Exhibit 10.2B
[CONFORMED COPY]
AMENDMENT AND RESTATEMENT
AMENDMENT AND RESTATEMENT dated as March 3, 1997 among:
IRON MOUNTAIN INCORPORATED, a corporation duly organized
and validly existing under the laws of the State of Delaware (the
"Company");
each of the lenders listed on the signature pages hereof
under the caption "LENDERS" (individually, a "Lender" and,
collectively, the "Lenders"); and
THE CHASE MANHATTAN BANK, as agent for the Lenders (in such
capacity, together with its successors in such capacity, the
"Administrative Agent").
The Company, the Lenders and the Administrative Agent
are parties to a Credit Agreement dated as of September 30, 1996 (as amended to
but excluding the date hereof, the "Credit Agreement"), providing, subject to
the terms and conditions thereof, for extensions of credit (by making of loans
and issuing letters of credit) to be made by said Lenders to the Company in an
aggregate principal or face amount not exceeding $100,000,000. The Company, the
Lenders and the Administrative Agent wish to increase the aggregate amount of
the Commitments under the Credit Agreement from $100,000,000 to $150,000,000, to
amend the Credit Agreement in certain other respects and to restate the Credit
Agreement as set forth herein.
Accordingly, the Company, the Lenders and the
Administrative Agent hereto agree to amend the Credit Agreement as set forth
herein and to restate the Credit Agreement in its entirety to read as set forth
in the Credit Agreement with the amendments specified in Section 2 below:
Section 1. Definitions. Except as otherwise defined
in this Amendment and Restatement, terms defined in the Credit Agreement are
used herein as defined therein.
Amendment and Restatement
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Section 2. Amendments. Subject to the satisfaction of
the conditions precedent specified in Section 4 below, but effective as of the
date hereof, the Credit Agreement shall be amended as follows:
A. General. References in the Credit Agreement to the
Credit Agreement (including indirect references thereto such as "hereunder",
"hereby", "herein" and "hereof") shall be deemed to be references to the Credit
Agreement as amended and restated hereby. For all purposes of the Credit
Agreement (as amended and restated hereby) and the other Basic Documents, each
promissory note delivered to a Lender pursuant to Section 4(B) hereof shall
constitute a "Note".
B. Definitions. Section 1.01 of the Credit Agreement
shall be amended by deleting the definition of "Calculation Period" set forth
therein and by inserting the following definitions (or, in the case of any
definition for a term that is defined in the Credit Agreement before giving
effect to this Amendment and Restatement, by amending and restating such
definition to read as set forth below):
"Amendment and Restatement Effective Date" shall mean the
date specified by the Administrative Agent to the Company and the
Lenders in writing as the date on which the conditions precedent set
forth in Section 4 to the Amendment and Restatement of this Agreement
dated as of March 3, 1997 have been satisfied or waived.
"Commitment" shall mean, as to each Lender, the obligation
of such Lender to make Loans, and to issue or participate in Letters
of Credit pursuant to Section 2.08 hereof, in an aggregate principal
or face amount at any one time outstanding up to but not exceeding
the amount set opposite such Lender's name on Schedule I hereto under
the caption "Commitment" or, in the case of a Person that is party to
an assignment permitted under Section 12.06 hereof after the
Amendment and Restatement Effective Date, as specified in the
respective instrument of assignment pursuant to which such assignment
is effected (as the same may be reduced at any time or from time to
time pursuant to Section 2.02 or 3.02 hereof).
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"Applicable Commitment Fee Rate" shall mean, at any time,
the percentage per annum set forth in the schedule below opposite the
Pricing Level in effect at such time:
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Applicable Commitment
Pricing Level Fee Rate
--------------------------------------------------------------------------------
Xxxxx 0 0.375%
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Xxxxx 0 0.375%
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Xxxxx 0 0.375%
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Xxxxx 0 0.375%
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Xxxxx 0 0.375%
--------------------------------------------------------------------------------
Xxxxx 0 0.250%
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For purposes of this definition, the "Pricing Level" in effect at any
time shall be the level (either Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 0,
Xxxxx 5 or Level 6) indicated in the schedule set forth in the
definition of "Applicable Margin" in this Section 1.01 corresponding
to the Applicable Leverage Ratio in effect at such time.
"Applicable Margin" shall mean the rate for the respective
Type of Loan set forth below opposite the level
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(either Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 5 or Level 6)
indicated in the schedule set forth below corresponding to the
Applicable Leverage Ratio in effect at such time:
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Range of Applicable Applicable Margin
Leverage Ratio
ABR Eurodollar
Loans Loans
--------------------------------------------------------------------------------
Level 6
Greater than 5.50 to 1.00 1.75% 2.50%
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Level 5
Less than or equal to 5.50 to 1.00 and 1.50% 2.25%
greater than 5.00 to 1.00
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Level 4
Less than or equal to 5.00 to 1.00 and 1.25% 2.00%
greater than 4.25 to 1.00
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Level 3
Less than or equal to 4.25 to 1.00 and 1.00% 1.75%
greater than 3.75 to 1.00
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Level 2
Less than or equal to 3.75 to 1.00 and 0.75% 1.50%
greater than 3.25 to 1.00
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Level 1
Less than or equal to 3.25 to 1.00 0.50% 1.25%
--------------------------------------------------------------------------------
C. Definitions (cont'd). Section 1.01 of the Credit
Agreement shall be further amended by substituting, in the second paragraph of
the definition of "EBITDA" therein, a reference to "$500,000" for the reference
to "$750,000" therein.
Amendment and Restatement
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D. Financial Covenants. Sections 9.09 and 9.10 of the
Credit Agreement shall be amended to read in their respective entireties as
follows:
"9.09 Leverage Ratio. The Company will not, as at the end
of any fiscal quarter, permit the ratio, calculated as at the end of
such fiscal quarter for the four fiscal quarters then ended, of (i)
the excess of (x) the aggregate outstanding principal amount of
Funded Indebtedness of the Company and its Subsidiaries at such date
over (y) the aggregate amount of cash and Liquid Investments of the
Company and Subsidiaries as of such date to (ii) EBITDA for such
period (the "Leverage Ratio") to exceed the ratio set forth below for
the period in which such fiscal quarter ends:
Period Leverage Ratio
From the Closing Date
through December 31, 1998 5.75 to 1
From January 1, 1999
through June 30, 1999 5.50 to 1
From July 1, 1999
through December 31, 1999 5.00 to 1
From January 1, 2000
through June 30, 2000 4.75 to 1
From July 1, 2000
and at all times thereafter 4.50 to 1
9.10 Interest Coverage Ratio. The Company will not, as at
the end of any fiscal quarter, permit the ratio, calculated as at the
end of such fiscal quarter for the 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:
Amendment and Restatement
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Period Interest Coverage Ratio
From the Closing Date
through December 31, 1998 1.75 to 1
From January 1, 1999
through June 30, 1999 1.90 to 1
From July 1, 1999
through June 30, 2000 2.00 to 1
From July 1, 2000
through December 31, 2000 2.25 to 1
From January 1, 2001
and at all times thereafter 2.50 to 1
For purposes of calculating any ratio set forth in this
Section, if the Company 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 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 the Company and its
Subsidiaries (on a consolidated basis) in connection with any
Permitted Acquisition having Acquisition Consideration of more than
$500,000 during such period."
E. Fixed Charges Coverage Ratio. Section 9.11 of the
Credit Agreement shall be amended by substituting, in the last paragraph
thereof, a reference to "$500,000" for the reference to "$750,000" therein.
F. Permitted Acquisitions. Section 9.12 of the Credit
Agreement shall be amended by amending clause (a) of the definition of
"Permitted Acquisition" therein to read as follows:
"(a) Maximum Periodic Consideration. Without the consent of
the Majority Lenders, the aggregate amount of Acquisition
Consideration paid in respect of Acquisitions
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shall not exceed
$100,000,000 in any calendar year; provided that the aggregate amount
of Acquisition Consideration (excluding, for purposes of this
proviso, Stock Consideration) paid in respect of Acquisitions shall
not exceed $75,000,000 in any calendar year."
G. Schedule I. Schedule I to the Credit Agreement
shall be amended to read as set forth on Schedule I hereto.
H. Amendment to Exhibit A. Exhibit A to the Credit
Agreement shall be amended by substituting "(as amended and restated as of March
3, 1997 and as the same may be further modified and supplemented and in effect
from time to time, the "Credit Agreement")" for "(as modified and supplemented
and in effect from time to time, the "Credit Agreement")".
Section 3. Representations and Warranties. The
Company represents and warrants to the Lenders that, both before and after
giving effect to each of the amendments set forth in Section 2 hereof:
(a) no Default has occurred and is continuing; and
(b) the representations and warranties made by each of the
Company and the Subsidiary Guarantors in each Basic Document to which
it is a party (other than the representations and warranties set
forth in Section 8.10 of the Credit Agreement) are true on and as of
the date hereof, with the same force and effect as if made on and as
of such date and as if each reference in the Basic Documents to "this
Agreement" or "the Credit Agreement" included reference to this
Amendment and Restatement.
Section 4. Conditions Precedent. The amendment and
restatement of the Credit Agreement contemplated hereby shall become effective
upon the satisfaction of the following conditions precedent:
A. Execution by All Parties. This Amendment and Restatement
shall have been executed and delivered by each of the Company, the
Lenders and the Administrative Agent, and each of the Subsidiary
Guarantors shall have executed
Amendment and Restatement
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and delivered this Amendment and Restatement as provided under the
caption "CONSENT OF SUBSIDIARY GUARANTORS" on the signature pages
hereof.
B. Promissory Notes. The Company shall have delivered to
the Administrative Agent for each Lender a promissory note of the
Company in substantially the form of Exhibit A to the Credit
Agreement as amended and restated hereby, dated October 1, 1996,
payable to such Lender in a principal amount equal to its Commitment
after giving effect hereto and otherwise duly completed.
C. Documents. The Administrative Agent shall have
received the following documents, each of which shall be
satisfactory to the Administrative Agent in form and
substance:
(1) Corporate Documents. Certified copies of the
charter and by-laws (or equivalent documents) of each
Obligor (or, in the alternative, a certification to the
effect that none of such documents has been modified since
delivery thereof pursuant to Section 7.01 of the Credit
Agreement) and of all corporate authority for each Obligor
(including, without limitation, board of director
resolutions and evidence of the incumbency of officers for
each Obligor) with respect to the execution, delivery and
performance of this Amendment and Restatement and the
Credit Agreement as amended and restated hereby and the
loans under the Credit Agreement as amended and restated
hereby, the Notes delivered pursuant hereto and each other
document to be delivered by each Obligor from time to time
in connection with the Credit Agreement as amended and
restated hereby (and the Administrative Agent and each
Lender may conclusively rely on such certificate until it
receives notice in writing from each Obligor to the
contrary).
(2) Opinion of Counsel to the Obligors. An
opinion, dated the Amendment and Restatement Effective
Date, of Xxxxxxxx & Worcester, special New York counsel to
the Obligors, in form and substance satisfactory to
Amendment and Restatement
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the Lenders (and each Obligor hereby instructs each such
counsel to deliver such opinion to the Lenders and the
Administrative Agent).
(3) Opinion of Special New York Counsel to the
Administrative Agent. An opinion of Milbank, Tweed, Xxxxxx
& XxXxxx, special New York counsel to the Administrative
Agent, in form and substance satisfactory to the
Administrative Agent (and the Administrative Agent hereby
instructs such counsel to deliver such opinion to the
Lenders).
(4) Other Documents. Such other documents as the
Administrative Agent or any Lender or special New York
counsel to Chase may reasonably request.
Section 5. Pro Rata Adjustments. The Company shall,
on the effective date of the amendment and restatement of the Credit Agreement
contemplated hereby, if any Loans are outstanding on said date, borrow Loans
from certain of the Lenders and/or (notwithstanding the provisions of Section
5.02 of the Credit Agreement requiring that prepayments be made ratably in
accordance with the principal amounts of the Loans held by the Lenders) prepay
Loans of certain of the Lenders (together with accrued interest and any amounts
payable under Section 6.05 of the Credit Agreement) such that, after giving
effect thereto, the Loans (including, without limitation, the Types and Interest
Periods thereof) shall be held by the Lenders ratably in accordance with their
respective Commitments.
Section 6. Miscellaneous. Except as herein provided,
the Credit Agreement shall remain unchanged and in full force and effect. This
Amendment and Restatement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same amendatory instrument and
any of the parties hereto may execute this Amendment and Restatement by signing
any such counterpart. This Amendment and Restatement shall be governed by, and
construed in accordance with, the law of the State of New York.
Amendment and Restatement
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Restatement to be duly executed and delivered as of the day and
year first above written.
THE COMPANY
IRON MOUNTAIN INCORPORATED
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Title: Executive Vice President
& Chief Financial Officer
LENDERS
THE CHASE MANHATTAN BANK
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Title: Managing Director
THE BANK OF NEW YORK
By /s/ Xxxxx X. Xxxxxx
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Title: Vice President
CIBC INC.
By /s/ Xxxxxxx Xxxxx
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Title: Managing Director, CIBC
Wood Gundy Securities
Corp., as Agent
Amendment and Restatement
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THE FIRST NATIONAL BANK OF BOSTON
By /s/ Xxxxxxxx Xxxxxxx
------------------------------------
Title: Vice President
FLEET NATIONAL BANK
By /s/ Xxxxxxx Xxxxxx
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Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ X. X. Xxxxxxx
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Title: Authorized Signatory
NATIONAL CITY BANK
By /s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
Amendment and Restatement
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THE SUMITOMO BANK, LIMITED
By /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President & Manager
By /s/ Xxxxxx De Gemmis
------------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxx Xxxxxx
------------------------------------
Title: Vice President
BANK OF IRELAND GRAND CAYMAN
By /s/ Xxxxxxx Xxxxxxx
------------------------------------
Title: Account Manager
GIROCREDIT BANK AG DER SPARKASSEN,
GRAND CAYMAN ISLAND BRANCH
By /s/ Xxxx X. Xxxxxxx
------------------------------------
Title: Vice President
By /s/ Xxxxxxx Xxxxx
------------------------------------
Title: First Vice President
Amendment and Restatement
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THE ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Title: Managing Director
CONSENT OF SUBSIDIARY GUARANTORS
Each of the undersigned hereby consents to the foregoing Amendment and
Restatement and reaffirms its obligations under the Subsidiary Guaranty and the
Security Documents to which it is a party with respect to the Credit Agreement
as so amended and restated, it being expressly understood and agreed that all of
the obligations of the Company under the Credit Agreement as amended and
restated by the foregoing Amendment and Restatement and the Notes delivered
pursuant to Section 4(B) thereof shall be "Guaranteed Obligations" under the
Subsidiary Guaranty and "Secured Obligations" under the Security Documents.
IRON MOUNTAIN RECORDS MANAGEMENT,
INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
CRITERION PROPERTY, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
CRITERION ATLANTIC PROPERTY, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
Amendment and Restatement
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HOLLYWOOD PROPERTY, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
IRON MOUNTAIN DATA PROTECTION
SERVICES, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
IRON MOUNTAIN CONSULTING SERVICES,
INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
IRON MOUNTAIN RECORDS MANAGEMENT OF
OHIO, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
METRO BUSINESS ARCHIVES, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
IM SAN DIEGO, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
Amendment and Restatement
IRON MOUNTAIN RECORDS MANAGEMENT OF
MARYLAND, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
DATA ARCHIVE SERVICES, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
IRON MOUNTAIN RECORDS MANAGEMENT OF
MISSOURI LLC
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
IRON MOUNTAIN RECORDS MANAGEMENT OF
BOSTON, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
IRON MOUNTAIN WILMINGTON, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
IRON MOUNTAIN RECORDS MANAGEMENT
OF MICHIGAN, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: EVP
Amendment and Restatement
SCHEDULE I
Lender and Commitments
Lenders Commitment
THE CHASE MANHATTAN BANK $18,000,000.00
THE BANK OF NEW YORK $16,500,000.00
CIBC INC. $16,500,000.00
THE FIRST NATIONAL BANK OF BOSTON $16,500,000.00
FLEET NATIONAL BANK $16,500,000.00
THE BANK OF NOVA SCOTIA $12,000,000.00
NATIONAL CITY BANK $12,000,000.00
THE SUMITOMO BANK, LIMITED $12,000,000.00
UNION BANK OF CALIFORNIA, N.A. $12,000,000.00
BANK OF IRELAND GRAND CAYMAN $ 9,000.000.00
GIROCREDIT BANK AG DER SPARKASSEN, $ 9,000,000.00
GRAND CAYMAN ISLAND BRANCH
Amendment and Restatement
