EXHIBIT 10.1
CONFORMED COPY
AMENDMENT NO. 2
AMENDMENT NO. 2 (this "Agreement") dated as of November 9,
1998 among IRON MOUNTAIN INCORPORATED, a Delaware corporation (the "Company");
each of the lenders (the "Lenders") listed on the signature pages hereof; and
THE CHASE MANHATTAN BANK, as administrative agent for the Lenders under the
Credit Agreement referred to below (in such capacity, the "Administrative
Agent").
The Company, the Lenders and the Administrative Agent are
parties to a Second Amended and Restated Credit Agreement dated as of September
26, 1997 (as from time to time amended, the "Credit Agreement"), providing,
subject to the terms and conditions thereof, for extensions of credit (by the
making of loans and the issuing of letters of credit) by the Lenders to the
Company in an aggregate principal or face amount not exceeding $250,000,000. The
Company has requested the Lenders to amend the Credit Agreement in certain
respects, and the Lenders are willing to so amend the Credit Agreement, all on
the terms and conditions set forth herein. Accordingly, the parties hereto
hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Agreement, terms defined in the Credit Agreement are used herein as defined
therein.
Section 2. Amendments. Subject to (i) the Administrative
Agent's receipt of counterparts of this Agreement, duly executed by each of the
Company, the Majority Lenders and the Administrative Agent, (ii) the consent and
agreement hereto by the Subsidiary Guarantors and (iii) payment by the Company
to the Administrative Agent of such fees as the Company shall have agreed to pay
in connection herewith, but effective as of the date hereof, the Credit
Agreement shall be amended as follows:
A. Definitions. Section 1.01 of the Credit Agreement is
amended by inserting the following definitions in their appropriate
alphabetical locations (or, in the case of any definition for a term
that is defined in the Credit Agreement before giving effect to this
Agreement, by amending and restating such definition to read as set
forth below):
"Arcus UK" shall mean Arcus Data Security Limited, an
English company that, prior to the formation of the Pond Joint
Venture, was wholly owned by Arcus Data Security, Inc., a
Delaware corporation and Wholly Owned Subsidiary of the
Company.
"Excluded Subsidiary" shall mean any Subsidiary of
the Company principally engaged in the records management
business organized outside of the United States of America.
"IMRM" shall mean Iron Mountain Records Management,
Inc., a Delaware corporation and a Wholly-Owned Subsidiary of
the Company.
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"IMST" shall mean Iron Mountain Statutory Trust -
1998, a Connecticut statutory trust.
"Pond Joint Venture" shall mean Britannia Data
Management Limited, an English company, a majority of the
shares of Capital Stock of which (immediately after giving
effect to the Pond Transaction) will be owned by the Company
or a Subsidiary of the Company.
"Pond Transaction" shall mean (i) the contribution by
the Company or a Subsidiary of the Company to the Pond Joint
Venture of Capital Stock of Arcus UK having a fair market
value of up to but not exceeding (pound)2,000,000 and (ii) the
purchase by the Company or a Subsidiary of the Company of
Capital Stock of the Pond Joint Venture for an aggregate
consideration of up to but not exceeding (pound)37,250,000.
"Synthetic Lease Obligations shall mean the
obligations of IMRM under (i) the Lease Agreement between
IMRM, as lessee, and IMST, as lessor, in substantially the
form furnished by the Company to the Administrative Agent on
November 6, 1998, and (ii) the Assignment of Lease and Agency
Agreement among IMST, IMRM and the Bank of Nova Scotia, as
agent bank, in substantially the form furnished by the Company
to the Administrative Agent on November 6, 1998.
B. EBITDA. The definition of "EBITDA" in Section 1.01 of the
Credit Agreement is hereby amended by restating the second paragraph
therein as follows:
"For the purposes of calculating the ratios set forth
in Sections 9.09(a), 9.10 and 9.11 there may, at the Company's
option, and for purposes of calculating the ratio set forth in
Section 9.09(b) there will, be included in EBITDA for any
relevant period, on a pro forma basis (adjusted to give effect
to expenses that will not be ongoing), the net income (and the
additions and subtractions thereto referred to above) for such
period of any Person (or assets) acquired after the
commencement of such period in connection with any Permitted
Acquisition or any acquisition pursuant to Sections
9.14(viii)(b) and 9.14(viii)(c) hereof having Acquisition
Consideration, in the case of any such Permitted Acquisition,
or an aggregate amount of consideration paid, in the case of
such acquisition pursuant to Section 9.14(viii)(b) and
9.14(viii)(c) hereof, of more than $500,000. The net income
(and the related additions and subtractions) of the Person or
assets acquired pursuant to such acquisition for such period
shall be calculated by reference to the most recent available
quarterly financial statements of the acquired business,
annualized."
C. Permitted Indebtedness. The definition of "Permitted
Indebtedness" in Section 1.01 of the Credit Agreement is hereby amended
by restating clause (vii) therein as follows:
AMENDMENT ▇▇. ▇
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"(▇▇▇) ▇▇▇▇▇▇▇▇▇▇▇▇ of the Company in an aggregate
outstanding principal amount not at any time exceeding
$10,000,000;"
D. Financial Statements and Other Information. (x) Section
9.01 of the Credit Agreement is hereby amended by (i) substituting, in
the beginning lines thereof, "The Company shall deliver to each of the
Lenders (except as provided in paragraph (e) below):" for "The Company
shall deliver to each of the Lenders:" and (ii) restating paragraph (e)
thereof as follows:
"(e) promptly upon the filing thereof, copies of all
registration statements (other than any registration
statements on Form S-8 or its equivalent) and any reports
which the Company shall have filed with the Securities and
Exchange Commission, which shall be delivered to the
Administrative Agent and any Lenders upon such Lender's
request;"
(y) Section 9.01 of the Credit Agreement is hereby
further amended by substituting "105 days" for "90 days" in paragraph
(a) thereof and by substituting "60 days" for "45 days" in paragraph
(b) thereof.
E. Indebtedness. Section 9.08 of the Credit Agreement is
hereby amended by deleting the "and" before the beginning of clause
(iv) thereof, deleting the period at the end of clause (iv) thereof,
and adding the following thereto:
"; (v) so long as no Default shall have occurred and
be continuing hereunder at the time of such creation or
incurrence, Indebtedness created or incurred by the Pond Joint
Venture or any Excluded Subsidiary (subject to the limitations
set forth in Section 9.09 hereof, and provided that any
Indebtedness incurred under this clause (v) shall be without
recourse to and shall not be Guaranteed by the Company or any
Subsidiary (other than the Pond Joint Venture or any Excluded
Subsidiary) of the Company); and (vi) the Synthetic Lease
Obligations and the guarantee by the Company thereof
(provided, that the aggregate principal amount of the
Synthetic Lease Obligations shall not at any time exceed
$47,500,000 and that such obligations shall be without
recourse to any Subsidiary (other than IMRM) of the Company
and shall not be Guaranteed by any Subsidiary of the
Company)."
F. Leverage Ratios. Section 9.09 of the Credit Agreement is
hereby amended to read as follows:
"9.09 Leverage Ratios. (a) The Company will not, as
at the end of any fiscal quarter, permit the ratio, calculated
as at the end of such fiscal quarter for the period of four
fiscal quarters then ended, of (i) the excess of (x) the
aggregate outstanding principal amount of Funded Indebtedness
(on a consolidated basis) of the Company and its Subsidiaries
at such date over (y) the aggregate amount of cash and Liquid
Investments of the Company and Subsidiaries at such date to
(ii) EBITDA for such
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period (the "Leverage Ratio") to exceed the ratio set forth
below:
Period Leverage Ratio
From the Amendment and Restatement Effective Date
through December 31, 1998 6.00 to 1
From January 1, 1999
through June 30, 1999 5.75 to 1
From July 1, 1999
through December 31, 1999 5.50 to 1
From January 1, 2000
through June 30, 2000 5.25 to 1
From July 1, 2000
through December 31, 2000 5.00 to 1
From January 1, 2001
through June 30, 2001 4.75 to 1
From July 1, 2001
and at all times thereafter 4.50 to 1
(b) The Company will not, as at the end of any fiscal
quarter, permit the ratio, calculated as at the end of such
fiscal quarter for the period of four fiscal quarters then
ended, of (i) the excess of (x) the aggregate outstanding
principal amount of Indebtedness (on a consolidated basis) of
the Pond Joint Venture and each Excluded Subsidiary at such
date over (y) the aggregate amount of cash and Liquid
Investments of the Pond Joint Venture and each Excluded
Subsidiary at such date to (ii) EBITDA for such period (the
"Foreign Leverage Ratio") to exceed 3.50 to 1. Solely for
purposes of this clause (b), in determining the Foreign
Leverage Ratio, EBITDA shall be determined by including only
the Pond Joint Venture and each Excluded Subsidiary."
G. Interest Coverage Ratio. Section 9.10 of the Credit
Agreement is hereby amended by restating the ratio grids therein to
read as follows:
"Period Interest Coverage
Ratio
From the Amendment and Restatement Effective
Date through December 31, 1998 1.70 to 1
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From January 1, 1999
through December 31, 1999 1.85 to 1
From January 1, 2000
through December 31, 2000 2.00 to 1
From January 1, 2001
through September 30, 2001 2.25 to 1
From October 1, 2001
and at all times thereafter 2.50 to 1"
H. Mergers, Asset Dispositions, Etc. Clause (viii) of Section
9.12 of the Credit Agreement is hereby amended to read as follows:
"(viii) so long as no Default shall have occurred and
be continuing hereunder at the time of such Acquisition or
transaction, Permitted Acquisitions and related Additional
Expenditures and any other transaction expressly permitted by
Section 9.14 hereof; provided that any such Permitted
Acquisition is an acquisition of another business operating
principally in the United States of America."
I. Liens. (1) Clause (iii) of Section 9.13 of the Credit
Agreement is hereby amended to read as follows:
"(iii) Liens contemplated by, or securing
Indebtedness described in, clauses (ii), (iv), (v) and (vii)
of the definition of Permitted Indebtedness."
(2) Section 9.13 of the Credit Agreement is hereby
further amended by deleting the "and" before the beginning of clause
(vi) thereof, deleting the period at the end of clause (vi) thereof,
and adding the following thereto:
"; (vii) Liens securing Indebtedness permitted by
clause (v) of Section 9.08 hereof, provided that such Liens
extend only to the assets of the Pond Joint Venture or any
Excluded Subsidiary incurring such Indebtedness as a primary
obligor (and not as a Guarantor) or Capital Stock of the Pond
Joint Venture or such Excluded Subsidiary; and (viii) Liens on
property leased by IMRM pursuant to the Synthetic Lease
Obligations permitted by clause (vi) of Section 9.08 hereof."
J. Investments. Section 9.14(v) of the Credit Agreement is
hereby amended to read as follows:
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"(v) (w) equity Investments in Wholly-Owned
Subsidiaries of the Company; (x) additional equity Investments
in Subsidiaries of the Company (other than Wholly-Owned
Subsidiaries) with the prior written consent of the Majority
Lenders; (y) additional equity Investments in any Person
principally engaged in the same line or lines of business as
the Company and its Subsidiaries, provided that the aggregate
amount invested pursuant to this clause (y) shall not exceed
(i) $85,000,000 minus (ii) the aggregate consideration paid or
contributed by the Company or any Subsidiary of the Company
pursuant to the Pond Transaction (converted into Dollars at
the applicable spot rate of exchange, as determined by the
Company, on the date of the consummation of the Pond
Transaction); and (z) Investments in the form of loans,
advances or other obligations owed by any Wholly-Owned
Subsidiary to the Company, and Investments in the form of
loans, advances or other obligations owed by the Company to
any Wholly-Owned Subsidiary; provided that the aggregate
amount of Investments by the Company permitted by subclauses
(w) or (z) of this clause (v) in any Subsidiary of the Company
that is a mortgagor under any Permitted Mortgage shall not
exceed, in the aggregate for all such Subsidiaries,
$10,000,000 at any one time outstanding;"
K. Investments. Clause (viii) of Section 9.14 of the Credit
Agreement is hereby amended to read as follows:
"(viii) Investments consisting of (a) Permitted
Acquisitions in accordance with Section 9.12 hereof; (b) the
Pond Transaction; and (c) any acquisition (by purchase of
shares, merger or otherwise) by the Pond Joint Venture or any
Excluded Subsidiary of (x) a majority of the shares of Capital
Stock of any Person principally engaged in the same line or
lines of business as the Company and its Subsidiaries or (y)
assets principally related to the records management
business."
L. Capital Expenditures. Section 9.19 of the Credit Agreement
is hereby amended by substituting "$50,000,000" for "$40,000,000" in
the first sentence thereof.
M. Certain Obligations Respecting Subsidiaries. Section
9.22(a) of the Credit Agreement is hereby amended to read as follows:
"(a) The Company will, and will cause each of its
Subsidiaries to, take such action from time to time as shall
be necessary to ensure that the Company and each of its
Subsidiaries at all times owns (subject only to the Lien of
the Security Documents) (i) all of the issued and outstanding
shares of each class of Capital Stock of each of such Person's
Subsidiaries (other than, in each case, Capital Stock of
Excluded Subsidiaries) and (ii) more than 50% of the issued
and outstanding shares of Capital Stock of each Person
acquired pursuant to clauses (b) and (c) of Section 9.14(viii)
hereof. Without limiting the generality of the foregoing, the
Company shall not, and shall not permit any of its
Subsidiaries to, sell, transfer or otherwise
AMENDMENT NO. 2
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dispose of any shares of stock in any Subsidiary (other than
an Excluded Subsidiary) owned by them, nor permit any
Subsidiary of the Company (other than an Excluded Subsidiary)
to issue any shares of Capital Stock of any class whatsoever
to any Person (other than to the Company or to another
Wholly-Owned Subsidiary or pursuant to Section 9.12 hereof).
In the event that any such additional shares of Capital Stock
shall be issued by any Subsidiary of the Company, or any
Subsidiary shall be acquired, the Company agrees (so long as
the certificates evidencing such shares of stock are not
subject to a lien permitted under Section 9.13(vii) hereof,
and in any event subject to clause (c) below) forthwith to
deliver to the Administrative Agent pursuant to the Security
Documents the certificates evidencing such shares of stock,
accompanied by undated stock powers executed in blank and
shall take such other action as the Administrative Agent shall
request to perfect the security interest created therein
pursuant to the Security Documents."
N. Events of Default. Section 10.01(h) of the Credit Agreement
is hereby amended to read as follows:
"(h) a final judgment or judgments for the payment of
money shall be rendered by a court or courts against the
Company or any of its Subsidiaries in excess of $1,000,000 in
the aggregate, and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of
execution thereof shall not be procured, within 30 days from
the date of entry thereof, or the Company or such Subsidiary
shall not, within said period of 30 days, or such longer
period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be
stayed during such appeal; or"
Section 3. Representations and Warranties. The Company hereby
represents and warrants to the Administrative Agent and the Lenders that:
(a) the representations and warranties made by each of the
Company and the Subsidiary Guarantors in each Basic Document to which
it is a party (other than the representations and warranties set forth
in paragraphs (a) and (b) of Section 8.10 of the Credit Agreement) are
correct on and as of the date hereof, as though made on and as of such
date (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date); and
(b) no event has occurred and is continuing that constitutes a
Default or an Event of Default (and the parties agree that breach of
any of said representations and warranties shall constitute an Event of
Default under Section 10.01(c) of the Credit Agreement).
Section 4. Miscellaneous. Except as herein provided, the
Credit Agreement and each of the other Basic Documents shall remain unchanged
and in full force and effect. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such
AMENDMENT NO. 2
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counterpart. This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York.
AMENDMENT NO. 2
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE COMPANY
IRON MOUNTAIN INCORPORATED
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Treasurer
THE ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE LENDERS
THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANKBOSTON, N.A.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
AMENDMENT ▇▇. ▇
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▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By /s/ ▇▇▇▇▇ ▇. Judge
Name: ▇▇▇▇▇ ▇. Judge
Title: Senior Vice President
CIBC INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
FLEET NATIONAL BANK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President - Manager
US TRUST
By /s/ ▇. ▇. ▇▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Vice President
AMENDMENT NO. 2
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UNION BANK OF CALIFORNIA, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ ▇. ▇. ▇▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ FINANCIAL, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
NATIONAL CITY BANK
By /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG (f/k/a GIROCREDIT BANK
AG DER SPARKASSEN, GRAND CAYMAN
ISLAND BRANCH)
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: Arcinee Hovessian
Title: Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: First Vice President
AMENDMENT NO. 2
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CONSENTED TO AND AGREED:
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
DATA SECURITIES INTERNATIONAL, INC.
IRON MOUNTAIN/SAFESITE, INC.
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
IM SAN DIEGO, INC.
IRON MOUNTAIN CONSULTING SERVICES, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF SAN ▇▇▇▇▇▇▇-▇▇, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF SAN ANTONIO, INC.
CRITERION ATLANTIC PROPERTY, INC.
HOLLYWOOD PROPERTY, INC.
IM ▇▇▇▇▇▇▇, INC.
IM BILLERICA, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF MICHIGAN, INC.
IRON MOUNTAIN SAFE DEPOSIT CORPORATION
NATIONAL UNDERGROUND STORAGE, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF MARYLAND, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF MISSOURI, LLC
ARCUS DATA SECURITY, INC.
▇▇▇▇▇▇ DATA SERVICES, INC.
HIMSCORP OF PHILADELPHIA, INC.
RECORDKEEPERS, INC.
HIMSCORP OF PITTSBURGH, INC.
HIMSCORP OF CLEVELAND, INC.
HIMSCORP OF NEW ORLEANS, INC.
HIMSCORP OF PORTLAND, INC.
HIMSCORP OF SAN DIEGO, INC.
HIMSCORP OF DETROIT, INC.
HIMSCORP OF LOS ANGELES, INC.
HIMSCORP OF HOUSTON, INC.
COPYRIGHT, INC.
IM-AEI ACQUISITION CORPORATION
IRON MOUNTAIN RECORDS MANAGEMENT OF UTAH, INC.
ARCUS STAFFING RESOURCES, INC.
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Treasurer
AMENDMENT NO. 2
