EXECUTION COPY
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IRON MOUNTAIN INCORPORATED
AND
THE BANK OF NEW YORK,
as Trustee
8 5/8% Senior Subordinated Notes due 2013
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 3, 2001
TO
SUBORDINATED INDENTURE
Dated as of April 3, 2001
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TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS.........................................................1
Section 1.1. Definitions.................................................1
ARTICLE 2. FORM AND TERMS OF THE NOTES........................................19
Section 2.1. Form and Dating............................................19
Section 2.2. Execution and Authentication...............................20
Section 2.3. Depository and Paying Agent for Notes......................20
Section 2.4. Transfer and Exchange of Notes.............................20
Section 2.5. Redemption.................................................22
Section 2.6. Covenants..................................................25
(a) Reports............................................................25
(b) Restricted Payments................................................25
(c) Incurrence of Indebtedness and Issuance of Preferred Stock.........28
(d) Liens..............................................................29
(e) Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.......................................................29
(f) Transactions with Affiliates.......................................31
(g) Certain Senior Subordinated Debt...................................32
(h) Additional Subsidiary Guarantees...................................32
(i) Designation of Unrestricted Subsidiaries...........................33
(j) Limitation on Sale and Leaseback Transactions......................34
(k) Asset Sales........................................................35
(l) Change of Control Offer............................................37
(m) Corporate Existence................................................38
Section 2.7. Mergers, Consolidations or Sale of Assets..................39
Section 2.8. Events of Default..........................................40
Section 2.9. Acceleration...............................................41
Section 2.10. Amendments and Waivers.....................................42
Section 2.11. Subsidiary Guarantees......................................45
Section 2.12. Legal Defeasance and Covenant Defeasance...................45
Section 2.13 Subordination..............................................45
ARTICLE 3. MISCELLANEOUS......................................................46
Section 3.1. Effect of Headings.........................................46
Section 3.2. Successors and Assigns.....................................46
Section 3.3. Separability Clause........................................47
Section 3.4. Governing Law..............................................47
Section 3.5 First Supplement to Supersede Indenture....................47
EXHIBITS
Exhibit A FORM OF NOTES
Exhibit B FORM OF SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of April 3, 2001 ("First
Supplemental Indenture"), is by and among IRON MOUNTAIN INCORPORATED, a
Pennsylvania corporation, having its principal office at 745 Atlantic Avenue,
Boston, Massachusetts 02111, the Guarantors signatory hereto and THE BANK OF NEW
YORK, a New York banking corporation, as trustee, having its principal corporate
trust office at 101 Barclay Street, 21st Floor, New York, NY 10286.
WITNESSETH:
WHEREAS, the Company and The Bank of New York, acting as trustee,
executed and delivered a Subordinated Indenture, dated as of April 3, 2001 (the
"Indenture"), to provide for the issuance by the Company from time to time of
Securities to be issued in one or more series as provided in the Indenture;
WHEREAS, the issuance and sale of up to $500,000,000 aggregate
principal amount of a series of the Company's Securities (the "Notes") have been
authorized by resolutions adopted by the Board of Directors of the Company on
March 6, 2001;
WHEREAS, the Company desires to issue and sell $225,000,000
aggregate principal amount of the Notes on the date hereof;
WHEREAS, the Company desires to enter into this First Supplemental
Indenture pursuant to Section 9.1(e) of the Indenture to supplement the
Indenture to establish the form and terms of the Notes; and
NOW, THEREFORE, for and in consideration of the premises stated
herein and the purchase of the Notes by the Holders thereof, the parties hereto
hereby enter into this First Supplemental Indenture, for the equal and
proportionate benefit of all Holders of Notes, as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions.
(a) All of the terms used in this First Supplemental Indenture which
are defined in the Indenture shall have the meanings specified in the Indenture,
unless otherwise defined herein (in which case they shall have the meanings
defined herein for the purposes of the Indenture as well as for the First
Supplemental Indenture) or unless the context otherwise requires, and for the
purposes of this First Supplemental Indenture, the following terms have the
meanings set forth in this Section:
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person, existing at the time such
other Person merged with or into or became a Subsidiary of
such specified Person, including Indebtedness incurred in
connection with, or in contemplation of, such other Person
merging with or into or becoming a Subsidiary of such
specified Person and
(2) Indebtedness encumbering any asset acquired by such specified
Person.
"Acquisition EBITDA" means, as of any date of determination, with
respect to an Acquisition EBITDA Entity, the sum of:
(1) EBITDA of such Acquisition EBITDA Entity for its last fiscal
quarter for which financial statements are available at such
date of determination (adjusted to give pro forma effect to
any acquisition or disposition of a business or Person by such
Acquisition EBITDA Entity consummated during the period
covered by, or after the date of, such quarterly financial
statements), multiplied by four (or if such quarterly
statements are not available, EBITDA for the most recent
fiscal year for which financial statements are available),
plus
(2) projected quantifiable improvements in operating results (on
an annualized basis) due to cost reductions calculated in good
faith by the Company or one of its Restricted Subsidiaries, as
certified by an Officers' Certificate filed with the Trustee,
without giving effect to any operating losses of the acquired
Person.
"Acquisition EBITDA Entity" means, as of any date of determination,
a business or Person:
(1) which has been acquired by the Company or one of its
Restricted Subsidiaries and with respect to which financial
results on a consolidated basis with the Company have not been
made available for an entire fiscal quarter or
(2) which is to be acquired in whole or in part with Indebtedness,
the incurrence of which will require the calculation on such
date of the Acquisition EBITDA of such Acquisition EBITDA
Entity for purposes of Section 4.8 of the Indenture.
"Additional Notes" means up to $275,000,000 aggregate
principal amount of the Company's 8 5/8% Senior Subordinated Notes due 2013
(other than the Initial Notes) issued under this First Supplemental Indenture in
accordance with Section 2.2 hereof as part of the same series as the Initial
Notes.
"Adjusted EBITDA" means, as of any date of determination and without
duplication, the sum of:
(1) EBITDA of the Company and its Restricted Subsidiaries for the
most recent fiscal quarter for which internal financial
statements are available at such date of determination,
multiplied by four and
(2) Acquisition EBITDA of each business or Person that is an
Acquisition EBITDA Entity as of such date of determination,
multiplied by a fraction, (i) the numerator of which is three
minus the number of months (and/or any portion thereof) in
such most recent fiscal quarter for which the financial
results of such Acquisition EBITDA Entity are included in the
EBITDA of the Company and its Restricted Subsidiaries under
clause (1) above, and (ii) the denominator of which is three.
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The effects of unusual items, including merger-related expenses permitted to be
shown as a separate line item on a statement of operations in accordance with
GAAP, or non-recurring items in respect of the Company, a Restricted Subsidiary
or an Acquisition EBITDA Entity occurring in any period shall be excluded in the
calculation of Adjusted EBITDA.
"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 purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"Agent Members" means members of, or participants in, the
Depository.
"Attributable Indebtedness" in respect of a Sale and Leaseback
Transaction means, as of the time of determination, the greater of:
(1) the fair market value of the property subject to such
arrangement (as determined by the Board of Directors of the
Company) and
(2) the present value (discounted at the rate of interest implicit
in such transaction) of the total obligations of the lessee
for rental payments during the remaining terms of the lease
included in such Sale and Leaseback Transaction (including any
period for which such lease has been extended).
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be so required to be capitalized on the balance sheet in
accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including,
without limitation, with respect to partnerships, partnership interests (whether
general or limited) and any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
"Cash Equivalents" means:
(1) securities with maturities of one year or less from the date
of acquisition, issued, fully guaranteed or insured by the
United States Government or any agency thereof;
(2) certificates of deposit, time deposits, overnight bank
deposits, bankers acceptances and repurchase agreements issued
by a Qualified Issuer having maturities of 270 days or less
from the date of acquisition;
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(3) commercial paper of an issuer rated at least A-2 by Standard &
Poor's Rating Group, a division of McGraw Hill, Inc., or P-2
by Moody's Investors Service, or carrying an equivalent rating
by a nationally recognized rating agency if both of the two
named rating agencies cease publishing ratings of investments
and having maturities of 270 days or less from the date of
acquisition;
(4) money market accounts or funds with or issued by Qualified
Issuers; and
(5) Investments in money market funds substantially all of the
assets of which are comprised of securities and other
obligations of the types described in clauses (1) through (3)
above.
"Change of Control" means the occurrence of any of the following
events:
(1) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than the Principal
Stockholders (or any of them), is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, of more than a majority of the
voting power of all classes of Voting Stock of the Company;
(2) the Company consolidates with, or merges with or into, another
Person or conveys, transfers, leases or otherwise disposes of
all or substantially all of its assets to any Person, or any
Person consolidates with, or merges with or into, the Company,
in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than
any such transaction where (i) the outstanding Voting Stock of
the Company is not converted or exchanged at all (except to
the extent necessary to reflect a change in the jurisdiction
of incorporation) or is converted into or exchanged for (A)
Voting Stock (other than Disqualified Stock) of the surviving
or transferee Person or (B) cash, securities and other
property (other than Capital Stock described in the foregoing
clause (A)) of the surviving or transferee Person in an amount
that could be paid as a Restricted Payment pursuant to Section
2.6(b) of this First Supplemental Indenture (Section 4.7 of
the Indenture) and (ii) immediately after such transaction, no
"person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than the Principal
Stockholders (or any of them), is the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than a majority of the total
outstanding Voting Stock of the surviving or transferee
Person;
(3) during any consecutive two-year period, individuals who at the
beginning of such period constituted the Board of Directors
(together with any new directors whose election to such Board
of Directors, or whose nomination for election by the
stockholders of the Company, was approved by a vote of 66 2/3%
of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved)
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cease for any reason to constitute a majority of the Board of
Directors then in office; or
(4) the Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution other than in a transaction which
complies with Section 2.7 of the First Supplemental Indenture
(Section 5.1 of the Indenture).
"Consolidated Adjusted Net Income" means, for any period, the net
income (or net loss) of the Company and its Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP, adjusted
to the extent included in calculating such net income or loss by excluding:
(1) any net after-tax extraordinary gains or losses (less all fees
and expenses relating thereto);
(2) any net after-tax gains or losses (less all fees and expenses
relating thereto) attributable to Asset Sales;
(3) the portion of net income (or loss) of any Person (other than
the Company or a Restricted Subsidiary), including
Unrestricted Subsidiaries, in which the Company or any
Restricted Subsidiary has an ownership interest, except to the
extent of the amount of dividends or other distributions
actually paid to the Company or any Restricted Subsidiary in
cash dividends or distributions by such Person during such
period; and
(4) the net income (or loss) of any Person combined with the
Company or any Restricted Subsidiary on a "pooling of
interests" basis attributable to any period prior to the date
of combination.
"Consolidated Income Tax Expense" means, for any period, the
provision for federal, state, local and foreign income taxes of the Company and
its Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of:
(1) the amount which, in conformity with GAAP, would be set forth
opposite the caption "interest expense" (or any like caption)
on a consolidated statement of operations of the Company and
its Restricted Subsidiaries for such period, including,
without limitation:
(i) amortization of debt discount;
(ii) the net cost of interest rate contracts (including
amortization of discounts);
(iii) the interest portion of any deferred payment obligation;
(iv) amortization of debt issuance costs; and
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(v) the interest component of Capital Lease Obligations of
the Company and its Restricted Subsidiaries; plus
(2) all interest on any Indebtedness of any other Person
guaranteed and paid by the Company or any of its Restricted
Subsidiaries;
provided, however, that Consolidated Interest Expense will not include any gain
or loss from extinguishment of debt, including write-off of debt issuance costs.
"Consolidated Non-Cash Charges" means, for any period, the aggregate
depreciation, amortization and other non-cash expenses of the Company and its
Restricted Subsidiaries (including without limitation any minority interest)
reducing Consolidated Adjusted Net Income for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such non-cash charge
to the extent that it requires an accrual of or reserve for cash charges for any
future period).
"Credit Agent" means The Chase Manhattan Bank, in its capacity as
administrative agent for the lenders party to the Credit Agreement, and The
Chase Manhattan Bank Canada, in its capacity as Canadian administrative agent
for the lenders party to the Credit Agreement, or any successor or successors
party thereto.
"Credit Agreement" means that certain Fourth Amended and Restated
Credit Agreement dated as of August 14, 2000, as amended, among the Company, IM
Canada, the lenders party thereto and the Credit Agent, as further amended,
restated, supplemented, modified, renewed, refunded, increased, extended,
replaced or refinanced from time to time.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Notes" means Notes that are in the form of the Notes
attached hereto as Exhibit A, that do not include the information called for by
Section 2.15 of the Indenture.
"Designated Senior Debt" means:
(1) Senior Bank Debt and
(2) other Senior Debt the principal amount of which is $50.0
million or more at the date of designation by the Company in a
written instrument delivered to the Trustee.
Senior Debt designated as Designated Senior Debt pursuant to clause (2) shall
cease to be Designated Senior Debt at any time that the aggregate principal
amount thereof outstanding is $10.0 million or less.
"Disqualified Stock" means any Capital Stock which, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, for cash or other property (other than Capital Stock that is not
Disqualified Stock) pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the Holder thereof, in whole or in part, in each
case on or prior to the stated maturity of the Notes.
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"Dollars" and "$" mean lawful money of the United States of America.
"EBITDA" means for any period Consolidated Adjusted Net Income for
such period increased by:
(1) Consolidated Interest Expense for such period; plus
(2) Consolidated Income Tax Expense for such period; plus
(3) Consolidated Non-Cash Charges for such period.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Proceeds" means:
(1) with respect to Equity Interests (or debt securities converted
into Equity Interests) issued or sold for cash Dollars, the
aggregate amount of such cash Dollars and
(2) with respect to Equity Interests (or debt securities converted
into Equity Interests) issued or sold for any consideration
other than cash Dollars, the aggregate Market Price thereof
computed on the date of the issuance or sale thereof.
"Excluded Restricted Subsidiary" means any Restricted Subsidiary
organized under the laws of a jurisdiction other than the United States (as
defined in Regulation S under the Securities Act) and that has not delivered a
Subsidiary Guarantee.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than under the Credit Agreement) in existence on the date of
the Indenture, until such amounts are repaid.
"Global Note" means a permanent global Note that contains the
paragraph referred to in Section 2.15 of the Indenture and the additional
Schedule of Exchanges of Notes to the form of the Note attached hereto as
Exhibit A, and that is deposited with and registered in the name of the
Depository.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States of America is
pledged.
"Guarantee" means, as applied to any obligation:
(1) a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of
business), direct or indirect, in any manner, of any part or
all of such obligation; and
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(2) an agreement, direct or indirect, contingent or otherwise, the
practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation,
including, without limiting the foregoing, the obligation to
reimburse amounts drawn down under letters of credit securing
such obligations.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under:
(1) interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements and
(2) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates.
"IM Canada" means Iron Mountain Canada Corporation, a Wholly Owned
Subsidiary of the Company, formerly known as Pierce Leahy Canada Company.
"Indebtedness" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person,
and whether or not contingent:
(1) every obligation of such Person for money borrowed;
(2) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person;
(4) every obligation of such Person issued or assumed as the
deferred purchase price of property or services;
(5) every Capital Lease Obligation and every obligation of such
Person in respect of Sale and Leaseback Transactions that
would be required to be capitalized on the balance sheet in
accordance with GAAP;
(6) all Disqualified Stock of such Person valued at the greater of
its voluntary or involuntary maximum fixed repurchase price,
plus accrued and unpaid dividends (unless included in such
maximum repurchase price);
(7) all obligations of such Person under or with respect to
Hedging Obligations which would be required to be reflected on
the balance sheet as a liability of such Person in accordance
with GAAP; and
(8) every obligation of the type referred to in clauses (1)
through (7) of another Person and dividends of another Person
the payment of which, in either case, such Person has
guaranteed.
8
For purposes of this definition, the "maximum fixed repurchase
price" of any Disqualified Stock that does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Stock as
if such Disqualified Stock were repurchased on any date on which Indebtedness is
required to be determined pursuant to the First Supplemental Indenture, and if
such price is based upon, or measured by, the fair market value of such
Disqualified Stock, such fair market value shall be determined in good faith by
the board of directors of the issuer of such Disqualified Stock. Notwithstanding
the foregoing, trade accounts payable and accrued liabilities arising in the
ordinary course of business and any liability for federal, state or local taxes
or other taxes owed by such Person shall not be considered Indebtedness for
purposes of this definition. The amount outstanding at any time of any
Indebtedness issued with original issue discount is the aggregate principal
amount at maturity of such Indebtedness, less the remaining unamortized portion
of the original issue discount of such Indebtedness at such time, as determined
in accordance with GAAP.
"Initial Notes" means the first $225,000,000 aggregate principal
amount of 8 5/8% Senior Subordinated Notes due 2013 that are issued under the
First Supplemental Indenture, as amended or supplemented from time to time
pursuant to the Indenture.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of loans
(including Guarantees), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP.
"Leverage Ratio" means, at any date, the ratio of:
(1) the aggregate principal amount of Indebtedness of the Company
and its Restricted Subsidiaries outstanding as of the most
recent available quarterly or annual balance sheet, to
(2) Adjusted EBITDA, after giving pro forma effect, without
duplication, to
(i) the incurrence, repayment or retirement of any
Indebtedness by the Company or its Restricted
Subsidiaries since the last day of the most recent full
fiscal quarter of the Company;
(ii) if the Leverage Ratio is being determined in connection
with the incurrence of Indebtedness by the Company or a
Restricted Subsidiary, such Indebtedness; and
(iii) the Indebtedness to be incurred in connection with the
acquisition of any Acquisition EBITDA Entity.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any
9
filing of or agreement to give any financing statement under the Uniform
Commercial Code, or equivalent statutes, of any jurisdiction).
"Make-Whole Amount" means, with respect to any Note, an amount equal
to the excess, if any, of:
(1) the present value of the remaining principal, premium and
interest payments that would be payable with respect to such
Note if such Note were redeemed on April 1, 2006, computed
using a discount rate equal to the Treasury Rate plus 75 basis
points over
(2) the outstanding principal amount of such Note.
"Make-Whole Average Life" means, with respect to any date of
redemption of Notes, the number of years (calculated to the nearest one-twelfth)
from such redemption date to April 1, 2006.
"Make-Whole Price" means, with respect to any Note, the greater of:
(1) the sum of the principal amount of and Make-Whole Amount with
respect to such Note and
(2) the redemption price of such Note on April 1, 2006.
"Market Price" means:
(1) with respect to the calculation of Equity Proceeds from the
issuance or sale of debt securities which have been converted
into Equity Interests, the value received upon the original
issuance or sale of such converted debt securities, as
determined reasonably and in good faith by the Board of
Directors and
(2) with respect to the calculation of Equity Proceeds from the
issuance or sale of Equity Interests, the average of the daily
closing prices for such Equity Interests for the 20
consecutive trading days preceding the date of such
computation.
The closing price for each day shall be:
(1) if such Equity Interests are then listed or admitted to
trading on the New York Stock Exchange, the closing price on
the NYSE Consolidated Tape (or any successor consolidated tape
reporting transactions on the New York Stock Exchange) or, if
such composite tape shall not be in use or shall not report
transactions in such Equity Interests, or if such Equity
Interests shall be listed on a stock exchange other than the
New York Stock Exchange (including for this purpose the Nasdaq
National Market), the last reported sale price regular way for
such day, or in case no such reported sale takes place on such
day, the average of the closing bid and asked prices regular
way for such day, in each case on the principal national
securities exchange on which such Equity Interests are listed
or admitted to trading (which shall be the national securities
exchange on which the
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greatest number of such Equity Interests have been traded
during such 20 consecutive trading days); or
(2) if such Equity Interests are not listed or admitted to trading
on any such exchange, the average of the closing bid and asked
prices thereof in the over-the-counter market as reported by
the National Association of Securities Dealers Automated
Quotation System or any successor system, or if not included
therein, the average of the closing bid and asked prices
thereof furnished by two members of the National Association
of Securities Dealers selected reasonably and in good faith by
the Board of Directors for that purpose. In the absence of one
or more such quotations, the Market Price for such Equity
Interests shall be determined reasonably and in good faith by
the Board of Directors.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale,
which amount is equal to the excess, if any, of:
(1) the cash received by the Company or such Restricted Subsidiary
(including any cash payments received by way of deferred
payment pursuant to, or monetization of, a note or installment
receivable or otherwise, but only as and when received) in
connection with such disposition, over
(2) the sum of:
(i) the amount of any Indebtedness which is secured by such
asset and which is required to be repaid in connection
with the disposition thereof; plus
(ii) the reasonable out-of-pocket expenses incurred by the
Company or such Restricted Subsidiary, as the case may
be, in connection with such disposition or in connection
with the transfer of such amount from such Restricted
Subsidiary to the Company; plus
(iii) provisions for taxes, including income taxes,
attributable to the disposition of such asset or
attributable to required prepayments or repayments of
Indebtedness with the proceeds thereof; plus
(iv) if the Company does not first receive a transfer of such
amount from the relevant Restricted Subsidiary with
respect to the disposition of an asset by such
Restricted Subsidiary and such Restricted Subsidiary
intends to make such transfer as soon as practicable,
the out-of-pocket expenses and taxes that the Company
reasonably estimates will be incurred by the Company or
such Restricted Subsidiary in connection with such
transfer at the time such transfer is expected to be
received by the Company (including, without limitation,
withholding taxes on the remittance of such amount).
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"Notes" has the meaning assigned to it in the preamble to this First
Supplemental Indenture. The Initial Notes and any Additional Notes shall be
treated as a single class for all purposes under this First Supplemental
Indenture and the Indenture.
"Obligations" means any principal, interest (including post-petition
interest, whether or not allowed as a claim in any proceeding), penalties, fees,
costs, expenses, indemnifications, reimbursements, damages and other liabilities
payable under or in connection with any Indebtedness.
"Officers' Certificate" means a certificate signed, unless otherwise
specified, by any two of the Chairman of the Board, a Vice Chairman of the
Board, the President, the Chief Financial Officer, the Controller, or an
Executive Vice President of the Company, and delivered to the Trustee.
"Permitted Investments" means:
(1) any Investments in the Company or in a Restricted Subsidiary
(other than an Excluded Restricted Subsidiary) of the Company,
including without limitation the Guarantee of Indebtedness
permitted under Section 2.6(c) of the First Supplemental
Indenture (Section 4.8 of the Indenture);
(2) any Investments in Cash Equivalents;
(3) Investments by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment;
(i) such Person becomes a Restricted Subsidiary (other than
an Excluded Restricted Subsidiary) of the Company or
(ii) such Person is merged, consolidated or amalgamated with
or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Company or a
Restricted Subsidiary (other than an Excluded Restricted
Subsidiary) of the Company;
(4) Investments in assets (including accounts and notes
receivable) owned or used in the ordinary course of business;
(5) Investments for any purpose related to the Company's records
and information management business (including, without
limitation, the Company's confidential destruction and
fulfillment businesses) in an aggregate outstanding amount not
to exceed $10.0 million; and
(6) Investments by the Company or a Restricted Subsidiary (other
than an Excluded Restricted Subsidiary) in one or more
Excluded Restricted Subsidiaries, the aggregate outstanding
amount of which does not exceed 10% of the consolidated assets
of the Company and its Restricted Subsidiaries.
"Permitted Liens" means:
(1) Liens existing as of the date hereof;
12
(2) Liens on property or assets of the Company or any Restricted
Subsidiary securing Senior Debt;
(3) Liens on any property or assets of a Restricted Subsidiary
granted in favor of the Company or any Wholly Owned Restricted
Subsidiary;
(4) Liens securing the Notes or the Guarantees;
(5) any interest or title of a lessor under any Capital Lease
Obligation or Sale and Leaseback Transaction so long as the
Indebtedness, if any, secured by such Lien does not exceed the
principal amount of Indebtedness permitted under Section
2.6(c) of the First Supplemental Indenture (Section 4.8 of the
Indenture);
(6) Liens securing Acquired Debt created prior to (and not in
connection with or in contemplation of) the incurrence of such
Indebtedness by the Company or any Restricted Subsidiary;
provided that such Lien does not extend to any property or
assets of the Company or any Restricted Subsidiary other than
the assets acquired in connection with the incurrence of such
Acquired Debt;
(7) Liens securing Hedging Obligations permitted to be incurred
pursuant to clause (7) of Section 2.6(c) of the First
Supplemental Indenture (clause (7) of Section 4.8 of the
Indenture);
(8) Liens arising from purchase money mortgages and purchase money
security interests, or in respect of the construction of
property or assets, incurred in the ordinary course of the
business of the Company or a Restricted Subsidiary; provided
that (i) the related Indebtedness is not secured by any
property or assets of the Company or any Restricted Subsidiary
other than the property and assets so acquired or constructed
and (ii) the Lien securing such Indebtedness is created within
60 days of such acquisition or construction;
(9) statutory Liens or landlords' and carriers', warehousemen's,
mechanics', suppliers', materialmen's, repairmen's or other
like Liens arising in the ordinary course of business and with
respect to amounts not yet delinquent or being contested in
good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any, as is then required in
conformity with GAAP shall have been made therefor;
(10) Liens for taxes, assessments, government charges or claims
with respect to amounts not yet delinquent or that are being
contested in good faith by appropriate proceedings diligently
conducted, if a reserve or other appropriate provision, if
any, as is required in conformity with GAAP has been made
therefor;
(11) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and
appeal bonds, government contracts, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business (other than contracts for the payment of
money);
13
(12) easements, rights-of-way, restrictions and other similar
charges or encumbrances not interfering in any material
respect with the business of the Company or any Restricted
Subsidiary incurred in the ordinary course of business;
(13) Liens arising by reason of any judgment, decree or order of
any court so long as such Lien is adequately bonded and any
appropriate legal proceedings that may have been duly
initiated for the review of such judgment, decree or order
shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have
expired;
(14) Liens arising under options or agreements to sell assets;
(15) other Liens securing obligations incurred in the ordinary
course of business, which obligations do not exceed $10.0
million in the aggregate at any one time outstanding; and
(16) any extension, renewal or replacement, in whole or in part, of
any Lien described in the foregoing clauses (1) through (15);
provided that any such extension, renewal or replacement shall
not extend to any additional property or assets.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal Stockholders" means each of Vincent J. Ryan, Schooner
Capital LLC, C. Richard Reese, Kent P. Dauten, B. Thomas Golisano and their
respective Affiliates.
"Qualified Equity Offering" means an offering of Capital Stock,
other than Disqualified Stock, of the Company for Dollars, whether registered or
exempt from registration under the Securities Act.
"Qualified Issuer" means:
(1) any lender party to the Credit Agreement or
(2) any commercial bank:
(i) which has capital and surplus in excess of $500,000,000
and
(ii) the outstanding short-term debt securities of which are
rated at least A-2 by Standard & Poor's Rating Group, a
division of McGraw-Hill, Inc. or at least P-2 by Moody's
Investors Service, or carry an equivalent rating by a
nationally recognized rating agency if both of the two
named rating agencies cease publishing ratings of
investments.
"Qualifying Sale and Leaseback Transaction" means any Sale and
Leaseback Transaction between the Company or any of its Restricted Subsidiaries
and any bank, insurance company or other lender or investor providing for the
leasing to the Company or such Restricted Subsidiary of any
14
property (real or personal) which has been or is to be sold or transferred by
the Company or such Restricted Subsidiary to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
and where the property in question has been constructed or acquired after the
date of the First Supplemental Indenture.
"Refinancing Indebtedness" means new Indebtedness incurred or given
in exchange for, or the proceeds of which are used to repay, redeem, defease,
extend, refinance, renew, replace or refund, other Indebtedness; provided,
however, that:
(1) the principal amount of such new Indebtedness shall not exceed
the principal amount of Indebtedness so repaid, redeemed,
defeased, extended, refinanced, renewed, replaced or refunded
(plus the amount of fees, premiums, consent fees, prepayment
penalties and expenses incurred in connection therewith);
(2) such Refinancing Indebtedness shall have a Weighted Average
Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of the Indebtedness so repaid, redeemed,
defeased, extended, refinanced, renewed, replaced or refunded
or shall mature after the maturity date of the Notes;
(3) to the extent such Refinancing Indebtedness refinances
Indebtedness that has a final maturity date occurring after
the initial scheduled maturity date of the Notes, such new
Indebtedness shall have a final scheduled maturity not earlier
than the final scheduled maturity of the Indebtedness so
repaid, redeemed, defeased, extended, refinanced, renewed,
replaced or refunded and shall not permit redemption at the
option of the holder earlier than the earliest date of
redemption at the option of the holder of the Indebtedness so
repaid, redeemed, defeased, extended, refinanced, renewed,
replaced or refunded;
(4) to the extent such Refinancing Indebtedness refinances
Indebtedness subordinate to the Notes, such Refinancing
Indebtedness shall be subordinated in right of payment to the
Notes and to the extent such Refinancing Indebtedness
refinances Notes or Indebtedness pari passu with the Notes,
such Refinancing Indebtedness shall be pari passu with or
subordinated in right of payment to the Notes, in each case on
terms at least as favorable to the holders of Notes as those
contained in the documentation governing the Indebtedness so
repaid, redeemed, defeased, extended, refinanced, renewed,
replaced or refunded; and
(5) with respect to Refinancing Indebtedness incurred by a
Restricted Subsidiary, such Refinancing Indebtedness shall
rank no more senior, and shall be at least as subordinated, in
right of payment to the Subsidiary Guarantee of such
Restricted Subsidiary as the Indebtedness being extended,
refinanced, renewed, replaced or refunded.
15
"Restricted Subsidiary" means:
(1) each direct or indirect Subsidiary of the Company existing on
the date of the First Supplemental Indenture (other than Iron
Mountain (Netherlands) B.V. and its subsidiaries (including
Iron Mountain Europe Limited), Iron Mountain Cayman Ltd. and
its subsidiaries, Iron Mountain Mexico, S.A. de R.L. de C.V.,
PLRH Inc. and Upper Providence Venture I, L.P.) and
(2) any other direct or indirect Subsidiary of the Company formed,
acquired or existing after the date of the First Supplemental
Indenture (including an Excluded Restricted Subsidiary),
which, in the case of (1) or (2), is not designated by the Board of Directors as
an "Unrestricted Subsidiary."
"Sale and Leaseback Transaction" means any transaction or series of
related transactions pursuant to which a Person sells or transfers any property
or asset in connection with the leasing, or the resale against installment
payments, of such property or asset to the seller or transferor.
"Senior Bank Debt" means all Obligations outstanding under or in
connection with the Credit Agreement (including Guarantees of such Obligations
by Subsidiaries of the Company).
"Senior Debt" means:
(1) the Senior Bank Debt and
(2) any other Indebtedness permitted to be incurred by the Company
or any Restricted Subsidiary, as the case may be, under the
terms of the First Supplemental Indenture or the Indenture,
unless the instrument under which such Indebtedness is
incurred expressly provides that it is:
(i) on a parity with or subordinated in right of payment to
the Notes or
(ii) subordinated to Senior Debt on terms substantially
similar to those of the Notes.
Notwithstanding anything to the contrary in the foregoing, Senior
Debt shall not include:
(1) any liability for federal, state, local or other taxes owed or
owing by the Company;
(2) any Indebtedness of the Company to any of its Subsidiaries or
other Affiliates;
(3) any trade payables; or
(4) any Indebtedness that is incurred in violation of the First
Supplemental Indenture or the Indenture, provided that such
Indebtedness shall be deemed not to have been incurred in
violation of the First Supplemental Indenture or the Indenture
for purposes of this clause (4) if, in the case of any
obligations under the Credit
16
Agreement, the holders of such obligations or their agent or
representative shall have received a representation from the
Company to the effect that the incurrence of such Indebtedness
does not violate the provisions of the First Supplemental
Indenture or the Indenture.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof.
"Treasury Rate" means, at any time of computation, the yield to
maturity at such time (as compiled by and published in the most recent Federal
Reserve Statistical Release H.15(519), which has become publicly available at
least two business days prior to the date of the redemption notice or, if such
Statistical Release is no longer published, any publicly available source of
similar market data) of United States Treasury securities with a constant
maturity most nearly equal to the Make-Whole Average Life; provided, however,
that if the Make-Whole Average Life is not equal to the constant maturity of the
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the
Make-Whole Average Life is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
"Unrestricted Subsidiary" means:
(1) any Subsidiary that is designated by the Board of Directors as
an Unrestricted Subsidiary in accordance with Section 2.6(i)
of the First Supplemental Indenture (Section 4.14 of the
Indenture) and
(2) any Subsidiary of an Unrestricted Subsidiary.
As of the date hereof, the following Subsidiaries of the Company have been
designated as Unrestricted Subsidiaries: Iron Mountain (Netherlands) B.V. and
its subsidiaries (including Iron Mountain Europe Limited), Iron Mountain Cayman
Ltd. and its subsidiaries, Iron Mountain Mexico, S.A. de R.L. de C.V., PLRH Inc.
and Upper Providence Venture I, L.P.
"Voting Stock" means any class or classes of Capital Stock pursuant
to which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
17
(1) the sum of the products obtained by multiplying (x) the amount
of each then remaining installment, sinking fund, serial
maturity or other required payment of principal, including
payment at final maturity, in respect thereof, by (y) the
number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment,
by
(2) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
of the Company all of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares) shall at the time be owned by
the Company or by one or more Wholly Owned Restricted Subsidiaries of the
Company.
"1996 Indenture Date" means October 1, 1996.
"1999 Indenture Date" means April 26, 1999.
"8 1/8% Notes" means IM Canada's 8 1/8% Senior Notes due 2008 issued
pursuant to the Indenture dated as of April 7, 1998, by and among IM Canada, as
issuer, the Company and The Bank of New York, as trustee. The 8 1/8% Notes have
been guaranteed by the Company and certain of its Subsidiaries (including,
without limitation, the Guarantors) on a senior subordinated basis.
"8 1/4% Notes" means the Company's 8 1/4% Senior Subordinated Notes
due 2011 issued pursuant to the Indenture dated April 26, 1999, by and among the
Company, certain of its subsidiaries and The Bank of New York, as trustee.
"8 3/4% Notes" means the Company's 8 3/4% Senior Subordinated Notes
due 2009 issued pursuant to the Indenture dated October 24, 1997, by and among
the Company, certain of its subsidiaries and The Bank of New York, as trustee.
"9 1/8% Notes" means the Company's 9 1/8% Senior Subordinated Notes
due 2007, issued pursuant to the Indenture dated as of July 7, 1997, by and
between the Company, as issuer, and The Bank of New York, as trustee.
"10 1/8% Notes" means the Company's 10 1/8% Senior Subordinated
Notes due 2006 issued pursuant to the Indenture dated October 1, 1996, by and
among the Company, certain of its subsidiaries and First Bank National
Association, as trustee.
"11 1/8% Notes" means the Company's 11 1/8% Senior Subordinated
Notes due 2006 issued pursuant to the Indenture dated as of July 15, 1996,
between the Company, as issuer, and United States Trust Company of New York, as
trustee.
(b) Other Definitions.
The definitions of the following terms may be found in the Sections
indicated as follows:
Term Defined in Section
"Affiliate Transaction" 2.6(f)
18
"Asset Sale" 2.6(k)
"Asset Sale Offer" 2.6(k)
"Bankruptcy Law" 2.8
"Change of Control Offer" 2.6(l)
"Change of Control Payment" 2.6(l)
"Change of Control Payment Date" 2.6(l)
"Commencement Date" 2.6(k)
"Custodian" 2.8
"DTC" 2.3
"Event of Default" 6.1
"Excess Proceeds" 2.6(k)
"First Supplemental Indenture" Preamble
"incur" 2.6(c)
"Indenture" Preamble
"Restricted Payments" 2.6(b)
ARTICLE 2.
FORM AND TERMS OF THE NOTES
Section 2.1. Form and Dating.(a) General. The Notes and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
attached hereto. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of the First Supplemental Indenture and
the Indenture and the Company, the Guarantors and the Trustee, by their
execution and delivery of the First Supplemental Indenture and the Indenture (or
in the case of any Guarantor that becomes such after the date hereof, a
supplemental indenture pursuant to Section 2.6(h) of this First Supplemental
Indenture (Section 4.13 of the Indenture)), expressly agree to such terms and
provisions and to be bound thereby.
(b) Global Notes. Notes shall be issued initially in the form of the
Global Notes, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Depository at its New York office, and registered
in the name of the Depository or a nominee of the Depository, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depository or its nominee as hereinafter provided.
The Global Notes shall represent such of the outstanding Notes as
shall be specified therein and shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of the Global Notes to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Service Agent, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.4 of this First Supplemental Indenture.
19
Except as set forth in Section 2.4 of this First Supplemental
Indenture, the Global Notes may be transferred, in whole and not in part, only
to another nominee of the Depository or to a successor of the Depository or its
nominee.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to
the Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(c), authenticate and deliver the Global Notes that (i) shall be
registered in the name of the Depository or the nominee of the Depository and
(ii) shall be delivered by the Trustee to the Depository or pursuant to the
Depository's instructions or held by the Service Agent.
Agent Members shall have no rights either under the First
Supplemental Indenture or the Indenture with respect to any Global Notes held on
their behalf by the Depository or by the Service Agent or under such Global
Notes, and the Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global Notes
for all purposes whatsoever.
(d) Definitive Notes. Notes issued in certificated form shall be
substantially in the form of Exhibit A attached hereto (but without including
the text referred to in Section 2.15.3 of the Indenture). Except as provided in
Section 2.4, owners of beneficial interests in the Global Notes will not be
entitled to receive physical delivery of certificated Securities.
Section 2.2. Execution and Authentication.
The Trustee shall, upon a written order of the Company signed by an
Officer, authenticate up to $225,000,000 aggregate principal amount of Initial
Notes and up to $275,000,000 of Additional Notes.
Section 2.3. Depository and Paying Agent for Notes.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depository with respect to the Global Notes. The Company initially
appoints the Trustee to act as the Registrar, Paying Agent and Service Agent
with respect to the Global Notes.
Section 2.4. Transfer and Exchange of Notes.
(a) Transfer and Exchange of Beneficial Interests in Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depository, in accordance with the First Supplemental
Indenture and the Indenture and the procedures of the Depository therefor.
Beneficial interests in the Global Notes may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the Global Notes.
(b) Transfer and Exchange of Definitive Notes. When Definitive Notes
are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Definitive Notes; or
20
(y) to exchange such Definitive Notes for an equal principal
amount of Definitive Notes of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Definitive Notes presented or surrendered for register of transfer or exchange
shall be duly endorsed or accompanied by a written instruction of transfer in
form satisfactory to the Registrar duly executed by such Holder or by his
attorney, duly authorized in writing.
(c) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of the First Supplemental Indenture or the
Indenture (other than the provisions set forth in subsection (d) of this Section
2.4), the Global Notes may not be transferred as a whole except by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository.
(d) Authentication of Definitive Notes in Absence of Depository. If
at any time:
(i) the Depository for the Notes notifies the Company that
the Depository is unwilling or unable to continue as
Depository for the Global Notes and a successor
Depository for the Global Notes is not appointed by the
Company within 90 days after delivery of such notice; or
(ii) the Company at its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of
Definitive Notes under the First Supplemental Indenture
and the Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.2 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(e) Cancellation and/or Adjustment of the Global Notes. At such time
as all beneficial interests in the Global Notes have been exchanged for
Definitive Notes, redeemed, repurchased or canceled, the Global Notes shall be
returned to or retained and canceled by the Trustee in accordance with Section
2.12 of the Indenture. At any time prior to such cancellation, if any beneficial
interest in the Global Notes is exchanged for Definitive Notes, redeemed,
repurchased or canceled, the aggregate principal amount of Notes represented by
the Global Notes shall be reduced accordingly and an endorsement shall be made
on the Global Notes, by the Trustee or the Service Agent, at the direction of
the Trustee, to reflect such reduction. A Definitive Note may be exchanged for a
beneficial interest in the Global Note only upon receipt by the Trustee of a
Definitive Note, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Trustee, together with written
instructions directing the Trustee to make an endorsement on the Global Note to
reflect an increase in the aggregate principal amount of the Notes represented
by the Global Note; in which case the Trustee shall cancel such Definitive Note
and cause the aggregate principal amount of Notes represented by the Global Note
to be increased accordingly. If no Global Note is then outstanding, the Company
shall issue and the Trustee shall authenticate a new Global Note in the
appropriate principal amount.
(f) General Provisions Relating to Transfers and Exchanges.
21
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
Definitive Notes and the Global Notes at the Registrar's
request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or
transfer pursuant to Section 2.4 of this First
Supplemental Indenture).
(iii) All Definitive Notes and the Global Notes issued upon
any registration of transfer or exchange of Definitive
Notes or the Global Notes shall be the valid obligations
of the Company, evidencing the same debt, and entitled
to the same benefits under the First Supplemental
Indenture and the Indenture, as the Definitive Notes or
the Global Notes surrendered upon such registration of
transfer or exchange.
(iv) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent, the
Company and any Guarantor may deem and treat the Person
in whose name any Note is registered as the absolute
owner of such Note for all purposes, including receiving
payment of principal of and interest on such Notes, and
neither the Trustee, any Agent, the Company nor any
Guarantor shall be affected by notice to the contrary.
(v) The Trustee shall authenticate Definitive Notes and the
Global Notes in accordance with the provisions of
Section 2.2 of the First Supplemental Indenture and
Section 2.3 of the Indenture.
Section 2.5. Redemption.
With respect to the Notes issued under this First Supplemental
Indenture, the following Sections supplement Article III of the Indenture:
Section 3.7. Optional Redemption.
Prior to April 1, 2006, the Notes shall be subject to redemption at
any time at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 days' notice, at the Make-Whole Price, plus accrued and
unpaid interest, to but excluding the applicable redemption date. On and after
April 1, 2006, the Notes will be subject to redemption at any time at the option
of the Company, in whole or in part, upon not less than 30 nor more than 60
days' notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest, to but excluding the
applicable redemption date, if redeemed during the twelve-month period beginning
on April 1 of the years indicated below:
Year Percentage
---- ----------
2006................................................ 104.313%
22
2007................................................ 102.875%
2008................................................ 101.438%
2009 and thereafter................................. 100.000%
Notwithstanding the foregoing, at any time prior to April 1, 2004,
the Company may redeem up to 35% of the initial principal amount of the Notes
originally issued with the net proceeds of one or more Qualified Equity
Offerings at a redemption price equal to 108.625% of the principal amount of
such Notes, plus accrued and unpaid interest to but excluding the redemption
date; provided, that at least 65% of the principal amount of Notes originally
issued remains outstanding immediately after the occurrence of any such
redemption and that such redemption occurs within 60 days following the closing
of any such Qualified Equity Offering.
Section 3.8. Mandatory Redemption.
The Company shall not be required to make mandatory redemption
payments or sinking fund payments with respect to the Notes.
Section 3.9. Asset Sale Offers.
In the event that the Company shall commence an Asset Sale Offer
pursuant to Section 4.16 hereof, it shall follow the procedures specified below:
The Asset Sale Offer shall remain open for 20 Business Days after
the Commencement Date relating to such Asset Sale Offer, except to the extent
required to be extended by applicable law (as so extended, the "Offer Period").
No later than one Business Day after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount (the "Offer
Amount") of Notes required to be purchased in such Asset Sale Offer pursuant to
Sections 3.2 and 4.16 hereof or, if less than the Offer Amount has been
tendered, all Notes tendered in response to the Asset Sale Offer.
If the Purchase Date is on or after an interest payment record date
and on or before the related interest payment date, any interest accrued to such
Purchase Date shall be paid to the Person in whose name a Note is registered at
the close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
On the Commencement Date of any Asset Sale Offer, the Company shall
send or cause to be sent, by first class mail, a notice to each of the Holders,
with a copy to the Trustee. Such notice, which shall govern the terms of the
Asset Sale Offer, shall contain all instructions and materials necessary to
enable the Holders to tender Notes pursuant to the Asset Sale Offer and shall
state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 3.9 and Section 4.16 hereof and the length of time the
Asset Sale Offer shall remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment shall
continue to accrue interest;
23
(4) that, unless the Company defaults in the payment of the
purchase price, any Note accepted for payment pursuant to the
Asset Sale Offer shall cease to accrue interest after the
Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Company, a depositary,
if appointed by the Company, or a Paying Agent at the address
specified in the notice prior to the close of business on the
Business Day preceding the Purchase Date;
(6) that Holders shall be entitled to withdraw their election if
the Company, depositary or Paying Agent, as the case may be,
receives, not later than the close of business on the Business
Day preceding the termination of the Offer Period, a facsimile
transmission or letter setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for
purchase and a statement that such Holder is withdrawing such
Holder's election to have the Note purchased;
(7) that, if the aggregate principal amount of Notes surrendered
by Holders exceeds the Offer Amount, the Trustee shall select
the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased); and
(8) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.
On or before 12:00 noon on each Purchase Date, the Company shall
irrevocably deposit with the Trustee or Paying Agent in immediately available
funds the aggregate purchase price with respect to a principal amount of Notes
equal to the Offer Amount, together with accrued interest thereon, to be held
for payment in accordance with the terms of this Section 3.9. On the Purchase
Date, the Company shall, to the extent lawful, (i) accept for payment, on a pro
rata basis to the extent necessary, an aggregate principal amount equal to the
Offer Amount of Notes and other notes (in accordance with the terms of Section
4.16 of the Indenture) tendered pursuant to the Asset Sale Offer, or if less
than the Offer Amount has been tendered, all Notes and such other notes or
portions thereof tendered, (ii) deliver or cause the Paying Agent or depositary,
as the case may be, to deliver to the Trustee Notes so accepted and (iii)
deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.9. The Company, depositary or Paying Agent, as the case
may be, shall promptly (but in any case not later than three Business Days after
the Purchase Date) mail or deliver to each tendering Holder an amount equal to
the purchase price with respect to the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new
Note, and the Trustee shall authenticate and mail or deliver such new Note, to
such Holder, equal in principal amount to any unpurchased portion of such
Holder's Notes surrendered. Any Note not accepted in the Asset Sale Offer shall
be promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce in a newspaper of general circulation the
results of the Asset Sale Offer on the Purchase Date.
24
The Asset Sale Offer shall be made by the Company in compliance with
all applicable laws, including, without limitation, Regulation 14E of the
Exchange Act and the rules thereunder, to the extent applicable, and all other
applicable federal and state securities laws.
Each purchase pursuant to this Section 3.9 shall be made pursuant to
the provisions of the second paragraph of Section 3.5 hereof to the extent
applicable.
In the event the amount of Excess Proceeds to be applied to an Asset
Sale Offer would result in the purchase of a principal amount of Notes which is
not evenly divisible by $1,000, the Trustee shall promptly refund to the Company
the portion of such Excess Proceeds that is not necessary to purchase the
immediately lesser principal amount of Notes that is so divisible.
Section 2.6. Covenants.
With respect to the Notes issued under this First Supplemental
Indenture, Section (a) below replaces Section 4.2 of the Indenture, Section (m)
below replaces Section 4.5 of the Indenture and each other Section is added to
Article IV of the Indenture.
(a) Reports.
Section 4.2. Reports. Whether or not required by the rules and
regulations of the SEC, so long as any Notes are outstanding, the Company
will furnish to the Holders of Notes:
(1) 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
(2) 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.
(b) Restricted Payments.
Section 4.7. Restricted Payments. The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or
indirectly:
(1) declare or pay any dividend or make any distribution on
account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (other than dividends or
distributions payable in Equity Interests (other than
Disqualified Stock) of the Company or such Restricted
Subsidiary or dividends or distributions payable to the
Company or any Restricted Subsidiary);
25
(2) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any Restricted Subsidiary
or other Affiliate of the Company (other than any such Equity
Interests owned by the Company or any Restricted Subsidiary);
(3) purchase, redeem or otherwise acquire or retire prior to
scheduled maturity for value any Indebtedness that is
subordinated in right of payment to the Notes; or
(4) make any Investment other than a Permitted Investment (all
such payments and other actions set forth in clauses (1)
through (4) above being collectively referred to as
"Restricted Payments");
unless, at the time of such Restricted Payment:
(i) no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence thereof;
and
(ii) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto, have
been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the test set forth in the first
paragraph of Section 4.8 of the Indenture; and
(iii) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Company and
its Restricted Subsidiaries after the 1996 Indenture
Date is less than (x) the cumulative EBITDA of the
Company, minus 1.75 times the cumulative Consolidated
Interest Expense of the Company, in each case for the
period (taken as one accounting period) from June 30,
1996, to the end of the Company's most recently ended
fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment,
plus (y) the aggregate net Equity Proceeds received by
the Company from the issuance or sale since the 1996
Indenture Date of Equity Interests of the Company or of
debt securities of the Company that have been converted
into such Equity Interests (other than Equity Interests
or convertible debt securities sold to a Restricted
Subsidiary of the Company and other than Disqualified
Stock or debt securities that have been converted into
Disqualified Stock), plus (z) $2.0 million.
The foregoing provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such
payment would have complied with the provisions of the
Indenture;
(2) the redemption, repurchase, retirement or other acquisition or
retirement for value of any Equity Interests of the Company in
exchange for, or with the net cash proceeds of, the
substantially concurrent sale (other than to a Restricted
26
Subsidiary of the Company) of other Equity Interests of the
Company (other than any Disqualified Stock);
(3) the defeasance, redemption, repurchase, retirement or other
acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Notes in exchange for,
or with the net cash proceeds of, a substantially concurrent
issuance and sale (other than to a Restricted Subsidiary of
the Company) of Equity Interests of the Company (other than
Disqualified Stock);
(4) the defeasance, redemption, repurchase, retirement or other
acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Notes in exchange for,
or with the net cash proceeds of, a substantially concurrent
issue and sale (other than to the Company or any of its
Restricted Subsidiaries) of Refinancing Indebtedness;
(5) the repurchase of any Indebtedness subordinated in right of
payment to the Notes at a purchase price not greater than 101%
of the principal amount of such Indebtedness in the event of a
Change of Control in accordance with provisions similar to the
covenant set forth in Section 2.6(l) of the First Supplemental
Indenture (Section 4.17 of the Indenture), provided that prior
to or contemporaneously with such repurchase the Company has
made the Change of Control Offer as provided in such covenant
with respect to the Notes and has repurchased all Notes
validly tendered for payment in connection with such Change of
Control Offer; and
(6) additional payments to current or former employees or
directors of the Company for repurchases of stock, stock
options or other equity interests, provided that the aggregate
amount of all such payments under this clause (6) does not
exceed $0.5 million in any year and $2.0 million in the
aggregate.
The Restricted Payments described in clauses (2), (3), (5) and (6)
of the immediately preceding paragraph will be Restricted Payments that shall be
permitted to be taken in accordance with such paragraph but shall reduce the
amount that would otherwise be available for Restricted Payments under clause
(iii) of the first paragraph of this Section, and the Restricted Payments
described in clauses (1) and (4) of the immediately preceding paragraph shall be
Restricted Payments that shall be permitted to be taken in accordance with such
paragraph and shall not reduce the amount that would otherwise be available for
Restricted Payments under clause (iii) of the first paragraph of this Section.
If an Investment results in the making of a Restricted Payment, the
aggregate amount of all Restricted Payments deemed to have been made as
calculated under the foregoing provision shall be reduced by the amount of any
net reduction in such Investment (resulting from the payment of interest or
dividends, loan repayment, transfer of assets or otherwise) to the extent such
net reduction is not included in the Company's EBITDA; provided, however, that
the total amount by which the aggregate amount of all Restricted Payments may be
reduced may not exceed the lesser of (a) the cash proceeds received by the
Company and its Restricted Subsidiaries in connection with such net reduction
and (b) the initial amount of such Investment.
27
If the aggregate amount of all Restricted Payments calculated under
the foregoing provision includes an Investment in an Unrestricted Subsidiary or
other Person that thereafter becomes a Restricted Subsidiary, such Investment
will no longer be counted as a Restricted Payment for purposes of calculating
the aggregate amount of Restricted Payments. For the purpose of making any
calculations under the Indenture:
(1) an Investment will include the fair market value of the net
assets of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary
and will exclude the fair market value of the net assets of
any Unrestricted Subsidiary that is designated as a Restricted
Subsidiary;
(2) any property transferred to or from an Unrestricted Subsidiary
will be valued at fair market value at the time of such
transfer, provided that, in each case, the fair market value
of an asset or property is as determined by the Board of
Directors in good faith and
(3) subject to the foregoing, the amount of any Restricted
Payment, if other than cash, will be determined by the Board
of Directors, whose good faith determination will be
conclusive.
The Board of Directors may designate a Restricted Subsidiary to be
an Unrestricted Subsidiary in compliance with the Section 4.14 of the Indenture.
Upon such designation, all outstanding Investments by the Company and its
Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary
so designated will be deemed to be Restricted Payments made at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this covenant. Such designation will only be permitted if
such Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(c) Incurrence of Indebtedness and Issuance of Preferred Stock.
Section 4.8. Incurrence of Indebtedness and Issuance of Preferred
Stock. The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guaranty or otherwise become directly or indirectly liable with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and the
Company shall not permit any of its Restricted Subsidiaries to issue any
shares of preferred stock; provided, however, that the Company may incur
Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if
at the time of such incurrence and after giving effect thereto the Leverage
Ratio would be less than 6.5 to 1.0.
The foregoing limitations shall not apply to:
(1) the incurrence by the Company or any Restricted Subsidiary of
Senior Bank Debt in an aggregate amount not to exceed $100.0
million at any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary
Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries
of the Existing Indebtedness;
28
(4) the issuance by the Company of the Notes;
(5) the incurrence by the Company and its Restricted Subsidiaries
of Capital Lease Obligations and/or additional Indebtedness
constituting purchase money obligations up to an aggregate of
$5.0 million at any one time outstanding, provided that the
Liens securing such Indebtedness constitute Permitted Liens;
(6) the incurrence of Indebtedness between (i) the Company and its
Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate risk with respect to any
floating rate Indebtedness that is permitted by the terms of
the Indenture to be outstanding;
(8) the incurrence by the Company and its Restricted Subsidiaries
of Indebtedness arising out of letters of credit, performance
bonds, surety bonds and bankers' acceptances incurred in the
ordinary course of business up to an aggregate of $5.0 million
at any one time outstanding;
(9) the incurrence by the Company and its Restricted Subsidiaries
of Indebtedness consisting of guarantees, indemnities or
obligations in respect of purchase price adjustments in
connection with the acquisition or disposition of assets,
including, without limitation, shares of Capital Stock; and
(10) the incurrence by the Company and its Restricted Subsidiaries
of Refinancing Indebtedness issued in exchange for, or the
proceeds of which are used to repay, redeem, defease, extend,
refinance, renew, replace or refund, Indebtedness referred to
in clauses (2) through (5) above, and this clause (10) or that
was otherwise permitted to be incurred pursuant to the test
set forth in the first paragraph of this Section 4.8.
(d) Liens.
Section 4.9. Liens. Neither the Company nor any of its Restricted
Subsidiaries may directly or indirectly create, incur, assume or suffer to
exist any Lien (other than a Permitted Lien) upon any property or assets now
owned or hereafter acquired, or any income, profits or proceeds therefrom, or
assign or otherwise convey any right to receive income therefrom, unless (a)
in the case of any Lien securing any Indebtedness that is subordinate to the
Notes, the Notes are secured by a Lien on such property, assets or proceeds
that is senior in priority to such Lien and (b) in the case of any other
Lien, the Notes are equally and ratably secured with the obligation or
liability secured by such Lien.
(e) Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
Section 4.10. Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries. The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance or restriction
on the ability of any Restricted Subsidiary to:
29
(1) (i) pay dividends or make any other distributions to the
Company or any of its Restricted Subsidiaries (A) on its
Capital Stock or (B) with respect to any other interest or
participation in, or measured by, its profits, or (ii) pay any
Indebtedness owed to the Company or any of its Restricted
Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any
of its Restricted Subsidiaries.
However, the preceding restrictions will not apply to encumbrances
or restrictions existing under or by reason of:
(1) Existing Indebtedness;
(2) the Credit Agreement as in effect as of the date of the
Indenture, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancing thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more
restrictive in the aggregate with respect to such dividend and
other payment restrictions than those contained in the Credit
Agreement as in effect on the date of the Indenture;
(3) the Indenture and the Notes;
(4) applicable law;
(5) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition),
which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so
acquired, provided that the EBITDA of such Person is not taken
into account in determining whether such acquisition was
permitted by the terms of the Indenture;
(6) customary non-assignment provisions in leases entered into in
the ordinary course of business and consistent with past
practices;
(7) restrictions on the transfer of property subject to purchase
money obligations or Capital Lease Obligations otherwise
permitted by clause (5) of Section 4.8 of the Indenture;
(8) permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such
Refinancing Indebtedness are no more restrictive in the
aggregate than those contained in the agreements governing the
Indebtedness being refinanced; or
30
(9) any agreement or instrument governing Indebtedness of an
Excluded Restricted Subsidiary provided that (i) at the time
such agreement or instrument is entered into, such Excluded
Restricted Subsidiary and its Restricted Subsidiaries have a
Leverage Ratio of less than 6.5 to 1.0 and (ii) neither such
Excluded Restricted Subsidiary nor any of its Restricted
Subsidiaries shall, directly or indirectly, incur any
Indebtedness (including Acquired Debt) unless at the time of
such incurrence and after giving effect thereto, the Leverage
Ratio for such Excluded Restricted Subsidiary and its
Restricted Subsidiaries would be less than 6.5 to 1.0. For
purposes of determining the Leverage Ratio under this clause
(9) only, all references to the "Company" and its "Restricted
Subsidiaries" or similar references in the definition of
"Leverage Ratio" and other defined terms necessary to
determine the Leverage Ratio shall be deemed to refer to such
Excluded Restricted Subsidiary and its Restricted
Subsidiaries, respectively.
(f) Transactions with Affiliates.
Section 4.11. Transactions with Affiliates. The Company shall
not, and shall not permit any of its Restricted Subsidiaries to, sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate Transaction"), unless:
(a) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with
a non-Affiliated Person and
(b) the Company delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving
aggregate payments in excess of $5.0 million, a
resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate
Transaction complies with clause (a) above and such
Affiliate Transaction is approved by a majority of the
disinterested members of the Board of Directors and
(ii) with respect to any Affiliate Transaction involving
aggregate payments in excess of $10.0 million, an
opinion as to the fairness to the Company or such
Restricted Subsidiary from a financial point of view
issued by an investment banking firm of national
standing.
The following items shall not be deemed Affiliate Transactions and
therefore, will not be subject to the provisions of the prior paragraph:
(1) any employment agreement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business
and consistent with the past practice of the Company or such
Restricted Subsidiary;
31
(2) transactions between or among the Company and/or its
Restricted Subsidiaries;
(3) transactions permitted by the provisions of Section 4.7 of the
Indenture; and
(4) the grant of stock, stock options or other equity interests to
employees and directors of the Company and any Restricted
Subsidiary in accordance with duly adopted Company stock
grant, stock option and similar plans.
The provisions set forth in clause (b) above shall not apply to
sales of inventory by the Company or any Restricted Subsidiary to any Affiliate
in the ordinary course of business. The provisions of clause (b) (ii) above
shall not apply to loans or advances to the Company or any Restricted Subsidiary
from, or equity investments in the Company or any Restricted Subsidiary by, any
Affiliate to the extent permitted by the provisions of Section 4.8 of the
Indenture.
(g) Certain Senior Subordinated Debt.
Section 4.12. Certain Senior Subordinated Debt. The Company shall
not incur any Indebtedness that is subordinated or junior in right of payment
to any Senior Debt of the Company and senior in any respect in right of
payment to the Notes. The Company shall not permit any Restricted Subsidiary
to incur any Indebtedness that is subordinated or junior in right of payment
to its Senior Debt and senior in any respect in right of payment to its
Subsidiary Guarantee.
(h) Additional Subsidiary Guarantees.
Section 4.13. Additional Subsidiary Guarantees. If any entity
(other than an Excluded Restricted Subsidiary) shall become a Restricted
Subsidiary after the date of the First Supplemental Indenture, then such
Restricted Subsidiary shall execute a supplemental indenture in the form of
Exhibit B attached hereto, pursuant to which it shall provide a Subsidiary
Guarantee, and deliver an Opinion of Counsel with respect thereto, in
accordance with the terms of the Indenture.
No Restricted Subsidiary (including any Excluded Restricted
Subsidiary) shall consolidate with or merge with or into (whether or not such
Restricted Subsidiary is the surviving Person), another Person (other than the
Company) whether or not affiliated with such Restricted Subsidiary unless:
(1) subject to the provisions of the immediately following
sentence, the Person formed by or surviving any such
consolidation or merger (if other than such Restricted
Subsidiary) assumes all the obligations of such Restricted
Subsidiary under its Subsidiary Guarantee (except in the case
of an Excluded Restricted Subsidiary) pursuant to a
supplemental indenture in form and substance reasonably
satisfactory to the Trustee;
(2) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(3) such Restricted Subsidiary, or any Person formed by or
surviving any such consolidation or merger, would be permitted
to incur, immediately after giving
32
effect to such transaction, at least $1.00 of additional
Indebtedness pursuant to the test set forth in the first
paragraph of Section 4.8 of the Indenture.
In the event of:
(1) a sale or other disposition of all of the assets of any
Restricted Subsidiary, by way of merger, consolidation or
otherwise;
(2) a sale or other disposition of all of the capital stock of any
Restricted Subsidiary; or
(3) the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary in accordance with the terms of Section 4.14 of the
Indenture,
then such Subsidiary (in the event of a sale or other disposition, by way of
such a merger, consolidation or otherwise, of all of the capital stock of such
Restricted Subsidiary or in the event of the designation of such Restricted
Subsidiary as an Unrestricted Subsidiary) or the Person acquiring the property
(in the event of a sale or other disposition of all of the assets of such
Restricted Subsidiary) will be released and relieved of any obligations under
its Subsidiary Guarantee, provided that the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of Section
4.16 of the Indenture.
(i) Designation of Unrestricted Subsidiaries.
Section 4.14. Designation of Unrestricted Subsidiaries. The Board
of Directors may designate any Subsidiary (including any Restricted
Subsidiary or any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary so long as:
(1) neither the Company nor any Restricted Subsidiary is directly
or indirectly liable for any Indebtedness of such Subsidiary;
(2) no default with respect to any Indebtedness of such Subsidiary
would permit (upon notice, lapse of time or otherwise) any
holder of any other Indebtedness of the Company or any
Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity;
(3) any Investment in such Subsidiary deemed to be made as a
result of designating such Subsidiary an Unrestricted
Subsidiary will not violate the provisions of Section 4.7 of
the Indenture;
(4) neither the Company nor any Restricted Subsidiary has a
contract, agreement, arrangement, understanding or obligation
of any kind, whether written or oral, with such Subsidiary
other than (A) those that might be obtained at the time from
Persons who are not Affiliates of the Company or (B)
administrative, tax sharing and other ordinary course
contracts, agreements, arrangements and understandings or
obligations entered into in the ordinary course of business;
and
33
(5) neither the Company nor any Restricted Subsidiary has any
obligation to subscribe for additional shares of Capital Stock
or other Equity Interests in such Subsidiary, or to maintain
or preserve such Subsidiary's financial condition or to cause
such Subsidiary to achieve certain levels of operating results
other than as permitted under Section 4.7 of the Indenture.
Notwithstanding the foregoing, the Company may not designate as an
Unrestricted Subsidiary any Subsidiary which, on the 1999 Indenture Date, was a
Significant Subsidiary, and may not sell, transfer or otherwise dispose of any
properties or assets of any such Significant Subsidiary to an Unrestricted
Subsidiary, other than in the ordinary course of business, in each case other
than Iron Mountain Global, Inc. and its Subsidiaries (including without
limitation Iron Mountain Europe Limited and its Subsidiaries).
The Board of Directors may designate any Unrestricted Subsidiary as
a Restricted Subsidiary; provided that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation will only be
permitted if:
(1) such Indebtedness is permitted under Section 4.8 of the
Indenture and
(2) no Default or Event of Default would occur as a result of such
designation.
(j) Limitation on Sale and Leaseback Transactions.
Section 4.15. Limitation on Sale and Leaseback Transactions. The
Company will not, and will not permit any Restricted Subsidiary to, enter
into any Sale and Leaseback Transaction unless:
(1) the consideration received in such Sale and Leaseback
Transaction is at least equal to the fair market value of the
property sold, as determined by a resolution of the Board of
Directors and
(2) the Company or such Restricted Subsidiary could incur the
Attributable Indebtedness in respect of such Sale and
Leaseback Transaction in compliance with Section 4.8 of the
Indenture.
34
(k) Asset Sales.
Section 4.16. Asset Sales. The Company shall not, and shall not
permit any of its Restricted Subsidiaries to:
(1) sell, lease, convey or otherwise dispose of any assets
(including by way of a Sale and Leaseback Transaction, but
excluding a Qualifying Sale and Leaseback Transaction) other
than sales of inventory in the ordinary course of business
(provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the
Company will be governed by the provisions of Section 4.17 of
the Indenture and/or the provisions of Section 5.1 of the
Indenture and not by the provisions of this Section 4.16); or
(2) issue or sell Equity Interests of any of its Restricted
Subsidiaries
that in the case of either clause (1) or (2) above, whether in a single
transaction or a series of related transactions:
(i) have a fair market value in excess of $2.0 million or
(ii) result in Net Proceeds in excess of $2.0 million (each of the
foregoing, an "Asset Sale"), unless (x) the Company (or the
Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to
the fair market value (evidenced by an Officers' Certificate
delivered to the Trustee, and for Asset Sales having a fair
market value or resulting in Net Proceeds in excess of $10.0
million, evidenced by a resolution of the Board of Directors
set forth in an Officers' Certificate delivered to the
Trustee) of the assets sold or otherwise disposed of and (y)
at least 75% of the consideration therefor received by the
Company or such Restricted Subsidiary is in the form of cash
or like-kind assets (in each case as determined in good faith
by the Company, evidenced by a resolution of the Board of
Directors and certified by an Officers' Certificate delivered
to the Trustee);
provided, however, that the amount of
(A) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet or in the notes
thereto) of the Company or such Restricted Subsidiary (other
than liabilities that are by their terms subordinated to the
Notes or any Subsidiary Guarantee) that are assumed by the
transferee of any such assets and
(B) any notes or other obligations received by the Company or such
Restricted Subsidiary from such transferee that are
immediately converted by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received) or
Cash Equivalents,
shall be deemed to be cash for purposes of this provision; and provided,
further, that the 75% limitation referred to in the foregoing clause (ii) (y)
shall not apply to any Asset Sale in which the cash portion of
35
the consideration received therefrom is equal to or greater than what the
after-tax proceeds would have been had such Asset Sale complied with the
aforementioned 75% limitation.
A transfer of assets or issuance of Equity Interests by the Company
to a Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary will
not be deemed to be an Asset Sale.
Within 360 days of any Asset Sale, the Company may, at its option,
apply an amount equal to the Net Proceeds from such Asset Sale either:
(1) to permanently reduce Senior Debt or
(2) to an investment in a Restricted Subsidiary or in another
business or capital expenditure or other long-term/tangible
assets, in each case, in the same line of business as the
Company or any of its Restricted Subsidiaries was engaged in
on the date of the First Supplemental Indenture or in
businesses similar or reasonably related thereto.
Pending the final application of any such Net Proceeds, the Company
may temporarily reduce Senior Bank Debt or otherwise invest such Net Proceeds in
any manner that is not prohibited by the Indenture. Any Net Proceeds from such
Asset Sale that are not applied or invested as provided in the first sentence of
this paragraph will be deemed to constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall
make an offer to all Holders of the Notes, all holders of the 9 1/8% Notes, the
8 1/4% Notes, the 8 1/8% Notes and the 8 3/4% Notes and the holders of any
future Indebtedness ranking pari passu with the Notes, which Indebtedness
contains similar provisions requiring the Company to repurchase such
Indebtedness (an "Asset Sale Offer"), to purchase the maximum principal amount
of Notes and such other Indebtedness that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase, in accordance with the procedures set forth in the Indenture;
provided, however, that prior to making any such Asset Sale Offer, the Company
may, to the extent required by the indentures for the 10 1/8% Notes or the
11 1/8% Notes, use such Excess Proceeds to repurchase the 10 1/8% Notes and the
11 1/8% Notes. To the extent that the aggregate amount of Notes and other pari
passu Indebtedness (including the 9 1/8% Notes, the 8 1/4% Notes, the 8 1/8%
Notes and the 8 3/4% Notes) tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes and such
other Indebtedness surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such other Indebtedness to be
purchased on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 4.16 of the Indenture, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under the Asset Sale provisions of the Indenture by virtue of such
conflict.
36
An Asset Sale Offer shall be made pursuant to the provisions of
Section 3.9 hereof. No later than the date which is five Business Days after the
date on which the aggregate amount of Excess Proceeds exceeds $10.0 million, the
Company shall notify the Trustee of such Asset Sale Offer and provide the
Trustee with an Officers' Certificate setting forth the calculations used in
determining the amount of Net Proceeds to be applied to the purchase of Notes.
The Company shall commence or cause to be commenced the Asset Sale Offer on a
date no later than 15 Business Days after such notice (the "Commencement Date").
(l) Change of Control Offer.
Section 4.17. Change of Control Offer.
(a) Upon the occurrence of a Change of Control, each Holder of Notes
shall have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to
the offer described below (the "Change of Control Offer") at an offer price in
cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest to but excluding the date of repurchase (the "Change of Control
Payment").
Within 30 calendar days following any Change of Control, the Company
shall mail a notice to each Holder stating:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.17 and that all Notes tendered shall be
accepted for payment;
(2) the purchase price and the purchase date, which shall be no
earlier than 30 calendar days nor later than 60 calendar days
from the date such notice is mailed (the "Change of Control
Payment Date");
(3) that any Note not tendered shall continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change
of Control Payment, all Notes accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest on
and after the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to
a Change of Control Offer shall be required to surrender the
Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes completed, to the paying
agent at the address specified in such notice prior to the
close of business on the fifth Business Day preceding the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change of
Control Payment Date, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is
withdrawing its election to have such Notes purchased; and
37
(7) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof.
The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable to the repurchase of the Notes
in connection with a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.17, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under the Indenture or the First
Supplemental Indenture by virtue of such conflict.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful:
(1) accept for payment Notes or portions thereof tendered pursuant
to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions thereof so
tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the
Notes or portions thereof tendered to the Company.
The Paying Agent shall promptly mail to each Holder of Notes so
accepted the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail to each Holder a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered, if any; provided
that each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. Prior to complying with the provisions of this Section 4.17,
but in any event within 90 calendar days following a Change of Control, the
Company shall either repay all outstanding Senior Debt or obtain the requisite
consents, if any, under all agreements governing outstanding Senior Debt to
permit the repurchase of Notes required by this Section 4.17. The Company shall
publicly announce in The Wall Street Journal, or if no longer published, a
national newspaper of general circulation, the results of the Change of Control
Offer on or as soon as practicable after the Change of Control Payment Date.
The Company shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Section 4.17 applicable to a Change of Control Offer made by the
Company and purchases all Notes properly tendered and not withdrawn under the
Change of Control Offer.
(m) Corporate Existence.
With respect to the Notes issued under this First Supplemental
Indenture, Section 4.5 of the Indenture is replaced in its entirety as follows:
38
Section 4.5. Corporate Existence.
Subject to Section 4.13 and Article V of the Indenture, as the case
may be, the Company and each of the Restricted Subsidiaries shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of their Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company, any
such Restricted Subsidiary or any such Subsidiary, as the case may be, and (ii)
the rights (charter and statutory), licenses and franchises of the Company, the
Restricted Subsidiaries and their respective Subsidiaries; provided, however,
that the Company and the Restricted Subsidiaries shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of their respective Subsidiaries, if an officer of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company, the Restricted Subsidiaries and
their Subsidiaries, taken as a whole, and that the loss thereof is not adverse
in any material respect to the Holders of the Notes.
Section 2.7. Mergers, Consolidations or Sale of Assets.
With respect to the Notes issued under this First Supplemental
Indenture, Section 5.1 of the Indenture is replaced in its entirety as follows:
Section 5.1. Mergers, Consolidations 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 Person unless:
(1) the Company is the surviving corporation 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;
(2) 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 Notes, the First Supplemental
Indenture and the Indenture (pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee);
(3) immediately after such transaction no Default or Event of
Default exists; and
(4) the Company or any Person formed by or surviving any such
consolidation or merger, or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have
been made, will, at the time of such transaction and after
giving pro forma effect thereto, be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the test
set forth in the first paragraph of Section 4.8 of the
Indenture.
39
Section 2.8. Events of Default.
With respect to the Notes issued under this First Supplemental
Indenture, Section 6.1 of the Indenture is hereby replaced in its entirety as
follows:
Section 6.1. Events of Default.
Each of the following constitutes an "Event of Default:"
(1) default for 30 days in the payment when due of interest on the
Notes (whether or not prohibited by the subordination
provisions of Article XIII of the Indenture);
(2) default in payment when due of the principal of or premium, if
any, on the Notes (whether or not prohibited by the
subordination provisions in Article XIII of the Indenture);
(3) failure by the Company to comply with Section 4.17 of the
Indenture;
(4) failure by the Company or any Guarantor for 60 days after
written notice from the Trustee or Holders of not less than
25% of the aggregate principal amount of the Notes (including
the Additional Notes, if any) then outstanding to comply with
any of its other agreements in the Indenture, the First
Supplemental Indenture, the Notes or the Subsidiary Guarantees
(in order to be effective, such notice must be in writing,
specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default");
(5) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which
is guaranteed by the Company or any of its Restricted
Subsidiaries) whether such Indebtedness or guarantee exists on
the date of the First Supplemental Indenture or is created
thereafter, if:
(i) such default results in the acceleration of such
Indebtedness prior to its express maturity or shall
constitute a default in the payment of such Indebtedness
at final maturity of such Indebtedness and
(ii) the principal amount of any such Indebtedness that has
been accelerated or not paid at maturity, when added to
the aggregate principal amount of all other such
Indebtedness that has been accelerated or not paid at
maturity, exceeds $10.0 million;
(6) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction
against the Company or any of its Restricted Subsidiaries and
such judgments remain unpaid, undischarged or unstayed for a
period of 60 days, provided that the aggregate of all such
unpaid, undischaraged or unstayed judgments exceeds $10.0
million;
40
(7) the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) admits in writing that it generally is unable to pay its
debts as the same become due;
in each case, pursuant to or within the meaning of any
Bankruptcy Law; or
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary
in an involuntary case,
(ii) appoints a Custodian of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary
or for all or substantially all of its property, or
(iii) orders the liquidation of the Company or any of its
Restricted Subsidiaries that is a Significant
Subsidiary,
and such order or decree remains unstayed and in effect for 60
days; or
(9) except as permitted by the Indenture, the First Supplemental
Indenture or the Subsidiary Guarantees, any Subsidiary
Guarantee issued by a Restricted Subsidiary shall be held in
any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect, or
any Restricted Subsidiary or any Person acting on behalf of
any Restricted Subsidiary shall deny or disaffirm in writing
its obligations under its Subsidiary Guarantee.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 2.9. Acceleration.
With respect to the Notes issued under this First Supplemental
Indenture, Section 6.2 of the Indenture is hereby replaced in its entirety as
follows:
41
Section 6.2. Acceleration of Maturity.
If any Event of Default (other than an Event of Default specified in
clauses (7)(i) through (7)(v) and (8) of Section 6.1 of the Indenture relating
to the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary) occurs and is continuing, the Trustee by notice to the Company or
the Holders of at least 25% in principal amount of the then outstanding Notes by
notice to the Company and the Trustee may declare the unpaid principal of and
any interest on all the Notes to be due and payable immediately; provided,
however, that if any Obligation with respect to Senior Bank Debt is outstanding
pursuant to the Credit Agreement upon a declaration of acceleration of the
Notes, the principal, premium, if any, and interest on the Notes will not be
payable until the earlier of:
(1) the day which is five Business Days after written notice of
acceleration is received by the Company and the Credit Agent
or
(2) the date of acceleration of the Indebtedness under the Credit
Agreement. If an Event of Default specified in clauses (7)(i)
through (7)(v) and (8) of Section 6.1 of the Indenture with
respect to the Company or any Restricted Subsidiary that is a
Significant Subsidiary occurs, the principal of, and premium,
if any, and any accrued and unpaid interest on all outstanding
Notes will become immediately due and payable without further
action or notice.
In the event of a declaration of acceleration of the Notes because
an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness described in clause (5) of Section 6.1 of the
Indenture, the declaration of acceleration of the Notes shall be automatically
annulled if the holders of any Indebtedness described in such clause have
rescinded the declaration of acceleration in respect of such Indebtedness within
30 days from the date of such declaration and if:
(1) the annulment of the acceleration of the Notes would not
conflict with any judgment or decree of a competent
jurisdiction and
(2) all existing Events of Default, except non-payment of
principal or interest on the Notes that became due solely
because of the acceleration of the Notes, have been cured or
waived.
In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the Make Whole Price or premium, as
applicable, that the Company would have had to pay if the Company then had
elected to redeem the Notes pursuant to the optional redemption provisions of
the Indenture, the applicable Make Whole Price, or an equivalent premium, as the
case may be, shall become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
Section 2.10. Amendments and Waivers.
With respect to the Notes issued under this First Supplemental
Indenture, the following Sections replace in their entirety Sections 9.1, 9.2,
9.3 and 9.5 of the Indenture:
42
Section 9.1. Without Consent of Holders.
Notwithstanding Section 9.2 of the Indenture, without the consent of
any Holder of Notes, the Company, the Guarantors and the Trustee may amend or
supplement the Indenture or the Notes:
(a) to cure any ambiguity, defect or inconsistency,
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes,
(c) to provide for the assumption of the Company's or any
Guarantor's obligations to Holders of the Notes in the case of
a merger or consolidation,
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes (including providing for
additional Subsidiary Guarantees pursuant to Section 4.13 of
the Indenture) or that does not materially adversely affect
the legal rights under the Indenture of any such Holder, or
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.2 of the Indenture, the Trustee shall join with the Company and the Guarantors
in the execution of any amended or supplemental Indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.2. With Consent of Holders.
Except as provided Section 9.1 and Section 9.3 of the Indenture, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for Notes), and, subject to Sections 6.8 and 6.12 of the Indenture) any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on the Notes, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for Notes).
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.2 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence reasonably
satisfactory to the Trustee of the consent of the Holders of Notes as
43
aforesaid, and upon receipt by the Trustee of the documents described in Section
7.2 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of such amended or supplemental Indenture unless such amended or
supplemental Indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
Section 9.3. Limitations.
Without the consent of each Holder affected, an amendment or waiver
may not (with respect to any Notes held by a non-consenting Holder of Notes):
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any
Note or alter any of the provisions with respect to the
redemption of the Notes in a manner adverse to the Holders of
the Notes;
(3) reduce the rate of or change the time for payment of interest
on any Note;
(4) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes
(except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount
of the then outstanding Notes and a waiver of the payment
default that resulted from such acceleration);
(5) make any Note payable in money other than that stated in the
Notes;
(6) make any change in the provisions of the Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to
receive payments of principal of or premium, if any, or
interest on the Notes;
(7) waive a redemption payment with respect to any Note (other
than a payment required by Section 4.16 and Section 4.17 of
the Indenture);
(8) except pursuant to the Indenture, release any Guarantor from
its obligations under its Subsidiary Guarantee, or change any
Subsidiary Guarantee in any manner that would materially
adversely affect the Holders; or
(9) make any change in the foregoing amendment and waiver
provisions.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.3 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
Section 9.5. Revocation and Effect of Consents.
44
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
his Note or portion of a Note if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every Holder
unless it is of the type described in any of clauses (1) through (8) of Section
9.3. In that case, the amendment or waiver shall bind each Holder who has
consented to it and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note.
Section 2.11. Subsidiary Guarantees.
With respect to the Notes issued under this Supplemental Indenture,
Article XII of the Indenture shall apply, and the Notes shall constitute a
Series to be guaranteed by the Guarantors pursuant to Article XII of the
Indenture.
Section 2.12. Legal Defeasance and Covenant Defeasance.
With respect to the Notes issued under this Supplemental Indenture,
Article VIII of the Indenture shall apply, and the Company shall have the option
to effect Legal Defeasance or Covenant Defeasance pursuant to Article VIII of
the Indenture. In connection with any Covenant Defeasance, the Company shall be
released from its obligations under the covenants specified in Sections 2.6 and
2.7 of this First Supplemental Indenture.
Section 2.13. Subordination.
(a) With respect to the Notes issued under this Supplemental
Indenture, Article XIII of the Indenture shall apply, and the Notes shall be
subject to subordination pursuant to Article XIII of the Indenture. In addition,
with respect to the Notes issued under this First Supplemental Indenture, the
following Sections shall be added to Article XIII of the Indenture.
(b) Guarantors May Consolidate, etc., on Certain Terms.
Section 13.27. Guarantors May Consolidate, etc., on Certain Terms.
No Guarantor shall consolidate with or merge with or into (whether
or not such Guarantor is the surviving Person), another Person whether or not it
is affiliated with such Guarantor unless (i) subject to the provisions of
Section 11.28 hereof, the Person formed by or surviving any such consolidation
or merger (if other than a Guarantor) assumes all the obligations of such
Guarantor pursuant to a supplemental indenture in form reasonably satisfactory
to the Trustee, under its Subsidiary Guarantee, the Notes and this Indenture,
(ii) immediately after giving effect to such transaction, no Default or Event of
Default exists, and (iii) such Guarantor, or any person formed by or surviving
any such consolidation or merger, will be permitted to incur, immediately after
giving effect to such transaction, at least $1.00 of additional Indebtedness
pursuant to the first paragraph of Section 4.8 hereof. In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor
45
Person, by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the Subsidiary Guarantee in this
Indenture and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor.
(c) Releases Following Sale of Assets or Designation as Unrestricted
Subsidiary.
Section 13.28. Releases Following Sale of Assets or Designation as
Unrestricted Subsidiary.
In the event of (a) a sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or (b) a sale or other disposition of all of the
capital stock of any Guarantor, or (c) the designation of a Restricted
Subsidiary as an Unrestricted Subsidiary in accordance with the terms of Section
4.14 hereof, then such Guarantor (in the event of a sale or other disposition,
by way of such a merger, consolidation or otherwise, of all of the capital stock
of such Guarantor, or in the event of the designation of such Guarantor as an
Unrestricted Subsidiary) or the Person acquiring the property (in the event of a
sale or other disposition of all or substantially all of the assets of such
Guarantor) shall be released and relieved of its obligations under its
Subsidiary Guarantee; provided that the Net Proceeds of such sale or other
disposition are applied in accordance with Section 4.16 hereof.
ARTICLE 3.
MISCELLANEOUS
Section 3.1. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 3.2. Successors and Assigns.
All covenants and agreements in this First Supplemental Indenture by
the Company shall bind its successors and assigns, whether so expressed or not.
46
Section 3.3. Separability Clause.
In case any provision in this First Supplemental Indenture or in the
Notes 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 3.4. Governing Law.
This First Supplemental Indenture and the Notes created hereby shall
be governed by and construed in accordance with the laws of the State of New
York without giving effect to any conflicts of law provisions (other than
Section 5-1401 of the New York General Obligations Law) that might cause this
First Supplemental Indenture and the Notes to be governed by or construed or
enforced in accordance with the laws of any other jurisdiction.
Section 3.5. First Supplement to Supersede Indenture.
The Indenture, as supplemented by the First Supplemental Indenture,
remains in full force and effect as of the date hereof. Notwithstanding the
foregoing, to the extent that any provision of the Indenture shall conflict with
any provision of this First Supplemental Indenture, the terms of this First
Supplemental Indenture shall be deemed controlling and the conflicting provision
of the Indenture shall be null and void to the extent of such conflict.
[The rest of this page has been intentionally left blank.]
47
IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed, and attested, all as of the date and year first
written above.
IRON MOUNTAIN INCORPORATED
By: /s/ C. Richard Reese
-----------------------------------------------
Name: C. Richard Reese
Title: Chairman and Chief Executive Officer
ARCUS DATA SECURITY, INC.
COMAC, INC.
DSI TECHNOLOGY ESCROW SERVICES, INC.
IM BILLERICA, INC.
IRON MOUNTAIN GLOBAL, INC.
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF MICHIGAN, INC.
By: /s/ C. Richard Reese
-----------------------------------------------
Name: C. Richard Reese
Title: Chairman and Chief Executive Officer
IRON MOUNTAIN/NATIONAL UNDERGROUND STORAGE, LLC
IRON MOUNTAIN CONSULTING SERVICES, LLC
IRON MOUNTAIN CONFIDENTIAL DESTRUCTION LLC
By: Iron Mountain Records Management, Inc.,
its sole Member
By: /s/ C. Richard Reese
-------------------------------------------
Name: C. Richard Reese
Title: Chairman and Chief Executive Officer
[Indenture Signature Page]
IRON MOUNTAIN GLOBAL LLC
By: Iron Mountain Global, Inc., its sole Member
By: /s/ C. Richard Reese
-------------------------------------------
Name: C. Richard Reese
Title: Chairman and Chief Executive Officer
ARCUS DATA SECURITY LLC
By: Arcus Data Security, Inc., its sole Member
By: /s/ C. Richard Reese
-------------------------------------------
Name: C. Richard Reese
Title: Chairman and Chief Executive Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Kisha A. Holder
-----------------------------------------------
Name: Kisha A. Holder
Title: Assistant Treasurer
[First Supplemental Indenture Signature Page]
Exhibit A
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[Face of Note]
8 5/8% Senior Subordinated Notes due 2013
No. ___________________ $_______________
IRON MOUNTAIN INCORPORATED
promises to pay to _____________ or registered assigns, the principal sum of
___________________ Dollars on April 1, 2013.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Dated: April [ ], 2001
CUSIP No. ________________
IRON MOUNTAIN INCORPORATED
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
(SEAL)
This is one of the Notes
referred to in the within-
mentioned Indenture:
THE BANK OF NEW YORK,
as Trustee
By: __________________________
Authorized Signature
[Back of Note]
8 5/8% Senior Subordinated Notes due 2013
[INSERT IN GLOBAL NOTES] [This Security is a Global Security within
the meaning of the Indenture hereinafter referred to and is registered in the
name of the Depository or a nominee of the Depository. This Security is
exchangeable for Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in the
Indenture, and may not be transferred except as a whole by the Depository to a
nominee of the Depository, by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such a successor Depository.]
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Iron Mountain Incorporated, a Pennsylvania corporation
(the "Company") promises to pay interest on the principal amount of this Note at
8 5/8% per annum from April [ ], 2001 until April 1, 2013. The Company shall pay
interest, semi-annually in arrears on April 1 and October 1 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be October 1, 2001. The Company shall pay
interest (including post-petition interest to the extent allowed in any
proceeding under any Bankruptcy Law) on overdue principal from time to time on
demand at a rate equal to the per annum rate on the Notes then in effect; it
shall pay interest (including post-petition interest to the extent allowed in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. The Company, however, may pay principal,
premium, if any, and interest by check payable in such money. It may mail an
interest check to a Holder's registered address.
3. PAYING AGENT, REGISTRAR AND SERVICE AGENT. Initially, The Bank of
New York, the Trustee under the Indenture, will act as Paying Agent, Registrar
and Service Agent. The Notes may be presented for registration of transfer and
exchange at the offices of the Registrar. The Company may change any Paying
Agent, Service Agent or Registrar without notice to any Holder. The Company or
any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of April 3, 2001 (the "Base Indenture") as supplemented by a First
Supplemental Indenture dated as of April 3, 2001 (the "Supplemental
Indenture" and, together with the Base Indenture, the "Indenture") among the
Company, the Guarantors and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections
77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The
terms of the Indenture shall govern any inconsistencies between the Indenture
and the Notes. The Notes issued under the Indenture are subordinated
unsecured obligations of the Company limited to $500,000,000 in aggregate
principal amount.
5. OPTIONAL REDEMPTION.
Prior to April 1, 2006, the Notes will be subject to redemption at
any time at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 days' notice, at the Make-Whole Price, plus accrued and
unpaid interest thereon to the applicable redemption date. At any time on or
after April 1, 2006, the Company may redeem any portion of the Notes, in whole
or in part, on at least 30 days, but no more than 60 days' notice at the
following prices (expressed as a percentage of the principal amount), together
with accrued and unpaid interest to, but excluding, the redemption date:
Redemption Period Redemption Price
----------------- ----------------
April 1, 2006 to March 31, 2007............................. 104.313%
April 1, 2007 to March 31, 2008............................. 102.875%
April 1, 2008 to March 31, 2009 101.438%
April 1, 2009 and thereafter................................ 100.000%
Notwithstanding the foregoing, at any time prior to April 1, 2004,
the Company may redeem up to 35% of the initial principal amount of the Notes
originally issued with the net proceeds of one or more Qualified Equity
Offerings at a redemption price equal to 108.625% of the principal amount of
such Notes, plus accrued and unpaid interest to the date of redemption;
provided, that at least 65% of the principal amount of Notes originally issued
remains outstanding immediately after the occurrence of any such redemption and
that such redemption occurs within 60 days following the closing of any such
Qualified Equity Offering.
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder of the Notes to be
redeemed at such Holder's address of record. The Notes in denominations larger
than $1,000 may be redeemed in part but only in integral multiples of $1,000,
unless all the Notes held by a Holder are to be redeemed. In the event of a
redemption of less than all of the Notes, the Notes will be chosen for
redemption by the Trustee in accordance with the
Indenture. On and after the redemption date, interest ceases to accrue on the
Notes or portions of them called for redemption.
If this Note is redeemed subsequent to a Record Date with respect to
any Interest Payment Date specified above and on or prior to such Interest
Payment Date, then any accrued interest will be paid to the Person in whose name
this Note is registered at the close of business on such Record Date.
7. MANDATORY REDEMPTION. Except as set forth in paragraph 8 below,
the Company shall not be required to make mandatory redemption payments with
respect to the Notes. There are no sinking fund payments with respect to the
Notes.
8. REPURCHASE AT OPTION OF HOLDER. This Note is subject to purchase
at the option of the Holder upon the circumstances set forth in Sections 3.9,
4.16 and 4.17 of the Indenture.
9. SUBORDINATION. The payment of the principal of, interest on or
any other amounts due on the Notes is subordinated in right of payment to all
existing and future Senior Debt of the Company, as described in the Indenture.
Each Holder, by accepting a Note, agrees to such subordination and authorizes
and directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination so provided and appoints the Trustee
as its attorney-in-fact for such purpose.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in minimum denominations of $1,000 and integral multiples
of $1,000 in excess thereof. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture.
11. PERSONS DEEMED OWNERS. Prior to due presentment to the Trustee
for registration of the transfer of this Note, the Trustee, any Agent, the
Company and the Guarantors may deem and treat the Person in whose name this Note
is registered as its absolute owner for the purpose of receiving payment of
principal of, premium, if any, and interest on this Note and for all other
purposes whatsoever, whether or not this Note is overdue, and none of the
Trustee, any Agent, the Company or any Guarantor shall be affected by notice to
the contrary. The registered Holder of a Note may be treated as its owner for
all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture with respect to the Notes or the Notes may be amended or
supplemented with the written consent of the Holders of a majority in principal
amount of the then outstanding Notes, and any existing default or compliance
with any provision of the Indenture with respect to the Notes or the Notes may
be waived with the consent of the Holders of a majority in principal amount of
the Notes (including, in each case, Additional Notes, if any). Without the
consent of any Holder of the Notes, the Indenture with respect to the Notes or
the Notes may be amended or supplemented to, in addition to other events more
fully described in the Indenture, cure any ambiguity, defect or inconsistency,
provide for uncertificated Notes in addition to or in place of certificated
Notes, provide for the assumption of the Company's or a Guarantor's obligations
to Holders of the Notes in the case of a merger or consolidation, make any
change that would provide any additional rights or benefits to the Holders of
the Notes or that does not materially adversely affect the legal rights under
the Indenture of any such Holder, or comply with requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA.
13. DEFAULTS AND REMEDIES. An Event of Default with respect to the
Notes includes: the default for 30 days in the payment when due of interest on
the Notes (whether or not prohibited by the subordination provisions of the
Indenture); the default in payment when due of the principal of or premium, if
any, on the Notes (whether or not
prohibited by the subordination provisions of the Indenture); the failure by the
Company to comply with Section 4.17 of the Indenture; the failure by the Company
or any Guarantor for 60 days after written notice from the Trustee or Holders of
not less than 25% of the aggregate principal amount of the Notes (including
Additional Notes, if any) outstanding to comply with any of its other agreements
in the Indenture, Notes or the Subsidiary Guarantees; the default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee exists on the date of the Indenture or is created
thereafter, if: (i) such default results in the acceleration of such
Indebtedness prior to its express maturity or shall constitute a default in the
payment of such Indebtedness at final maturity of such Indebtedness and (ii) the
principal amount of any such Indebtedness that has been accelerated or not paid
at maturity, when added to the aggregate principal amount of all other such
Indebtedness that has been accelerated or not paid at maturity, exceeds $10.0
million; the failure by the Company or any of its Restricted Subsidiaries to pay
final judgments aggregating in excess of $10.0 million, which judgments remain
unpaid, undischarged or unstayed for a period of 60 days; certain events of
bankruptcy or insolvency with respect to the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary; or except as permitted by the
Indenture or the Subsidiary Guarantees, any Subsidiary Guarantee issued by a
Restricted Subsidiary shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect, or any Restricted Subsidiary or any Person acting on behalf of any
Restricted Subsidiary shall deny or disaffirm in writing its obligations under
its Subsidiary Guarantee.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes
(including Additional Notes, if any) may declare all the Notes to be due and
payable immediately; provided, however, that if any Obligation with respect to
Senior Bank Debt is outstanding pursuant to the Credit Agreement upon a
declaration of acceleration of the Notes, the principal, premium, if any, and
interest on the Notes will not be payable until the earlier of: (1) the day
which is five business days after written notice of acceleration is received by
the Company and the Credit Agent or (2) the date of acceleration of the
Indebtedness under the Credit Agreement. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency with respect to the Company or any Restricted Subsidiary that is a
Significant Subsidiary, the principal of, and premium, if any, and any accrued
and unpaid interest on all outstanding Notes will become due and payable without
further action or notice. In the event of a declaration of acceleration of the
Notes because an Event of Default has occurred and is continuing as a result of
the acceleration of any Indebtedness described in Section 6.1(5) of the
Indenture, the declaration of acceleration of the Notes shall be automatically
annulled if the holders of any Indebtedness described in such section have
rescinded the declaration of acceleration in respect of such Indebtedness within
30 days from the date of such declaration and if: (1) the annulment of the
acceleration of the Notes would not conflict with any judgment or decree of a
competent jurisdiction and (2) all existing Events of Default, except
non-payment of principal or interest on the Notes that became due solely because
of the acceleration of the Notes, have been cured or waived.
Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Company is required to deliver to
the Trustee annually a statement regarding compliance with the Indenture, and
the Company is required, upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default and what action the Company is taking or proposes to take
thereto.
14. SUBSIDIARY GUARANTEES. Payment of principal of, premium, if any,
and interest (including interest on overdue principal, premium, if any, and
interest, if lawful) on the Notes is guaranteed on an unsecured, senior
subordinated basis by the Guarantors pursuant to Article XII of the Indenture.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
16. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder, as such, of the Company or any
Guarantor shall have any liability for any obligations of the Company or any
Guarantor under the Notes, the Subsidiary Guarantees or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Note and the related Subsidiary Guarantees
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
17. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
18. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Iron Mountain Incorporated
745 Atlantic Avenue
Boston, Massachusetts 02111
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: __________
Your Signature: ________________________________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee:
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.16 or 4.17 of the Indenture, check the box below:
|_| Section 4.16
|_| Section 4.17
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.16 or 4.17 of the Indenture, state the amount you
elect to have purchased: $________
Date: __________ Your Signature: _______________________________
(Sign exactly as your name appears on the Note)
Tax Identification No.: _______________________
Signature Guarantee:
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for Definitive
Notes have been made:
Principal Amount of Signature of
Amount of decrease Amount of increase in this Global Note authorized office
in Principal Amount Principal Amount of following such of Trustee or
Date of Exchange of this Global Note this Global Note decrease (or increase) Service Agent
- ---------------- ------------------- ---------------- ---------------------- -------------
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY FUTURE GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, _____, between __________________ (the "Guarantor"), a
subsidiary of Iron Mountain Incorporated (or its successor), a Pennsylvania
corporation (the "Company"), and The Bank of New York, a New York banking
corporation, as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture, dated as of April 3, 2001, as supplemented by the First
Supplemental Indenture, dated as of April 3, 2001 (the indenture, as so
supplemented, the "Indenture") providing for the issuance of an aggregate
principal amount of $225,000,000 of 8"% Senior Subordinated Notes due 2013 (the
"Notes");
WHEREAS, Section 4.13 of the Indenture provides that under certain
circumstances the Company is required to cause the Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the Guarantor
shall unconditionally guarantee all of the Company's obligations under the Notes
pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein;
and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guarantor hereby agrees that its
obligations to the Holder and the Trustee pursuant to this Subsidiary Guarantee
shall be as expressly set forth in Article XII of the Indenture and in such
other provisions of the Indenture as are applicable to the Guarantors
(including, without limitation, Article XIII of the Indenture), and reference is
made to the Indenture for the precise terms of this Supplemental Indenture. The
terms of Article XII of the Indenture and such other provisions of the Indenture
(including, without limitation, Article XIII of the Indenture) as are applicable
to the Guarantors are incorporated herein by reference.
3. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
(a) If an Officer whose signature is on this Supplemental Indenture
no longer holds that office at the time the Trustee authenticates the
Note, the Subsidiary Guarantee shall be valid nevertheless.
(b) The delivery of any Note by the Trustee, after the
authentication thereof under the Indenture, shall constitute due delivery
of the Subsidiary Guarantee set forth in this Supplemental Indenture on
behalf of the Guarantor.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder of the Guarantor, as such, shall
have any liability for any obligations of the Company or any Guarantor under the
Notes, any Subsidiary Guarantee, the Indenture or this Supplemental Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Notes.
5. NEW YORK LAW TO GOVERN. The internal law of the State of New York shall
govern and be used to construe this Supplemental Indenture and the Subsidiary
Guarantee.
6. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
Dated: _______________, _______
[Guarantor]
By: __________________________________
Name:
Title:
Dated: _______________, _______
The Bank of New York
By: __________________________________
Name:
Title:
-3-