenture relating to the Notes, dated as of [ , ], between
the Notes Issuer and the Indenture Trustee (including the provisions of the
Trust Indenture Act that are deemed incorporated therein), pursuant to which the
Notes are to be issued.
"Indenture Event of Default" shall have the meaning given to the term
"Event of Default" in the Indenture.
"Indenture Trustee" shall mean The Bank of New York, a New York banking
corporation , in its capacity as trustee under the Indenture, or any successor
thereto.
"Investment Company" shall mean an investment company as defined in the
Investment Company Act.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended from time to time, or any successor legislation and the rules and
regulations of the Commission promulgated thereunder.
"Legal Action" shall have the meaning specified in Section 3.6(g).
"List of Holders" shall have the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" shall mean, except as provided by the
Trust Indenture Act, Holders of outstanding Securities, voting together as a
single class, or, as the context may require, Holders of outstanding Preferred
Securities or Holders of the outstanding Common Securities, voting separately as
a class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined) of all outstanding Securities,
Preferred Securities or Common Securities, as the case may be.
"New York Stock Exchange" shall mean the New York Stock Exchange, Inc.
or any successor thereto.
"Notes" shall mean the series of [name of series of Notes issued
pursuant to Indenture], due [ ] to be issued by the Notes Issuer under the
Indenture and exchanged for the Securities pursuant to Section 3.6 and held by
the Property Trustee.
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"Notes Issuer" shall mean the Company or any successor entity in a
merger, consolidation, conversion, amalgamation or replacement by or conveyance,
transfer or lease of its properties substantially as an entirety, in its
capacity as issuer of the Notes under the Indenture.
"Obligations" shall have the meaning set forth in Section 4.3.
"Officers' Certificate" shall mean, when delivered by the Trust, a
certificate signed by a majority of the Regular Trustees of the Trust and, when
delivered by the Sponsor, a certificate signed by (A) the Chairman of the Board,
President or a Vice President of the Sponsor and (B) the Treasurer, Assistant
Treasurer or Secretary of the Sponsor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Declaration shall include, where applicable:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(ii) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(iii) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Original Declaration" shall have the meaning specified in the
Recitals.
"Over-allotment Option" shall mean the over-allotment option contained
in the Underwriting Agreement.
"Paying Agent" shall have the meaning specified in Section 3.8(h).
"Payment Date" shall mean [ ], of each year, commencing [ ].
"Payment Amount" shall have the meaning specified in Section 7.2(c).
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" shall have the meaning specified in Section
7.1(a).
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"Preferred Security Certificate" shall mean a definitive certificate in
fully registered form representing a Preferred Security, substantially in the
form of Exhibit A.
"Primary Treasury Dealer" shall mean a primary U.S. government
securities dealer in New York City.
"Property Account" shall mean a segregated non-interest bearing trust
account maintained with a banking institution, the rating on whose long-term
unsecured indebtedness is at least equal to the rating assigned to the Preferred
Securities by a "nationally recognized statistical rating organization" within
the meaning of Rule 436(g)(2) under the Securities Act.
"Property Trustee" shall mean the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"Pro Rata" shall mean pro rata to each Holder according to the
aggregate liquidation amount of the Securities held by such Holder in relation
to the aggregate liquidation amount of all Securities outstanding.
"Quorum" shall mean a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Quotation Agent" shall mean any Primary Treasury Dealer selected by
the Sponsor to act as the quotation agent in connection with a Tax Event
Redemption.
"Redemption/Distribution Notice" shall have the meaning specified in
Section 7.4(a).
"Redemption Price" shall mean the amount for which the Securities will
be redeemed pursuant to the Indenture, which amount will equal the lesser of (i)
the redemption price paid by the Notes Issuer to repay or redeem, in whole but
not in part, the Notes held by the Trust plus an amount equal to accumulated and
unpaid Distributions on such Securities through the date of their redemption or
the Tax Event Redemption Date in the case of a Tax Event Redemption or (ii) the
amount received by the Trust in respect of the Notes so repaid or redeemed.
"Regular Trustee" shall mean any trustee of the Trust other than the
Property Trustee and the Delaware Trustee.
"Responsible Officer" shall mean, with respect to the Property Trustee,
any officer within the corporate trust department of the Property Trustee,
including any vice president, assistant vice president, assistant treasurer,
trust officer or any other officer of the Property Trustee who customarily
performs functions similar to those performed by persons who at the time shall
be officers, or who shall have direct responsibility for the administration of
this Declaration and also shall mean, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred due to that
officer's knowledge of and familiarity with the particular subject.
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"Rule 3a-5" shall mean Rule 3a-5 under the Investment Company Act or
any successor rule thereunder.
"Second Delivery Date" shall have the meaning specified in the
Underwriting Agreement.
"Securities" shall mean the Common Securities and the Preferred
Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time, or any successor legislation and the rules and regulations of the
Commission promulgated thereunder.
"Security Registrar" shall have the meaning specified in Section
7.9(a)(iii).
"Sponsor" shall mean the Company or any successor entity in a merger,
consolidation, conversion, amalgamation or replacement by or conveyance,
transfer or lease of its properties substantially as an entirety, in its
capacity as sponsor of the Trust.
"Successor Delaware Trustee" shall have the meaning specified in
Section 6.6(b).
"Successor Entity" shall have the meaning specified in Section
3.15(b)(i).
"Successor Property Trustee" shall have the meaning specified in
Section 6.6(b).
"Successor Security" shall have the meaning specified in Section
3.15(b)(i)(B).
"Supermajority" shall have the meaning specified in Section 2.6(b)(ii).
"Tax Event" shall mean the receipt by the Sponsor and the Trust of an
opinion of counsel, rendered by a law firm having a recognized national tax
practice, to the effect that, as a result of any amendment to, change in or
announced proposed 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 decision, pronouncement,
judicial decision or action interpreting or applying such laws or regulations,
which amendment or change is effective or which proposed change, pronouncement,
action or decision is announced on or after the Closing Date, there is more than
an insubstantial increase in the risk that (i) the Trust is, or within 90 days
of the date of such opinion will be, subject to United States federal income tax
with respect to income received or accrued on the Notes, (ii) interest (or
original issue discount) payable by the Notes Issuer on the Notes is not, or
within 90 days of the date of such opinion will not be, deductible by the Notes
Issuer, in whole or in part, for United States federal income tax purposes, or
(iii) the Trust is, or within 90 days of the date of such opinion will be,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Tax Event Redemption" shall mean that a Tax Event has occurred and is
continuing and the Notes have been called for redemption pursuant to the
Indenture.
"Tax Event Redemption Date" shall mean the date specified by the Notes
Issuer on which the Notes are redeemed pursuant to a Tax Event Redemption
pursuant to the Indenture.
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"10% in Liquidation Amount" shall mean, except as provided by the Trust
Indenture Act, Holder(s) of outstanding Securities, voting together as a single
class, or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities, voting separately as a
class, who are the record owners of 10% or more of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined) of all outstanding Securities
of the relevant class.
"Treasury Regulations" shall mean the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Department of the Treasury, as such regulations may be amended from time
to time (including corresponding provisions of succeeding regulations).
"Trust" shall have the meaning specified in the Recitals hereto.
"Trust Enforcement Event" in respect of the Securities shall mean that
an Indenture Event of Default has occurred and is continuing in respect of the
Notes.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation and the rules and
regulations of the Commission promulgated thereunder.
"Trustee" or "Trustees" shall mean each Person that has signed this
Declaration as a trustee, so long as such Person continues in office in
accordance with the terms hereof, and all other Persons that from time to time
may be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"United States Person" shall mean a United States person for United
States federal income tax purposes.
"Underwriters" shall have the meaning set forth in the Underwriting
Agreement.
"Underwriting Agreement" means the underwriting agreement dated as of [
, ] between the Company and the Underwriters named therein.
ARTICLE 2
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and, to the
extent applicable, shall be governed by such provisions.
(b) The Property Trustee shall be the only Trustee that is a trustee
for the purposes of the Trust Indenture Act.
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(c) If and to the extent that any provision of this Declaration
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties of the Trust Indenture Act shall
control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes and shall not affect the nature of the Securities as
equity securities representing undivided beneficial ownership interests in the
assets of the Trust.
Section 2.2 Lists of Holders of the Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee with a list of the names and addresses of the
Holders of the Securities in such form as the Property Trustee may reasonably
require ("List of Holders") (i) as of the record date relating to the payment of
any Distribution, at least [one] Business Day prior to the date for payment of
such Distribution, except while the Preferred Securities are represented by one
or more Global Securities, and (ii) at any other time, within 30 days of receipt
by the Trust of a written request from the Property Trustee for a List of
Holders as of a date no more than 15 days before such List of Holders is
provided to the Property Trustee. If at any time the List of Holders does not
differ from the most recent List of Holders provided to the Property Trustee by
the Sponsor and the Regular Trustees on behalf of the Trust, then neither the
Sponsor nor the Regular Trustees shall be obligated to deliver such List of
Holders. The Property Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders provided
to it or that it receives in its capacity as Paying Agent (if acting in such
capacity); provided that the Property Trustee may destroy any List of Holders
previously provided to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312 of the
Trust Indenture Act.
Section 2.3 Reports by the Property Trustee. Within 60 days after [ ] of each
year (commencing with the year of the first anniversary of the issuance of the
Preferred Securities), the Property Trustee shall provide to the Holders of the
Preferred Securities such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Property Trustee also shall comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to the Property Trustee. Each of the Sponsor and
the Regular Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act. Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Sponsor's and the Regular Trustees' compliance with any
of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
Section 2.5 Evidence of Compliance with Conditions Precedent. Each of the
Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Property Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Declaration that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any
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certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
Section 2.6 Trust Enforcement Events; Waiver.
(a) An Indenture Event of Default constitutes an event of default under
this Declaration with respect to the Securities.
(b) The Holders of a Majority in Liquidation Amount of the Preferred
Securities may waive, by vote or written consent, on behalf of the Holders of
all of the Preferred Securities, any past Trust Enforcement Event in respect of
the Preferred Securities and its consequences, provided that if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, then the Trust
Enforcement Event under this Declaration also shall not be waivable;
and
(ii) requires the vote or consent of the holders of greater
than a majority in principal amount of the Notes (a "Supermajority") to
be waived under the Indenture, the related Trust Enforcement Event
under this Declaration only may be waived by the vote or written
consent of the Holders of at least the same Supermajority in aggregate
stated liquidation amount of the Preferred Securities outstanding.
The foregoing provisions of this Section 2.6(b) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act, and Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
Trust Enforcement Event in respect of the Preferred Securities shall be deemed
to have been cured for every purpose of this Declaration and the Preferred
Securities, but no such waiver shall extend to any subsequent or other Trust
Enforcement Event with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred Securities of a
Trust Enforcement Event with respect to the Preferred Securities also shall be
deemed to constitute a waiver by the Holders of the Common Securities of any
such Trust Enforcement Event with respect to the Common Securities for all
purposes of this Declaration without any further act, vote or consent of the
Holders of the Common Securities.
(c) The Holders of a Majority in Liquidation Amount of the Common
Securities may waive, by vote or written consent, any past Trust Enforcement
Event in respect of the Common Securities and its consequences, provided that if
the underlying Indenture Event of Default is not waivable under the Indenture,
then, except where the Holders of the Common Securities are deemed to have
waived such Trust Enforcement as provided below in this Section 2.6(c), the
related Trust Enforcement Event under this Declaration also shall not be
waivable. The Holders of the Common Securities shall be deemed to have waived
any and all Trust Enforcement Events in respect of the Common Securities and the
consequences thereof until all Trust Enforcement Events in respect of the
Preferred Securities shall have been cured, waived or otherwise eliminated.
Until all Trust Enforcement Events in respect of the Preferred Securities shall
have been so cured, waived or otherwise eliminated, the Property Trustee shall
be deemed to be acting solely on behalf of the Holders of the Preferred
Securities, and only the Holders of the Preferred Securities shall have the
right to direct the Property Trustee. The foregoing provisions of this Section
2.6(c) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act, and Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture
Act are hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing
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provisions of this Section 2.6(c), upon such cure, waiver or other elimination,
any Trust Enforcement Event in respect of the Common Securities shall be deemed
to have been cured for every purpose of this Declaration and the Common
Securities, but no such waiver shall extend to any subsequent or other Trust
Enforcement Event with respect to the Common Securities or impair any right
consequent thereon.
(d) A waiver of an Indenture Event of Default under the Indenture by
the Property Trustee at the direction of the Holders of the Preferred Securities
shall constitute a waiver of the corresponding Trust Enforcement Event under
this Declaration. Any such waiver by the Holders of the Preferred Securities
also shall be deemed to constitute a waiver by the Holders of the Common
Securities of any such Trust Enforcement Event with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holders of the Common Securities. The foregoing provisions of
this Section 2.6(d) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act, and Section 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act.
Section 2.7 Trust Enforcement Event; Notice.
(a) Within 90 days after the occurrence of a Trust Enforcement Event
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit by mail, first class postage prepaid, to the Holders of
the Securities, notice of such Trust Enforcement Event, unless such Trust
Enforcement Event has been cured before the giving of such notice, which notice
shall specify the Indenture Event of Default giving rise to the Trust
Enforcement Event and that the Indenture Event of Default also constitutes an
event of default under this Declaration; provided that, except for a default in
the payment of principal of (or premium, if any) or interest on any of the
Notes, the Property Trustee shall be protected in withholding such notice if and
so long as a Responsible Officer of the Property Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
Trust Enforcement Event except for any default as to which the Property Trustee
shall have received written notice or of which a Responsible Officer of the
Property Trustee charged with the administration of this Declaration shall have
actual knowledge.
ARTICLE 3
ORGANIZATION
Section 3.1 Name and Organization. The Trust hereby continued is named "IM
Capital Trust I," as such name may be modified from time to time by the Regular
Trustees following written notice to the Holders of the Securities. The Trust's
activities may be conducted under the name of the Trust or any other name deemed
advisable by the Regular Trustees.
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Section 3.2 Office. The address of the principal office of the Trust is 745
Atlantic Avenue, Boston, Massachusetts 02111. On ten Business Days' written
notice to the Holders of the Securities, the Regular Trustees may designate
another principal office.
Section 3.3 Purpose. The exclusive purposes and functions of the Trust are (a)
to issue the Securities in exchange for the Notes and (b) except as otherwise
limited herein, to engage in only those other activities necessary or incidental
thereto. The Trust shall not borrow money, issue debt, reinvest proceeds derived
from investments, pledge any of its assets or otherwise undertake (or permit to
be undertaken) any activity that would cause the Trust not to be classified as a
grantor trust for United States federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor, the
Holders of the Preferred Securities or the Common Securities or the Beneficial
Owners of the Preferred Securities will take any position that is contrary to
the classification of the Trust as a grantor trust for United States federal
income tax purposes.
Section 3.4 Authority.
(a) Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive authority to carry out the purposes of the Trust. Any action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and shall serve to bind the Trust, and any action taken by the Property Trustee
in accordance with its powers shall constitute the act of and shall serve to
bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no
Person shall be required to inquire into the authority of the Trustees to bind
the Trust. Persons dealing with the Trust are entitled to rely conclusively on
the power and authority of the Trustees as set forth in this Declaration.
(b) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by or with the consent of any one such Regular Trustee.
(c) Except as otherwise required by applicable law, any Regular Trustee
may delegate to any other natural person over the age of 21 that is a United
States Person, by power of attorney consistent with applicable law, his or her
power for the purposes of signing any documents that the Regular Trustees have
power and authority to cause the Trust to execute pursuant to Section 3.6.
Section 3.5 Title to Property of the Trust. Except as provided in Section 3.8
with respect to the Notes and the Property Account or as otherwise provided in
this Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders of the Securities shall not have legal title to any part of
the assets of the Trust but shall have undivided beneficial ownership interests
in the assets of the Trust.
Section 3.6 Powers and Duties of the Regular Trustees. The Regular Trustees
shall have the exclusive power, duty and authority to cause the Trust to engage
in the following activities:
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(a) to issue the Securities in exchange for the Notes in accordance
with this Declaration (including, without limitation, to execute, deliver and
perform the Purchase and Subscription Agreement, to be dated as of [ , ],
between the Sponsor and the Trust); provided that:
(i) the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities;
(ii) there shall be no interests in the Trust other than the
Securities; and
(iii) the issuance of the Securities shall be limited to a
one-time, simultaneous issuance of both Preferred Securities and Common
Securities on the Closing Date, subject to the issuance of additional
Securities pursuant to the exercise of any Over-allotment Option;
(b) in connection with the issue and sale of the Preferred Securities,
to:
(i) assist in the preparation of a prospectus in preliminary
and final form prepared by the Sponsor in relation to the offering and
sale of Preferred Securities and to assist in the preparation and
filing with the Commission, on behalf of the Trust, of a registration
statement on Form S-3, or on another appropriate form, including
without limitation any registration statement under Rule 462(b) of the
Securities Act, in relation to the Preferred Securities and the
Guarantee, including any pre-effective or post-effective amendments
thereto and including any supplements or amendments to the form of
prospectus included therein, as permitted by the rules and regulations
of the Commission;
(ii) execute and file, on behalf of the Trust, any documents
prepared by the Sponsor, or take any acts as determined by the Sponsor
to be necessary, in order to qualify or register all or part of the
Preferred Securities in any state in which the Sponsor has determined
to qualify or register such Preferred Securities for sale;
(iii) at the direction of the Sponsor, execute and file, on
behalf of the Trust, any application, statement, certificate, agreement
or other instrument, prepared by the Sponsor, to the New York Stock
Exchange, or any other national securities exchange or the Nasdaq
National Market for listing or quotation of the Preferred Securities;
(iv) to execute and deliver letters, documents, or instruments
with any Clearing Agencies relating to the Preferred Securities;
(v) if required, execute and file with the Commission, on
behalf of the Trust, a registration statement on Form 8-A, including
any pre-effective or post-effective amendments thereto, prepared by the
Sponsor, relating to the registration of the Preferred Securities under
Section 12(b) or 12(g) of the Exchange Act; and
(vi) to cause the Trust to enter into such agreements and
arrangements as may be necessary or desirable in connection with the
sale of Preferred Securities to the
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underwriters thereof and the consummation thereof, and to take all
action as may be necessary or desirable in connection with the
consummation thereof;
(c) to acquire the Notes with the proceeds of the sale of the
Securities; provided, however, that the Regular Trustees shall cause legal title
to the Notes to be held of record in the name of the Property Trustee for the
benefit of the Holders of the Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Tax Event; provided that the Regular Trustees shall
consult with the Sponsor and the Property Trustee before taking or refraining
from taking any action in relation to any such Tax Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date to be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of the Securities as to such actions and applicable
record dates;
(f) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of this Declaration and the
Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to pay reasonable compensation for such
services, provided that any Person so employed or engaged is a United States
Person;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give to the Property Trustee the certificate required by Section
314(a)(4) of the Trust Indenture Act, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out any
of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities or to appoint a Paying Agent for the
Securities as provided in Section 3.8 except for such time as such power to
appoint a Paying Agent is vested in the Property Trustee;
(m) if applicable, to give prompt written notice to the Property
Trustee and to the Holders of any notice received from the Note Issuer of its
election to defer payments of interest on the Notes by extending the interest
payment period under the Indenture;
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(n) to take all action that may be necessary or appropriate for the
preservation and continuation of the Trust's valid existence, rights, franchises
and privileges as a statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such existence is necessary to
protect the limited liability of the Holders of the Securities or to enable the
Trust to effect the purposes for which it was created;
(o) to take any action not inconsistent with applicable law, this
Declaration, the Certificate of Trust or the amended and restated certificate of
incorporation of the Company, as in effect from time to time, that the Regular
Trustees determine in their discretion to be necessary or desirable in carrying
out the purposes and functions of the Trust as set forth in Section 3.3 or the
activities of the Trust as set forth in this Section 3.6, including:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust for
United States federal income tax purposes; and
(iii) cooperating with the Notes Issuer to ensure that the
Notes will be treated as indebtedness of the Notes Issuer for United
States federal income tax purposes;
(p) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed;
(q) to prepare, execute and file a certificate of cancellation of the
Trust's Certificate of Trust, if at all, pursuant to Section 8.1(b);
(r) in connection with the issuance of the Preferred Securities, to
execute, deliver and perform the Depositary Agreement on behalf of the Trust;
(s) if and to the extent that the Sponsor on behalf of the Trust has
not already done so, to cause the Trust to enter into such other agreements and
arrangements as may be necessary or desirable in connection with the sale of the
Preferred Securities to the Underwriters and the consummation thereof, and to
take all action, and exercise all discretion, as may be necessary or desirable
in connection with the consummation thereof; and
(t) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set forth in Section 3.3.
Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act,
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any power of the Regular Trustees may be exercised by, or with the consent of,
any one such Regular Trustee.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6 shall
be reimbursed by the Notes Issuer.
Section 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Property Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust in connection
with its ownership of the Notes, but shall cause the Trust to
distribute all such proceeds to the Holders of the Securities pursuant
to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess property for any purpose other than a Trust
purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to
vary the Trust's assets;
(vi) possess any power or otherwise act in such a way as to
vary the terms of the Securities in any way whatsoever (except to the
extent expressly authorized in this Declaration or by the terms of the
Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(viii) other than as provided in this Declaration or by the
terms of the Securities, (A) direct the time, method and place of
exercising any trust or power conferred upon the Indenture Trustee with
respect to the Notes, (B) waive any past default that is waivable under
the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Notes shall be due and
payable or (D) consent to any amendment, modification or termination of
the Indenture or the Notes where such consent is required, unless the
Trust has received an opinion of counsel to the effect that such
modification will not cause more than an insubstantial risk that the
Trust will not be classified as a grantor trust for United States
federal income tax purposes;
(ix) take any action inconsistent with the status of the Trust
as grantor trust for United States federal income tax purposes;
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(x) revoke any action previously authorized or approved by
vote of the Holders of the Preferred Securities; or
(xi) after the date hereof, enter into any contract or
agreement (other than any depositary agreement or any agreement with
any securities exchange or automated quotation system) that does not
expressly provide that the Holders of Preferred Securities, in their
capacities as such, have limited liability (in accordance with the
provisions of the Business Trust Act) for the liabilities and
obligations of the Trust, which express provision shall be in
substantially the following form:
The Holders of the Preferred Securities, in their capacities
as such, shall not be personally liable for any liabilities or
obligations of the Trust arising out of this Agreement, and
the parties hereto hereby agree that the Holders of the
Preferred Securities, in their capacities as such, shall be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Notes shall be owned by and held of record
in the name of the Property Trustee in trust for the benefit of the Trust and
the Holders of the Securities. The right, title and interest of the Property
Trustee to the Notes shall vest automatically in each Person that hereafter may
be appointed as Property Trustee in accordance with Section 6.6. To the fullest
extent permitted by law, such vesting and cessation of title shall be effective
whether or not conveyancing documents with regard to the Notes have been
executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Notes to the Regular Trustees nor to the Delaware Trustee (if
the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain the Property Account in the name of
and under the exclusive control of the Property Trustee on behalf of
the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Notes, deposit such funds into the
Property Account and make payments to the Holders of the Securities
from the Property Account in accordance with Section 7.2 (funds in the
Property Account to be held uninvested until disbursed in accordance
with this Declaration);
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Securities to
the extent the Notes are redeemed or mature; and
(iii) upon written direction by the Sponsor to dissolve the
Trust, to engage in such ministerial activities as shall be necessary
or appropriate to effect the distribution of the Notes to the Holders
of the Securities in exchange for the Securities.
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(d) The Property Trustee shall take all actions and perform such duties
as may be specifically required of the Property Trustee pursuant to the terms of
this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action that arises out of
or in connection with (i) a Trust Enforcement Event of which a Responsible
Officer of the Property Trustee has actual knowledge or (ii) the Property
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act; provided that if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Notes Issuer to pay
interest or principal on the Notes on the date such interest or principal is
otherwise payable, then a Holder of Preferred Securities may institute a
proceeding directly against the Notes Issuer to enforce payment to such Holder
of the principal or interest on Notes having an aggregate principal amount equal
to the aggregate liquidation amount of the Preferred Securities of such Holder
(a "Direct Action"); provided, further, if the Property Trustee fails to enforce
its rights under the Notes in respect of an Indenture Event of Default after a
Holder of Preferred Securities has made a written request that the Property
Trustee so enforce its rights, such Holder of Preferred Securities may, to the
fullest extent permitted by applicable law, institute a legal proceeding
directly against the Notes Issuer to enforce the rights of the Property Trustee
under the Indenture without first proceeding against the Property Trustee or any
other Person.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation have been distributed to the Holders of the
Securities pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Notes under the Indenture
(including, without limitation, the right, as sole holder of the Notes, to
declare the principal of and interest on the Notes, to be immediately due and
payable, pursuant to the terms of the Indenture) and if a Trust Enforcement
Event actually known to a Responsible Officer of the Property Trustee occurs and
is continuing, the Property Trustee shall enforce, for the benefit of Holders of
the Securities, its rights as holder of the Notes subject to the rights of the
Holders of the Securities pursuant to the terms of the Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities, and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time, and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
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The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the cure or waiver of all Trust Enforcement Events
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Declaration, and no implied covenants shall be
read into this Declaration against the Property Trustee. If a Trust Enforcement
Event has occurred (that has not been cured or waived pursuant to Section 2.6)
of which a Responsible Officer of the Property Trustee has actual knowledge, the
Property Trustee shall exercise such of the rights and powers vested in it by
this Declaration and shall use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the cure or waiver of all such Trust Enforcement Events that may
have occurred:
(A) the duties and obligations of the Property Trust
shall be determined solely by the express provisions of this
Declaration, and the Property Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Declaration, and no implied
covenants or obligations shall be read into this Declaration
against the Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee,
the Property Trustee shall be under a duty to examine such
certificates or opinions to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it has been proven that the Property Trustee was
negligent in ascertaining the pertinent facts;
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(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it without negligence, in
good faith in accordance with the direction of the Holders of not less
than a Majority in Liquidation Amount of the Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it has reasonable
grounds for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Declaration or
indemnity reasonably satisfactory to the Property Trustee against such
risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe-keeping and physical preservation of the Notes and the
Property Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of
the Notes or the payment of any taxes or assessments levied thereon or
in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it otherwise may agree
with the Sponsor, and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Account maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the Property
Trustee be liable for any default or misconduct of the Regular Trustees
or the Sponsor.
Section 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) The Property Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting, upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Sponsor contemplated by this
Declaration shall be sufficiently evidenced by an Officers'
Certificate.
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(iii) Whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may request, in the absence of bad faith on its part, and
conclusively rely upon, an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor.
(iv) The Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or registration thereof.
(v) The Property Trustee may consult with counsel of its
choice or other experts, and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of
such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Sponsor or any of
its Affiliates and may include any of its employees. The Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of
competent jurisdiction.
(vi) The Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder of Securities, unless such
Holder of Securities has provided to the Property Trustee security and
indemnity, reasonably satisfactory to the Property Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Property Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Property Trustee; provided that nothing contained in this Section
3.10(a) shall be taken to relieve the Property Trustee, upon the
occurrence of an Indenture Event of Default, of its obligation to
exercise the rights and powers vested in it by this Declaration.
(vii) The Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it sees fit.
(viii) The Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys, provided that any
such action (other than ministerial action) executed or performed by
such agent or attorney is executed or performed by an agent or an
attorney that is a United States Person, and the Property Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
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(ix) Any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action, and no third party
shall be required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be evidenced
conclusively by the Property Trustee's or its agent's taking such
action.
(x) Whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (A) may request instructions from the
Holders of the Securities, which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities
as would be entitled to direct the Property Trustee under this
Declaration in respect of such remedy, right or action, (B) may refrain
from enforcing such remedy or right or taking such other action until
such instructions are received and (C) shall be protected in
conclusively relying on or acting in accordance with such instructions.
(xi) Except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
(xii) The Property Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it without negligence, in
good faith and reasonably believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Declaration.
(xiii) The rights, privileges, protections, immunities and
benefits given to the Property Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be enforceable
by, the Property Trustee in each of its capacities hereunder, and to
each agent, custodian and other Person employed to act hereunder.
(xiv) The Property Trustee may request that the Sponsor
deliver an Officers' Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified
actions pursuant to this Declaration, which Officers' Certificate may
be signed by any person authorized to sign an Officers' Certificate,
including any person specified as so authorized in any such certificate
previously delivered and not superseded.
(b) No provision of this Declaration shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 3.11 Delaware Trustee. Notwithstanding any other provision of this
Declaration other than Section 6.2, the Delaware Trustee shall not be entitled
to exercise any powers of, nor shall the Delaware Trustee have any of the duties
and responsibilities of, the Regular Trustees or the Property Trustee described
in this Declaration. Except as set forth in Section 6.2, the Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act and shall be a United
States Person.
Section 3.12 Execution of Documents. Except as otherwise required by applicable
law, any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to execute
pursuant to Section 3.6.
Section 3.13 Not Responsible for Recitals or Issuance of Securities. The
recitals contained in this Declaration and the Securities shall be taken as the
statements of the Sponsor,
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and the Trustees do not assume any responsibility for their correctness. The
Trustees make no representations as to the value or condition of the property of
the Trust or any part thereof. The Trustees make no representations as to the
validity or sufficiency of this Declaration, the Securities, the Notes or the
Indenture.
Section 3.14 Duration of Trust. The Trust shall exist until dissolved pursuant
to the provisions of Article 8 hereof.
Section 3.15 Mergers.
(a) The Trust may not consolidate with, amalgamate or merge with or
into, be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c).
(b) At the request of the Sponsor and with the consent of the Regular
Trustees or, if there are more than two, a majority of the Regular Trustees and
without the consent of the Holders of the Preferred Securities, the Delaware
Trustee or the Property Trustee, the Trust may consolidate with, amalgamate or
merge with or into, be replaced by or convey, transfer or lease its properties
substantially as an entirety to a trust organized as such under the laws of any
state; provided that:
(i) if the Trust is not the successor entity, such successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust with respect to the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Securities (the
"Successor Securities"), so long as such Successor Securities
rank the same as the Securities with respect to Distributions
and payments upon liquidation, redemption and otherwise;
(ii) the Notes Issuer expressly appoints a trustee of such
Successor Entity that possesses the same powers and duties as the
Property Trustee as the holder of the Notes;
(iii) the Preferred Securities or any Successor Securities are
or, upon notification of issuance will be, listed on any national
securities exchange or with any other organization on which the
Preferred Securities are then listed or quoted;
(iv) such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the
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Holders of the Preferred Securities (including any Successor
Securities) in any material respect other than with respect to any
dilution of the Holders' interest in the new entity;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease, the Sponsor has received an
opinion of nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities) in any
material respect other than with respect to any dilution of
the Holders' interest in the new entity;
(B) following such consolidation, amalgamation,
merger, replacement, conveyance, transfer or lease, neither
the Trust nor such Successor Entity will be required to
register as an Investment Company under the Investment Company
Act; and
(C) following such consolidation, amalgamation,
merger, replacement, conveyance, transfer or lease, the Trust
(or such Successor Entity) will continue to be classified as a
grantor trust for United States federal income tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns
all of the common securities of such Successor Entity and guarantees
the obligations of such Successor Entity under the Successor
Securities, at least to the extent provided by the Guarantee; and
(ix) such Successor Entity expressly assumes all of the
obligations of the Trust.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in aggregate liquidation amount of the
Securities, consolidate with, amalgamate or merge with or into, be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to, any other entity or permit any other entity to consolidate with,
amalgamate, merge with or into, or replace it, if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or any Successor Entity to be classified as other than a grantor trust for
United States federal income tax purposes or would cause any Holder of
Securities not to be treated as owning an undivided beneficial ownership
interest in the Notes.
Section 3.16 Property Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment,
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composition or other similar judicial proceeding relative to the Trust or any
other obligor upon the Securities or the property of the Trust or of such other
obligor or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Securities are then due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Property Trustee has
made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount securities, such portion of the liquidation amount as
may be specified in the terms of such securities) and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders of the Securities allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder of
Securities to make such payments to the Property Trustee and, in the event the
Property Trustee consents to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt, on behalf of any Holder
of Securities, any plan of reorganization, arrangement, adjustment or
compensation affecting the Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder of
Securities in any such proceeding.
ARTICLE 4
THE SPONSOR
Section 4.1 Responsibilities of the Sponsor. In connection with the sale and
issuance of the Preferred Securities, the Sponsor is hereby appointed an agent
of the Trust pursuant to Section 3806(b)(7) of the Business Trust Act and in
such capacity shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare, execute and file with the Commission, on behalf of the
Trust, a registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments or supplements thereto, and to take any
other action relating to the registration and sale of the Preferred Securities
under federal and state securities laws;
(b) if necessary, to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred Securities
and to do any and all such acts,
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other than actions that must be taken by the Trust, and advise the Trust of
actions it must take; to prepare, execute and file, on behalf of the Trust, any
documents it deems necessary or advisable in order to comply with the applicable
laws of any such states; and to prepare, execute and file, on behalf of the
Trust, any such documents or take any acts determined by it to be necessary in
order to qualify or register all or part of the Preferred Securities in any
state in which it has determined to qualify or register such Preferred
Securities for sale;
(c) if necessary, to prepare, execute and file on behalf of the Trust,
an application to the New York Stock Exchange or any other national securities
exchange or the Nasdaq National Market for listing upon notice of issuance of
any Preferred Securities;
(d) if necessary, to prepare, execute and file with the Commission, on
behalf of the Trust, a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of the Exchange
Act, including any amendments thereto;
(e) to negotiate the terms of, and execute and enter into, an
Underwriting Agreement providing for the sale of the Preferred Securities; and
(f) to execute and deliver letters, documents or instruments on behalf
of the Trust with any Clearing Agency.
Section 4.2 Indemnification and Expenses of the Trustees. To the fullest extent
permitted by law, the Notes Issuer agrees to indemnify the Regular Trustees, the
Property Trustee and the Delaware Trustee for, and to hold each of them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Regular Trustees, the Property Trustee or the Delaware
Trustee, as the case may be, arising out of or in connection with the acceptance
or administration of the Trust hereunder, including the costs and expenses of
defending such Trustee or the Trust against any claim or liability in connection
with the exercise or performance of any of their respective powers or duties
hereunder. The provisions of this Section 4.2 shall survive the resignation or
removal of the Regular Trustees, the Delaware Trustee or the Property Trustee
and the termination of this Declaration.
Section 4.3 Guarantee of Payment of Trust Obligations.
(a) Subject to the terms and conditions of this Section 4.3, the
Sponsor hereby irrevocably and unconditionally guarantees to each Person to whom
the Trust is now or hereafter becomes indebted or liable (the "Beneficiaries")
the full payment, when and as due, of any and all costs, expenses or liabilities
of the Trust (other than obligations of the Trust to make payments to Holders of
the Securities pursuant to the terms thereof) ("Obligations") to such
Beneficiaries.
(b) The agreement of the Sponsor in Section 4.3(a) is intended to be
for the benefit of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
(c) The agreement of the Sponsor set forth in Section 4.3(a) shall
terminate and be of no further force and effect upon the later of (a) the date
on which full payment has been made of all amounts payable to all Holders of all
the Preferred Securities (whether upon
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redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that such agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any Holder of Preferred Securities or any of the Beneficiaries must restore
payment of any sums paid under the Preferred Securities, under any Obligation,
under the Guarantee or under this Declaration for any reason whatsoever. Such
agreement is continuing, irrevocable, unconditional and absolute.
ARTICLE 5
THE HOLDER OF THE COMMON SECURITIES
Section 5.1 Notes Issuer's Acquisition of the Common Securities. On the First
Delivery Date, the Notes Issuer shall acquire all of the Common Securities
issued by the Trust, in an aggregate liquidation amount equal to at least three
percent of the total capital of the Trust, at such time as the Preferred
Securities are sold and issued. If any additional Preferred Securities are
issued pursuant to the exercise of any Over-allotment Option, then the Notes
Issuer shall purchase, on the Second Delivery Date, an amount of additional
Common Securities such that the aggregate liquidation amount of the Common
Securities held by the Notes Issuer, upon such purchase, will equal at least
three percent of the total capital of the Trust.
The aggregate stated liquidation amount of the Common Securities
outstanding at any time shall not be less than three percent of the total
capital of the Trust.
Section 5.2 Covenants of the Notes Issuer. For so long as the Preferred
Securities remain outstanding, the Notes Issuer shall covenant:
(i) to maintain, directly or indirectly, 100% ownership of the
Common Securities;
(ii) to cause the Trust to remain a Delaware statutory
business trust and not to voluntarily dissolve, wind up, liquidate or
be terminated, except as permitted by this Declaration;
(iii) to use its commercially reasonable efforts to ensure
that the Trust will not be an Investment Company required to be
registered under the Investment Company Act; and
(iv) not to take any action that would be reasonably likely to
cause the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income
tax purposes.
Section 5.3 Holder of the Common Securities. Each Holder of the Common
Securities shall at all times hold the Common Securities in its individual
capacity on its own behalf and shall not, in its capacity as a Holder of the
Common Securities, be under (or subject to) the control or direction of any
Foreign Person (pursuant to a contractual arrangement or otherwise) other than
by virtue of such Foreign Person's direct or indirect stock ownership, if any,
of the Holder of Common Securities. Notwithstanding anything in this Declaration
to the contrary, each Holder of the Common Securities shall at all times be a
United States Person and shall be
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authorized to give any direction hereunder with respect to the Trust as shall be
necessary for the Trust not to be considered a foreign trust for United States
Federal income tax purposes.
ARTICLE 6
THE TRUSTEES
Section 6.1 Number of Trustees. The number of Trustees initially shall be
[three], and:
(a) at any time before the issuance of any Securities, the Sponsor may
increase or decrease the number of Trustees by written instrument; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities at a meeting of the Holders of the Common
Securities or by written consent without prior notice in lieu of such meeting;
provided that the number of Trustees shall be at least three; and provided,
further, that: (i) the Delaware Trustee, in the case of a natural person, shall
be a person who is a resident of the State of Delaware or, if not a natural
person, shall be an entity that has its principal place of business in the State
of Delaware and otherwise meets the requirements of applicable law; (ii) at
least a majority of the Regular Trustees shall be employees or officers of, or
are Affiliates of, the Sponsor; (iii) one Trustee shall be the Property Trustee,
which, for so long as this Declaration is required to qualify as an indenture
under the Trust Indenture Act, shall meet the requirements of applicable law,
provided that such Property Trustee also may serve as Delaware Trustee if it
meets the applicable requirements; (iv) each Trustee shall be a United States
Person; and (v) each Trustee, or any delegee of any Trustee, shall at all times
act as Trustee in its individual capacity on its own behalf and will not, at any
time, in its capacity as Trustee, be under (or subject to) the control or
direction of any Foreign Person (pursuant to a contractual arrangement or
otherwise).
Section 6.2 Delaware Trustee; Eligibility. If required by the Business Trust
Act, one Trustee (which may be the Property Trustee) (the "Delaware Trustee")
shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity that has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, provided that if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee also shall be the Delaware Trustee and
Section 3.11 shall have no application.
Section 6.3 Property Trustee; Eligibility.
(a) There shall be at all times one Trustee (which may be the Delaware
Trustee) that shall act as Property Trustee. Such Property Trustee shall:
(i) not be an Affiliate of the Sponsor; and
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(ii) be a corporation that is a United States Person organized
and doing business under the laws of the United States of America or
any state or territory thereof or of the District of Columbia, or a
corporation or other Person that is a United States Person permitted by
the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least fifty million
U.S. dollars ($50,000,000) and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then for the purpose of this Section 6.3(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report
of condition so published.
(iii) if the Trust is excluded from the definition of an
Investment Company solely by means of Rule 3a-7 and to the extent Rule
3a-7 requires a trustee having certain qualifications to hold title to
the "eligible assets" of the Trust, the Property Trustee shall possess
those qualifications.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 6.3(a), the Property Trustee immediately shall resign in
the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holders of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall comply
in all respects with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantee shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
Section 6.4 Qualifications of the Regular Trustees Generally. Each Regular
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more Authorized Officers.
Section 6.5 Initial Trustees.
(a) The initial Regular Trustees shall be [John P. Lawrence][, and ],
the business address of all of whom is in care of Iron Mountain Incorporated,
745 Atlantic Avenue, Boston, Massachusetts 02111.
(b) The initial Property Trustee shall be:
The Bank of New York
[ ]
[ ]
Attention: [ ].
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(c) The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
[ ]
[ ]
Attention: [ ].
Section 6.6 Appointment, Removal and Resignation of the Trustees.
(a) Subject to Sections 6.6(b) and 7.5(k), the Trustees may be
appointed or removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by a vote of the
Holders of a Majority in Liquidation Amount of the Common Securities at
a meeting of the Holders of the Common Securities or by written consent
without prior notice in lieu of such meeting.
(b) The Property Trustee shall not be removed in accordance with
Section 6.6(a) or Section 7.5(k) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor. The Delaware Trustee shall not be removed
in accordance with Section 6.6(a) or Section 7.5(k) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 6.2 and
6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until a successor
has been appointed, until death or dissolution or until removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by written instrument executed by such Trustee and delivered to the
Sponsor and the other Trustees, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided that:
(i) no such resignation of the Property Trustee shall be
effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment
by written instrument executed by such
Successor Property Trustee and delivered to
the Regular Trustees, the Sponsor and the
resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds
thereof distributed to the Holders of the
Securities; and
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(ii) no such resignation of the Delaware Trustee shall be
effective until a Successor Delaware Trustee has been appointed and has
accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Regular Trustees, the
Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee, as
the case may be, has been appointed and accepted appointment as provided in this
Section 6.6 within 60 days after delivery of an instrument of resignation or
removal, the resigning or removed Property Trustee or Delaware Trustee, as
applicable, may petition any court of competent jurisdiction at the expense of
the Sponsor for appointment of a Successor Property Trustee or Successor
Delaware Trustee, as applicable. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
Section 6.7 Vacancies among Trustees. If a Trustee ceases to hold office for any
reason and the number of Trustees is not reduced pursuant to Section 6.1, or if
the number of Trustees is increased pursuant to Section 6.1, a vacancy shall
occur. A resolution certifying the existence of such vacancy by the Regular
Trustees, or, if there are more than two, a majority of the Regular Trustees,
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 6.6.
Section 6.8 Effect of Vacancies. The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the
duties of a Trustee shall not operate to annul, dissolve or terminate the Trust
nor to terminate this Declaration. Whenever a vacancy in the number of Regular
Trustees shall occur until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 6.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
Section 6.9 Meetings. If there is more than one Regular Trustee, meetings of the
Regular Trustees shall be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regular Trustees. Notice of any in-person
meetings of the Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 48 hours before such meeting. Notice of any telephonic meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24
hours before a meeting.
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Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Regular Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Regular Trustees may be taken at a meeting by
vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided a Quorum
is present, or without a meeting and without prior notice by the unanimous
written consent of the Regular Trustees. In the event there is only one Regular
Trustee, any and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
Section 6.10 Delegation of Power by the Regular Trustees.
(a) Except as otherwise required by applicable law, any Regular Trustee
may delegate to any other natural person over the age of 21 that is a United
States Person, by power of attorney consistent with applicable law, his or her
power for the purposes of signing any documents that the Regular Trustees have
power and authority to cause the Trust to execute pursuant to Section 3.6.
(b) The Regular Trustees shall have the power to delegate from time to
time to such of their number or to officers of the Trust or any other Person the
doing of such things and the execution of such instruments either in the name of
the Trust or the names of the Regular Trustees or otherwise as the Regular
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
Section 6.11 Merger, Consolidation, Conversion or Succession to Business. Any
entity into which the Property Trustee, the Delaware Trustee or any Regular
Trustee that is not a natural person may be merged or converted or with which
such Trustee may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Trustee is a party, or any entity
succeeding to all or substantially all the corporate trust business of such
Trustee, shall be the successor of such Trustee hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, provided that such entity otherwise is qualified and eligible under this
Article.
ARTICLE 7
TERMS OF THE SECURITIES
Section 7.1 General Provisions Regarding the Securities.
(a) The Regular Trustees shall issue, on behalf of the Trust, one class
of preferred securities representing undivided beneficial ownership interests in
the assets of the Trust (the "Preferred Securities") and one class of common
securities representing undivided beneficial ownership interests in the assets
of the Trust (the "Common Securities"). The Trust shall not issue any securities
other than the Preferred Securities and the Common Securities.
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(i) Preferred Securities. There shall be [ ] million ([ ])
Preferred Securities and they shall have an aggregate stated
liquidation amount with respect to the assets of the Trust of [ dollars
($ )] (subject to increase to not more than [ dollars ($ )] in the
event of the exercise of any Over-allotment Option) and a stated
liquidation amount with respect to the assets of the Trust of $[ ] per
Preferred Security. The Preferred Securities are hereby designated for
identification purposes only as the Preferred Securities. The Preferred
Security Certificates shall be substantially in the form of Exhibit A
hereto, with such changes and additions thereto or deletions therefrom
as may be required by ordinary usage, custom or practice or to conform
to the rules of any exchange on which the Preferred Securities are
listed.
(ii) Common Securities. There shall be [ ] million ([ ])
Common Securities and they shall have an aggregate liquidation amount
with respect to the assets of the Trust of [ dollars ($ )] (subject to
increase to not more than [ dollars ($ )] in the event of the exercise
of any Over-allotment Option) and a liquidation amount with respect to
the assets of the Trust of $[ ] per Common Security. The Common
Securities are hereby designated for identification purposes only as
the Common Securities. The Common Security Certificates shall be
substantially in the form of Exhibit B hereto, with such changes and
additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice.
(b) Payment of Distributions on, and any payment of the Redemption
Price upon a redemption of, the Preferred Securities and the Common Securities,
as applicable, shall be made Pro Rata based on the liquidation amount of such
Preferred Securities and Common Securities; provided that if, on any date on
which payment of a Distribution or the Redemption Price is to be made, an
Indenture Event of Default has occurred and is continuing, then such payments
shall not be made on any of the Common Securities, and no other payment on
account of the redemption, liquidation or other acquisition of such Common
Securities shall be made, until all accumulated and unpaid Distributions, or
payments of the Redemption Price, as the case may be, on all of the outstanding
Preferred Securities for which Distributions are to be paid or that have been
called for redemption, as the case may be, are fully paid. All funds available
to the Property Trustee shall first be applied to the payment in full in cash of
all Distributions on, or the Redemption Price of, the Preferred Securities then
due and payable.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be validly issued, fully paid and non-assessable
undivided beneficial ownership interests in the assets of the Trust.
(e) Every Person, by virtue of having become a Holder of Securities or
a Beneficial Owner of Preferred Securities in accordance with the terms of this
Declaration, shall
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be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration, the Guarantee, the Indenture, and the Notes.
(f) The Holders of the Securities shall not have any preemptive or
similar rights.
(g) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any Regular Trustee. If a Regular Trustee of the Trust who has signed any of the
Certificates ceases to be a Regular Trustee before such signed Certificates have
been delivered by the Trust, such Certificates nevertheless may be delivered as
though the Person who signed such Certificates had not ceased to be a Regular
Trustee. Any Certificate may be signed on behalf of the Trust by such Persons
who, at the actual date of execution of such Certificate, shall be the Regular
Trustees of the Trust, although at the date of the execution and delivery of
this Declaration any such Person was not such a Regular Trustee. Certificates
shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees, as evidenced by
their execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law or
with any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
A Preferred Security Certificate shall not be valid until authenticated
by the manual signature of an authorized signatory of the Property Trustee. Such
signature shall be conclusive evidence that such Preferred Security Certificate
has been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Preferred Security Certificates for
original issue.
The Property Trustee may appoint an authenticating agent acceptable to
the Trust, as determined by the Regular Trustees on behalf of the Trust, to
authenticate Certificates. An authenticating agent may authenticate Certificates
whenever the Property Trustee may do so. Each reference in this Declaration to
authentication by the Property Trustee shall include authentication by such
agent. An authenticating agent shall have the same rights as the Property
Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(h) The Preferred Security Certificates, upon original issuance
(including Preferred Securities, if any, issued pursuant to the exercise of any
Over-allotment Option), shall be issued as Global Securities in the form of one
or more fully registered global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to The Depository Trust Company, the initial
Depositary, by or on behalf of the Trust. Such Global Certificates initially
shall be registered on the books and records of the Trust in the name of "Cede &
Co.," the nominee of the initial Depositary. No Beneficial Owner of Preferred
Securities shall receive a definitive Preferred Security Certificate
representing such Beneficial Owner's interest in such Global Certificates,
except as provided in Section 7.12. Unless and until definitive, fully
registered Preferred Security Certificates have been issued to the Beneficial
Owners of Preferred Securities pursuant to Section 7.12:
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(i) the provisions of this Section 7.1(h) shall be in full
force and effect;
(ii) the Trust and the Trustees shall be entitled to deal with
the Depositary for all purposes of this Declaration (including the
payment of Distributions on the Global Certificates and receiving
approvals, votes or consents thereunder) as the Holder of the Preferred
Securities and the sole of holder of the Global Certificates and,
except as set forth herein or in Rule 3a-7 (if the Trust is excluded
from the definition of an Investment Company solely by reason of Rule
3a-7) with respect to the Property Trustee, shall have no obligation to
the Beneficial Owners of the Preferred Securities;
(iii) to the extent that the provisions of this Section 7.1(h)
conflict with any other provisions of this Declaration, the provisions
of this Section 7.1(h) shall control; and
(iv) the rights of the Beneficial Owners of the Preferred
Securities shall be exercised only through the Depositary and shall be
limited to those established by law and agreements between such
Beneficial Owners and the Depositary and/or the Depositary
Participants. The Depositary shall make book-entry transfers among
Depositary Participants and receive and transmit Distributions on the
Global Certificates to such Depositary Participants; provided that
solely for the purposes of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter
provided for in this Declaration, so long as definitive Preferred
Security Certificates have not been issued, the Trustees may rely
conclusively on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the
Depositary setting forth the votes of the Beneficial Owners of the
Preferred Securities or assigning the right to vote on any matter to
any other Persons either in whole or in part.
Whenever a notice or other communication to the Holder of the Preferred
Securities is required to be given under this Declaration, unless and until
definitive Preferred Security Certificates have been issued pursuant to Section
7.1(g), the Trustees shall deliver all such notices and communications specified
herein to be given to the Holders of the Preferred Securities to the Depositary,
and, with respect to any Preferred Security Certificate registered in the name
of a Depositary or the nominee of a Depositary, the Trustees may conclusively
rely on, and shall be protected in relying on, any written instrument (including
a proxy) delivered to the Trustees by the Depositary setting forth the votes of
the Beneficial Owners of the Preferred Securities or assigning the right to vote
on any matter or any other Persons either in whole or in part.
Section 7.2 Distributions.
(a) Holders of the Securities shall be entitled to receive
Distributions that shall accumulate and be payable at the rate per annum of [ ]%
of the stated liquidation amount of $[ ] per Security through (and including) [
, ]. The amount of Distributions payable for any period shall be computed (i)
for any full quarterly distribution period, on the basis of a 360-day year of
twelve 30-day months and (ii) for any period shorter than a full quarterly
distribution period, on the basis of a 30-day month and, for any period of less
than one
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month, on the basis of the actual number of days elapsed per 30-day month.
Subject to Section 7.1(b), Distributions shall be made on the Securities on a
Pro Rata basis. Distributions on the Securities shall accumulate from [ , ],
shall be cumulative and shall be payable quarterly, in arrears, on each Payment
Date, when, as and if available for payment, by the Property Trustee, except as
otherwise described below. Distributions shall be payable only to the extent
that payments are made to the Trust in respect of the Notes held by the Property
Trustee and to the extent that the Trust has funds available for the payment of
such Distributions in the Property Account.
(b) Distributions not paid on the scheduled Payment Date shall
accumulate and, to the extent permitted by applicable law, compound quarterly at
the rate of [ ]% per annum through (and including) [ , ] ("Compounded
Distributions"). "Distributions" shall mean ordinary cumulative distributions
together with any Compounded Distributions.
(c) If and to the extent that the Notes Issuer makes a payment of
principal of and any premium or interest on the Notes held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a Pro Rata distribution of the Payment Amount to Holders,
subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the Holders
thereof as they appear on the register of the Trust as of the close of business
on the relevant record dates. If the Preferred Securities are represented by one
or more Global Securities, the relevant record dates shall be the close of
business on the Business Day preceding such Distribution's Payment Date, unless
a different regular record date is established or provided for the corresponding
interest payment date on the Notes. The relevant record dates for the Common
Securities shall be the same as for the Preferred Securities. If the Preferred
Securities are not represented by one or more Global Securities, the relevant
record dates for the Preferred Securities shall conform to the rules of any
securities exchange on which the Preferred Securities are listed, and if none,
shall be selected by the Regular Trustees, provided that such date shall be at
least one (1) Business Day but less than sixty (60) Business Days prior to the
relevant Distribution's Payment Dates. At all times, the Distribution's Payment
Dates shall correspond to the interest payment dates on the Notes. Distributions
payable on any Securities that are not punctually paid on any Payment Date, as a
result of the Notes Issuer having failed to make a payment under the Notes,
shall cease to be payable to the Person in whose name such Securities are
registered on the relevant record date, and such defaulted Distribution instead
shall be payable to the Person in whose name such Securities are registered on
the special record date or other specified date determined in accordance with
the Indenture for payment of the corresponding defaulted interest on the Notes.
If any date on which a Distribution is payable on the Securities is not a
Business Day, then payment of the Distribution payable on such date shall be
made on the next day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that if such Business Day is in
the next calendar year, such payment shall be made on the preceding Business
Day, with the same force and effect as if made on such Payment Date.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders of the Securities, subject to Section
7.1(b).
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Section 7.3 Redemption of Securities.
(a) Upon the repayment or redemption pursuant to the Indenture, in
whole but not in part, of the outstanding Notes held by the Trust, whether at
the stated maturity of the Notes or upon earlier redemption as provided in the
Indenture, the proceeds from such repayment or redemption shall be
simultaneously applied Pro Rata (subject to Section 7.1(b)) to redeem, at the
Redemption Price, Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Notes so repaid or redeemed at the Redemption
Price. Holders of the Securities shall be given not less than 30 nor more than
60 days notice of such redemption in accordance with Section 7.4.
(b) If the Notes Issuer redeems the Notes upon the occurrence and
continuance of a Tax Event, the proceeds from such redemption shall be applied
by the Property Trustee to redeem the Securities, in whole but not in part, at
the Redemption Price on a Pro Rata basis. If, following the occurrence of a Tax
Event, the Notes Issuer exercises its option to redeem the Notes, the Notes
Issuer shall appoint the Quotation Agent.
Section 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of Notes in
exchange for, the Securities (a "Redemption/Distribution Notice"), which notice
shall be irrevocable, shall be given by the Trust by mail to each Holder of
Securities to be redeemed or exchanged at least 30 but no more than 60 days
before the date fixed for redemption or exchange thereof which, in the case of a
redemption, shall be the date fixed for redemption of the Notes. For purposes of
the calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this Section 7.4(a), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to the Holders of the Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of the
Securities at the address of each such Holder appearing in the register of the
Trust. No defect in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the validity of the
redemption or exchange proceedings with respect to any other Holder.
(b) Subject to the Trust's fulfillment of the notice requirements set
forth in Section 7.4(a), if Securities are to be redeemed, then (provided that
the Notes Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Notes) (i) with
respect to the Preferred Securities represented by one or more Global
Securities, by 12:00 noon, New York City time, on the redemption date, the
Property Trustee will deposit irrevocably with the Depositary or its nominee
funds sufficient to pay the applicable Redemption Price, and the Property
Trustee shall give the Depositary irrevocable instructions and authority to pay
the Redemption Price to the Beneficial Owners of the Preferred Securities, and
(ii) with respect to Securities not represented by one or more Global
Securities, the Property Trustee shall pay the applicable Redemption Price to
the Holders of such Securities by check mailed to the address of each Holder
appearing on the register of the Trust on the redemption date. If any date fixed
for redemption of Securities is not a Business Day, then
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payment of the Redemption Price payable on such date shall be made on the next
Business Day (without any interest thereon), except that if such Business Day
falls in the next calendar year, such payment shall be made on the preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the Trust or
by the Sponsor as guarantor pursuant to the Guarantee, then Distributions on
such Securities shall continue to accumulate at the then applicable rate, from
the original redemption date to the actual date of payment, in which case the
actual Payment Date shall be the date fixed for redemption for purposes of
calculating the Redemption Price. For these purposes, the applicable Redemption
Price shall not include Distributions that are being paid to Holders of
Securities who were not Holders of Securities on a relevant record date. If a
Redemption/Distribution Notice has been given and funds have been deposited or
paid as required, then immediately prior to the close of business on the date of
such deposit or payment, Distributions will cease to accumulate on the
Securities called for redemption, and all rights of Holders of such Securities
so called for redemption shall cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on such
Redemption Price, and from and after the date fixed for redemption, such
Securities will cease to be outstanding.
(c) Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that have been
called for redemption.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Notes Issuer or its
Affiliates may purchase, at any time and from time to time, outstanding
Preferred Securities by tender, in the open market, by private agreement or
otherwise.
Section 7.5 Voting Rights of the Preferred Securities.
(a) Except as provided under this Section 7.5 and Section 11.1 and as
otherwise required by the Business Trust Act, the Trust Indenture Act and other
applicable law, the Holders of the Preferred Securities shall have no voting
rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax
opinion in certain circumstances set forth in Section 7.5(d), the Holders of a
Majority in Liquidation Amount of the Preferred Securities, voting separately as
a class, shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee, or to direct
the exercise of any trust or power conferred upon the Property Trustee under
this Declaration, including the right to direct the Property Trustee, as Holder
of the Notes, to (i) exercise the remedies available to it under the Indenture
with respect to the Notes, (ii) waive any past default and its consequences that
are waivable under the Indenture, (iii) exercise any right to rescind or annul
any declaration that the principal of all the Notes shall be due and payable, or
(iv) consent to any amendment, termination or modification of the Indenture or
the Notes where such consent is required; provided that if an Indenture Event of
Default has occurred and is continuing, then the Holders of [25]% of the
aggregate stated liquidation amount of the Preferred Securities may direct the
Property Trustee to declare the principal of and interest on the Notes due and
payable; and provided, further, that where a consent or action under the
Indenture would require the consent or act of the Holders of more than a
majority of the aggregate principal
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amount of Notes affected thereby, the Property Trustee only may give such
consent or take such action at the direction of the Holders of at least the same
proportion in aggregate stated liquidation amount of the Preferred Securities.
(c) If the Property Trustee fails to enforce its rights under the Notes
after a Holder of Preferred Securities has made a written request, such Holder
of Preferred Securities may institute, to the fullest extent permitted by law, a
legal proceeding directly against the Notes Issuer to enforce the Property
Trustee's rights under the Indenture without first instituting any legal
proceeding against the Property Trustee or any other Person. In addition, if a
Trust Enforcement Event has occurred and is continuing and such event is
attributable to the failure of the Notes Issuer to make any interest, principal
or other required payments when due under the Indenture, then a Holder of
Preferred Securities may institute a Direct Action against the Notes Issuer on
or after the respective due date specified in the Notes.
(d) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of any Indenture Event of Default received from the
Notes Issuer with respect to the Notes. Such notice shall state that such
Indenture Event of Default also constitutes a Trust Enforcement Event. Except
with respect to directing the time, method, and place of conducting a proceeding
for a remedy, the Property Trustee shall be under no obligation to take any of
the actions described in clauses (i), (ii) and (iii) of Section 7.5(b) above,
unless the Property Trustee has obtained an opinion of independent tax counsel
experienced in those matters to the effect that the Trust will not fail to be
classified as a grantor trust for United States federal income tax purposes as a
result of such action, and that each Holder of Preferred Securities shall be
treated as owning an undivided beneficial ownership interest in the Notes.
(e) If the consent of the Property Trustee, as the Holder of the Notes,
is required under the Indenture with respect to any amendment, termination or
modification of the Indenture or the Notes, the Property Trustee shall request
the direction of the Holders of the Securities with respect to such amendment or
modification and shall vote with respect to such amendment, termination or
modification as directed by a Majority in Liquidation Amount of the Securities
voting together as a single class; provided that where a consent under the
Indenture would require the consent of the Holders of more than a majority of
the aggregate principal amount of the Notes, the Property Trustee only may give
such consent at the direction of the Holders of at least the same proportion in
aggregate stated liquidation amount of the Securities. The Property Trustee
shall not take any such action in accordance with the directions of the Holders
of the Securities unless the Property Trustee has obtained an opinion of
independent tax counsel experienced in those matters to the effect that the
Trust will not be classified as other than a grantor trust for United States
federal income tax purposes as a result of such action, and that each Holder
will be treated as owning an undivided beneficial ownership interest in the
Notes.
(f) A waiver of an Indenture Event of Default with respect to the Notes
shall constitute a waiver of the corresponding Trust Enforcement Event.
(g) Any required approval or direction of the Holders of the Preferred
Securities may be given at a separate meeting of the Holders of the Preferred
Securities convened for such purpose, at a meeting of all of the Holders of the
Securities or pursuant to
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written consent without a meeting. The Regular Trustees shall cause a notice of
any meeting at which Holders of the Preferred Securities are entitled to vote to
be mailed to each Holder of record of Preferred Securities. Each such notice
shall include a statement setting forth: (i) the date of such meeting; (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote; and (iii) instructions for the delivery of
proxies.
(h) No vote or consent of the Holders of the Preferred Securities shall
be required for the Trust to redeem and cancel the Preferred Securities or
distribute the Notes in accordance with this Declaration and the terms of the
Securities.
(i) Notwithstanding that the Holders of the Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned at such time by the Notes Issuer, the
Trustees or any entity directly or indirectly controlled by, or under direct or
indirect common control with, the Notes Issuer or any Trustee shall not be
entitled to vote or consent and shall be treated, for purposes of such vote or
consent, as if such Preferred Securities were not outstanding.
(j) Except as provided under Section 7.5(k), the Holders of the
Preferred Securities shall have no rights to appoint or remove the Trustees,
who, subject to Section 6.6, may be appointed, removed or replaced by the
Holders of the Common Securities.
(k) If an Indenture Event of Default has occurred and is continuing,
the Property Trustee and the Delaware Trustee may be removed and replaced,
subject to Section 6.6(b), at such time by a Majority in Liquidation Amount of
the Preferred Securities.
Section 7.6 Voting Rights of the Common Securities.
(a) Except as provided in Section 6.1(b), this Section 7.6 and Section
11.1 and as otherwise required by the Business Trust Act, the Trust Indenture
Act or other applicable law, the Holders of the Common Securities shall have no
voting rights.
(b) Subject to Section 7.5(k), the Holders of the Common Securities
shall be entitled to vote to appoint, remove or replace any Trustee or to
increase or decrease the number of Trustees in accordance with Article 6.
(c) Subject to Section 2.6 and only after all Trust Enforcement Events
with respect to the Preferred Securities have been cured, waived, or otherwise
eliminated and subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in this paragraph (c), the
Holders of the Common Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Property
Trustee, or to direct the exercise of any trust or power conferred upon the
Property Trustee under this Declaration, including the right to direct the
Property Trustee, as Holder of the Notes, to (i) exercise the remedies available
to it under the Indenture, (ii) waive any past default and its consequences that
are waivable under the Indenture, (iii) exercise any right to rescind or annul
any declaration that the principal of all the Notes shall be due and payable, or
(iv) consent to any amendment, termination or modification of the Indenture or
the Notes where such consent is required; provided that where a consent or
action under the Indenture would require the consent or act of the Holders of
more than a majority of the aggregate principal amount of Notes
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affected thereby, only the Holders of at least the same proportion of the
aggregate stated liquidation amount of the Common Securities may direct the
Property Trustee to give such consent or take such action. Except with respect
to directing the time, method, and place of conducting a proceeding for a
remedy, the Property Trustee shall be under no obligation to take any of the
actions described in clause 7.6(c)(i), (ii) and (iii) above unless the Property
Trustee has obtained an opinion of independent tax counsel to the effect that,
as a result of such action, for United States federal income tax purposes the
Trust will not fail to be classified as a grantor trust and each Holder will be
treated as owning an undivided beneficial ownership interest in the Notes.
(d) If the Property Trustee fails to enforce its rights under the Notes
after the Holders of the Common Securities have made a written request, the
Holders of the Common Securities may institute, to the fullest extent permitted
by law, a legal proceeding directly against the Notes Issuer to enforce the
Property Trustee's rights under the Notes without first instituting any legal
proceeding against the Property Trustee or any other Person. In addition, if a
Trust Enforcement Event has occurred and is continuing and such event is
attributable to the failure of the Notes Issuer to make any interest, principal
or other required payments when due under the Indenture, then a Holder of Common
Securities may institute a Direct Action against the Notes Issuer on or after
the respective due date specified in the Notes.
(e) A waiver of an Indenture Event of Default with respect to the Notes
shall constitute a waiver of the corresponding Trust Enforcement Event.
(f) Any required approval or direction of the Holders of the Common
Securities may be given at a separate meeting of the Holders of the Common
Securities convened for such purpose, at a meeting of all of the Holders of the
Securities or pursuant to written consent. The Regular Trustees shall cause a
notice of any meeting at which the Holders of the Common Securities are entitled
to vote to be mailed to the Holders of the Common Securities. Such notice shall
include a statement setting forth: (i) the date of such meeting; (ii) a
description of any resolution proposed for adoption at such meeting on which the
Holders of the Common Securities are entitled to vote; and (iii) instructions
for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities shall be
required for the Trust to redeem and cancel the Common Securities or to
distribute Notes in accordance with this Declaration and the terms of the
Securities.
Section 7.7 Paying Agent. If any Preferred Securities are not represented by one
or more Global Securities, the Trust shall maintain in the Borough of Manhattan,
New York City, State of New York, an office or agency where the Preferred
Securities may be presented for payment ("Paying Agent"). The Regular Trustees
shall appoint the paying agent (which shall be a bank or trust company
acceptable to the Notes Issuer) and may appoint one or more additional paying
agents in such other locations as they shall determine. The term "Paying Agent"
includes any additional paying agent. The Regular Trustees may change any Paying
Agent without prior notice to the Holders of the Securities. The Regular
Trustees shall notify the Property Trustee of the name and address of any Paying
Agent not a party to this Declaration. If the Regular Trustees, on behalf of the
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Trust, fail to appoint or maintain another entity as Paying Agent, the Property
Trustee shall act as such. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Property Trustee and the Notes
Issuer.
Section 7.8 Listing. The Sponsor shall use its best efforts to cause the
Preferred Securities to be listed for quotation on the New York Stock Exchange.
Section 7.9 Transfer of the Securities.
(a) (i) The Preferred Securities may be transferred, in whole or in
part, only in accordance with the terms and conditions set forth in this
Declaration. To the fullest extent permitted by law, any transfer or purported
transfer of any Preferred Security not made in accordance with this Declaration
shall be null and void.
(ii) Subject to this Section 7.9 and Section 7.12, the
Preferred Securities shall be freely transferable.
(iii) The Trust shall cause to be kept at the Corporate Trust
Office a register in which, subject to such reasonable regulations as
it may prescribe, the Trust shall provide for the registration of
Preferred Securities and of transfers of Preferred Securities. The
Property Trustee is hereby appointed "Security Registrar" for the
purpose of registering Preferred Securities and transfers of Preferred
Securities as herein provided.
(iv) Upon surrender for registration of transfer of any
Preferred Securities at an office or agency of the Trust designated for
such purpose, a Regular Trustee shall execute, and the Property Trustee
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities of any
authorized denominations and of a like aggregate principal amount.
(v) At the option of the Holder, Securities may be exchanged
for other Preferred Securities of any authorized denominations and of a
like aggregate principal amount, upon surrender of the Preferred
Securities to be exchanged at such office or agency. Whenever any
Preferred Securities are so surrendered for exchange, a Regular Trustee
shall execute, and the Property Trustee shall authenticate and deliver,
the Preferred Securities that the Holder making the exchange is
entitled to receive.
(vi) If so required by the Trust or the Property Trustee,
every Preferred Security presented or surrendered for registration of
transfer or for exchange shall be duly endorsed, or accompanied by a
duly executed written instrument of transfer in form satisfactory to
the Trust and the Security Registrar, by the Holder thereof or his
attorney duly authorized in writing.
(vii) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities, but the Trust may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Preferred Securities.
(b) The Notes Issuer may not transfer the Common Securities except in
connection with the transactions permitted under Section 801 of the Indenture;
provided that
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each Holder of the Common Securities shall at all times be a United States
Person. To the fullest extent permitted by law, any attempted transfer of the
Common Securities other than as set forth in this Section 7.9(b) shall be null
and void.
Section 7.10 Mutilated, Destroyed, Lost or Stolen Certificates. If:
(a) any mutilated Certificates are surrendered to the Regular Trustees,
or if the Regular Trustees receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of the Sponsor and the Trust
harmless,
then, in the absence of notice that such Certificate has been acquired by a bona
fide purchaser, any Regular Trustee shall execute and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of any new
Certificate under this Section 7.10, the Regular Trustees may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 7.10 shall constitute conclusive evidence of an
ownership interest in the relevant Securities, as if originally issued, whether
or not the lost, stolen or destroyed Certificate is found at any time.
Section 7.11 Deemed Holders. The Trustees may treat the Person in whose name any
Securities are registered on the register of the Trust as the sole holder of
such Securities for purposes of receiving Distributions and for all other
purposes whatsoever. Accordingly, the Trustees shall not be bound to recognize
any equitable or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any Person, whether or
not the Trust has actual or other notice thereof.
Section 7.12 Global Securities.
(a) The Preferred Securities initially shall be issued in the form of
one or more Global Securities. A Regular Trustee shall execute, and the Property
Trustee shall authenticate and deliver, one or more Global Securities that (i)
shall represent and be denominated in an amount equal to the aggregate stated
liquidation amount of all of the Preferred Securities to be issued in the form
of Global Securities and not yet canceled, (ii) shall be registered in the name
of the Depositary for the Preferred Securities or the nominee of such Depositary
and (iii) shall be delivered by the Property Trustee to such Depositary or
pursuant to such Depositary's instructions. Global Securities shall bear a
legend substantially to the following effect:
"This Preferred Security is a Global Security within the meaning of the
Declaration and is registered in the name of The Depository Trust
Company, a New York corporation (the "Depositary"), or a nominee of the
Depositary. This Preferred Security is exchangeable for Preferred
Securities registered in the name of a person other than the Depositary
or its nominee only in the limited circumstances described in the
Declaration, and no transfer of this Preferred Security (other than a
transfer of this Preferred Security as a
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whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the
Depositary) may be reregistered except in limited circumstances. Unless
this certificate is presented by an authorized representative of the
Depositary to IM Capital Trust I or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered
in the name of Cede & Co. or such other name as requested by an
authorized representative of the Depositary (and any payment hereon is
made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), and except as otherwise
provided in the Amended and Restated Declaration of Trust of IM Capital
Trust I dated as of [ , ], as amended from time to time, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein."
(b) Preferred Securities not represented by a Global Security issued in
exchange for all or a part of a Global Security pursuant to this Section 7.12
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver any Preferred Securities not
represented by a Global Security to the Persons in whose names such definitive
Preferred Securities are so registered.
(c) At such time as all interests in Global Securities have been
redeemed, repurchased or canceled, such Global Securities shall be canceled,
upon receipt thereof, by the Property Trustee in accordance with standing
procedures of the Depositary. At any time prior to such cancellation, if any
interest in a Global Security is exchanged for Preferred Securities not
represented by a Global Security, redeemed, canceled or transferred to a
transferee who receives Preferred Securities not represented by a Global
Security, or if any Preferred Security not represented by a Global Security is
exchanged or transferred for part of a Global Security, then, in accordance with
the standing procedures of the Depositary, the liquidation amount of such Global
Security shall be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Security by the Property Trustee to reflect such
reduction or increase.
(d) The Trust and the Property Trustee, as the authorized
representative of the Holders of the Preferred Securities, may deal with the
Depositary for all purposes of this Declaration, including the making of
payments due on the Preferred Securities and exercising the rights of Holders of
the Preferred Securities hereunder. The rights of any Beneficial Owners shall be
limited to those established by law and agreements between such owners and
Depository Participants; provided that no such agreement shall give to any
Person any rights against the Trust or the Property Trustee without the written
consent of the parties so affected. Multiple requests and directions from and
votes of the Depositary as the Holder of the Preferred Securities represented by
Global Securities with respect to any particular matter shall not be deemed
inconsistent to the extent they do not represent an amount of Preferred
Securities in excess of those held in the name of the Depositary or its nominee.
(e) If at any time the Depositary notifies the Trust that it is
unwilling or unable to continue as Depositary for the Preferred Securities or if
at any time the Depositary no longer is eligible under this Section 7.12 to
serve as Depositary, the Regular Trustees shall
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appoint a successor Depositary with respect to the Preferred Securities. If a
successor Depositary is not appointed by the Trust within 90 days after the
Trust receives such notice or becomes aware of such ineligibility, the Trust's
election that the Preferred Securities be represented by one or more Global
Securities shall no longer be effective, and a Regular Trustee shall execute,
and the Property Trustee will authenticate and deliver, Preferred Securities in
definitive registered form, in any authorized denominations, in an aggregate
stated liquidation amount equal to the aggregate stated liquidation amount of
the Global Securities representing the Preferred Securities in exchange for such
Global Securities.
(f) The Regular Trustees on behalf of the Trust at any time and in
their sole discretion may determine that the Preferred Securities issued in the
form of one or more Global Securities shall no longer be represented by Global
Securities. In such event a Regular Trustee on behalf of the Trust shall
execute, and the Property Trustee shall authenticate and deliver, Preferred
Securities in definitive registered form, in any authorized denominations, in an
aggregate stated liquidation amount equal to the aggregate stated liquidation
amount of the Global Securities representing the Preferred Securities, in
exchange for such Global Securities.
(g) Notwithstanding any other provisions of this Declaration (other
than the provisions set forth in Section 7.9), Global Securities may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(h) Interests of Beneficial Owners may be transferred or exchanged for
Preferred Securities not represented by a Global Security, and Preferred
Securities not represented by a Global Security may be transferred or exchanged
for a Global Security or Securities, in accordance with rules of the Depositary
and the provisions of Section 7.9.
Section 7.13 Authorized Denominations. The Preferred Securities are issuable
only in denominations of $[ ] and any integral multiple thereof.
Section 7.14 [RESERVED].
ARTICLE 8
DISSOLUTION AND TERMINATION OF THE TRUST
Section 8.1 Dissolution and Termination of the Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Notes Issuer or of any other holder
of the Common Securities;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's certificate of incorporation and the expiration of 90 days
after the date of revocation without a reinstatement thereof;
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(iii) the entry of a decree of judicial dissolution of the
holder of the Common Securities, the Sponsor or the Trust;
(iv) the time when all of the Securities shall have been
called for redemption and the amounts then due shall have been paid to
the Holders of the Securities;
(v) the time when the Notes Issuer shall have redeemed the
Notes upon the occurrence and continuation of a Tax Event and the
proceeds from such redemption have been applied to redeem the
Securities pursuant to Section 7.3(b);
(vi) upon the direction of the Sponsor, in its sole
discretion, by notice and direction to the Property Trustee to
distribute, after the satisfaction of liabilities to creditors of the
Trust, if any, the Notes to the Holders of the Securities in exchange
for all of the Securities; provided that the Sponsor has provided to
the Property Trustee an opinion of counsel that the distribution of the
Notes will not be taxable to the holders of the Preferred Securities
for United States federal income tax purposes; or
(vii) [ , ].
(b) As soon as is practicable after the occurrence of an event referred
to in Section 8.1(a) and upon completion of the winding up and liquidation of
the Trust, the Regular Trustees shall terminate the Trust by executing and
filing a certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.2 and Article 9 shall survive the
termination of the Trust.
Section 8.2 Liquidation Distribution upon Dissolution of the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation") based on the
occurrence of an event specified in Section 8.1(a) (other than clauses (iv) or
(v)), the Holders of the Securities on the date of the Liquidation shall be
entitled to receive on a Pro Rata basis, after satisfaction of the Trust's
liabilities to creditors, Notes in an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accumulated and
unpaid Distributions on, such Securities in exchange for such Securities.
(b) Notice of Liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid mailed not later than 30 nor more than 60 days
prior to the date of the Liquidation to each Holder of Securities at such
Holder's address appearing in the Securities register. All notices of
Liquidation shall:
(i) state the date of the Liquidation;
(ii) state that from and after the date of the Liquidation
(other than a Liquidation as a result of clauses (iv) and (v) of
Section 8.1(a)), the Securities will no longer be deemed to be
outstanding and any Certificates not surrendered for exchange
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will be deemed to represent the Notes in a principal amount equal to
the stated liquidation amount of the Securities, bearing accrued and
unpaid interest in an amount equal to the accumulated and unpaid
Distribution on the Securities; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Certificates for Note, or if Section
8.2(d) applies receive a distribution, as the Property Trustee shall
deem appropriate.
(c) Except where Section 8.1(a)(iv) or (v) or Section 8.2(d) applies,
in order to affect the liquidation of the Trust and distribution of the Notes to
Holders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the date of the
Liquidation) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Notes in exchange for the
outstanding Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 8.2, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Notes in the manner
provided herein is determined by the Property Trustee not to be practical, the
property of the Trust shall be liquidated, and the Trust shall be wound-up and
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the winding-up and termination of the
Trust, the Holders of the Securities on the date of the Liquidation shall be
entitled to receive, out of the assets of the Trust available for distribution
to the Holders of the Securities after satisfaction of the Trust's liabilities
to creditors, if any, cash or other immediately available funds in an amount
equal to the aggregate of the stated liquidation amount of $[ ] per Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such Liquidation, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay the aggregate Liquidation Distribution in
full, then the amounts payable directly by the Trust on the Securities shall be
paid on a Pro Rata basis. The Holders of the Common Securities shall be entitled
to receive the Liquidation Distribution Pro Rata with the Holders of the
Preferred Securities, except that if an Indenture Event of Default has occurred
and is continuing, then the Preferred Securities shall have a preference over
the Common Securities with regard to the Liquidation Distribution.
(e) After the date fixed for any distribution of Notes upon dissolution
of the Trust, (i) the Securities no longer shall be deemed to be outstanding and
(ii) the Certificates shall be deemed to represent the Notes in a principal
amount equal to the stated liquidation amount of the Securities, bearing accrued
and unpaid interest in an amount equal to the accumulated and unpaid
Distributions on the Securities, until such Certificates are presented to the
Regular Trustees or agent for transfer or reissuance.
ARTICLE 9
LIMITATION OF LIABILITY OF HOLDERS OF THE SECURITIES, THE DELAWARE
TRUSTEE AND OTHERS
Section 9.1 Liability.
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(a) Except as expressly set forth in this Declaration, the Guarantee
and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any
portion of the capital contributions (or any return thereon) of the
Holders of the Securities that will be made solely from assets of the
Trust; and
(ii) shall not be required to pay to the Trust or to any
Holder of the Securities any deficit, upon dissolution of the Trust or
otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, Holders of
the Securities shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
Section 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or to any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith on behalf of the Trust and in a manner
that such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence (or, in
the case of the Property Trustee, negligence) or willful misconduct with respect
to such acts or omissions.
(b) Each Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters such
Indemnified Person reasonably believes to be within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which distributions to Holders of the Securities might properly be paid.
Section 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein whenever:
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(i) a conflict of interest exists or arises between a Covered
Person and an Indemnified Person; or
(ii) this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a
manner that is, or provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Declaration or by applicable law.
Section 9.4 Indemnification.
(a) To the fullest extent permitted by applicable law, the Sponsor, in
its capacity as Notes Issuer, shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of gross negligence (or, in the case of the
Property Trustee, negligence) or willful misconduct with respect to such acts or
omissions.
(b) The provisions of this Section 9.4 shall survive the termination of
this Declaration or the resignation or removal of any Trustee.
(c) The Sponsor or the Trust may purchase and maintain insurance on
behalf of any Person who is or was an Indemnified Person against any liability
asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the Sponsor would have
the power to indemnify him or her against such liability under the provisions of
this Section 9.4.
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(d) For purposes of this Section 9.4, references to "the Trust" shall
include, in addition to the resulting or surviving entity, any constituent
entity (including any constituent of a constituent) absorbed in a consolidation
or merger, so that any Person who is or was a director, trustee, officer or
employee of such constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions of this Section
9.4 with respect to the resulting or surviving entity as he or she would have
had with respect to such constituent entity if its separate existence had
continued.
(e) The indemnification provided by, or granted pursuant to, this
Section 9.4 shall continue, unless otherwise provided when authorized or
ratified, as to a Person who has ceased to be an Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of such a
Person. The obligation to indemnify as set forth in this Section 9.4 shall
survive the resignation or removal of the Delaware Trustee or the Property
Trustee or the termination of this Declaration.
Section 9.5 Outside Businesses. Any Covered Person, the Sponsor, the Delaware
Trustee and the Property Trustee (subject to Section 6.3(c)) may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the activities of the
Trust, and the Trust and the Holders of the Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the activities of the Trust, shall not be deemed wrongful or
improper. Each Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee shall not be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE 10
ACCOUNTING
Section 10.1 Fiscal Year. The fiscal year ("Fiscal Year") of the Trust shall be
the calendar year, or such other year as is required by the Code.
Section 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or shall cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting
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for United States federal income tax purposes. The books of account and the
records of the Trust shall be examined by and reported upon as of the end of
each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to
each Holder of Securities, within 90 days after the end of each Fiscal Year of
the Trust, annual financial statements of the Trust, including a balance sheet
of the Trust as of the end of such Fiscal Year, and the related statements of
income or loss.
(c) The Regular Trustees shall cause to be duly prepared and delivered
to each Holder of Securities an annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall endeavor to deliver
all such statements within 30 days after the end of each Fiscal Year of the
Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with
the appropriate taxing authority an annual United States federal income tax
return, on Form 1041 or such other form required by United States federal income
tax law, and any other annual income tax returns required to be filed on behalf
of the Trust with any state or local taxing authority.
Section 10.3 Banking. The Trust shall maintain one or more bank accounts in the
name and for the sole benefit of the Trust; provided that all payments of funds
in respect of the Notes held by the Property Trustee shall be made directly to
the Property Account and no other funds of the Trust shall be deposited in the
Property Account. The sole signatories for such accounts shall be designated by
the Regular Trustees; provided that the Property Trustee shall designate the
signatories for the Property Account.
Section 10.4 Withholding. The Trust and the Regular Trustees shall comply with
all withholding requirements under United States federal, state and local law.
The Regular Trustees shall request, and the Holders of the Securities shall
provide to the Trust, such forms or certificates as are necessary to establish
an exemption from withholding with respect to each Holder of Securities and any
representations and forms as shall reasonably be requested by the Regular
Trustees to assist them in determining the extent of, and in fulfilling, the
Trust's withholding obligations. The Regular Trustees shall file the required
forms with applicable jurisdictions and, unless an exemption from withholding is
properly established by a Holder of Securities, shall remit amounts withheld
with respect to such Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder of Securities, the amount
withheld shall be deemed to be a distribution in the amount of the withholding
to such Holder. In the event of any claimed over withholding, a Holder shall be
limited to an action against the applicable jurisdiction. If the amount required
to be withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.
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ARTICLE 11
AMENDMENTS AND MEETINGS
Section 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended only by a
written instrument approved and executed by:
(i) the Sponsor;
(ii) the Regular Trustees (or, if there are more than two
Regular Trustees, a majority of the Regular Trustees);
(iii) the Property Trustee (if the amendment affects the
rights, powers, duties, obligations or immunities of the Property
Trustee); and
(iv) the Delaware Trustee (if the amendment affects the
rights, powers, duties, obligations or immunities of the Delaware
Trustee).
(b) No amendment shall be made, and any such purported amendment shall
be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee first has received an Officers' Certificate from each
of the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment that
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee first has received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of
this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (which may be counsel
to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to,
the terms of this Declaration (including the
terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to be classified other than
as a grantor trust for United States federal
income tax purposes;
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(B) reduce or otherwise adversely affect the
powers of the Property Trustee in
contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered
under the Investment Company Act.
(c) At such time after the Trust has issued any Securities that remain
outstanding, (i) any amendment that would (A) materially adversely affect the
powers, preferences or special rights of the Securities, whether by way of
amendment to this Declaration or otherwise or (B) result in the dissolution,
winding-up or termination of the Trust other than pursuant to the terms of this
Declaration shall not be effective except with the approval of the Holders of at
least a Majority in Liquidation Amount of the Securities, voting together as a
single class; provided that if any amendment or proposal referred to in clause
(A) above would materially adversely affect only the Preferred Securities or the
Common Securities, then only the affected class will be entitled to vote on such
amendment or proposal, and such amendment or proposal shall not be effective
except with the approval of a Majority in Liquidation Amount of the class of
Securities affected thereby; and (ii) any amendment that would (A) change the
amount or timing of any Distribution of the Securities or otherwise adversely
affect the amount of any Distribution require to be made in respect of the
Securities as of a specified date or (B) restrict the right of a Holder of
Securities to institute suit for the enforcement of an such payment on or after
such date shall not be effective except with the approval of each Holder of
Securities affected thereby.
(d) This Section 11.1 shall not be amended without the consent of all
of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the Holders
of the Common Securities.
(f) The rights of the Holders of the Common Securities under Articles 6
and 7 to increase or decrease the number of, and appoint and remove, Trustees
shall not be amended without the consent of the Holders of the Common
Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be amended
without the consent of the Holders of the Securities, provided that such
amendment does not have a material adverse effect on the rights, preferences or
privileges of the Holders of the Securities:
(i) to cure any ambiguity;
(ii) to correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other
provision of this Declaration;
(iii) to add to the covenants, restrictions or obligations of
the Sponsor;
(iv) to conform to any change in Rule 3a-5 or written change
in interpretation or application of Rule 3a-5 by any legislative body,
court, government agency or regulatory authority; or
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(v) to modify, eliminate and add to any provision of this
Declaration to ensure that the Trust will be classified as a grantor
trust for United States federal income tax purposes at all times that
any Securities are outstanding or to ensure that the Trust will not be
required to register as an Investment Company under the Investment
Company Act; provided that such modification, elimination or addition
would not adversely affect in any material respect the rights,
privileges or preferences of any Holder of Securities.
Section 11.2 Meetings of the Holders of the Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Regular Trustees (or as provided in the terms of the Securities)
to consider and act on any matter on which Holders of such class of Securities
are entitled to act under the terms of this Declaration, the terms of the
Securities or the rules of any stock exchange on which the Preferred Securities
are listed or admitted for trading. The Regular Trustees shall call a meeting of
the Holders of such class if directed to do so by the Holders of at least 10% in
Liquidation Amount of such class of Securities. Such direction shall be given by
delivering to the Regular Trustees a writing stating that the signing Holders of
the Securities wish to call a meeting and indicating the general or specific
purpose for which the meeting is to be called. The Holder or Holders of the
Securities calling a meeting shall specify in writing the Securities held by
such Holder or Holders, and only those Securities specified shall be counted for
purposes of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of the Holders of
the Securities:
(i) Notice of any such meeting shall be given to all the
Holders of the Securities having a right to vote thereat at least seven
days and not more than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the Holders of the Securities
is permitted or required under this Declaration or the rules of any
stock exchange on which the Preferred Securities are listed or admitted
for trading, such vote, consent or approval may be given at a meeting
of the Holders of the Securities. Any action that may be taken at a
meeting of the Holders of the Securities may be taken without a meeting
and without prior notice if a consent in writing setting forth the
action so taken is signed by the Holders of the Securities owning not
less than the minimum amount of Securities in liquidation amount that
would be necessary to authorize or take such action at a meeting at
which all Holders of the Securities having a right to vote thereon were
present and voting. Prompt notice of the taking of action without a
meeting shall be given to the Holders of the Securities entitled to
vote who have not consented in writing. The Regular Trustees may
specify that any written ballot submitted to the Holders of the
Securities for the purpose of taking any action without a meeting shall
be returned to the Trust within the time specified by the Regular
Trustees.
(ii) Each Holder of the Securities may authorize any Person to
act for it by proxy on any or all matters in which such Holder is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities
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executing such proxy. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be governed
by the General Corporation Law of the State of Delaware relating to
proxies, and judicial interpretations thereunder, as if the Trust were
a Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate.
(iv) Unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Preferred Securities are then listed
for trading otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings
of Holders of the Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any
Holders of the Securities, waiver of any such notice, action by consent
without a meeting without prior notice, the establishment of a record
date, quorum requirements, voting in person or by proxy or any other
matter with respect to the exercise of any such right to vote.
ARTICLE 12
REPRESENTATIONS OF THE PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE
Section 12.1 Representations and Warranties of the Property Trustee. The initial
Property Trustee represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Property Trustee represents and
warrants to the Trust and the Sponsor at the time of such Successor Property
Trustee's acceptance of its appointment as Property Trustee, that:
(a) the Property Trustee is a corporation or national banking
association duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization, with trust power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration;
(b) the Property Trustee satisfies the requirements set forth in
Section 6.3(a);
(c) the execution, delivery and performance by the Property Trustee of
this Declaration have been duly authorized by all necessary corporate action on
the part of the Property Trustee; this Declaration has been duly executed and
delivered by the Property Trustee, and it constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(d) the execution, delivery and performance of this Declaration by the
Property Trustee do not conflict with, nor constitute a breach of, the articles
of association or
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incorporation, as the case may be, or the by-laws (or other similar
organizational documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the execution
delivery or performance by the Property Trustee of this Declaration.
Section 12.2 Representations and Warranties of the Delaware Trustee. The initial
Delaware Trustee represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Delaware Trustee represents and
warrants to the Trust and the Sponsor at the time of such Successor Delaware
Trustee's acceptance of its appointment as Delaware Trustee, that:
(a) the Delaware Trustee satisfies the requirements set forth in
Section 6.2 and has the power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this Declaration and, if it
is not a natural person, is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization;
(b) the Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Declaration; and this Declaration
constitutes a legal, valid and binding obligation of the Delaware Trustee under
Delaware law, enforceable against it in accordance with its terms subject to
applicable bankruptcy, reorganization, moratorium, insolvency and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law); and
(c) no consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee of this Declaration.
ARTICLE 13
MISCELLANEOUS
Section 13.1 Notices. All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Property Trustee, the Delaware Trustee and the Holders of
the Securities):
IM Capital Trust I
745 Atlantic Avenue
Boston, Massachusetts 02111
Attention: [John P. Lawrence]
Telephone No: (617) 535-4766
Fax No: (617) 350-7881
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(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Regular Trustees, the Property Trustee and the Holders of the Securities):
[The Bank of New York (Delaware)]
[ ]
[ ]
[ ]
Attention: [ ]
Telephone No: [( ) ]
Fax No: [( ) ]
(c) if given to the Property Trustee, at its Corporate Trust Office
(telephone no. [( ) ] and fax no. [( ) ] (or such other address as the Property
Trustee may give notice of to the Regular Trustees, the Delaware Trustee and the
Holders of the Securities);
(d) if given to the Holders of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holders of
the Common Securities may give notice of to the Property Trustee, the Delaware
Trustee and the Trust):
Iron Mountain Incorporated
745 Atlantic Avenue
Boston, Massachusetts 02111
Attention: General Counsel
Telephone No: (617) 535-4766
Fax No: (617) 350-7881
(e) if given to any Holder of Preferred Securities, at such Holder's
address as set forth in the register of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed or mailed by first class mail, postage
prepaid, except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
Section 13.2 Governing Law. This Declaration and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware, without regard to principles of conflicts of laws.
Section 13.3 Intention of the Parties. It is the intention of the parties hereto
that the Trust be classified for United States federal income tax purposes as a
grantor trust. The provisions of this Declaration shall be interpreted in a
manner consistent with such classification.
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Section 13.4 Headings. The headings contained in this Declaration are inserted
for convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
Section 13.5 Successors and Assigns. Whenever in this Declaration any of the
parties hereto is named or referred to, the successors and assigns of such party
shall be deemed to be included, and all covenants and agreements in this
Declaration by the Sponsor and the Trustee shall bind and inure to the benefit
of their respective successors and assigns, whether so expressed.
Section 13.6 Partial Enforceability. If any provision of this Declaration or the
application of such provision to any Person or circumstance is held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 13.7 Counterparts. This Declaration may contain more than one
counterpart of the signature page, and this Declaration may be executed by the
affixing of the signature of each of the Trustees to one of such counterpart
signature pages. All such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
Section 13.8 Waiver of Jury Trial. Each of the Sponsor, the Trust, and the
Trustees hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Declaration, the Securities or the
transactions contemplated hereby.
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
IRON MOUNTAIN INCORPORATED,
as Sponsor and Notes Issuer
By:
Name: [John P. Lawrence]
Title: [Vice President and Treasurer]
[THE BANK OF NEW YORK],
as Property Trustee
By:
Name:
Title:
[THE BANK OF NEW YORK (DELAWARE)],
as Delaware Trustee
By:
Name:
Title:
[John P. Lawrence], as Regular Trustee
[ ], as Regular Trustee
[ ], as Regular Trustee
[Signature page for Amended and Restated Declaration of Trust of IM Capital
Trust I]
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EXHIBIT A
FORM OF PREFERRED SECURITIES CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL SECURITY, INSERT A LEGEND
SUBSTANTIALLY TO THE FOLLOWING EFFECT: This Preferred Security is a Global
Security within the meaning of the Amended and Restated Declaration of Trust of
IM CAPITAL TRUST I hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation (the "Depositary"), or a
nominee of the Depositary. This Preferred Security is exchangeable for Preferred
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Amended and Restated
Declaration of Trust of IM Capital Trust I, and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered, except
in limited circumstances.
Unless this Preferred Security Certificate is presented by an
authorized representative of the Depositary to the issuer or its agent for
registration of transfer, exchange or payment, and any Preferred Security
Certificate issued is registered in the name of Cede & Co. or such other name as
registered by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), and except as otherwise provided
in the Amended and Restated Declaration of Trust of IM Capital Trust I dated as
of [ , ], ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL, since the registered owner hereof, Cede & Co., has an
interest herein.]
Certificate No. __________ Number of Preferred Securities: ___________
CUSIP No. ________________ Aggregate Liquidation Amount: $____________
Certificate Evidencing Preferred Securities
of
IM Capital Trust I
Preferred Securities
(liquidation amount $[ ] per Preferred Security)
IM Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that [__________] (the
"Holder") is the registered owner of ____ preferred securities of the Trust
representing undivided beneficial interests in the assets
A-1
of the Trust designated the Preferred Securities (liquidation amount $[ ] per
Preferred Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the register of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in the Declaration (as defined below). The designation
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities represented hereby are issued and shall in all respect
be subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of [ , ] (as the same may be amended from time to time (the
"Declaration")), among Iron Mountain Incorporated, as Sponsor, [John P.
Lawrence][, and ], as Regular Trustees, [The Bank of New York], as Property
Trustee, [The Bank of New York (Delaware)], as Delaware Trustee, and the holders
from time to time, of undivided beneficial ownership interests in the assets of
the Trust. Capitalized terms used herein but not defined shall have the meaning
given them in the Declaration. The Holder is entitled to the benefits of the
Guarantee Agreement, dated as of [ , ], as the same may be amended from time to
time, of Iron Mountain Incorporated, in respect of the Preferred Securities. The
Sponsor will provide a copy of the Declaration, the Guarantee and the Indenture
to a Holder without charge upon written request to the Sponsor at its principal
place of business.
Upon receipt of this certificate, the Holder is bound by the terms of
the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Notes as indebtedness of the Sponsor and the Preferred
Securities as evidence of undivided beneficial ownership interests in the Notes.
IN WITNESS WHEREOF, the Trust has executed this certificate this [ ]
day of [ , ].
IM CAPITAL TRUST I
By:
-----------------------------------
[John P. Lawrence], as Regular Trustee
This is one of the Securities referred to in the within-mentioned
Declaration.
[THE BANK OF NEW YORK], as
Property Trustee
A-2
By:
---------------------------------------
Title:
------------------------------------
A-3
EXHIBIT B
FORM OF COMMON SECURITIES CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE DECLARATION
(AS DEFINED BELOW)
Certificate No.______ Number of Common Securities: _______
Aggregate Liquidation Amount: $______
Certificate Evidencing Common Securities
of
IM Capital Trust I
Common Securities
(liquidation amount $[ ] per Common Security)
IM Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
_________________________ (the "Holder") is the registered owner of
_________________ common securities of the Trust representing an undivided
beneficial interest in the assets of the Trust designated the Common Securities
(liquidation amount $[ ] per Common Security) (the "Common Securities"). Except
as provided in the Declaration (as defined below), the Common Securities are not
transferable, and any attempted transfer thereof shall be void. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of [ , ], (as the same may be amended from time to time, the
"Declaration")), among Iron Mountain Incorporated, as Sponsor, [John P.
Lawrence][, and ], as Regular Trustees, [The Bank of New York], as Property
Trustee, [The Bank of New York (Delaware)], as Delaware Trustee, and the
holders, from time to time, of undivided beneficial ownership interests in the
assets of the Trust. The Sponsor will provide a copy of the Declaration and the
Indenture to the Holder without charge upon written request to the Sponsor at
its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
terms of the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Notes as indebtedness of the Sponsor and the
Common Securities as evidence of an undivided beneficial ownership interest in
the Notes.
B-1
IN WITNESS WHEREOF, the Trust has executed this certificate this [ ]
day of [ , ].
IM CAPITAL TRUST I
By:
-----------------------------------
[John P. Lawrence], as Regular Trustee
B-2