EXHIBIT 10.36
SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY (as amended, modified or supplemented from time to
time, this "SUBSIDIARY GUARANTY"), dated as of May 22, 2001, by each of the
corporations identified under the caption "SUBSIDIARY GUARANTORS" on the
signature pages hereto (each individually, together with their respective
successors, a "SUBSIDIARY GUARANTOR" and, collectively, the "SUBSIDIARY
GUARANTORS") for the benefit of IRON MOUNTAIN STATUTORY TRUST - 2001, a
Connecticut statutory trust, as lessor under the Master Lease (as defined below)
(in such capacity, together with its successors in such capacity, the "LESSOR").
W I T N E S S E T H :
WHEREAS, in connection with that certain Master Lease and Security
Agreement (as amended, modified or supplemented from time to time, the "MASTER
LEASE") dated as of the date hereof between the Lessor and Iron Mountain Records
Management, Inc., a Delaware corporation (together with its successors, the
"LESSEE"), the Subsidiary Guarantors entered into a Subsidiary Guaranty (the
"PRIOR DOCUMENT") dated as of the date hereof in favor of The Bank of Nova
Scotia, as swap counterparty under that certain ISDA Master Agreement (as
amended, modified or supplemented from time to time, the "LESSOR INTEREST RATE
HEDGE AGREEMENT") dated as of the date hereof; and
WHEREAS, the Prior Document does not reflect the original intention of
the parties thereto or hereto and was entered into by mistake; and
WHEREAS, the Subsidiary Guarantors are entering into this Subsidiary
Guaranty as of the date of the Prior Document in order to reflect the correct
intention of the parties to the Prior Document, which is for the Subsidiary
Guarantors to guarantee certain obligations of the Lessee to the Lessor in
respect of the Lessor Interest Rate Hedge Agreement in a manner which is
consistent with the treatment of the Master Lease as an operating lease for
financial accounting and reporting purposes;
NOW THEREFORE, each Subsidiary Guarantor agrees as follows:
Section 1. THE GUARANTEE.
1.1. THE GUARANTEE. The Subsidiary Guarantors hereby jointly and
severally guarantee to the Lessor the prompt payment and performance of all
obligations of the Lessee under SECTION 7.3(b) of the Master Lease when due
(whether at stated maturity, by acceleration or otherwise) (collectively, the
"GUARANTEED OBLIGATIONS). The Subsidiary Guarantors hereby further jointly and
severally agree that if any Subsidiary Guarantor shall fail to pay or perform
when due (whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, the other Subsidiary Guarantors will promptly pay the
same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal. This Subsidiary Guaranty shall replace the Prior Document in all
respects and shall govern the obligations of the Subsidiary Guarantors with
respect to the Lessor Interest Rate Hedge Agreement from and after the date of
the Prior Document. The Prior Document is hereby rescinded and declared to be
void AB INITIO.
1.2. OBLIGATIONS UNCONDITIONAL. The obligations of the Subsidiary
Guarantors under SECTION 1.1 are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the Master Lease or any other agreement or instrument referred to herein or
therein, or any substitution, release or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this SECTION 1.2 that the
obligations of the Subsidiary Guarantors hereunder shall be absolute and
unconditional, joint and several, under any and all circumstances. Without
limiting the generality of the foregoing, it is agreed that the occurrence of
any one or more of the following shall not alter or impair the liability of the
Subsidiary Guarantors hereunder, which shall remain absolute and unconditional
as described above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
the Master Lease or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under
the Master Lease or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor
of, the Lessor as security for any of the Guaranteed Obligations shall
fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Lessor exhaust any right, power or remedy or proceed against the Lessee under
the Master Lease or any other agreement or instrument referred to herein or
therein, or against any other person under any other guarantee of, or security
for, any of the Guaranteed Obligations.
1.3. REINSTATEMENT. The obligations of the Subsidiary Guarantors
under this SECTION 1 shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the Lessee in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Subsidiary Guarantors jointly
and severally agree that they will indemnify the Lessor on demand for all
reasonable costs and expenses (including, without limitation, fees of counsel)
incurred by the Lessor in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
1.4. SUBROGATION. The Subsidiary Guarantors hereby jointly and
severally agree that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration or termination of the obligations of
the Lessor under the Master Lease they shall not exercise any right or remedy
arising by reason of any performance by them of their guarantee in SECTION 1.1,
whether by subrogation or otherwise, against the Lessee or any other guarantor
of any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
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1.5. REMEDIES. The Subsidiary Guarantors jointly and severally agree
that, as between the Subsidiary Guarantors and the Lessor, the obligations of
the Lessee under the Master Lease may be declared to be forthwith due and
payable as provided in the Master Lease (and shall be deemed to have become
automatically due and payable in the circumstances provided therein) for
purposes of SECTION 1.1 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Lessee and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Lessee) shall forthwith become due and payable by the Subsidiary Guarantors for
purposes of said SECTION 1.1.
1.6. INSTRUMENT FOR THE PAYMENT OF MONEY. Each Subsidiary Guarantor
hereby acknowledges that the guarantee in this SECTION 1 constitutes an
instrument for the payment of money, and consents and agrees that the Lessor, at
its sole option, in the event of a dispute by such Subsidiary Guarantor in the
payment of any moneys due hereunder, shall have the right to bring motion-action
under New York CPLR Section 3213.
1.7. CONTINUING GUARANTEE. The guarantee in this SECTION 1 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
1.8. RIGHTS OF CONTRIBUTION. The Subsidiary Guarantors hereby agree,
as between themselves, that if any Subsidiary Guarantor shall become an Excess
Funding Subsidiary Guarantor (as defined below) by reason of the payment by such
Subsidiary Guarantor of any Guaranteed Obligations, each other Subsidiary
Guarantor shall, on demand of such Excess Funding Subsidiary Guarantor (but
subject to the next sentence), pay to such Excess Funding Subsidiary Guarantor
an amount equal to such Subsidiary Guarantor's Pro Rata Share (as defined below
and determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Subsidiary Guarantor) of the Excess Payment
(as defined below) in respect of such Guaranteed Obligations. The payment
obligation of a Subsidiary Guarantor to any Excess Funding Subsidiary Guarantor
under this SECTION 1.8 shall be subordinate and subject in right of payment to
the prior payment in full of the obligations of such Subsidiary Guarantor under
the other provisions of this SECTION 1 and such Excess Funding Subsidiary
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations.
For purposes of this SECTION 1.8, (i) "EXCESS FUNDING SUBSIDIARY
GUARANTOR" shall mean, in respect of any Guaranteed Obligations, a Subsidiary
Guarantor that has paid an amount in excess of its Pro Rata Share of such
Guaranteed Obligations, (ii) "EXCESS PAYMENT" shall mean, in respect of any
Guaranteed Obligations, the amount paid by an Excess Funding Subsidiary
Guarantor in excess of its Pro Rata Share of such Guaranteed Obligations and
(iii) "PRO RATA SHARE" shall mean, for any Subsidiary Guarantor, the ratio
(expressed as a percentage) of (x) the amount by which the aggregate fair
saleable value of all properties of such Subsidiary Guarantor (excluding any
shares of stock of any other Subsidiary Guarantor) exceeds the amount of all the
debts and liabilities of such Subsidiary Guarantor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Subsidiary Guarantor hereunder and any obligations of any
other Subsidiary Guarantor may have been guaranteed by such Subsidiary
Guarantor) to (y) the amount by which the aggregate fair saleable value of all
properties of all of the Subsidiary Guarantors exceeds the amount of all the
debts and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of the Subsidiary
Guarantors hereunder) of all of the Subsidiary Guarantors, determined (A) with
respect to any Subsidiary Guarantor that is a party hereto on the date hereof,
as of the date hereof, and (B) with respect to any other Subsidiary Guarantor,
as of the date such Subsidiary Guarantor becomes a Subsidiary Guarantor
hereunder.
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1.9. GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In any action or
proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
SECTION 1.1 would otherwise, taking into account the provisions of SECTION 1.8,
be held or determined to be void, invalid or unenforceable, or subordinated to
the claims of any other creditors, on account of the amount of its liability
under said SECTION 1.1, then, notwithstanding any other provision hereof to the
contrary, the amount of such liability shall, without any further action by such
Subsidiary Guarantor, the Lessor or any other person, be automatically limited
and reduced to the highest amount that is valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or
proceeding.
Section 2. REPRESENTATIONS AND WARRANTIES. Each of the Subsidiary
Guarantors represents and warrants to the Lessor that:
(a) CORPORATE STATUS. It (i) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization and (ii)
has duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the failure to do so might have a material adverse
effect on it or its assets.
(b) CORPORATE POWER AND AUTHORITY. It has the power and authority to
execute, deliver and perform this Subsidiary Guaranty, has taken all necessary
action to authorize the execution, delivery and performance of this Subsidiary
Guaranty, has duly executed and delivered this Subsidiary Guaranty and this
Subsidiary Guaranty constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms, except as the same may be
limited by insolvency, bankruptcy, reorganization or other similar laws relating
to or affecting the enforcement of creditors' rights or by general equitable
principles.
(c) NO VIOLATION. Neither the execution, delivery and performance of
this Subsidiary Guaranty nor compliance with the terms and provisions hereof,
nor the consummation of the transactions contemplated herein (i) will result in
a violation of any applicable provision of any law, statute, rule, regulation,
order, writ, injunction or decree of any court or governmental instrumentality
having jurisdiction over it, (ii) will result in any breach which would
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any lien upon any of its assets pursuant to the
terms of, any indenture, loan agreement, lease or other agreement to which it is
a party or by which it or any of its assets is bound or to which it may be
subject, or (iii) will violate any provision of its certificate of
incorporation, by-laws or other charter documents.
(d) LITIGATION. There are no actions, suits or proceedings pending
or, to its knowledge, threatened (i) that, if adversely determined, could
reasonably be expected to have a material adverse effect on its business,
financial condition, results of operations or prospects or (ii) that question
the validity of this Subsidiary Guaranty or the rights or remedies of the Lessor
with respect to it.
(e) GOVERNMENTAL APPROVALS. No permits, authorizations,
registrations, consents, approvals, waivers, orders, judgments, decrees,
licenses, exemptions or filings by any governmental authority having
jurisdiction over it is required to authorize or is required in connection with
the execution, delivery and performance by it of this Subsidiary Guaranty.
Section 3. MISCELLANEOUS.
3.1. NO WAIVER. No failure on the part of the Lessor to exercise, and
no course of dealing with respect to, and no delay in exercising, any right,
power or remedy hereunder shall operate as
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a waiver thereof; nor shall any single or partial exercise by the Lessor of any
right, power or remedy hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies herein are
cumulative and are not exclusive of any remedies provided by law.
3.2. NOTICES. All notices, requests, consents and demands hereunder
shall be in writing and telecopied or delivered to the intended recipient (in
the case of the Subsidiary Guarantors) at the "Address for Notices" specified on
the signature pages hereof and (in the case of the Lessor) at the address
specified in the Master Lease or, at such other address as shall be designated
by such party in a notice to each other party. Except as otherwise provided in
this Subsidiary Guaranty, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
3.3. EXPENSES. The Subsidiary Guarantors jointly and severally agree
to reimburse the Lessor for all reasonable costs and expenses of the Lessor
(including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with (i) any default and any enforcement or collection
proceeding resulting therefrom, including all manner of participation in or
other involvement with (x) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, (y) judicial or regulatory proceedings
and (z) workout, restructuring or other negotiations or proceedings (whether or
not the workout, restructuring or traction contemplate thereby is consummated)
and (ii) the enforcement of this SECTION 3.3.
3.4. AMENDMENTS, ETC. The terms of this Subsidiary Guaranty may be
waived, altered or amended only by an instrument in writing duly executed by
each Subsidiary Guarantor and the Lessor. Any such amendment or waiver shall be
binding upon the Lessor, each holder of any of the Guaranteed Obligations and
each Subsidiary Guarantor.
3.5. SUCCESSORS AND ASSIGNS. This Subsidiary Guaranty shall be
binding upon and inure to the benefit of the respective successors and assigns
of each Subsidiary Guarantor, the Lessor and each holder of any of the
Guaranteed Obligations.
3.6. CAPTIONS. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Subsidiary Guaranty.
3.7. COUNTERPARTS. This Subsidiary Guaranty 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 Subsidiary
Guaranty by signing any such counterpart.
3.8. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Subsidiary
Guaranty shall be governed by, and construed in accordance with, the law of the
State of New York. Each Subsidiary Guarantor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of the Supreme Court of the State of New York sitting in New York
County (including its Appellate Division), and of any other appellate court in
the State of New York, for the purposes of all legal proceedings arising out of
or relating to this Subsidiary Guaranty or the transactions contemplated hereby.
Each Subsidiary Guarantor hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection that it may now or hereafter have to
the laying of the venue of any such proceedings brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.
3.9. WAIVER OF JURY TRIAL. EACH OF THE SUBSIDIARY GUARANTORS AND THE
LESSOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
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APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS SUBSIDIARY GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
3.10. SEVERABILITY. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of this Subsidiary
Guaranty in order to carry out the intentions of the parties hereto as nearly as
may be possible and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
3.11. SET-OFF. Each Subsidiary Guarantor hereby irrevocably authorizes
the Lessor at any time and from time to time while a default under the Master
Lease shall have occurred and be continuing, without notice to such Subsidiary
Guarantor or any other Subsidiary Guarantor, any such notice being expressly
waived by each Subsidiary Guarantor, to set-off and appropriate and apply any
and all deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Lessor to or for the credit or the
account of such Subsidiary Guarantor, or any part thereof in such amounts as the
Lessor may elect, against and on account of the obligations and liabilities of
such Subsidiary Guarantor to the Lessor hereunder and claims of every nature and
description of the Lessor against such Subsidiary Guarantor, in any currency,
whether arising hereunder, under the Master Lease or otherwise, as the Lessor
may elect, whether or not the Lessor has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Lessor shall notify such Subsidiary Guarantor promptly of any
such set-off and the application made by the Lessor of the proceeds thereof,
PROVIDED that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Lessor under this SECTION 3.11
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which the Lessor may have.
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IN WITNESS WHEREOF, the parties hereto have caused this Subsidiary
Guaranty to be duly executed and delivered as of the day and year first above
written.
SUBSIDIARY GUARANTORS
ARCUS DATA SECURITY, INC.
COMAC, INC.
DSI TECHNOLOGY ESCROW SERVICES, INC.
IM BILLERICA, INC.
IRON MOUNTAIN GLOBAL, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF
MICHIGAN, INC.
PLRH, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Vice President and Treasurer
IRON MOUNTAIN / NATIONAL UNDERGROUND
STORAGE, LLC
IRON MOUNTAIN CONSULTING SERVICES, LLC
By: IRON MOUNTAIN RECORDS
MANAGEMENT, INC., its Sole Member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President and Treasurer
ARCUS DATA SECURITY, LLC
By: ARCUS DATA SECURITY, INC., its
Sole Member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President and Treasurer
IRON MOUNTAIN GLOBAL LLC
By: IRON MOUNTAIN GLOBAL, INC., its
Sole Member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Address for Notices for all Subsidiary
Guarantors:
c/o Iron Mountain Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
Telecopy Number: (000) 000-0000
Copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx
Telecopy Number: (000) 000-0000
Agreed:
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Managing Director
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