Exhibit 10.28
Amendment No. 1
THIS AMENDMENT NO. 1 (this "AMENDMENT"), dated as of November 1, 2001, is
entered into between IRON MOUNTAIN STATUTORY TRUST - 2001, a Connecticut
statutory trust, as the Lessor, and IRON MOUNTAIN RECORDS MANAGEMENT, INC., a
Delaware corporation, as the Lessee.
W I T N E S S E T H :
WHEREAS, the Lessor and the Lessee have heretofore entered into a Master
Lease and Security Agreement (the "LEASE") dated as of May 22, 2001; and
WHEREAS, the Lessee has advised the Lessor that it desires to expand
certain Properties for which the Lease Term and the Lessee's obligation to pay
Base Rent has already commenced (the "EXISTING PROPERTIES") by constructing
additional Improvements which will be located on or attached to such Existing
Properties; and
WHEREAS, the Lessor is willing to finance the cost of such expansion as
if such new Improvements (and any Land to be acquired in connection therewith)
constituted a separate Construction Property for purposes of the Lease and the
other Operative Documents on the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined in this
Amendment have the meanings specified in Appendix 1 to the Lease; and the rules
of interpretation set forth in Appendix 1 shall apply to this Amendment.
2. AMENDMENTS. Notwithstanding anything to the contrary in the Lease, the
Construction Agency Agreement or the other Operative Documents:
(a) The Lessee may request Fundings for the purpose of (i)
constructing Improvements located in whole or in part on Land which is a part of
an Existing Property and (ii) acquiring contiguous Land on which a portion of
such Improvements will be located and constructing such portion of such
Improvements. Any such Improvements and contiguous Land will constitute a
separate Construction Property for purposes of the Lease, the Construction
Agency Agreement and the other Operative Documents. The Acquisition Date for
such Construction Property will be deemed to be the date of the initial Funding
by the Lessor with respect thereto. Any such Construction Property is referred
to herein as an "ADDITIONAL CONSTRUCTION PROPERTY" and the Existing Property to
which it relates is referred to herein as the "RELATED EXISTING PROPERTY". In
constructing such Improvements, the Lessee may, in accordance with the Plans and
Specifications for such Additional Construction Property, make Modifications to
the Related Existing Property which do not comply with clause (vi)(A), (B) or
(C) of Section 14.1 of the Lease, provided that if the Construction of the
Additional Construction Property is not completed for any reason, then the
Lessee shall, at its own cost and expense, (x) restore the Related Existing
Property so that its condition and value are at least equal to its condition and
value before the Acquisition Date of such Additional Construction Property and
(y) if requested by the Administrative Agent, furnish an Appraisal to the Lessor
and the Administrative Agent confirming such value.
(b) If the Additional Construction Property is located entirely on
Land which is part of the Related Existing Property, the occurrence of the
Acquisition Date with respect to such Additional
Construction Property is subject to the satisfaction of the following
conditions: (i) the conditions precedent in Sections 4.2(a) and (c) of the
Lease, except that the Appraisal to be delivered pursuant to Section 4.2(a)(ii)
shall appraise the Fair Market Sales Value of the Additional Construction
Property and the Related Existing Property as a whole and, if such Appraisal
shows that such Fair Market Sales Value as of the Expiration Date will be less
than the combined Maximum Lease Balance of such Additional Construction Property
and the Related Existing Property, the Lessor and the Lessee shall have agreed
upon the Quarterly Amortization for the Additional Construction Property, (ii)
the Mortgage and the title insurance policies for the Related Existing Property
shall have been increased, if necessary, by the amount of the Maximum Lease
Balance for the Additional Construction Property and (iii) no Involuntary Change
of Control shall have occurred.
(c) If the Additional Construction Property is located partly on
Land which is not a part of the Related Existing Property, the occurrence of the
Acquisition Date with respect to such Additional Construction Property is
subject to the satisfaction of the following conditions: (i) the conditions
precedent in clause 2(b)(i) above, (ii) the conditions precedent in Section
4.2(b) of the Lease, except that the Mortgage on such Land may be effected by
spreading the Mortgage on such Related Existing Property and the title insurance
policies delivered pursuant to Section 4.2(b)(vii) shall be for an amount which,
when added to the title insurance policies for the Related Existing Property, is
not less than the combined Maximum Lease Balance of such Additional Construction
Property and the Related Existing Property and (iii) no Involuntary Change of
Control shall have occurred.
(d) Each Additional Construction Property shall have its own
Construction Agency Agreement Supplement, Lease Supplement, Lease Balance,
Construction Period Guaranteed Amount and Guaranteed Residual Value. However,
following Substantial Completion of any Additional Construction Property, (i)
neither such Additional Construction Property nor the Related Existing Property
may be purchased, sold or exchanged pursuant to any provision of the Operative
Documents unless there is a simultaneous purchase, sale or exchange of the
Related Existing Property or Additional Construction Property, as the case may
be, and (ii) if the Lessee purchases any Additional Construction Property or
Related Existing Property pursuant to the Lease, it shall also simultaneously
purchase the Related Existing Property or Additional Construction Property, as
the case may be.
(e) Prior to Substantial Completion of any Additional Construction
Property, (i) if the Lessee purchases any Additional Construction Property
pursuant to the Construction Agency Agreement, it shall also simultaneously
purchase the Related Existing Property, (ii) if the Lessee purchases any Related
Existing Property pursuant to the Lease, it shall also simultaneously purchase
the related Additional Construction Property, (iii) the Lessee may not exchange
the Related Existing Property pursuant to Article XXVI of the Lease and (iv) if
any Involuntary Change of Control shall occur, the Related Existing Property
shall be deemed to be a Construction Property for purposes of Section 24.3 of
the Lease and Section 5.5 of the Construction Agency Agreement unless and until
the Lease Term for such Additional Construction Property has commenced.
(f) Each purchase by the Lessee pursuant to clauses (d) and (e)
above shall be made at the Purchase Option Price and in accordance with Section
25.1 of the Lease.
(g) Any failure of the Lessee to comply with this Amendment shall
constitute an Event of Default and a Construction Agency Agreement Event of
Default.
3. CONDITION TO EFFECTIVENESS. This Amendment shall become effective as
of the date hereof when the Administrative Agent shall have received
counterparts of this Amendment executed by the Lessor, Lessee, Collateral Agent
and Guarantor.
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4. COUNTERPARTS. This Amendment may be executed in several counterparts
and by the different parties hereto on separate counterparts, all of which taken
together shall constitute but one and the same Amendment. Delivery of an
executed counterpart of a signature page of this Amendment by telecopy shall be
effective as delivery of a manually executed counterpart of this Amendment.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
6. OPERATIVE DOCUMENTS REMAIN IN EFFECT. Except as provided herein, all
provisions, terms and conditions of the Operative Documents shall remain in full
force and effect. As amended hereby, the Operative Documents are ratified and
confirmed in all respects.
IN WITNESS WHEREOF, the parties have caused this Amendment be duly
executed and delivered as of the date first above written.
IRON MOUNTAIN STATUTORY TRUST - 2001,
as Lessor
By: First Union National Bank,
not in its individual capacity,
except as expressly provided herein,
but solely as trustee
By: /s/ XXXXXXX X. XXXXXXXX
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IRON MOUNTAIN RECORDS MANAGEMENT, INC.,
as Lessee
By: /s/ X.X. XXXXXXXX
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Consented to and Agreed:
THE BANK OF NOVA SCOTIA,
as Collateral Agent
By: /s/ X.X. XXXXXXX
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IRON MOUNTAIN INCORPORATED,
as Guarantor
By: /s/ X.X. XXXXXXXX
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