EXHIBIT 10.4
AMENDMENT NO. 4 TO GUARANTY
AMENDMENT NO. 4 TO UNCONDITIONAL GUARANTY dated as of March 20, 2001
between IRON MOUNTAIN INCORPORATED, a Pennsylvania corporation (Guarantor),
formerly known as Xxxxxx Xxxxx Corp. as survivor by merger with Iron Mountain
Incorporated, a Delaware corporation (IM Delaware), and IRON MOUNTAIN STATUTORY
TRUST - 1999, a Connecticut statutory trust (Owner), and consented to by each of
the Lenders and Agent Bank listed on the signature pages hereto.
Guarantor and Owner are parties to a certain Unconditional Guaranty dated
as of July 1, 1999, as amended by Amendment No. 1 and Consent to Guaranty dated
as of October 22, 1999, Amendment No. 2 and Consent to Guaranty dated as of
January 31, 2000 and Amendment No. 3 and Consent to Guaranty dated as of August
16, 2000 (the Guaranty) pursuant to which Guarantor has guaranteed to Owner and
the Indemnified Parties the Guaranteed Obligations, including, without
limitation, certain obligations of Iron Mountain Records Management, Inc.
(Lessee/Agent) under (i) a Lease Agreement from Owner to Lessee/Agent dated as
of July 1, 1999 (the Lease), and (ii) an Agency Agreement between Lessee/Agent
and Owner dated as of July 1, 1999 (the Agency Agreement). Each of the Lease and
the Agency Agreement have been assigned to the Agent Bank pursuant to an
Assignment of Lease and Agency Agreement from Owner to Agent Bank and consented
to by Lessee/Agent dated as of July 1, 1999.
Guarantor has requested that the Section 10(a)(iv)(ii) of the Guaranty be
amended as set forth below. Accordingly, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Except as otherwise defined in this Agreement,
terms defined in the Guaranty are used herein as defined therein.
SECTION 2. AMENDMENTS. Subject to the terms and conditions contained
herein, the Guaranty is hereby amended as follows:
(a) SUBORDINATED INDEBTEDNESS. Section 10(a)(iv)(ii) of the Guaranty
is hereby deleted in its entirety and replaced with the following:
"(ii) any other purchase, redemption or retirement of
Subordinated Indebtedness, so long as (i) no Default has occurred and
is continuing and (ii) either (A) unless such other purchase,
redemption or retirement is in connection with a refinancing of such
Subordinated Indebtedness with the proceeds of, or in connection with
an exchange of such Subordinated Indebtedness for a new series of,
Senior Subordinated Debt issued within 60 days of the substantial
completion of such purchase, redemption or retirement, or (B) after
giving effect to such purchase, redemption or retirement, the ratio of
Senior Debt on the last day of the most recently completed fiscal
quarter of the Guarantor to EBITDA for the four quarters then ended on
a PRO FORMA basis, after giving effect to such purchase, redemption or
retirement and any Stock Repurchase consummated on or prior to
the date hereof, and to any borrowings to finance the same, as at the
last day of the latest fiscal quarter is less than or equal to 1.5 to
1."
SECTION 3. CONDITIONS OF EFFECTIVENESS. This Agreement shall become
effective as of the date hereof when, and only when, the Owner, the Lenders and
the Agent Bank shall have received a counterpart of this Agreement duly executed
by the parties hereto.
SECTION 4. REPRESENTATIONS AND WARRANTIES. As of the date hereof, Guarantor
hereby represents and warrants to Owner, Agent Bank, the Lenders and their
respective counsel that:
(a) the representations and warranties made by 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 (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 under any Operative
Document that constitutes a Default or an Event of Default.
SECTION 5. MISCELLANEOUS. Except as herein provided, the Guaranty and each
of the other Operative Documents shall remain unchanged and in full force and
effect. Upon the effectiveness of this Agreement, on and after the date hereof,
each reference in any Operative Document to the Guaranty shall mean and be a
reference to the Guaranty as amended hereby. 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 Commonwealth of Massachusetts.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereunto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
GUARANTOR:
IRON MOUNTAIN INCORPORATED
By: /s/ X.X. Xxxxxxxx
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Name: X.X.Xxxxxxxx
Title: VP & Treasurer
LENDERS:
WACHOVIA CAPITAL INVESTMENTS,
INC., as Agent Bank and as a
Lender
By: /s/ Xxxxxxx X. X'Xxxxxx, Xx.
------------------------------
Name: Xxxxxxx X. X'Xxxxxx, Xx.
Title: Senior Vice President
[GUARANTY AMENDMENT NO.4]
PNC COMMERCIAL, LLC
By: /s/ Xxxx XxXxxxx
------------------------------
Name: Xxxx XxXxxxx
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS AS
SUCCESSOR-IN-INTEREST TO
USTRUST
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
DIAMOND LEASE (U.S.A.) INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: XXXXXXX X. XXXXXXX
Title: VP, Credit Administration
BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
[GUARANTY AMENDMENT NO.4]
OWNER:
IRON MOUNTAIN STATUTORY TRUST -
1999
By: First Union National Bank,
not in its individual
capacity, but solely as
trustee
By: /s/ W. Xxxxxxx Xxxxxx
------------------------------
Name: W. XXXXXXX XXXXXX
Title: VICE PRESIDENT
[GUARANTY AMENDMENT NO.4]
