As filed with the Securities and Exchange Commission on January 13, 1998
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
IRON MOUNTAIN INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 4226 04-3107342
(State or other (primary standard Industrial (I.R.S. Employer
jurisdiction of classification code number) Identification Number)
incorporation or
organization)
745 Atlantic Avenue
Boston, Massachusetts 02111
(617) 357-4455
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
---------------------
C. Richard Reese
Chairman of the Board of Directors and Chief Executive Officer
Iron Mountain Incorporated
745 Atlantic Avenue
Boston, Massachusetts 02111
(617) 357-4455
(Name, address, including zip code, telephone number, including area
code, of agent for service)
---------------------
Copy to:
Susan Forest Barrett, Esq.
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
---------------------
Approximate date of commencement of proposed sale to the public: From
time to time or at one time after the effective date of the Registration
Statement as determined by the Registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_| _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_| _____________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
-----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Maximum Proposed Maximum
Amount to Offering Price Aggregate Offering Amount of
Title of Each Class of Securities to be Registered(1) be Registered Per Unit(2)(3) Price(4)(5) Registration Fee(4)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities (6) ...........................
Guarantees of the Debt Securities .............
Preferred Stock, par value $.01 per share ......
Depositary Shares Representing Preferred Stock..
Common Stock, par value $.01 per share ........
Warrants........................................
Total $ 350,000,000 $ 350,000,000 $ 103,250 (8)
====================================================================================================================================
(Footnotes on next page)
<PAGE>
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<FN>
(1) The Debt Securities, Guarantees, Preferred Stock, Depositary Shares, Common Stock and/or Warrants covered hereby are
collectively referred to as the "Offered Securities". The Offered Securities registered hereunder may be sold separately,
together or as units with other Offered Securities registered hereunder. Subject to Footnote (4), there are being
registered hereunder an indeterminate principal amount of Offered Securities as may be sold from time to time by the
Registrant. This Registration Statement also covers contracts that may be issued by the Registrant under which the
counterparty may be required to purchase Offered Securities. Such contracts would be issued with Offered Securities. There
are also being registered hereunder an indeterminate principal amount of Offered Securities as may be issuable upon
conversion or exchange of Debt Securities, Preferred Stock or Warrants or pursuant to antidilution provisions thereof.
There are also being registered an indeterminate principal amount of Guarantees of the Debt Securities by the Guarantors
(as defined herein).
(2) In U.S. dollars or the equivalent thereof in one or more foreign currencies or currency units or composite currencies,
including the European Currency Unit.
(3) The proposed maximum offering price per unit will be determined from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder.
(4) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). In no event will the
aggregate initial offering price of the Offered Securities issued under this Registration Statement exceed $350,000,000 or
the equivalent thereof in one or more foreign or composite currencies.
(5) No separate consideration will be received for (i) the Guarantees, (ii) Debt Securities, Guarantees, Common Stock,
Preferred Stock or Depositary Shares that are issued upon conversion of Debt Securities, Preferred Stock or Depositary
Shares or (iii) Debt Securities, Guarantees, Common Stock, Preferred Stock or Depositary Shares that are issued upon
exercise of Warrants registered hereby.
(6) If any such Debt Securities are issued at an original issue discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering price of up to $350,000,000.
(7) The aggregate amount of Common Stock registered hereunder is limited to that which is permissible under Rule 415(a)(4)
under the Securities Act of 1933, as amended.
(8) Calculated pursuant to Rule 457(o) of the rules and regulations under the Securities Act of 1933, as amended.
</FN>
</TABLE>
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there by any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
Subject to Completion
Preliminary Prospectus Dated January 13, 1998
PROSPECTUS
$350,000,000
Iron Mountain Incorporated
Debt Securities, Preferred Stock, Depositary Shares,
Common Stock and Warrants
----------------------
Iron Mountain Incorporated (the "Company" or "Iron Mountain") may from time
to time offer in one or more series (i) its debt securities (the "Debt
Securities"), (ii) its shares of preferred stock, par value $.01 per share (the
"Preferred Stock"), (iii) fractional shares of the Preferred Stock (the
"Depositary Shares"), (iv) its shares of common stock, par value $.01 per share
(the "Common Stock"), or (v) warrants to purchase any of the above securities
(the "Warrants"), with an aggregate public offering price of up to $350,000,000
on terms to be determined at the time of offering. The Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Warrants may be offered,
separately or together, in separate series, in amounts, at prices and on terms
to be set forth in a supplement to this Prospectus (a "Prospectus Supplement").
In connection with the Debt Securities, substantially all of the present
and future subsidiaries of Iron Mountain (the "Guarantors") may, on a joint and
several basis, offer full and unconditional guarantees ("Guarantees") of Iron
Mountain's obligations under the Debt Securities. The Debt Securities,
Guarantees, Preferred Stock, Depository Shares, Common Stock and Warrants are
collectively referred to as the "Offered Securities."
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable: (i) in the case of Debt
Securities, the specific title, aggregate principal amount, currency, form
(which may be registered or bearer, or certificated or global), authorized
denominations, maturity, rate (or manner of calculation thereof) and time of
payment of interest, terms for redemption at the option of the Company or
repayment at the option of the holder, terms for sinking fund payments, terms
for conversion into Preferred Stock, Depositary Shares or Common Stock, terms of
subordination to other indebtedness of the Company, terms of related Guarantees
(if any), terms of security or pledge of assets (if any), and any original issue
discount and any initial public offering price; (ii) in the case of Preferred
Stock, the specific title and stated value, any dividend, liquidation,
redemption, conversion, voting and other rights, and any initial public offering
price; (iii) in the case of Depositary Shares, the fractional shares of
Preferred Stock represented by each Depositary Share, (iv) in the case of Common
Stock, any offering price; and (v) in the case of Warrants, the securities to
which they relate, duration, offering price, exercise price and detachability.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered Securities
covered by such Prospectus Supplement. Any statement contained in this
Prospectus will be deemed to be modified or superseded by any inconsistent
statement contained in the accompanying Prospectus Supplement.
The Common Stock is traded on the Nasdaq National Market System under the
symbol "IMTN." Application will be made to list any shares of Common Stock sold
pursuant to a Prospectus Supplement on the Nasdaq National Market System,
subject to official notice of issuance. Iron Mountain has not yet determined
whether any of the Debt Securities, Preferred Stock or Depository Shares offered
hereby will be listed on any exchange or over-the-counter market. If Iron
Mountain decides to seek listing of any such Offered Securities, the Prospectus
Supplement relating thereto will disclose such exchange or market.
----------------------
See "RISK FACTORS" at page 1 for certain information that should be
considered by prospective investors.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COM-
MISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<PAGE>
----------------------
The Offered Securities may be offered directly, through agents designated
from time to time by the Company or to or through underwriters or dealers. If
any agents or underwriters are involved in the sale of any of the Offered
Securities, their names, and any applicable purchase price, fee, commission or
discount arrangement between or among them, will be set forth, or will be
calculable from the information set forth, in an accompanying Prospectus
Supplement. See "Plan of Distribution." No Offered Securities may be sold
without delivery of a Prospectus Supplement describing the method and terms of
the offering of such Offered Securities.
----------------------
The date of this Prospectus is _____________, 1998.
(ii)
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus in connection with the offer contained in this Prospectus and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Company or any underwriters, agents or dealers.
This Prospectus does not constitute an offer to sell or solicitation of an offer
to buy securities in any jurisdiction to any person to whom it is unlawful to
make such offer or solicitation. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, create an implication that
there has been no change in the affairs of the Company and its subsidiaries
since the date hereof or the information contained or incorporated by reference
herein is correct at any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") in Washington, D.C., a registration statement on Form S-3
(together with all exhibits, schedules and amendments thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Offered Securities. This Prospectus, which is a part of the
Registration Statement, does not contain all of the information set forth in the
Registration Statement. Statements in this Prospectus as to the contents of any
contract or other document are not necessarily complete, and in each instance
reference is made to the copy of such contract or other documents filed as an
exhibit to the Registration Statement, each such statement being qualified in
all respects by such reference and the exhibits and schedules thereto. For
further information concerning the Company and the Offered Securities, reference
is made to the Registration Statement. Copies of the Registration Statement may
be obtained from the Commission at its principal office in Washington, D.C. upon
payment of the prescribed fee.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Commission. The
Registration Statement, the exhibits and schedules forming a part thereof and
the reports, proxy statements and other information filed by the Company with
the Commission can be inspected and copies obtained at the public reference
facilities maintained by the Commission at Judiciary Plaza, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following regional offices of
the Commission: Chicago Regional Office, Suite 1400, 500 West Madison Street,
Chicago, Illinois 60661-2511; and New York Regional Office, Seven World Trade
Center, New York, New York 10048. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission maintains a World Wide Web site that contains reports, proxy and
information statements and other information regarding registrants, including
the Company, that file electronically with the Commission. The address of the
site is http://www.sec.gov. In addition, reports, proxy statements and other
information concerning the Company may be inspected at the offices of Nasdaq
operations, 1735 K Street N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by Iron Mountain with the
Commission (file no. 0-27584) pursuant to the Exchange Act, are hereby
incorporated in this Prospectus and specifically made a part hereof by
reference: (i) Annual Report on Form 10-K for the fiscal year ended December 31,
1996 (the "Annual Report"), (ii) Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997, (iii) Current
Reports on Form 8-K dated June 25, 1997 (as amended August 26, 1997), October 1,
1997, October 16, 1997 (as amended November 10, 1997), October 30, 1997,
November 25, 1997 and January 13, 1998 and (iv) the description of the Common
Stock contained in the Company's Registration Statement on Form 8-A dated
January 18, 1996. In addition, the financial information contained in Iron
Mountain's Registration Statements on Form S-4 (i) file no. 333-24635, filed
with the Commission on April 4, 1997, as amended on May 7, 1997 and May 13,
1997, as made effective by the Commission on May 14, 1997, and (ii) file no.
333-41715,
(iii)
<PAGE>
filed with the Commission on December 8, 1997, as made effective by the
Commission on December 11, 1997 is incorporated herein by reference. All
documents filed by Iron Mountain pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the initial Registration Statement
and prior to the effectiveness of the Registration Statement and subsequent to
the date of this Prospectus and prior to the termination of the offering of the
Offered Securities shall be deemed to be incorporated by reference into the
Registration Statement and to be a part hereof from the respective dates of
filing of any such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
(or in the applicable Prospectus Supplement), or in any other subsequently filed
document that also is or is deemed to be incorporated herein by reference,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom this Prospectus is delivered, upon the written or oral request of such
person, a copy of any and all of the information that has been incorporated by
reference in this Prospectus (excluding exhibits unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates). Requests for such copies should be made to the Company at its
principal executive offices, 745 Atlantic Avenue, Boston, Massachusetts 02111,
Attention: John F. Kenny, Jr., Executive Vice President and Chief Financial
Officer.
(iv)
<PAGE>
RISK FACTORS
Investors should carefully consider the following risk factors, in addition
to the other information contained in this Prospectus and any Prospectus
Supplement, before purchasing any of the Offered Securities. This Prospectus
sets forth or incorporates by reference forward-looking statements within the
meaning of Section 27A of the Securities Act, such as those regarding the goals,
beliefs, plans or current expectations of the Company and its management and
other statements contained in this Prospectus regarding matters that are not
historical facts. Because such forward-looking statements include risks and
uncertainties, actual results may differ materially from those expressed in or
implied by such forward-looking statements. Factors that could cause actual
results to differ materially include, but are not limited to, the risk factors
set forth below and the matters set forth or incorporated by reference in this
Prospectus generally and any Prospectus Supplement. The Company undertakes no
obligation to release publicly the results of any revisions to these
forward-looking statements that may be made to reflect future events or
circumstances or to reflect unanticipated events.
Risks Associated with Acquisition Strategy
Iron Mountain has pursued and intends to continue to pursue acquisitions of
records management and related service businesses as a key component of its
growth strategy. Certain risks are inherent in an acquisition strategy, such as
increasing leverage and debt service requirements and combining disparate
company cultures and facilities, which could adversely affect Iron Mountain's
operating results. The success of any completed acquisition will depend in part
on Iron Mountain's ability to integrate effectively the acquired businesses into
Iron Mountain. The process of integrating such acquired businesses may involve
unforeseen difficulties and may require a disproportionate amount of
management's attention and Iron Mountain's financial and other resources. No
assurance can be given that additional suitable acquisition candidates will be
identified, financed and purchased on acceptable terms, or that recent
acquisitions or future acquisitions, if completed, will be successful.
In September, 1997 Iron Mountain amended and restated its bank facility,
dated as of September 30, 1996 among Iron Mountain, the lenders party thereto
and The Chase Manhattan Bank, as Administrative Agent (the "Credit Agreement").
Under the terms of the Credit Agreement, acquisitions by Iron Mountain involving
in excess of (i) $65 million (other than the acquisition of Arcus Group, Inc.
(the "Arcus Acquisition") and the acquisition of HIMSCORP, Inc. ("HIMSCORP"))
for any one acquisition and (ii) $150 million in the aggregate or $100 million
in cash for 1998 or any subsequent year require the approval of lenders holding
51% or more of the commitments under the Credit Agreement. No assurance can be
given that the lenders will consent to any acquisitions that Iron Mountain
proposes to make in excess of such limits.
The size, timing and integration of possible future acquisitions may cause
substantial fluctuations in operating results from quarter to quarter. As a
result, operating results for any quarter may not be indicative of the results
that may be achieved for any subsequent fiscal quarter or for a full fiscal
year.
Competition; Alternative Technologies
Iron Mountain has one or more competitors in all geographic areas where it
operates. Iron Mountain believes that competition for customers is based on
price, reputation for reliability, quality of service and scope and scale of
technology, and believes that it generally competes effectively based on these
factors. As a result of this competition, the records management industry has
for the past several years experienced downward pricing pressures. While Iron
Mountain believes that this pricing climate is stabilizing, there can be no
assurance that prices will not decline further, as competitors seek to gain or
preserve market share. Should a further downward trend in pricing occur or
continue for an extended period of time, it could have a material adverse effect
on Iron Mountain's results of operations. Iron Mountain also competes for
acquisition candidates. Some of Iron Mountain's competitors may possess greater
financial and other resources than Iron Mountain. If any such competitor were to
devote additional resources to the records management business and such
acquisition candidates or to focus its strategy on Iron Mountain's markets, Iron
Mountain's results of operations could be adversely affected. In addition, Iron
Mountain
<PAGE>
faces competition from the internal document handling capability of its current
and potential customers. There can be no assurance that these organizations will
outsource more of their document management needs or that they will not bring
in-house some or all of the functions they currently outsource.
The substantial majority of Iron Mountain's revenues have been derived from
the storage of paper documents and from related services. Such storage requires
significant physical space. Alternative technologies for generating, capturing,
managing, transmitting and storing information have been developed, many of
which require significantly less space than paper. Such technologies include
computer media, microforms, audio/video tape, film, CD-ROM and optical disk.
None of these technologies has replaced paper as the principal means for storing
information. However, there can be no assurance that one or more non-paper-based
technologies (whether now existing or developed in the future) may not in the
future reduce or supplant the use of paper as a preferred medium, which could in
turn adversely affect Iron Mountain's business.
Financial Leverage; Debt Service Requirements
Iron Mountain is highly leveraged due to the substantial indebtedness it
has incurred primarily to finance acquisitions and expand its operations. Iron
Mountain expects to continue to borrow under the Credit Agreement and possible
future credit arrangements in order to finance possible future acquisitions and
for general corporate purposes.
The ability of Iron Mountain to repay its indebtedness depends upon future
operating performance, which is subject to the success of Iron Mountain's
business strategy, prevailing economic conditions, levels of interest rates and
financial, business and other factors, many of which are beyond Iron Mountain's
control. The debt service obligations of Iron Mountain could have important
consequences, including the following: (i) the ability of Iron Mountain to
obtain additional financing for future working capital needs or for possible
future acquisitions or other purposes may be limited; (ii) a substantial portion
of Iron Mountain's cash flow from operations will be dedicated to the payment of
principal and interest on its indebtedness, thereby reducing funds available for
other purposes; (iii) Iron Mountain may be more vulnerable to adverse economic
conditions than some of its competitors and thus may be limited in its ability
to withstand competitive pressures; and (iv) Iron Mountain may be more highly
leveraged than certain of its competitors, which may place it at a competitive
disadvantage.
A substantial portion of Iron Mountain's cash flow from operations is
required for debt service. Management believes that cash flow from operations in
conjunction with borrowings from existing and possible future credit facilities
will be sufficient for the foreseeable future to meet debt service requirements
and to make possible future acquisitions and capital expenditures. However,
there can be no assurance in this regard, and Iron Mountain's leverage could
make it vulnerable to a downturn in the operating performance of its
subsidiaries, a downturn in economic conditions or, because borrowings under the
Credit Agreement bear interest at rates which fluctuate, increases in interest
rates on borrowings under the Credit Agreement. If such cash flow were not
sufficient to meet such debt service requirements or payments of principal, Iron
Mountain could be required to sell additional equity securities, refinance its
obligations or dispose of assets in order to make such scheduled payments. There
can be no assurance that Iron Mountain would be able to effect any of such
transactions or do so on favorable terms.
Casualty
Iron Mountain currently maintains and intends to continue to maintain, to
the extent such insurance is available on commercially reasonable terms,
comprehensive liability, fire, flood and earthquake (where appropriate) and
extended coverage insurance with respect to the properties that it now owns or
leases or that it may in the future own or lease, with customary limits and
deductibles. Certain types of loss, however, may not be fully insurable on a
cost-effective basis, such as losses from earthquakes, or may be altogether
uninsurable, such as losses from riots. Iron Mountain has in the past suffered
damages and losses from an earthquake and a riot in California, which damages
and losses were substantially covered by insurance. In March 1997, Iron Mountain
experienced three fires, all of which authorities have determined were caused by
arson and which resulted in extensive damage to one and destruction of the
Company's other records management facility in South Brunswick Township, New
Jersey. Iron
2
<PAGE>
Mountain has filed several insurance claims related to the South Brunswick
fires, including a significant claim under its business interruption insurance
policy. Some of the Company's customers or their insurance carriers have
asserted claims or filed lawsuits as a consequence of the destruction of or
damage to their records due to the fires. The Company is a defendant in three
such lawsuits. The outcome of these claims and proceedings cannot be predicted.
Based on its present assessment of the situation, after consultation with legal
counsel, management does not believe that the outcome of these claims and
lawsuits will have a material adverse effect on Iron Mountain's financial
condition or results of operations, although there can be no assurance in this
regard.
In the future, should uninsured losses or damages occur, Iron Mountain
could lose both its investment in and anticipated profits and cash flow from the
affected property and may continue to be obligated on any leasehold obligations,
mortgage indebtedness or other obligations related to such property. As a
result, any such loss could materially adversely affect Iron Mountain.
History of Losses; EBITDA Objective
Iron Mountain has a history of experiencing net losses applicable to common
stockholders. Such net losses are attributable in part to significant non-cash
charges associated with Iron Mountain's pursuit of its growth strategy, namely,
(i) depreciation and amortization expenses associated with expansion of Iron
Mountain's storage capacity and (ii) goodwill amortization associated with
acquisitions accounted for under the purchase method. In addition, net income
applicable to common stockholders has been negatively affected by a charge for
accretion of a redeemable put warrant and, in 1996, by an extraordinary charge
related to the early retirement of debt. The put warrant was redeemed in
February 1996, upon completion of Iron Mountain's initial public offering.
Iron Mountain's primary financial objective is to increase its earnings
before interest, taxes, depreciation, amortization and extraordinary items
("EBITDA"), which is a source of funds to service indebtedness and for
investment in continued internal growth and growth through acquisitions, and not
net income and net income applicable to common stockholders. Iron Mountain has
benefited from growth in EBITDA, while net losses applicable to common
stockholders have increased over such period. Based on its experience in the
records management industry, Iron Mountain believes that EBITDA is an important
tool for measuring the performance of records management companies (including
potential acquisition targets) in several areas, such as liquidity, operating
performance and leverage. In addition, lenders use EBITDA as a criterion in
evaluating records management companies, and Iron Mountain's financing
agreements contain covenants in which EBITDA is used as a measure of financial
performance. Other measures of Iron Mountain's financial performance, such as
net income and net income applicable to common stockholders, have been
negatively affected by pursuit of Iron Mountain's objective to increase EBITDA
and may be negatively affected in the future. In addition, execution of Iron
Mountain's growth strategy could result in future net losses due to increased
interest expense associated with borrowings under the Credit Agreement and
possible future credit arrangements and increased depreciation and amortization
expenses.
Anti-Takeover Effect of Certain Provisions of Iron Mountain's Certificate of
Incorporation, By-Laws and the Notes Indentures
Certain provisions of Iron Mountain's Amended and Restated Certificate of
Incorporation (the "Restated Certificate") and Iron Mountain's By-Laws (the
"By-Laws") could have the effect of making it more difficult for a third party
to acquire, or discouraging a third party from acquiring, a majority of the
outstanding capital stock of Iron Mountain and could make it more difficult to
consummate certain types of transactions involving an actual or potential change
in control of Iron Mountain, such as a merger, tender offer or proxy contest.
The Restated Certificate also provides for three classes of Directors, as equal
in number as possible, to be elected on a staggered basis (one class per year).
As a result of such a provision, it would generally require at least two
elections of the Iron Mountain Board to replace a majority of the members of the
Iron Mountain Board, thereby enabling existing management to exercise
significant control over Iron Mountain's affairs during such period. Pursuant to
the Restated Certificate, shares of Preferred Stock may be issued in the future
without further stockholder approval and upon such terms and conditions, and
having such rights, privileges and preferences (including the right to vote and
the right to convert into Common
3
<PAGE>
Stock), as the Iron Mountain Board may determine. Pursuant to the By-Laws,
approximately 4 million shares of Common Stock that were issued by the Company
in five acquisitions are subject to restrictions on transfer for varying periods
of time, all of which expire by January 1999. A significant portion of such
shares are held by affiliates.
Iron Mountain currently has outstanding $165,000,000 in aggregate principal
amount of 10 1/8% Senior Subordinated Notes due 2006 issued in October 1996 (the
"1996 Notes") and $250,000,000 in aggregate principal amount of 8 3/4% Senior
Subordinated Notes due 2009 issued in October 1997 (the "1997 Notes," and
collectively with the 1996 Notes, the "Senior Subordinated Notes"). Under
certain circumstances relating to a change of control of Iron Mountain (a
"Change of Control") as set forth in the indentures for the Senior Subordinated
Notes (the "Notes Indentures"), Iron Mountain will be required to make an offer
to purchase all of the outstanding Senior Subordinated Notes at a purchase
price, in cash, equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of purchase. There can be no assurance that
Iron Mountain would be able to obtain such funds through a refinancing of the
Senior Subordinated Notes to be purchased or otherwise, or that the purchase
would be permitted under the Credit Agreement. Also, the requirement that Iron
Mountain make an offer to purchase all of the Senior Subordinated Notes then
outstanding in the event of a Change of Control may have the effect of deterring
a third party from effecting a transaction that would constitute a Change of
Control.
Control by Principal Stockholders
The voting power held by certain large stockholders of Iron Mountain may
have the effect of discouraging certain types of transactions involving an
actual or potential change of control of Iron Mountain, including transactions
in which the holders of Common Stock might otherwise receive a premium for their
shares over then-current market prices. In addition, as a result of such voting
power such stockholders have the ability to significantly affect the election of
Directors of Iron Mountain who, in turn, control the management and affairs of
Iron Mountain.
Restrictions Imposed by Terms of Indebtedness; Dependence Upon Operations of
Subsidiaries
The Credit Agreement and the Notes Indentures contain covenants restricting
or limiting the ability of the Company and its subsidiaries to, among other
things: (i) incur additional indebtedness; (ii) pay dividends or make other
restricted payments; (iii) make asset dispositions; (iv) permit liens; (v) enter
into sale and leaseback transactions; (vi) enter into certain mergers; (vii)
make certain investments; and (viii) enter into transactions with related
persons. This may adversely affect the Company's ability to pursue its
acquisition strategy. The Credit Agreement also requires the Company to maintain
specific financial ratios and to satisfy certain financial condition tests. The
Company's ability to meet those financial ratios and financial condition tests
can be affected by events beyond its control, and there can be no assurance that
the Company will meet those tests. The breach of any of those covenants could
result in a default under the Credit Agreement, the Notes Indentures or all of
them. In the event of a default under the Credit Agreement or the Notes
Indentures, the lenders could seek to declare all amounts outstanding under the
Credit Agreement, together with accrued and unpaid interest, if any, to be
immediately due and payable. If the Company were unable to repay those amounts,
the lenders under the Credit Agreement could proceed against the collateral
granted to them to secure that indebtedness. If the indebtedness under the
Credit Agreement or the Notes Indentures were to be accelerated, there can be no
assurance that the assets of the Company would be sufficient to repay in full
that indebtedness and the other indebtedness of the Company.
Substantially all of the tangible assets of the Company are held by, and
substantially all of the Company's operating revenues are derived from
operations of, the Company's subsidiaries. Therefore, the Company's ability to
pay interest and principal when due under the Credit Agreement and the Senior
Subordinated Notes is dependent upon the receipt of sufficient funds from such
subsidiaries. The Company's obligations under the Credit Agreement and the
Senior Subordinated Notes are guaranteed, jointly and severally, by
substantially all of the Company's present and future subsidiaries.
4
<PAGE>
Environmental Matters
As of September 30, 1997, Iron Mountain owned or leased over 150 records
management facilities. Under various federal, state and local environmental
laws, ordinances and regulations ("Environmental Laws"), an owner of real estate
or a lessee conducting operations thereon may become liable for the costs of
investigation, removal or remediation of soil and groundwater contaminated by
certain hazardous substances or wastes or petroleum products. Certain such laws
impose cleanup responsibility and liability without regard to whether the owner
or operator of the real estate or operations thereon knew of or was responsible
for the contamination, and whether or not operations at the property have been
discontinued or title to the property has been transferred. In addition, the
presence of such substances, or the failure to properly remediate such property,
may adversely affect the current property owner's or operator's ability to sell
or rent such property or to borrow using such property as collateral. The owner
or operator of contaminated real estate also may be subject to common law claims
by third parties based on damages and costs resulting from off-site migration of
the contamination.
Certain Environmental Laws govern the removal, encapsulation or disturbance
of asbestos-containing materials ("ACMs"). Such laws may impose liability for
release of ACMs and may enable third parties to seek recovery from owners or
operators of real estate for personal injury associated with exposure to such
substances. Certain facilities operated by Iron Mountain contain or may contain
ACMs. In addition, certain of the properties formerly or currently owned or
operated by Iron Mountain were previously used for industrial or other purposes
that involved the use or storage of hazardous substances or petroleum products
or the generation and disposal of hazardous wastes, and in some instances,
included the operation of underground storage tanks ("USTs"). In connection with
its former and current ownership or operation of certain properties, Iron
Mountain may be potentially liable for environmental costs such as those
discussed above. Iron Mountain has from time to time conducted certain
environmental investigations and remedial activities at certain of its former
and current facilities, but an in-depth environmental review of all properties
has not yet been conducted by or on behalf of Iron Mountain.
Iron Mountain believes it is in substantial compliance with all applicable
material Environmental Laws. No assurance can be given that there are, or as a
result of possible future acquisitions there will be, no environmental
conditions for which Iron Mountain might be liable in the future or that future
regulatory action, as well as compliance with future Environmental Laws, will
not require Iron Mountain to incur costs for or at its properties that could
have a material adverse effect on Iron Mountain's financial condition and
results of operations.
No Intention to Pay Dividends
Iron Mountain has never declared or paid cash dividends on its capital
stock. Iron Mountain intends to retain future earnings for use in its business
and does not anticipate declaring or paying any cash dividends on shares of
Common Stock in the foreseeable future. In addition, Iron Mountain is currently
restricted under the terms of the Credit Agreement and the Notes Indentures from
declaring or paying cash dividends on its Common Stock.
5
<PAGE>
THE COMPANY
Iron Mountain is America's largest records management company, as measured
by its revenues. The Company is a national, full-service provider of records
management and related services, enabling customers to outsource records
management functions. Iron Mountain has a diversified customer base, which
includes more than half of the Fortune 500 and numerous commercial, legal,
banking, healthcare, accounting, insurance, entertainment and government
organizaitions. The Company provides storage and related services for all major
media, including paper (the dominant form of record storage), computer disk and
tapes, microfilm and microfiche, master audio and video tapes, film and optical
disks, X-rays and blueprints. Iron Mountain's principal services provided to its
storage customers include courier pick-up and delivery, filing, retrieval and
destruction of records, database management, customized reporting and disaster
recovery support. The Company also sells storage materials and provides
consulting, facilities management, information technology staffing and other
outsourcing services.
Iron Mountain was incorporated in Delaware in 1990 but its predecessor
operations date from 1951. The principal executive office of the Company is
located at 745 Atlantic Avenue, Boston, Massachusetts 02111. Its telephone
number is (617) 357-4455.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Offered Securities
for general corporate purposes, which may include acquisitions, investments and
the repayment of indebtedness outstanding at such time or the reduction of
amounts outstanding under the Credit Agreement or any other credit facility.
Pending utilization as set forth above, the proceeds from the sale of the
Offered Securities will be invested in short-term, dividend-paying or
interest-bearing investment grade securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratio of earnings
to fixed charges for the periods indicated (dollars in thousands):
<TABLE>
<CAPTION>
Pro Forma(1)
-------------------------
For the For the nine
Nine months ended year ended months ended
Year ended December 31, September 30, December 31, September 30,
-------------------------------------------- --------------------- ------------ ------------
1992 1993 1994 1995 1996 1996 1997 1996 1997
---- ---- ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings
to fixed charges 1.3x 1.3x 1.2x 1.1x 1.1x 1.1x 0.9x(2) 0.7x(3) 0.8x(4)
- ------------
<FN>
1 Does not include results of operations prior to the date of acquisition,
or pro forma adjustments, for acquisitions completed by HIMSCORP or Arcus
Group, Inc. in 1996 and 1997.
2 The Company reported a pretax loss for the nine months ended September 30,
1997. For such period the Company would have needed to generate additional
income from continuing operations, before provision for income taxes, of
$2,156 to cover its fixed charges of $24,425.
3 On a pro forma basis, the Company would have needed to generate additional
income from continuing operations, before provision for income taxes, of
$17,779 to cover its fixed charges of $56,433.
4 On a pro forma basis, the Company would have needed to generate additional
income from continuing operations, before provision for income taxes, of
$7,601 to cover its fixed charges of $44,366.
</FN>
</TABLE>
The ratios of earnings to fixed charges presented above were computed by
dividing the Company's earnings by fixed charges. For this purpose, earnings
have been calculated by adding fixed charges to income (loss) before provision
for income taxes. Fixed charges consist of interest costs, whether expensed or
capitalized, the interest component of rental expense, if any, amortization of
debt discounts and deferred financing costs, whether expensed or capitalized.
6
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be direct obligations of the Company, which may be
secured or unsecured, and which may be senior or subordinated indebtedness of
the Company. The Debt Securities may be fully and unconditionally guaranteed on
a secured or unsecured, senior or subordinated basis, jointly and severally by
the Guarantors. The Debt Securities will be issued under one or more indentures
(an "Indenture") between the Company and a trustee (an "Indenture Trustee"). Any
Indenture will be subject to, and governed by, the Trust Indenture Act of 1939,
as amended (the "TIA"). The statements made hereunder relating to any Indentures
and the Debt Securities to be issued thereunder are summaries of certain
anticipated provisions thereof and do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all provisions of the
Indentures and such Debt Securities.
General
The Company has filed with the Registration Statement with respect to the
Offered Securities a form of Indenture (as supplemented from time to time, the
"Senior Indenture") relating to the Senior Securities (as defined) and a form of
Indenture (as supplemented from time to time, the "Subordinated Indenture")
relating to the Senior Subordinated Securities (as defined) and Subordinated
Securities (as defined). The Debt Securities will be direct obligations of the
Company and, if issued under the Senior Indenture, will rank equally and ratably
in right of payment with other indebtedness of the Company that is not
subordinated (the "Senior Securities"), or, if issued under the Subordinated
Indenture, will be subordinated in right of payment to the prior payment in full
of Senior Indebtedness (as defined in the applicable Prospectus Supplement) and
may rank equally and ratably with the Senior Subordinated Notes and any other
senior subordinated indebtedness ("Senior Subordinated Securities") or may be
subordinated in right of payment to the Senior Subordinated Notes and such other
senior subordinated indebtedness ("Subordinated Securities"). See
"--Subordination." The Debt Securities may be issued without limit as to
aggregate principal amount, in one or more series, in each case as established
from time to time in or pursuant to authority granted by a resolution of the
Board of Directors of the Company or as established in one or more indentures
supplemental to any Indenture. All Debt Securities of one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the holders of the Debt Securities of such
series, for issuances of additional Debt Securities of such series.
It is anticipated that any Indenture will provide that the Company may, but
need not, designate more than one Indenture Trustee thereunder, each with
respect to one or more series of Debt Securities. Any Indenture Trustee under
any Indenture may resign or be removed with respect to one or more series of
Debt Securities, and a successor Indenture Trustee may be appointed to act with
respect to such series. In the event that two or more persons are acting as
Indenture Trustee with respect to different series of Debt Securities, each such
Indenture Trustee shall be a trustee of a trust under the applicable Indenture
separate and apart from the trust administered by any other Indenture Trustee,
and, except as otherwise indicated herein, any action described herein to be
taken by the Indenture Trustee may be taken by each such Indenture Trustee with
respect to, and only with respect to, the one or more series of Debt Securities
for which it is Indenture Trustee under the applicable Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities being offered for the specific terms thereof, including, where
applicable, the following:
(1) the title of such Debt Securities and whether such Debt Securities are
Senior Securities, Senior Subordinated Securities or Subordinated
Securities;
(2) the aggregate principal amount of such Debt Securities and any limit
on such aggregate principal amount;
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<PAGE>
(3) the percentage of the principal amount at which such Debt Securities
will be issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of
acceleration of the maturity thereof, or (if applicable) the portion
of the principal amount of such Debt Securities which is convertible,
or the method by which any such portion shall be determined;
(4) if convertible, the terms on which such Debt Securities are
convertible, including the initial conversion price or rate and the
conversion period and any applicable limitations on the ownership or
transferability of the securities into which such Debt Securities are
convertible;
(5) the date or dates, or the method for determining such date or dates,
on which the principal of such Debt Securities will be payable;
(6) the rate or rates (which may be fixed or variable), or the method by
which such rate or rates shall be determined, at which such Debt
Securities will bear interest, if any;
(7) the date or dates, or the method for determining such date or dates,
from which any interest will accrue, the dates on which any such
interest will be payable, the record dates for such interest payment
dates, or the method by which any such date shall be determined, the
person to whom such interest shall be payable, and the basis upon
which interest shall be calculated if other than that of a 360-day
year of 12 months consisting of 30 days each;
(8) the place or places where (i) the principal of, any premium and
interest on, and any additional amounts payable in respect of such
Debt Securities will be payable, (ii) such Debt Securities may be
surrendered for conversion or registration of transfer or exchange and
(iii) notices or demands to or upon the Company in respect of such
Debt Securities and the applicable Indenture may be served;
(9) the period or periods within which, the price or prices at which and
the terms and conditions upon which such Debt Securities may be
redeemed, as a whole or in part, at the option of the Company, if the
Company is to have such an option;
(10) the obligation, if any, of the Company to redeem, repay or purchase
such Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof, and the period or
periods within which, the price or prices at which and the terms and
conditions upon which such Debt Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(11) if other than U.S. dollars, the currency or currencies in which such
Debt Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite
currency or currencies, and the terms and conditions relating thereto;
(12) if the principal of or premium, if any, or interest on such Debt
Securities is to be payable, at the election of the Company or a
holder thereof, in one or more currencies or currency units other than
that or those in which such Debt Securities are stated to be payable,
the currency, currencies or currency units in which payment of the
principal of and premium, if any, and interest on Debt Securities of
such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(13) whether the amount of payments of interest on, principal of or
premium, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which index,
8
<PAGE>
formula or method may, but need not, be based on a currency,
currencies, currency unit or units or composite currency or
currencies) and the manner in which such amounts shall be determined;
(14) the events of default or covenants of such Debt Securities, to the
extent different from or in addition to those described in this
Prospectus, and any provisions granting special rights to the holders
of such Debt Securities upon the occurrence of events specified in
such Prospectus Supplement;
(15) whether such Debt Securities will be issued in certificated and/or
book-entry form;
(16) whether such Debt Securities will be in registered or bearer form and,
if in registered form, the denominations thereof if other than $1,000
and any integral multiple thereof and, if in bearer form, the
denominations thereof and terms and conditions relating thereto;
(17) whether any of such Debt Securities are to be issuable in permanent
global form (a "Global Security") and, if so, the terms and
conditions, if any, upon which interests in such Global Security may
be exchanged, in whole or in part, for the individual Debt Securities
represented thereby;
(18) the applicability, if any, of the defeasance and covenant defeasance
provisions described in this Prospectus or any modification thereof;
(19) if such Debt Securities are to be issued upon the exercise of debt
warrants, the time, manner and place for such Debt Securities to be
authenticated and delivered;
(20) whether and under what circumstances the Company will pay additional
amounts on such Debt Securities in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the
option to redeem such Debt Securities in lieu of making such payment;
(21) the subordination provisions, if any, relating to such Debt
Securities;
(22) the provisions, if any, relating to any security provided for such
Debt Securities; and
(23) the provisions, if any, relating to any guarantee of such Debt
Securities.
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). If material or applicable, special U.S.
federal income tax, accounting and other considerations applicable to Original
Issue Discount Securities will be described in the applicable Prospectus
Supplement.
Except as described under "--Merger, Consolidation or Sale of Assets" or as
may be set forth in any Prospectus Supplement, an Indenture will not contain any
other provisions that would limit the ability of the Company to incur
indebtedness or that would afford holders of the Debt Securities protection in
the event of a highly leveraged or similar transaction involving the Company or
in the event of a change of control. Reference is made to the applicable
Prospectus Supplement for information with respect to any deletions from,
modifications of or additions to the events of default or covenants that are
described below, including any addition of a covenant or other provisions
providing event risk or similar protection.
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series that are registered securities, other than Global
Securities (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof.
9
<PAGE>
Unless otherwise specified in the applicable Prospectus Supplement, the
interest on and principal of and premium, if any, on any series of Debt
Securities will be payable at the corporate trust office of the Indenture
Trustee, initially at the address which will be set forth in the applicable
Prospectus Supplement; provided that, at the option of the Company, payment of
interest may be made by check mailed to the address of the person entitled
thereto as it appears in the applicable register or by wire transfer of funds to
such person at an account maintained within the United States.
Any interest not punctually paid or duly provided for on any interest
payment date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the holder on the applicable regular record
date and may either be paid to the person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
applicable Indenture Trustee, notice whereof shall be given to the holder of
such Debt Security not less than 10 days prior to such Special Record Date, or
may be paid at any time in any other lawful manner, all as more completely
described in the applicable Indenture.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the applicable Indenture
Trustee. In addition, subject to certain limitations imposed upon Debt
Securities issued in book-entry form, the Debt Securities of any series may be
surrendered for conversion or registration of transfer thereof at the corporate
trust office of the applicable Indenture Trustee. Every Debt Security
surrendered for conversion, registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer. No service charge
will be made for any registration of transfer or exchange of any Debt
Securities, but the Indenture Trustee or the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. If the applicable Prospectus Supplement refers to any
transfer agent (in addition to the Indenture Trustee) initially designated by
the Company with respect to any series of Debt Securities, the Company may at
any time rescind the designation of any such transfer agent or approve a change
in the location through which any such transfer agent acts, except that the
Company will be required to maintain a transfer agent in each place of payment
for such series. The Company may at any time designate additional transfer
agents with respect to any series of Debt Securities.
Neither the Company nor any Indenture Trustee shall be required to (i)
issue, register the transfer of or exchange Debt Securities of any series during
a period beginning at the opening of business 15 days before any selection of
Debt Securities of that series to be redeemed and ending at the close of
business on (a) if such Debt Securities are issuable only as registered
securities, the day of the mailing of the relevant notice of redemption and (b)
if such Debt Securities are issuable as bearer securities, the day of the first
publication of the relevant notice of redemption or, if such Debt Securities are
also issuable as registered securities and there is no publication, the mailing
of the relevant notice of redemption; (ii) register the transfer of or exchange
any registered security so selected for redemption in whole or in part, except,
in the case of any registered security to be redeemed in part, the portion
thereof not to be redeemed; (iii) exchange any bearer security so selected for
redemption except that such a bearer security may be exchanged for a registered
security of that series and like tenor; provided that such registered security
shall be simultaneously surrendered for redemption; or (iv) issue, register the
transfer of or exchange any Debt Security which has been surrendered for
repayment at the option of the holder, except the portion, if any, of such Debt
Security not to be so repaid.
10
<PAGE>
Merger, Consolidation or Sale of Assets
The Company may not consolidate or merge with or into (whether or not the
Company is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions, to another entity unless: (a) the Company is
the surviving corporation or the entity formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia; (b) the entity formed by or
surviving any such consolidation or merger (if other than the Company) or the
entity to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of the Company
under the Debt Securities and any Indenture (pursuant to a supplemental
indenture in a form reasonably satisfactory to the applicable Indenture
Trustee); and (c) immediately after such transaction no event of default under
the applicable Indenture, and no event which, after notice or the lapse of time,
or both, would become such an event of default exists.
Certain Covenants
Provision of Financial Information. Whether or not required by the rules
and regulations of the Commission, so long as any Debt Securities are
outstanding, the Company will furnish to the holders of Debt Securities (a) all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company
were required to file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with respect to
the annual information only, a report thereon by the Company's certified
independent accountants and (b) all financial information that would be required
to be included in a Form 8-K filed with the Commission if the Company were
required to file such reports. In addition, whether or not required by the rules
and regulations of the Commission, the Company will file a copy of all such
information and reports with the Commission for public availability (unless the
Commission will not accept such a filing) and make such information available to
investors who request it in writing.
Additional Covenants. Any additional or different covenants of the Company
(or modifications to the foregoing covenants) with respect to any series of Debt
Securities will be set forth in the applicable Prospectus Supplement.
Events of Default, Notice and Waiver
Each Indenture will provide that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder; (a)
default for 30 days in the payment of any installment on any Debt Security of
such series; (b) default in the payment of the principal of (or premium, if any,
on) any Debt Security of such series at its maturity; (c) default in making any
sinking fund payments as required for any Debt Security of such series; (d)
default in the performance of any other covenant of the Company contained in the
applicable Indenture (other than a covenant added to such Indenture solely for
the benefit of a series of Debt Securities issued thereunder other than such
series), such default having continued for 60 days after written notice as
provided in such Indenture; (e) default in the payment of an aggregate principal
amount exceeding a specified dollar amount of any evidence of indebtedness of
the Company or any mortgage, indenture or other instrument under which such
indebtedness is issued or by which such indebtedness is secured, such default
having occurred after the expiration of any applicable grace period and having
resulted in the acceleration of the maturity of such indebtedness or
constituting a default in the payment of such indebtedness at final maturity,
but only if such indebtedness is not discharged or such acceleration is not
rescinded or annulled; (f) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or trustee of the
Company or any Significant Subsidiary (as hereinafter defined) or any of their
respective property; and (g) any other event of default provided with respect to
a particular series of Debt Securities. The term "Significant Subsidiary" means
each significant subsidiary (as defined in Regulation S-X promulgated under the
Securities Act) of the Company.
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<PAGE>
If an Event of Default (other than an Event of Default described in clause
(f) above) under any Indenture with respect to Debt Securities of any series at
the time outstanding occurs and is continuing, then in every such case the
applicable Indenture Trustee or the holders of at least 25% in principal amount
of the outstanding Debt Securities of that series may declare the principal
amount (or, if the Debt Securities of that series are Original Issue Discount
Securities or indexed securities, such portion of the principal amount as may be
specified in the terms thereof) of all of the Debt Securities of that series to
be due and payable immediately by written notice thereof to the Company (and to
the applicable Indenture Trustee if given by the holders). If an Event of
Default described in clause (f) above with respect to the Debt Securities of any
series at the time outstanding shall occur, the principal amount of all the Debt
Securities of that series (or, in the case of any such Original Issue Discount
Security or other Debt Security, such specified amount) will automatically, and
without any action by the Indenture Trustee or any holder of such series of Debt
Securities, become immediately due and payable. However, at any time after such
a declaration of acceleration with respect to Debt Securities of such series (or
of all Debt Securities then outstanding under the applicable Indenture, as the
case may be) has been made, but before a judgment or decree for payment of the
money due has been obtained by the applicable Indenture Trustee, the holders of
not less than a majority in principal amount of outstanding Debt Securities of
such series (or of all Debt Securities then outstanding under the applicable
Indenture, as the case may be) may rescind and annul such declaration and its
consequences if (i) the Company shall have deposited with the applicable
Indenture Trustee all required payments of the principal of (and premium, if
any) and interest on the Debt Securities of such series (or of all Debt
Securities then outstanding under the applicable Indenture, as the case may be),
plus certain fees, expenses, disbursements and advances of the applicable
Indenture Trustee, and (ii) all Events of Default, other than the non-payment of
accelerated principal (or specified portion thereof), or premium, if any, or
interest on the Debt Securities of such series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) have been cured
or waived as provided in the applicable Indenture. Each of the Indentures will
also provide that the holders of not less than a majority in principal amount of
the outstanding Debt Securities of any series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) may waive any
past default with respect to such series and its consequences, except a default
(i) in the payment of the principal of (or premium, if any) or interest on any
Debt Security of such series or (ii) in respect of a covenant or provision
contained in the applicable Indenture that cannot be modified or amended without
the consent of the holder of each outstanding Debt Security affected thereby.
The Indenture Trustee will be required to give notice to the holders of
Debt Securities within 90 days of a default under the applicable Indenture
unless such default has been cured or waived; provided, however, that such
Indenture Trustee may withhold notice to the holders of any series of Debt
Securities of any default with respect to such series (except a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security of such series or in the payment of any sinking fund installment in
respect of any Debt Security of such series) if specified responsible officers
of such Indenture Trustee consider such withholding to be in the interest of
such holders.
Each Indenture will provide that no holders of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with respect to the
Indenture or for any remedy thereunder, except in the case of failure of the
Indenture Trustee, for 60 days, to act after it has received a written request
to institute proceedings in respect of an event of default from the holders of
not less than a majority in principal amount of the outstanding Debt Securities
of such series, as well as an offer of reasonable indemnity. This provision will
not prevent, however, any holder of Debt Securities from instituting suit for
the enforcement of payment of the principal of (and premium, if any) and
interest on such Debt Securities at the respective due dates thereof.
Subject to provisions in the applicable Indenture relating to its duties in
case of default, no Indenture Trustee will be under any obligation to exercise
any of its rights or powers under such Indenture at the request or direction of
any holders of any series of Debt Securities then outstanding under such
Indenture, unless such holders shall have offered to the Indenture Trustee
reasonable security or indemnity. The holders of not less than a majority in
principal amount of the outstanding Debt Securities of any series (or of all
Debt Securities then outstanding under the applicable Indenture, as the case may
be) shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the applicable Indenture Trustee, or of
exercising any trust or power conferred upon such Indenture Trustee. However, an
Indenture Trustee may refuse to follow any direction which is in conflict with
any
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<PAGE>
law or the Indenture, which may involve such Indenture Trustee in personal
liability or which may be unduly prejudicial to the holders of Debt Securities
of such series not joining therein.
The Company will be required to deliver to each Indenture Trustee annually
a certificate, signed by one of several specified officers of the Company,
stating whether or not such officer has knowledge of any default under the
applicable Indenture and, if so, specifying each such default and the nature and
status thereof.
Modification of the Indenture
Modifications and amendments of an Indenture will be permitted to be made,
and a waiver of any existing default or compliance with any provision may be
made, only with the consent of the holders of not less than a majority in
principal amount of all outstanding Debt Securities or series of outstanding
Debt Securities which are affected by such modification, amendment or waiver;
provided, however, that no such modification, amendment or waiver may, without
the consent of the holder of each such Debt Security affected thereby, (i)
change the stated maturity of the principal of, or any installment of interest
(or premium, if any) on any such Debt Security; (ii) reduce the principal amount
of, or the rate or amount of interest on, or any premium payable on redemption
of, any such Debt Security, or reduce the amount of principal of an Original
Issue Discount Security that would be due and payable upon declaration of
acceleration of the maturity thereof or would be provable in bankruptcy, or
adversely affect any right of repayment of the holder of any such Debt Security;
(iii) change the place of payment, or the coin or currency, for payment of
principal of, premium, if any, or interest on any such Debt Security; (iv)
impair the right to institute suit for the enforcement of any payment on or with
respect to any such Debt Security; (v) reduce the percentage of outstanding Debt
Securities of any series necessary to modify or amend the Indenture, to waive
compliance with certain provisions thereof or certain defaults and consequences
thereunder or to reduce the quorum or voting requirements set forth in such
Indenture; (vi) waive a default or event of default in the payment of principal
of or premium, if any, or interest on the Debt Securities (except a recission of
acceleration of the Debt Securities by holders of not less than a majority in
principal amount of Debt Securities or series of Debt Securities affected
thereby and that resulted from such acceleration); or (vii) modify any of the
foregoing provisions or any of the provisions relating to the waiver of certain
past defaults or certain covenants, except to increase the required percentage
to effect such action or to provide that certain other provisions may not be
modified or waived without the consent of the holder of such Debt Security.
Modifications and amendments of an Indenture will be permitted to be made
by the Company and the applicable Indenture Trustee thereunder without the
consent of any holder of Debt Securities for any of the following purposes: (i)
to evidence the succession of another person to the Company as obligor under
such Indenture; (ii) to add to the covenants of the Company for the benefit of
the holders of all or any series of Debt Securities or to surrender any right or
power conferred upon the Company in such Indenture; (iii) to add events of
default for the benefit of the holders of all or any series of Debt Securities;
(iv) to add or change any provisions of the Indenture to facilitate the issuance
of, or to liberalize certain terms of, Debt Securities in bearer form, or to
permit or facilitate the issuance of Debt Securities in uncertificated form;
provided that such action shall not adversely affect the interests of the
holders of the Debt Securities in any material respect; (v) to change or
eliminate any provisions of the Indenture; provided that any such change or
elimination shall become effective only when there are no Debt Securities
outstanding of any series created prior thereto which are entitled to the
benefit of such provision; (vi) to secure the Debt Securities; (vii) to
establish the form or terms of Debt Securities of any series, including the
provisions and procedures, if applicable, for the conversion of such Debt
Securities into Common Stock or Preferred Stock; (viii) to provide for the
acceptance of appointment by a successor Indenture Trustee or facilitate the
administration of the trusts under an Indenture by more than one Indenture
Trustee; (ix) to cure any ambiguity, defect or inconsistency in an Indenture;
provided that such action shall not adversely affect the interests of holders of
Debt Securities of any series in any material respect; or (x) to supplement any
of the provisions of an Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of such Debt Securities;
provided that such action shall not adversely affect the interests of the
holders of the Debt Securities of any series in any material respect.
Each Indenture will provide that in determining whether the holders of the
requisite principal amount of outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
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shall be deemed to be outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof, (ii) the principal amount
of a Debt Security denominated in a foreign currency that shall be deemed
outstanding shall be the U.S. dollar equivalent, determined on the issue date
for such Debt Security, of the principal amount (or, in the case of an Original
Issue Discount Security, the U.S. dollar equivalent on the issue date of such
Debt Security of the amount determined as provided in (i) above), (iii) the
principal amount of an indexed security that shall be deemed outstanding shall
be the principal face amount of such indexed security at original issuance,
unless otherwise provided with respect to such indexed security in the
applicable Indenture, and (iv) Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any affiliate of the Company or of such
other obligor shall be disregarded.
Each Indenture will contain provisions for convening meetings of the
holders of each series of Debt Securities. A meeting may be called at any time
by an Indenture Trustee, and also, upon request, by the Company or the holders
of at least 25% in principal amount of the outstanding Debt Securities of such
series, in any such case, upon notice given as provided in such Indenture.
Except for any consent that must be given by the holder of each Debt Security
affected by certain modifications, amendments and waiver of an Indenture, any
resolution presented at a meeting or adjourned meeting duly reconvened at which
a quorum is present may be adopted by the affirmative vote of the holders of a
majority in principal amount of the outstanding Debt Securities of that series;
provided, however, that, except as referred to above, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that may be made, given or taken by the holders of a
specified percentage, which is less than a majority, in principal amount of the
outstanding Debt Securities of a series may be adopted at a meeting or adjourned
meeting duly reconvened at which a quorum is present by the affirmative vote of
the holders of such specified percentage in principal amount of the outstanding
Debt Securities for that series. Any resolution passed or decision taken at any
meeting of holders of Debt Securities of any series duly held in accordance with
the applicable Indenture will be binding on all holders of Debt Securities of
that series. The quorum at any meeting called to adopt a resolution, and at any
reconvened meeting, will be persons holding or representing a majority in
principal amount of the outstanding Debt Securities of a series; provided,
however, that if any action is to be taken at such meeting with respect to a
consent or waiver which may be given by the holders of not less than a specified
percentage in principal amount of the outstanding Debt Securities of a series,
the persons holding or representing such specified percentage in principal
amount of the outstanding Debt Securities of such series will constitute a
quorum.
Notwithstanding the foregoing provisions, each Indenture will provide that
if any action is to be taken at a meeting of holders of Debt Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that such Indenture expressly provides may be
made, given or taken by the holders of such series and one or more additional
series: (i) there shall be no minimum quorum requirement for such meeting and
(ii) the principal amount of the outstanding Debt Securities of such series that
vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in determining
whether such request, demand, authorization, direction, notice, consent, waiver
or other action has been made, given or taken under such Indenture.
Discharge, Defeasance and Covenant Defeasance
The Company may discharge certain obligations to holders of any series of
Debt Securities that have not already been delivered to the applicable Indenture
Trustee for cancellation and that either have become due and payable or will
become due and payable within one year (or scheduled for redemption within one
year) by irrevocably depositing with such Indenture Trustee, in trust, funds in
such currency or currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are payable in an amount sufficient to
pay the entire indebtedness on such Debt Securities in respect of principal (and
premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the stated maturity or redemption
date, as the case may be.
An Indenture may provide that, if certain provisions thereof are made
applicable to the Debt Securities of or within a series pursuant to the
Indenture, the Company may elect either (i) to defease and be discharged from
any
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and all obligations with respect to such Debt Securities (except for the
obligation to pay additional amounts, if any, upon the occurrence of certain
events of tax, assessment or governmental charge with respect to payments on
such Debt Securities and the obligations to register the transfer or exchange of
such Debt Securities, to replace temporary or mutilated, destroyed, lost or
stolen Debt Securities, to maintain an office or agency in respect of such Debt
Securities and to hold moneys for payment in trust) ("defeasance") or (ii) to be
released from its obligations with respect to such Debt Securities under certain
sections of such Indenture (including the restrictions described under
"--Certain Covenants") and, if provided pursuant to such Indenture, its
obligations with respect to any other covenant, and any omission to comply with
such obligations shall not constitute a default or an event of default with
respect to such Debt Securities ("covenant defeasance"), in either case upon the
irrevocable deposit by the Company with the applicable Indenture Trustee, in
trust, of an amount, in such currency or currencies, currency unit or units of
composite currency or currencies in which such Debt Securities are payable at
stated maturity, or Government Obligations (as defined below), or both,
applicable to such Debt Securities which through the scheduled payment of
principal and interest, in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium, if any) and interest on
such Debt Securities, and any mandatory sinking fund or analogous payments
thereon, on the scheduled dates therefor.
Such a trust may be established only if, among other things, the Company
has delivered to the applicable Indenture Trustee an opinion of counsel (as
specified in the applicable Indenture) to the effect that the holders of such
Debt Securities will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such defeasance or covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance or covenant
defeasance had not occurred.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the foreign
currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the foreign
currency in which the Debt Securities of a particular series are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligations or
the specific payment of interest on or principal of the Government Obligations
evidenced by such depository receipt.
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any series,
(i) the holder of a Debt Security of such series is entitled to, and does, elect
pursuant to the applicable Indenture or the terms of such Debt Security to
receive payment in a currency, currency unit or composite currency other than
that in which such deposit has been made in respect of such Debt Security, or
(ii) a Conversion Event (as defined below) occurs in respect of the currency,
currency unit or composite currency in which such deposit has been made, the
indebtedness represented by such Debt Security shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of
(and premium, if any) and interest on such Debt Security as they become due out
of the proceeds yielded by converting the amount so deposited in respect of such
Debt Security into the currency, currency unit or composite currency in which
such Debt Security becomes payable as a result of such election or such
cessation of usage based on the applicable market exchange rate. "Conversion
Event" means the cessation of use of (i) a currency, currency unit or composite
currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit or composite
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currency other than the ECU for the purposes for which it was established.
Unless otherwise provided in the applicable Prospectus Supplement, all payments
of principal of (and premium, if any) and interest on any Debt Security that is
payable in a foreign currency that ceases to be used by its government of
issuance shall be made in U.S. dollars.
If the Company effects covenant defeasance with respect to any Debt
Securities and such Debt Securities are declared due and payable because of the
occurrence of any event of default and the amount in such currency, currency
unit or composite currency in which such Debt Securities are payable, and
Government Obligations on deposit with the Trustee, are not sufficient to pay
amounts due on such Debt Securities at the time of the acceleration resulting
from such event of default (even though they would have been sufficient to pay
amounts due under such Debt Security and their stated time of maturity), the
Company would remain liable to make payment of such amounts due at the time of
acceleration.
Notwithstanding the description set forth under "--Subordination" below, in
the event that the Company deposits money or Government Obligations in
compliance with the applicable Indenture in order to defease all or certain of
its obligations with respect to any Senior Subordinated Securities or
Subordinated Securities, the moneys or Government Obligations so deposited will
not be subject to the subordination provisions of such Indenture and the
indebtedness evidenced by such Senior Subordinated Securities or Subordinated
Securities will not be subordinated in right of payment to the holders of senior
indebtedness and senior subordinated indebtedness (as the case may be) to the
extent of the moneys or Government Obligations so deposited.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
Conversion Rights
The terms and conditions, if any, upon which the Debt Securities are
convertible into Common Stock or Preferred Stock will be set forth in the
Prospectus Supplement relating thereto. Such terms will include whether such
Debt Securities are convertible into Common Stock or Preferred Stock, the
conversion price or rate (or manner of calculation thereof), the conversion
period, provisions as to whether conversion will be at the option of the holders
of the Company, the events requiring an adjustment of the conversion price or
rate and provisions affecting conversion in the event of the redemption of such
Debt Securities and any restrictions on conversion.
Subordination
The terms and conditions, if any, upon which Senior Subordinated Securities
or Subordinated Securities of a series are subordinated to Debt Securities of
another series or to other indebtedness of the Company will be set forth in the
applicable Prospectus Supplement. Such terms will include a description of the
indebtedness ranking senior to such Senior Subordinated Securities or
Subordinated Securities, the restrictions on payments to the holders of such
Senior Subordinated Securities or Subordinated Securities while a default with
respect to such senior indebtedness is continuing, the restrictions, if any, on
payments to the holders of such Senior Subordinated Securities or Subordinated
Securities following an Event of Default, and provisions requiring holders of
such Senior Subordinated Securities or Subordinated Securities to remit certain
payments to holders of senior indebtedness.
Global Securities
If so set forth in the applicable Prospectus Supplement, the Debt
Securities of a series may be issued in whole or in part in the form of one or
more Global Securities that will be deposited with, or on behalf of, a
depositary identified in the applicable Prospectus Supplement relating to such
series. Global Securities may be issued in either registered or bearer form and
in either temporary or permanent form. The specific terms of the depositary
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arrangement with respect to any such series of Debt Securities will be described
in the applicable Prospectus Supplement.
DESCRIPTION OF CAPITAL STOCK
The following description of the capital stock of Iron Mountain and certain
provisions of the Restated Certificate and the By-Laws is a summary and is
qualified in its entirety by reference to the Restated Certificate and the
By-Laws.
Iron Mountain's authorized capital stock consists of 100,000,000 shares of
Common Stock, 1,000,000 shares of nonvoting common stock, $.01 par value per
share ("Nonvoting Common Stock") and 2,000,000 shares of Preferred Stock. No
shares of Preferred Stock have been issued. There were 13,452,917 shares of
Common Stock held by 219 holders of record and no shares of Nonvoting Common
Stock issued and outstanding as of January 5, 1998.
Common Stock
The rights of holders of the Common Stock and the Nonvoting Common Stock
are identical in all respects except voting and convertibility.
Dividends. Holders of record of shares of Common Stock and Nonvoting Common
Stock on the record date fixed by the Iron Mountain Board are entitled to
receive such dividends as may be declared by the Iron Mountain Board out of
funds legally available for such purpose. No dividends may be declared or paid
in cash or property on any share of either class, however, unless simultaneously
the same dividend is declared or paid on each share of the other class. In the
case of any stock dividend, holders of each class are entitled to receive the
same percentage dividend (payable in shares of that class) as the holders of the
other class.
Iron Mountain is currently restricted under the terms of the Credit
Agreement and the Notes Indentures from paying cash dividends on the Common and
Nonvoting Common Stock. Even if funds were to be available, Iron Mountain does
not intend to pay dividends in the foreseeable future.
Voting Rights. Except as otherwise required by law, on each matter
submitted for a vote of stockholders, holders of shares of Common Stock are
entitled to one vote per share and holders of Nonvoting Common Stock are not
entitled to vote.
Under the Restated Certificate, the vote of holders of at least 80% of the
voting power of all outstanding shares of capital stock entitled to vote
generally in the election of Directors, voting together as a single class (the
"Voting Power"), is required for the amendment or repeal of, or the adoption of
any provision inconsistent with, provisions of the Restated Certificate
establishing a classified Board of Directors. The vote of holders of at least
662/3% of such Voting Power is required for the amendment or repeal of, or the
adoption of any provision inconsistent with, provisions of the Restated
Certificate authorizing the Preferred Stock, Common Stock and Nonvoting Common
Stock or specifying the terms of the Common Stock and the Nonvoting Common Stock
(including any amendment to increase any shares of authorized capital stock).
Certain other provisions also require such a 662/3% vote. See "DGCL and Certain
Provisions of the Restated Certificate and the By-Laws." There are no cumulative
voting rights in the election of the Board of Directors of the Company.
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Conversion Provisions. Shares of Nonvoting Common Stock are convertible, at
any time at the option of the holder, on a share-for-share basis into shares of
Common Stock without the payment of any additional consideration; provided that
the conversion of any shares of Nonvoting Common Stock by a "bank holding
company" under the Bank Holding Company Act of 1956, as amended, or an affiliate
thereof is prohibited if the conversion of the total number of shares of
Nonvoting Common Stock held by such holder would cause it to be in violation of
such Act.
Liquidation Rights. Upon liquidation, dissolution or winding-up of Iron
Mountain, the holders of Common Stock and Nonvoting Common Stock are entitled to
share ratably (based on the number of shares held) in all assets available for
distribution after payment in full of creditors and payment in full to any
holders of Preferred Stock then outstanding of any amount required to be paid
under the terms of such Preferred Stock.
Other Provisions. The outstanding shares of Common Stock and Nonvoting
Common Stock are validly issued, fully paid and nonassessable. In any merger,
consolidation or business combination, holders of each class will receive
identical consideration, except that in any such transaction in which shares of
stock are distributed, such shares may differ as to voting rights to the extent
that voting rights now differ between the two classes. Neither class may be
subdivided, consolidated, reclassified or otherwise changed unless,
concurrently, the other class is subdivided, consolidated, reclassified or
otherwise changed in the same proportion and in the same manner.
The Transfer Agent and Registrar for the Common Stock is Boston Equiserve
Limited Partnership, 150 Royall Street, Canton, Massachusetts 02021 (telephone
number (781) 575-2000).
The Iron Mountain Board has the power to issue shares of authorized but
unissued Common Stock and Nonvoting Common Stock without further stockholder
action. The holders of Common Stock and Nonvoting Common Stock are not entitled
to preemptive or subscription rights. The issuance of such unissued shares could
have the effect of diluting the earnings per share and book value per share of
currently outstanding shares of Common Stock.
Preferred Stock
The authorized and unissued shares of Preferred Stock may be issued with
such designations, preferences, limitations and relative rights as the Iron
Mountain Board may authorize including, but not limited to: (i) the distinctive
designation of each series and the number of shares that will constitute such
series; (ii) the voting rights, if any, of shares of such series; (iii) the
dividend rate on the shares of such series, any restriction, limitation or
condition upon the payment of such dividends, whether dividends shall be
cumulative, and the dates on which dividends are payable; (iv) the prices at
which, and the terms and conditions on which, the shares of such series may be
redeemed, if such shares are redeemable; (v) the purchase or sinking fund
provisions, if any, for the purchase or redemption of shares of such series;
(vi) any preferential amount payable upon shares of such series in the event of
the liquidation, dissolution or winding-up of Iron Mountain or the distribution
of its assets; and (vii) the price or rates of conversion at which, and the
terms and conditions on which the shares of such series may be converted into
other securities, if such shares are convertible. Although Iron Mountain has no
present intention to issue shares of Preferred Stock, the issuance of Preferred
Stock, or the issuance of rights to purchase such shares, could discourage an
unsolicited acquisition proposal and the rights of holders of Common Stock will
be subject to, and may be adversely affected by, the rights of holders of any
Preferred Stock that may be issued in the future.
The following description of the Preferred Stock sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus Supplement
may relate. The statements below describing the Preferred Stock are in all
respects subject to and qualified in their entirety by reference to the
applicable provisions of the Restated Certificate (including any applicable
Certificates of Designation) and the By-Laws.
Reference is made to the Prospectus Supplement relating to the Preferred
Stock offered thereby for specific terms, including:
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(1) the title of such Preferred Stock;
(2) the number of shares of such Preferred Stock offered, the par value,
the liquidation preference per share and the offering price of such
Preferred Stock;
(3) the dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to such Preferred Stock;
(4) the date from which dividends on such Preferred Stock shall
accumulate, if applicable;
(5) the procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) the provision for a sinking fund, if any, for such Preferred Stock;
(7) the provision for redemption, if applicable, of such Preferred Stock;
(8) any listing of such Preferred Stock on any securities exchange;
(9) the terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock of the Company or another
series of Offered Securities, including the conversion price (or
manner of calculation thereof);
(10) whether interests in such Preferred Stock will be represented by
Depositary shares as more fully described below under "Description of
Depositary Shares;"
(11) any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock;
(12) a discussion of federal income tax considerations applicable to such
Preferred Stock;
(13) the relative ranking and preferences of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of the Company;
(14) any limitations on issuance of any series of Preferred Stock ranking
senior to or on a parity with such series of Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of the Company; and
(15) any limitations on direct or beneficial ownership and restrictions on
transfer.
As described under "Description of Depositary Shares," the Company may, at
its option, elect to offer Depositary Shares evidenced by depositary receipts
("Depositary Receipts"), each representing a fractional interest (to be
specified in the Prospectus Supplement relating to the particular series of the
Preferred Stock) in a share of the particular series of the Preferred Stock
issued and deposited with a Depositary (as defined below).
Rank
Unless otherwise determined by the Iron Mountain Board and specified in the
applicable Prospectus Supplement, it is expected that the Preferred Stock will,
with respect to dividend rights and rights upon liquidation, dissolution or
winding up of the Company, rank (i) senior to all Common Stock, and to all
equity securities ranking junior to such Preferred Stock; (ii) on a parity with
all equity securities issued by the Company the terms of which specifically
provide that such equity securities rank on a parity with the Preferred Stock;
and (iii) junior to all equity securities issued by the Company the terms of
which specifically provide that such equity securities rank senior to the
Preferred Stock.
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Dividends
Holders of Preferred Stock of each series shall be entitled to receive,
when, as and if declared by the Iron Mountain Board, out of assets of the
Company legally available for payment, cash dividends at such rates and on such
dates as will be set forth in the applicable Prospectus Supplement. Each such
dividend shall be payable to holders of record as they appear on the stock
transfer books of the Company (or, if applicable, on the records of the
Depositary referred to below under "Description of Depositary Shares") on such
record dates as shall be fixed by the Board.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the Iron Mountain Board fails to declare a
dividend payable on a dividend payment date on any series of the Preferred Stock
for which dividends are noncumulative, then the holders of such series of the
Preferred Stock will have no right to receive a dividend in respect of the
dividend period ending on such dividend payment date, and the Company will have
no obligation to pay the dividend accrued for such period, whether or not
dividends on such series are declared payable on any future dividend payment
date.
If Preferred Stock of any series are outstanding, no full dividends shall
be declared or paid or set apart for payment on the Preferred Stock of the
Company of any other series ranking, as to dividends, on a parity with or junior
to the Preferred Stock of such series for any period unless (i) if such series
of Preferred Stock has a cumulative dividend, full cumulative dividends have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Preferred Stock of
such series for all past dividend periods and the then current dividend period
or (ii) if such series of Preferred Stock does not have a cumulative dividend,
full dividends for the then current dividend period have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Preferred Stock of such
series. When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Preferred Stock of any series and the
shares of any other series of Preferred Stock ranking on a parity as to
dividends with the Preferred Stock of such series, all dividends declared upon
Preferred Stock of such series and any other series of Preferred Stock shall in
all cases bear to each other the same ratio that accrued dividends per share on
the Preferred Stock of such series (which shall not include any accumulation in
respect of unpaid dividends for prior dividend periods if such Preferred Stock
do not have a cumulative dividend) and such other series of Preferred Stock bear
to each other. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on Preferred Stock of
such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the repayment thereof
set apart for payment for all past dividend periods and the then current
dividend period, and (ii) if such series of Preferred Stock does not have a
cumulative dividend, full dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for payment for the then current dividend
period, no dividends (other than in Common Stock or other capital stock ranking
junior to the Preferred Stock of such series as to dividends and upon
liquidation) shall be declared or paid or set aside for payment or other
distribution shall be declared or made upon the Common Stock or any other
capital stock of the Company ranking junior to or on a parity with the Preferred
Stock of such series as to dividends or upon liquidation, nor shall any Common
Stock or any other capital stock of the Company ranking junior to or on a parity
with the Preferred Stock of such series as to dividends or upon liquidation be
redeemed, purchased or otherwise acquired for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any shares
of any such stock) by the Company (except by conversion into or exchange for
other capital stock of the Company ranking junior to the Preferred Stock of such
series as to dividends and upon liquidation and except pursuant to certain pro
rata offers to purchase or a concurrent redemption of all, or a pro rata portion
of, the outstanding shares of the Preferred Stock of such series and any other
series of Preferred Stock ranking on a parity with such series as to dividends
and liquidation).
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Any dividend payment made on shares of a series of Preferred Stock shall
first be credited against the earliest accrued but unpaid dividend due with
respect to shares of such series which remains payable.
Redemption
If so provided in the applicable Prospectus Supplement, the Preferred Stock
will be subject to mandatory redemption or redemption at the option of the
Company, as a whole or in part, in each case upon the terms, at the times and at
the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of such Preferred Stock
that shall be redeemed by the Company in each year commencing after a date to be
specified, at a redemption price per share to be specified, together with an
amount equal to all accrued and unpaid dividends thereon (which shall not, if
such Preferred Stock do not have a cumulative dividend, include any accumulation
in respect of unpaid dividends for prior dividend periods) to the date of
redemption. The redemption price may be payable in cash or other property, as
specified in the applicable Prospectus Supplement. If the redemption price for
Preferred Stock of any series is payable only from the net proceeds of the
issuance of capital stock of the Company, the terms of such Preferred Stock may
provide that, if no such capital stock shall have been issued or to the extent
the net proceeds from any issuance are insufficient to pay in full the aggregate
redemption price then due, such Preferred Stock shall automatically and
mandatorily be converted into shares of the applicable capital stock of the
Company pursuant to conversion provisions specified in the applicable Prospectus
Supplement.
Notwithstanding the foregoing, unless (i) if such series of Preferred Stock
has a cumulative dividend, full cumulative dividends on all shares of any series
of Preferred Stock shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment for
all past dividend periods and the then current dividend period, and (ii) if such
series of Preferred Stock does not have a cumulative dividend, full dividends on
the Preferred Stock of any series have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set apart for
payment for the then current dividend period, no shares of any other series of
Preferred Stock ranking, as to dividends and upon liquidation, on parity with or
junior to the Preferred Stock of such series shall be redeemed unless all
outstanding series of Preferred Stock of such series are simultaneously redeemed
and the Company shall not purchase or otherwise acquire directly or indirectly
any Preferred Stock of such series (except by conversion into or exchange for
capital stock of the Company ranking junior to the Preferred Stock of such
series as to dividends and upon liquidation); provided, however, that the
foregoing shall not prevent the purchase or acquisition of Preferred Stock of
such series pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding Preferred Stock of such series.
If fewer than all of the outstanding Preferred Stock of any series are to
be redeemed, the number of Preferred Stock to be redeemed will be determined by
the Company and such shares may be redeemed pro rata from the holders of record
of such shares in proportion to the number of such shares held by such holders
(with adjustments to avoid redemption of fractional shares) or by lot in manner
determined by the Company.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of Preferred Stock of
any series to be redeemed at the address shown on the stock transfer books of
the Company. Each notice shall state: (i) the redemption date; (ii) the number
of shares and series of the Preferred Stock to be redeemed; (iii) the redemption
price; (iv) the place or places where certificates for such Preferred Stock are
to be surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date; and (vi) the
date upon which the holder's conversion rights, if any, as to such shares shall
terminate. If fewer than all the Preferred Stock of any series are to be
redeemed, the notice mailed to each such holder thereof shall also specify the
number of Preferred Stock to be redeemed from each such holder. If notice of
redemption of any Preferred Stock has been given and if the funds necessary for
such redemption have been set aside by the Company in trust for the benefit of
the holders of any of the Preferred Stock so called for redemption, then from
and after the redemption date dividends will cease to accrue on such Preferred
Stock, and any and all rights of the holders of such shares will terminate,
except the right to receive the redemption price.
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Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, then, before any distribution or payment shall be
made to the holders of any Common Stock or any other class or series of capital
stock of the Company ranking junior to a series of Preferred Stock in the
distribution of assets upon any liquidation, dissolution or winding up of the
Company, the holders of such series of Preferred Stock shall be entitled to
receive out of assets of the Company legally available for distribution to
shareholders liquidating distributions in the amount of the liquidation
preference per share (set forth in the applicable Prospectus Supplement), plus
an amount equal to all dividends accrued and unpaid thereon (which shall not
include any accumulation in respect of unpaid dividends for prior dividend
periods if such Preferred Stock do not have a cumulative dividend). After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of Preferred Stock will have no right or claim to any of
the remaining assets of the Company. In the event that upon any such voluntary
or involuntary liquidation, dissolution or winding up, the available assets of
the Company are insufficient to pay the amount of the liquidating distributions
on all outstanding shares of a series of Preferred Stock and the corresponding
amounts payable on all shares of other classes or series of capital stock of the
Company ranking on a parity with such series of Preferred Stock in the
distribution of assets (including, if applicable, other series of Preferred
Stock), then the holders of such series of Preferred Stock and all other such
classes or series of capital stock shall share ratably in any such distribution
of assets in proportion to the full liquidating distributions to which they
would otherwise be respectively entitled.
If liquidating distributions shall have been made in full to all holders of
Preferred Stock, the remaining assets of the Company shall be distributed among
the holders of any other classes or series of capital stock ranking junior to
the Preferred Stock upon liquidation, dissolution or winding up, according to
their respective rights and preferences and in each case according to their
respective number of shares. For such purposes, the consolidation or merger of
the Company with or into any other trust or corporation, or the sale, lease or
conveyance of all or substantially all of the property or business of the
Company, shall not be deemed to constitute a liquidation, dissolution or winding
up of the Company.
Voting Rights
Holders of the Preferred Stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, at any
time dividends on any Preferred Stock shall be in arrears for a specified number
of consecutive quarterly periods, the holders of such Preferred Stock and any
other series of Preferred Stock upon which like voting rights have been
conferred and are exercisable (voting separately as a class) will be entitled to
vote for the election of two additional directors of the Company at the next
annual meeting of shareholders and at each subsequent meeting until (i) if such
series of Preferred Stock has a cumulative dividend, all dividends accumulated
on such Preferred Stock for the past dividend periods and the then current
dividend period shall have been fully paid or declared and a sum sufficient for
the payment thereof set aside for payment or (ii) if such series of Preferred
Stock does not have a cumulative dividend, four consecutive quarterly dividends
shall have been fully paid or declared and a sum sufficient for the payment
thereof set aside for payment.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as any Preferred Stock remain outstanding, the Company shall not, without the
affirmative vote or consent of the holders of a majority of the shares of a
series of Preferred Stock outstanding at the time that is adversely affected,
given in person or by proxy, either in writing or at a meeting (such series
voting separately as a class), (i) authorize or create, or increase the
authorized or issued amount of, any class or series of capital stock ranking
prior to such series of Preferred Stock with respect to payment of dividends or
the distribution of assets upon liquidation, dissolution or winding up, or
reclassify any authorized capital stock of the Company into any such shares, or
create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such shares; or (ii) amend, alter or repeal
the provisions of the certificate of designation for such series of Preferred
Stock, whether by merger, consolidation or otherwise, so
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as to materially and adversely affect any right, preference, privilege or voting
power of such series of Preferred Stock or the holders thereof; provided,
however, that any increase in the amount of the authorized Preferred Stock or
the creation or issuance of any other series of Preferred Stock, or any increase
in the amount of authorized shares of such series or any other series of
Preferred Stock, in each case ranking on a parity with or junior to the
Preferred Stock of such series with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up, shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of such series of Preferred Stock shall have
been redeemed or called for redemption and sufficient funds shall have been
deposited in trust to effect such redemption.
As more fully described under "Description of Depositary Shares" below, if
the Company elects to issue Depositary Shares, each representing a fraction of
share of a series of the Preferred Stock, each such Depositary will, in effect
be entitled to such fraction of a vote per Depositary Share.
Conversion Rights
The terms and conditions, if any, upon which shares of any series of
Preferred Stock may be converted into or exchanged for Common Stock or another
series of Preferred Stock or other series of Offered Securities will be set
forth in the Prospectus Supplement relating thereto. Such terms will include the
number of Common Stock or other securities into which the Preferred Share is
convertible or exchangeable, conversion or exchange price (or manner of
calculation thereof), the conversion or exchange period, provisions as to
whether conversion or exchange will be at the option of the holders of the
Preferred Stock or the Company, the events requiring an adjustment of the
conversion or exchange price and provisions affecting conversion or exchange in
the event of the redemption such Preferred Stock.
DESCRIPTION OF DEPOSITARY SHARES
General
The description set forth below and in any applicable Prospectus Supplement
of certain provisions of any Deposit Agreement (as defined below) and of the
Depositary Shares and depositary receipts representing Depositary Shares
("Depositary Receipts") does not purport to be complete and is subject to and
qualified in its entirety by reference to the forms of Deposit Agreement and
Depositary Receipts relating to each series of the Preferred Stock which have
been or will be filed with the Commission at or prior to the time of the
offering of such series of the Preferred Stock.
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock, rather than shares of Preferred Stock. In the event
such option is exercised, the Company will provide for the issuance by a
Depositary (as defined below) to the public of Depositary Receipts, each of
which will represent a fractional interest to be set forth in the Prospectus
Supplement relating to a particular series of the Preferred Stock which will be
filed with the Commission at or prior to the time of the offering of such series
of the Preferred Stock as described below. Preferred Stock of each series
represented by Depositary Shares will be deposited under a separate deposit
agreement (each, a "Deposit Agreement") among the Company and the depositary
named therein (a "Depositary"). The Prospectus Supplement relating to a series
of Depositary Shares will set forth the name and address of the Depositary.
Subject to the terms of the applicable Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the fractional interest of a
share of a particular series of Preferred Stock represented by such Depositary
Share to all the rights and preferences of the Preferred Stock represented by
such Depositary Shares (including dividend, voting, conversion, redemption and
liquidation rights).
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The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Upon surrender of Depositary
Receipts at the office of the Depositary and upon payment of the charges
provided in the Deposit Agreement and subject to the terms thereof, a holder of
Depositary Shares is entitled to have the Depositary deliver to such holder the
shares of Preferred Stock underlying the Depositary Shares evidenced by the
surrendered Depositary Receipts.
Dividends and Other Distributions
A Depositary will be required to distribute all cash dividends or other
cash distributions received in respect of the applicable Preferred Stock to the
record holders of Depositary Receipts evidencing the related Depositary Shares
in proportion to the number of such Depositary Receipts owned by such holders,
subject to certain obligations of holders to file proofs, certificates and other
information and to pay certain charges and expenses to such Depositary.
Fractions will be rounded down to the market whole cent.
In the event of a distribution other than in cash, a Depositary will be
required to distribute property received by it to the record holders of
Depositary Receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to such Depositary, unless such Depositary determines that it is
not feasible to make such distribution, in which case such Depositary may, with
the approval of the Company, sell such property and distribute the net proceeds
from such sale to such holders.
No distributions will be made in respect of any Depositary Share to the
extent that it represents any Preferred Stock which have been converted or
exchanged. The Deposit Agreement will also contain provisions relating to the
manner in which any subscription or similar rights offered by the Company to
holders of the Preferred Stock shall be made available to holders of Depositary
Shares.
Redemption of Depositary Shares
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the Depositary
Receipts evidencing the Depositary Shares to be so redeemed at their respective
addresses appearing in the Depositary's books. The redemption price per
Depositary Share will be equal to the applicable fraction of the redemption
price per share payable with respect to such series of the Preferred Stock.
Whenever the Company redeems shares of Preferred Stock held by the Depositary,
the Depositary will redeem as of the same redemption date the number of
Depositary Shares relating to shares of Preferred Stock so redeemed. If less
than all of the Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed will be selected by lot or pro rata as may be determined by the
Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares and the related Depositary Receipts will cease,
except the right to receive the moneys payable upon such redemption and any
money or other property to which the holders of such Depositary Shares were
entitled upon such redemption upon surrender to the Depositary of the Depositary
Receipts evidencing such Depositary Shares.
Voting of the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the
applicable Preferred Stock are entitled to vote, a Depositary will be required
to mail the information contained in such notice of meeting to the record
holders of the Depositary Receipts evidencing the Depositary Shares which
represent such Preferred Stock. Each record holder of Depositary Receipts
evidencing Depositary Shares on the record date (which will be the same date as
the record date for the Preferred Stock) will be entitled to instruct such
Depositary as to the exercise of the voting rights
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pertaining to the amount of Preferred Stock represented by such holder's
Depositary Shares. Such Depositary will endeavor, insofar as practical, to vote
the amount of Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable action which may be deemed necessary by such Depositary in order to
enable such Depositary to do so. Such Depositary will be required to abstain
from voting the amount of Preferred Stock represented by such Depositary Shares
to the extent it does not receive specific instructions from the holders of
Depositary Receipts evidencing such Depositary Shares. The Depositary will not
be responsible for any failure to carry out any instruction to vote, or for the
manner or effect of any such vote made, as long as such action or non-action is
in good faith and does not result from gross negligence or willful misconduct of
such Depositary.
Liquidation Preference
In the event of the liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the holders of each Depositary Share will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by such Depositary Share, as set forth in the
applicable Prospectus Supplement.
Conversion of Preferred Stock
The Depositary Shares, as such, will not be convertible into or
exchangeable for Common Stock, Preferred Stock or any other securities or
property of the Company. Nevertheless, if so specified in the applicable
Prospectus Supplement relating to an offering of Depositary Shares, the
Depositary Receipts may be surrendered by holders thereof to the applicable
Depositary with written instructions to such Depositary to instruct the Company
to cause conversion or exchange of the Preferred Stock represented by the
Depositary Share evidenced by such Depositary Receipts into Common Stock, other
shares of Preferred Stock of the Company or such other Offered Securities as
shall be provided therein, and the Company will agree that upon receipt of such
instruction and any amounts payable in respect thereof, it will cause the
conversion or exchange thereof utilizing the same procedures as those provided
for delivery of Preferred Stock to effect such conversion or exchange. If the
Depositary Shares evidenced by a Depositary Receipt are to be converted in part
only, a new Depositary Receipt or Depositary Receipts will be issued for any
Depositary Shares not to be converted.
Amendment and Termination of a Deposit Agreement
Any form of Depositary Receipt evidencing Depositary Shares and any
provision of a Deposit Agreement will be permitted at any time to be amended by
agreement between the Company and the applicable Depositary. However, any
amendment that materially and adversely alters the rights of the holders of
Depositary Shares will not be effective unless such amendment has been approved
by the existing holders of at least a majority of the applicable Depositary
Shares then outstanding. Every holder of an outstanding Depositary Receipt at
the time any such amendment becomes effective shall be deemed, by continuing to
hold such Depositary Receipt, to consent and agree to such amendment and to be
bound by the applicable Deposit Agreement as amended thereby.
Any Deposit Agreement may be terminated by the Company upon not less than
30 days' prior written notice to the applicable Depositary if a majority of each
series of Preferred Stock affected by such termination consents to such
termination, whereupon such Depositary will be required to deliver or make
available to each holder of Depositary Receipts, upon surrender of the
Depositary Receipts held by such holder, such number of whole or fractional
Preferred Stock as are represented by the Depositary Shares evidenced by such
Depositary Receipts together with any other property held by such Depositary
with respect to such Depositary Receipts. In addition, a Deposit Agreement will
automatically terminate if (i) all outstanding Depositary Shares thereunder
shall have been redeemed; (ii) there shall have been a final distribution in
respect of the related Preferred Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Receipts evidencing the Depositary
Shares underlying such Preferred Stock; or (iii) each of the related Preferred
Stock shall have been converted or exchanged into securities not so represented
by Depositary Shares.
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Charges of a Depositary
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of a Deposit Agreement. In addition, the
Company will pay the fees and expenses of a Depositary in connection with the
initial deposit of the Preferred Stock and any redemption of Preferred Stock.
However, holders of Depositary Receipts will pay any transfer or other
governmental charges and the fees and expenses of a Depositary for any duties
requested by such holders to be performed which are outside of those expressly
provided for in the applicable Deposit Agreement.
Resignation and Removal of Depositary
A Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove a Depositary, any
such resignation or removal to take effect upon the appointment of a successor
Depositary. A successor Depositary will be required to be appointed within 60
days after delivery of the notice of resignation or removal and will be required
to be a bank or trust company having its principal office in the United States
and having a combined capital and surplus of at least $50 million.
Miscellaneous
A Depositary will be required to forward to holders of Depositary Receipts
any reports and communications from the Company which are received by such
Depositary with respect to the related Preferred Stock.
Neither Depositary nor the Company will be liable if it is prevented from
or delayed in, by law or any circumstances beyond its control, performing its
obligations under a Deposit Agreement. The obligations of the Company and a
Depositary under a Deposit Agreement will be limited to performing their duties
thereunder in good faith and without gross negligence or willful misconduct, and
neither the Company nor any applicable Depositary will be obligated to prosecute
or defend any legal proceeding in respect of any Depositary Receipts, Depositary
Shares or Preferred Stock represented thereby unless satisfactory indemnity is
furnished. The Company and any Depositary will be permitted to rely on written
advice of counsel or accountants, on information provided by persons presenting
Preferred Stock represented thereby for deposit, holders of Depositary Receipts
or other persons believed in good faith to be competent to give such
information, and on documents believed in good faith to be genuine and signed by
a proper party.
In the event a Depositary shall receive conflicting claims, requests or
instructions from any holders of Depositary Receipts, on the one hand, and the
Company, on the other hand, such Depositary shall be entitled to act on such
claims, requests or instructions received from the Company.
DESCRIPTION OF WARRANTS
The Company may issue, together with any other series of Offered Securities
or separately, Warrants entitling the holder to purchase from or sell to the
Company, or to receive from the Company the cash value of the right to purchase
or sell, Debt Securities, Preferred Stock, Depositary Shares or Common Stock.
Any Warrants will be issued under Warrant Agreements (each a "Warrant
Agreement") to be entered into between the Company and a warrant agent (the
"Warrant Agent"), all as set forth in the applicable Prospectus Supplement
relating to the particular issue of Warrants.
In the case of each series of Warrants, the applicable Prospectus
Supplement will describe the terms of the Warrants being offered thereby,
including the following, if applicable: (i) the offering price; (ii) the
currencies in which such Warrants are being offered; (iii) the number of
Warrants offered; (iv) the securities underlying the Warrants; (v) the exercise
price, the procedures for exercise of the Warrants and the circumstances, if
any, that will cause the Warrants to be deemed to be automatically exercised;
(vi) the date on which the right shall expire; (vii) U.S. federal income tax
consequences; and (viii) other terms of the Warrants.
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Warrants may be exercised at the appropriate office of the Warrant Agent or
any other office indicated in the applicable Prospectus Supplement. Prior to the
exercise of Warrants entitling the holder to purchase any securities, holders of
such Warrants will not have any of the rights of holders of the securities
purchasable upon such exercise and will not be entitled to payments made to
holders of such securities.
The Warrant Agreements may be amended or supplemented without the consent
of the holders of the Warrants issued thereunder to effect changes that are not
inconsistent with the provisions of the Warrants and that do not adversely
affect the interests of the holders of the Warrants.
DGCL AND CERTAIN PROVISIONS OF THE RESTATED CERTIFICATE
AND THE BY-LAWS
The Restated Certificate and the By-Laws contain certain provisions that
could delay or make more difficult the acquisition of Iron Mountain by means of
a tender offer, a proxy contest or otherwise. These provisions, as described
below, are expected to discourage certain types of coercive takeover practices
and inadequate takeover bids and to encourage persons seeking to acquire control
of Iron Mountain first to negotiate with Iron Mountain. Iron Mountain believes
that the benefits of increased protection of its ability to negotiate with the
proponent of an unfriendly or unsolicited proposal to acquire or restructure
Iron Mountain outweigh the disadvantages of discouraging such proposals because,
among other things, negotiations with respect to such proposals could result in
an improvement of their terms.
Classified Board of Directors
The Restated Certificate and the By-Laws provide for a Board of Directors
that is divided into three classes of Directors, as nearly equal in number as
possible, with the term of each class expiring in a different year. The By-Laws
provide that the number of Directors will be fixed from time to time exclusively
by the Iron Mountain Board, but shall consist of not more than 15 nor less than
three Directors. The classified Iron Mountain Board is intended to promote
continuity and stability of Iron Mountain's management and policies since a
majority of the Directors at any given time will have prior experience as
Directors of Iron Mountain. Such continuity and stability facilitates long-range
planning of Iron Mountain's business and ensures the quality of its business
operations. The classification of Directors has the effect of making it more
difficult to change the composition of the Iron Mountain Board. At least two
annual stockholder meetings, instead of one, would be required to effect a
change in the majority control of the Iron Mountain Board, except in the event
of vacancies resulting from removal (in which case the remaining Directors will
fill the vacancies so created). See "--Removal of Directors; Filling Vacancies
on the Iron Mountain Board."
Removal of Directors; Filling Vacancies on the Iron Mountain Board
The Restated Certificate and Iron Mountain By-Laws provide that an Iron
Mountain Director may be removed by the stockholders only for cause at any time
during such Director's term of office by affirmative vote of the holders of at
least 80% of the Voting Power.
The By-Laws and the Restated Certificate both provide that a vacancy on the
Iron Mountain Board, including a vacancy created by an increase in the size of
the Iron Mountain Board by the Directors, may be filled by a majority of the
remaining Directors or by a sole remaining Director, or if no Directors remain,
then by the stockholders. The Restated Certificate also provides that any
Director elected by the Iron Mountain Board to replace another Director of a
given class of Directors will hold office until the next election of such class
of Directors. These provisions are to ensure that a third party would be
precluded from removing incumbent Directors and simultaneously gaining control
of the Iron Mountain Board by filling the vacancies created by such removal with
its own nominees. Moreover, even if the holders of the outstanding Common Stock
were to vote to remove Directors for cause, only the remaining Directors would
have the power to fill the vacancies created by such removal, unless such vote
provided for the removal of the entire Iron Mountain Board for cause.
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Amendment of Certain Provisions of the Restated Certificate and the By-Laws
The Restated Certificate and the By-Laws contain provisions requiring the
affirmative vote of the holders of at least 662/3% of the Voting Power to amend
certain provisions of the Restated Certificate and the By-Laws. This
supermajority voting provision also applies to (i) the provisions of the
Restated Certificate authorizing Iron Mountain to release its Directors from any
liability for monetary damages as a result of any breach of their fiduciary
duties, with certain exceptions mandated by the DGCL, and (ii) the provisions
allowing for the indemnification of officers and Directors of Iron Mountain. The
Restated Certificate provides that the By-Laws may be amended only by a majority
of the full Iron Mountain Board or by the stockholders holding at least 662/3%
of the Voting Power. The DGCL provides that by-laws may not be amended by a
corporation's Board of Directors unless the corporation's certificate of
incorporation expressly authorizes such amendments by the Board of Directors;
the Restated Certificate includes such a provision. Under the Restated
Certificate, at least 80% of the Voting Power is required to approve amendments
to those provisions of the Restated Certificate or Iron Mountain By-Laws
establishing a classified Board, specifying notice requirements for stockholder
nominations of Directors or business to be brought by a stockholder before an
annual meeting and limiting the rights of stockholders to remove Directors or
fill vacancies on the Iron Mountain Board, to call special meetings or to effect
actions by written consent.
Stockholder Actions and Meetings
Iron Mountain's Restated Certificate provides that stockholder action may
be taken only at an annual or special meeting of stockholders and prohibits
stockholders action by written consent in lieu of a meeting. The Restated
Certificate and Iron Mountain By-Laws provide that special meetings of
stockholders can be called by the Chairman of the Board of Directors, if any, or
the Iron Mountain Board pursuant to a resolution approved by a majority of the
members of the Iron Mountain Board. The business permitted to be conducted at
any special meeting of stockholders is limited to the business brought before
the meeting by the Iron Mountain Board. The ByLaws set forth an advance notice
procedure with regard to the nomination, other than by or at the direction of
the Iron Mountain Board, of candidates for election as directors and with regard
to business brought before an annual meeting of stockholders of Iron Mountain.
Delaware Anti-Takeover Statute
Subject to certain exceptions set forth therein, Section 203 of the DGCL
provides that a corporation shall not engage in any business combination with
any "interested stockholder" for a three-year period following the date that
such stockholder becomes an interested stockholder unless (i) prior to such
date, the board of directors of the corporation approved either the business
combination or the transaction that resulted in the stockholder becoming an
interested stockholder, (ii) upon consummation of the transaction that resulted
in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding certain shares) or
(iii) on or subsequent to such date, the business combination is approved by the
board of directors of the corporation and by the affirmative vote of at least
662/3% of the outstanding voting stock which is not owned by the interested
stockholder. Except as specified therein, an interested stockholder is defined
to mean any person that (a) is the owner of 15% or more of the outstanding
voting stock of the corporation or (b) is an affiliate or associate of the
corporation and was the owner of 15% or more of the outstanding voting stock of
the corporation at any time within three years immediately prior to the relevant
date, or any affiliate or associate of such person referred to in (a) or (b) of
this sentence. Under certain circumstances, Section 203 of the DGCL makes it
more difficult for an interested stockholder to effect various business
combinations with a corporation for a three-year period, although the
stockholders may, by adopting an amendment to the corporation's certificate of
incorporation or by-laws, elect not to be governed by this section, effective
twelve months after adoption. The Restated Certificate and the By-Laws do not
exclude Iron Mountain from the restrictions imposed under Section 203 of the
DGCL. It is anticipated that the provisions of Section 203 of the DGCL may
encourage companies interested in acquiring Iron Mountain to negotiate in
advance with the Iron Mountain Board.
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DESCRIPTION OF INDEBTEDNESS
The summaries contained herein of certain of the indebtedness of Iron
Mountain do not purport to be complete and are qualified in their entirety by
reference to the provisions of the various agreements and indentures related
thereto, which are filed as exhibits to the Registration Statement of which this
Prospectus is a part and to which reference is hereby made.
Credit Agreement
The Credit Agreement, as currently in effect, is a $250.0 million revolving
credit facility that matures on September 30, 2002. Upon maturity, all
outstanding revolving credit loans and other amounts payable thereunder will
become due.
Borrowings under the Credit Agreement may be used to finance possible
future acquisitions, as well as for working capital and general corporate
purposes. The Company's obligations under the Credit Agreement are guaranteed by
substantially all of Iron Mountain's subsidiaries and are secured by the pledge
of the stock of such subsidiaries. Prepayment of outstanding borrowings under
the Credit Agreement are required in certain circumstances out of the proceeds
of certain insurance payments, condemnations, issuances of indebtedness and
asset dispositions.
The Credit Agreement permits the Company to elect interest rates from time
to time, as to all or a portion of the borrowings made thereunder, at interest
rates based upon the applicable reference rate and margin or spread over such
reference rate (which spread varies based upon the ratio of the Company's
indebtedness to EBITDA). The reference rate, at the Company's option, may be
based upon (i) a fluctuating rate of interest equal to the higher rates, or (ii)
for interest periods of 1, 2, 3, 6 or (if available) 12 months, the interest
rates prevailing on the date of determination for the selected interest period
in the London interbank market.
The Credit Agreement contains covenants restricting the ability of Iron
Mountain and its subsidiaries to, among other things: (i) declare dividends or
redeem or repurchase capital stock; (ii) make optional payments and
modifications of subordinated and other debt instruments; (iii) incur liens and
engage in sale and leaseback transactions; (iv) make loans and investments; (v)
incur indebtedness and contingent obligations; (vi) make capital expenditures;
(vii) engage in mergers, acquisitions and assets sales; (viii) enter into
transactions with affiliates; and (ix) make changes in their lines of business.
Iron Mountain is also required to comply with financial covenants with respect
to: (i) a maximum leverage ratio; (ii) a minimum interest coverage ratio; and
(iii) a minimum fixed charge coverage ratio. The Credit Agreement also contains
customary affirmative covenants and events of default.
The Senior Subordinated Notes
In October 1996, the Company issued $165.0 million principal amount of the
1996 Notes, and in October 1997, the Company issued $250.0 million principal
amount of the 1997 Notes. The 1996 Notes mature on October 1, 2006, and bear
interest at a rate of 10 1/8% per annum, payable semi-annually in arrears on
April 1 and October 1. The 1997 Notes mature on September 30, 2009, and bear
interest at a rate of 8 3/4% per annum, payable semi-annually in arrears on
March 31 and September 30. Both the 1996 Notes and the 1997 Notes are general,
unsecured obligations of the Company, subordinated in right of payment to senior
indebtedness of the Company, and are guaranteed on an unsecured, senior
subordinated and joint and several basis by substantially all of the Company's
present and future subsidiaries.
Each of the Notes Indentures provides that the Company may redeem up to 35%
of the initial principal amount of the 1996 Notes and the 1997 Notes,
respectively, for a period of 36 months after the date of issuance with the net
proceeds of one or more equity offerings, whether such offerings are registered
pursuant to the Securities Act or not (unless such equity securities are
redeemable prior to the maturity of the 1996 Notes or the 1997 Notes, as the
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<PAGE>
case maybe). In such event, the redemption price for the 1996 Notes would be
109.125%, and the redemption price for the 1997 Notes would be 108.75%, of the
aggregate principal amount plus, in each case, accrued and unpaid interest. Each
of the Notes Indentures also provides that the Company must repurchase, at the
option of the holders, the 1996 Notes and the 1997 Notes, respectively, at 100%
of their principal amount, plus accrued and unpaid interest, upon the occurrence
of a "Change of Control," as defined therein. Except for required repurchases
upon the occurrence of a change of control or in the event of certain asset
sales, each as described in the respective Indenture, the Company is not
required to make sinking fund or redemption payments with respect to the 1996
Notes or the 1997 Notes. The 1996 Notes become redeemable at the option of the
Company at stated premiums commencing October 1, 2001. The 1997 Notes become
redeemable at the option of the Company at stated premiums commencing September
30, 2002. Prior to September 30, 2002, the 1997 Notes are also redeemable at the
option of the Company, in whole or in part, at a specified make-whole price.
The Notes Indentures contain covenants restricting or limiting the ability
of the Company and its subsidiaries to, among other things: (i) incur additional
indebtedness, including indebtedness ranking senior to the 1996 Notes and the
1997 Notes and junior to any senior indebtedness; (ii) pay dividends or make
other restricted payments; (iii) make asset dispositions; (iv) permit liens; (v)
enter into sale and leaseback transactions; (vi) enter into certain mergers;
(vii) make certain investments; and (viii) enter into transactions with related
persons.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to one or more underwriters for
public offering and sale by them or may sell the Offered Securities to investors
directly or through agents. Any such underwriter or agent involved in the offer
and sale of the Offered Securities will be named in the applicable Prospectus
Supplement.
The distribution of Offered Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such market
prices or at negotiated prices. In connection with the sale of Offered
Securities, underwriters or agents may receive or be deemed to have received
compensation from the Company or from purchasers in the form of underwriting
discounts, concessions or commissions. Underwriters may sell Offered Securities
to or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or from purchasers.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Offered Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Underwriters, dealers
and agents participating in the distribution of the Offered Securities may be
deemed to be underwriters, and any discounts, concessions and commissions
received by them and any profit realized by them on resale of the Offered
Securities may be deemed to be underwriting discounts and commissions, under the
Securities Act. Underwriters, dealers and agents may be entitled, under
agreements entered into with the Company, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Offered Securities from the
Company at the public offering price set forth in such Prospectus Supplement
pursuant to contracts providing for payment and delivery on a future date or
dates. Institutions with whom such contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions, but will in all cases be subject to the approval of the Company.
Any such contracts will be subject to the condition that the purchase by an
institution of the Offered Securities covered by its contracts shall not at the
time of delivery be prohibited under the law of any jurisdiction in the United
States to which such institution is subject and, if a portion of the Offered
Securities is being sold to underwriters, may be subject to the condition that
the Company shall have sold to such underwriters the Offered Securities not sold
for delayed
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delivery. The underwriters and such other persons will not have any
responsibility in respect of the validity or performance of such contracts.
Unless otherwise specified in the related Prospectus Supplement, each
series of Offered Securities will be a new issue with no established trading
market, other than shares of Common Stock, which are listed on the Nasdaq
National Market. Any shares of Common Stock sold pursuant to a Prospectus
Supplement will be listed on the Nasdaq National Market. The Company may elect
to list any other series of Offered Securities on an exchange, but is not
obligated to do so. Any underwriters to whom Offered Securities are sold by the
Company for public offering and sale may make a market in such Offered
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of or the trading markets for any Offered Securities.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for the Company and its
subsidiaries in the ordinary course of business.
The specific terms and manner of sale of the Offered Securities will be set
forth or summarized in the applicable Prospectus Supplement.
LEGAL MATTERS
Certain legal matters with respect to the Offered Securities offered by the
Company will be passed upon for the Company by Sullivan & Worcester LLP, Boston,
Massachusetts. Jas. Murray Howe, Secretary of Iron Mountain, is of counsel to
Sullivan & Worcester LLP and beneficially owns 3,855 shares of common stock.
EXPERTS
The consolidated financial statements and schedule of Iron Mountain
Incorporated and its subsidiaries for the three years ended December 31, 1996,
included in Iron Mountain's Annual Report on Form 10-K, have been audited by
Arthur Andersen LLP, independent public accountants, as stated in their reports
with respect thereto, and are incorporated by reference herein in reliance upon
the authority of said firm as experts in giving said reports.
The financial statements of Nashville Vault Company, Ltd. for the year
ended December 31, 1995, included in Iron Mountain's Registration Statement on
Form S-4 (file No. 333-24635, effective date May 14, 1997), have been audited by
Geo. S. Olive & Co. LLC, independent public accountants, as stated in their
report with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said report.
The financial statements of International Record Storage and Retrieval
Services, Inc. for the year ended December 31, 1995, included in Iron Mountain's
Registration Statement on Form S-4 (file No. 333-24635, effective date May 14,
1997), have been audited by Rothstein, Kass & Company, P.C., independent public
accountants, as stated in their report with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said report.
The financial statements of Mohawk Business Record Storage, Inc. for the
year ended December 31, 1995, included in Iron Mountain's Registration Statement
on Form S-4 (file No. 333-24635, effective date May 14, 1997), have been audited
by Arthur Andersen LLP, independent public accountants, as stated in their
report with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said report.
The financial statements of Security Archives of Minnesota for the year
ended December 31, 1996, included in Iron Mountain's Current Report on Form 8-K
dated October 30, 1997, have been audited by Arthur Andersen LLP, independent
public accountants, as stated in their report with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said report.
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<PAGE>
The financial statements of Wellington Financial Services, Inc. for the
year ended December 31, 1996, included in Iron Mountain's Current Report on Form
8-K dated October 30, 1997, have been audited by Arthur Andersen LLP,
independent public accountants, as stated in their report with respect thereto,
and are incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said report.
The financial statements of Allegiance Business Archives, Ltd. for the year
ended December 31, 1996, included in Iron Mountain's Current Report on Form 8-K
dated November 25, 1997, have been audited by Stout, Causey & Horning, P.A.,
independent public accountants, as stated in their report with respect thereto,
and are incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said report.
The financial statements and schedule of Safesite Records Management
Corporation for the three years ended December 31, 1996, included in Iron
Mountain's Registration Statement on Form S-4 (file no. 333-24635, effective
date May 14, 1997), have been audited by Arthur Andersen LLP, independent public
accountants, as stated in their reports with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said reports.
The financial statements of Concorde Group, Inc. and Neil Trucker Trust for
the year ended December 31, 1996, included in Iron Mountain's Current Report on
Form 8-K dated October 30, 1997, have been audited by Fisher, Schacht & Oliver
LLP, independent public accountants, as stated in their report with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in giving said report.
The financial statements of Data Securities International, Inc. for the
year ended December 31, 1996, included in Iron Mountain's Current Report on Form
8-K dated October 30, 1997, have been audited by Arthur Andersen LLP,
independent public accountants, as stated in their report with respect thereto,
and are incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said report.
The financial statements of Records Retention/FileSafe, LP for the two
years ended December 31, 1996, included in Iron Mountain's Current Report on
Form 8-K dated November 25, 1997, have been audited by Abbott Stringham & Lynch,
independent public accountants, as stated in their report with respect thereto,
and are incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said report.
The consolidated financial statements of HIMSCORP, Inc. and Subsidiaries
for the period February 1, 1995 to December 31, 1995 and for the year ended
December 31, 1996, appearing in Iron Mountain's Current Reports on Form 8-K
dated October 30, 1997 and November 25, 1997, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their reports thereon included
therein, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in accounting and auditing.
The consolidated financial statements of Arcus Technology Services, Inc.
(Successor Company) for the year ended December 31, 1996 and the five months
ended December 31, 1995 and the consolidated financial statements of Arcus, Inc.
(Predecessor Company) for the seven months ended July 31, 1995 and the year
ended December 31, 1994, appearing in Iron Mountain's Current Reports on Form
8-K dated October 30, 1997 and November 25, 1997, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their reports thereon included
therein, and are incorporated by reference herein in reliance upon the authority
of such firm as experts in accounting and auditing.
The consolidated financial statements of Arcus Group, Inc. for the two
years in the period ended December 31, 1996, appearing in Iron Mountain's
Current Reports on Form 8-K dated October 30, 1997 and November 25, 1997, have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
reports thereof included therein, and are incorporated by reference herein in
reliance upon the authority of such firm as experts in accounting and auditing.
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<PAGE>
The consolidated financial statements of Arcus Group, Inc. for the year
ended December 31, 1994, included in Iron Mountain's Current Report on Form 8-K
dated November 25, 1997, have been audited by Arthur Andersen LLP, independent
public accountants, as stated in their report with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said report.
33
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Set forth below is an estimate (except in the case of the registration fee)
of the amount of fees and expenses to be incurred in connection with the
issuance and distribution of the Offered Securities registered hereby, other
than underwriting discounts and commissions.
Registration Fee Under Securities Act $103,250
Blue Sky Fees and Expenses 10,000
Legal Fees and Expenses 260,000
Accounting Fees and Expenses 300,000
Printing and Engraving 100,000
Rating Agencies Fees 52,500
Miscellaneous Fees and Expenses 174,250
-----------
Total: $1,000,000
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL") provides,
in effect, that any person made a party to any action by reason of the fact that
he is or was a Director, officer, employee or agent of Iron Mountain may and, in
certain cases, must be indemnified by Iron Mountain against, in the case of a
non-derivative action, judgments, fines, amounts paid in settlement and
reasonable expenses (including attorney's fees) incurred by him as a result of
such action, and in the case of a derivative action, against expenses (including
attorney's fees), if in either type of action he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
Iron Mountain. This indemnification does not apply, in a derivative action, to
matters as to which it is adjudged that the Director, officer, employee or agent
is liable to Iron Mountain, unless upon court order it is determined that,
despite such adjudication of liability, but in view of all the circumstances of
the case, he is fairly and reasonably entitled to indemnity for expenses, and,
in a non-derivative action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was unlawful.
Article Sixth of Iron Mountain's Restated Certificate of Incorporation
provides that Iron Mountain shall indemnify each person who is or was an officer
or Director of Iron Mountain to the fullest extent permitted by Section 145 of
the DGCL.
Article Seventh of Iron Mountain's Restated Certificate of Incorporation
states that no Director of Iron Mountain shall be liable to Iron Mountain or its
stockholders for monetary damages for breach of fiduciary duty as a Director,
except to the extent that exculpation from liability is not permitted under the
DGCL as in effect when such breach occurred.
Reference is made to the Underwriting Agreements (Exhibits 1.1 through 1.5
hereto) which may contain certain provisions for indemnification by the
Underwriters of the Company, Directors, officers and controlling persons under
certain circumstances.
Item 16. Exhibits
Certain exhibits indicated below are incorporated by reference to documents
of Iron Mountain on file with the Securities and Exchange Commission. Exhibit
numbers in parentheses refer to the exhibit numbers in the applicable filing.
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<PAGE>
1.1 Form of Underwriting Agreement (for Debt Securities)*
1.2 Form of Underwriting Agreement (for Preferred Stock)*
1.3 Form of Underwriting Agreement (for Depositary Shares)*
1.4 Form of Underwriting Agreement (for Common Stock)*
1.5 Form of Underwriting Agreement (for Warrants)*
3.1 Amended and Restated Certificate of Incorporation of Iron Mountain, as
amended
3.2 Amended and Restated By-Laws of Iron Mountain
4.1 Form of Senior Indenture
4.2 Form of Subordinated Indenture
4.3 Form of Senior Debt Security*
4.4 Form of Subordinated Debt Security*
4.5 Form of Certificate of Designation for the Preferred Stock*
4.6 Form of Deposit Agreement, including form of Depositary Receipt for
Depositary Shares*
4.7 Form of Preferred Stock Certificate*
4.8 Form of Debt Warrant Agreement, including form of Debt Warrant*
4.9 Form of Preferred Stock Warrant Agreement, including form of Preferred
Stock Warrant*
4.10 Form of Common Stock Warrant Agreement, including form of Common Stock
Warrant*
5 Opinion of Sullivan & Worcester LLP
8 Opinion of Sullivan & Worcester LLP re: tax matters*
12 Statement Regarding Computation of Ratios of Earnings to Fixed Charges
(12)1
23.1 Consent of Ernst & Young LLP (Arcus Group, Inc. and Arcus Technology
Services, Inc.)
23.2 Consent of Arthur Andersen LLP (Arcus Group, Inc.)
23.3 Consent of Ernst & Young LLP (HIMSCORP, Inc. and Subsidiaries)
23.4 Consent of Stout, Causey & Horning, P.A. (Allegiance Business Archives,
Ltd.)
23.5 Consent of Abbott, Stringham & Lynch (Records Retention/FileSafe)
23.6 Consent of Arthur Andersen LLP (Security Archives of Minnesota,
Wellington Financial Services, Inc. and Data Securities International,
Inc.)
23.7 Consent of Fisher, Schact & Oliver, LLP (Concorde Group, Inc. and Neil
Tucker Trust)
23.8 Consent of Arthur Andersen LLP (Safesite Records Management Corporation
and Mohawk Business Record Storage, Inc.)
23.9 Consent of Geo. S. Olive & Co. LLC (Nashville Vault Company, Ltd.)
23.10 Consent of Rothstein, Kass & Company, P.C (International Record Storage
and Retrieval Service, Inc.)
23.11 Consent of Arthur Andersen LLP (Iron Mountain Incorporated)
23.12 Consent of Sullivan & Worcester LLP. Contained in Exhibit 5 filed
herewith
24 Powers of Attorney (contained on Pages II-5 and II-8 of the
Registration Statement)
25 Statement of Eligibility of Trustee on Form T-1*
27 Financial Data Schedule (27)2
- -------------
* To be filed by amendment or incorporated by reference in connection with
the offering of Offered Securities, as appropriate.
1 Filed as an Exhibit to Iron Mountain's Registration Statement No. 333-41715
filed with the Securities and Exchange Commission on December 8, 1997.
2 Filed as an Exhibit to Iron Mountain's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1997, filed with the Securities and
Exchange Commission, File No. 0-27584.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
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(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
(Section 230.424(b) of 17 C.F.R.) if, in the aggregate, the
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in the periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
and Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the Securities
offered herein, and the offering of such Securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the Securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange of 1934 that is
incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the Securities
offered herein, and the offering of such Securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under
Item 15 of this registration statement, or otherwise (other than
insurance), the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in such Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a trustee, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such trustee, officer or controlling person in
connection with the Securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Company pursuant to Rule
424(b)(1) or (4) or 497(h) under
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the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective; and
(2) For purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(e) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of each Indenture Trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Iron Mountain
Incorporated has duly caused this registration statement to be signed on its
behalf by the undersigned, threunto duly authorized, in the city of Boston,
Commonwealth of Massachusetts, on January 13, 1998.
IRON MOUNTAIN INCORPORATED
By: /s/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below on January 13, 1998 by the following persons in
the capacities and on the dates indicated; and each of the undersigned officers
and Directors of Iron Mountain Incorporated hereby severally constitutes and
appoints C. Richard Reese, David S. Wendell and John F. Kenny, Jr., and each of
them, to sign for him, and in his name in the capacity indicated below, such
Registration Statement for the purpose of registering such securities under the
Securities Act, and any and all amendments thereto, including without limitation
any registration statement or post-effective amendment thereof filed under and
meeting the requirements of rule 462(b) under the Securities act, hereby
ratifying and confirming our signatures as they may be signed by our attorneys
to such Registration Statement and any and all amendments thereto.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ C.Richard Reese Chairman of the Board of Directors January 13, 1998
C. Richard Reese and Chief Executive Officer
/s/ David S. Wendell President, Chief Operating Officer January 13, 1998
David S. Wendell and Director
/s/ John F. Kenny, Jr. Executive Vice President and Chief January 13, 1998
John F. Kenny, Jr. Financial Officer
/s/ Eugene B. Doggett Executive Vice President and Director January 13, 1998
Eugene B. Doggett
/s/ Constantin R. Boden Director January 13, 1998
Constantin R. Boden
/s/ Arthur D. Little Director January 13, 1998
Arthur D. Little
II-5
<PAGE>
/s/ Vincent J. Ryan Director January 13, 1998
Vincent J. Ryan
/s/ B. Thomas Golisano Director January 13, 1998
B. Thomas Golisano
/s/ Kent P. Dauten Director January 13, 1998
Kent P. Dauten
/s/ Clarke H. Bailey Director January 13, 1998
Clarke H. Bailey
/s/ Jean A. Bua Vice President and Corporate January 13, 1998
Jean A. Bua Controller
</TABLE>
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Iron Mountain
Records Management, Inc., Iron Mountain/Safesite, Inc., Data Securities
International, Inc., IM-3 Acquisition Corp., Metro Business Archives, Inc.,
Criterion Atlantic Property, Inc., Iron Mountain/Critical Files, Inc., Hollywood
Property, Inc., IM San Diego, Inc., Iron Mountain Consulting Services, Inc.,
Iron Mountain Data Protection Services, Inc., Iron Mountain Records Management
of Maryland, Inc., Iron Mountain Records Management of Ohio, Inc., Inc., Iron
Mountain Records Management of Missouri, LLC, Iron Mountain Records Management
of Boston, Inc., Iron Mountain Records Management of Florida, Inc., Iron
Mountain Records Management of Michigan, Inc., Iron Mountain Records Management
of the Northwest, Inc., IM Earhart, Inc., IM Billerica, Inc., Iron Mountain
Records Management of San Antonio, Inc., Iron Mountain Records Management of San
Antonio - FP, Inc., IM-AEI Acquisition Corp., Archives Express, Inc., HIMSCORP
of Philadelphia, Inc., RecordKeepers, Inc., HIMSCORP of Pittsburgh, Inc.,
HIMSCORP of Cleveland, Inc., HIMSCORP of New Orleans, Inc., HIMSCORP of
Portland, Inc., HIMSCORP of San Diego, Inc., HIMSCORP of Detroit, Inc., HIMSCORP
of Los Angeles, Inc., HIMSCORP of Houston, Inc., Copyright, Inc., Record Masters
Network Corp., Arcus, Inc., Arcus Data Security, Inc., Towler Data Services,
Inc., Arcus Staffing Resources, Inc., Wolf Advisory International, Inc., Wolf
Advisory International, Ltd., and TPI Holdings, Corp. have each duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Boston, Commonwealth of Massachusetts, on
January 13, 1998
IRON MOUNTAIN RECORDS MANAGEMENT, IRON MOUNTAIN RECORDS MANAGEMENT
INC. OF THE NORTHWEST, INC.
IRON MOUNTAIN/SAFESITE, INC. IM EARHART, INC.
DATA SECURITIES INTERNATIONAL, INC. IM BILLERICA, INC.
IM-3 ACQUISITION CORP. IRON MOUNTAIN RECORDS MANAGEMENT
METRO BUSINESS ARCHIVES, INC. OF SAN ANTONIO, INC.
CRITERION ATLANTIC PROPERTY, INC. IRON MOUNTAIN RECORDS MANAGEMENT
IRON MOUNTAIN/CRITICAL FILES, INC. OF SAN ANTONIO - FP, INC.
HOLLYWOOD PROPERTY, INC. IM-AEI ACQUISITION CORP.
IM SAN DIEGO, INC. ARCHIVES EXPRESS, INCORPORATED
IRON MOUNTAIN CONSULTING SERVICES, HIMSCORP OF PHILADELPHIA, INC.
INC. RECORDKEEPERS, INC.
IRON MOUNTAIN DATA PROTECTION HIMSCORP OF PITTSBURGH, INC.
SERVICES, INC. HIMSCORP OF CLEVELAND, INC.
IRON MOUNTAIN RECORDS MANAGEMENT HIMSCORP OF NEW ORLEANS, INC.
OF MARYLAND, INC. HIMSCORP OF PORTLAND, INC.
IRON MOUNTAIN RECORDS MANAGEMENT HIMSCORP OF SAN DIEGO, INC.
OF OHIO, INC. HIMSCORP OF DETROIT, INC.
IRON MOUNTAIN RECORDS MANAGEMENT HIMSCORP OF LOS ANGELES, INC.
OF BOSTON, INC. HIMSCORP OF HOUSTON, INC.
IRON MOUNTAIN RECORDS MANAGEMENT COPYRIGHT, INC.
OF FLORIDA, INC. RECORD MASTERS NETWORK CORP.
IRON MOUNTAIN RECORDS MANAGEMENT ARCUS STAFFING RESOURCES, INC.
OF MICHIGAN, INC. WOLF ADVISORY INTERNATIONAL, INC.
ARCUS, INC. WOLF ADVISORY INTERNATIONAL, LTD.
ARCUS DATA SECURITY, INC. TPI HOLDINGS, CORP.
TOWLER DATA SERVICES, INC.
By: /s/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman of the Board
of Directors and Chief
Executive Officer
II-7
<PAGE>
IRON MOUNTAIN RECORDS MANAGEMENT
OF MISSOURI, LLC
By: Iron Mountain Records
Management, Inc.
Its Manager
By: /s/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman of the Board
of Directors and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below on January 13, 1998 by the following persons in
the capacities and on the dates indicated; and each of the undersigned officers
or Directors or Managers of Iron Mountain Records Management, Inc., Iron
Mountain/Safesite, Inc., Data Securities International, Inc., IM-3 Acquisition
Corp., Metro Business Archives, Inc., Criterion Atlantic Property, Inc., Iron
Mountain/Critical Files, Inc., Hollywood Property, Inc., IM San Diego, Inc.,
Iron Mountain Consulting Services, Inc., Iron Mountain Data Protection Services,
Inc., Iron Mountain Records Management of Maryland, Inc., Iron Mountain Records
Management of Ohio, Inc., Iron Mountain Records Management of Missouri, LLC,
Iron Mountain Records Management of Boston, Inc., Iron Mountain Records
Management of Florida, Inc., Iron Mountain Records Management of Michigan, Inc.,
Iron Mountain Records Management of the Northwest, Inc., IM Earhart, Inc., IM
Billerica, Inc., Iron Mountain Records Management of San Antonio, Inc., Iron
Mountain Records Management of San Antonio - FP, Inc., IM-AEI Acquisition Corp.,
Archives Express, Inc., HIMSCORP of Philadelphia, Inc., RecordKeepers, Inc.,
HIMSCORP of Pittsburgh, Inc., HIMSCORP of Cleveland, Inc., HIMSCORP of New
Orleans, Inc., HIMSCORP of Portland, Inc., HIMSCORP of San Diego, Inc., HIMSCORP
of Detroit, Inc., HIMSCORP of Los Angeles, Inc., HIMSCORP of Houston, Inc.,
Copyright, Inc., Record Masters Network Corp., Arcus, Inc., Arcus Data Security,
Inc., Towler Data Services, Inc., Arcus Staffing Resources, Inc., Wolf Advisory
International, Inc., Wolf Advisory International, Ltd., and TPI Holdings, Corp.
hereby severally constitutes and appoints C. Richard Reese, David S. Wendell and
John F. Kenny, Jr., and each of them, to sign for him, and in his name in the
capacity indicated below, such Registration Statement for the purpose of
registering such securities under the Securities Act, and any and all amendments
thereto, including without limitation any registration statement or
post-effective amendment thereof filed under and meeting the requirements of
Rule 462(b) under the Securities Act, hereby ratifying and confirming our
signatures as they may be signed by our attorneys to such Registration Statement
and any and all amendments thereto.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ C. Richard Reese Chairman of the Board of January 13, 1998
C. Richard Reese Directors
and Chief Executive Officer
/s/ John F. Kenny, Jr. Executive Vice President and January 13, 1998
John F. Kenny, Jr. Chief Financial Officer
/s/ Jean Bua Vice President and Corporate January 13, 1998
Jean Bua Controller
II-8
<PAGE>
Iron Mountain Records Management, Manager of Iron Mountain January 13, 1998
Inc. Records Management of
Missouri, LLC
By: /s/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman of the Board
of Directors and
Chief Executive Officer
</TABLE>
II-9
EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IRON MOUNTAIN INCORPORATED
(as amended through January 12, 1998)
-----------------------------------
Iron Mountain Incorporated, a Delaware corporation (the "Corporation"),
hereby certifies as follows:
A. The name of the Corporation is Iron Mountain Incorporated, and the
name under which the Corporation was originally incorporated was Iron Mountain
Information Services, Inc.
B. The date of filing of the Corporation's original Certificate of
Incorporation with the Secretary of State was November 15, 1990; and the date of
filing of its first Restated Certificate of Incorporation with the Secretary of
State was December 13, 1990.
C. This Restated Certificate of Incorporation restates, integrates and
further amends the provisions of the first Restated Certificate of Incorporation
of the Corporation, as heretofore amended.
D. This Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the Delaware General Corporation Law.
E. The first Restated Certificate of Incorporation of the Corporation,
as heretofore amended, is hereby amended and restated effective at 9:00 a.m. on
February 6, 1996 to read in its entirety as follows:
FIRST: The name of the Corporation is Iron Mountain Incorporated.
SECOND: The address of the Corporation's registered office in the State
of Delaware is The Prentice-Hall Corporation System, Inc., 1013 Centre Road,
City of Wilmington, County of New Castle. The name of the Corporation's
registered agent at such address is The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business or purposes to be conducted or
promoted by the Corporation are to engage in any lawful act or activity for
which corporations may be organized under the Delaware General Corporation Law.
<PAGE>
-2-
FOURTH: The total number shares of all classes of capital stock that
Corporation shall have authority to issue is One Hundred Three Million
(103,000,000)1 shares, of which:
(i) One Hundred Million (100,000,000) shall be Common Stock, par
value $.01 per share (the "Common Stock"),2
(ii) One Million (1,000,000) shall be Nonvoting Common Stock, par
value $.01 per share (the "Nonvoting Common Stock" and
together with the Common Stock, the "Common Shares"), and
(iii) Two Million (2,000,000) shall be Preferred Stock, par value
$.01 per share (the "Preferred Stock" ).
A. CERTAIN DEFINITIONS.
For purposes of this Certificate of Incorporation, unless the context
otherwise requires, the following terms (or any variant in the form thereof)
have the following respective meanings. Terms defined in the singular shall have
a comparable meaning when used in the plural, and vice versa, and the reference
to any gender shall be deemed to include all genders.
The term "Applicable Law" shall mean any Law of any Authority,
whether domestic or foreign, including without limitation all federal
and state Laws, to which the Person in question is subject or by which
it or any of its business or operations is subject or any of its
property is bound.
The term "Authority" shall mean any governmental or
quasi-governmental authority, whether administrative, executive,
judicial, legislative or other, or any combination thereof, including
without limitation any federal, state, territorial, county, municipal
or other government or governmental or quasi-governmental agency,
authority, board, body, branch, bureau, central bank or comparable
agency or Entity, commission, court, department, instrumentality or
other political unit or subdivision or other Entity of any of the
foregoing, whether domestic or foreign.
The term "Certificate of Incorporation" means this Restated
Certificate of Incorporation of the Corporation and any other document
which pursuant to the Delaware General Corporation Law constitutes a
part of the Corporation's Certificate of Incorporation, including any
amendment to or restatement hereof and any certificate of designation
in respect of any particular class or series of Preferred Stock from
time to time in effect.
The term "Entity" shall mean any corporation, firm, limited
liability company, unincorporated organization, association,
partnership, trust, business trust, joint stock
- --------
1 Amended June 3, 1997 and further amended January 12, 1998.
2 Amended June 3, 1997 and further amended January 12, 1998.
<PAGE>
-3-
company, joint venture or other organization, entity or business,
whether acting in an individual, fiduciary or other capacity, or any
governmental or quasi-governmental authority, whether domestic or
foreign and whether administrative, executive, judicial, legislative or
other, or any combination thereof.
The term "Law" shall mean any administrative, judicial,
legislative or other action, code, consent decree, constitution,
decree, directive, enactment, finding, guideline, law, injunction,
interpretation, judgment, order, ordinance, policy statement,
proclamation, promulgation, regulation, requirement, rule, rule of law,
rule of public policy, settlement agreement, statute, or writ, or the
common law, or any particular section, part or provision thereof, or
any interpretation, directive, guideline or request (having the force
of law), of any Authority.
The term "Person" shall mean any natural individual or any
Entity.
B. GENERAL.
Any and all shares of any class or series issued for which the full
consideration has been paid or delivered, shall be deemed fully paid stock and
the holders of such shares shall not be liable for any further call or
assessment or any other payment thereon.
No holder of any of the shares of stock of the Corporation, whether now
or hereafter authorized or issued, shall be entitled as of right to purchase or
subscribe for (i) any unissued stock of any class, or (ii) any additional shares
of any class to be issued by reason of any increase of the authorized stock of
the Corporation of any class, or (iii) bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable, or carrying any
right to purchase or otherwise acquire, stock of any class of the Corporation.
The Board of Directors of the Corporation may from time to time
authorize by resolution the issuance of any or all shares of the Common Stock
and the Preferred Stock herein authorized or any class or series of capital
stock hereafter authorized, together with any additional shares of any class or
series to be issued by reason of any increase of the authorized stock of the
Corporation of any class or series, or bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable for, or carrying
any right to purchase or otherwise acquire, stock of any class or series of the
Corporation, for such purposes, in such amounts, to such Persons, for such
consideration and, in the case of the Preferred Stock, in one or more series or
classes, all as the Board of Directors in its sole and absolute discretion may
from time to time determine and without any vote, approval, consent or other
action by the stockholders, except as otherwise required by Applicable Law.
C. COMMON SHARES.
Subject to all the rights which may be granted to holders of the
Preferred Stock and except as otherwise required by Applicable Law, the relative
voting, dividend, liquidation and other rights, preferences and limitations or
restrictions of the Common Stock and the Nonvoting Common Stock are as follows:
<PAGE>
-4-
1. The Common Stock and the Nonvoting Common Stock shall have identical
rights and privileges in every respect, except as expressly set forth in the
following paragraphs of this Section C.
2. Voting Rights. Except as otherwise required by Applicable Law or
this Certificate of Incorporation, on all matters to be voted on by stockholders
of the Corporation, each holder of Common Stock shall have one vote in respect
of each share of Common Stock held of record by such holder on the books of the
Corporation. The holders of Nonvoting Common Stock shall not be entitled to vote
on any matters submitted to the stockholders of the Corporation except as
otherwise required by Applicable Law, in which case (and irrespective of any
class vote relating to increases or decreases in the authorized shares of
Nonvoting Common Stock such holders would otherwise be entitled to under Section
242(b) of the Delaware General Corporation Law) holders of Nonvoting Common
Stock shall vote (at the rate of one vote for each share of Nonvoting Common
Stock held of record by such holder on the books of the Corporation) together
with holders of Common Stock and, if applicable, Preferred Stock, as a single
class on such matter unless otherwise required by Applicable Law (other than any
class vote required by Section 242(b) of the Delaware General Corporation Law).
Except as otherwise required by Applicable Law or provided herein or determined
by the Board of Directors pursuant to Section D below, holders of Common Stock
shall vote together with holders of Preferred Stock having voting rights, as a
single class on all matters submitted to the stockholders for a vote, including
any amendment to increase or decrease the number of authorized shares of Common
Stock (irrespective of Section 242(b) of the Delaware General Corporation Law),
subject to any special or preferential voting rights of any series of Preferred
Stock from time to time outstanding.
3. Dividends. At any time shares of Common Stock are outstanding, as
and when dividends or other distributions payable in either cash, capital stock
of the Corporation (other than Common Stock or Nonvoting Common Stock) or other
property of the Corporation may be declared by the Board of Directors, the
amount of any such dividend payable on each share of Common Stock shall in all
cases be equal to the amount of such dividend payable on each share of Nonvoting
Common Stock, and the amount of any such dividend payable on each share of
Nonvoting Common Stock shall in all cases be equal to the amount of the dividend
payable on each share of Common Stock. Dividends and distributions payable in
shares of Common Stock may not be made on or to shares of any class of the
Corporation's capital stock other than the Common Stock, and dividends payable
in shares of Nonvoting Common Stock may not be made on or to shares of any class
of the Corporation's capital stock other than the Nonvoting Common Stock. If a
dividend or distribution payable in shares of Common Stock shall be made on the
shares of Common Stock, a dividend or distribution payable in shares of
Nonvoting Common Stock shall be made simultaneously on the shares of Nonvoting
Common Stock, and the number of shares of Nonvoting Common Stock payable on each
share of Nonvoting Common Stock pursuant to such dividend or distribution shall
be equal to the number of shares of Common Stock payable on each share of Common
Stock pursuant to such dividend or distribution. If a dividend or distribution
payable in shares of Nonvoting Common Stock shall be made on the shares of
Nonvoting Common Stock, a dividend or distribution payable in shares of Common
Stock shall be made simultaneously on the shares of Common Stock, and the number
of shares of Common Stock payable on each share of Common Stock pursuant to such
dividend or distribution shall be equal to the number of shares of Nonvoting
<PAGE>
-5-
Common Stock payable on each share of Nonvoting Common Stock pursuant to such
dividend or distribution.
4. Consideration on Merger, Consolidation, etc.; Distribution of Assets
Upon Liquidation. In any merger, consolidation or business combination, the
consideration to be received per share by the holders of shares of Common Stock
and shares of Nonvoting Common Stock shall be distributed ratably to each share
of Common Stock and Nonvoting Common Stock in accordance with the number of
shares thereof and without regard to class, except that in any such transaction
in which shares of capital stock and/or other securities (including debt
securities) (including without limitation those of a surviving Entity, or the
direct or indirect parent Entity thereof, whether or not such surviving Entity
is the Corporation) are to be distributed, such shares (or other securities) may
differ only as to voting rights to the extent that the voting rights of the
Common Stock and the Nonvoting Common Stock differ immediately prior to such
merger, consolidation or business combination.
In the event the Corporation shall be liquidated, dissolved or wound
up, whether voluntarily or involuntarily, after there shall have been paid or
set aside for the holders of all shares of the Preferred Stock then outstanding
the full preferential amounts to which they may be entitled, if any, under the
resolutions authorizing the issuance of such Preferred Stock, the net assets of
the Corporation remaining thereafter shall be distributed ratably to each share
of Common Stock and Nonvoting Common Stock in accordance with the number of
shares thereof and without regard to class. For the purposes of this paragraph,
neither the merger, consolidation or business combination of the Corporation
with or into any other Entity in which the stockholders of the Corporation
receive capital stock and/or other securities (including debt securities) of the
surviving Entity (or of the direct or indirect parent Entity thereof), nor the
sale, lease or transfer by the Corporation of all or any part of its business
and assets, nor the reduction of the capital stock of the Corporation, shall be
deemed to be a voluntary or involuntary liquidation, dissolution or winding up
of the Corporation.
5. Subdivision or Combination of Common Shares. The shares of Common
Stock or Nonvoting Common Stock, as the case may be, shall not be split up or
subdivided into a greater number of shares or combined into a smaller number of
shares, whether by stock distribution, reclassification, recapitalization or
otherwise, unless at the same time the shares of the other class of Common
Shares are split up, subdivided or combined so that the number of shares thereof
outstanding shall be proportionately adjusted.
6. Conversion of Nonvoting Common Stock into Common Stock. In
connection with any public offering or public sale of Common Stock (including a
registered offering or a sale pursuant to Rule 144 promulgated under the
Securities Act of 1933, as amended, or any similar rule then in force), each
holder of Nonvoting Common Stock shall be entitled to convert any or all of such
holder's shares of Nonvoting Common Stock being actually distributed to the
public or sold to an underwriter, broker-dealer or market maker for actual sale
to the public into an equal number of shares of Common Stock (subject to
equitable adjustment to reflect stock splits, stock dividends, stock
combinations, recapitalizations and like occurrences).
Each share of Nonvoting Common Stock shall be convertible into one
share of Common Stock, at any time and from time to time, (i) if the holder
thereof is not a "bank holding company"
<PAGE>
-6-
or an affiliate of a "bank holding company" under the Bank Holding Company Act
of 1956, as amended (the "BHC Act"), then at the option of the holder thereof,
or (ii) if the holder thereof is a "bank holding company" or an affiliate of a
"bank holding company" under the BHC Act, then upon delivery to the Corporation
of a certificate signed by or on behalf of such holder or holders to the effect
that such holder and its affiliates would hold less than 5% of the outstanding
Common Stock (or such greater amount as shall be permitted by Applicable Law,
including, without limitation, the BHC Act) after giving effect to such
conversion, assuming the conversion by such holder and its affiliates of all
securities convertible into Common Stock owned by them and the exercise by the
holder and its affiliates of all warrants, options and rights to acquire Common
Stock and without giving effect to the exercise of such convertible securities,
options, warrants or rights by any other party, in form and substance reasonably
acceptable to the Corporation.
Such conversion right may be exercised as to any portion of Nonvoting
Common Stock held by a holder by delivering to the Corporation during regular
business hours, at the office of the Corporation or any transfer agent of the
Corporation for the Common Shares as may be designated by the Corporation, the
certificate or certificates for the shares to be converted, duly endorsed or
assigned in blank or to the Corporation (if required by it), accompanied by
written notice stating that such holder elects to convert such shares into
Common Stock, specifying the number of shares of Common Stock to be issued and
stating the name or names (with address) in which the certificate or
certificates for such shares of Common Stock are to be issued. Conversion shall
be deemed to have been effected on the date when the aforesaid delivery is made.
As promptly as is practicable thereafter, the Corporation shall issue and
deliver to such holder, or upon the written order of such holder to the place
designated by such holder, a certificate or certificates representing that
number of shares of Common Stock to which such holder is entitled; provided,
however, that, upon reasonable request by the Corporation, as a condition to
such issuance and delivery of shares of Common Stock to any person other than
such holder, such holder shall have provided to the Corporation evidence
reasonably satisfactory to the Corporation that such transfer shall have been
consummated in accordance with Applicable Law. The person in whose name the
certificate or certificates representing Common Stock are to be issued shall be
deemed to have become a Common Stock holder of record on the applicable
conversion date unless the transfer books of the Corporation are closed on that
date, in which event such holder shall be deemed to have become a Common Stock
holder of record on the next succeeding date on which the transfer books are
open. Upon conversion of only a portion of the number of shares covered by a
certificate representing shares of Nonvoting Common Stock surrendered for
conversion, the Corporation shall issue and deliver to such holder, at the
expense of the Corporation, a new certificate covering the number of shares of
the Nonvoting Common Stock representing the unconverted portion of the
certificate so surrendered.
D. PREFERRED STOCK.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more classes or series and,
in connection with the creation of any such class or series, to fix by the
resolution or resolutions providing for the issue of shares thereof the
designation, voting powers, preferences, and relative, participating, optional,
or other special rights of such class or series, and the qualifications,
limitations, or restrictions thereof. Such authority of the Board of Directors
with respect to each such class or series shall include, but not be limited to,
the determination of the following:
<PAGE>
-7-
(a) The distinctive designation of, and the number of shares
comprising, such class or series, which number may be increased (except
where otherwise provided by the Board of Directors in creating such
class or series) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of the Board
of Directors without stockholder approval (including the holders of
such class or series of Preferred Stock);
(b) The dividend rate or amount for such class or series, the
conditions and dates upon which such dividends shall be payable, the
form in which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or
classes or any other series of the same or any other class or classes
of stock, and whether or not such dividends shall be cumulative, and if
so, from which date or dates for such class or series;
(c) Whether or not the shares of such class or series shall be
subject to redemption by the Corporation or the holders thereof and the
times, prices, and other terms and conditions of such redemption;
(d) Whether or not the shares of such series shall be subject
to the operation of a sinking fund or purchase fund to be applied to
the redemption or purchase of such shares and if such a fund be
established, the amount thereof and the terms and provisions relative
to the application thereof;
(e) Whether or not the shares of such series shall be
convertible into or exchangeable for shares of any other class or
classes, or of any other series of any class or classes, of stock of
the Corporation or any other Entity and if provision be made for
conversion or exchange, the times, prices, rates, adjustments, and
other terms and conditions of such conversion or exchange;
(f) Whether or not the shares of such class or series shall
have voting rights, in addition to the voting rights provided by Law,
and if they are to have such additional voting rights, the extent
thereof;
(g) The rights of the shares of such class or series in the
event of any voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation or upon any distribution of its assets,
and the relative rights of priority, if any, of payment of such shares;
and
(h) Any other powers, preferences, and relative,
participating, optional, or other special rights of the shares of such
class or series, and the qualifications, limitations, or restrictions
thereof, to the full extent now or hereafter permitted by Applicable
Law and not inconsistent with the rights or provisions of any other
class or series of Common Shares or Preferred Stock of the Corporation.
<PAGE>
-8-
FIFTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and stockholders, it is
further provided that:
1. Powers of the Board of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. In addition to the powers and authorities herein or by statute
expressly conferred upon it, the Board of Directors may exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the laws of the State of Delaware,
this Certificate of Incorporation and the By-Laws of the Corporation. Except as
otherwise provided by the Delaware General Corporation Law, any committee of the
Board of Directors shall have and may exercise, to the extent provided in the
By-Laws of the Corporation or by the resolutions of the Board of Directors, all
of the powers and authority of the Board of Directors of the Corporation in the
management of the business and affairs of the Corporation.
2. Number and Terms of Directors. Subject to the rights of the holders
of shares of any class or series of Preferred Stock to elect additional
Directors under specified circumstances, the number of Directors of the
Corporation shall be fixed by the Board of Directors of the Corporation and may
be increased or decreased from time to time in such a manner as may be
prescribed by the By-Laws.
The Directors shall be divided into three classes, as nearly
equal in number as possible. One class of Directors has been initially elected
for a term expiring at the annual meeting of stockholders to be held in 1996,
another class has been initially elected for a term expiring at the annual
meeting of stockholders to be held in 1997, and another class has been initially
elected for a term expiring at the annual meeting of stockholders to be held in
1998, with members of each class to hold office until their successors are
elected and qualified. At each succeeding annual meeting of the stockholders of
the Corporation, the successors of the class of Directors whose term expires at
that meeting shall be elected by plurality vote of all votes cast at such
meeting to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election.
3. Newly Created Directorships and Vacancies. Newly created
directorships resulting from any increase in the authorized number of directors
or any vacancy in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or otherwise shall be filled
only by a majority vote of the directors then in office, though less than a
quorum, or by a sole remaining director, or, if no directors remain, then by the
stockholders of the Corporation, and directors so chosen shall hold office for a
term expiring at the next election of the class for which such Director has been
chosen. No decrease in the authorized number of directors shall shorten the term
of any incumbent director.
4. Election and Nominations of Directors. Unless and except to the
extent that the ByLaws of the Corporation shall so require, the election of
directors of the Corporation need not be by written ballot. Directors need not
be stockholders. Advance notice of stockholder nominations for the election of
Directors and advance notice of business to be brought by stockholders before an
annual meeting shall be given in the manner provided in the By-Laws of the
Corporation.
<PAGE>
-9-
5. Removal of Directors. Subject to the rights of the holders of shares
of any class or series of Preferred Stock, any Director may be removed from
office by the stockholders in the manner provided in this Section 5 of Article
FIFTH. At any annual meeting of the stockholders of the Corporation or at any
special meeting of the stockholders of the Corporation, the notice of which
shall state that the removal of a Director or Directors is among the purposes of
the meeting, the affirmative vote of the holders of at least 80 percent of the
combined voting power of the stock of the Corporation entitled to vote in the
election of Directors generally, voting together as a single class, may remove
such Director or Directors only for cause.
6. No Action By Written Consent of Stockholders. Subject to the rights
of the holders of shares of any class or series of Preferred Stock in respect of
actions to be taken by the holders of such shares, any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders of the Corporation and
may not be effected by any consent in writing by the stockholders.
7. Stockholders' Meetings. Subject to the rights of the holders of
shares of any class or series of Preferred Stock in respect of meetings of the
holders of such shares, meetings of stockholders of the Corporation may be
called only by the Chairman of the Board of Directors, if any, or the Board of
Directors pursuant to a resolution adopted by majority vote of the Board of
Directors.
8. Rights of Preferred Stock. Notwithstanding the foregoing, whenever
the holders of any class or series of Preferred Stock shall have the right,
voting separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of this
Certificate of Incorporation specifically applicable thereto.
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of at least 80 percent of the voting power
of the stock of the Corporation entitled to vote in the election of Directors
generally, voting together as a single class, shall be required to amend, repeal
or adopt any provision inconsistent with this Article FIFTH.
SIXTH:
1. Indemnification Other than Actions by or on Behalf of the
Corporation. The Corporation shall indemnify and hold harmless to the fullest
extent permitted by Applicable Law, as it presently exists or may hereafter be
amended, any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that he or she is or was a
director, trustee, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, partner, trustee,
officer, employee or agent of another Entity against all liability, losses,
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the
<PAGE>
-10-
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
2. Indemnification in Actions by or on Behalf of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he or she is or was a director, trustee, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, partner, trustee, officer, employee or agent of another Entity against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of such action or suit if he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of the State of Delaware
or such other court shall deem proper.
3. Additional Indemnification as to Expenses. Without intending to
limit the generality of the indemnification provided in Sections 1 and 2 of
Article SIXTH and in addition thereto, to the extent that any person referred to
in Sections 1 and 2 of this Article SIXTH has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to therein, or
in defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith.
4. Authorization. Any indemnification under Sections 1 and 2 of this
Article SIXTH (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that indemnification of
the director, trustee, partner, officer, employee or agent is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in such Sections 1 and 2 of this Article SIXTH. Such determination shall
be made (i) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, (ii) if there are no
such directors, or if such directors so direct, by independent legal counsel in
a written opinion, or (iii) by the stockholders.
5. Expense Advance. Expenses (including attorneys' fees) incurred by an
officer or director of the Corporation in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as authorized in this
Article SIXTH. Such expenses (including attorneys' fees)
<PAGE>
-11-
incurred by other persons referred to in Sections 1 and 2 of this Article SIXTH
may be so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
6. Nonexclusivity. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this Article SIXTH
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
7. Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, trustee,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, trustee, partner, officer, employee or
agent of another corporation, partnership, limited liability company, joint
venture, trust or other enterprise 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 Corporation would have the power to
indemnify such person against such liability under the provisions of this
Article SIXTH.
8. "The Corporation". For purposes of this Article SIXTH, references to
"the Corporation" include, in addition to the resulting Corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, trustees,
employees or agents so that any person who is or was a director, officer,
trustee, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, trustee, partner,
officer, employee or agent of another Entity shall stand in the same position
under the provisions of this Article SIXTH with respect to the resulting or
surviving corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued.
9. "Other Enterprises". For purposes of this Article SIXTH, references
to "other enterprises" or "entities" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, trustee, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director, trustee, officer, employee, or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article SIXTH.
10. Continuation of Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article SIXTH
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, partner, trustee, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
<PAGE>
-12-
11. Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
trustee, partner, officer, employee or agent of another Entity shall be reduced
by any amount such person collects as indemnification from such other
corporation, partnership, limited liability company, joint venture, trust or
other enterprise or from insurance.
12. No Amendment. No amendment or repeal of the provisions of this
Article SIXTH shall adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
amendment or repeal.
SEVENTH: A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that exculpation from liability is not
permitted under the General Corporation Law of Delaware as in effect when such
breach occurred. Neither the amendment or repeal of this Article SEVENTH, nor
the adoption of any provision of this Certificate of Incorporation inconsistent
with this Article SEVENTH, shall eliminate, reduce or adversely affect the
effect of this Article SEVENTH in respect of any act or omission occurring, or
any cause of action, suit or claim that, but for this Article SEVENTH, would
accrue or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
EIGHTH: In furtherance and not in limitation of the powers conferred by
the Laws of the State of Delaware, the Board of Directors is expressly
authorized and empowered to amend, alter, change and repeal the By-Laws. The
By-Laws of the Corporation may be amended, altered, changed or repealed, and a
provision or provisions inconsistent with the provisions of the By-Laws as they
exist from time to time may be adopted, only by the majority of the entire Board
of Directors or with the approval of the holders of not less than sixty-six and
two-thirds percent (662/3%) of the voting power of all outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors (except that the affirmative vote of at least 80% of the voting power
of the capital stock of the Corporation entitled to vote in the election of
Directors generally, voting together as a single class, shall be required to
amend, repeal or adopt any provision inconsistent with the provisions of the
By-Laws establishing classes of directors, limiting the rights of the
stockholders to remove or nominate directors or bring business before annual
meetings of stockholders, filling vacancies of the Board of Directors and
providing for limitations on calling special meetings of the stockholders).
NINTH: Except for the provisions in Articles FOURTH, SIXTH, SEVENTH,
AND EIGHTH, and this Article NINTH, none of which provisions or authorization
shall be amended, altered, changed or repealed except with the approval of the
holders of not less than sixty-six and two-thirds percent (662/3%) of the voting
power of all outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class,
and any other provisions contained in this Certificate of Incorporation that by
their terms require a higher vote, the Corporation reserves the right at any
time and from time to time to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation (including provisions as may
hereafter be added or inserted in this Certificate of Incorporation as
authorized by the Laws of the State of Delaware) in the manner now or hereafter
prescribed by Delaware General
<PAGE>
-13-
Corporation Law. All rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other person whomsoever by and
pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the rights reserved in this Article
NINTH.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by its Chairman of the Board and Chief Executive Officer and attested
by its Assistant Secretary this 2nd day of February, 1996.
IRON MOUNTAIN INCORPORATED
By: /s/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman of the Board and
Chief Executive Officer
ATTEST:
By: /s/ Garry B. Watzke
Name: Garry B. Watzke
Title: Assistant Secretary
EXHIBIT 3.2
================================================================================
AMENDED AND RESTATED
BY - LAWS
of
Iron Mountain Incorporated
(a Delaware corporation)
================================================================================
as amended through January 6, 1998
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
ARTICLE I OFFICES..............................................................................................1
SECTION 1. Registered Office. ........................................................1
SECTION 2. Other Offices. ............................................................1
ARTICLE II MEETING OF STOCKHOLDERS.............................................................................1
SECTION 1. Place of Meeting............................................................1
SECTION 2. Annual Meetings. ..........................................................1
SECTION 3. Special Meetings............................................................1
SECTION 4. Introduction of Business At a Meeting of Stockholders.......................1
SECTION 5. Notice......................................................................2
SECTION 6. Quorum and Adjournments.....................................................3
SECTION 7. Votes; Proxies. ...........................................................3
SECTION 8. Organization. .............................................................4
ARTICLE III DIRECTORS..........................................................................................4
SECTION 1. Number......................................................................4
SECTION 2. Nomination of Directors.....................................................5
SECTION 3. Removal.....................................................................6
SECTION 4. Vacancies...................................................................6
SECTION 5. Meetings....................................................................6
SECTION 6. Votes.......................................................................7
SECTION 7. Quorum and Adjournment......................................................7
SECTION 8. Compensation................................................................7
SECTION 9. Action By Consent of Directors..............................................7
ARTICLE IV COMMITTEES OF DIRECTORS.............................................................................7
SECTION 1. Executive Committee.........................................................7
SECTION 2. Audit Committee.............................................................8
SECTION 3. Other Committees............................................................9
SECTION 4. Term of Office..............................................................9
ARTICLE V OFFICERS.............................................................................................9
SECTION 1. Officers....................................................................9
SECTION 2. Vacancies..................................................................10
SECTION 3. Chairman of the Board......................................................10
SECTION 4. President..................................................................10
SECTION 5. Executive Vice Presidents, Senior Vice Presidents and
Vice Presidents............................................................10
SECTION 6. Secretary..................................................................10
SECTION 7. Assistant Secretaries......................................................10
SECTION 8. Treasurer..................................................................11
SECTION 9. Assistant Treasurers.......................................................11
SECTION 10. Controller.................................................................11
SECTION 11. Assistant Controllers......................................................11
SECTION 12. Subordinate Officers.......................................................11
SECTION 13. Compensation...............................................................11
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 2
SECTION 14. Removal....................................................................11
SECTION 15. Bonds......................................................................11
ARTICLE VI CERTIFICATES OF STOCK..............................................................................12
SECTION 1. Form and Execution of Certificates.........................................12
SECTION 2. Transfer of Shares.........................................................12
SECTION 3. Closing of Transfer Books..................................................13
SECTION 4. Fixing Date for Determination of Stockholders of Record....................13
SECTION 5. Lost or Destroyed Certificates.............................................13
SECTION 6. Uncertificated Shares......................................................14
SECTION 7. Transfer Agents and Registrars; Further Regulations. .....................14
ARTICLE VII EXECUTION OF DOCUMENTS............................................................................15
SECTION 1. Execution of Checks, Notes, etc............................................15
SECTION 2. Execution of Contracts, Assignments, etc...................................15
SECTION 3. Execution of Proxies.......................................................15
ARTICLE VIII INSPECTION OF BOOKS..............................................................................15
ARTICLE IX FISCAL YEAR......................................................................................16
ARTICLE X SEAL.............................................................................................16
ARTICLE XI AMENDMENTS.......................................................................................16
ARTICLE XII RESTRICTIONS ON TRANSFER OF CERTAIN SHARES
OF CAPITAL STOCK OF THE CORPORATION.......................................................16
SECTION 1. Restrictions on Transfer....................................................16
SECTION 2. Legend on Stock Certificates................................................17
SECTION 3. Termination of Restrictions on Transfers....................................17
ARTICLE XIII RESTRICTIONS ON TRANSFER OF CERTAIN SHARES
OF CAPITAL STOCK OF THE CORPORATION.......................................................17
SECTION 1. Restrictions on Transfer....................................................17
SECTION 2. Legend on Stock Certificates................................................18
</TABLE>
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 3
Iron Mountain Incorporated
(a Delaware corporation)
BY-LAWS
ARTICLE I OFFICE
SECTION 1. Registered Office. The registered office of the Corporation
shall be located in Dover, County of Kent, State of Delaware, and the name of
the resident agent in charge thereof shall be The Prentice-Hall Corporation
System, Inc.
SECTION 2. Other Offices. The Corporation may also have offices at such
other places, within or without the State of Delaware, as the Board of Directors
may from time to time appoint or the business of the Corporation may require.
ARTICLE II MEETING OF STOCKHOLDERS
SECTION 1. Place of Meeting. Meetings of the stockholders shall be held
either within or without the State of Delaware at such place as the Board of
Directors may fix from time to time.
SECTION 2. Annual Meetings. The annual meeting of stockholders shall be
held for the election of directors on such date and at such time as the Board of
Directors may fix from time to time. Any other proper business may be transacted
at the annual meeting.
SECTION 3. Special Meetings. Special meetings of the stockholders for
any purpose or purposes may be called only by the Chairman of the Board, if any,
or the Board of Directors pursuant to a resolution adopted by a majority vote of
the Board of Directors.
SECTION 4. Introduction of Business At a Meeting of Stockholders. At an
annual or special meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
properly brought before such annual or special meeting of stockholders. To be
properly brought before an annual or special meeting of stockholders, business
must be (i) in the case of a special meeting, specified in the notice of the
special meeting (or any supplement thereto) given by or at the direction of the
Board of Directors or otherwise properly brought before the meeting by the Board
of Directors, or (ii) in the case of an annual meeting, properly brought before
the meeting by or at the direction of the Board of Directors, or otherwise
properly brought before the annual meeting by a stockholder. For business to be
properly brought before an annual meeting of stockholders by a stockholder, the
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 2
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 45 days1 prior to the date of the annual meeting; provided, however,
that if less than 55 days' written notice or prior public disclosure of the date
of the annual meeting is given or made to stockholders or to the stockholder
proposing a matter, notice by the stockholder to be timely must be so delivered
or received not later than the close of business on the 10th day following the
earlier of (i) the day on which such notice of the date of the meeting was
mailed to such stockholder or the stockholders generally or (ii) the day on
which such public disclosure was made.
A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before an annual meeting of
stockholders (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business and any other stockholders
known by such stockholder to be supporting such proposal, (iii) the class and
number of shares of the Corporation which are beneficially owned by such
stockholder on the date of such stockholder's notice and by any other
stockholders known by such stockholder to be supporting such proposal on the
date of such stockholder's notice, and (iv) any material interest of the
stockholder in such proposal.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at a meeting of stockholders except in accordance with the
procedures set forth in this Section 4. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that the business was
not properly brought before the meeting in accordance with the procedures
prescribed by these By-Laws, and if he should so determine, he shall so declare
to the meeting and any such business not properly brought before the meeting
shall not be transacted.
The foregoing requirements shall be in addition to any other
requirements imposed by applicable law or regulation.
SECTION 5. Notice. Written or printed notice of every meeting of
stockholders, annual or special, stating the hour, date and place thereof, and
the purpose or purposes in general terms for which the meeting is called shall,
not less than ten (10) days, or such longer period as shall be provided by law,
the Certificate of Incorporation, these By-Laws, or otherwise, and not more than
sixty (60) days before such meeting, be served upon or mailed to each
stockholder entitled to vote thereat, at the address of such stockholder as it
appears upon the stock records of the Corporation or, if such stockholder shall
have filed with the Secretary of the Corporation a written request that notices
be mailed to some other address, then to the address designated in such request.
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1 Amended 5/1/96.
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 3
Notice of the hour, date, place and purpose of any meeting of
stockholders may be dispensed with if every stockholder entitled to vote thereat
shall attend either in person or by proxy and shall not, at the beginning of the
meeting, object to the holding of such meeting because the meeting has not been
lawfully called or convened, or if every absent stockholder entitled to such
notice shall in writing, filed with the records of the meeting, either before or
after the holding thereof, waive such notice.
SECTION 6. Quorum and Adjournments. Except as otherwise provided by law
or by the Certificate of Incorporation, the presence in person or by proxy at
any meeting of stockholders of the holders of a majority of the voting power of
the shares of the capital stock of the Corporation issued, outstanding and
entitled to vote thereat, shall be requisite and shall constitute a quorum. If
two or more classes of stock are entitled to vote as separate classes upon any
question, then, in the case of each such class, a quorum for the consideration
of such question shall, except as otherwise provided by law or by the
Certificate of Incorporation, consist of a majority of the voting power of all
stock of that class issued, outstanding and entitled to vote. If a majority of
the voting power of shares of capital stock of the Corporation issued and
outstanding and entitled to vote thereat or, where a larger quorum is required,
such quorum, shall not be represented at any meeting of the stockholders
regularly called, the holders of a majority of the voting power of the shares
present or represented by proxy and entitled to vote thereat shall have power to
adjourn the meeting to another time, or to another time and place, without
notice other than announcement of adjournment at the meeting, and there may be
successive adjournments for like cause and in like manner until the requisite
amount of shares entitled to vote at such meeting shall be represented;
provided, however, that if the adjournment is for more than thirty (30) days,
notice of the hour, date and place of the adjourned meeting shall be given to
each stockholder entitled to vote thereat. Subject to the requirements of law
and the Certificate of Incorporation, on any issue on which two or more classes
of stock are entitled to vote separately, no adjournment shall be taken with
respect to any class for which a quorum is present unless the Chairman of the
meeting otherwise directs. At any meeting held to consider matters which were
subject to adjournment for want of a quorum at which the requisite amount of
shares entitled to vote thereat shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed.
SECTION 7. Votes; Proxies. Except as otherwise provided in the
Certificate of Incorporation, at each meeting of stockholders, every stockholder
of record at the closing of the transfer books, if closed, or on the date set by
the Board of Directors for the determination of stockholders entitled to vote at
such meeting, shall have one vote for each share of stock entitled to vote which
is registered in such stockholder's name on the books of the Corporation.
At each such meeting every stockholder entitled to vote shall be
entitled to do so in person, or by proxy appointed by an instrument in writing
or as otherwise permitted by law subscribed by such stockholder and bearing a
date not more than three (3) years prior to the meeting in question, unless said
instrument provides for a longer period during which it is to remain in force. A
duly executed proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A proxy may be made irrevocable regardless of
whether the interest with which it is
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 4
coupled is an interest in the stock itself or any interest in the Corporation
generally. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing with the Secretary of
the Corporation an instrument in writing or as otherwise permitted by law
revoking the proxy or another duly executed proxy bearing a later date.
Voting at meetings of stockholders need not be by written ballot and,
except as otherwise provided by law, need not be conducted by inspectors of
election unless so determined by the Chairman of the meeting or by the holders
of shares of stock having a majority of the votes which could be cast by the
holders of all outstanding shares of stock entitled to vote thereon which are
present in person or represented by proxy at such meeting. If it is required or
determined that inspectors of election be appointed, the Chairman shall appoint
two or more inspectors of election, who shall first take and subscribe an oath
or affirmation faithfully to execute the duties of inspectors at such meeting
with strict impartiality and according to the best of their ability. The
inspectors so appointed shall take charge of the polls and, after the balloting,
shall make a certificate of the result of the vote taken. No director or
candidate for the office of director shall be appointed as such inspector.
At any meeting at which a quorum is present, a plurality of the votes
properly cast for election to fill any vacancy on the Board of Directors shall
be sufficient to elect a candidate to fill such vacancy, and a majority of the
votes properly cast upon any other question shall decide the question, except in
any case where a larger vote is required by law, the Certificate of
Incorporation, these By-Laws, or otherwise.
SECTION 8. Organization. The Chairman of the Board, if there be one, or
in his or her absence the Vice Chairman, or in the absence of a Vice Chairman,
the President, or in the absence of the President, a Vice President, shall call
meetings of the stockholders to order and shall act as chairman thereof. The
Secretary of the Corporation, if present, shall act as secretary of all meetings
of stockholders, and, in his or her absence, the presiding officer may appoint a
secretary.
ARTICLE III DIRECTORS
SECTION 1. Number. The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors, none of whom needs to be a
stockholder. The number of directors for each year shall be fixed by the Board
of Directors (and not by the stockholders) from time to time, but shall not be
less than three nor more than fifteen persons. If the number is not so fixed,
the number shall remain as it stood immediately prior to such meeting.
The directors, other than those who may be elected by the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, shall be divided, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, as determined by the Board of Directors. One class shall hold
office initially for a term expiring at the annual meeting of stockholders to be
held in 1996, another class to hold office initially for a term expiring at the
annual meeting of stockholders in 1997, and another class to hold office
initially for a term expiring at the annual meeting of
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 5
stockholders to be held in 1998, with each member of each class to hold office
until his or her successor is elected and qualified, or until his or her earlier
death, resignation or removal. At each succeeding annual meeting of the
stockholders of the Corporation, the successors of the class of directors whose
term expires at that meeting shall be elected by plurality vote to hold office
for a term expiring at the annual meeting for stockholders held in the third
year following the year of their election.
At any time during any year, except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws, the number of directors may be
increased or reduced, in each case by vote of a majority of the directors in
office at the time of such increase or decrease, regardless of whether such
majority constitutes a quorum, provided that no such decrease shall affect the
term of any director then in office.
SECTION 2. Nomination of Directors. Only persons nominated in
accordance with the procedures set forth in this Section 2 shall be eligible for
election as directors. Nominations of persons for election to the Board of
Directors may be made at a meeting of stockholders (i) by or at the direction of
the Board of Directors, or (ii) by any stockholder of the Corporation entitled
to vote for the election of directors at such meeting who complies with the
notice procedures set forth in this Section 2. Such nominations, other than
those made by or at the direction of the Board, shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 45 days2 prior to
the date of a meeting; provided, however, that if fewer than 55 days' written
notice or prior public disclosure of the date of the meeting is given or made to
stockholders or to the stockholder proposing a director or directors for
election, notice by the stockholder to be timely must be so delivered or
received not later than the close of business on the 10th day following the
earlier of (i) the day on which such notice of the date of such meeting was
mailed to such stockholder or stockholders generally or (ii) the day on which
such public disclosure was made.
A stockholder's notice to the Secretary shall set forth (i) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director (a) the name, age, business address and residence address of such
person, (b) the principal occupation or employment of such person, (c) the class
and number of shares of the Corporation which are beneficially owned by such
person on the date of such stockholder's notice and (d) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including without limitation such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected), and
(ii) as to the stockholder giving the notice, (a) the name and address, as they
appear on the Corporation's books, of such stockholder and any other
stockholders known by such stockholder to be supporting such nominees and (b)
the class and number of shares of the Corporation which are beneficially owned
by such stockholder on the date of such stockholder's
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2 Amended 5/1/96.
<PAGE>
By-Laws of Iron Mountain Incorporated
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notice and by any other stockholders known by such stockholder to be supporting
such nominees on the date of such stockholder's notice.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 2. The Chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the By-Laws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
The foregoing requirements shall be in addition to any other
requirements imposed by applicable law or regulation.
SECTION 3. Removal. Subject to the rights of the holders of any class
or series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect additional directors under specified circumstances,
any director may be removed from office by the stockholders in the manner
provided in this Section 3 of Article III. At any annual meeting of the
stockholders of the Corporation or at any special meeting of the stockholders of
the Corporation, the notice of which shall state that the removal of a director
or directors is among the purposes of the meeting, the affirmative vote of the
holders of at least 80 percent of the combined voting power of the outstanding
shares of capital stock of the Corporation entitled to vote in the election of
directors generally, voting together as a single class, may remove such director
or directors only for cause.
SECTION 4. Vacancies. If any vacancy shall occur among the directors,
or if the number of directors shall at any time be increased, such vacancy shall
be filled only by the directors then in office, although less than a quorum, by
a majority vote of the directors then in office or by the sole remaining
director, or, if no directors then remain, by the stockholders of the
Corporation.
SECTION 5. Meetings. Meetings of the Board of Directors shall be held
at such place, within or without the State of Delaware, as may from time to time
be fixed by resolution of the Board of Directors or by the Chairman of the
Board, if there be one, or by the President, and as may be specified in the
notice or waiver of notice of any meeting. Meetings may be held at any time upon
the call of the Chairman of the Board, if there be one, or the President or any
two (2) of the directors in office by oral, telegraphic, telex, telecopy or
other form of electronic transmission, or written notice, duly served or sent or
mailed to each director not less than twenty-four (24) hours before such
meeting, except that, if mailed, not less than seventy-two (72) hours before
such meeting.
Meetings may be held at any time and place without notice if all the
directors are present and do not object to the holding of such meeting for lack
of proper notice or if those not present shall, in writing or by telegram,
telex, telecopy or other form of electronic transmission, waive notice thereof
before or after the meeting. A regular meeting of the Board may be held without
notice immediately following the annual meeting of stockholders at the place
where such meeting is held. Regular meetings of the Board may also be held
without notice at such time and place
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as shall from time to time be determined by resolution of the Board. Except as
otherwise provided by law, the Certificate of Incorporation or otherwise,
neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors or any committee thereof need be
specified in any written waiver of notice.
Members of the Board of Directors or any committee thereof may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and participation in a meeting
pursuant to the foregoing provisions shall constitute presence in person at the
meeting.
SECTION 6. Votes. Except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws, the vote of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
SECTION 7. Quorum and Adjournment. Except as otherwise provided by law,
the Certificate of Incorporation or these By-Laws, a majority of the directors
shall constitute a quorum for the transaction of business. If at any meeting of
the Board there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time without notice other than announcement
of the adjournment at the meeting, and at such adjourned meeting at which a
quorum is present any business may be transacted which might have been
transacted at the meeting as originally noticed.
SECTION 8. Compensation. Directors may receive compensation for their
services, as such, and for service on any committee of the Board of Directors,
as fixed by resolution of the Board of Directors and for expenses of attendance
at each regular or special meeting of the Board or any Committee thereof.
Nothing in this Section shall be construed to preclude a director from serving
the Corporation in any other capacity and receiving compensation therefor.
SECTION 9. Action By Consent of Directors. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Such consent shall be treated as a vote adopted at a meeting for all purposes.
Such consents may be executed in one or more counterparts and not every Director
or committee member need sign the same counterpart.
ARTICLE IV COMMITTEES OF DIRECTORS
SECTION 1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board, appoint an Executive
Committee of two (2) or more members, to serve during the pleasure of the Board,
to consist of such directors as the Board may from time to time designate. The
Board of Directors shall designate the Chairman of the Executive Committee.
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a. Procedure. The Executive Committee shall, by a vote of a
majority of its members, fix its own times and places of
meeting, determine the number of its members constituting a
quorum for the transaction of business, and prescribe its own
rules of procedure, no change in which shall be made save by a
majority vote of its members.
b. Responsibilities. During the intervals between the meetings of
the Board of Directors, except as otherwise provided by the
Board of Directors in establishing such Committee or
otherwise, the Executive Committee shall possess and may
exercise all the powers of the Board in the management and
direction of the business and affairs of the Corporation;
provided, however, that the Executive Committee shall not,
except to the extent otherwise provided in the Certificate of
Incorporation or a resolution providing for the issuance of
shares of stock adopted by the Board of Directors as provided
in Section 151(a) of the Delaware General Business Corporation
Law, have the power:
(1) to amend or authorize the amendment of the
Certificate of Incorporation or these By-Laws;
(2) to authorize the issuance of stock;
(3) to authorize the payment of any dividend;
(4) to adopt an agreement of merger or consolidation
of the Corporation or to recommend to the
stockholders the sale, lease or exchange of all or
substantially all the property and business of the
Corporation;
(5) to recommend to the stockholders a dissolution,
or a revocation of a dissolution, of the Corporation;
or
(6) to adopt a certificate of ownership and merger
pursuant to Section 253 of the Delaware Business
Corporation Law.
c. Reports. The Executive Committee shall keep regular minutes of
its proceedings, and all action by the Executive Committee
shall be reported promptly to the Board of Directors. Such
action shall be subject to review, amendment and repeal by the
Board, provided that no rights of third parties shall be
adversely affected by such review, amendment or repeal.
SECTION 2. Audit Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint an Audit Committee of two (2)
or more members who shall not be officers (the Chairman of the Board and the
Vice Chairman of the Board, if any, not being deemed officers for this purpose)
or employees of the Corporation to serve during the
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pleasure of the Board. The Board of Directors shall designate the Chairman of
the Audit Committee.
a. Procedure. The Audit Committee, by a vote of a majority of its
members, shall fix its own times and places of meeting, shall
determine the number of its members constituting a quorum for
the transaction of business, and shall prescribe its own rules
of procedure, no change in which shall be made save by a
majority vote of its members.
b. Responsibilities. The Audit Committee shall review the annual
financial statements of the Corporation prior to their
submission to the Board of Directors, shall consult with the
Corporation's independent auditors, and may examine and
consider such other matters in relation to the internal and
external audit of the Corporation's accounts and in relation
to the financial affairs of the Corporation and its accounts,
including the selection and retention of independent auditors,
as the Audit Committee may, in its discretion, determine to be
desirable.
c. Reports. The Audit Committee shall keep regular minutes of its
proceedings, and all action by the Audit Committee shall, from
time to time, be reported to the Board of Directors as it
shall direct. Such action shall be subject to review,
amendment and repeal by the Board, provided that no rights of
third parties shall be adversely affected by such review,
amendment or repeal.
SECTION 3. Other Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, at any time appoint one or more other
committees from its own number. Every such committee must include at least one
member of the Board of Directors. The Board may from time to time designate or
alter, within the limits permitted by law, the Certificate of Incorporation and
this Article, if applicable, the duties, powers and number of members of such
other committees or change their membership, and may at any time abolish such
other committees or any of them.
a. Procedure. Each committee appointed pursuant to this Section
shall, by a vote of a majority of its members, fix its own
times and places of meeting, determine the number of its
members constituting a quorum for the transaction of business,
and prescribe its own rules of procedure, no change in which
shall be made save by a majority vote of its members.
b. Responsibilities. Each committee appointed pursuant to this
Section shall exercise the powers assigned to it by the Board
of Directors in its discretion.
c. Reports. Each committee appointed pursuant to this Section
shall keep regular minutes of proceedings, and all action by
each such committee shall, from time to time, be reported to
the Board of Directors as it shall direct. Such action shall
be subject to review, amendment and repeal by the Board,
provided that no rights of third parties shall be adversely
affected by such review, amendment or repeal.
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SECTION 4. Term of Office. Each member of a committee shall hold office
until the first meeting of the Board of Directors following the annual meeting
of stockholders (or until such other time as the Board of Directors may
determine, either in the vote establishing the committee or at the election of
such member or otherwise) and until his or her successor is elected and
qualified, or until he or she sooner dies, resigns, is removed, is replaced by
change of membership or becomes disqualified by ceasing to be a director (where
membership on the Board is required), or until the committee is sooner abolished
by the Board of Directors.
ARTICLE V OFFICERS
SECTION 1. Officers. The Board of Directors shall elect a President, a
Secretary and a Treasurer, and, in their discretion, may elect a Chairman of the
Board, a Vice Chairman of the Board, a Controller, and one or more Executive
Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Secretaries,
Assistant Treasurers and Assistant Controllers and such other officers as deemed
necessary or appropriate. Such officers shall be elected annually by the Board
of Directors at its first meeting following the annual meeting of stockholders
(or at such other meeting as the Board of Directors determines), and each shall
hold office for the term provided by the vote of the Board, except that each
will be subject to removal from office in the discretion of the Board as
provided herein. The powers and duties of more than one office may be exercised
and performed by the same person.
SECTION 2. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors at any regular or
special meeting.
SECTION 3. Chairman of the Board. The Chairman of the Board of
Directors, if any, shall be the chief executive officer of the Corporation, and,
subject to the direction of the Board of Directors, shall have general charge of
the management and direction of the business, affairs and property of the
Corporation, and general supervision over its other officers and agents, and,
when present, shall preside at all meetings of the stockholders and the Board of
Directors. The Chairman of the Board of Directors shall perform such other
duties and have such other powers as the Board of Directors shall designate from
time to time.
SECTION 4. President. The President shall be the chief operating
officer of the Corporation. In general, he shall perform all duties incident to
the office of President and chief operating officer and shall see that all
orders and resolutions of the Board of Directors are carried into effect and
shall perform such other executive, supervisory and management functions and
duties as may be assigned to him from time to time by the Board of Directors or
the Chairman of the Board.
SECTION 5. Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents. Each Executive Vice President, Senior Vice President and Vice
President shall have and exercise such powers and shall perform such duties as
from time to time may be assigned to him or to her by the Board of Directors or
the President.
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SECTION 6. Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and of the Board of Directors in books provided for
the purpose; shall see that all notices are duly given in accordance with the
provisions of law and these By-Laws; the Secretary shall be custodian of the
records and of the corporate seal or seals of the Corporation; shall see that
the corporate seal is affixed to all documents the execution of which, on behalf
of the Corporation under its seal, is duly authorized, and, when the seal is so
affixed, he or she may attest the same; and, in general, the Secretary shall
perform all duties incident to the office of secretary of a corporation, and
such other duties as from time to time may be assigned to him or her by the
Board of Directors.
SECTION 7. Assistant Secretaries. The Assistant Secretaries in order of
their seniority shall, in the absence or disability of the Secretary, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Secretary.
SECTION 8. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of the
Corporation, all monies or other valuable effects in such banks, trust companies
or other depositaries as shall, from time to time, be selected by the Board of
Directors; may endorse for collection on behalf of the Corporation checks, notes
and other obligations; may sign receipts and vouchers for payments made to the
Corporation; may sign checks of the Corporation, singly or jointly with another
person as the Board of Directors may authorize, and pay out and dispose of the
proceeds under the direction of the Board; the Treasurer shall render to the
President and to the Board of Directors, whenever requested, an account of the
financial condition of the Corporation; and in general, shall perform all the
duties incident to the office of treasurer of a corporation, and such other
duties as from time to time may be assigned by the Board of Directors.
SECTION 9. Assistant Treasurers. The Assistant Treasurers in order of
their seniority shall, in the absence or disability of the Treasurer, perform
the duties and exercise the powers of the Treasurer and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Treasurer.
SECTION 10. Controller. The Controller, if elected, shall be the chief
accounting officer of the Corporation and shall perform all duties incident to
the office of a controller of a corporation, and, in the absence of or
disability of the Treasurer or any Assistant Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as the
Board of Directors shall prescribe or as from time to time may be assigned by
the Chairman of the Board, if any, the President or the Treasurer.
SECTION 11. Assistant Controllers. The Assistant Controllers in order
of their seniority shall, in the absence or disability of the Controller,
perform the duties and exercise the powers of the Controller and shall perform
such other duties as the Board of Directors shall prescribe or as from time to
time may be assigned by the Controller.
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SECTION 12. Subordinate Officers. The Board of Directors may appoint
such subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority and perform such duties as the Board
of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
SECTION 13. Compensation. The Board of Directors shall fix the
compensation of all officers of the Corporation. It may authorize any officer,
upon whom the power of appointing subordinate officers may have been conferred,
to fix the compensation of such subordinate officers.
SECTION 14. Removal. Any officer of the Corporation may be removed,
with or without cause, by action of the Board of Directors.
SECTION 15. Bonds. The Board of Directors may require any officer of
the Corporation to give a bond to the Corporation, conditional upon the faithful
performance of his or her duties, with one or more sureties and in such amount
as may be satisfactory to the Board of Directors.
ARTICLE VI CERTIFICATES OF STOCK
SECTION 1. Form and Execution of Certificates. The interest of each
stockholder of the Corporation shall be evidenced by a certificate or
certificates for shares of stock in such form as the Board of Directors may from
time to time prescribe. The certificates of stock of each class shall be
consecutively numbered and signed by the Chairman or Vice Chairman of the Board,
if any, the President, an Executive Vice President, Senior Vice President or a
Vice President and by the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer of the Corporation, and may be countersigned and registered
in such manner as the Board of Directors may by resolution prescribe, and shall
bear the corporate seal or a printed or engraved facsimile thereof. Where any
such certificate is signed by a transfer agent or transfer clerk acting on
behalf of the Corporation, the signatures of any such Chairman, Vice Chairman,
President, Executive Vice President, Senior Vice President, Vice President,
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may be
facsimiles, engraved or printed. In case any officer or officers, who shall have
signed, or whose facsimile signature or signatures shall have been used on, any
such certificate or certificates, shall cease to be such officer or officers,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered by the Corporation as
though the person or persons who signed such certificate or certificates or
whose facsimile signature or signatures shall have been used thereon had not
ceased to be such officer or officers.
In case the corporate seal which has been affixed to, impressed on, or
reproduced in any such certificate or certificates shall cease to be the seal of
the Corporation before such certificate
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or certificates have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered by the Corporation as
though the seal affixed thereto, impressed thereon or reproduced therein had not
ceased to be the seal of the Corporation.
Every certificate for shares of stock which are subject to any
restriction on transfer pursuant to law, the Certificate of Incorporation, these
By-Laws, or any agreement to which the Corporation is a party, shall have the
restriction noted conspicuously on the certificate, and shall also set forth, on
the face or back, either the full text of the restriction or a statement of the
existence of such restriction and (except if such restriction is imposed by law)
a statement that the Corporation will furnish a copy thereof to the holder of
such certificate upon written request and without charge.
Every certificate issued when the Corporation is authorized to issue
more than one class or series of stock shall set forth on its face or back
either the full text of the preferences, voting powers, qualifications, and
special and relative rights of the shares of each class and series authorized to
be issued, or a statement of the existence of such preferences, powers,
qualifications and rights, and a statement that the Corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
SECTION 2. Transfer of Shares. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by the holder
thereof in person or by his or her attorney lawfully constituted, upon surrender
for cancellation of certificates for the same number of shares, with an
assignment and power of transfer endorsed thereon or attached thereto, duly
executed, with such proof or guaranty of the authenticity of the signature as
the Corporation or its agents may reasonably require. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person whether or not it shall have express or other notice thereof,
save as expressly provided by law, by the Certificate of Incorporation or these
By-Laws. It shall be the duty of each stockholder to notify the Corporation of
his or her post office address.
SECTION 3. Closing of Transfer Books. The stock transfer books of the
Corporation may, if deemed appropriate by the Board of Directors, be closed for
such length of time not exceeding fifty (50) days as the Board of Directors (but
not the stockholders) may determine, preceding the date of any meeting of
stockholders or the date for the payment of any dividend or the date for the
allotment of rights or the date when any issuance, change, conversion or
exchange of capital stock shall go into effect, during which time no transfer of
stock on the books of the Corporation may be made.
SECTION 4. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors (but not the stockholders) may fix a record date, which
record date shall not
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precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors and which record date: (a) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, not be more than sixty (60) nor less than ten
(10) days before the date of such meeting; and (b) in the case of any other
action, shall not be more than sixty (60) days prior to such other action. If no
record date is fixed: (a) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; and (b) the record date for determining stockholders
for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors (but not the stockholders) may fix a new record date
for the adjourned meeting.
SECTION 5. Lost or Destroyed Certificates. In case of the loss or
destruction of any certificate of stock, a new certificate may be issued under
the following conditions:
a. The owner of said certificate shall file with the Secretary or
any Assistant Secretary of the Corporation an affidavit giving
the facts in relation to the ownership, and in relation to the
loss or destruction of said certificate, stating its number
and the number of shares represented thereby; such affidavit
shall be in such form and contain such statements as shall
satisfy the Chairman or Vice Chairman of the Board, if any,
the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer, that said
certificate has been accidentally destroyed or lost, and that
a new certificate ought to be issued in lieu thereof. Upon
being so satisfied, any such officer may require such owner to
furnish the Corporation a bond in such sum and in such form as
he or she may deem advisable, and with a surety or sureties
approved by him or her, to indemnify and save harmless the
Corporation from any claim, loss, damage or liability which
may be occasioned by the issuance of a new certificate in lieu
thereof. Upon such bond being so filed, if so required, a new
certificate for the same number of shares shall be issued to
the owner of the certificate so lost or destroyed; and the
transfer agent and registrar, if any, of stock shall
countersign and register such new certificate upon receipt of
a written order signed by any such officer, and thereupon the
Corporation may save harmless said transfer agent and
registrar in the premises. In case of the surrender of the
original certificate, in lieu of which a new certificate has
been issued, or the surrender of such new certificate, for
cancellation, the bond of indemnity given as a condition of
the issue of such new certificate may be surrendered; or
b. The Board of Directors of the Corporation may by resolution
authorize and direct any transfer agent or registrar of stock
of the Corporation to issue and register
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respectively from time to time without further action or
approval by or on behalf of the Corporation new certificates
of stock to replace certificates reported lost, stolen or
destroyed upon receipt of an affidavit of loss and bond of
indemnity in form and amount and with surety satisfactory to
such transfer agent or registrar in each instance or upon such
terms and conditions as the Board of Directors may determine.
SECTION 6. Uncertificated Shares. The Board of Directors of the
Corporation may by resolution provide that one or more of any or all classes or
series of the stock of the Corporation shall be uncertificated shares, subject
to the provisions of Section 158 of the Delaware General Corporation Law.
SECTION 7. Transfer Agents and Registrars; Further Regulations. The
Board of Directors may appoint one or more banks, trust companies or
corporations doing a corporate trust business, in good standing under the laws
of the United States or any state therein, to act as the Corporation's transfer
agent and/or registrar for shares of one or more classes or series of its stock,
and the Board may make such other and further regulations, not inconsistent with
applicable law, as it may deem expedient concerning the issue, transfer and
registration of the Corporation's stock and stock certificates.
ARTICLE VII EXECUTION OF DOCUMENTS
SECTION 1. Execution of Checks, Notes, etc. All checks and drafts on
the Corporation's bank accounts and all bills of exchange and promissory notes,
and all acceptances, obligations and other instruments for the payment of money,
shall be signed by such officer or officers, or agent or agents, as shall be
thereunto authorized from time to time by the Board of Directors, which may in
its discretion authorize any such signatures to be facsimile.
SECTION 2. Execution of Contracts, Assignments, etc. Unless the Board
of Directors shall have otherwise provided generally or in a specific instance,
all contracts, agreements, endorsements, assignments, transfers, stock powers,
or other instruments shall be signed by the Chairman or Vice Chairman of the
Board, if any, the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. The Board of Directors may, however, in
its discretion, require any or all such instruments to be signed by any two or
more of such officers, or may permit any or all of such instruments to be signed
by such other officer or officers, agent or agents, as it shall thereunto
authorize from time to time.
SECTION 3. Execution of Proxies. The Chairman or Vice Chairman of the
Board, if any, the President, any Executive Vice President, any Senior Vice
President or any Vice President, and the Secretary, the Treasurer, any Assistant
Secretary or any Assistant Treasurer, or any other officer designated by the
Board of Directors, may sign on behalf of the Corporation proxies to vote upon
shares of stock of other companies standing in the name of the Corporation.
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ARTICLE VIII INSPECTION OF BOOKS
The Board of Directors shall determine from time to time whether, and
if allowed, to what extent and at what time and places and under what conditions
and regulations, the accounts and books of the Corporation (except such as may
by law be specifically open to inspection) or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as conferred
by the laws of the State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or of the stockholders of the Corporation.
ARTICLE IX FISCAL YEAR
The fiscal year of the Corporation shall be determined from time to
time by vote of the Board of Directors.
ARTICLE X SEAL
The seal of the Corporation shall, subject to alteration by the Board
of Directors, consist of a flat-faced circular die with the word "Delaware",
together with the name of the Corporation and the year of incorporation, cut or
engraved thereon.
ARTICLE XI AMENDMENTS
These By-Laws may be altered, amended, changed or repealed and new
By-Laws adopted by the stockholders or by the Board of Directors in accordance
with the provisions set forth in the Certificate of Incorporation, in either
case at any meeting called for that purpose at which a quorum shall be present.
Any By-Law, whether made, altered, amended, changed or repealed by the
stockholders or the Board of Directors may be repealed, amended, changed,
further amended, changed, repealed or reinstated, as the case may be, either by
the stockholders or by the Board of Directors as above provided.
ARTICLE XII RESTRICTIONS ON TRANSFER OF
CERTAIN SHARES OF CAPITAL STOCK OF THE CORPORATION3
SECTION 1. Restrictions on Transfer. Any Person who receives any shares
of Common Stock of the Corporation (the "Merger Securities") issued pursuant to
the Agreement and Plan of Merger, dated as of February 19, 1997, by and among
the Corporation, IM-1 Acquisition
- --------
3 Adopted June 12, 1997.
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Corp. and Safesite Records Management Corporation, as amended (the "Merger
Agreement"), shall not Transfer (as defined herein), and the Corporation shall
not be required to register the Transfer of, the number of shares, rounded
upward to the nearest whole share (the "Subject Shares"), of the Merger
Securities equal to the product of (1) the quotient obtained by dividing (x) the
"Lock-up Value" by (y) the product of (A) the Common Stock Amount and (B) the
lesser of the Closing Price and the Determination Price multiplied by (2) the
Stock Merger Consideration received by such Person in connection with the
Merger, until the first anniversary date of the effective date of the Merger
Agreement (the "Effective Time"), except as otherwise allowed by the Board of
Directors of the Corporation in its sole discretion. The "Lock-up Value" shall
mean one half (1/2) of the sum of (x) the product of the Common Stock Amount and
the lesser of the Closing Price and the Determination Price plus (y) the Cash
Amount. The "Closing Price" shall mean the closing price per share of Acquiror
Stock for the trading day immediately prior to the Effective Time. The closing
price for such trading day shall be the last quoted sale price or, if not so
quoted, the average of the low bid and high asked prices on the Nasdaq National
Market System. Capitalized terms used herein and not otherwise defined shall
have the meanings prescribed therefor in the Merger Agreement. The term
"Transfer" means any indirect or direct transfer, offer to sell, sale,
assignment, grant of an option to acquire, pledge, or other disposition.
SECTION 2. Legend on Stock Certificates. The Corporation shall note on
the certificates for the Subject Shares of Merger Securities issued upon
transfer that the shares represented by such certificates are subject to the
restrictions on transfer and registration of transfer imposed in this Article
XII.
SECTION 3. Termination of Restrictions on Transfers. The provisions of
this Article XII shall terminate in their entirety on the first anniversary of
the Effective Time.
ARTICLE XIII RESTRICTIONS ON TRANSFER OF CERTAIN
SHARES OF CAPITAL STOCK OF THE CORPORATION4
SECTION 1. Restrictions on Transfer. Except as otherwise allowed by the
Board of Directors of the Corporation in its sole discretion, until the earlier
of (i) the first anniversary of the effective date (the "Effective Time") under
the Agreement and Plan of Merger, dated as of September 26, 1997, by and among
the Corporation, Arcus Group, Inc. ("AGI"), United Acquisition Company ("UAC")
and Arcus Technology Services, Inc. ("ATSI, and together with AGI and UAC, the
"Arcus Parties") (as amended, the "Merger Agreement"), or (ii) the date on which
a Transfer (as such term is hereinafter defined in this Article XIII) may be
effected in a manner that the Corporation reasonably determines does not
adversely affect the tax-free nature of the Merger (as such term is defined in
the Merger Agreement) under Section 368(a) of the Internal Revenue Code of 1986,
as amended, any Person who receives any shares of
- --------
4 Adopted January 6, 1998.
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 18
Common Stock of the Corporation issued pursuant to the Merger Agreement (the
"Merger Securities") shall not Transfer, and the Corporation shall not be
required to register the Transfer of, such Merger Securities. The term
"Transfer" means any indirect or direct transfer, offer to sell, sale,
assignment, grant of an option to acquire, pledge, or other disposition;
provided, however, that a Transfer by a partnership or a limited liability
company to its partners or members, which Transfer is to all partners or members
in proportion to their interests in such partnership or limited liability
company, shall be permissible except that the Merger Securities so Transferred
shall continue to be subject to the restrictions on transfer set forth in this
Article XIII; provided further that the provisions of this section shall not
apply to Merger Securities to the extent such Merger Securities were issued in
exchange for shares of common stock of AGI of any Person who received such
shares pursuant to the exercise of an option as a result of the application of
Section 5.10 of the Merger Agreement.
SECTION 2. Legend on Stock Certificates. The Corporation shall note on
the certificates for the Merger Securities issued upon the Merger or upon any
Transfer thereof that the shares represented by such certificates are subject to
the restrictions on transfer and registration of transfer imposed in this
Article XIII.
EXHIBIT 4.1
IRON MOUNTAIN INCORPORATED
TO
------------------------
Trustee
Indenture
Dated as of __________, 199_
Senior Debt Securities
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS1
PAGE
<S> <C>
PARTIES..................................................................................................1
RECITALS.................................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions................................................................................2
"Act" ..............................................................................2
"Additional Amounts"...................................................................3
"Affiliate"............................................................................3
"Authenticating Agent".................................................................3
"Authorized Newspaper".................................................................3
"Bankruptcy Law".......................................................................3
"Bearer Security"......................................................................3
"Board" ..............................................................................3
"Board Resolution".....................................................................3
"Business Day".........................................................................3
"CEDEL" ..............................................................................3
"Commission"...........................................................................3
"Common Depositary"....................................................................3
"Company"..............................................................................3
"Company Request" and "Company Order"..................................................3
"Conversion Event".....................................................................4
"Corporate Trust Office"...............................................................4
"corporation"..........................................................................4
"coupon" ..............................................................................4
"Custodian"............................................................................4
"Declaration"..........................................................................4
"Defaulted Interest"...................................................................4
"Dollar" or "$"........................................................................4
"DTC" ..............................................................................4
"ECU" ..............................................................................4
"Euroclear"............................................................................4
"European Communities".................................................................4
"European Monetary System".............................................................4
"Event of Default".....................................................................4
"Exchange Date"........................................................................4
"Foreign Currency".....................................................................4
"Funds from Operations"................................................................4
"GAAP" ..............................................................................5
"Government Obligations"...............................................................5
"Holder" ..............................................................................5
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1 This Table of Contents shall not, for any purpose, be deemed to be part of this Indenture.
<PAGE>
"Indenture"............................................................................5
"Indexed Security".....................................................................5
"interest".............................................................................5
"Interest Payment Date"................................................................5
"Maturity".............................................................................5
"Officers' Certificate"................................................................5
"Opinion of Counsel"...................................................................5
"Original Issue Discount Security".....................................................6
"Outstanding"..........................................................................6
"Paying Agent".........................................................................6
"Person" ..............................................................................7
"Place of Payment".....................................................................7
"Predecessor Security".................................................................7
"Redemption Date"......................................................................7
"Redemption Price".....................................................................7
"Registered Security"..................................................................7
"Regular Record Date"..................................................................7
"Repayment Date".......................................................................7
"Responsible Officer"..................................................................7
"Security".............................................................................7
"Security Register" and "Security Registrar"...........................................7
"Significant Subsidiary"...............................................................7
"Special Record Date"..................................................................8
"Stated Maturity"......................................................................8
"Subsidiary"...........................................................................8
"Trust Indenture Act" or "TIA".........................................................8
"Trustee"..............................................................................8
"United States"........................................................................8
"United States person".................................................................8
"Yield to Maturity"....................................................................8
SECTION 102. Compliance Certificates and Opinions.......................................................8
SECTION 103. Form of Documents Delivered to Trustee.....................................................9
SECTION 104. Acts of Holders............................................................................9
SECTION 105. Notices, etc., to Trustee and Company.....................................................10
SECTION 106. Notice to Holders; Waiver.................................................................10
SECTION 107. Effect of Headings and Table of Contents..................................................11
SECTION 108. Successors and Assigns....................................................................11
SECTION 109. Separability Clause.......................................................................11
SECTION 110. Benefits of Indenture.....................................................................11
SECTION 111. Governing Law.............................................................................11
SECTION 112. Legal Holidays............................................................................12
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.......................................................................12
SECTION 202. Form of Trustee's Certificate of Authentication...........................................12
SECTION 203. Securities Issuable in Global Form........................................................12
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<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series......................................................13
SECTION 302. Denominations.............................................................................16
SECTION 303. Execution, Authentication, Delivery and Dating............................................16
SECTION 304. Temporary Securities......................................................................18
SECTION 305. Registration, Registration of Transfer and Exchange.......................................19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........................................22
SECTION 307. Payment of Interest; Interest Rights Preserved............................................22
SECTION 308. Persons Deemed Owners.....................................................................24
SECTION 309. Cancellation..............................................................................24
SECTION 310. Computation of Interest...................................................................25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...................................................25
SECTION 402. Application of Trust Funds................................................................26
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.........................................................................26
SECTION 502. Acceleration of Maturity; Rescission and Annulment........................................27
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................28
SECTION 504. Trustee May File Proofs of Claim..........................................................29
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons....................29
SECTION 506. Application of Money Collected............................................................30
SECTION 507. Limitation on Suits.......................................................................30
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium, if any, Interest and
Additional Amounts....................................................................30
SECTION 509. Restoration of Rights and Remedies........................................................30
SECTION 510. Rights and Remedies Cumulative............................................................31
SECTION 511. Delay or Omission Not Waiver..............................................................31
SECTION 512. Control by Holders of Securities..........................................................31
SECTION 513. Waiver of Past Defaults...................................................................31
SECTION 514. Waiver of Usury, Stay or Extension Laws...................................................31
SECTION 515. Undertaking for Costs.....................................................................32
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults........................................................................32
SECTION 602. Certain Rights of Trustee.................................................................32
SECTION 603. Not Responsible for Recitals or Issuance of Securities....................................33
SECTION 604. May Hold Securities.......................................................................33
SECTION 605. Money Held in Trust.......................................................................33
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<PAGE>
SECTION 606. Compensation and Reimbursement............................................................33
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests............................34
SECTION 608. Resignation and Removal; Appointment of Successor.........................................34
SECTION 609. Acceptance of Appointment by Successor....................................................35
SECTION 610. Merger, Conversion, Consolidation or Succession to Business...............................36
SECTION 611. Appointment of Authentication Agent.......................................................36
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders..............................................37
SECTION 702. Reports by Trustee........................................................................37
SECTION 703. Reports by Company........................................................................38
SECTION 704. Company to Furnish to Trustee Names and Addresses of Holders..............................38
ARTICLE EIGHT
MERGER CONSOLIDATION, SALE OF ASSETS
SECTION 801. Consolidations and Mergers of Company and Sale of Assets..................................39
SECTION 802. Rights and Duties of Successor Corporation................................................39
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders........................................39
SECTION 902. Supplemental Indentures with Consent of Holders...........................................40
SECTION 903. Execution of Supplemental Indentures......................................................41
SECTION 904. Effect of Supplemental Indentures.........................................................41
SECTION 905. Conformity with Trust Indenture Act.......................................................41
SECTION 906. Reference in Securities to Supplemental Indentures........................................41
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and Additional Amounts...................42
SECTION 1002. Maintenance of Office or Agency..........................................................42
SECTION 1003. Money for Securities Payments to Be Held in Trust........................................43
SECTION 1004. Existence................................................................................44
SECTION 1005. Provision of Financial Information.......................................................44
SECTION 1006. Statement as to Compliance...............................................................44
SECTION 1007. Additional Amounts.......................................................................44
SECTION 1008. Waiver of Certain Covenants..............................................................45
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................................................................45
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<PAGE>
SECTION 1102. Election to Redeem; Notice to Trustee....................................................45
SECTION 1103. Selection by Trustee of Securities to Be Redeemed........................................46
SECTION 1104. Notice of Redemption.....................................................................46
SECTION 1105. Deposit of Redemption Price..............................................................47
SECTION 1106. Securities Payable on Redemption Date....................................................47
SECTION 1107. Securities Redeemed in Part..............................................................48
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................................................................48
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities....................................48
SECTION 1203. Redemption of Securities for Sinking Fund................................................48
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article................................................................49
SECTION 1302. Repayment of Securities..................................................................49
SECTION 1303. Exercise of Option.......................................................................49
SECTION 1304. When Securities Presented for Repayment Become Due and Payable...........................50
SECTION 1305. Securities Repaid in Part................................................................50
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or Covenant
Defeasance............................................................................50
SECTION 1402. Defeasance and Discharge.................................................................51
SECTION 1403. Covenant Defeasance......................................................................51
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..........................................51
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions..............................................................53
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called................................................53
SECTION 1502. Call, Notice and Place of Meetings.......................................................53
SECTION 1503. Persons Entitled to Vote at Meetings.....................................................54
SECTION 1504. Quorum; Action...........................................................................54
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.......................55
SECTION 1506. Counting Votes and Recording Action of Meetings..........................................55
EXHIBIT A -- FORMS OF CERTIFICATION
</TABLE>
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<PAGE>
IRON MOUNTAIN INCORPORATED
Reconciliation and tie between Trust Indenture Act of 1939, as amended
(the "TIA"), and Indenture, dated as of __________, 199_.
TIA Section Indenture Section
Sec. 310(a)(1).......................... 607
(a)(2).......................... 607
(b)............................. 607, 608
Sec. 312(a)............................. 704
Sec. 312(c)............................. 701
Sec. 313(a)............................. 702
(c).............................. 702
Sec. 314(a)............................. 1005
(a)(4)........................... 1006
(c)(1)........................... 102
(c)(2)........................... 102
(e).............................. 102
Sec. 315(b)............................. 601
Sec. 316(a) (last sentence)............. 101 ("Outstanding")
(a)(1)(A)....................... 502, 512
(a)(1)(B)....................... 513
(b).............................. 508
Sec. 317(a)(1).......................... 503
(a)(2)........................... 504
Sec. 318(a)............................. 111
(c).............................. 111
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Attention should also be directed to Section 318(c) of the TIA, which
provides that the provisions of Sections 310 to and including 317 of the TIA are
a part of and govern every qualified indenture, whether or not physically
contained therein.
<PAGE>
INDENTURE, dated as of ___________, 199_, between IRON MOUNTAIN
INCORPORATED, a Delaware Corporation (hereinafter called the "Company"), having
its principal office at 745 Atlantic Avenue, Boston Massachusetts 02111 and,
_____________________________, a ___________, as Trustee hereunder (hereinafter
called the "Trustee"), having its initial Corporate Trust Office at
_____________________________________.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to
time for lawful purposes its debt securities (hereinafter called the
"Securities") evidencing its indebtedness, and has duly authorized the execution
and delivery of this Indenture to provide for the issuance from time to time of
the Securities, unlimited as to principal amount, to bear interest at the rates
or formulas, to mature at such times and to have such other provisions as shall
be fixed as hereinafter provided.
This Indenture is subject to the provisions of the
Trust Indenture Act of 1939, as amended, that are deemed to be incorporated into
this Indenture by such Act, and shall, to the extent applicable, be governed by
such provisions.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities
or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper", as used
in TIA Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
<PAGE>
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of certain
taxes imposed on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means 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 means 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" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed
by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in
different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board" means the board of directors of the Company or any
committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in that Place of
Payment or particular location are authorized or required by law, regulation or
executive order to close.
"CEDEL" means Cedel, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the Chairman of
the Board and Chief Executive Officer, the President or a Vice President, and
-2-
<PAGE>
by its Chief Financial Officer, Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Company, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public institution
of or within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at _____________
________________________.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Declaration" has the meaning specified in Section 113.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"DTC" means The Depository Trust Company, or any successor
thereto.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Date" has the meaning specified in Section 304.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU, issued by the
government of one or more countries other than the United States of America or
by any recognized confederation or association of such governments.
"Funds from Operations" for any period means the consolidated
net income of the Company and its Subsidiaries for such period without giving
effect to depreciation and amortization, gains or losses from extraordinary
items, gains or losses on sales of real estate, gains or losses on investments
in marketable securities and any
-3-
<PAGE>
provision/benefit for income taxes for such period, plus funds from operations
of unconsolidated joint ventures, all determined on a consistent basis in
accordance with GAAP.
"GAAP" means generally accepted accounting principles in effect
from time to time as used in the United States applied on a consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more applicable provisions hereof and shall
include the terms of the or those particular series of Securities for which such
Person is Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other series of
Securities for which such Person is Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, shall
mean interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1007,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
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<PAGE>
"Officers' Certificate" means a certificate signed by the
Chairman of the Board and Chief Executive Officer, President or a Vice President
and by the Chief Financial Officer, Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company (including counsel who is an employee of the
Company) and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen;
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(v) Securities converted into Common Shares, Preferred Shares
or other securities of the Company pursuant to or in accordance with this
Indenture if the terms of such Securities provide for convertibility pursuant to
Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request,
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demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities or
coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of
or within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer, the controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer's knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such
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Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act of 1933, as amended) of the Company.
"Special Record Date" for the payment of any Defaulted Interest
on the Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means stock having voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created organized in or under the laws of the United States or an estate
or trust the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1006) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by or covered by an
opinion of any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate of or representations by counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel, certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or any Subsidiary stating that the information as to such factual
matters is in the possession of the Company or such Subsidiary, unless such
counsel knows that the certificate or opinion or representations as to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of
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the Trustee or the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: ______________________, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders of Registered Securities is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Registered Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Any such notice shall be deemed to have been given on the date
of such publication or, if published more than once, on the date of the first
such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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SECTION 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities
and coupons shall be governed by and construed in accordance with the law of The
Commonwealth of Massachusetts. This Indenture is subject to the provisions of
the TIA that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) or sinking
fund payment need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption Date,
Repayment Date or sinking fund payment date, or at the Stated Maturity or
Maturity; provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if
any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms as shall be established in
one or more indentures supplemental hereto or approved from time to time by or
pursuant to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which the Securities may be listed, or to conform to
usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or coupons, as evidenced by their execution of such Securities or
coupons.
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SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
________________________________
as Trustee
By______________________________
Authorized Officer
SECTION 203. Securities Issuable in Global Form. If Securities
of or within a series are issuable in global form, as specified in and as
contemplated by Section 301, then, notwithstanding clause (8) of Section 301 and
the provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
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The Securities may be issued in one or more series. There shall
be established in one or more Board Resolutions or pursuant to authority granted
by one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (14) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which
shall distinguish the Securities of such series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 304, 305, 306, 906,
1107 or 1305);
(3) the date or dates, or the method by which such
date or dates will be determined, on which the principal of the
Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which such interest
shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest will be
payable and the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, or the method
by which such date shall be determined, and the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(5) the place or places where the principal of, any
premium and interest on and any Additional Amounts payable in respect
of, Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, exchange or conversion and notices or demands to or upon the
Company in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which or the date or
dates on which, the price or prices at which, and other terms and
conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company, if the Company is to
have the option;
(7) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the price
or prices at which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any Registered
Securities of the series shall be issuable and the denomination or
denominations in which any Bearer Securities of the series shall be
issuable;
(9) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and premium, if any),
interest, if any, on, and Additional Amounts, if any, on the Securities
of the series shall be payable, in which the Securities of the series
shall be redeemed or purchased or in which the Securities of the series
shall be denominated;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant
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to Section 502 or, if applicable, the portion of the principal amount
of Securities of the series that is convertible in accordance with the
provisions of this Indenture, or the method by which such portion shall
be determined;
(11) whether the amount of payments of principal of
(and premium, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or other
method (which index, formula or method may be based, without
limitation, on one or more currencies, currency units, composite
currencies, commodities, equity indices or other indices), and the
manner in which such amounts shall be determined;
(12) whether the principal of (and premium, if any)
or interest, if any on or Additional Amounts, if any, on the Securities
of the series are to be payable, at the election of the Company or a
Holder thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for determining the exchange
rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are to be paid;
(13) provisions, if any, granting special rights to
the Holders of Securities of the series upon the occurrence of such
events as may be specified;
(14) any deletions from, modifications of or
additions to the Events of Default or covenants of the Company set
forth in this Indenture with respect to Securities of the series
(whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein);
(15) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities (with or without
coupons) or both, any restrictions applicable to the offer, sale or
delivery of Bearer Securities and the terms upon which Bearer
Securities of the series may be exchanged for Registered Securities of
the series and vice versa (if permitted by applicable laws and
regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for Securities of
such series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, and, if Registered
Securities of the series are to be issuable as a global Security, the
identity of the depositary for such series;
(16) the date as of which any Bearer Securities of
the series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(17) the Person to whom any interest on any
Registered Security of the series shall be payable, if other than the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person to
whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the
coupons appertaining thereto as they severally mature, and the extent
to which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other than
in the manner provided in Section 304;
(18) the applicability, if any, of Sections 1402
and/or 1403 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the provisions of
Article Fourteen;
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(19) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, then the form and/or terms of such certificates, documents
or conditions;
(20) if the Securities of the series are to be issued
upon the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(21) whether and under what circumstances the Company
will pay Additional Amounts as contemplated by Section 1007 on the
Securities of the series to any Holder who is not a United States
person (including any modification to the definition of such term) in
respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Securities
rather than pay such Additional Amounts (and the terms of any such
option);
(22) the obligation, if any, of the Company to permit
the conversion of the Securities of such series into Common Shares or
Preferred Shares of the Company or other securities, as the case may
be, and the terms and conditions upon which such conversion shall be
effected (including, without limitation, the initial conversion price
or rate, the conversion period, any adjustment of the applicable
conversion price and any requirements relative to the reservation of
such shares for purposes of conversion);
(23) the terms and conditions, if any, upon which
payment of the Securities of such series shall be subordinated to the
Securities of another series or other indebtedness of the Company
(including, without limitation, indebtedness which ranks senior to such
Securities; restrictions on payments to Holders of such Securities
while a default with respect to such senior indebtedness is continuing;
restrictions, if any, on payments to the Holders of such Securities
following an Event of Default; and any requirements for Holders of such
Securities to remit certain payments to the holders of such senior
indebtedness);
(24) if the Securities of the series are to be
guaranteed, the term and conditions of such guarantee;
(25) if the Securities of the series are to be
secured, the terms and conditions pertaining to the security and a
description of the collateral pledged as security ;
(26) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent for the series; and
(27) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denominations and except as may
otherwise be provided in or pursuant to the Board Resolution establishing the
series (subject to Section 303) and set forth in an Officers' Certificate or in
any indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officers' Certificate setting forth the terms of the
Securities of such series.
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SECTION 302. Denominations. The Securities of each series shall
be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions, the Registered Securities of such series,
other than Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by its Chairman of the Board and Chief Executive Officer,
President or one of its Vice Presidents, under its seal reproduced thereon, and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities
or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula, maturity date, date
of issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Sections 315(a) through 315(d)) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and
any coupons have been established in conformity with the
provisions of this Indenture;
(b) the terms of such Securities and any
coupons have been established in conformity with the provisions
of this Indenture; and
(c) such Securities, together with any
coupons appertaining thereto, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee for
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authentication in accordance with this Indenture, authenticated
and delivered by the Trustee in accordance with this Indenture
and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
constitute legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting
the enforcement of creditors' rights generally and to general
equitable principles; and
(ii) an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the
issuance of the Securities have been complied with and that, to the
best of the knowledge of the signers of such certificate, no Event of
Default with respect to any of the Securities shall have occurred and
be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Officers' Certificate
otherwise required pursuant to Section 301 or a Company Order, or an Opinion of
Counsel or an Officers' Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for
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definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by any
non-matured coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Until
so exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of DTC. If
any such temporary Security is issued in global form, then such temporary global
Security shall, unless otherwise provided therein, be delivered to the London
office of a depositary or common depositary (the "Common Depositary"), for the
benefit of Euroclear and CEDEL, for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other forms as may
be established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor
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authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304 (b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
a temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein provided.
In the event that the Trustee shall cease to be Security Registrar, it shall
have the right to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any series at any
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of
the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default
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thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
any such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture. Whenever any Bearer Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by the Company or to a nominee of such
successor to DTC. If at any time DTC notifies the Company that it is unwilling
or unable to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, if so required by applicable
law or regulation, the Company shall appoint a successor depositary with respect
to such global Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or
Securities or (z) the Company, in its sole discretion, determines at any time
that all Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver, definitive Securities
of like series, rank, tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such global Security or
Securities. If any beneficial owner of an interest in a permanent global
Security is otherwise entitled to exchange such interest for Securities of such
series and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event no later than the
earliest date on which such interest may be so exchanged, the Company shall
execute, and the Trustee shall authenticate and deliver, definitive Securities
in aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security. On or after the earliest
date on which such interests may be so exchanged, such permanent global Security
shall be surrendered for exchange by DTC or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose; provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered
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in exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion or such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company 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 Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before selection of the Securities to be
redeemed under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if such Securities are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and of like tenor; provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except that portion, if any, of such Security which is
not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining to
it is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of written notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and
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provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears on the Security Register or (ii)
transfer to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the payee
with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be
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payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment (which
shall not be less than 20 days after such notice is received by the
Trustee), and at the same time the Company shall deposit with the
Trustee an amount of money in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall not be more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at his address
as it appears in the Security Register not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of
Payment, but such publications shall not be a condition precedent to
the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer Security
of any series is surrendered for transfer or exchange at the office or
agency in a Place of Payment for such series after the close of
business at such office or agency on any Special Record Date and before
the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such proposed date
of payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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SECTION 308. Persons Deemed Owners. Prior to due presentment of
a Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security is overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon is overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and owners
of beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. Cancelled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company,
unless by a Company Order the Company directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect with respect
to any series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and
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any right to receive Additional Amounts, as provided in Section 1007), and the
Trustee, upon receipt of a Company Order, and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when
(1) either
(A) all Securities of such series
theretofore authenticated and delivered and all coupons, if
any, appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is
not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all Securities of such series and, in
the case of (i) or (ii) below, any coupons appertaining
thereto, not theretofore delivered to the Trustee for
cancellation
(i) have become due and
payable, or
(ii) will become due and payable
at their Stated Maturity
within one year, or
(iii) if redeemable at the option
of the Company, are to be
called for redemption
within one year under
arrangements satisfactory
to the Trustee for the
giving of notice of
redemption by the Trustee
in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as funds in trust for such purpose an amount in the
currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series
are payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, and any
Additional Amounts with respect thereto, to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
The obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive
the satisfaction and discharge of this Indenture.
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SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any), and any interest and Additional Amounts for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or
any Additional Amounts payable in respect of any Security of that
series or of any coupon appertaining thereto, when such interest,
Additional Amounts or coupon becomes due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of any Security of that series;
or
(4) default in the performance of, or breach of, any
covenant of the Company in this Indenture (other than a covenant a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has been expressly included in
this Indenture solely for the benefit of a series of Securities other
than that series), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least a majority in principal amount of
the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or
other evidence of indebtedness of the Company, or under any mortgage,
indenture or other instrument of the Company (including a default with
respect to Securities of any series other than that series) under which
there may be issued or by which there may be secured any indebtedness
of the Company (or by any Subsidiary, the repayment of which the
Company has guaranteed or for which the Company is directly responsible
or liable as obligor or guarantor), whether such indebtedness now
exists or shall hereafter be created, which default shall constitute a
failure to pay an aggregate principal amount exceeding $___________ of
such indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto and shall have resulted in
such indebtedness in an aggregate principal amount exceeding
$____________ becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 10 days after there
shall have been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least a majority in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring the
Company to cause such indebtedness to be
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discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder; or
(6) the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially all of its
property, or
(D) makes a general assignment for the
benefit of its creditors; or
(7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or
any Significant Subsidiary or for all or substantially all of
either of its property, or
(C) orders the liquidation of the Company or
any Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 days; or
(8) any other Event of Default provided with respect
to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11, U.S. Code
or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing (other than an Event of Default
described in Section 501(6) or 501(7)), then and in every such case the Trustee
or the Holders of at least 25% in principal amount of the Outstanding Securities
of that series may declare the principal (or, if any Securities are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
as may be specified in the terms thereof) of all the Securities of that series
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders), and upon any such declaration such
principal or specified portion thereof shall become immediately due and payable.
If an Event of Default described in Section 501(6) or 501(7) with respect to any
series of Securities at the time outstanding occurs, the principal amount of all
of the Securities of that series (or, in the case of any such Original Issue
Discount Securities or Indexed Securities, such portion of the principal as may
be specified in the terms thereof) will automatically, and without any action by
the Trustee or any Holder thereof, become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
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(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay in the currency, currency unit or
composite currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series):
(A) all overdue installments of interest on
and any Additional Amounts payable in respect of all
Outstanding Securities of that series and any related coupons,
(B) the principal of (and premium, if any,
on) any Outstanding Securities of that series which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for
in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate or rates borne
by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the nonpayment of the principal of (or
premium, if any) or interest on Securities of that series which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment
of interest or Additional Amounts, if any, on any Security of any
series and any related coupon when such interest or Additional Amount
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amounts thereon, with interest upon
any overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts thereon, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
of such series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and
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enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal of, or premium, if any, or
interest on, the Securities) shall be entitled and empowered, by intervention in
such proceeding or otherwise:
(i) to file and prove a claim for the whole amount,
or such lesser amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest and Additional
Amount, if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) 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 of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of Securities
and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest and any Additional Amounts, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the
Trustee and any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities and coupons for principal (and premium, if
any) and interest and any Additional Amounts payable, in respect of
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which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and coupons for
principal (and premium, if any), interest and Additional Amounts,
respectively; and
THIRD: To the payment of the remainder, if any, to
the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than a majority in
principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest and Additional Amounts. Notwithstanding any
other provision in this Indenture, the Holder of any Security or coupon shall
have the right which is absolute and unconditional to receive payment of the
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest on, and any Additional Amounts in respect of, such Security or payment
of such coupon on the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee
or any Holder of a Security or coupon has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law,
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be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Security or coupon to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders of Securities or coupons, as
the case may be.
SECTION 512. Control by Holders of Securities. The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series; provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction,
and
(3) the Trustee need not take any action which might
expose it to personal liability or be unduly prejudicial to the Holders
of Securities of such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium,
if any) or interest on or Additional Amounts payable in respect of any
Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by
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any Holder, or group of Holders, holding in the aggregate more than a majority
in principal amount of the Outstanding Securities, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on or any Additional Amounts or sinking fund installment
with respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of
the Holders of the Securities and coupons of such series; and provided further
that in the case of any default or breach of the character specified in Section
501(4) with respect to the Securities and coupons of such series, no such notice
to Holders shall be given until at least 60 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting to take any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(4) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel 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 reliance
thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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(6) the 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, coupon or other paper
or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the 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; and
(8) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor the
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its
own part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
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and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or Section
501(7), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest on particular Securities or coupons.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, state, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, 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. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 607(a) and shall fail to resign after written request therefor
by the Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
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then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any reason
with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series).
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner hereinafter
provided any Holder of a Security who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, upon request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto, pursuant to Article Nine hereof, wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or
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trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in,
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authentication Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and, except as may otherwise be provided pursuant to Section 301, shall
at all times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States of America or
of any State or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
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Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any
time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
____________________________________
as Trustee
By:_________________________________
as Authenticating Agent
By:_________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar shall
be held accountable by reason of the disclosure of any information as to the
names and addresses of the Holders of Securities in accordance with TIA Section
312, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15 of
each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
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Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Company
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of such Sections, then it will file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to the Holders of Securities,
within 30 days after the filing thereof with the Trustee, in the manner
and to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this section as may be required
by rules and regulations prescribed from time to time by the
Commission.
SECTION 704. Company to Furnish to Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 25 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semiannually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
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ARTICLE EIGHT
MERGER, CONSOLIDATION, AND SALE OF ASSETS
SECTION 801. Mergers and Consolidations of Company and Sale of
Assets. The Company shall not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another Person unless (a) the
Company is the surviving corporation or the entity or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the laws of
the United States, any state thereof or the District of Columbia; (b) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all the obligations
of the Company under the Securities and this Indenture (pursuant to a
supplemental indenture complying with Article Nine hereof and in a form
reasonably satisfactory to the Trustee); and (c) immediately after such
transaction no Event of Default, and no event which, after notice or the lapse
of time, or both, would become an Event of Default, exists.
SECTION 802. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities contained; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
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(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; provided, that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of
this Indenture; provided that any such change or elimination shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series and any related coupons as permitted by Sections 201 and
301, including the provisions and procedures relating to Securities
convertible into Common Shares or Preferred Shares of the Company, as
the case may be; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture; provided such
provisions shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided,
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however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of
(or premium, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate or
amount of interest thereon or any Additional Amounts payable in respect
thereof, or any premium payable upon the redemption thereof, or change
any obligation of the Company to pay Additional Amounts pursuant to
Section 1007 (except as contemplated by Section 801(i) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option of the
Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, as the
case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (or
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1008, except to increase the required percentage
to effect such action or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
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SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest
and Additional Amounts. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1007 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to Section 301, at
the option of the Company, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person entitled thereto
against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of
a series are issuable only as Registered Securities, the Company shall maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange, and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain: (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1007) or conversion; provided, however, that if the
Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1007) or conversion at the offices specified in the Security in London,
England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
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hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on or
Additional Amounts in respect of Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, that, if the Securities of a series are
payable in Dollars, payment of principal of and any premium and interest on any
Bearer Security (including any Additional Amounts payable on Securities of such
series pursuant to Section 1007) shall be made at the office of the Company's
Paying Agent in the City of Boston, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or Additional Amounts, as the
case may be, at all offices or agencies outside the United States maintained for
such purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the City of Boston, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 302, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency
or so long as it is required under any other provision of this Indenture, then
the Company will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with respect
to any series of any Securities and any related coupons, it will, by no later
than 11:00 am (Boston time) on each due date of the principal of (and premium,
if any), or interest on or Additional Amounts in respect of, any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (and premium, if any)
or interest or Additional Amounts so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest on or Additional
Amounts in respect of, any Securities of that series, deposit with a Paying
Agent a sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to pay
the principal (and premium, if any) or interest or Additional Amounts, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest or Additional Amounts and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
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(1) hold all sums held by it for the payment of
principal of (and premium, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the making of any
such payment of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest on, or any Additional Amounts in respect of, any Security of any series
and remaining unclaimed for two years after such principal (and premium, if
any), interest or Additional Amounts has become due and payable shall be paid to
the Company upon Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment of such
principal of (and premium, if any) or interest on, or any Additional Amounts in
respect of, such Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Existence. Subject to Article Eight, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights (declaration and statutory) and
franchises; provided, however, that the Company shall not be required to
preserve any right or franchise if the Board shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company.
SECTION 1005. Provision of Financial Information. Whether or
not required by the rules and regulations of the SEC, so long as any of the
Securities are outstanding, the Company will furnish to the Holders (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and, with respect to the
annual information only, a report thereon by the Company's certified independent
accountants and (ii) all financial information that would be required to be
included in a Form 8-K filed with the SEC if the Company were required to file
such reports. In addition, whether or not required by the rules and regulations
of the SEC, the Company will file a copy of all such information and reports
with the SEC for public availability (unless the SEC will not accept such a
filing) and make such information available to investors who request it in
writing. Notwithstanding anything to the contrary contained herein, the Trustee
shall have no duty to review such documents for purposes of determining
compliance with any provisions of this Indenture.
SECTION 1006. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture and,
in the event of any noncompliance, specifying such noncompliance and the nature
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and status thereof. For purposes of this Section 1006, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1007. Additional Amounts. If any Securities of a series
provide for the payment of Additional Amounts, the Company will pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context except in the case of
Section 502(1), the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 20 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and
any premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company will furnish
the Trustee and the Company's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of a series or
related coupons without withholding or deductions until otherwise advised. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Company's
not furnishing such an Officers' Certificate.
SECTION 1008. Waiver of Certain Covenants. The Company may omit
in any particular instance to comply with any term, provision or condition set
forth in Sections 1004 or 1005, if before or after the time for such compliance
the Holders of at least a majority in principal amount of all outstanding
Securities of such series, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such covenant or condition,
but no such waiver shall extend to or affect such covenant or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of the
Company of less than all of the Securities of any series, the Company shall, at
least 45 days prior to the giving of the notice of redemption in Section 1104
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date with
the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 106 and as may be further specified
in an indenture supplemental hereto, not less than 30 days nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified by the terms
of such series established pursuant to Section 301, to each Holder of Securities
to be redeemed, but failure to give such notice in the manner herein provided to
the Holder of any Security designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity of
the proceedings for the redemption of any other such Security or portion
thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not such Holders receive such notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any, and
Additional Amounts, if any,
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(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the holder
will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price
and accrued interest to the Redemption Date payable as provided in
Section 1106, if any, will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if applicable,
that interest thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if
such is the case,
(8) that unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the
Redemption Date or the amount of any such missing coupon or coupons
will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee for such series and
any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who
desires to convert Securities for redemption must satisfy the
requirements for conversion contained in such Securities, the then
existing conversion price or rate, and the date and time when the
option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to 11:00
am (Boston time) on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which
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the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) (together with
accrued interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided further that, except as otherwise provided with
respect to Securities convertible into Common Shares or Preferred Shares of the
Company, installments of interest on Registered Securities whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge a new Security or
Securities of the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment
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may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, as
provided for by the terms of such Securities, or which have otherwise been
acquired by the Company; provided that such Securities so delivered or applied
as a credit have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities
of any series before their Stated Maturity at the option of Holders thereof
shall be made in accordance with the terms of such Securities, if any, and
(except as otherwise specified by the terms of such series established pursuant
to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof, together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that on or before the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date.
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SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the Trustee must receive
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder or by the Holder's attorney duly authorized in writing
or (2) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. ("NASD"), or a commercial bank or trust company in the United States
setting forth the name of the Holder of the Security, the principal amount of
the Security, the principal amount of the Security to be repaid, the CUSIP
number, if any, or a description of the tenor and terms of the Security, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that the Security to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the Security, will be
received by the Trustee not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided, however, that
such telegram, telex, facsimile transmission or letter shall only be effective
if such Security and form duly completed are received by the Trustee by such
fifth Business Day. If less than the entire principal amount of such Security is
to be repaid in accordance with the terms of such Security, the principal amount
of such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located
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outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision
is made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and
any coupons appertaining thereto on the date the conditions set forth in Section
1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) below, and to have satisfied
all of its other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest, if any, on such Securities
and any coupons appertaining thereto when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 305, 306,
1002 and 1003 and with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 1007, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Company may exercise its
option under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons appertaining
thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be released from its obligations under
Sections 1004 and 1005 and, if specified pursuant to Section 301, its
obligations under any other covenant, with
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respect to such Outstanding Securities and any coupons appertaining thereto on
and after the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections 1004 and 1005 or
such other covenant, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that, with
respect to such Outstanding Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or an
Event of Default under Section 501(4) or 501(9) or otherwise, as the case may
be, but except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining thereto, (1) an
amount in such currency, currencies or currency unit in which such
Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment of principal of (and premium, if any) and interest, if any, on
such Securities and any coupons appertaining thereto, or (2) Government
Obligations applicable to such Securities and coupons appertaining
thereto (determined on the basis of the currency, currencies or
currency unit in which such Securities and coupons appertaining thereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (3) a combination thereof in an amount,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest, if
any, on such Outstanding Securities and any coupons appertaining
thereto on the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to such Outstanding Securities and any
coupons appertaining thereto on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
such Securities and any coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit or, insofar as
Sections 501(6) and 501(7) are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
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(d) In the case of an election under Section 1402,
the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the
date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 1403,
the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance under Section 1402 or the
covenant defeasance under Section 1403 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that either (i)
as a result of a deposit pursuant to subsection (a) above and the
related exercise of the Company's option under Section 1402 or Section
1403 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the Trustee
for such trust funds or (ii) all necessary registrations under said Act
have been effected.
(g) Notwithstanding any other provisions of this
Section, such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(a) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 301 or the terms of
such Security to receive payment in a currency or currency unit other than that
in which the deposit pursuant to Section 1404(a) has been made in respect of
such Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any), and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the currency or currency unit in which such Security becomes
payable as a result of such election or Conversion Event based on the applicable
market exchange rate for such currency or currency unit in effect on the
-53-
<PAGE>
second Business Day prior to each payment date, in the case of such an election,
or, the applicable market exchange rate in effect for such currency or currency
unit (as nearly as feasible), in the case of such Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at such
place in the City of Boston, or in London as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at
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<PAGE>
such meeting, shall be given, in the manner provided in Section 106, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the City of Boston, or in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection (a)
of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this
-55-
<PAGE>
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of any adjourned meeting shall state expressly the percentage,
as provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii) the principal amount of the Outstanding
Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has
been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing
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<PAGE>
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
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<PAGE>
This Indenture may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, as an instrument under seal, as of the day and
year first above written.
IRON MOUNTAIN INCORPORATED
By:___________________________
Title:
______________________________
By:___________________________
Title:
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<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institutions hereby agrees, on its own behalf or through its agent,
that you may advise Health and Rehabilitation Properties Trust or its agent that
such financial institutions will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-
5(c)(1)(i)(D)(7), and, in addition, if the owner is a United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)), this is to further certify that such financial
institutions has not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to (U.S.$)
_______________ of such interest in the above-captioned Securities in respect of
which we are not able to certify and as to which we understand an exchange for
an interest in a Permanent Global Security or an exchange for and delivery of
definitive Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
A-1
<PAGE>
Dated:___________________, 19__
[To be dated no earlier than the
15th day prior to (i) the
Exchange Date or (ii) the
relevant Interest Payment Date
occurring prior to the Exchange
Date, as applicable]
[Name of Person Making Certification]
____________________________________
(Authorized Signatory)
Name:
Title:
A-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$) principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) is owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institutions
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:___________________, 19__
[To be dated no earlier than the
Exchange Date or the relevant
Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
A-3
<PAGE>
[Morgan Guaranty Trust Company
New York, Brussels Office,]
as Operator of the Euroclear System
[Cedel S.A.]
A-4
EXHIBIT 4.2
IRON MOUNTAIN INCORPORATED
TO
------------------------
Trustee
Indenture
Dated as of __________, 199_
Subordinated Debt Securities
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS1
PAGE
<S> <C>
PARTIES..................................................................................................1
RECITALS.................................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions................................................................................2
"Act" ..............................................................................2
"Additional Amounts"...................................................................3
"Affiliate"............................................................................3
"Authenticating Agent".................................................................3
"Authorized Newspaper".................................................................3
"Bankruptcy Law".......................................................................3
"Bearer Security"......................................................................3
"Board" ..............................................................................3
"Board Resolution".....................................................................3
"Business Day".........................................................................3
"CEDEL" ..............................................................................3
"Commission"...........................................................................3
"Common Depositary"....................................................................3
"Company"..............................................................................3
"Company Request" and "Company Order"..................................................3
"Conversion Event".....................................................................4
"Corporate Trust Office"...............................................................4
"corporation"..........................................................................4
"coupon" ..............................................................................4
"Custodian"............................................................................4
"Declaration"..........................................................................4
"Defaulted Interest"...................................................................4
"Dollar" or "$"........................................................................4
"DTC" ..............................................................................4
"ECU" ..............................................................................4
"Euroclear"............................................................................4
"European Communities".................................................................4
"European Monetary System".............................................................4
"Event of Default".....................................................................4
"Exchange Date"........................................................................4
"Foreign Currency".....................................................................4
"Funds from Operations"................................................................4
"GAAP" ..............................................................................5
"Government Obligations"...............................................................5
"Holder" ..............................................................................5
- --------
1 This Table of Contents shall not, for any purpose, be deemed to be part of this Indenture.
<PAGE>
"Indenture"............................................................................5
"Indexed Security".....................................................................5
"interest".............................................................................5
"Interest Payment Date"................................................................5
"Maturity".............................................................................5
"Officers' Certificate"................................................................5
"Opinion of Counsel"...................................................................5
"Original Issue Discount Security".....................................................6
"Outstanding"..........................................................................6
"Paying Agent".........................................................................6
"Person" ..............................................................................7
"Place of Payment".....................................................................7
"Predecessor Security".................................................................7
"Redemption Date"......................................................................7
"Redemption Price".....................................................................7
"Registered Security"..................................................................7
"Regular Record Date"..................................................................7
"Repayment Date".......................................................................7
"Responsible Officer"..................................................................7
"Security".............................................................................7
"Security Register" and "Security Registrar"...........................................7
"Significant Subsidiary"...............................................................7
"Special Record Date"..................................................................8
"Stated Maturity"......................................................................8
"Subsidiary"...........................................................................8
"Trust Indenture Act" or "TIA".........................................................8
"Trustee"..............................................................................8
"United States"........................................................................8
"United States person".................................................................8
"Yield to Maturity"....................................................................8
SECTION 102. Compliance Certificates and Opinions.......................................................8
SECTION 103. Form of Documents Delivered to Trustee.....................................................9
SECTION 104. Acts of Holders............................................................................9
SECTION 105. Notices, etc., to Trustee and Company.....................................................10
SECTION 106. Notice to Holders; Waiver.................................................................10
SECTION 107. Effect of Headings and Table of Contents..................................................11
SECTION 108. Successors and Assigns....................................................................11
SECTION 109. Separability Clause.......................................................................11
SECTION 110. Benefits of Indenture.....................................................................11
SECTION 111. Governing Law.............................................................................11
SECTION 112. Legal Holidays............................................................................12
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.......................................................................12
SECTION 202. Form of Trustee's Certificate of Authentication...........................................12
SECTION 203. Securities Issuable in Global Form........................................................12
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<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series......................................................13
SECTION 302. Denominations.............................................................................16
SECTION 303. Execution, Authentication, Delivery and Dating............................................16
SECTION 304. Temporary Securities......................................................................18
SECTION 305. Registration, Registration of Transfer and Exchange.......................................19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........................................22
SECTION 307. Payment of Interest; Interest Rights Preserved............................................22
SECTION 308. Persons Deemed Owners.....................................................................24
SECTION 309. Cancellation..............................................................................24
SECTION 310. Computation of Interest...................................................................25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...................................................25
SECTION 402. Application of Trust Funds................................................................26
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.........................................................................26
SECTION 502. Acceleration of Maturity; Rescission and Annulment........................................27
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................28
SECTION 504. Trustee May File Proofs of Claim..........................................................29
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons....................29
SECTION 506. Application of Money Collected............................................................30
SECTION 507. Limitation on Suits.......................................................................30
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium, if any, Interest and
Additional Amounts....................................................................30
SECTION 509. Restoration of Rights and Remedies........................................................30
SECTION 510. Rights and Remedies Cumulative............................................................31
SECTION 511. Delay or Omission Not Waiver..............................................................31
SECTION 512. Control by Holders of Securities..........................................................31
SECTION 513. Waiver of Past Defaults...................................................................31
SECTION 514. Waiver of Usury, Stay or Extension Laws...................................................31
SECTION 515. Undertaking for Costs.....................................................................32
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults........................................................................32
SECTION 602. Certain Rights of Trustee.................................................................32
SECTION 603. Not Responsible for Recitals or Issuance of Securities....................................33
SECTION 604. May Hold Securities.......................................................................33
SECTION 605. Money Held in Trust.......................................................................33
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<PAGE>
SECTION 606. Compensation and Reimbursement............................................................33
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests............................34
SECTION 608. Resignation and Removal; Appointment of Successor.........................................34
SECTION 609. Acceptance of Appointment by Successor....................................................35
SECTION 610. Merger, Conversion, Consolidation or Succession to Business...............................36
SECTION 611. Appointment of Authentication Agent.......................................................36
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders..............................................37
SECTION 702. Reports by Trustee........................................................................37
SECTION 703. Reports by Company........................................................................38
SECTION 704. Company to Furnish to Trustee Names and Addresses of Holders..............................38
ARTICLE EIGHT
MERGER CONSOLIDATION, SALE OF ASSETS
SECTION 801. Consolidations and Mergers of Company and Sale of Assets..................................39
SECTION 802. Rights and Duties of Successor Corporation................................................39
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders........................................39
SECTION 902. Supplemental Indentures with Consent of Holders...........................................40
SECTION 903. Execution of Supplemental Indentures......................................................41
SECTION 904. Effect of Supplemental Indentures.........................................................41
SECTION 905. Conformity with Trust Indenture Act.......................................................41
SECTION 906. Reference in Securities to Supplemental Indentures........................................41
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and Additional Amounts...................42
SECTION 1002. Maintenance of Office or Agency..........................................................42
SECTION 1003. Money for Securities Payments to Be Held in Trust........................................43
SECTION 1004. Existence................................................................................44
SECTION 1005. Provision of Financial Information.......................................................44
SECTION 1006. Statement as to Compliance...............................................................44
SECTION 1007. Additional Amounts.......................................................................44
SECTION 1008. Waiver of Certain Covenants..............................................................45
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................................................................45
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<PAGE>
SECTION 1102. Election to Redeem; Notice to Trustee....................................................45
SECTION 1103. Selection by Trustee of Securities to Be Redeemed........................................46
SECTION 1104. Notice of Redemption.....................................................................46
SECTION 1105. Deposit of Redemption Price..............................................................47
SECTION 1106. Securities Payable on Redemption Date....................................................47
SECTION 1107. Securities Redeemed in Part..............................................................48
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................................................................48
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities....................................48
SECTION 1203. Redemption of Securities for Sinking Fund................................................48
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.................................................................49
SECTION 1302. Repayment of Securities..................................................................49
SECTION 1303. Exercise of Option.......................................................................49
SECTION 1304. When Securities Presented for Repayment Become Due and Payable...........................50
SECTION 1305. Securities Repaid in Part................................................................50
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or Covenant
Defeasance............................................................................50
SECTION 1402. Defeasance and Discharge.................................................................51
SECTION 1403. Covenant Defeasance......................................................................51
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..........................................51
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions..............................................................53
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called................................................53
SECTION 1502. Call, Notice and Place of Meetings.......................................................53
SECTION 1503. Persons Entitled to Vote at Meetings.....................................................54
SECTION 1504. Quorum; Action...........................................................................54
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings......................55
SECTION 1506. Counting Votes and Recording Action of Meetings..........................................55
EXHIBIT A -- FORMS OF CERTIFICATION
</TABLE>
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<PAGE>
IRON MOUNTAIN INCORPORATED
Reconciliation and tie between Trust Indenture Act of 1939, as amended
(the "TIA"), and Indenture, dated as of __________, 199_.
TIA Section Indenture Section
Sec. 310(a)(1).......................... 607
(a)(2).......................... 607
(b)............................. 607, 608
Sec. 312(a)............................. 704
Sec. 312(c)............................. 701
Sec. 313(a)............................. 702
(c).............................. 702
Sec. 314(a)............................. 1005
(a)(4)........................... 1006
(c)(1)........................... 102
(c)(2)........................... 102
(e).............................. 102
Sec. 315(b)............................. 601
Sec. 316(a) (last sentence)............. 101 ("Outstanding")
(a)(1)(A)....................... 502, 512
(a)(1)(B)....................... 513
(b).............................. 508
Sec. 317(a)(1).......................... 503
(a)(2)........................... 504
Sec. 318(a)............................. 111
(c).............................. 111
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Attention should also be directed to Section 318(c) of the TIA, which
provides that the provisions of Sections 310 to and including 317 of the TIA are
a part of and govern every qualified indenture, whether or not physically
contained therein.
<PAGE>
INDENTURE, dated as of ___________, 199_, between IRON MOUNTAIN
INCORPORATED, a Delaware Corporation (hereinafter called the "Company"), having
its principal office at 745 Atlantic Avenue, Boston Massachusetts 02111 and,
_____________________________, a ___________, as Trustee hereunder (hereinafter
called the "Trustee"), having its initial Corporate Trust Office at
_____________________________________.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for
lawful purposes its debt securities (hereinafter called the "Securities")
evidencing its indebtedness, and has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear interest at the rates or
formulas, to mature at such times and to have such other provisions as shall be
fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are deemed to be incorporated into this
Indenture by such Act, and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of a
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper", as used
in TIA Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
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"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of certain
taxes imposed on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means 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 means 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" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed
by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in
different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board" means the board of directors of the Company or any
committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in that Place of
Payment or particular location are authorized or required by law, regulation or
executive order to close.
"CEDEL" means Cedel, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the Chairman of
the Board and Chief Executive Officer, the President or a Vice President, and
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by its Chief Financial Officer, Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Company, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public institution
of or within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at _____________
________________________.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Declaration" has the meaning specified in Section 113.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"DTC" means The Depository Trust Company, or any successor
thereto.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Date" has the meaning specified in Section 304.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU, issued by the
government of one or more countries other than the United States of America or
by any recognized confederation or association of such governments.
"Funds from Operations" for any period means the consolidated
net income of the Company and its Subsidiaries for such period without giving
effect to depreciation and amortization, gains or losses from extraordinary
items, gains or losses on sales of real estate, gains or losses on investments
in marketable securities and any
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provision/benefit for income taxes for such period, plus funds from operations
of unconsolidated joint ventures, all determined on a consistent basis in
accordance with GAAP.
"GAAP" means generally accepted accounting principles in effect
from time to time as used in the United States applied on a consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more applicable provisions hereof and shall
include the terms of the or those particular series of Securities for which such
Person is Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other series of
Securities for which such Person is Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, shall
mean interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1007,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
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"Officers' Certificate" means a certificate signed by the
Chairman of the Board and Chief Executive Officer, President or a Vice President
and by the Chief Financial Officer, Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company (including counsel who is an employee of the
Company) and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen;
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(v) Securities converted into Common Shares, Preferred Shares
or other securities of the Company pursuant to or in accordance with this
Indenture if the terms of such Securities provide for convertibility pursuant to
Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request,
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demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities or
coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of
or within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer, the controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer's knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such
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Person is Trustee shall have the meaning stated in the first recital of this
Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act of 1933, as amended) of the Company.
"Special Record Date" for the payment of any Defaulted Interest
on the Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means stock having voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created organized in or under the laws of the United States or an estate
or trust the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1006) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by or covered by an
opinion of any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate of or representations by counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel, certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or any Subsidiary stating that the information as to such factual
matters is in the possession of the Company or such Subsidiary, unless such
counsel knows that the certificate or opinion or representations as to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of
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the Trustee or the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: ______________________, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders of Registered Securities is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Registered Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Any such notice shall be deemed to have been given on the date
of such publication or, if published more than once, on the date of the first
such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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SECTION 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities
and coupons shall be governed by and construed in accordance with the law of The
Commonwealth of Massachusetts. This Indenture is subject to the provisions of
the TIA that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) or sinking
fund payment need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption Date,
Repayment Date or sinking fund payment date, or at the Stated Maturity or
Maturity; provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if
any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms as shall be established in
one or more indentures supplemental hereto or approved from time to time by or
pursuant to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which the Securities may be listed, or to conform to
usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or coupons, as evidenced by their execution of such Securities or
coupons.
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SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
________________________________
as Trustee
By______________________________
Authorized Officer
SECTION 203. Securities Issuable in Global Form. If Securities
of or within a series are issuable in global form, as specified in and as
contemplated by Section 301, then, notwithstanding clause (8) of Section 301 and
the provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
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The Securities may be issued in one or more series. There shall
be established in one or more Board Resolutions or pursuant to authority granted
by one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (14) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which
shall distinguish the Securities of such series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 304, 305, 306, 906,
1107 or 1305);
(3) the date or dates, or the method by which such
date or dates will be determined, on which the principal of the
Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which such interest
shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest will be
payable and the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, or the method
by which such date shall be determined, and the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(5) the place or places where the principal of, any
premium and interest on and any Additional Amounts payable in respect
of, Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, exchange or conversion and notices or demands to or upon the
Company in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which or the date or
dates on which, the price or prices at which, and other terms and
conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company, if the Company is to
have the option;
(7) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the price
or prices at which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any Registered
Securities of the series shall be issuable and the denomination or
denominations in which any Bearer Securities of the series shall be
issuable;
(9) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and premium, if any),
interest, if any, on, and Additional Amounts, if any, on the Securities
of the series shall be payable, in which the Securities of the series
shall be redeemed or purchased or in which the Securities of the series
shall be denominated;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to
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Section 502 or, if applicable, the portion of the principal amount of
Securities of the series that is convertible in accordance with the
provisions of this Indenture, or the method by which such portion shall
be determined;
(11) whether the amount of payments of principal of
(and premium, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or other
method (which index, formula or method may be based, without
limitation, on one or more currencies, currency units, composite
currencies, commodities, equity indices or other indices), and the
manner in which such amounts shall be determined;
(12) whether the principal of (and premium, if any)
or interest, if any on or Additional Amounts, if any, on the Securities
of the series are to be payable, at the election of the Company or a
Holder thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for determining the exchange
rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are to be paid;
(13) provisions, if any, granting special rights to
the Holders of Securities of the series upon the occurrence of such
events as may be specified;
(14) any deletions from, modifications of or
additions to the Events of Default or covenants of the Company set
forth in this Indenture with respect to Securities of the series
(whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein);
(15) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities (with or without
coupons) or both, any restrictions applicable to the offer, sale or
delivery of Bearer Securities and the terms upon which Bearer
Securities of the series may be exchanged for Registered Securities of
the series and vice versa (if permitted by applicable laws and
regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for Securities of
such series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, and, if Registered
Securities of the series are to be issuable as a global Security, the
identity of the depositary for such series;
(16) the date as of which any Bearer Securities of
the series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(17) the Person to whom any interest on any
Registered Security of the series shall be payable, if other than the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person to
whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the
coupons appertaining thereto as they severally mature, and the extent
to which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other than
in the manner provided in Section 304;
(18) the applicability, if any, of Sections 1402
and/or 1403 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the provisions of
Article Fourteen;
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(19) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, then the form and/or terms of such certificates, documents
or conditions;
(20) if the Securities of the series are to be issued
upon the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(21) whether and under what circumstances the Company
will pay Additional Amounts as contemplated by Section 1007 on the
Securities of the series to any Holder who is not a United States
person (including any modification to the definition of such term) in
respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Securities
rather than pay such Additional Amounts (and the terms of any such
option);
(22) the obligation, if any, of the Company to permit
the conversion of the Securities of such series into Common Shares or
Preferred Shares of the Company or other securities, as the case may
be, and the terms and conditions upon which such conversion shall be
effected (including, without limitation, the initial conversion price
or rate, the conversion period, any adjustment of the applicable
conversion price and any requirements relative to the reservation of
such shares for purposes of conversion);
(23) the terms and conditions, if any, upon which
payment of the Securities of such series shall be subordinated to the
Securities of another series or other indebtedness of the Company
(including, without limitation, indebtedness which ranks senior to such
Securities; restrictions on payments to Holders of such Securities
while a default with respect to such senior indebtedness is continuing;
restrictions, if any, on payments to the Holders of such Securities
following an Event of Default; and any requirements for Holders of such
Securities to remit certain payments to the holders of such senior
indebtedness);
(24) if the Securities of the series are to be
guaranteed, the term and conditions of such guarantee;
(25) if the Securities of the series are to be
secured, the terms and conditions pertaining to the security and a
description of the collateral pledged as security ;
(26) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent for the series; and
(27) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denominations and except as may
otherwise be provided in or pursuant to the Board Resolution establishing the
series (subject to Section 303) and set forth in an Officers' Certificate or in
any indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officers' Certificate setting forth the terms of the
Securities of such series.
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SECTION 302. Denominations. The Securities of each series shall
be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions, the Registered Securities of such series,
other than Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by its Chairman of the Board and Chief Executive Officer,
President or one of its Vice Presidents, under its seal reproduced thereon, and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities
or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula, maturity date, date
of issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Sections 315(a) through 315(d)) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and
any coupons have been established in conformity with the
provisions of this Indenture;
(b) the terms of such Securities and any
coupons have been established in conformity with the provisions
of this Indenture; and
(c) such Securities, together with any
coupons appertaining thereto, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee for
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authentication in accordance with this Indenture, authenticated
and delivered by the Trustee in accordance with this Indenture
and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
constitute legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting
the enforcement of creditors' rights generally and to general
equitable principles; and
(ii) an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the
issuance of the Securities have been complied with and that, to the
best of the knowledge of the signers of such certificate, no Event of
Default with respect to any of the Securities shall have occurred and
be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Officers' Certificate
otherwise required pursuant to Section 301 or a Company Order, or an Opinion of
Counsel or an Officers' Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for
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definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by any
non-matured coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Until
so exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of DTC. If
any such temporary Security is issued in global form, then such temporary global
Security shall, unless otherwise provided therein, be delivered to the London
office of a depositary or common depositary (the "Common Depositary"), for the
benefit of Euroclear and CEDEL, for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other forms as may
be established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor
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authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304 (b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
a temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein provided.
In the event that the Trustee shall cease to be Security Registrar, it shall
have the right to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any series at any
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of
the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default
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thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
any such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture. Whenever any Bearer Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by the Company or to a nominee of such
successor to DTC. If at any time DTC notifies the Company that it is unwilling
or unable to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, if so required by applicable
law or regulation, the Company shall appoint a successor depositary with respect
to such global Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or
Securities or (z) the Company, in its sole discretion, determines at any time
that all Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver, definitive Securities
of like series, rank, tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such global Security or
Securities. If any beneficial owner of an interest in a permanent global
Security is otherwise entitled to exchange such interest for Securities of such
series and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event no later than the
earliest date on which such interest may be so exchanged, the Company shall
execute, and the Trustee shall authenticate and deliver, definitive Securities
in aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security. On or after the earliest
date on which such interests may be so exchanged, such permanent global Security
shall be surrendered for exchange by DTC or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose; provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued
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in exchange for any portion of a permanent global Security after the close of
business at the office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, only to the Person to whom interest in respect of such portion or such
permanent global Security is payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company 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 Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before selection of the Securities to be
redeemed under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if such Securities are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and of like tenor; provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except that portion, if any, of such Security which is
not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining to
it is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of written notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and
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provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears on the Security Register or (ii)
transfer to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the payee
with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be
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payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment (which
shall not be less than 20 days after such notice is received by the
Trustee), and at the same time the Company shall deposit with the
Trustee an amount of money in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall not be more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at his address
as it appears in the Security Register not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of
Payment, but such publications shall not be a condition precedent to
the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer Security
of any series is surrendered for transfer or exchange at the office or
agency in a Place of Payment for such series after the close of
business at such office or agency on any Special Record Date and before
the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such proposed date
of payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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SECTION 308. Persons Deemed Owners. Prior to due presentment of
a Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security is overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon is overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and owners
of beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. Cancelled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company,
unless by a Company Order the Company directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect with respect
to any series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and
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any right to receive Additional Amounts, as provided in Section 1007), and the
Trustee, upon receipt of a Company Order, and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when
(1) either
(A) all Securities of such series
theretofore authenticated and delivered and all coupons, if
any, appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is
not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all Securities of such series and, in
the case of (i) or (ii) below, any coupons appertaining
thereto, not theretofore delivered to the Trustee for
cancellation
(i) have become due and
payable, or
(ii) will become due and payable
at their Stated Maturity
within one year, or
(iii) if redeemable at the option
of the Company, are to be
called for redemption
within one year under
arrangements satisfactory
to the Trustee for the
giving of notice of
redemption by the Trustee
in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as funds in trust for such purpose an amount in the
currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series
are payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, and any
Additional Amounts with respect thereto, to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
The obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive
the satisfaction and discharge of this Indenture.
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SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any), and any interest and Additional Amounts for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or
any Additional Amounts payable in respect of any Security of that
series or of any coupon appertaining thereto, when such interest,
Additional Amounts or coupon becomes due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of any Security of that series;
or
(4) default in the performance of, or breach of, any
covenant of the Company in this Indenture (other than a covenant a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has been expressly included in
this Indenture solely for the benefit of a series of Securities other
than that series), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least a majority in principal amount of
the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or
other evidence of indebtedness of the Company, or under any mortgage,
indenture or other instrument of the Company (including a default with
respect to Securities of any series other than that series) under which
there may be issued or by which there may be secured any indebtedness
of the Company (or by any Subsidiary, the repayment of which the
Company has guaranteed or for which the Company is directly responsible
or liable as obligor or guarantor), whether such indebtedness now
exists or shall hereafter be created, which default shall constitute a
failure to pay an aggregate principal amount exceeding $___________ of
such indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto and shall have resulted in
such indebtedness in an aggregate principal amount exceeding
$____________ becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 10 days after there
shall have been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least a majority in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring the
Company to cause such indebtedness to be
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discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder; or
(6) the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially all of its
property, or
(D) makes a general assignment for the
benefit of its creditors; or
(7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or
any Significant Subsidiary or for all or substantially all of
either of its property, or
(C) orders the liquidation of the Company or
any Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 days; or
(8) any other Event of Default provided with respect
to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11, U.S. Code
or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing (other than an Event of Default
described in Section 501(6) or 501(7)), then and in every such case the Trustee
or the Holders of at least 25% in principal amount of the Outstanding Securities
of that series may declare the principal (or, if any Securities are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
as may be specified in the terms thereof) of all the Securities of that series
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders), and upon any such declaration such
principal or specified portion thereof shall become immediately due and payable.
If an Event of Default described in Section 501(6) or 501(7) with respect to any
series of Securities at the time outstanding occurs, the principal amount of all
of the Securities of that series (or, in the case of any such Original Issue
Discount Securities or Indexed Securities, such portion of the principal as may
be specified in the terms thereof) will automatically, and without any action by
the Trustee or any Holder thereof, become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
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(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay in the currency, currency unit or
composite currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series):
(A) all overdue installments of interest on
and any Additional Amounts payable in respect of all
Outstanding Securities of that series and any related coupons,
(B) the principal of (and premium, if any,
on) any Outstanding Securities of that series which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for
in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate or rates borne
by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the nonpayment of the principal of (or
premium, if any) or interest on Securities of that series which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment
of interest or Additional Amounts, if any, on any Security of any
series and any related coupon when such interest or Additional Amount
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amounts thereon, with interest upon
any overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts thereon, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
of such series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and
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enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal of, or premium, if any, or
interest on, the Securities) shall be entitled and empowered, by intervention in
such proceeding or otherwise:
(i) to file and prove a claim for the whole amount,
or such lesser amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest and Additional
Amount, if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) 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 of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of Securities
and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest and any Additional Amounts, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the
Trustee and any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities and coupons for principal (and premium, if
any) and interest and any Additional Amounts payable, in respect of
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which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and coupons for
principal (and premium, if any), interest and Additional Amounts,
respectively; and
THIRD: To the payment of the remainder, if any, to
the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than a majority in
principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest and Additional Amounts. Notwithstanding any
other provision in this Indenture, the Holder of any Security or coupon shall
have the right which is absolute and unconditional to receive payment of the
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest on, and any Additional Amounts in respect of, such Security or payment
of such coupon on the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee
or any Holder of a Security or coupon has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law,
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be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Security or coupon to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders of Securities or coupons, as
the case may be.
SECTION 512. Control by Holders of Securities. The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series; provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction,
and
(3) the Trustee need not take any action which might
expose it to personal liability or be unduly prejudicial to the Holders
of Securities of such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium,
if any) or interest on or Additional Amounts payable in respect of any
Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by
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any Holder, or group of Holders, holding in the aggregate more than a majority
in principal amount of the Outstanding Securities, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on or any Additional Amounts or sinking fund installment
with respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of
the Holders of the Securities and coupons of such series; and provided further
that in the case of any default or breach of the character specified in Section
501(4) with respect to the Securities and coupons of such series, no such notice
to Holders shall be given until at least 60 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting to take any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(4) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel 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 reliance
thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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(6) the 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, coupon or other paper
or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the 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; and
(8) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor the
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its
own part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
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and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or Section
501(7), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest on particular Securities or coupons.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, state, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, 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. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 607(a) and shall fail to resign after written request therefor
by the Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
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then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any reason
with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series).
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner hereinafter
provided any Holder of a Security who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, upon request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto, pursuant to Article Nine hereof, wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or
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trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in,
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authentication Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and, except as may otherwise be provided pursuant to Section 301, shall
at all times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States of America or
of any State or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
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Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any
time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
____________________________________
as Trustee
By:_________________________________
as Authenticating Agent
By:_________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar shall
be held accountable by reason of the disclosure of any information as to the
names and addresses of the Holders of Securities in accordance with TIA Section
312, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15 of
each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
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Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Company
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of such Sections, then it will file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to the Holders of Securities,
within 30 days after the filing thereof with the Trustee, in the manner
and to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this section as may be required
by rules and regulations prescribed from time to time by the
Commission.
SECTION 704. Company to Furnish to Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 25 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semiannually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
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ARTICLE EIGHT
MERGER, CONSOLIDATION, AND SALE OF ASSETS
SECTION 801. Mergers and Consolidations of Company and Sale of
Assets. The Company shall not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another Person unless (a) the
Company is the surviving corporation or the entity or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the laws of
the United States, any state thereof or the District of Columbia; (b) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all the obligations
of the Company under the Securities and this Indenture (pursuant to a
supplemental indenture complying with Article Nine hereof and in a form
reasonably satisfactory to the Trustee); and (c) immediately after such
transaction no Event of Default, and no event which, after notice or the lapse
of time, or both, would become an Event of Default, exists.
SECTION 802. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities contained; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
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(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; provided, that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of
this Indenture; provided that any such change or elimination shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series and any related coupons as permitted by Sections 201 and
301, including the provisions and procedures relating to Securities
convertible into Common Shares or Preferred Shares of the Company, as
the case may be; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture; provided such
provisions shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided,
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however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of
(or premium, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate or
amount of interest thereon or any Additional Amounts payable in respect
thereof, or any premium payable upon the redemption thereof, or change
any obligation of the Company to pay Additional Amounts pursuant to
Section 1007 (except as contemplated by Section 801(i) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option of the
Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, as the
case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (or
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1008, except to increase the required percentage
to effect such action or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
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SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest
and Additional Amounts. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1007 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to Section 301, at
the option of the Company, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person entitled thereto
against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of
a series are issuable only as Registered Securities, the Company shall maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange, and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain: (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1007) or conversion; provided, however, that if the
Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1007) or conversion at the offices specified in the Security in London,
England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
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hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on or
Additional Amounts in respect of Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, that, if the Securities of a series are
payable in Dollars, payment of principal of and any premium and interest on any
Bearer Security (including any Additional Amounts payable on Securities of such
series pursuant to Section 1007) shall be made at the office of the Company's
Paying Agent in the City of Boston, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or Additional Amounts, as the
case may be, at all offices or agencies outside the United States maintained for
such purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the City of Boston, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 302, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency
or so long as it is required under any other provision of this Indenture, then
the Company will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with respect
to any series of any Securities and any related coupons, it will, by no later
than 11:00 am (Boston time) on each due date of the principal of (and premium,
if any), or interest on or Additional Amounts in respect of, any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (and premium, if any)
or interest or Additional Amounts so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest on or Additional
Amounts in respect of, any Securities of that series, deposit with a Paying
Agent a sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to pay
the principal (and premium, if any) or interest or Additional Amounts, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest or Additional Amounts and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
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(1) hold all sums held by it for the payment of
principal of (and premium, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the making of any
such payment of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest on, or any Additional Amounts in respect of, any Security of any series
and remaining unclaimed for two years after such principal (and premium, if
any), interest or Additional Amounts has become due and payable shall be paid to
the Company upon Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment of such
principal of (and premium, if any) or interest on, or any Additional Amounts in
respect of, such Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Existence. Subject to Article Eight, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights (declaration and statutory) and
franchises; provided, however, that the Company shall not be required to
preserve any right or franchise if the Board shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company.
SECTION 1005. Provision of Financial Information. Whether or
not required by the rules and regulations of the SEC, so long as any of the
Securities are outstanding, the Company will furnish to the Holders (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and, with respect to the
annual information only, a report thereon by the Company's certified independent
accountants and (ii) all financial information that would be required to be
included in a Form 8-K filed with the SEC if the Company were required to file
such reports. In addition, whether or not required by the rules and regulations
of the SEC, the Company will file a copy of all such information and reports
with the SEC for public availability (unless the SEC will not accept such a
filing) and make such information available to investors who request it in
writing. Notwithstanding anything to the contrary contained herein, the Trustee
shall have no duty to review such documents for purposes of determining
compliance with any provisions of this Indenture.
SECTION 1006. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture and,
in the event of any noncompliance, specifying such noncompliance and the nature
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and status thereof. For purposes of this Section 1006, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1007. Additional Amounts. If any Securities of a series
provide for the payment of Additional Amounts, the Company will pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context except in the case of
Section 502(1), the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 20 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and
any premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company will furnish
the Trustee and the Company's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of a series or
related coupons without withholding or deductions until otherwise advised. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Company's
not furnishing such an Officers' Certificate.
SECTION 1008. Waiver of Certain Covenants. The Company may omit
in any particular instance to comply with any term, provision or condition set
forth in Sections 1004 or 1005, if before or after the time for such compliance
the Holders of at least a majority in principal amount of all outstanding
Securities of such series, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such covenant or condition,
but no such waiver shall extend to or affect such covenant or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of the
Company of less than all of the Securities of any series, the Company shall, at
least 45 days prior to the giving of the notice of redemption in Section 1104
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date with
the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 106 and as may be further specified
in an indenture supplemental hereto, not less than 30 days nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified by the terms
of such series established pursuant to Section 301, to each Holder of Securities
to be redeemed, but failure to give such notice in the manner herein provided to
the Holder of any Security designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity of
the proceedings for the redemption of any other such Security or portion
thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not such Holders receive such notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any, and
Additional Amounts, if any,
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(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the holder
will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price
and accrued interest to the Redemption Date payable as provided in
Section 1106, if any, will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if applicable,
that interest thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if
such is the case,
(8) that unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the
Redemption Date or the amount of any such missing coupon or coupons
will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee for such series and
any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who
desires to convert Securities for redemption must satisfy the
requirements for conversion contained in such Securities, the then
existing conversion price or rate, and the date and time when the
option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to 11:00
am (Boston time) on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which
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the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) (together with
accrued interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided further that, except as otherwise provided with
respect to Securities convertible into Common Shares or Preferred Shares of the
Company, installments of interest on Registered Securities whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge a new Security or
Securities of the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment
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may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, as
provided for by the terms of such Securities, or which have otherwise been
acquired by the Company; provided that such Securities so delivered or applied
as a credit have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities
of any series before their Stated Maturity at the option of Holders thereof
shall be made in accordance with the terms of such Securities, if any, and
(except as otherwise specified by the terms of such series established pursuant
to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof, together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that on or before the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date.
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SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the Trustee must receive
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder or by the Holder's attorney duly authorized in writing
or (2) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. ("NASD"), or a commercial bank or trust company in the United States
setting forth the name of the Holder of the Security, the principal amount of
the Security, the principal amount of the Security to be repaid, the CUSIP
number, if any, or a description of the tenor and terms of the Security, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that the Security to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the Security, will be
received by the Trustee not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided, however, that
such telegram, telex, facsimile transmission or letter shall only be effective
if such Security and form duly completed are received by the Trustee by such
fifth Business Day. If less than the entire principal amount of such Security is
to be repaid in accordance with the terms of such Security, the principal amount
of such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located
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outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision
is made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and
any coupons appertaining thereto on the date the conditions set forth in Section
1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) below, and to have satisfied
all of its other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest, if any, on such Securities
and any coupons appertaining thereto when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 305, 306,
1002 and 1003 and with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 1007, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Company may exercise its
option under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons appertaining
thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be released from its obligations under
Sections 1004 and 1005 and, if specified pursuant to Section 301, its
obligations under any other covenant, with
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respect to such Outstanding Securities and any coupons appertaining thereto on
and after the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections 1004 and 1005 or
such other covenant, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that, with
respect to such Outstanding Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or an
Event of Default under Section 501(4) or 501(9) or otherwise, as the case may
be, but except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining thereto, (1) an
amount in such currency, currencies or currency unit in which such
Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment of principal of (and premium, if any) and interest, if any, on
such Securities and any coupons appertaining thereto, or (2) Government
Obligations applicable to such Securities and coupons appertaining
thereto (determined on the basis of the currency, currencies or
currency unit in which such Securities and coupons appertaining thereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (3) a combination thereof in an amount,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest, if
any, on such Outstanding Securities and any coupons appertaining
thereto on the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to such Outstanding Securities and any
coupons appertaining thereto on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
such Securities and any coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit or, insofar as
Sections 501(6) and 501(7) are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
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(d) In the case of an election under Section 1402,
the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the
date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 1403,
the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance under Section 1402 or the
covenant defeasance under Section 1403 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that either (i)
as a result of a deposit pursuant to subsection (a) above and the
related exercise of the Company's option under Section 1402 or Section
1403 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the Trustee
for such trust funds or (ii) all necessary registrations under said Act
have been effected.
(g) Notwithstanding any other provisions of this
Section, such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(a) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 301 or the terms of
such Security to receive payment in a currency or currency unit other than that
in which the deposit pursuant to Section 1404(a) has been made in respect of
such Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any), and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the currency or currency unit in which such Security becomes
payable as a result of such election or Conversion Event based on the applicable
market exchange rate for such currency or currency unit in effect on the
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second Business Day prior to each payment date, in the case of such an election,
or, the applicable market exchange rate in effect for such currency or currency
unit (as nearly as feasible), in the case of such Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at such
place in the City of Boston, or in London as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section 106,
not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the City of Boston, or in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection (a)
of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this
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Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of any adjourned meeting shall state expressly the percentage,
as provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii) the principal amount of the Outstanding
Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has
been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing
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proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
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This Indenture may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, as an instrument under seal, as of the day and
year first above written.
IRON MOUNTAIN INCORPORATED
By:___________________________
Title:
______________________________
By:___________________________
Title:
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EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institutions hereby agrees, on its own behalf or through its agent,
that you may advise Health and Rehabilitation Properties Trust or its agent that
such financial institutions will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-
5(c)(1)(i)(D)(7), and, in addition, if the owner is a United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)), this is to further certify that such financial
institutions has not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to (U.S.$)
_______________ of such interest in the above-captioned Securities in respect of
which we are not able to certify and as to which we understand an exchange for
an interest in a Permanent Global Security or an exchange for and delivery of
definitive Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
A-1
<PAGE>
Dated: _________, 19__
[To be dated no earlier than the
15th day prior to (i) the
Exchange Date or (ii) the
relevant Interest Payment Date
occurring prior to the Exchange
Date, as applicable]
[Name of Person Making Certification]
____________________________________
(Authorized Signatory)
Name:
Title:
A-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$) principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) is owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institutions
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Date:______________, 19__
[To be dated no earlier than the
Exchange Date or the relevant
Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
A-3
<PAGE>
[Morgan Guaranty Trust Company
New York, Brussels Office,]
as Operator of the Euroclear System
[Cedel S.A.]
A-4
EXHIBIT 5
SULLIVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO. 617-338-2880
IN WASHINGTON, D.C. IN NEW YORK CITY
1025 CONNECTICUT AVENUE, N.W. 767 THIRD AVENUE
WASHINGTON, D.C. 20036 NEW YORK, NEW YORK 10017
(202) 775-8190 (212) 486-8200
FAX NO. 202-293-2275 FAX NO. 212-758-2151
January 13, 1998
Iron Mountain Incorporated
745 Atlantic Avenue
Boston, Massachusetts 02111
Re: Iron Mountain Incorporated Registration
Statement on Form S-3
Ladies and Gentlemen:
In connection with the registration by Iron Mountain Incorporated, a
Delaware corporation (the "Company"), of up to $350,000,000 in aggregate amount
of one or more series of (i) debt securities of the Company (the "Debt
Securities"), which may be guaranteed (the "Guarantees") by all of the present
and future subsidiaries of the Company (the "Subsidiary Guarantors"), (ii)
shares of preferred stock, $.01 par value per share, of the Company (the
"Preferred Shares"), (iii) depositary shares representing fractional interests
in Preferred Shares ("Depositary Shares") evidenced by depositary receipts
therefor ("Depositary Receipts"), (iv) shares of common stock, $.01 par value
per share, of the Company (the "Common Shares"), or (v) warrants to purchase
Debt Securities, Preferred Shares, Depositary Shares or Common Shares (the
"Warrants" and, together with the Debt Securities, the Guarantees, Preferred
Shares, Depositary Shares, and Common Shares, the "Registered Securities"), for
offering by the Company from time to time, as set forth in the final prospectus
that forms a part of the Registration Statement, as defined below (the
"Prospectus"), and as to be set forth in one or more final supplements to the
Prospectus (each, a "Prospectus Supplement"), the following opinion is furnished
to the Company to be filed with the Securities and Exchange Commission (the
"Commission") as Exhibit 5 to the Company's Registration Statement on Form S-3,
under the Securities Act of 1933, as amended (the "Securities Act"), to be filed
on or about the date hereof. As used in this opinion, the term "Registration
Statement" means, unless otherwise stated, such Registration Statement, as
amended when declared effective by the Commission (including any necessary
post-effective amendments thereto); the term "Convertible Registered Securities"
means Registered Securities which are convertible into, exchangeable for or
<PAGE>
Iron Mountain Incorporated
January 13, 1998
Page 2
exercisable for other Registered Securities, and the term "Underlying Registered
Securities" means any Registered Securities which are issuable upon conversion,
exchange or exercise of Convertible Registered Securities.
In connection with this opinion, we have examined and relied upon a
copy of the Registration Statement to be filed with the Commission on or about
the date hereof. We have also examined and relied upon originals or copies of
such records, agreements and instruments of the Company, certificates of public
officials and of officers of the Company and such other documents and records,
and such matters of law, as we have deemed necessary as a basis for the opinions
hereinafter expressed. In making such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies, which facts we have
not independently verified.
We have necessarily assumed in connection with the opinions expressed
below that the terms and conditions of the Registered Securities and any related
indentures, agreements and instruments, except to the extent described in the
Registration Statement and the form of preliminary prospectus contained therein,
as originally filed, will be, and that any related proceedings of the Company
conducted after the date hereof will be conducted, (i) in accordance with all
applicable laws and the Company's Amended and Restated Certificate of
Incorporation (the "Restated Certificate") and Amended and Restated By-laws,
(ii) in the case of the Guarantees, in accordance with all applicable laws and
the Subsidiary Guarantors' charters and by-laws, and (ii) not in conflict with
any contractual or other restrictions which are binding on the Company, and
that, without limiting the generality of the foregoing, any agreements or
instruments that are hereafter required to be filed as an exhibit to the
Registration Statement will be properly filed by an amendment thereto or by the
filing of a Form 8-K by the Company under the Securities Exchange Act of 1934,
as amended, and properly incorporated by reference in the Registration
Statement, as permitted by the Securities Act and the rules and regulations of
the Commission thereunder. We have also necessarily assumed in connection with
such opinions with respect to any Common Shares or Preferred Shares or any
Convertible Registered Securities as to which Common Shares or Preferred Shares
are the related Underlying Registered Securities that, at the time of the
issuance thereof, the Company will have a sufficient number of shares of
authorized Common Shares or Preferred Shares, as the case may be, under the
Restated Certificate that will be unissued and not otherwise reserved for
issuance.
To the extent that the obligations of the Company under each Indenture
or any Warrant Agreement or Depositary Agreement (each as defined below) may be
dependent upon such matters, we have assumed for purposes of this opinion that
each Trustee and each Warrant Agent
<PAGE>
Iron Mountain Incorporated
January 13, 1998
Page 3
and Depositary (each as defined below) are duly organized, validly existing and
in good standing under the laws of their respective jurisdictions of
organization, and are duly qualified to engage in the activities contemplated
by, and have the requisite organizational and legal power and authority to
perform their respective obligations under, each Indenture, Warrant Agreement
and Depositary Agreement to which they are parties, that each Trustee, Warrant
Agent and Depositary will be in compliance, generally with respect to acting as
a trustee or agent under each applicable Indenture, Warrant Agreement and
Depositary Agreement, with all applicable laws and regulations, and that each
Indenture and any Warrant Agreement and Depositary Agreement will be the valid
and binding agreements of each party thereto (other than, in the case of an
indenture in the form filed as Exhibit 4.1 or 4.2 to the Registration Statement
when appropriately completed, the Company), enforceable against such parties in
accordance with their respective terms.
We express no opinion herein as to the laws of any jurisdiction other
than the laws of The Commonwealth of Massachusetts, the Delaware General
Corporation Law and the federal laws of the United States of America, and we
express no opinion as to state securities or blue sky laws.
Our opinions set forth below with respect to the validity or binding
effect of any security or obligation are subject to (i) limitations arising
under applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws affecting the enforcement generally of the
rights and remedies of creditors and secured parties or the obligations of
debtors, (ii) general principles of equity (regardless of whether considered in
a proceeding at law or in equity), including, without limitation, the discretion
of any court of competent jurisdiction in granting specific performance or
injunctive or other equitable relief, and (iii) an implied duty on the part of
the party seeking to enforce rights or remedies to take action and make
determinations on a reasonable basis and in good faith to the extent required by
applicable law.
Based on and subject to the foregoing, we are of the opinion that, as
of the date hereof:
1. Each series of Debt Securities and the Guarantees, if any,
will be validly issued and binding obligations of the Company and the
Subsidiary Guarantors when (i) the Registration Statement shall have
become effective under the Securities Act and the indentures filed as
Exhibit 4.1 and 4.2 to the Registration Statement, including any
necessary supplemental indenture, or any other indenture, including any
necessary supplemental indenture thereto, filed as an exhibit to the
Registration Statement, as the case may be (the applicable indenture,
as so filed and supplemented, the "Indenture"), shall have been
qualified under the Trust Indenture Act of 1939, as amended, and the
Indenture shall have been duly authorized, executed and delivered by
the Company and a
<PAGE>
Iron Mountain Incorporated
January 13, 1998
Page 4
trustee named thereunder (the "Trustee"), (ii) a Prospectus Supplement
with respect to such Debt Securities and the Guarantees shall have been
filed with the Commission pursuant to Rule 424 under the Securities
Act, (iii) the Company's Board of Directors or a duly authorized
committee thereof shall have duly adopted final resolutions (the "Final
Debt Resolutions") authorizing the issuance and sale of such Debt
Securities and the Subsidiary Guarantors' Board of Directors shall have
duly adopted final resolutions (the "Final Guarantor Resolutions")
authorizing the Guarantees, each as contemplated by the Registration
Statement, the Prospectus, the applicable Prospectus Supplement and the
Indenture, (iv) such series of Debt Securities shall have been (A) duly
executed by the Company and authenticated by the Trustee as provided in
the Indenture and the Final Debt Resolutions and (B) duly delivered to
the purchasers thereof against payment of the agreed consideration
therefor, as provided in the Registration Statement, the Prospectus,
the applicable Prospectus Supplement, the Indenture and the Final Debt
Resolutions and (v) the consideration, if any, separately payable for
the Guarantees shall have been received, as provided in the
Registration Statement, the Prospectus, the applicable Prospectus
Supplement, the Indenture and the Final Guarantor Resolutions. If such
Debt Securities are Underlying Registered Securities, the opinion set
forth in this paragraph is subject to the further condition that the
Convertible Registered Securities relating to such Debt Securities, at
the time of the issuance thereof and of the conversion, exchange or
exercise thereof, are validly issued, fully paid and non-assessable by
the Company or are validly issued and binding obligations of the
Company, as applicable.
2. Each series of Preferred Shares will be validly issued,
fully paid and non-assessable by the Company when (i) the Registration
Statement shall have become effective under the Securities Act, (ii) a
Prospectus Supplement with respect to such Preferred Shares shall have
been filed with the Commission pursuant to Rule 424 under the
Securities Act, (iii) the Company's Board of Directors or a duly
authorized committee thereof shall have duly adopted final resolutions
(the "Final Preferred Shares Resolutions") authorizing the issuance and
sale of such Preferred Shares as contemplated by the Registration
Statement, the Prospectus and the applicable Prospectus Supplement,
(iv) a Certificate of Designation setting forth the terms of such
series of Preferred Shares, including establishing a sufficient
quantity thereof and setting forth the preferences, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption, consistent with the Final Preferred Shares Resolutions,
shall have been duly executed and filed with and accepted for record by
the Secretary of State of the State of Delaware, and (v) certificates
evidencing such Preferred Shares shall have been duly executed,
countersigned and registered and duly delivered to the purchasers
thereof against payment of the agreed consideration therefor (and in
any event an amount at least equal to the par value, if any, thereof),
as provided in the Registration Statement, the
<PAGE>
Iron Mountain Incorporated
January 13, 1998
Page 5
Prospectus, the applicable Prospectus Supplement and the Final
Preferred Shares Resolutions. If such Preferred Shares are Underlying
Registered Securities, the opinion set forth in this paragraph is
subject to the further condition that the Convertible Registered
Securities relating to such Preferred Shares, at the time of the
issuance thereof and of the conversion, exchange or exercise thereof,
are validly issued, fully paid and non-assessable by the Company or are
validly issued and binding obligations of the Company, as applicable.
3. The Depositary Shares will be validly issued, fully paid
and non-assessable by the Company and the Depositary Receipts will be
validly issued and will entitle the holders thereof to the rights
specified therein and in the applicable Depositary Agreement, when (i)
the conditions set forth in paragraph 2 above with respect to the
related Preferred Shares are met, (ii) the Company's Board of Directors
or a duly authorized committee thereof shall have duly adopted
resolutions (the "Final Depositary Shares Resolutions") approving one
or more depositary agreements, including a form of Depositary Receipt
set forth therein or related thereto (each, a "Depositary Agreement"),
relating to such Depositary Shares, between the Company and a financial
institution identified therein as depositary (each, a "Depositary"),
(iii) the applicable Depositary Agreement shall have been duly executed
and delivered by the Company and the Depositary, (iv) the related
Preferred Shares shall have been duly deposited with the Depositary
under the Depositary Agreement and (v) the applicable Depositary
Receipts shall have been duly executed by the Depositary as provided in
the applicable Depositary Agreement and the Final Depositary Shares
Resolutions and registered and shall have been duly delivered to the
purchasers thereof against payment of the agreed consideration
therefor, as provided in the Registration Statement, the Prospectus,
the applicable Prospectus Supplement, the applicable Depositary
Agreement and the Final Depositary Shares Resolutions.
4. The Common Shares will be validly issued, fully paid and
non-assessable by the Company when (i) the Registration Statement shall
have become effective under the Securities Act, (ii) a Prospectus
Supplement with respect to such Common Shares shall have been filed
with the Commission pursuant to Rule 424 under the Securities Act,
(iii) the Company's Board of Directors or a duly authorized committee
thereof shall have duly adopted final resolutions (the "Final Common
Shares Resolutions") authorizing the issuance and sale of such Common
Shares as contemplated by the Registration Statement, the Prospectus
and the applicable Prospectus Supplement, and (iv) certificates
evidencing such Common Shares shall have been duly executed,
countersigned and registered and duly delivered to the purchasers
thereof against payment of the agreed consideration therefor (and in
any event an amount at least equal to the par value thereof), as
provided
<PAGE>
Iron Mountain Incorporated
January 13, 1998
Page 6
in the Registration Statement, the Prospectus, the applicable
Prospectus Supplement and the Final Common Shares Resolutions. If such
Common Shares are Underlying Registered Securities, the opinion set
forth in this paragraph is subject to the further condition that the
Convertible Registered Securities relating to such Common Shares, at
the time of the issuance thereof and of the conversion, exchange or
exercise thereof, are validly issued, fully paid and non-assessable by
the Company or are validly issued and binding obligations of the
Company, as applicable.
5. The Warrants will be duly authorized and validly issued and
binding obligations of the Company when (i) the Registration Statement
shall have become effective under the Securities Act, (ii) a Prospectus
Supplement with respect to such Warrants shall have been filed with the
Commission pursuant to Rule 424 under the Securities Act, (iii) the
Company's Board of Directors or a duly authorized committee thereof
shall have duly adopted final resolutions (the "Final Warrant
Resolutions") authorizing the issuance and sale of such Warrants as
contemplated by the Registration Statement, the Prospectus and the
applicable Prospectus Supplement and approving one or more warrant
agreements, including a form of warrant set forth therein or related
thereto (each, a "Warrant Agreement"), establishing the terms and
conditions of such Warrants, between the Company and a financial
institution identified therein as warrant agent (each, a "Warrant
Agent"), (iv) the applicable Warrant Agreement shall have been duly
executed and delivered by the Company and the Warrant Agent, and (v)
such Warrants shall have been duly executed by the Company and
authenticated by the Warrant Agent as provided in the applicable
Warrant Agreement and the Final Warrant Resolutions and registered and
shall have been duly delivered to the purchasers thereof against
payment of the agreed consideration therefor, as provided in the
Registration Statement, the Prospectus, the applicable Prospectus
Supplement, the applicable Warrant Agreement and the Final Warrant
Resolutions. If such Warrants are Underlying Registered Securities, the
opinion set forth in this paragraph is subject to the further condition
that the Convertible Registered Securities relating to such Warrants,
at the time of the issuance thereof and of the conversion, exchange or
exercise thereof, are validly issued, fully paid and non-assessable by
the Company or are validly issued and binding obligations of the
Company, as applicable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectus
forming a part of the Registration Statement. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act or under the rules and regulations of the
Commission promulgated thereunder.
<PAGE>
Iron Mountain Incorporated
January 13, 1998
Page 5
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in Iron
Mountain Incorporated's Registration Statement and related Prospectus filed on
or about January 12, 1998 on Form S-3 and to the incorporation by reference
therein of our reports dated February 28, 1997 (except for Note 12, as to which
the date is September 26, 1997), and April 30, 1997 (except for Note 15, as to
which the date is September 26, 1997) with respect to the financial statements
of Arcus Technology Services, Inc. and Arcus Group, Inc., respectively, included
in Iron Mountain Incorporated's Current Reports on Form 8-K dated October 30,
1997 and November 25, 1997, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Dallas, Texas
January 6, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated April
4, 1995, for Arcus Group, Inc. included in Iron Mountain Incorporated's Form 8-K
filed with the Securities and Exchange Commission on November 25, 1997, and to
all references to our Firm included in this registration statement.
Arthur Andersen LLP
Houston, Texas
January 5, 1998
EXHIBIT 23.3
CONSENT TO INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement Form S-3 of Iron Mountain Incorporated and to the
incorporation by reference therein of our report dated February 21, 1997, with
respect to the consolidated statements of HIMSCORP, Inc. included in Iron
Mountain Incorporated's Current Report on Form 8-K dated November 25, 1997 filed
with the Securities and Exchange Commission.
Ernst & Young LLP
Chicago, Illinois
January 5, 1998
EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated March
4, 1997, (except for Note 11, as to which the date is October 1, 1997) for
Allegiance Business Archives, Ltd. included in Iron Mountain Incorporated's Form
8-K filed with the Securities and Exchange Commission on November 25, 1997, and
to all references to our Firm included in this registration statement.
Stout, Causey & Horning, P.A.
Cockeysville, Maryland
January 5, 1998
EXHIBIT 23.5
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated August
7, 1997, for Records Retention/FileSafe included in Iron Mountain Incorporated's
Form 8-K filed with the Securities and Exchange Commission on November 25, 1997,
and to all references to our Firm included in this registration statement.
Abbott, Stringham & Lynch
Campbell, California
January 5, 1998
EXHIBIT 23.6
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our reports dated August
15, 1997, April 25, 1997 and September 12, 1997, for Security Archives of
Minnesota, Wellington Financial Services, Inc. and Data Securities
International, Inc., respectively, included in Iron Mountain Incorporated's Form
8-K filed with the Securities and Exchange Commission on October 30, 1997, and
to all references to our Firm included in this registration statement.
Arthur Andersen LLP
Minneapolis, Minnesota
Detroit, Michigan
San Jose, California
January 5, 1998
EXHIBIT 23.7
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated August
8, 1997, for Concorde Group, Inc. and Neil Tucker Trust included in Iron
Mountain Incorporated's Form 8-K filed with the Securities and Exchange
Commission on October 30, 1997, and to all references to our Firm included in
this registration statement.
Fisher, Schacht & Oliver, LLP
Rochester, New York
January 5, 1998
EXHIBIT 23.8
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our reports dated March
14, 1997, and September 6, 1996, for Safesite Records Management Corporation and
Mohawk Business Record Storage, Inc., respectively, included in Iron Mountain
Incorporated's Form S-4/A filed with the Securities and Exchange Commission on
May 13, 1997, and to all references to our Firm included in this registration
statement.
Arthur Andersen LLP
Boston, Massachusetts
Minneapolis, Minnesota
January 5, 1998
EXHIBIT 23.9
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated January
16, 1996, for Nashville Vault Company, Ltd. included in Iron Mountain
Incorporated's Form S-4/A filed with the Securities and Exchange Commission on
May 13, 1997, and to all references to our Firm included in this registration
statement.
Geo S. Olive & Co. LLC
Indianapolis, Indiana
January 5, 1998
EXHIBIT 23.10
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Iron Mountain Incorporated on Form S-3 of our report dated July 19, 1996,
(except as to Note 11 which is as of September 1, 1996) on our audit of the
financial statements of International Record Storage and Retrieval Service, Inc.
as of and for the year ended December 31, 1995, included in Iron Mountain
Incorporated's Form S-4/A filed with the Securities Exchange Commission on May
13, 1997, and the reference in this registration statement to our Firm as
experts.
Rothstein, Kass & Company, P.C.
Roseland, New Jersey
January 5, 1998
EXHIBIT 23.11
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated March
4, 1997, (except for Note 11.a. and e. for which the date is March 19, 1997) for
Iron Mountain Incorporated included in Iron Mountain Incorporated's Form 10-K
filed with the Securities and Exchange Commission on March 28, 1997, and to all
references to our Firm included in this registration statement.
Arthur Andersen LLP
Boston, Massachusetts
January 5, 1998
