AMENDMENT XX. 0
XXXXXXXXX XX. 0 (this "Agreement") dated as of July 14, 1999
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 at any one time outstanding 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 and (ii) the written
consent and agreement hereto by the Subsidiary Guarantors as provided at the
foot hereof, but effective as of the date hereof, the Credit Agreement is hereby
amended as follows:
A. Definitions. (w) Section 1.01 of the Credit Agreement is
hereby amended by inserting the following definitions (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):
"Funded Indebtedness" shall mean, without
duplication, (a) Indebtedness (other than in respect of
Synthetic Lease Obligations) that matures or otherwise becomes
due more than one year after the incurrence thereof or is
extendible, renewable or refundable, at the option of the
obligor, to a date more than one year after the incurrence
thereof (including the current portion thereof), (b)
Indebtedness outstanding hereunder and (c) Synthetic Lease
Obligations of IMRM and any Guarantees by the Company thereof.
"Interest Expense" shall mean, for any period, the
sum (determined without duplication) of the aggregate amount
of interest accruing during such period on Indebtedness of the
Company and its Subsidiaries (on a consolidated basis),
including the interest portion of rental or similar payments
under Capital Lease Obligations and Synthetic Leases and any
capitalized interest, and excluding amortization of debt
discount and expense and interest paid in kind.
AMENDMENT NO. 5
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"Synthetic Lease" shall mean a lease of property or
assets designed to permit the lessee (i) to claim depreciation
on such property or assets under U.S. tax law and (ii) to
treat such lease as an operating lease or not to reflect the
leased property or assets on the lessee's balance sheet under
GAAP.
"Synthetic Lease Obligations" shall mean, with
respect to any Synthetic Lease, at any time, an amount equal
to the higher of (x) the aggregate termination value or
purchase price or similar payments in the nature of principal
payable thereunder and (y) the then aggregate outstanding
principal amount of the notes or other instruments issued by,
and the amount of the equity investment, if any, in, the
lessor under such Synthetic Lease.
(x) The definition of "EBITDA" in Section 1.01 of the Credit
Agreement is hereby amended by restating clause (iii) thereof as
follows:
"(iii) Interest Expense for such period,"
(y) The definition of "Indebtedness" in Section 1.01 of the
Credit Agreement is hereby amended by restating clause (iii) thereof as
follows:
"(iii) Capital Lease Obligations and Synthetic Lease
Obligations of such Person;"
(z) The definition of "Permitted Indebtedness" in Section 1.01
of the Credit Agreement is hereby amended by substituting "$10,000,000"
for "$5,000,000" in clause (viii) thereof.
B. Financial Statements and Other Information. (x) Paragraph
(b) of Section 9.01 of the Credit Agreement is hereby amended by
substituting "105" for "90" therein.
(y) Section 9.01 of the Credit Agreement is hereby amended by
restating paragraph (i) thereof as follows:
"(i) within 60 days after the end of each fiscal
quarter of the Company (or, in the case of the last fiscal
quarter in each fiscal year, within 105 days), a report,
certified by the Chief Financial Officer of the Company, (x)
specifying the Capital Expenditures made by the Company during
such fiscal quarter (broken down to identify Maintenance
Capital Expenditures and other Capital Expenditures) and the
Additional Expenditures made by the Company during such fiscal
quarter and (y) describing the principal terms of the
Synthetic Lease Obligations entered into by IMRM during such
fiscal quarter and any Guarantees by the Company thereof; and"
C. Indebtedness. Section 9.08 of the Credit Agreement is
hereby amended by restating clause (vi) thereof as follows:
AMENDMENT NO. 5
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"(vi) Synthetic Lease Obligations of IMRM and any Guarantees
by the Company thereof under the Lease Agreement dated as of October 1,
1998 with Iron Mountain Statutory Trust - 1998 and other Synthetic
Lease Obligations with a structure and terms substantially similar to
said transaction (provided, that the aggregate amount of all such
Synthetic Lease Obligations permitted under this clause (vi) shall not
at any time exceed $152,500,000 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)."
D. Indebtedness. The Leverage Ratio grid in Section 9.09(a) of
the Credit Agreement is hereby amended to read as follows:
Period Leverage Ratio
From July 1, 1999
through December 31, 2000 5.75 to 1
From January 1, 2001
through December 31, 2001 5.50 to 1
From January 1, 2002
through June 30, 2002 5.25 to 1
From July 1, 2002
and at all times thereafter 5.00 to 1
E. Interest Coverage Ratio. The Interest Coverage Ratio grid
in Section 9.10 of the Credit Agreement is hereby amended to read as follows:
Period Interest Coverage Ratio
From January 1, 1999
through December 31, 1999 1.85 to 1
From January 1, 2000
through December 31, 2001 2.00 to 1
From January 1, 2002
and at all times thereafter 2.25 to 1
F. Mergers, Asset Dispositions, Etc. Paragraphs (a) and (b) of
Section 9.12 of the Credit Agreement are hereby amended to read as follows:
AMENDMENT NO. 5
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"(a) Maximum Periodic Consideration. Without the consent of
the Majority Lenders, the aggregate amount of Acquisition Consideration
(including Stock Consideration) paid in respect of Acquisitions shall
not exceed $250,000,000 in any year after 1998; provided that the
aggregate amount of Acquisition Consideration excluding Stock
Consideration paid in respect of Acquisitions shall not exceed
$175,000,000 in any year after 1998; provided further that the Rain
Acquisition shall, so long as (i) no Default has occurred and is
continuing at the time of such Acquisition and (ii) the Rain
Acquisition complies with the requirements of this Section 9.12 (other
than clauses (a) and (b) hereof), (1) be excluded from the limitations
set forth in this clause (a) and be disregarded in determining whether
any other Acquisition in the year 1999 is in compliance with the
applicable Acquisition Consideration limits set forth above and (2) be
deemed to be a "Permitted Acquisition" for all purposes of this
Agreement.
(b) Maximum Individual Consideration. Without the consent of
the Majority Lenders, the Acquisition Consideration (including Stock
Consideration) paid in respect of any single Acquisition or series of
related Acquisitions shall not exceed $100,000,000, provided that the
Rain Acquisition shall not be subject to the limitation in this clause
(b)."
G. Investments. Paragraph (vii) of Section 9.14 of the Credit
Agreement is hereby amended by substituting "$10,000,000" for "$5,000,000"
therein.
H. Capital Expenditures. Section 9.19 of the Credit Agreement
is hereby amended by substituting "$100,000,000" for "$50,000,000" therein.
I. General. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby.
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 the representations and warranties in this Section 3 shall
constitute an Event of Default under Section 10.01(c) of the Credit
Agreement).
AMENDMENT NO. 5
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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 counterpart. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
AMENDMENT NO. 5
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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/X.X. Xxxxxxxx
Name: X.X. Xxxxxxxx
Title: Vice President, Treasurer
THE ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK
By /s/Xxxxxxx Lancia
Name: Xxxxxxx Lancia
Title: Vice President
THE LENDERS
THE CHASE MANHATTAN BANK
By /s/Xxxxxxx Lancia
Name: Xxxxxxx Lancia
Title: Vice President
BANKBOSTON, N.A.
By /s/Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Director
AMENDMENT XX. 0
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XXX XXXX XX XXX XXXX
By /s/Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Vice President
CIBC INC.
By /s/Xxxxxxxxx Xxxxxxxx
Name: Xxxxxxxxx Xxxxxxxxx
Title: Executive Director
FLEET NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: First Vice President-Manager
US TRUST
By /s/ X. X. Xxxxxxx
Name: Xxxxxxx, X. X.
Title: Vice President
AMENDMENT NO. 5
-8-
UNION BANK OF CALIFORNIA, N.A.
By /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/X. X. Xxxxxxx
Name: X. X. Xxxxxxx
Title: Authorized Signatory
XXXXXX FINANCIAL, INC.
By /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
NATIONAL CITY BANK
By /s/Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG (f/k/a GIROCREDIT BANK
AG DER SPARKASSEN, GRAND CAYMAN
ISLAND BRANCH)
By /s/Xxxxxxx Xxxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President
By /s/Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: First Vice President
AMENDMENT NO. 5
-9-
CONSENTED TO AND AGREED:
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
DSI TECHNOLOGY ESCROW SERVICES, INC.
IRON MOUNTAIN/SAFESITE, INC.
IRON MOUNTAIN CONSULTING SERVICES, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF SAN XXXXXXX-XX, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF SAN ANTONIO, INC.
CRITERION ATLANTIC PROPERTY, INC.
IM BILLERICA, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF MICHIGAN, INC.
IRON MOUNTAIN SAFE DEPOSIT CORPORATION
IRON MOUNTAIN / NATIONAL UNDERGROUND STORAGE, INC.
IRON MOUNTAIN OF MARYLAND, LLC
ARCUS DATA SECURITY, 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.
IM-AEI ACQUISITION CORPORATION
IRON MOUNTAIN RECORDS MANAGEMENT OF UTAH, INC.
ARCUS STAFFING RESOURCES, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF OHIO, INC.
IRON MOUNTAIN GLOBAL, INC.
ARCUS DATA SECURITY LLC
By /s/ X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: Vice President, Treasurer
