EXHIBIT 10.22
AMENDMENT AND AGREEMENT RE: LEASEHOLD IMPROVEMENTS
AMENDMENT AND AGREEMENT (this "Amendment") dated as of January 28, 1999
among IRON MOUNTAIN STATUTORY TRUST - 1998, a Connecticut statutory trust, and
with respect to any property located in Louisiana, First Union National Bank, as
Trustee for Iron Mountain Statutory Trust - 1998 Louisiana Subtrust, as lessor
(the "Lessor"), SCOTIABANC INC., a Delaware corporation, as beneficiary (the
"Beneficiary"), IRON MOUNTAIN RECORDS MANAGEMENT, INC., a Delaware corporation,
as lessee (the "Lessee"), IRON MOUNTAIN INCORPORATED, a Delaware corporation, as
Guarantor (the "Guarantor"), the financial institutions listed on the signature
pages hereto as "Lenders" (the "Lenders"), THE BANK OF NOVA SCOTIA, as agent for
the Lenders (in that capacity, the "Agent Bank") and BTM CAPITAL CORPORATION, a
Delaware corporation, as LC Issuer (the "LC Issuer").
A. The Beneficiary is the sole beneficiary of the Lessor, which was created
pursuant to an Amended and Restated Owner Trust Agreement dated as of October 1,
1998 (the "Owner Trust Agreement") between the Beneficiary and First Union
National Bank;
X. Xxxxxx has leased to Lessee, subject to the terms and conditions of a
Lease Agreement dated as of October 1, 1998, as in effect and modified from time
to time (the "Lease Agreement") between Lessor and Lessee, certain property
acquired by the Lessor and located at 000 Xxxxxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxx
(the "Harahan Leased Property");
C. To finance the acquisition of the Harahan Leased Property, (i) the
Lenders advanced $2,951,526.78 to the Lessor pursuant to the Term Loan Agreement
dated as of October 1, 1998 (the "Loan Agreement") among the Lessor, the Lenders
and the Agent Bank, which advances are evidenced by Term Notes dated November
10, 1998 (the "Harahan Notes") by the Lessor to the Lenders in like aggregate
principal amount, (ii) the Beneficiary made an Equity Investment of $91,911.85
pursuant to the terms of the Owner Trust Agreement, and (iii) the LC Issuer
issued its Letter of Credit No. B0154-2004 to the Agent Bank;
D. The Lessee, as "Agent" under the Amended and Restated Agency Agreement
dated as of October 1, 1998 (the "Agency Agreement") with the Lessor, as
"Owner", proposes to construct certain leasehold improvements at the Harahan
Leased Property, the specifications and budget for which is attached as Schedule
A hereto (the "Harahan Leasehold Improvements");
E. The Lessee has requested that the Lessor acquire and lease the Harahan
Leasehold Improvements to the Lessor pursuant to the Lease Agreement and the
Agency Agreement, and in connection therewith, that the Lenders make additional
advances of $484,900 in the aggregate under the Term Loan Agreement and the
Harahan Notes, and that the Beneficiary make an Equity Investment of $15,100
under Owner Trust Agreement (collectively, the "Additional Harahan Owner
Advances"); and
F. The Beneficiary, the Lessor, the Agent Bank, the Lenders and the LC
Issuer have agreed, subject to the terms and conditions hereof, to amend the
Lease Agreement and the Harahan Notes to permit the acquisition and leasing of
the Harahan Leasehold Improvements;
-2-
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Definitions. Except as otherwise defined in this Amendment,
terms defined in Appendix I to the Lease Agreement are used herein as defined
therein.
Section 2. Amendment and Consent. Subject to the occurrence of the
Effective Date (as defined in Section 3 below):
(a) The Beneficiary, the Lessor, the Agent Bank, the Lenders and the LC
Issuer each consent to the acquisition by the Lessor of the Harahan Improvements
and to the disbursement of the proceeds of the Additional Harahan Owner Advances
by the Lessor to the Lessee under the Agency Agreement and the Loan Agreement on
a day other than a Closing Date to pay the costs of the Harahan Leasehold
Improvements
(b) Schedule C-1 (Termination Values) and Schedule G-1 (Maximum Lessor and
Lessee Risk Amounts) to the Lease Agreement shall be amended in full to read as
set forth in Exhibits A and B hereto, respectively;
Section 3. Effective Date. This Amendment shall become effective on
the date (the "Effective Date") that the following conditions have been
satisfied:
(i) the Lessee, the Guarantor, the Beneficiary, the Lessor, the
Lenders, the Agent Bank and the LC Issuer shall each have received
counterparts of this Amendment, executed by the other parties hereto;
(ii) the Lessor shall have executed and delivered to the Agent Bank,
for delivery to each Lender, an allonge for each of the Harahan Notes in
substantially the form of Exhibit C hereto, appropriately completed;
(iii) the LC Issuer shall have executed and delivered to the Agent
Bank a Supplement to Letter of Credit No. B0154-2004 in the form attached
as Exhibit D hereto; and
(iv) each of the conditions to (x) the obligations of the Lessor as
"Owner" under Section 5.1 of the Agency Agreement, (y) the obligations of
the Lessee as "Agent" under Section 6.1 of the Agency Agreement and (z) the
obligations of the Lenders under Section 3.2 of the Loan Agreement, to the
extent applicable to the making of the Additional Harahan Owner Advances
for the purposes of paying costs consisting of Harahan Leasehold
Improvements, shall have been satisfied to the reasonable satisfaction of
the Beneficiary, the Lessor, the Agent Bank, the Lenders and the LC Issuer.
Section 4. Representations and Warranties. The Lessee and the
Guarantor each hereby represents and warrants that:
(i) The Harahan Leasehold Improvements comply with the provisions of
clauses (A), (D), (G), (H) and (I) of Section 10(c) of the Lease Agreement
and all other
-3-
requirements of Section 10(d) of the Lease Agreement;
(ii) the representations and warranties made by the Lessee and the
Guarantor in each Operative Document to which it is a party are correct on
and as of the date hereof, as though made on and as of such date; and
(iii) no event has occurred and is continuing that constitutes a
Default or an Event of Default under the Lease Agreement, the Agency
Agreement, the Guaranty or any other Operative Document to which they are a
party.
Section 5. Confirmation of Guaranty. Guarantor hereby consents to this
Amendment and hereby confirms and agrees that each of the Guaranty and the
Assignment of Guaranty is, and shall continue to be, in full force and effect
and is hereby ratified and confirmed in all respects.
Section 6. Miscellaneous. Except as specifically provided herein, the
Lease Agreement and each of the other Operative Documents shall remain unchanged
and in full force and effect. This Amendment 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 Amendment by signing
any such counterpart. This Amendment and the rights and obligations in respect
hereof shall be governed by, and construed and interpreted in accordance with,
the laws of the Commonwealth of Massachusetts, except to the extent that in
seeking to enforce this Amendment with respect to a Leased Property, the laws of
the state in which such Leased Property is located require that its laws govern,
notwithstanding the express intent of the parties hereto.
Section 7. Louisiana Property. In this Agreement, "Lessor" shall mean
and include both Iron Mountain Statutory Trust - 1998, a Connecticut statutory
trust having an address at c/o First Union National Bank, 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000 and First Union National Bank as trustee of the Iron
Mountain Statutory Trust - 1998 Louisiana Subtrust, such subtrust being referred
to herein as the "Louisiana Subtrust." All references hereunder to "Lessor"
shall be deemed to include the Louisiana Subtrust.
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
LESSOR
------
IRON MOUNTAIN STATUTORY TRUST - 1998
By: First Union National Bank, not in its individual
capacity, except as expressly set forth herein, but
solely as trustee under the Amended and Restated Owner
Trust Agreement dated as of October 1, 1998
AND
FIRST UNION NATIONAL BANK, a national banking institution,
not in its individual capacity, but solely as Trustee of the
IRON MOUNTAIN STATUTORY TRUST - 1998 LOUISIANA SUBTRUST
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
THE BENEFICIARY
---------------
SCOTIABANC INC.
By: /s/ X. X. Xxxxx
--------------------------------
Name: X. X. Xxxxx
Title: Managing Director
THE LESSEE
----------
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
By: /s/ X. X. Xxxxxxxx
---------------------------------
Name: X. X. Xxxxxxxx
Title: Vice President, Treasurer
-5-
THE GUARANTOR
-------------
IRON MOUNTAIN INCORPORATED
By: /s/ X. X. Xxxxxxxx
--------------------------------
Name: X. X. Xxxxxxxx
Title: Vice President, Treasurer
THE LENDERS
-----------
THE BANK OF NOVA SCOTIA,
as Lender and as Agent Bank
By: /s/ X. X. Xxxxxxx
---------------------------------
Name: X. X. Xxxxxxx
Title: Authorized Signatory
BANKBOSTON, N.A.
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
US TRUST
By: /s/ X. X. Xxxxxxx
---------------------------------
Name: X. X. Xxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
-6-
THE LC ISSUER
-------------
BTM CAPITAL CORPORATION
By: /s/ Xxxxxx X. X'Xxxxx
---------------------------------
Name: Xxxxxx X. X'Xxxxx
Title: Senior Vice President
[Schedules and Exhibits Omitted:
Schedule A: Description of Harahan Improvements
Exhibit A: Restated Schedule C-1 to Lease Agreement
Exhibit B: Restated Schedule G-1 to Lease Agreement
Exhibit C: Form of Allonge to Term Note
Exhibit D: Form of Supplement to Letter of Credit]
