Exhibit 10.21
UNCONDITIONAL GUARANTY
from
IRON MOUNTAIN INCORPORATED
as Guarantor
to
IRON MOUNTAIN STATUTORY TRUST - 1998
as Owner
Dated as of October 1, 1998
THIS UNCONDITIONAL GUARANTY, dated as of October 1 , 1998 (herein,
together with all amendments and supplements hereto, called this Guaranty), is
from Iron Mountain Incorporated, a Delaware corporation (herein, together with
its successors and assigns, called Guarantor), having an address at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Treasurer, to Iron Mountain
Statutory Trust - 1998, a Connecticut statutory trust (herein together with its
successors and assigns, called Owner), having an address at c/o First Union
National Bank, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Corporate Trust Administration. Terms not otherwise defined herein shall have
the meanings set forth in Appendix I to the Lease (as hereinafter defined).
Preliminary Statement
Owner has entered into a Lease Agreement dated as of the date hereof
with Iron Mountain Records Management, Inc. (herein called Lessee) (said Lease
Agreement, as supplemented or amended from time to time, including without
limitation by a Lease Supplement, herein called the Lease) relating to the
Leased Properties. Pursuant to the terms of the Lease, Lessee shall lease the
Leased Properties from Owner for a term of years, as more particularly set forth
in the Lease. Owner has also entered into an Amended and Restated Agency
Agreement dated as of the date hereof (herein called the Agency Agreement) with
Lessee, as agent. Pursuant to the terms of the Agency Agreement, Lessee shall,
as agent for Owner, acquire additional Properties (as defined in the Agency
Agreement and hereunder, together with the Leased Properties, the Properties)
and otherwise perform certain obligations relating thereto, all as more
particularly set forth in the Agency Agreement. Guarantor is the owner of all of
the issued and outstanding stock of Lessee. In order to induce Owner to enter
into the Lease and the Agency Agreement and to enter into the leasing and agency
arrangements with Lessee, as more particularly described therein, Guarantor has
entered into this Guaranty with respect to the obligations of Lessee under the
Lease and the Agency Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Guarantor agrees as follows:
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1. Guarantor unconditionally and irrevocably guaranties to (a) Owner,
and (b) to the extent of Lessee's obligations to the Indemnified Parties, the
Indemnified Parties, the prompt payment and performance of all obligations of
Lessee under the Lease and the Agency Agreement (all of the foregoing
collectively, the Guaranteed Obligations). This Guaranty is an irrevocable,
absolute, present, primary, continuing, unlimited and unconditional promise with
respect to the full and punctual payment and performance by Lessee of each of
the Guaranteed Obligations, and is not a promise of collectibility only, and is
in no way conditional upon the requirement that Owner first attempt to collect
payment or demand performance from Lessee or that Owner resort to any security
or other means of obtaining such payment or performance or upon any other
contingency. If for any reason (i) any such sums shall not be paid promptly by
Lessee when due, or (ii) any such covenant, agreement, term or condition is not
performed or observed by Lessee in accordance with the Lease or the Agency
Agreement, Guarantor, shall, without notice or demand of any nature, pay the
same by wire transfer of immediately available federal funds to the Person or
Persons entitled thereto pursuant to the provisions of said instruments and
shall perform and observe or cause to be promptly performed and observed every
such covenant, agreement, term and condition, in each case regardless of (i) any
defenses or rights of set-off or counterclaims which Guarantor or Lessee may
have or assert, (ii) whether Owner shall have taken any steps to enforce any
rights against Lessee or any other remedy thereunder as a result of the default
of Lessee thereunder and (iii) any other event, condition, contingency or
circumstance whatsoever. Guarantor also agrees to pay to such Persons such
further amounts as shall be sufficient to cover the costs and expenses of
collecting such sums or any part thereof, or of otherwise enforcing or
protecting the rights of such Persons under the Lease, the Agency Agreement and
this Guaranty, including reasonable fees and expenses of its attorneys and to
Owner and its attorneys for all services rendered in that connection and in any
related proceeding.
2. The obligations, covenants, agreements and duties of Guarantor under
this Guaranty shall be absolute and unconditional, shall not be subject to any
counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension,
deferment, reduction or defense based upon any claim that Guarantor or any other
Person may have against Lessee, Owner or any
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other Person, and, until the payment or performance in full of the Guaranteed
Obligations, shall remain in full force and effect without regard to, and shall
not be released, discharged or in any way affected by, any circumstance or
condition whatsoever (whether or not Owner, Guarantor or Lessee shall have any
knowledge or notice thereof), including, without limitation, the happening from
time to time of any of the following, although without notice to, or the consent
of, Guarantor:
(a) the waiver by Owner of the performance or observance by
Lessee, Guarantor or any other party of any of the agreements,
covenants, terms or conditions contained in the Lease, the
Agency Agreement, this Guaranty or any other instrument;
(b) the extension, in whole or in part, of the time for payment by
Lessee or Guarantor of any sums owing or payable under the
Lease, the Agency Agreement or this Guaranty, as applicable,
or of any other sums of obligations under or arising out of or
on account of the Lease, the Agency Agreement, this Guaranty
or the renewal or extension of either thereof;
(c) any assignment or subsequent reassignment of the Lease, the
Agency Agreement or this Guaranty, in whole or in part, or the
leasing or subletting of the Properties or any part thereof;
(d) the modification or amendment (whether material or otherwise)
of any of the obligations of Lessee or Guarantor under the
Lease, the Agency Agreement or this Guaranty, as applicable;
(e) the taking or the omission of any of the acts referred to in
the Lease, the Agency Agreement or this Guaranty (including,
without limitation, the giving of any consent referred to
herein or therein, but excepting therefrom those acts and
omissions permitted in compliance with and pursuant to the
terms of the Lease or the Agency Agreement, as the case may
be, and any assignment or reassignment thereof or this
Guaranty and any assignment or reassignment hereof, as
appropriate);
(f) any failure, omission or delay on the part of Owner to
enforce, assert or exercise any right, power or remedy
conferred on or available to Owner in or by the Lease, the
Agency Agreement, this Guaranty or any other instrument, or
any action on the part of Owner granting indulgence or
extension in any form whatsoever;
(g) the voluntary or involuntary liquidation, dissolution, sale of
all or substantially all of the assets, marshaling of assets
and liabilities, receivership, conservatorship, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization,
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arrangement, composition or readjustment of, or other similar
proceeding affecting, Owner, Lessee or Guarantor or any of
their respective assets;
(h) the release of Lessee or Guarantor from the performance or
observance of any of the agreements, covenants, terms or
conditions contained in the Lease, the Agency Agreement, or
this Guaranty, as applicable, by operation of law or
otherwise, except for those releases given or made in
compliance with and pursuant to the terms of the Lease or the
Agency Agreement, as applicable, and any assignment or
reassignment thereof, or this Guaranty and any assignment or
reassignment hereof, as applicable, or any invalidity or
unenforceability of the Lease, the Agency Agreement or this
Guaranty or any other Operative Document;
(i) any defect in the title, or any damage to or loss or
destruction of, or any interruption or cessation in the use of
the Properties or any portion thereof by Lessee for any reason
whatsoever (including, without limitation, any governmental
prohibition or restriction, condemnation, requisition, or any
other act on the part of any governmental authority, or any
act of force majeure) regardless of the duration thereof (even
though such duration would otherwise constitute a frustration
of the Lease or the Agency Agreement, as the case may be),
whether or not resulting from accident and whether or not
without fault on the part of Lessee or any other Person;
(j) the inability of Owner or Lessee to enforce any provision of
the Lease or the Agency Agreement for any reason;
(k) any merger or consolidation of Lessee or Guarantor into or
with any other corporation or any sale, lease or transfer of
any of the assets of Lessee or Guarantor to any other Person;
(l) any change in the corporate relationship between Guarantor and
Lessee;
(m) the acceptance and release by Owner of any other security or
guarantor for any obligation hereunder;
(n) any value, estimation, termination, rejection, discharge or
disaffirmance by any Person (including trustees, trustees in
bankruptcy, liquidators or representatives) of the Guaranteed
Obligations in connection with any insolvency, bankruptcy,
reorganization or liquidation of Lessee or any proceeding
relating thereto;
(o) any determination or claim that Owner's claims against Lessee
are or may be limited by Section 502(b) (6) of the Bankruptcy
Code, as amended, or to any similar or successor provision of
law upon any rejection of the Lease or the Agency Agreement in
a bankruptcy proceeding filed by or against Lessee;
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(p) any failure or recharacterization of title with respect to
Owner's, Lessee's or any other Person's interest in the
Properties; or
(q) any other occurrence or circumstance whatsoever, whether
similar or dissimilar to the foregoing and any other
circumstance that might otherwise constitute a legal or
equitable defense or discharge of the liabilities of a
guarantor or surety or that might otherwise limit recourse
against Guarantor.
The obligations of Guarantor set forth herein constitute the full
recourse obligations of Guarantor enforceable against Guarantor to the full
extent of all its assets and properties. In no event shall the obligations of
Guarantor hereunder be subordinated in any manner to any other full recourse
obligations of Guarantor.
3. Guarantor unconditionally waives (i) notice of any of the matters
referred to in Section 2, (ii) all notices that may be required by statute, rule
of law or otherwise, now or hereafter in effect, to preserve intact any rights
against Guarantor, including, without limitation, any demand, presentment and
protest, proof of notice of non-payment under the Lease or the Agency Agreement
and notice of default or Event of Default under the Lease or the Agency
Agreement or this Guaranty, or any failure on the part of Lessee to perform and
comply with any covenant, agreement, term or condition of the Lease or the
Agency Agreement, (iii) any right to the enforcement, assertion or exercise
against Lessee of any right, power, privilege or remedy conferred in the Lease
or the Agency Agreement or otherwise, (iv) any requirement of diligence on the
part of Owner or any other Person, (v) any requirement that Owner take any steps
to enforce any rights against Lessee under the Lease or the Agency Agreement or
any other remedy thereunder or any other requirement to exhaust any remedies or
to mitigate the damages resulting from any default or Event of Default under the
Lease or the Agency Agreement or this Guaranty, (vi) any notice of any sale,
transfer or other disposition of any right, title to or interest in the Lease or
the Agency Agreement or the Properties covered thereby by Owner, (vii) all
rights of Guarantor under the laws of the states in which the Properties are
located, as the same may be amended, and (viii) any other circumstance
whatsoever that might otherwise constitute a legal or equitable discharge,
release or defense of a guarantor or surety, or that might otherwise limit
recourse against Guarantor hereunder.
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4. Notwithstanding any payment or payments made or obligation performed
by Guarantor by reason of this Guaranty, Guarantor hereby waives (i) any claim,
right or remedy that Guarantor may now or hereafter acquire against Lessee that
arises hereunder and/or by reason of any one or more payments or acts of
performance by Guarantor hereunder, including without limitation, any claim,
remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification or participation in any claim, right or remedy of the Owner
against Lessee or any security that Owner now has or hereafter acquires, whether
or not such claim, right or remedy arises in equity, under contract, by statute,
under common law or otherwise, (ii) any right to enforce any remedy which Lessee
or any other guarantor of Lessee's obligations now has or may hereafter have
against Owner or its assigns, and (iii) any right to enforce or exercise the
benefit of and any right to participate in, any security now or hereafter held
by Owner, in each case until all of the obligations guarantied hereby are
performed in full. If any amount shall nevertheless be paid to Guarantor by
Lessee in violation of this Guaranty, such amount shall be held by Guarantor in
trust for the benefit of Owner and shall forthwith be paid to Owner. Guarantor
further waives any defense to the recovery by Owner from Guarantor of any
deficiency or otherwise to the enforcement of this Guaranty after a judicial or
nonjudicial sale or other disposition of any security for or any of the
obligations of Lessee under the Lease or the Agency Agreement, even though such
a sale may prevent Guarantor from exercising rights of subrogation, if any,
contribution or reimbursement against Lessee or any other party. No payment
hereunder by Guarantor shall give rise to any claim by Guarantor against Owner,
except for payments made in error by Guarantor to the extent such payments are
in excess of amounts due hereunder. Unless and until all obligations of Lessee
under and pursuant to the Lease and the Agency Agreement, and of Guarantor
hereunder, shall have been discharged by payment or performance in full,
Guarantor shall not assign or otherwise transfer any such claim against Lessee
to any other Person.
5. The following events shall constitute Events of Default under this
Guaranty: (i) Guarantor shall fail to make any payment due hereunder upon
demand, or (ii) (a) there shall occur a breach of any of the covenants contained
in paragraph 10 hereof; or (b) Guarantor shall fail to perform or observe any
other provision hereof and such failure shall
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continue for 10 days after written notice thereof to Guarantor from Owner, or
(iii) if any representation or warranty made by Guarantor herein or in any
document, certificate or notice furnished by Guarantor to Owner in connection
herewith or pursuant hereto shall prove to be false or misleading as of the time
when made in any material respect as of the time made, or (iv) (a) if Guarantor
shall commence a voluntary case under the federal Bankruptcy Act or file a
petition in bankruptcy or for reorganization or for an arrangement pursuant to
any federal or state bankruptcy law or any similar federal or state law; (b) if
Guarantor shall file an order of relief or be adjudicated a debtor or a bankrupt
under any federal or state bankruptcy law or become insolvent; (c) if Guarantor
shall generally not pay its debts as such debts become due or shall make an
assignment for the benefit of creditors or shall admit in writing its inability
to pay its debts generally as they become due; or (d) if an involuntary case
against Guarantor as debtor is commenced by a petition for reorganization or
liquidation under any federal bankruptcy or similar law, or if a petition or
answer proposing the adjudication of Guarantor as a bankrupt or its
reorganization pursuant to any state insolvency law or similar state law shall
be filed in any court and Guarantor shall consent to or acquiesce in the filing
thereof or such case, petition or answer shall not be dismissed, discharged or
denied within 60 days after filing thereof; or (v) if a custodian for purposes
of any federal bankruptcy or state insolvency law of substantially all
Guarantor's assets is appointed or otherwise takes possession thereof and such
appointment remains in effect for more than 60 days; or (vi) if a receiver, U.S.
Trustee, trustee or liquidator of Guarantor or all or substantially all of the
assets of Guarantor shall be appointed in any proceeding brought by Guarantor,
or if any such receiver, U.S. Trustee, trustee or liquidator shall be appointed
in any proceeding brought against Guarantor and shall not be discharged within
60 days after such appointment, or if Guarantor shall consent to or acquiesce in
such appointment; or (vii) if there is an Event of Default under the Lease or
the Agency Agreement; then, in each such case, so long as the same shall be
continuing, Owner may, at its option, declare this Guaranty in default, and at
any time thereafter, so long as Guarantor shall not have remedied all
outstanding Events of Default hereunder, Owner shall be entitled to exercise any
remedy available to it at law or in equity. No express or implied waiver by
Owner of an Event of Default hereunder shall in any way be, or be construed to
be a waiver of any further or subsequent Event of Default.
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Guarantor hereby waives any right now or hereinafter conferred upon it by
statute or otherwise which may limit or modify any of Owner's rights and
remedies contained herein. Guarantor agrees to give written notice to Owner (a)
of any Event of Default hereunder promptly after the occurrence thereof and (b)
of any Event of Default hereunder or under the Lease or the Agency Agreement,
immediately after the President or Chief Financial Officer of Guarantor obtains
actual knowledge of the occurrence thereof.
6. (a) In the event of a default or Event of Default under the Agency
Agreement, Guarantor may, and in the event of the rejection or disaffirmation of
the Agency Agreement by Lessee as debtor in possession or Lessee's trustee in
bankruptcy pursuant to any Bankruptcy Law or any other law affecting creditors'
rights, Guarantor shall and does hereby (without the necessity of any further
agreement or act), assume all obligations and liabilities of Lessee under the
Agency Agreement to the same extent as if it had been originally named instead
of such Lessee as a party to such documents and there had been no such rejection
or disaffirmance; and Guarantor shall confirm such assumption in writing at the
request of Owner upon or after such rejection or disaffirmance. Guarantor, upon
such assumption, will have all rights of Lessee under the Agency Agreement. From
and after the date of such assumption, as provided in this Section 6(a), all
provisions of this Guaranty shall continue in full force and effect as separate
and independent undertakings of Guarantor, binding upon and enforceable against
Guarantor without regard to the validity or enforceability of such assumption,
and all provisions of this Guaranty applicable to the Agency Agreement and to
Owner and Lessee in respect of the Agency Agreement shall also apply to such
assumption and to Owner and Guarantor in respect of such assumption to the same
extent and in the same manner as such provisions are applicable to the Agency
Agreement and to Owner and Lessee in respect of the Agency Agreement.
(b) In the event of a default or Event of Default under the
Lease, Guarantor may, and in the event of the rejection or disaffirmation of the
Lease by Lessee as debtor in possession or Lessee's trustee in bankruptcy
pursuant to any Bankruptcy Law or any other law affecting creditors' rights,
Guarantor shall and does hereby (without the necessity of any further agreement
or act), assume all obligations and liabilities of Lessee under the Lease to the
same extent as if it had been originally named instead of such Lessee as a party
to such documents and there had
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been no such rejection or disaffirmance; and Guarantor shall confirm such
assumption in writing at the request of Owner upon or after such rejection or
disaffirmance. Guarantor, upon such assumption, will have all rights of Lessee
under the Lease. From and after the date of such assumption, as provided in this
Section 6(b), all provisions of this Guaranty shall continue in full force and
effect as separate and independent undertakings of Guarantor, binding upon and
enforceable against Guarantor without regard to the validity or enforceability
of such assumption, and all provisions of this Guaranty applicable to the Lease
and to Owner and Lessee in respect of the Lease shall also apply to such
assumption and to Owner and Guarantor in respect of such assumption to the same
extent and in the same manner as such provisions are applicable to the Lease and
to Owner and Lessee in respect of the Lease.
7. It is agreed that the liabilities and obligations of Guarantor
hereunder are primary and those of a principal, and are enforceable either
before, simultaneously with or after proceeding against Lessee or against any
property or security available to Owner.
8. This Guaranty may not be modified or amended except by a written
agreement duly executed by Guarantor with the consent in writing of Owner, the
Agent Bank and the Lenders. Neither this Guaranty, nor any of the obligations of
Guarantor hereunder may be assigned to any person or entity by Guarantor.
9. Guarantor shall furnish the following financial statements to Owner:
(a) as soon as practicable, copies of all such financial
statements, proxy statements, notices, other
communications and reports as Guarantor shall send on
a regular basis to its shareholders and other
information, if any, generally made available to
banks and other lenders (exclusive of proprietary
information);
(b) for any period that Guarantor is a public company,
copies of all regular, current or periodic reports
(including reports on Form 10-K, Form 8-K and Form
10-Q) which Guarantor is or may be required to file
with the Securities and Exchange Commission or any
governmental body or agency succeeding to the
functions of the Securities and Exchange Commission;
and
(c) for any period that Guarantor is not a public company
required to file such reports with the Securities and
Exchange Commission, then within 105 days after the
end of each fiscal year, and within 60 days after the
end of
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any other fiscal quarter, financial statements
containing substantially the same information as the
information that would be included in such reports on
Form 10-K or Form 10-Q, as the case may be, and in
any event, all in reasonable detail and satisfactory
in scope to Owner and Owner's mortgagee, all prepared
in accordance with GAAP and, with respect to the
annual statements, audited, by independent certified
public accountants of recognized national standing
selected by Guarantor.
Concurrently with the delivery of quarterly financial statements pursuant
hereto, Guarantor shall cause to be delivered to Owner an Officer's Certificate
(i) stating that to the best of the knowledge of the Applicable Officer
executing such Officer's Certificate based on reasonable inquiry, there exists
no default or Event of Default under the Lease, the Agency Agreement or this
Guaranty or if any such default or Event of Default exists, specifying the
nature thereof, the period of existence thereof and what action Guarantor
proposes to take with respect thereto and (ii) setting forth such information as
shall be necessary for Owner and the Agent Bank to confirm compliance by
Guarantor with the covenants contained in Paragraph 10 hereof.
10. (a) Guarantor hereby covenants and agrees as follows:
(i) Leverage Ratio. (A) The Guarantor 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 Guarantor and its Subsidiaries at such date
over (y) the aggregate amount of cash and Liquid Investments of the Guarantor
and its Subsidiaries at such date to (ii) EBITDA for such period (the Leverage
Ratio) to exceed the ratio set forth below:
Period Leverage Ratio
------ --------------
From the date hereof 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
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(B) The Guarantor 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
paragraph (B), in determining the Foreign Leverage Ratio, EBITDA shall be
determined by including only the Pond Joint Venture and each Excluded
Subsidiary.
(ii) Interest Coverage Ratio. Guarantor 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)
EBITDA for such period to (ii) Interest Expense for such period to be less than
the ratio set forth below for the period in which such fiscal quarter ends:
Period Interest Coverage Ratio
------ -----------------------
From the date hereof through December 31, 1998 1.70 to 1
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 all times thereafter 2.50 to 1
For purposes of calculating any ratio set forth in this clause
(ii), if Guarantor elects pursuant to the penultimate sentence of the definition
of EBITDA set forth in paragraph (c) below to include in EBITDA for the period
to which such ratio relates the pro forma amounts referred to in such sentence,
there shall be included in Interest Expense for such period, on a pro forma
basis, interest accruing during such period on Indebtedness (and the interest
portion of payments under Capitalized Lease Obligations) assumed or incurred by
Guarantor and its
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Subsidiaries (on a consolidated basis) in connection with any Permitted
Acquisition having Acquisition Consideration of more than $500,000 during such
period.
(iii) Fixed Charges Coverage Ratio. Guarantor 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)
Adjusted EBITDA for such period to (ii) Fixed Charges for such period to be less
than the ratio set forth below for the period in which such fiscal quarter ends:
Fixed Charges
Period Coverage Ratio
------ --------------
From the date hereof through December 31, 1998 1.20 to 1
From January 1, 1999 through December 31, 1999 1.40 to 1
From January 1, 2000 through December 31, 2000 1.75 to 1
From January 1, 2001 and at all times thereafter 1.75 to 1
For purposes of calculating any ratio set forth in this clause
(iii), if Guarantor elects pursuant to the penultimate sentence of the
definition of EBITDA to include in EBITDA for the period to which such ratio
relates the pro forma amounts referred to in such sentence, there shall be
included in Interest Expenses for such period, on a pro forma basis, interest
accruing during such period on Indebtedness (and the interest portion of
payments under Capitalized Lease Obligations) assumed or incurred by Guarantor
and its Subsidiaries (on a consolidated basis) in connection with any Permitted
Acquisition having Acquisition Consideration of more than $500,000 during such
period.
(iv) Liens. Guarantor will not, and will not permit any of
its Subsidiaries to, create or suffer to exist any Lien upon any property or
assets, now owned or hereafter acquired, securing any Indebtedness or other
obligation, except: (i) Liens in favor of the agent bank and lenders under the
Credit Agreement on the capital stock and related proceeds of all Subsidiaries
of the Guarantor from time to time; (ii) the Liens existing on September 26,
1997 and Liens arising out of the refinancing, extension, renewal or refunding
of any Indebtedness secured by any Lien set forth on Schedule III to the Credit
Agreement, provided that the
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principal amount of such Indebtedness is not increased and is not secured by any
additional assets; (iii) Liens otherwise permitted by the Operative Documents
contemplated by or securing Indebtedness described in clauses (ii), (iv), (v)
and (vii) of the definition of Permitted Indebtedness set forth in the Credit
Agreement; (iv) attachment, judgment or other similar Liens arising in
connection with litigation or other legal proceedings, provided that either (A)
the claims in respect of such Liens are fully covered by insurance or (B) the
execution or other enforcement of such Liens is effectively stayed and the
claims secured thereby are in an amount not to exceed $1,000,000 in the
aggregate and are being contested in good faith by appropriate proceedings
diligently prosecuted; (v) Liens on properties or assets of an Excluded
Subsidiary securing Indebtedness of such Excluded Subsidiary permitted under the
Credit Agreement; (vi) other Liens arising in the ordinary course of the
business of the Guarantor or such Subsidiary which are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
and which do not materially detract from the value of its property or assets or
materially impair the use thereof in the operation of its business; (vii) Liens
securing Indebtedness created or incurred by the Pond Joint Venture or any
Excluded Subsidiary, 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 arising under or created
pursuant to the Lease.
(v) Other Covenants. Guarantor will throughout the Term of
the Lease comply with all covenants of Guarantor contained in Section 9 of the
Credit Agreement, all of which are incorporated herein by reference; provided,
however, to the extent that any such covenant is inconsistent with any covenant
in the Operative Documents, including, without limitation contained in this
subparagraph (a), such covenant in the Operative Documents shall control and
shall not be subject to (b) below.
(b) The covenants incorporated by reference in (a)(v) above,
and the related definitions shall, without further action hereunder, be amended
to conform to any amendment, written waiver, or modification to such covenants
(or related definitions) contained in the Credit Agreement; provided however,
that if the Credit Agreement shall be terminated for any reason,
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the form of the covenants and the related definitions incorporated by reference
in (a)(v) above at the time of such termination shall continue hereunder and
Guarantor shall execute such amendments or supplements hereto evidencing such
survival as the Agent Bank may reasonably request.
(c) As used in this paragraph 10, the following terms shall
have the following meanings:
"Acquisition" shall mean an acquisition of assets of, or all
or substantially all of the Capital Stock of, another business by Guarantor
and/or one or more of its Subsidiaries.
"Acquisition Consideration" shall mean, with respect to any
Acquisition, the aggregate amount of consideration paid by Guarantor and its
Subsidiaries in connection therewith, inclusive of (a) Stock Consideration and
(b) other consideration on account of (i) any expenses incurred in connection
with such Acquisition, (ii) liabilities under agreements not to compete incurred
in connection with such Acquisition, (iii) the principal amount of Indebtedness
assumed in connection with such Acquisition and (iv) Additional Expenditures
related to such Acquisition.
"Additional Expenditures" shall mean, with respect to any
Acquisition, amounts expended or to be expended by Guarantor and its
Subsidiaries within twelve months after the date of such Acquisition to acquire
or construct facilities and equipment that are not part of the assets acquired
pursuant to such Acquisition but which are deemed by Guarantor to be essential
for the integration or restructuring of the assets so acquired.
"Adjusted EBITDA" shall mean, for any period, EBITDA for such
period, minus the tax provision for such period currently payable.
15
"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 Guarantor.
"Capital Expenditures" shall mean expenditures in respect of
fixed assets by Guarantor or any of its Subsidiaries, including the capitalized
amount of Capital Lease Obligations incurred during the relevant period, other
than (i) expenditures for the restoration or replacement of fixed assets to the
extent financed by the proceeds of an insurance policy described in clause (i)
of Section 9.03 of the Credit Agreement or through a condemnation award, (ii)
Permitted Acquisitions, (iii) Qualifying Sale-Leaseback Transactions (except to
the extent any lease of Property by Guarantor or any of its Subsidiaries in
connection therewith would constitute a capital lease), (iv) Additional
Expenditures related to Permitted Acquisitions and (v) Large Volume Account
Capitalized Expenditures.
"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property which
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board) and,
for purpose of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"Dollars" and "$" shall mean lawful money of the United States
of America.
"EBITDA" shall mean for any period, the sum (without
duplication), determined on a consolidated basis for Guarantor and its
Subsidiaries, of (a) net income for such period plus (b) to the extent deducted
in determining net income for such period, the sum of (i) depreciation and
amortization (including deferred financing costs, organization costs, goodwill
and non-compete amortization) for such period, (ii) other non-cash expenses for
such period, (iii) interest
16
expense for such period, (iv) provision for income taxes for such period, (v)
extraordinary losses (including without limitation losses arising from any
natural disasters) for such period, (vi) non-compete expenses for such period to
the extent not capitalized in accordance with GAAP and (vii) losses on sales of
fixed assets not in the ordinary course of business for such period after giving
effect to any related charges for, reductions of or provisions for taxes thereon
minus (c) to the extent included in the calculation of net income for such
period, the sum of (i) other income (including interest income) for such period,
(ii) extraordinary gains for such period and (iii) gains on sales of fixed
assets not in the ordinary course of business for such period after giving
effect to any related charges for, reduction of or provisions for taxes thereon.
For the purposes of calculating the ratios set forth in
clauses (i)(A), (ii) and (iii) of paragraph 10(a) there may, at the Guarantor's
option, and for purposes of calculating the ratio set forth in clause (i)(B) of
paragraph 10(a) 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 acquisition not prohibited hereunder or under
the Credit Agreement where the aggregate amount of consideration paid is 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
statement of the acquired business, annualized.
"Excluded Subsidiary" shall mean any Subsidiary of the
Guarantor principally engaged in the records management business domiciled
(within the meaning of the Code) outside the United States.
"Fixed Charges" shall mean for any period the sum of (i)
Scheduled Amortization for such period plus (ii) Interest Expense for such
period plus (iii) the aggregate amount of
17
Maintenance Capital Expenditures for such period plus (iv) the aggregate amount
of non-compete expenses for such period to the extent not capitalized in
accordance with GAAP.
"Foreign Leverage Ratio" has the meaning set forth in Section
10(a)(i)(B)(ii) hereof.
"Funded Indebtedness" shall mean, without duplication, (a)
Indebtedness 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) and (b) Indebtedness outstanding under
the Credit Agreement.
"GAAP" shall mean generally accepted accounting principles as
in effect from time to time consistently applied.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise, other
than agreements to purchase goods at an arm's length price in the ordinary
course of business) or (ii) entered into for the purpose of assuring in any
other manner the holder of such Indebtedness of the payment thereof or to
protect such holder against loss in respect thereof (in whole or in part),
provided that the term Guaranty shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee" used as a verb
has a corresponding meaning.
"Indebtedness" shall mean, as to any Person (determined
without duplication):
18
(i) indebtedness of such Person for borrowed money (whether by
loan or the issuance and sale of debt securities) or for the deferred
purchase or acquisition price of property or services (including
amounts payable under agreements not to compete and other similar
arrangements), other than accounts payable (other than for borrowed
money) incurred in the ordinary course of business and accrued expenses
incurred in the ordinary course of business;
(ii) obligations of such Person in respect of letters of
credit or similar instruments issued or accepted by banks and other
financial institutions for the account of such Person;
(iii) Capital Lease Obligations of such Person;
(iv) obligations of such Person to redeem or otherwise retire
shares of Capital Stock of such Person;
(v) indebtedness of others of the type described in clauses
(i) through (iv) above secured by a Lien on the property of such
Person, whether or not the respective obligation so secured has been
assumed by such Person; and
(vi) indebtedness of others of the type described in clause
(i) through (v) above Guaranteed by such Person.
Notwithstanding anything to the contrary contained in clause (i) of the
preceding sentence, indebtedness of any Person in respect of amounts payable
under an agreement not to compete shall be the amount carried on the balance
sheet of such Person in respect of such agreement in accordance with GAAP.
19
"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 Guarantor and its Subsidiaries (on a
consolidated basis), including the interest portion of payments under Capital
Lease Obligations and any capitalized interest, and excluding amortization of
debt discount and expense and interest paid in kind.
"Large Volume Account Capitalized Expenditures" shall mean any
expenditures incurred by Guarantor or its Subsidiaries in connection with new
customers initially storing with Guarantor or its Subsidiaries in excess of
10,000 boxes, to the extent that such expenditures are capitalized in accordance
with GAAP.
"Lender" shall have the meaning assigned to such term in the
Credit Agreement.
"Leverage Ratio" has the meaning set forth in Section
10(a)(i)(A)(ii) hereof.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this paragraph 10, Guarantor and each of its
Subsidiaries shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Liquid Investments" shall mean:
(i) certificates of deposit maturing within 90 days of the
acquisition thereof denominated in Dollars and issued by (X) a Lender
or (Y) a bank or trust company having combined capital and surplus of
at least $500,000,000 and which has (or which is a Subsidiary of a bank
holding company which has) publicly traded debt securities rated A or
higher by Standard & Poor's Ratings Services or A-2 or higher by
Xxxxx'x Investors Service, Inc.;
20
(ii) repurchase obligations with a term of nor more than seven
days for underlying securities of the types described in clause (i)
above entered into with (x) any Lender or (y) any bank or trust company
meeting the qualifications specified in clause (i)(Y) above;
(iii) obligations issued or guaranteed by the United States of
America, with maturities not more than one year after the date of
issue;
(iv) commercial paper with maturities of not more than 90 days
and a publishing rating of not less than A-2 and P-2 (or the equivalent
rating); and
(v) investments in money market funds substantially all of
whose assets are comprised of securities and other obligations of the
types described in clauses (i) through (iv) above.
"Maintenance Capital Expenditures" shall mean Capital
Expenditures required to maintain, reconfigure, or replace existing assets (as
distinguished from Capital Expenditures relating to growth and as distinguished
from Additional Expenditures), as certified consistent with the provisions of
Section 9.01(i) of the Credit Agreement.
"Permitted Acquisition" has the meaning set forth in Section
9.12 of the Credit Agreement.
"Permitted Indebtedness" shall have the meaning assigned to
such term in the Credit Agreement.
"Permitted Investment" shall have the meaning assigned to such
term in the Credit Agreement.
21
"Person" shall mean an individual, a corporation, a company, a
voluntary association, a partnership, a limited liability company, a trust, an
unincorporated organization of a government or any agency, instrumentality or
political subdivision thereof.
"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
Guarantor or a Subsidiary of the Guarantor.
"Pond Transaction" shall mean (i) the contribution by the
Guarantor or a Subsidiary of the Guarantor 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 Guarantor or a Subsidiary of the
Guarantor of Capital Stock of the Pond Joint Venture for an aggregate
consideration of up to but not exceeding (pound)37,250,000.
"Property" shall have the meaning assigned to such term in the
Credit Agreement.
"Qualifying Sale-Leaseback Transaction" shall mean any
arrangement by which Guarantor or any of its Subsidiaries enters into an
arrangement with any bank, insurance company or other lender or investor
providing for the leasing to Guarantor or a Subsidiary thereof of any real
property which has been or is to be sold or transferred by Guarantor or such
Subsidiary to such lender or investor or to any Person to whom funds have been
or are to be advanced by such lender or investor and where the real property in
question has been constructed after September 26, 1997.
"Scheduled Amortization" shall mean, for any period, the sum
(calculated without duplication) of all payments of principal of Indebtedness of
Guarantor (other than Indebtedness under the Credit Agreement) scheduled to be
made during such period.
22
"Security Documents" shall have the meaning assigned to such
term in the Credit Agreement.
"Stock Consideration" shall mean, with respect to any
Acquisition, the aggregate amount of consideration paid by Guarantor and its
Subsidiaries in connection therewith consisting of Guarantor's common stock or
with proceeds of the issuance of Guarantor's common stock within twelve months
prior to the date of such Acquisition. For purposes hereof, the amount of Stock
Consideration paid by Guarantor in respect of any Acquisition where the Stock
Consideration consists of Guarantor's common stock shall be deemed to be equal
to the fair market value of Guarantor's common stock so paid, determined in good
faith by Guarantor at the time of such Acquisition.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership, limited liability company or other entity of which at
least a majority of the securities or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions of such corporation,
partnership, limited liability company or other entity (irrespective of whether
or not at the time securities or other ownership interests of any other class or
classes of such corporation, partnership, limited liability company or other
entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person or by such Person and one or
more Subsidiaries of such Person.
(d)(x) Guarantor shall not merge into or consolidate with any
other Person or sell, transfer, lease or otherwise convey all or substantially
all its assets as an entirety; provided that, so long as no Default or Event of
Default shall have occurred and be continuing or would result therefrom, the
Guarantor may merge with another Person so long as (i) the Guarantor is the
surviving entity, and (ii) after giving effect to such merger, the Guarantor, as
the surviving entity, would have a tangible net worth (as hereinafter defined)
equal to or greater than Guarantor's tangible net worth immediately prior to
such merger.
23
(y) Guarantor shall not permit any of its Subsidiaries to
merge into or consolidate with any other Person or sell, transfer, lease or
otherwise convey all or substantially all their assets as an entirety; provided
(a) Lessee may merge into or consolidate with any other Person or sell,
transfer, lease or otherwise convey all or substantially all its assets as an
entirety in accordance with Article 15 of the Lease and (b) so long as no
Default or Event of Default shall have occurred and be continuing or would
result therefrom, that any Subsidiary may (A) sell, transfer, lease or otherwise
convey all or substantially all of its assets to the Guarantor or any Person
that is, or becomes, a Subsidiary of the Guarantor or (B) merge into the
Guarantor or any of its Subsidiaries, and any Subsidiary (other than Lessee) may
merge into another Person if, contemporaneously therewith, such Person becomes a
Subsidiary of the Guarantor.
(z) The Guarantor shall not, and shall not permit any of its
Subsidiaries to, issue or sell any stock of any Subsidiary that is not an
Excluded Subsidiary to any Person or Persons, other than to the Guarantor or its
Subsidiaries, except to the extent otherwise permitted by clause (x) of this
subparagraph (d) above.
"tangible net worth" of the Guarantor means, at any date, the excess of
the consolidated total assets of Guarantor and its Subsidiaries at such date
over the consolidated total liabilities of Guarantor and its Subsidiaries at
such date, and less the sum at such date of : (i) all goodwill, organizational
expenses, research and development expenses, trademarks, trade names,
copyrights, patents, patent applications, licenses and rights in any thereof,
and other similar intangibles, (ii) all reserves carried and not deducted from
assets, (iii) securities which are not readily marketable, (iv) any
subscriptions receivable and (v) any items not included in clauses (i) through
(iii) above, which are treated as intangibles in conformity with GAAP, all of
the foregoing as determined for any such date as of the end of the immediately
preceding fiscal quarter in accordance with GAAP.
24
(e) Guarantor shall at all times during the Term of the Lease carry a
footnote on its financial statements required by paragraph 9 hereof referring to
the transactions contemplated by the Operative Documents, in the form agreed to
on the date hereof.
(f) Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all determinations with respect to accounting matters
hereunder shall be made, and all financial statements and certificates and
reports as to financial matters required to be delivered hereunder shall be
prepared, in accordance with GAAP; provided that if any change in GAAP proposed
after the date hereof in itself materially affects the calculation of any
financial covenant in this paragraph 10 (or incorporated by reference herein),
the Guarantor may by notice to the Owner and Agent Bank, or the Owner or Agent
Bank may by notice to the Guarantor, require that such covenant thereafter be
calculated in accordance with GAAP as in effect, and applied by the Guarantor,
immediately before such change in GAAP occurs.
11. Guarantor will permit Owner and the Indemnified Parties to visit
the offices of Guarantor at its address set forth herein and to examine its
records and books of account and to discuss its affairs, finances and accounts
with its officers upon reasonable notice at such reasonable times as may be
requested by Owner or such Indemnified Party or any assignee of Owner's rights
hereunder.
12. Guarantor understands and acknowledges that Owner may enter into
one or more financings to finance the Costs of the Properties pursuant to which
Owner will encumber its interest in the Properties. In connection with any such
financing, Guarantor understands and acknowledges that Owner may assign its
rights in and to this Guaranty and Guarantor hereby agrees that: (i) Owner may
assign its rights hereunder in connection therewith; (ii) in connection with any
such assignment by Owner, Guarantor will consent in writing thereto; and (iii)
from and after such assignment, the rights and benefits of Owner hereunder shall
inure to the benefit of, and be exercisable by any assignee, pursuant to and in
accordance with the terms of such assignment.
25
13. Guarantor agrees that at any time and from time to time so long as
this Guaranty is in effect, it will promptly, but in no event later than 15 days
after request by Owner, execute, acknowledge and deliver to Owner a certificate
stating: (i) that this Guaranty is unmodified and in full force and effect (or
if there have been modifications, that this Guaranty is in full force and effect
as modified, and identifying such modification agreements); (ii) whether or not
there is an existing Event of Default hereunder and, if there is any such Event
of Default, specifying the nature and extent thereof; and (iii) whether or not
there are any setoffs, defenses or counterclaims against enforcement of the
obligations to be performed hereunder existing in favor of Guarantor. Guarantor
further agrees that it will upon five day's prior notice from Owner execute and
deliver to Owner's mortgagee a certificate stating the above.
14. Guarantor represents and warrants that:
(a) Guarantor (i) is a corporation duly organized and
validly existing under the laws of the State of
Delaware, and (ii) has all requisite legal power and
authority to enter into this Guaranty, to perform and
observe the terms and conditions hereof, and has all
requisite legal power and authority to own its
properties and conduct its business as currently
conducted except for such licenses, permits and
approvals which would not, individually or in the
aggregate, have a material adverse effect on
Guarantor's ability to perform the Guaranteed
Obligations. Guarantor is qualified to do business as
a foreign corporation in all jurisdictions where its
ownership of property or the nature of its business
required such qualification. This Guaranty has been
duly authorized, executed and delivered by Guarantor
and constitutes the legal, valid and binding
obligation by Guarantor enforceable against Guarantor
in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency,
reorganization and other laws of general application
relating to or affecting the enforcement of
creditors' rights and general principles of equity.
(b) There are no actions, suits or proceedings pending
or, to its actual knowledge, threatened against or
affecting Guarantor at law or in equity before any
court or administrative officer or agency an adverse
determination in which could, individually or in the
aggregate, have a material adverse effect on
Guarantor's ability to perform the Guaranteed
Obligations. Guarantor is not in default (i) in the
payment of any taxes levied or assessed against it or
its assets or (ii) under or in violation of any
statute, rule, order, decree, writ, injunction or
regulation of any governmental body (including any
court) except, where the failure to pay such taxes or
the existence of such defaults or violations would,
26
individually or in the aggregate, not have a material
adverse effect on Guarantor's ability to perform the
Guaranteed Obligations.
(c) Guarantor is not a party to any contract or agreement
or subject to any restriction or to any order, rule,
regulation, writ, injunction or decree of any court
or governmental authority or to any statue which
materially and adversely affects its ability to
perform the Guaranteed Obligations. Neither the
execution, delivery or performance by Guarantor of
this Guaranty nor its compliance herewith or
therewith (i) conflicts or will conflict with or
results or will result in a breach of or constitutes
or will constitute a default under (A) any law in
effect as of the date of delivery of this Guaranty,
(B) the articles of incorporation or by-laws of
Guarantor, (C) any agreement or instrument to which
Guarantor is a party or by which it is bound, or (D)
any order, writ, injunction or decree of any court or
other governmental authority, or (ii) results or will
result in the creation or imposition of any lien,
charge or encumbrance upon Guarantor's property
pursuant to such agreement or instrument.
(d) The execution, delivery and performance by Guarantor
of this Guaranty do not require (i) any stockholder
approval or the consent or approval of any of
Guarantor's creditors (except as have already been
obtained in writing), or (ii) any authorization,
consents, or approvals, of or filings with any
governmental authority, except for such
authorization, consents, approvals or filings which
have been obtained and are in full force and effect.
(e) No event has occurred and is continuing with respect
to Guarantor which would constitute a default or an
Event of Default hereunder. No default or Event of
Default by Agent exists under the Agency Agreement.
Guarantor is not in default in the payment of the
principal or interest on any indebtedness for
borrowed money or for its deferred purchase of
property or in default under any instrument or
agreement under and subject to which any such
indebtedness has been issued or under any lease, in
any case involving the likelihood of any actions or
proceedings against it which would materially and
adversely affect Guarantor or its ability to
perform under this Guaranty.
(f) Guarantor is in compliance in all material respects
with all applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended
(ERISA), and the regulations and published
interpretations thereunder. No "reportable event", as
such term is defined in Section 4043 of ERISA, has
occurred with respect to any employee pension benefit
plan (as defined in ERISA), and Guarantor has not
incurred, nor does it reasonably expect to incur, any
liability to the Pension Benefit Guaranty
27
Corporation under Section 44062 of ERISA or to any
multiemployer plan (as defined in ERISA) under
Section 4201 of ERISA. Guarantor has not incurred any
accumulated funding deficiency within the meaning of
Section 302 of ERISA nor is it subject to any lien
arising under Section 307 of ERISA or Section
401(a)(29) or 412(n) of the Internal Revenue Code of
1986, as amended.
(g) Guarantor's assets are not less than its liabilities,
both determined in accordance with GAAP, and
Guarantor is solvent. The transactions contemplated
by this Guaranty are in furtherance of Guarantor's
ordinary business purposes and in furtherance of its
corporate purposes with no contemplation of
insolvency and with no intent to hinder, delay or
defraud any of its present or future creditors.
Neither before nor as a result of the transactions
contemplated by this Guaranty will Guarantor be or be
rendered insolvent or have an unreasonably small
capital for the conduct of its business and the
payment of its anticipated obligations. Guarantor's
assets and cash flow enable it to meet its present
obligations in the ordinary course of business as
they become due, and Guarantor does not believe that
it will incur debts beyond its ability to pay such
debts.
(h) Neither (i) the consolidated financial statements for
Guarantor's fiscal year ending in December 31, 1997,
(ii) this Guaranty, nor (iii) any written statement
furnished by Guarantor in connection with the
transactions contemplated by the Operative Documents,
contains any untrue statement of a material fact or
omits a material fact necessary to make the
statements contained therein not misleading. There is
no fact applicable to Guarantor which Guarantor has
not disclosed in writing which materially affects
adversely nor so far as Guarantor can now reasonably
foresee will materially affect adversely the
properties, business, prospects, profits or condition
(financial or otherwise) of Guarantor. Guarantor
represents that the consolidated financial statements
specified above (i) fairly present in all material
respects the financial condition of Guarantor on the
dates for which, and the results of its operations
for the periods for which, the same have been
furnished, and (ii) have been prepared in accordance
with GAAP consistently applied, except as otherwise
disclosed therein.
(i) There has been no material adverse change in
Guarantor's business or financial condition since
December 31, 1997 that individually or the aggregate
would adversely affect Guarantor's ability to perform
the Guaranteed Obligations.
15. All agreements, representations and warranties contained herein or
made in writing by Guarantor shall survive the execution and delivery of this
Guaranty.
28
16. This Guaranty shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns.
17. This Guaranty shall be construed and enforced in accordance with,
and governed by, the laws of the Commonwealth of Massachusetts. In connection
with this Guaranty and the transactions contemplated by the Operative Documents,
Guarantor hereby agrees to the non-exclusive personal jurisdiction of and venue
in the state courts of the Commonwealth of Massachusetts, and the United States
District Courts located in the Commonwealth of Massachusetts.
18. Any provision of this Guaranty which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
19. Any notice to be given under this Guaranty shall be given in the
manner provided in the Lease, addressed to Guarantor or Owner at its address set
forth at the beginning of this Guaranty, or as either such party may otherwise
provide by notice to the other party.
20. As to any Leased Property located in Louisiana, the following shall
apply: Owner shall mean and include both Iron Mountain Statutory Trust - 1998, a
Connecticut statutory trust having an address as stated above and First Union
National Bank as trustee of the Iron Mountain Statutory Trust - 1998 Louisiana
Subtrust, such subtrust being referred hereinafter as the "Louisiana Subtrust".
All references hereunder to the Owner shall be deemed to include the Louisiana
Subtrust as applicable.
***
29
IN WITNESS WHEREOF, Guarantor has caused this Unconditional Guaranty to
be executed under seal and delivered as of the day and year first above written.
ATTEST: IRON MOUNTAIN INCORPORATED
(Seal)
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxxx
Title: Assistant Secretary Title: Vice President and Treasurer
(Affix Corporate Seal)
