IRON MOUNTAIN NOVA SCOTIA FUNDING COMPANY IRON MOUNTAIN INCORPORATED AND THE OTHER GUARANTORS NAMED HEREIN AND THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee 7½ % Senior Subordinated Notes due 2017 SIXTH SUPPLEMENTAL INDENTURE Dated as of March...
EXHIBIT
4.1
IRON
MOUNTAIN NOVA SCOTIA FUNDING COMPANY
IRON
MOUNTAIN INCORPORATED AND THE
OTHER
GUARANTORS NAMED HEREIN
AND
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.,
as
Trustee
7½
%
Senior Subordinated Notes due 2017
SIXTH
SUPPLEMENTAL INDENTURE
Dated
as
of March 15, 2007
TO
Dated
as
of December 30, 2002
TABLE
OF
CONTENTS
Page
|
||
ARTICLE 1. DEFINITIONS
|
1
|
|
Section 1.1.
|
Definitions
|
1
|
ARTICLE 2. FORM AND TERMS OF THE
NOTES
|
18
|
|
Section 2.1.
|
Form and Dating
|
18
|
(a)
|
General
|
18
|
(b)
|
Global Note
|
18
|
(c)
|
Book-Entry Provisions
|
19
|
(d)
|
Definitive Notes
|
19
|
Section 2.2.
|
Execution and Authentication.
|
19
|
Section 2.3.
|
Depository, Paying Agent and Sub-Paying
Agent for Notes.
|
19
|
Section 2.4.
|
Transfer and Exchange of Notes
|
20
|
(a)
|
Transfer and Exchange of Global
Notes
|
20
|
(b)
|
Transfer and Exchange of Beneficial
Interests in the Global Notes
|
20
|
(c)
|
Transfer or Exchange of Beneficial
Interests for Definitive Notes
|
22
|
(d)
|
Transfer and Exchange of Definitive
Notes
for Beneficial Interests
|
24
|
(e)
|
Transfer and Exchange of Definitive
Notes
for Definitive Notes
|
26
|
(f)
|
Exchange Offer
|
27
|
(g)
|
Legends
|
28
|
(h)
|
Authentication of Definitive Notes
in
Absence of Depository
|
29
|
(i)
|
Cancellation and/or Adjustment of
Global
Notes
|
30
|
(j)
|
General Provisions Relating to Transfers
and Exchanges
|
30
|
Section 2.5.
|
Redemption
|
31
|
Section 2.6.
|
Additional Covenants
|
34
|
(a)
|
Restricted Payments
|
34
|
(b)
|
Incurrence of Indebtedness and Issuance
of Preferred Stock
|
37
|
(c)
|
Liens
|
38
|
(d)
|
Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries
|
38
|
(e)
|
Transactions with Affiliates
|
40
|
(f)
|
Certain Senior Subordinated Debt
|
41
|
(g)
|
Additional Subsidiary Guarantees
|
41
|
(h)
|
Designation of Unrestricted
Subsidiaries
|
42
|
(i)
|
Limitation on Sale and Leaseback
Transactions
|
43
|
(j)
|
Asset Sales
|
43
|
(k)
|
Change of Control Offer
|
45
|
(l)
|
Changes in Covenants When Notes Rated
Investment Grade
|
47
|
(m)
|
Additional Tax Amounts
|
47
|
(n)
|
Release of Company and Subsidiary
Guarantees and Guarantors
|
49
|
Section 2.7.
|
Replacement of Certain References
in the
Indenture.
|
50
|
Section 2.8.
|
Provisions Regarding Incorporation
by
Reference of Trust Indenture Act.
|
50
|
Section 2.9.
|
Amend, Restate and Replace Provision
Regarding Payment of Principal and Interest.
|
50
|
Section 2.10.
|
Provisions Regarding Successors.
|
51
|
Section 2.11.
|
Events of Default.
|
51
|
Section 2.12.
|
Acceleration of Maturity.
|
52
|
Section 2.13.
|
Waiver of Past Defaults.
|
53
|
Section 2.14.
|
Legal Defeasance and Covenant
Defeasance.
|
53
|
(a)
|
Ability to Effect Legal Defeasance
or
Covenant Defeasance
|
53
|
(b)
|
Amend, Restate and Replace Covenant
Regarding Legal Defeasance and Discharge
|
53
|
(c)
|
Amend, Restate and Replace Covenant
Regarding Deposit
|
54
|
(d)
|
Delivery of an Opinion of Canadian
Counsel
|
54
|
Section 2.15.
|
Subordination.
|
55
|
Section 2.16.
|
Amend, Restate and Replace Provision
Regarding Amendment with the Consent of the Holders of the Notes.
|
55
|
Section 2.17.
|
Amend, Restate and Replace Provision
Regarding Limitations on Amendment or Waiver.
|
55
|
Section 2.18.
|
Amend, Restate and Replace Provision
Regarding Personal Liability.
|
56
|
Section 2.19.
|
Note Guarantees.
|
56
|
Section 2.20.
|
Provisions Regarding Subsidiary
Guarantees and Limitation of Guarantor’s Liability.
|
56
|
Section 2.21.
|
Provisions Regarding Agreement to
Subordinate.
|
56
|
Section 2.22.
|
Provisions Regarding Subordination
of
Note Guarantees.
|
57
|
ARTICLE 3. MISCELLANEOUS
|
57
|
|
Section 3.1.
|
Effect of Headings
|
57
|
Section 3.2.
|
Successors and Assigns.
|
57
|
Section 3.3.
|
Separability Clause.
|
57
|
Section 3.4.
|
Governing Law.
|
57
|
Section 3.5.
|
Sixth Supplement to Supersede
Indenture.
|
58
|
EXHIBITS
Exhibit
A FORM
OF
NOTE
Exhibit
B FORM
OF
CERTIFICATE OF TRANSFER
Exhibit
C FORM
OF
CERTIFICATE OF EXCHANGE
Exhibit
D FORM
OF
CERTIFICATE FROM ACQUIRING INSTITUTIONAL INVESTOR
Exhibit
E FORM
OF
SUPPLEMENTAL INDENTURE TO BE DELIVERED BY FUTURE GUARANTORS
THIS
SIXTH SUPPLEMENTAL INDENTURE, dated as of March 15, 2007 (“Sixth
Supplemental Indenture”),
is by
and between IRON MOUNTAIN NOVA SCOTIA FUNDING COMPANY, a Nova Scotia unlimited
liability company (the “Issuer”),
having its principal office at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
the Guarantors signatory hereto, and THE BANK OF NEW YORK TRUST COMPANY, N.A.,
a
national banking association, as trustee (the “Trustee”),
having its principal corporate trust office at 000 Xxxxxxxx Xxxxxx,
0xx
Xxxxx,
Xxxxxx, XX 00000.
WHEREAS,
Iron Mountain Incorporated (the “Company”)
and
the Trustee, as successor trustee, are parties to that certain Senior
Subordinated Indenture, dated as of December 30, 2002 (the “Indenture”),
to
provide for the issuance by the Company from time to time of Securities to
be
issued in one or more series as provided in the Indenture;
WHEREAS,
the Issuer desires to issue and sell C$175,000,000 aggregate principal amount
of
a series of the Issuer’s Securities (the “Notes”)
on the
date hereof;
ARTICLE
1.
Section
1.1. Definitions
(a) All
of the terms used in this Sixth Supplemental Indenture that are defined in
the
Indenture shall have the meanings specified in the Indenture, unless otherwise
defined herein (in which case they shall have the meanings defined herein for
the purposes of the Indenture as well as for the Sixth Supplemental Indenture)
or unless the context otherwise requires, and for the purposes of this Sixth
Supplemental Indenture, the following terms have the meanings set forth in
this
Section:
“144A
Global Note”
means a
Global Note substantially in the form of Exhibit A hereto bearing the Global
Note Legend and the Private Placement Legend and deposited with or on behalf
of,
and registered in the name of, the Depository or its nominee that will be issued
in a denomination equal to the outstanding principal amount of the Notes sold
in
reliance on Rule 144A.
“Acquired
Debt”
means,
with respect to any specified Person:
(1)
|
Indebtedness
of any other Person, existing at the time such other Person merged
with or
into or became a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of,
such
other Person merging with or into or becoming a Subsidiary of such
specified Person; and
|
(2)
|
Indebtedness
encumbering any asset acquired by such specified Person.
|
“Acquisition
EBITDA”
means,
as of any date of determination, with respect to an Acquisition EBITDA Entity,
the sum of:
(1)
|
EBITDA
of such Acquisition EBITDA Entity for the most recently ended four
full
fiscal quarters for which internal financial statements are available
at
such date of determination (adjusted to give pro forma effect to
any
acquisition or disposition of a business or Person by such Acquisition
EBITDA Entity consummated during the period covered by, or after
the date
of, such four full fiscal quarters or if statements are not available
for
such four full fiscal quarters, EBITDA for the most recently ended
fiscal
quarter for which internal financial statements are available,
annualized), plus
|
(2)
|
projected
quantifiable improvements in operating results (on an annualized
basis)
due to cost reductions calculated in good faith by the Company or
one of
its Restricted Subsidiaries, as certified by an Officers’ Certificate
filed with the Trustee, without giving effect to any operating losses
of
the acquired Person.
|
“Acquisition
EBITDA Entity”
means,
as of any date of determination, a business or Person:
(1)
|
which
has been acquired by the Company or one of its Restricted Subsidiaries
and
with respect to which internal financial statements on a consolidated
basis with the Company are not available for four full fiscal quarters;
or
|
(2)
|
which
is to be acquired in whole or in part with Indebtedness, the incurrence
of
which will require the calculation on such date of the Acquisition
EBITDA
of such Acquisition EBITDA Entity for purposes of Section 2.6(b)
of this
Sixth Supplemental Indenture (Section 4.9 of the Indenture).
|
“Additional
Amounts”
means
any additional amounts which are required hereby or by any Security, under
circumstances specified herein or therein, to be paid by the Issuer in respect
of certain taxes imposed on Holders specified therein and which are owing to
such Holders.
“Additional
Interest”
means
all additional interest or liquidated damages then owing pursuant to the
Registration Rights Agreement.
“Additional
Notes”
means
such amount of the Issuer’s 7½% Senior Subordinated Notes due 2017 (other than
the Initial Notes) as the Issuer may issue from time to time under this Sixth
Supplemental Indenture in accordance with Section 2.2 hereof as part of the
same
series as the Initial Notes.
“Adjusted
EBITDA”
means,
as of any date of determination and without duplication, the sum of:
(1)
|
EBITDA
of the Company and its Restricted Subsidiaries for the Company’s most
recently ended four full fiscal quarters for which internal financial
statements are available at such date of determination; and
|
(2)
|
Acquisition
EBITDA of each business or Person that is an Acquisition EBITDA Entity
as
of such date of determination, multiplied by a fraction, (i) the
numerator of which is 12 minus the number of months (and/or any portion
thereof) in such
|
2
most
recent four full fiscal quarters for which the financial results of such
Acquisition EBITDA Entity are included in the EBITDA of the Company and its
Restricted Subsidiaries under clause (1) above, and (ii) the
denominator of which is 12. The effects of unusual items, including
merger-related expenses permitted to be shown as a separate line item on a
statement of operations in accordance with GAAP, or non-recurring items in
respect of the Company, a Restricted Subsidiary or an Acquisition EBITDA Entity
occurring in any period shall be excluded in the calculation of Adjusted
EBITDA.
“Agent
Members”
means
members of, or Participants in, the Depository.
“Applicable
Procedures”
means,
with respect to any transfer or exchange of or for beneficial interests in
any
Global Note, the rules and procedures of the Depository that apply to such
transfer or exchange.
“Attributable
Indebtedness”
in
respect of a Sale and Leaseback Transaction means, as of the time of
determination, the greater of:
(1)
|
the
fair market value of the property subject to such arrangement (as
determined by the Board of Directors); and
|
(2)
|
the
present value (discounted at the rate of interest implicit in such
transaction) of the total obligations of the lessee for rental payments
during the remaining terms of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease
has been
extended).
|
“Board
of Directors”
means
the Board of Directors of the Company or the Issuer, as appropriate, or any
duly
authorized committee thereof.
“Broker-Dealer”
has
the
meaning set forth in the Registration Rights Agreement.
“CAD
Make-Whole Amount”
means,
with respect to any note, an amount equal to the excess, if any,
of:
(1)
|
the
present value of the remaining principal, premium and interest payments
that would be payable with respect to such note if such note were
redeemed
on March 15, 2012, computed using a discount rate equal to the CAD
Yield plus 75 basis points, over
|
(2)
the
outstanding principal amount of such note.
“CAD
Make-Whole Average Life”
means,
with respect to any date of redemption of notes, the number of years (calculated
to the nearest one-twelfth) from such redemption date to March 15,
2012.
“CAD
Make-Whole Price”
means,
with respect to any note, the greater of:
(1)
|
the
sum of the principal amount of and CAD Make-Whole Amount with respect
to
such note; and
|
(2)
the
redemption price of such note on March 15, 2012.
3
“CAD
Yield”
means,
at any time of computation, the yield to maturity at such time, compounded,
semi-annually, which a non-callable Government of Canada bond would carry if
issued, in Canadian dollars in Canada, at 100% of its principal amount at such
time with a term to maturity approximately equal to CAD Make-Whole Average
Life.
The CAD Yield will be the average (rounded to four decimal places) of the yields
determined by two major Canadian investment dealers selected by the
Issuer.
“Canadian
Dollars,”
“CAD”
and
“C$”
mean
lawful money of Canada.
“Canadian
Government Obligations”
means
direct obligations of, or obligations guaranteed by, the Canadian government
or
any agency thereof for the payment of which guarantee or obligations the full
faith and credit of Canada is pledged.
“Cash
Equivalents”
means:
(1)
|
securities
with maturities of one year or less from the date of acquisition,
issued,
fully guaranteed or insured by the United States Government or any
agency
thereof;
|
(2)
|
certificates
of deposit, time deposits, overnight bank deposits, bankers acceptances
and repurchase agreements issued by a Qualified Issuer having maturities
of 270 days or less from the date of acquisition;
|
(3)
|
commercial
paper of an issuer rated at least A-2 by Standard & Poor’s Rating
Group, a division of The XxXxxx-Xxxx Companies, Inc., or P-2 by
Xxxxx’x Investors Service, or carrying an equivalent rating by a
nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments, and having maturities
of
270 days or less from the date of acquisition;
|
(4)
|
money
market accounts or funds with or issued by Qualified Issuers; and
|
(5)
|
Investments
in money market funds substantially all of the assets of which are
comprised of securities and other obligations of the types described
in
clauses (1) through (3) above.
|
“Change
of Control”
means
the occurrence of any of the following events:
(1)
|
any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), other than the Principal Stockholders (or any
of them),
is or becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of more than
a
majority of the voting power of all classes of Voting Stock of the
Company;
|
(2)
|
the
Company consolidates with, or merges with or into, another Person
or
conveys, transfers, leases or otherwise disposes of all or substantially
all of its assets to any Person, or any Person consolidates with,
or
merges with or into, the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company
is
converted into or exchanged for cash, securities or other property,
other
than any such transaction where (i) the outstanding Voting Stock of
the Company is not converted or exchanged at all (except to the
|
4
extent
necessary to reflect a change in the jurisdiction of incorporation) or is
converted into or exchanged for (A) Voting Stock (other than Disqualified
Stock) of the surviving or transferee Person or (B) cash, securities and
other property (other than Capital Stock described in the foregoing
clause (A)) of the surviving or transferee Person in an amount that could
be paid as a Restricted Payment pursuant to Section 2.6(a) of the Sixth
Supplemental Indenture (Section 4.8 of the Indenture) and (ii) immediately
after such transaction, no “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than the Principal
Stockholders (or any of them), is the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
more than a majority of the total outstanding Voting Stock of the surviving
or
transferee Person;
(3)
|
during
any consecutive two-year period, individuals who at the beginning
of such
period constituted the Board of Directors (together with any new
directors
whose election to such Board of Directors, or whose nomination for
election by the stockholders of the Company, was approved by a vote
of
662/3%
of the directors then still in office who were either directors at
the
beginning of such period or whose election or nomination for election
was
previously so approved) cease for any reason to constitute a majority
of
the Board of Directors then in office; or
|
(4)
|
the
Company is liquidated or dissolved or adopts a plan of liquidation
or
dissolution other than in a transaction which complies with Section
5.1 of
the Indenture.
|
“Company
Guarantee”
means
a
Guarantee of the Company pursuant to Article XII of the
Indenture.
“Consolidated
Adjusted Net Income”
means,
for any period, the net income (or net loss) of the Company and its Restricted
Subsidiaries for such period as determined on a consolidated basis in accordance
with GAAP, adjusted to the extent included in calculating such net income or
loss by excluding:
(1)
|
any
net after-tax extraordinary gains or losses (less all fees and expenses
relating thereto);
|
(2)
|
any
net after-tax gains or losses (less all fees and expenses relating
thereto) attributable to Asset Sales;
|
(3)
|
the
portion of net income (or loss) of any Person (other than the Company
or a
Restricted Subsidiary), including Unrestricted Subsidiaries, in which
the
Company or any Restricted Subsidiary has an ownership interest, except
to
the extent of the amount of dividends or other distributions actually
paid
to the Company or any Restricted Subsidiary in cash dividends or
distributions by such Person during such period; and
|
(4)
|
the
net income (or loss) of any Person combined with the Company or any
Restricted Subsidiary on a “pooling of interests” basis attributable to
any period prior to the date of combination.
|
5
“Consolidated
Income Tax Expense”
means,
for any period, the provision for U.S. federal, state, local and foreign income
taxes of the Company and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP.
“Consolidated
Interest Expense”
means,
for any period, without duplication, the sum of:
(1)
|
the
amount which, in conformity with GAAP, would be set forth opposite
the
caption “interest expense” (or any like caption) on a consolidated
statement of operations of the Company and its Restricted Subsidiaries
for
such period, including, without limitation:
|
(i) amortization
of debt discount;
(ii) the
net
cost of interest rate contracts (including amortization of discounts);
(iii) the
interest portion of any deferred payment obligation;
(iv) amortization
of debt issuance costs; and
(v) the
interest component of Capital Lease Obligations of the Company and its
Restricted Subsidiaries; plus
(2)
|
all
interest on any Indebtedness of any other Person guaranteed and paid
by
the Company or any of its Restricted Subsidiaries;
|
provided,
however,
that
Consolidated Interest Expense will not include any gain or loss from
extinguishment of debt, including write-off of debt issuance costs.
“Consolidated
Non-Cash Charges”
means,
for any period, the aggregate depreciation, amortization and other non-cash
expenses of the Company and its Restricted Subsidiaries (including without
limitation any minority interest) reducing Consolidated Adjusted Net Income
for
such period, determined on a consolidated basis in accordance with GAAP
(excluding any such non-cash charge to the extent that it requires an accrual
of
or reserve for cash charges for any future period).
“Credit
Agent”
means
JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the
lenders party to the Credit Agreement, or any successor or successors party
thereto.
“Credit
Agreement”
means
that certain Amended and Restated Credit Agreement, dated as of July 8, 2004,
as
amended, among the Company, the lenders party thereto and the Credit Agent,
as
amended, restated, supplemented, modified, renewed, refunded, increased,
extended, replaced or refinanced from time to time.
6
“Definitive Notes”
means
Notes that are in the form of the Notes attached hereto as Exhibit A, that
do
not include the information called for by Section 2.15 of the
Indenture.
“Depository”
means,
with respect to the Securities of any Series issuable or issued in whole or
in
part in the form of one or more Global Securities, the Person designated as
Depository for such Series by the Issuer; and if at any time there is more
than
one such Person, “Depository”
as
used
with respect to the Securities of any Series shall mean the Depository with
respect to the Securities of such Series.
“EBITDA”
means
for any period Consolidated Adjusted Net Income for such period increased by:
(1)
|
Consolidated
Interest Expense for such period; plus
|
(2)
|
Consolidated
Income Tax Expense for such period; plus
|
(3)
|
Consolidated
Non-Cash Charges for such period.
|
“Equity
Interests”
means
Capital Stock and all warrants, options or other rights to acquire Capital Stock
(but excluding any debt security that is convertible into, or exchangeable
for,
Capital Stock).
“Equity
Proceeds”
means:
(1)
|
with
respect to Equity Interests (or debt securities converted into Equity
Interests) issued or sold for cash Dollars, the aggregate amount
of such
cash Dollars; and
|
(2)
|
with
respect to Equity Interests (or debt securities converted into Equity
Interests) issued or sold for any consideration other than cash Dollars,
the aggregate Market Price thereof computed on the date of the issuance
or
sale thereof.
|
“Exchange
Notes”
means
the Notes issued in the Exchange Offer pursuant to Section 2.04(f)
hereof.
“Exchange
Offer”
has
the
meaning set forth in the Registration Rights Agreement.
“Exchange
Offer Registration Statement”
has
the
meaning set forth in the Registration Rights Agreement.
“Excluded
Restricted Subsidiary”
means
any Restricted Subsidiary organized under the laws of a jurisdiction other
than
the United States (as defined in Regulation S under the Securities Act) and
that
has not delivered a Subsidiary Guarantee.
“Existing
Indebtedness”
means
Indebtedness of the Company and its Subsidiaries (other than under the Credit
Agreement) in existence on the date of the Sixth Supplemental Indenture, until
such amounts are repaid.
“Global
Note Legend”
means
the legend set forth in Section 2.4(g)(2) hereof, which is required to be placed
on all Global Notes issued under this Indenture.
7
“Global
Notes”
means,
individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes deposited with or on behalf of and registered in
the
name of the Depository or its nominee, substantially in the form of Exhibit
A
hereto and that bears the Global Note Legend, issued in accordance with Section
2.1, 2.4(b)(3), 2.4(b)(4), 2.4(d)(2) or 2.4(f) hereof.
“Guarantors”
means
the Company and each Subsidiary that is a signatory to the Indenture as a
guarantor and each Subsidiary of the Company that in accordance with the terms
of any Securities or a Series issued under the Indenture pursuant to any
supplemental indenture relating to such Securities becomes a party to the
Indenture as a guarantor.
“IAI
Global Note”
means
a
Global Note substantially in the form of Exhibit A hereto, bearing the Global
Note Legend and the Private Placement Legend and deposited with or on behalf
of
and registered in the name of the Depository or its nominee that will be issued
in a denomination equal to the outstanding principal amount of the Notes sold
to
Institutional Accredited Investors.
“Indirect
Participant”
means
a
Person who holds a beneficial interest in a Global Note through a
Participant.
“Initial
Notes”
means
the first C$175,000,000 aggregate principal amount of 7½%
Senior
Subordinated Notes due 2017 that are issued under this Sixth Supplemental
Indenture, as amended or supplemented from time to time pursuant to the
Indenture.
“Institutional
Accredited Investor”
means
an institution that is an “accredited investor,” as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act, who is not also a QIB.
“Investments”
means,
with respect to any Person, all investments by such Person in other Persons
(including Affiliates) in the forms of loans (including Guarantees), advances
or
capital contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases
or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities and all other items that are or would be classified as investments
on
a balance sheet prepared in accordance with GAAP.
“Issuer
Order”
means
a
written order signed in the name of the Issuer by two Officers.
“Leverage
Ratio”
means,
at any date, the ratio of:
(1)
|
the
aggregate principal amount of Indebtedness of the Company and its
Restricted Subsidiaries outstanding as of the most recent available
quarterly or annual balance sheet, to
|
(2)
|
Adjusted
EBITDA, after giving pro forma effect, without duplication, to
|
(i) the
incurrence, repayment or retirement of any Indebtedness by the Company or its
Restricted Subsidiaries since the last day of the most recent full fiscal
quarter of the Company;
(ii)
if
the
Leverage Ratio is being determined in connection with the incurrence of
Indebtedness by the Company or a Restricted Subsidiary, such Indebtedness;
and
8
(iii) the
Indebtedness to be incurred in connection with the acquisition of any
Acquisition EBITDA Entity.
“Lien”
means,
with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law (including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code, or equivalent statutes, of any jurisdiction).
“Market
Price”
means:
(1)
|
with
respect to the calculation of Equity Proceeds from the issuance or
sale of
debt securities which have been converted into Equity Interests,
the value
received upon the original issuance or sale of such converted debt
securities, as determined reasonably and in good faith by the Board
of
Directors; and
|
(2)
|
with
respect to the calculation of Equity Proceeds from the issuance or
sale of
Equity Interests, the average of the daily closing prices for such
Equity
Interests for the 20 consecutive trading days preceding the date
of such
computation.
|
The
closing price for each day shall be:
(1)
|
if
such Equity Interests are then listed or admitted to trading on the
New
York Stock Exchange, the closing price on the NYSE Consolidated Tape
(or
any successor consolidated tape reporting transactions on the New
York
Stock Exchange) or, if such composite tape shall not be in use or
shall
not report transactions in such Equity Interests, or if such Equity
Interests shall be listed on a stock exchange other than the New
York
Stock Exchange (including for this purpose the Nasdaq Global Market),
the
last reported sale price regular way for such day, or in case no
such
reported sale takes place on such day, the average of the closing
bid and
asked prices regular way for such day, in each case on the principal
national securities exchange on which such Equity Interests are listed
or
admitted to trading (which shall be the national securities exchange
on
which the greatest number of such Equity Interests have been traded
during
such 20 consecutive trading days); or
|
(2)
|
if
such Equity Interests are not listed or admitted to trading on any
such
exchange, the average of the closing bid and asked prices thereof
in the
over-the-counter market as reported by the National Association of
Securities Dealers Automated Quotation System or any successor system,
or
if not included therein, the average of the closing bid and asked
prices
thereof furnished by two members of the National Association of Securities
Dealers selected reasonably and in good faith by the Board of Directors
for that purpose. In the absence of one or more such quotations,
the
Market Price for such Equity Interests shall be determined reasonably
and
in good faith by the Board of Directors.
|
“Net
Proceeds”
means
the aggregate cash proceeds received by the Company or any of its Restricted
Subsidiaries in respect of any Asset Sale, which amount is equal to the excess,
if any, of:
9
(1)
|
the
cash received by the Company or such Restricted Subsidiary (including
any
cash payments received by way of deferred payment pursuant to, or
monetization of, a note or installment receivable or otherwise, but
only
as and when received) in connection with such disposition, over
|
(2)
|
the
sum of:
|
(i) the
amount of any Indebtedness which is secured by such asset and which is required
to be repaid in connection with the disposition thereof; plus
(ii) the
reasonable out-of-pocket expenses incurred by the Company or such Restricted
Subsidiary, as the case may be, in connection with such disposition or in
connection with the transfer of such amount from such Restricted Subsidiary
to
the Company; plus
(iii)
provisions
for taxes, including income taxes, attributable to the disposition of such
asset
or attributable to required prepayments or repayments of Indebtedness with
the
proceeds thereof; plus
(iv) if
the
Company does not first receive a transfer of such amount from the relevant
Restricted Subsidiary with respect to the disposition of an asset by such
Restricted Subsidiary and such Restricted Subsidiary intends to make such
transfer as soon as practicable, the out-of-pocket expenses and taxes that
the
Company reasonably estimates will be incurred by the Company or such Restricted
Subsidiary in connection with such transfer at the time such transfer is
expected to be received by the Company (including, without limitation,
withholding taxes on the remittance of such amount).
“Note
Guarantees”
means,
collectively, the Subsidiary Guarantee and the Company Guarantee, and
“Note
Guarantee”
means
any one of them.
“Notes”
has
the
meaning assigned to it in the preamble to this Sixth Supplemental Indenture.
The
Initial Notes and any Additional Notes shall be treated as a single class for
all purposes under this Sixth Supplemental Indenture and the
Indenture.
“Obligations”
means
any principal, interest (including post-petition interest, whether or not
allowed as a claim in any proceeding), penalties, fees, costs, expenses,
indemnifications, reimbursements, damages and other liabilities payable under
or
in connection with any Indebtedness.
“Participant”
means,
with respect to the Depository, a Person who has an account with the Depository
and, with respect to CDS, shall include the Depository Trust
Company.
“Permitted
Investments”
means:
(1)
|
any
Investments in the Company or in a Restricted Subsidiary (other than
an
Excluded Restricted Subsidiary) of the Company, including without
limitation the Guarantee of Indebtedness permitted under Section
2.6(b) of
the Sixth
Supplemental Indenture (Section 4.9 of the Indenture);
|
10
(2)
|
any
Investments in Cash Equivalents;
|
(3)
|
Investments
by the Company or any Restricted Subsidiary of the Company in a Person,
if
as a result of such Investment;
|
(i)
such
Person becomes a Restricted Subsidiary (other than an Excluded Restricted
Subsidiary) of the Company; or
(ii) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company
or a Restricted Subsidiary (other than an Excluded Restricted Subsidiary) of
the
Company;
(4)
|
Investments
in assets (including accounts and notes receivable) owned or used
in the
ordinary course of business;
|
(5)
|
Investments
for any purpose related to the Company’s records and information
management business (including, without limitation, the Company’s
confidential destruction and fulfillment businesses) in an aggregate
outstanding amount not to exceed $10.0 million; and
|
(6)
|
Investments
by the Company or a Restricted Subsidiary (other than an Excluded
Restricted Subsidiary) in one or more Excluded Restricted Subsidiaries,
the aggregate outstanding amount of which does not exceed 30% of
the
consolidated assets of the Company and its Restricted Subsidiaries
(and,
for the avoidance of doubt, Permitted Investments shall include any
Investment by an Excluded Restricted Subsidiary in another Excluded
Restricted Subsidiary).
|
“Permitted
Liens”
means:
(1)
|
Liens
existing as of the date of issuance of the Notes;
|
(2)
|
Liens
on property or assets of the Company or any Restricted Subsidiary
securing
Senior Debt;
|
(3)
|
Liens
on any property or assets of a Restricted Subsidiary granted in favor
of
the Company or any Wholly Owned Restricted Subsidiary;
|
(4)
|
Liens
securing the Notes or the Guarantees;
|
(5)
|
any
interest or title of a lessor under any Capital Lease Obligation
or Sale
and Leaseback Transaction so long as the Indebtedness, if any, secured
by
such Lien does not exceed the principal amount of Indebtedness permitted
under Section 2.6(b) of the Sixth Supplemental Indenture (Section
4.9 of
the Indenture);
|
(6)
|
Liens
securing Acquired Debt created prior to (and not in connection with
or in
contemplation of) the incurrence of such Indebtedness by the Company
or
any Restricted Subsidiary; provided
that such Lien does not extend to any property or assets of the Company
or
any Restricted Subsidiary other than the assets acquired in connection
with the incurrence of such Acquired Debt;
|
11
(7)
|
Liens
securing Hedging Obligations permitted to be incurred pursuant to
clause (7) of Section 2.6(b) of the Sixth Supplemental Indenture
(clause (7) of Section 4.9 of the
Indenture);
|
(8)
|
Liens
arising from purchase money mortgages and purchase money security
interests, or in respect of the construction of property or assets,
incurred in the ordinary course of the business of the Company or
a
Restricted Subsidiary; provided
that (i) the related Indebtedness is not secured by any property or
assets of the Company or any Restricted Subsidiary other than the
property
and assets so acquired or constructed and (ii) the Lien securing such
Indebtedness is created within 60 days of such acquisition or
construction;
|
(9)
|
statutory
Liens or landlords’ and carriers’, warehousemen’s, mechanics’, suppliers’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary
course of business and with respect to amounts not yet delinquent
or being
contested in good faith by appropriate proceedings, if a reserve
or other
appropriate provision, if any, as shall be required in conformity
with
GAAP shall have been made therefor;
|
(10)
|
Liens
for taxes, assessments, government charges or claims with respect
to
amounts not yet delinquent or that are being contested in good faith
by
appropriate proceedings diligently conducted, if a reserve or other
appropriate provision, if any, as is required in conformity with
GAAP has
been made therefor;
|
(11)
|
Liens
incurred or deposits made to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, government
contracts, performance bonds and other obligations of a like nature
incurred in the ordinary course of business (other than contracts
for the
payment of money);
|
(12)
|
easements,
rights-of-way, restrictions and other similar charges or encumbrances
not
interfering in any material respect with the business of the Company
or
any Restricted Subsidiary incurred in the ordinary course of business;
|
(13)
|
Liens
arising by reason of any judgment, decree or order of any court so
long as
such Lien is adequately bonded and any appropriate legal proceedings
that
may have been duly initiated for the review of such judgment, decree
or
order shall not have been finally terminated or the period within
which
such proceedings may be initiated shall not have expired;
|
(14)
|
Liens
arising under options or agreements to sell assets;
|
(15)
|
other
Liens securing obligations incurred in the ordinary course of business,
which obligations do not exceed $10.0 million in the aggregate at any
one time outstanding; and
|
(16)
|
any
extension, renewal or replacement, in whole or in part, of any Lien
described in the foregoing clauses (1) through (15); provided
that any such extension, renewal or replacement shall not extend
to any
additional property or assets.
|
12
“Principal
Stockholders”
means
each of Xxxxxxx X. Xxxx, Schooner Capital LLC, C. Xxxxxxx Xxxxx, Xxxx X. Xxxxxx
and their respective Affiliates.
“Private
Placement Legend”
means
the legend set forth in Section 2.4(g)(1) hereof to be placed on all Notes
issued under this Indenture except where otherwise permitted by the provisions
of this Indenture.
“QIB”
means
a
“qualified institutional buyer” as defined in Rule 144A.
“Qualified
Equity Offering”
means
an offering of Capital Stock, other than Disqualified Stock, of the Company
for
Dollars, whether registered or exempt from registration under the Securities
Act.
“Qualified
Issuer”
means:
(1)
|
any
lender party to the Credit Agreement; or
|
(2)
|
any
commercial bank:
|
(i)
which
has
capital and surplus in excess of $500,000,000; and
(ii) the
outstanding short-term debt securities of which are rated at least A-2 by
Standard & Poor’s Rating Group, a division of The XxXxxx-Xxxx
Companies, Inc. or at least P-2 by Xxxxx’x Investors Service, or carry an
equivalent rating by a nationally recognized rating agency if both of the two
named rating agencies cease publishing ratings of investments.
“Qualifying
Sale and Leaseback Transaction”
means
any Sale and Leaseback Transaction between the Company or any of its Restricted
Subsidiaries and any bank, insurance company or other lender or investor
providing for the leasing to the Company or such Restricted Subsidiary of any
property (real or personal) which has been or is to be sold or transferred
by
the Company or such Restricted 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 property in question has been constructed or acquired after the
date of the Sixth Supplemental Indenture.
“Refinancing
Indebtedness”
means
new Indebtedness incurred or given in exchange for, or the proceeds of which
are
used to repay, redeem, defease, extend, refinance, renew, replace or refund,
other Indebtedness; provided,
however,
that:
(1)
|
the
principal amount of such new Indebtedness shall not exceed the principal
amount of Indebtedness so repaid, redeemed, defeased, extended,
refinanced, renewed, replaced or refunded (plus the amount of fees,
premiums, consent fees, prepayment penalties and expenses incurred
in
connection therewith);
|
(2)
|
such
Refinancing Indebtedness shall have a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of
the
Indebtedness so repaid, redeemed, defeased, extended, refinanced,
renewed,
replaced or refunded or shall mature after the maturity date of the
Notes;
|
(3)
|
to
the extent such Refinancing Indebtedness refinances Indebtedness
that has
a final maturity date occurring after the initial scheduled maturity
date
of the Notes,
|
13
such
new
Indebtedness shall have a final scheduled maturity not earlier than the final
scheduled maturity of the Indebtedness so repaid, redeemed, defeased, extended,
refinanced, renewed, replaced or refunded and shall not permit redemption at
the
option of the holder earlier than the earliest date of redemption at the option
of the holder of the Indebtedness so repaid, redeemed, defeased, extended,
refinanced, renewed, replaced or refunded;
(4)
|
to
the extent such Refinancing Indebtedness refinances Indebtedness
subordinate to the Notes, such Refinancing Indebtedness shall be
subordinated in right of payment to the Notes and to the extent such
Refinancing Indebtedness refinances Notes or Indebtedness pari
passu
with the Notes, such Refinancing Indebtedness shall be pari
passu
with or subordinated in right of payment to the Notes, in each case
on
terms at least as favorable to the holders of Notes as those contained
in
the documentation governing the Indebtedness so repaid, redeemed,
defeased, extended, refinanced, renewed, replaced or refunded; and
|
(5)
|
with
respect to Refinancing Indebtedness incurred by the Company or a
Restricted Subsidiary, such Refinancing Indebtedness shall rank no
more
senior, and shall be at least as subordinated, in right of payment
to the
Guarantee of the Company or such Restricted Subsidiary, respectively,
as
the Indebtedness being extended, refinanced, renewed, replaced or
refunded.
|
“Registration
Rights Agreement”
means
the Registration Rights Agreement, dated as of March 15, 2007, among the Issuer
and the Guarantors and the Initial Purchasers, as such agreement may be amended,
modified or supplemented from time to time, and with respect to any Additional
Notes, one or more registration rights agreements among the Issuer, the
Guarantors and the other parties thereto, as such agreements may be amended,
modified or supplemented from time to time, relating to rights given by the
Issuer to the purchasers of Additional Notes to register such Additional Notes
under the Securities Act.
“Regulation
S”
means
Regulation S promulgated under the Securities Act.
“Regulation
S Global Note”
means
a
Global Note substantially in the form of Exhibit A hereto bearing the Global
Note Legend and the Private Placement Legend and deposited with or on behalf
of
and registered in the name of the Depository or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes sold in
reliance on Rule 903 of Regulation S.
“Representative”
means,
for the purposes of Article XIII, the Credit Agent or other agent, trustee
or
representative of any Senior Debt of the Issuer or a Guarantor, as the case
may
be.
“Restricted
Definitive Note”
means
a
Definitive Note bearing the Private Placement Legend.
“Restricted
Global Note”
means
a
Global Note bearing the Private Placement Legend.
“Restricted
Period”
means
the 40-day distribution compliance period as defined in Regulation
S.
14
“Restricted
Subsidiary”
means:
(1)
|
each
direct or indirect Subsidiary of the Company existing on the date
of the
Sixth
Supplemental Indenture, including the Issuer (other than Subsidiaries
of
Iron Mountain Global, Inc. (including Iron Mountain Europe Limited,
Iron
Mountain Mexico, S.A. de X.X. de C.V. and their respective Subsidiaries,
but excluding, in any event, Iron Mountain Cayman Ltd., Iron Mountain
(Gibraltar) Holdings Limited, Iron Mountain (Netherlands) B.V. and
Iron
Mountain Switzerland GmbH), Iron Mountain Assurance Corporation,
Mountain
West Palm Real Estate, Inc. and Upper Providence Venture I, L.P.);
and
|
(2)
|
any
other direct or indirect Subsidiary of the Company formed, acquired
or
existing after the date of the Sixth Supplemental Indenture (including
an
Excluded Restricted Subsidiary),
|
which,
in
the case of (1) or (2), is not designated by the Board of Directors as an
“Unrestricted Subsidiary.”
“Rule
144”
means
Rule 144 promulgated under the Securities Act.
“Rule
144A”
means
Rule 144A promulgated under the Securities Act.
“Rule
903”
means
Rule 903 promulgated under the Securities Act.
“Rule
904”
means
Rule 904 promulgated under the Securities Act.
“Sale
and Leaseback Transaction”
means
any transaction or series of related transactions pursuant to which a Person
sells or transfers any property or asset in connection with the leasing, or
the
resale against installment payments, of such property or asset to the seller
or
transferor.
“Securities”
means
the debentures, notes or other instruments of Indebtedness of the Issuer or
the
Company of any Series authenticated and delivered under this Indenture.
“Senior
Bank Debt”
means
all Obligations outstanding under or in connection with the Credit Agreement
(including Guarantees of such Obligations by Subsidiaries of the Company).
“Senior
Debt”
means:
(1)
|
the
Senior Bank Debt; and
|
(2)
|
any
other Indebtedness permitted to be incurred by the Company or any
Restricted Subsidiary, as the case may be, under the terms of the
Sixth
Supplemental Indenture or the Indenture, unless the instrument under
which
such Indebtedness is incurred expressly provides that it is:
|
(i) on
a
parity with or subordinated in right of payment to the Notes; or
(ii) subordinated
to Senior Debt on terms substantially similar to those of the Notes.
Notwithstanding
anything to the contrary in the foregoing, Senior Debt shall not include:
15
(1)
|
any
liability for federal, state, local or other taxes owed or owing
by the
Company;
|
(2)
|
any
Indebtedness of the Company to any of its Subsidiaries or other
Affiliates;
|
(3)
|
any
trade payables; or
|
(4)
|
any
Indebtedness that is incurred in violation of the Sixth
Supplemental Indenture or the Indenture, provided
that such Indebtedness shall be deemed not to have been incurred
in
violation of the Sixth
Supplemental Indenture or the Indenture for purposes of this
clause (4) if, in the case of any obligations under the Credit
Agreement, the holders of such obligations or their agent or
representative shall have received a representation from the Company
to
the effect that the incurrence of such Indebtedness does not violate
the
provisions of the Sixth Supplemental Indenture or the Indenture.
|
“Series”
or
“Series
of Securities”
means
each series of debentures, notes or other instruments of Indebtedness of the
Issuer or the Company created pursuant to Sections 2.1 and 2.2 of the Indenture.
“Shelf
Registration Statement”
means
the Shelf Registration Statement as defined in the Registration Rights
Agreement.
“Tax”
means
any tax, duty, levy, impost, assessment, withholding or other governmental
charge (including penalties and interest related thereto). “Taxes”
and
“Taxation”
shall
be construed to have corresponding meanings.
“Unrestricted
Definitive Note”
means
a
Definitive Note that does not bear and is not required to bear the Private
Placement Legend.
“Unrestricted
Global Note”
means
a
Global Note that does not bear and is not required to bear the Private Placement
Legend.
“Unrestricted
Subsidiary”
means:
(1)
|
any
Subsidiary that is designated by the Board of Directors as an Unrestricted
Subsidiary in accordance with Section 2.6(h) of the Sixth
Supplemental Indenture (Section 4.15 of the Indenture); and
|
(2)
|
any
Subsidiary of an Unrestricted Subsidiary.
|
As
of the
date hereof, the following Subsidiaries of the Company have been designated
as
Unrestricted Subsidiaries: Subsidiaries
of Iron Mountain Global, Inc. (including Iron Mountain Europe Limited, Iron
Mountain Mexico, S.A. de X.X. de C.V. and their respective Subsidiaries but
excluding, in any event, Iron Mountain Cayman Ltd., Iron Mountain (Gibraltar)
Holdings Limited, Iron Mountain (Netherlands) B.V. and Iron Mountain Switzerland
GmbH), Iron Mountain Assurance Corporation, Mountain West Palm Real
Estate, Inc. and Upper Providence Venture I, L.P.
“Voting
Stock”
means
any class or classes of Capital Stock pursuant to which the holders thereof
have
the general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of any Person
(irrespective of whether or not, at the time, stock of
16
any
other
class or classes has, or might have, voting power by reason of the happening
of
any contingency).
“Weighted
Average Life to Maturity”
means,
when applied to any Indebtedness at any date, the number of years obtained
by
dividing:
(1)
|
the
sum of the products obtained by multiplying (x) the amount of each
then remaining installment, sinking fund, serial maturity or other
required payment of principal, including payment at final maturity,
in
respect thereof, by (y) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making
of
such payment, by
|
(2)
|
the
then outstanding principal amount of such Indebtedness.
|
“Wholly
Owned Restricted Subsidiary”
means
any Restricted Subsidiary of the Company all of the outstanding Capital Stock
or
other ownership interests of which (other than directors’ qualifying shares)
shall at the time be owned by the Company or by one or more Wholly Owned
Restricted Subsidiaries of the Company.
“1996
Indenture Date”
means
October 1, 1996.
“1999
Indenture Date”
means
April 26, 1999.
“6¾%
Notes”
means
the Company’s 6¾% Senior
Subordinated Notes due 2018 issued pursuant to the Indenture.
“6
5/8% Notes”
means
the Company’s 6⅝% Senior
Subordinated Notes due 2016 issued pursuant to the Indenture.
“7¼%
Notes”
means
the Company’s 7¼% GBP
Senior Subordinated Notes due 2014 issued pursuant to the
Indenture.
“7¾%
Notes”
means
the Company’s 7¾% Senior Subordinated Notes due 2015 issued pursuant to the
Indenture.
“8%
Notes”
means
the Company’s 8% Senior
Subordinated Notes due 2018 issued pursuant to the Indenture.
“8¾%
Notes”
means
the Company’s 8¾%
Senior
Subordinated Notes due 2018 issued pursuant to the Indenture.
“8
5/8% Notes”
means
the Company’s Senior Subordinated Notes due 2013 issued pursuant to the
indenture dated April 3, 2001, by and among the Company, certain of its
subsidiaries and the Trustee.
The
definitions of the following terms may be found in the Sections indicated as
follows:
17
Term
|
Defined
in Section
|
“Additional
Tax Amounts”
|
2.6(m)
|
“Affiliate
Transaction”
|
2.6(e)
|
“Asset
Sale”
|
2.6(j)
|
“Asset
Sale Offer”
|
2.6(j)
|
“Authentication
Order”
|
2.2
|
“CDS”
|
2.4(g)(2)
|
“Change
of Control Offer”
|
2.6(k)
|
“Change
of Control Payment”
|
2.6(k)
|
“Change
of Control Payment Date”
|
2.6(k)
|
“Code”
|
2.6(m)
|
“Commencement
Date”
|
2.6(j)
|
“Company”
|
Preamble
|
“Excess
Proceeds”
|
2.6(j)
|
“Sixth
Supplemental Indenture”
|
Preamble
|
“Indenture”
|
Recitals
|
“Offer
Amount”
|
2.5
|
“Offer
Period”
|
2.5
|
“Previously
Issued Notes”
|
2.16
|
“Purchase
Date”
|
2.5
|
“Required
Consent”
|
2.16
|
“Restricted
Payments”
|
2.6(a)
|
“Tax
Authority
|
2.6(m)
|
“Tax
Redemption Date”
|
2.5
|
“Trustee”
|
Preamble
|
ARTICLE
2.
FORM
AND TERMS OF THE NOTES
Section
2.1. Form
and Dating.
(a) General.
The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A attached hereto (including the Global Note Legend
thereon). Each Global Note will represent such of the outstanding Notes as
will
be specified therein, and each shall provide that it represents the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby
may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Note shall be dated the date of
its
authentication. The Notes shall be in denominations of C$1,000 and integral
multiples thereof.
The
terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of the Sixth Supplemental Indenture and the Indenture, and the
Issuer, the Guarantors and the Trustee, by their execution and delivery of
the
Sixth Supplemental Indenture and the Indenture (or in the case of any Guarantor
that becomes such after the date hereof, a supplemental indenture pursuant
to
Section 2.6(g) of this Sixth Supplemental Indenture (Section 4.14 of the
Indenture)), expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provisions of the Indenture (as supplemented by this Sixth Supplemental
Indenture), the provisions of the Indenture shall govern and be
controlling.
(b) Global
Note.
Notes
shall be represented in the form of fully registered Global Notes, without
interest coupons, held by or on behalf of the Depository as custodian of the
Global Notes
18
(for
its
participants) and registered in the name of the Depository or its nominee,
and
registrations of ownership and transfers of the Notes will be made only through
the depository services of CDS. The aggregate principal amount of the Global
Notes may from time to time be increased or decreased by adjustments made on
the
records of the Trustee and the Depository or its nominee as hereinafter
provided.
Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein, and each shall provide that it represents the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to
time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of any Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Service Agent, at the direction
of
the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.4 hereof.
(c) Book
EntryProvisions.
This
Section 2.1(c) shall apply only to the Global Notes deposited with or on behalf
of the Depository.
The
Issuer shall execute and the Trustee shall, in accordance with this Section
2.1(c), authenticate and deliver the Global Notes that (i) shall be registered
in the name of the Depository or the nominee of the Depository and
(ii) shall be delivered by the Trustee to the Depository or pursuant to the
Depository’s instructions or held by the Service Agent.
Agent
Members shall have no rights either under the Sixth Supplemental Indenture
or
the Indenture with respect to the Global Notes held on their behalf by the
Depository or its nominee or by the Service Agent or under the Global Notes,
and
the Depository may be treated by the Issuer, the Trustee and any agent of the
Issuer or the Trustee as the absolute owner of the Global Notes for all purposes
whatsoever.
Ownership
of beneficial interests in each Global Note will be limited to Participants
and
Indirect Participants.
(d) Definitive
Notes.
Notes
issued in certificated form shall be substantially in the form of Exhibit A
attached hereto (but without including the text referred to in Section 2.4(g)(2)
of this Sixth Supplemental Indenture). Except as provided in Section 2.4, owners
of beneficial interests in the Global Note shall not be entitled to receive
physical delivery of Definitive Notes.
Section
2.2. Execution
and Authentication.
The
Trustee shall, upon a written order of the Issuer signed by an Officer (an
“Authentication
Order”),
authenticate up to C$175,000,000 aggregate principal amount of Initial Notes
and
such amount of Additional Notes as the Company may issue from time to
time.
Section
2.3. Depository,
Paying Agent and Sub-Paying Agent for Notes.
The
Issuer initially appoints CDS to act as Depository with respect to the Global
Notes. The Company initially appoints the Trustee to act as the Registrar,
Paying Agent and Service Agent with respect to the Global Notes. The Issuer
initially appoints BNY Trust Company of Canada to act as Canadian sub-paying
agent for the Notes.
19
Section
2.4. Transfer
and Exchange of Notes.
(a) Transfer
and Exchange of Global Notes.
The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depository, in accordance with the Sixth Supplemental
Indenture and the Indenture and Applicable Procedures. Beneficial interests
in
the Global Notes may be transferred to Persons who take delivery thereof in
the
form of a beneficial interest in the Global Notes.
(b) Transfer
and Exchange of Beneficial Interests in the Global Notes.
The
transfer and exchange of beneficial interests in the Global Notes will be
effected through records maintained by the Depository or its nominee for such
Global Note (with respect to interests of participants) and on the records
of
Participants (with respect to interests of Persons other than Participants),
in
accordance with the provisions of this Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Notes will be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. Transfers of beneficial interests in the Global
Notes also will require compliance with either subparagraph (1) or (2) below,
as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(1) Transfer
of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth
in
the Private Placement Legend; provided,
however,
that,
prior to the expiration of the Restricted Period, transfers of beneficial
interests in the Regulation S Global Note may not be made to a U.S. Person
or
for the account or benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be required
to
be delivered to the Registrar to effect the transfers described in this Section
2.4(b)(1).
(2) All
Other Transfers and Exchanges of Beneficial Interests in Global
Notes.
In
connection with all transfers and exchanges of beneficial interests that are
not
subject to Section 2.4(b)(1) above, the transferor of such beneficial interest
must deliver to the Registrar either:
(A)
both:
(i) a
written
order from a Participant or an Indirect Participant given to the Depository
in
accordance with the Applicable Procedures directing the Depository to credit
or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged;
and
(ii) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase; or
(B)
both:
(i) a
written
order from a Participant or an Indirect Participant given to the Depository
in
accordance with the Applicable Procedures directing the Depository to cause
to
be issued a Definitive Note in an amount equal to the beneficial interest to
be
transferred or exchanged; and
20
(ii) instructions
given by the Depository to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above.
Upon
consummation of an Exchange Offer by the Company in accordance with Section
2.4(f) hereof, the requirements of this Section 2.4(b)(2) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.4(i) hereof.
(3) Transfer
of Beneficial Interests to Another Restricted Global Note.
A
beneficial interest in any Restricted Global Note may be transferred to a Person
who takes delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements of Section
2.4(b)(2) above and the Registrar receives the following:
(A)
if
the transferee will take delivery in the form of a beneficial interest in the
144A Global Note, then the transferor must deliver a certificate in the form
of
Exhibit B hereto, including the certifications in item (1) thereof;
(B)
if
the transferee will take delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must deliver a certificate in
the
form of Exhibit B hereto, including the certifications in item (2) thereof;
and
(C)
if
the transferee will take delivery in the form of a beneficial interest in the
IAI Global Note, then the transferor must deliver a certificate in the form
of
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(4) Transfer
and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note.
A
beneficial interest in any Restricted Global Note may be exchanged by any holder
thereof for a beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial interest
in
an Unrestricted Global Note if the exchange or transfer complies with the
requirements of Section 2.4(b)(2) above and:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of the beneficial interest
to be transferred, in the case of an exchange, or the transferee, in the case
of
a transfer, certifies in the applicable Letter of Transmittal that it is not
(i)
a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B)
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C)
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
21
(D)
the
Registrar receives the following:
(i) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(ii) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in
the form of a beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
If
any
such transfer is effected pursuant to subparagraph (B) or (D) above at a time
when an Unrestricted Global Note has not yet been issued, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.2 hereof, the Trustee shall authenticate one or more Unrestricted Global
Notes
in an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
Beneficial
interests in an Unrestricted Global Note cannot be exchanged for, or transferred
to Persons who take delivery thereof in the form of, a beneficial interest
in a
Restricted Global Note.
(c) Transfer
or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial
Interests in Restricted Global Notes to Restricted Definitive
Notes.
If any
holder of a beneficial interest in a Restricted Global Note proposes to exchange
such beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the following
documentation:
(A)
if
the holder of such beneficial interest in a Restricted Global Note proposes
to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B)
if
such beneficial interest is being transferred to a QIB in accordance with Rule
144A, a certificate to the effect set forth in Exhibit B hereto, including
the
certifications in item (1) thereof;
(C)
if
such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate
to
the effect set forth in Exhibit B hereto, including the certifications in item
(2) thereof;
22
(D)
if
such beneficial interest is being transferred pursuant to an exemption from
the
registration requirements of the Securities Act in accordance with Rule 144,
a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E)
if
such beneficial interest is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of
the
Securities Act other than those listed in subparagraphs (B) through (D) above,
a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F)
if
such beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G)
if
such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the
Trustee shall cause the aggregate principal amount of the applicable Global
Note
to be reduced accordingly pursuant to Section 2.4(i) hereof, and the Company
shall execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial interest in
a
Restricted Global Note pursuant to this Section 2.4(c) shall be registered
in
such name or names and in such authorized denomination or denominations as
the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depository and the Participant or Indirect Participant.
The Trustee shall deliver such Definitive Notes to the Persons in whose names
such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.4(c)(1) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(2) Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive
Notes.
A holder
of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not
(i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B)
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C)
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
23
(D)
the
Registrar receives the following:
(i) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(ii) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in
the form of an Unrestricted Definitive Note, a certificate from such holder
in
the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(3) Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes.
If any
holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon satisfaction of the conditions set forth in Section
2.4(b)(2) hereof, the Trustee will cause the aggregate principal amount of
the
applicable Global Note to be reduced accordingly pursuant to Section 2.4(i)
hereof, and the Company will execute and the Trustee will authenticate and
deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.4(c)(3) will be registered in
such name or names and in such authorized denomination or denominations as
the
holder of such beneficial interest requests through instructions to the
Registrar from or through the Depository and the Participant or Indirect
Participant. The Trustee will deliver such Definitive Notes to the Persons
in
whose names such Notes are so registered. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.4(c)(3) will not bear
the
Private Placement Legend.
(d) Transfer
and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted
Definitive Notes to Beneficial Interests in Restricted Global
Notes.
If any
Holder of a Restricted Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note or to transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A)
if
the Holder of such Restricted Definitive Note proposes to exchange such Note
for
a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B)
if
such Restricted Definitive Note is being transferred to a QIB in accordance
with
Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
24
(C)
if
such Restricted Definitive Note is being transferred to a Non-U.S. Person in
an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate
to
the effect set forth in Exhibit B hereto, including the certifications in item
(2) thereof;
(D)
if
such Restricted Definitive Note is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with
Rule
144, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E)
if
such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in subparagraphs
(B)
through (D) above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required
by
item (3) thereof, if applicable;
(F)
if
such Restricted Definitive Note is being transferred to the Issuer or any of
its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G)
if
such Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the
Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global
Note,
and in all other cases, the IAI Global Note.
(2) Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global
Notes.
A Holder
of a Restricted Definitive Note may exchange such Note for a beneficial interest
in an Unrestricted Global Note or transfer such Restricted Definitive Note
to a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B)
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C)
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D)
the
Registrar receives the following:
(i) if
the
Holder of such Definitive Notes proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate from such Holder in
the
form of Exhibit C hereto, including the certifications in item (1)(c) thereof;
or
25
(ii) if
the
Holder of such Definitive Notes proposes to transfer such Notes to a Person
who
shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
Upon
satisfaction of the conditions of any of the subparagraphs in this Section
2.4(d)(2), the Trustee will cancel the Definitive Notes and increase or cause
to
be increased the aggregate principal amount of the Unrestricted Global
Note.
(3) Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global
Notes.
A Holder
of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to
a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee will cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate principal
amount of one of the Unrestricted Global Notes.
If
any
such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when
an
Unrestricted Global Note has not yet been issued, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.2 hereof,
the Trustee will authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive Notes
so
transferred.
(e) Transfer
and Exchange of Definitive Notes for Definitive Notes.
Upon
request by a Holder of Definitive Notes and such Holder’s compliance with the
provisions of this Section 2.4(e), the Registrar will register the transfer
or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar
the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder
or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.4(e).
(1) Restricted
Definitive Notes to Restricted Definitive Notes.
Any
Restricted Definitive Note may be transferred to and registered in the name
of
Persons who take delivery thereof in the form of a Restricted Definitive Note
if
the Registrar receives the following:
(A)
if
the transfer will be made pursuant to Rule 144A, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B)
if
the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
26
(C)
if
the transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable.
(2) Restricted
Definitive Notes to Unrestricted Definitive Notes.
Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B)
any
such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C)
any
such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D)
the
Registrar receives the following:
(i) if
the
Holder of such Restricted Definitive Notes proposes to exchange such Notes
for
an Unrestricted Definitive Note, a certificate from such Holder in the form
of
Exhibit C hereto, including the certifications in item (1)(d) thereof;
or
(ii) if
the
Holder of such Restricted Definitive Notes proposes to transfer such Notes
to a
Person who shall take delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests,
an Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the Securities
Act
and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the
Securities Act.
(3) Unrestricted
Definitive Notes to Unrestricted Definitive Notes.
A Holder
of Unrestricted Definitive Notes may transfer such Notes to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt
of
a request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.
(f) Exchange
Offer.
Upon the
occurrence of the Exchange Offer in accordance with the Registration Rights
Agreement, the Company will issue and, upon receipt of an Authentication Order
in accordance with Section 2.2 hereof, the Trustee will
authenticate:
(1) one
or more Unrestricted Global Notes in an aggregate principal amount equal to
the
principal amount of the beneficial interests in the Restricted Global Notes
accepted for
27
exchange
in the Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not participating
in a distribution of the Exchange Notes and (C) they are not affiliates (as
defined in Rule 144) of the Company; and
(2) Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Restricted Definitive Notes accepted for exchange in the Exchange Offer
by Persons that certify in the applicable Letters of Transmittal that (A) they
are not Broker-Dealers, (B) they are not participating in a distribution of
the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of
the
Company.
Concurrently
with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly,
and
the Company will execute and the Trustee will authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Unrestricted
Definitive Notes in the appropriate principal amount.
(g) Legends.
The
following legends will appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture.
(1) Private
Placement Legend.
(A)
Except
as permitted by subparagraph (B) below, each Global Note and each Definitive
Note (and all Notes issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
“THE
SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE
THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION
S
UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR
(d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
ISSUER IF THE ISSUER SO REQUESTS), (2) TO THE ISSUER OR (3) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF
28
THE
RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE
MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE
OF
THE SECURITY EVIDENCED HEREBY.”
(B)
Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f)
of
this Section 2.4 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.
(2) Global
Note Legend.
Each
Global Note will bear a legend in substantially the following form:
“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.4 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.4(h) OF THE INDENTURE, (3) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12
OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF IRON MOUNTAIN NOVA SCOTIA FUNDING
COMPANY (THE “ISSUER”).
UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM,
THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE
OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF CDS
CLEARING AND DEPOSITORY SERVICES INC.
(“CDS”),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF
CDS
& CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF CDS (AND ANY PAYMENT IS MADE TO CDS & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR
OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS
THE REGISTERED OWNER HEREOF, CDS & CO., HAS AN INTEREST HEREIN. THIS
CERTIFICATE IS ISSUED PURSUANT TO A MASTER LETTER OF REPRESENTATIONS OF THE
ISSUER TO CDS, AS SUCH LETTER MAY BE REPLACED OR AMENDED FROM TIME TO
TIME.”
(h) Authentication
of Definitive Notes in Absence of Depository.
If at
any time:
(i) the
Issuer determines that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository and the Issuer in unable to locate
a qualified successor,
29
(ii) the
Issuer at its option elects to terminate the book-entry system through the
Depository, or
(iii) it
is
required by law,
then
the
Issuer shall execute, and the Trustee shall, upon receipt of an Authentication
Order in accordance with Section 2.2 hereof, authenticate and deliver,
Definitive Notes to each person the Depository identifies as a beneficial owner
of the related Notes in an aggregate principal amount equal to the principal
amount of such Global Notes in exchange for such Global Notes.
(i) Cancellation
and/or Adjustment of Global Notes.
At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or beneficial interests in other Global Notes or a
particular Global Note has been redeemed, repurchased or canceled in whole
and
not in part, each such Global Note shall be returned to or retained and canceled
by the Trustee in accordance with Section 2.12 of the Indenture. At any time
prior to such cancellation, if any beneficial interest in the Global Notes
is
exchanged for or transferred to a Person who will take delivery thereof in
the
form of a beneficial interest in another Global Note or for Definitive Notes,
the principal amount of Notes represented by the Global Note shall be reduced
accordingly and an endorsement shall be made on the Global Note by the Trustee
or by the Depository at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
(j) General
Provisions Relating to Transfers and Exchanges.
(i)
To
permit
registrations of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon receipt of
an
Authentication Order in accordance with Section 2.2 hereof or at the Registrar’s
request; provided,
however,
that
Definitive Notes shall only be issued when one or more of the conditions of
Section 2.4(h)(i)-(iii) have been satisfied.
(ii)
No
service charge shall be made to a Holder of a Global Note or to a Holder of
a
Definitive Note for any registration of transfer or exchange, but the Issuer
may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or transfer
pursuant to Section 2.4 hereof).
(iii) All
Global Notes and Definitive Notes issued upon any registration of transfer
or
exchange of Global Notes or Definitive Notes shall be the valid obligations
of
the Issuer, evidencing the same debt, and entitled to the same benefits under
the Sixth Supplemental Indenture and the Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or
exchange.
(iv) The
Issuer
shall not be required to register the transfer of or to exchange a Note between
a record date and the next succeeding interest payment date.
30
(v) Prior
to
due presentment for the registration of a transfer of any Note, the Trustee,
any
Agent, the Issuer and any Guarantor may deem and treat the Person in whose
name
any Note is registered as the absolute owner of such Note for all purposes,
including receiving payment of principal of and interest on such Notes, and
neither the Trustee, any Agent, the Issuer nor any Guarantor shall be affected
by notice to the contrary.
(vi) The
Trustee shall authenticate Definitive Notes and the Global Notes in accordance
with the provisions of Section 2.2 hereof
and Section 2.3 of the Indenture.
(vii) All
certifications, certificates and Opinions of Counsel required to be submitted
to
the Registrar pursuant to this Section 2.4 to effect a registration of transfer
or exchange may be submitted by facsimile.
(viii) The
registered Holder of a Definitive Note shall be permitted to transfer the
Definitive Note upon payment of any taxes incidental thereto by executing the
form of transfer provided on the reverse side of the Definitive
Note.
Section
2.5. Redemption.
With
respect to the Notes issued under this Sixth Supplemental Indenture, the
following Sections supplement Article III of the Indenture:
§
3.7. Optional
Redemption.
Prior
to
March 15, 2012, the Notes shall be subject to redemption at any time at the
option of the Issuer, in whole or in part, upon not less than 10 nor more than
60 days’ notice, at the CAD Make-Whole Price, plus accrued and unpaid
interest and Additional Interest and Additional Tax Amounts, if any, to but
excluding the applicable redemption date. On and after March 15, 2012, the
Notes
shall be subject to redemption at any time at the option of the Issuer, in
whole
or in part, upon not less than 10 nor more than 60 days’ notice, at the
redemption price (expressed as percentages of principal amount) set forth below,
plus accrued and unpaid interest and Additional Interest and Additional Tax
Amounts, if any, to but excluding the applicable redemption date, if redeemed
during the 12-month period beginning on March 15 of the years indicated below:
Year
|
Percentage
|
2012
|
103.750%
|
2013
|
102.500%
|
2014
|
101.250%
|
2015
and thereafter
|
100.000%
|
Notwithstanding
the foregoing, at any time prior to March 15, 2010 the Issuer may on any one
or
more occasions redeem the Notes at a redemption price of 107.500% of the
principal amount thereof, plus accrued and unpaid interest, and Additional
Interest and
Additional Tax Amounts, if any,
to the
redemption date, with the net cash proceeds of one or more Qualified Equity
Offerings; provided
that:
31
(1)
|
at
least C$115.0 million in the aggregate principal amount of the Notes
(including any Additional Notes) issued under the Indenture remains
outstanding immediately after the occurrence of such redemption (excluding
Notes held by the Company and the Company’s Subsidiaries); and
|
(2)
|
the
redemption must occur within six months of the date of the closing
of any
such Qualified Equity Offering.
|
The
Issuer may redeem the Notes, in whole but not in part, at its discretion at
any
time upon giving not less than 10 nor more than 60 days’ prior notice to
the Holders (which notice shall be irrevocable and given in accordance with
the
procedures described in Section 10.2 of the Indenture), at a redemption price
equal to the principal amount thereof, together with accrued and unpaid
interest, if any, to the date fixed by the Company for redemption, (the “Tax
Redemption Date”), and all Additional Interest and Additional Tax Amounts (if
any) then due and which will become due on the Tax Redemption Date as a result
of the redemption or otherwise (and in the case of Definitive Notes, subject
to
the right of Holders on the relevant record date to receive interest due on
the
relevant interest payment date and Additional Interest and Additional Tax
Amounts (if any) in respect thereof), if on the next date on which any amount
would be payable in respect of the Notes, the Issuer has or would be required
to
pay Additional Tax Amounts, and the Issuer cannot avoid any such payment
obligation taking reasonable measures available, as a result of:
(1) any
change in, or amendment to, the laws or treaties (or any regulations, or rulings
promulgated thereunder) of the relevant Tax Authority affecting Taxation which
becomes effective on or after March 15, 2007 (or, if the relevant Tax Authority
has changed since March 15, 2007, the date on which the then current Tax
Authority became the applicable Tax Authority under the Indenture);
or
(2) any
change in, or amendment to, the existing official position or the introduction
of an official position regarding the application, administration or
interpretation of such laws, treaties, regulations or rulings (including a
holding, judgment or order by a court of competent jurisdiction or a change
in
published practice), and becomes effective on or after March 15, 2007 (or,
if
the relevant Tax Authority has changed since March 15, 2007, the date on which
the then current Tax Authority became the applicable Tax Authority under the
Indenture).
The
Issuer shall not give any such notice of redemption earlier than 90 days
prior to the earliest date on which the Issuer would be obligated to make such
payment or withholding if a payment in respect of the Notes were then due.
Prior
to the publication or, where relevant, mailing of any notice of redemption
of
the Notes pursuant to the foregoing, the Issuer shall deliver to the Trustee
(a) an Officers’ Certificate to the effect that the Issuer cannot avoid
such obligation to pay Additional Tax Amounts by taking reasonable measures
available to it and (b) an Opinion of Counsel to the effect that the Issuer
will be obligated to pay Additional Tax Amounts as a result of an event
described above.
§
3.9. Mandatory
Redemption.
The
Issuer shall not be required to make mandatory redemption payments or sinking
fund payments with respect to the Notes.
32
§
3.10 Asset
Sale Offers.
In
the
event that the Company shall commence an Asset Sale Offer pursuant to Section
4.17 hereof, it shall follow the procedures specified below:
The
Asset
Sale Offer shall remain open for 20 Business Days after the Commencement Date
relating to such Asset Sale Offer, except to the extent required to be extended
by applicable law (as so extended, the “Offer Period”). No later than one
Business Day after the termination of the Offer Period (the “Purchase Date”),
the Company shall purchase the principal amount (the “Offer Amount”) of Notes
required to be purchased in such Asset Sale Offer pursuant to Sections 3.2
and
4.17 hereof or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Asset Sale Offer.
If
the
Purchase Date is on or after an interest payment record date and on or before
the related interest payment date, any interest accrued to such Purchase Date
shall be paid to the Person in whose name a Note is registered at the close
of
business on such record date, and no Additional Interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
On
the
Commencement Date of any Asset Sale Offer, the Company shall send or cause
to be
sent, by first class mail, a notice to each of the Holders, with a copy to
the
Trustee. Such notice, which shall govern the terms of the Asset Sale Offer,
shall contain all instructions and materials necessary to enable the Holders
to
tender Notes pursuant to the Asset Sale Offer and shall state:
(1)
|
that
the Asset Sale Offer is being made pursuant to this Section 3.10
and
Section 4.17 hereof and the length of time the Asset Sale Offer shall
remain open;
|
(2)
|
the
Offer Amount, the purchase price and the Purchase
Date;
|
(3)
|
that
any Note not tendered or accepted for payment shall continue to accrue
interest;
|
(4)
|
that,
unless the Company defaults in the payment of the purchase price,
any Note
accepted for payment pursuant to the Asset Sale Offer shall cease
to
accrue interest after the Purchase
Date;
|
(5)
|
that
Holders electing to have a Note purchased pursuant to any Asset Sale
Offer
shall be required to surrender the Note, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Note completed, to the
Company, a Depository, if appointed by the Company, or a Paying Agent
at
the address specified in the notice prior to the close of business
on the
Business Day preceding the Purchase
Date;
|
(6)
|
that
Holders shall be entitled to withdraw their election if the Company,
Depository or Paying Agent, as the case may be, receives, not later
than
the close of business on the Business Day preceding the termination
of the
Offer Period, a facsimile transmission or letter setting forth the
name of
the Holder, the principal amount of the Note the Holder delivered
for
purchase and a statement that such Holder is withdrawing such Holder’s
election to have the Note
purchased;
|
(7)
|
that,
if the aggregate principal amount of Notes surrendered by Holders
exceeds
the Offer Amount, the Trustee shall select the Notes to be purchased
on a
pro
rata
basis (with such adjustments as may be deemed to be appropriate by
the
|
33
Company
so that only Notes in denominations of C$1,000, or integral multiples thereof,
shall be purchased); and
(8)
|
that
Holders whose Notes were purchased only in part shall be issued new
Notes
equal in principal amount to the unpurchased portion of the Notes
surrendered.
|
On
or
before 12:00 noon on each Purchase Date, the Company shall irrevocably deposit
with the Trustee or Paying Agent in immediately available funds the aggregate
purchase price with respect to a principal amount of Notes equal to the Offer
Amount, together with accrued interest thereon, to be held for payment in
accordance with the terms of this Section 3.10. On the Purchase Date, the
Company shall, to the extent lawful, (i) accept for payment, on a pro
rata
basis to
the extent necessary, an aggregate principal amount equal to the Offer Amount
of
Notes and other notes (in accordance with the terms of Section 4.17 of the
Indenture) tendered pursuant to the Asset Sale Offer, or if less than the Offer
Amount has been tendered, all Notes and such other notes or portions thereof
tendered, (ii) deliver or cause the Paying Agent or Depository, as the case
may
be, to deliver to the Trustee Notes so accepted and (iii) deliver to the Trustee
an Officers’ Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section
3.10. The Company, Depository or Paying Agent, as the case may be, shall
promptly (but in any case not later than three Business Days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal to the purchase
price with respect to the Notes tendered by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Note, and
the
Trustee shall authenticate and mail or deliver such new Note, to such Holder,
equal in principal amount to any unpurchased portion of such Holder’s Notes
surrendered. Any Note not accepted in the Asset Sale Offer shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company shall
publicly announce in a newspaper of general circulation the results of the
Asset
Sale Offer on the Purchase Date.
The
Asset
Sale Offer shall be made by the Company in compliance with all applicable laws,
including, without limitation, Regulation 14E of the Exchange Act and the rules
thereunder, to the extent applicable, and all other applicable federal and
state
securities laws.
Each
purchase pursuant to this Section 3.10 shall be made pursuant to the provisions
of Sections 3.1 through 3.6 hereof to the extent applicable.
In
the
event the amount of Excess Proceeds to be applied to an Asset Sale Offer would
result in the purchase of a principal amount of Notes which is not evenly
divisible by C$1,000, the Trustee shall promptly refund to the Company the
portion of such Excess Proceeds that is not necessary to purchase the
immediately lesser principal amount of Notes that is so divisible.
Section
2.6. Additional
Covenants.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Sections
2.6(a) through 2.6(n) are added to Article IV of the Indenture.
(a) Restricted
Payments.
§4.8.
Restricted
Payments.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly:
(1)
|
declare
or pay any dividend or make any distribution on account of the Company’s
or any of its Restricted Subsidiaries’ Equity Interests (other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the
|
34
Company
or such Restricted Subsidiary or dividends or distributions payable to the
Company or any Restricted Subsidiary);
(2)
|
purchase,
redeem or otherwise acquire or retire for value any Equity Interests
of
the Company or any Restricted Subsidiary or other Affiliate of the
Company
(other than any such Equity Interests owned by the Company or any
Restricted Subsidiary);
|
(3)
|
purchase,
redeem or otherwise acquire or retire prior to scheduled maturity for
value any Indebtedness that is subordinated in right of payment to
the
Notes; or
|
(4)
|
make
any Investment other than a Permitted Investment (all such payments
and
other actions set forth in clauses (1) through (4) above being
collectively referred to as “Restricted
Payments”);
|
unless,
at the time of such Restricted Payment:
(i)
no
Default or Event of Default shall have occurred and be continuing or would
occur
as a consequence thereof; and
(ii) the
Company would, at the time of such Restricted Payment and after giving pro
forma
effect thereto, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the test set forth in the first paragraph of Section
4.9 of the Indenture; and
(iii) such
Restricted Payment, together with the aggregate of all other Restricted Payments
made by the Company and its Restricted Subsidiaries after the 1996 Indenture
Date is less than (x) the cumulative EBITDA of the Company, minus 1.75
times the cumulative Consolidated Interest Expense of the Company, in each
case
for the period (taken as one accounting period) from June 30, 1996, to the
end of the Company’s most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment,
plus
(y) the aggregate net Equity Proceeds received by the Company from the
issuance or sale since the 1996 Indenture Date of Equity Interests of the
Company or of debt securities of the Company that have been converted into
such
Equity Interests (other than Equity Interests or convertible debt securities
sold to a Restricted Subsidiary of the Company and other than Disqualified
Stock
or debt securities that have been converted into Disqualified Stock), plus
(z) $2.0 million.
The
foregoing provisions will not prohibit:
(1)
|
the
payment of any dividend within 60 days after the date of declaration
thereof, if at said date of declaration such payment would have complied
with the provisions of the Indenture;
|
(2)
|
the
redemption, repurchase, retirement or other acquisition or retirement
for
value of any Equity Interests of the Company in exchange for, or
with the
net cash proceeds of, the substantially concurrent sale (other than
to a
Restricted
|
35
Subsidiary
of the Company) of other Equity Interests of the Company (other than any
Disqualified Stock);
(3)
|
the
defeasance, redemption, repurchase, retirement or other acquisition
or
retirement for value of Indebtedness that is subordinated in right
of
payment to the Notes in exchange for, or with the net cash proceeds
of, a
substantially concurrent issuance and sale (other than to a Restricted
Subsidiary of the Company) of Equity Interests of the Company (other
than
Disqualified Stock);
|
(4)
|
the
defeasance, redemption, repurchase, retirement or other acquisition
or
retirement for value of Indebtedness that is subordinated in right
of
payment to the Notes in exchange for, or with the net cash proceeds
of, a
substantially concurrent issue and sale (other than to the Company
or any
of its Restricted Subsidiaries) of Refinancing Indebtedness;
|
(5)
|
the
repurchase of any Indebtedness subordinated in right of payment to
the
Notes at a purchase price not greater than 101% of the principal
amount of
such Indebtedness in the event of a Change of Control in accordance
with
provisions similar to the covenant set forth in Section 4.18 of the
Indenture, provided that prior to or contemporaneously with such
repurchase the Issuer has made the Change of Control Offer as provided
in
such covenant with respect to the Notes and has repurchased all Notes
validly tendered for payment in connection with such Change of Control
Offer; and
|
(6)
|
additional
payments to current or former employees or directors of the Company
for
repurchases of stock, stock options or other Equity Interests, provided
that the aggregate amount of all such payments under this clause (6)
does not exceed $0.5 million in any year and $2.0 million in the
aggregate.
|
The
Restricted Payments described in clauses (2), (3), (5) and (6) of the
immediately preceding paragraph shall be Restricted Payments that shall be
permitted to be taken in accordance with such paragraph but shall reduce the
amount that would otherwise be available for Restricted Payments under
clause (iii) of the first paragraph of this Section, and the Restricted
Payments described in clauses (1) and (4) of the immediately preceding
paragraph shall be Restricted Payments that shall be permitted to be taken
in
accordance with such paragraph and shall not reduce the amount that would
otherwise be available for Restricted Payments under clause (iii) of the
first paragraph of this Section.
If
an
Investment results in the making of a Restricted Payment, the aggregate amount
of all Restricted Payments deemed to have been made as calculated under the
foregoing provision shall be reduced by the amount of any net reduction in
such
Investment (resulting from the payment of interest or dividends, loan repayment,
transfer of assets or otherwise) to the extent such net reduction is not
included in the Company’s EBITDA; provided,
however,
that
the total amount by which the aggregate amount of all Restricted Payments may
be
reduced may not exceed the lesser of (a) the cash proceeds received by the
Company and its Restricted Subsidiaries in connection with such net reduction
and (b) the initial amount of such Investment. In addition, for the
avoidance of doubt and to avoid double counting, if an Investment results in
the
making of a Restricted Payment, then the subsequent assignment, contribution,
distribution or other transfer of such Investment by the Company or any
Restricted Subsidiary of the Company to any Excluded Restricted Subsidiary
or
Unrestricted Subsidiary shall not be considered a new Investment or Restricted
Payment and shall not further reduce the amount that would otherwise be
available for Restricted Payments under clause (iii) of the first paragraph
of
this Section.
36
If
the
aggregate amount of all Restricted Payments calculated under the foregoing
provision includes an Investment in an Unrestricted Subsidiary or other Person
that thereafter becomes a Restricted Subsidiary, such Investment will no longer
be counted as a Restricted Payment for purposes of calculating the aggregate
amount of Restricted Payments.
For
the
purpose of making any Restricted Payment calculations under the Indenture:
(1)
|
Investments
shall include the fair market value of the net assets of any Restricted
Subsidiary at the time that such Restricted Subsidiary is designated
an
Unrestricted Subsidiary and shall exclude the fair market value of
the net
assets of any Unrestricted Subsidiary that is designated as a Restricted
Subsidiary, in each case with fair market value determined by the
Board of
Directors in good faith and, for the avoidance of doubt, such inclusions
and exclusions will not be limited by the amount of any Investment
or
aggregate Investments;
|
(2)
|
any
asset or property transferred to or from an Unrestricted Subsidiary
shall
be valued at fair market value at the time of such transfer, provided
that, in each case, the fair market value of an asset or property
is as
determined by the Board of Directors in good faith and, for the avoidance
of doubt, the fair market value (as so determined) of such asset
of
property shall be subtracted from (in the case of a transfer to an
Unrestricted Subsidiary) or added to (in the case of a transfer from
an
Unrestricted Subsidiary) the calculation under clause (iii) of the
first
paragraph of this Section; and
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(3)
|
subject
to the foregoing, the amount of any Restricted Payment, if other
than
cash, shall be determined by the Board of Directors, whose good faith
determination shall be conclusive.
|
The
Board
of Directors may designate a Restricted Subsidiary to be an Unrestricted
Subsidiary in compliance with Section 4.15 of the Indenture. Upon such
designation, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments made at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this covenant. Such designation will only be permitted
if
such Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Incurrence
of Indebtedness and Issuance of Preferred Stock.
§4.9.
Incurrence
of Indebtedness and Issuance of Preferred Stock.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, create, incur, issue, assume, guaranty or otherwise
become directly or indirectly liable with respect to (collectively, “incur”) any
Indebtedness (including Acquired Debt) and the Company shall not permit any
of
its Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that the Company may incur Indebtedness and may permit a Restricted
Subsidiary to incur Indebtedness if at the time of such incurrence and after
giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0.
The
foregoing limitations shall not apply to:
(1)
|
the
incurrence by the Company or any Restricted Subsidiary of Senior
Bank Debt
in an aggregate amount not to exceed $100.0 million at any one time
outstanding;
|
37
(2)
|
the
issuance by the Company of the Company Guarantee or by the Restricted
Subsidiaries of Subsidiary Guarantees of the Notes;
|
(3)
|
the
incurrence by the Company and its Restricted Subsidiaries of the
Existing
Indebtedness;
|
(4)
|
the
issuance by the Issuer of the Notes;
|
(5)
|
the
incurrence by the Company and its Restricted Subsidiaries of Capital
Lease
Obligations and/or additional Indebtedness constituting purchase
money
obligations up to an aggregate of $5.0 million at any one time
outstanding, provided that the Liens securing such Indebtedness constitute
Permitted Liens;
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(6)
|
the
incurrence of Indebtedness between (i) the Company and its Restricted
Subsidiaries and (ii) the Restricted Subsidiaries;
|
(7)
|
Hedging
Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness
that is
permitted by the terms of the Indenture to be outstanding;
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(8)
|
the
incurrence by the Company and its Restricted Subsidiaries of Indebtedness
arising out of letters of credit, performance bonds, surety bonds
and
bankers’ acceptances incurred in the ordinary course of business up to an
aggregate of $5.0 million at any one time outstanding;
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(9)
|
the
incurrence by the Company and its Restricted Subsidiaries of Indebtedness
consisting of guarantees, indemnities or obligations in respect of
purchase price adjustments in connection with the acquisition or
disposition of assets, including, without limitation, shares of Capital
Stock; and
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(10)
|
the
incurrence by the Company and its Restricted Subsidiaries of Refinancing
Indebtedness issued in exchange for, or the proceeds of which are
used to
repay, redeem, defease, extend, refinance, renew, replace or refund,
Indebtedness referred to in clauses (2) through (5) above, and
this clause (10) or that was otherwise permitted to be incurred
pursuant to the test set forth in the first paragraph of this Section
4.9.
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(c) Liens.
§4.10.
Liens.
Neither
the Company nor any of its Restricted Subsidiaries may directly or indirectly
create, incur, assume or suffer to exist any Lien (other than a Permitted Lien)
upon any property or assets now owned or hereafter acquired, or any income,
profits or proceeds therefrom, or assign or otherwise convey any right to
receive income therefrom, unless (a) in the case of any Lien securing any
Indebtedness that is subordinate to the Notes, the Notes are secured by a Lien
on such property, assets or proceeds that is senior in priority to such Lien
and
(b) in the case of any other Lien, the Notes are equally and ratably
secured with the obligation or liability secured by such Lien.
(d) Dividend
and Other Payment Restrictions Affecting Restricted
Subsidiaries.
§4.11.
Dividend
and Other Payment Restrictions Affecting Restricted Subsidiaries.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, create
38
or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to:
(1)
|
(i) pay
dividends or make any other distributions to the Company or any of
its
Restricted Subsidiaries (A) on its Capital Stock or (B) with
respect to any other interest or participation in, or measured by,
its
profits, or (ii) pay any Indebtedness owed to the Company or any of
its Restricted Subsidiaries;
|
(2)
|
make
loans or advances to the Company or any of its Restricted Subsidiaries;
or
|
(3)
|
transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
|
However,
the preceding restrictions will not apply to encumbrances or restrictions
existing under or by reason of:
(1)
|
Existing
Indebtedness;
|
(2)
|
the
Credit Agreement as in effect as of the date of the Indenture, and
any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancing thereof, provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more restrictive
in the
aggregate with respect to such dividend and other payment restrictions
than those contained in the Credit Agreement as in effect on the
date of
the Indenture;
|
(3)
|
the
Indenture and the Notes;
|
(4)
|
applicable
law;
|
(5)
|
any
instrument governing Indebtedness or Capital Stock of a Person acquired
by
the Company or any of its Restricted Subsidiaries as in effect at
the time
of such acquisition (except to the extent such Indebtedness was incurred
in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the
property
or assets of the Person, so acquired, provided that the EBITDA of
such
Person is not taken into account in determining whether such acquisition
was permitted by the terms of the Indenture;
|
(6)
|
customary
non-assignment provisions in leases entered into in the ordinary
course of
business and consistent with past practices;
|
(7)
|
restrictions
on the transfer of property subject to purchase money obligations
or
Capital Lease Obligations otherwise permitted by clause (5) of
Section 4.9 of the Indenture;
|
(8)
|
permitted
Refinancing Indebtedness, provided that the restrictions contained
in the
agreements governing such Refinancing Indebtedness are no more restrictive
in the aggregate than those contained in the agreements governing
the
Indebtedness being refinanced; or
|
39
(9)
|
any
agreement or instrument governing Indebtedness of an Excluded Restricted
Subsidiary provided that (i) at the time such agreement or instrument
is entered into, such Excluded Restricted Subsidiary and its Restricted
Subsidiaries have a Leverage Ratio of less than 6.5 to 1.0 and
(ii) neither such Excluded Restricted Subsidiary nor any of its
Restricted Subsidiaries shall, directly or indirectly, incur any
Indebtedness (including Acquired Debt) unless at the time of such
incurrence and after giving effect thereto, the Leverage Ratio for
such
Excluded Restricted Subsidiary and its Restricted Subsidiaries would
be
less than 6.5 to 1.0. For purposes of determining the Leverage Ratio
under
this clause (9) only, all references to the “Company” and its
“Restricted Subsidiaries” or similar references in the definition of
“Leverage Ratio” and other defined terms necessary to determine the
Leverage Ratio shall be deemed to refer to such Excluded Restricted
Subsidiary and its Restricted Subsidiaries, respectively.
|
(e) Transactions
with Affiliates.
§4.12.
Transactions
with Affiliates.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into any contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an “Affiliate Transaction”), unless:
(a)
|
such
Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than those that would
have
been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with a non-Affiliated Person; and
|
(b)
|
the
Company delivers to the Trustee:
|
(i)
with
respect to any Affiliate Transaction involving aggregate payments in excess
of
$5.0 million, a resolution of the Board of Directors set forth in an
Officers’ Certificate certifying that such Affiliate Transaction complies with
clause (a) above and such Affiliate Transaction is approved by a majority
of the disinterested members of the Board of Directors; and
(ii) with
respect to any Affiliate Transaction involving aggregate payments in excess
of
$10.0 million, an opinion as to the fairness to the Company or such
Restricted Subsidiary from a financial point of view issued by an investment
banking, appraisal or accounting firm of national standing.
The
following items shall not be deemed Affiliate Transactions and therefore, will
not be subject to the provisions of the prior paragraph:
(1)
|
any
employment agreement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with
the
past practice of the Company or such Restricted Subsidiary;
|
(2)
|
transactions
between or among the Company and/or its Restricted Subsidiaries;
|
(3)
|
transactions
permitted by the provisions of Section 4.8 of the Indenture; and
|
40
(4)
|
the
grant of stock, stock options or other Equity Interests to employees
and
directors of the Company and any Restricted Subsidiary in accordance
with
duly adopted Company stock grant, stock option and similar plans.
|
The
provisions set forth in clause (b) above shall not apply to sales of
inventory by the Company or any Restricted Subsidiary to any Affiliate in the
ordinary course of business. The provisions of clause (b) (ii) above
shall not apply to loans or advances to the Company or any Restricted Subsidiary
from, or equity investments in the Company or any Restricted Subsidiary by,
any
Affiliate to the extent permitted by the provisions of Section 4.9 of the
Indenture.
(f) Certain
Senior Subordinated Debt.
§4.13.
Certain
Senior Subordinated Debt.
The
Company shall not incur any Indebtedness that is subordinated or junior in
right
of payment to any Senior Debt of the Company and senior in any respect in right
of payment to the Company Guarantee of the Notes. The Company shall not permit
any Restricted Subsidiary to incur any Indebtedness that is subordinated or
junior in right of payment to its Senior Debt and senior in any respect in
right
of payment to its Subsidiary Guarantee.
(g) Additional
Subsidiary Guarantees.
§4.14.
Additional
Subsidiary Guarantees.
If any
entity (other than an Excluded Restricted Subsidiary) shall become a Restricted
Subsidiary after the date of the Sixth Supplemental Indenture, then such
Restricted Subsidiary shall execute a supplemental indenture in the form of
Exhibit B attached hereto, pursuant to which it shall provide a Subsidiary
Guarantee and deliver an Opinion of Counsel with respect thereto, in accordance
with the terms of the Indenture.
No
Restricted Subsidiary (including any Excluded Restricted Subsidiary) shall
consolidate (or, for the avoidance of doubt, amalgamate) with or merge with
or
into (whether or not such Restricted Subsidiary is the surviving Person),
another Person (other than the Company) whether or not affiliated with such
Restricted Subsidiary unless:
(1)
|
subject
to the provisions of the following paragraph, the Person formed by
or
surviving any such consolidation (or amalgamation) or merger (if
other
than such Restricted Subsidiary) assumes all the obligations of such
Restricted Subsidiary under its Subsidiary Guarantee (except in the
case
of an Excluded Restricted Subsidiary) pursuant to a supplemental
indenture
in form and substance reasonably satisfactory to the Trustee;
|
(2)
|
immediately
after giving effect to such transaction, no Default or Event of Default
exists; and
|
(3)
|
such
Restricted Subsidiary, or any Person formed by or surviving any such
consolidation (or amalgamation) or merger, would be permitted to
incur,
immediately after giving effect to such transaction, at least $1.00
of
additional Indebtedness pursuant to the test set forth in the first
paragraph of Section 4.9 of the Indenture.
|
In
the
event of:
(1)
|
a
sale or other disposition of all of the assets of any Restricted
Subsidiary, by way of merger, consolidation (or amalgamation) or
otherwise;
|
41
(2)
|
a
sale or other disposition of all of the capital stock of any Restricted
Subsidiary; or
|
(3)
|
the
designation of a Restricted Subsidiary as an Unrestricted Subsidiary
in
accordance with the terms of Section 4.15 of the
Indenture,
|
then
such
Restricted Subsidiary (in the event of a sale or other disposition, by way
of
such a merger, consolidation (or amalgamation) or otherwise, of all of the
capital stock of such Restricted Subsidiary or in the event of the designation
of such Restricted Subsidiary as an Unrestricted Subsidiary) or the Person
acquiring the property (in the event of a sale or other disposition of all
of
the assets of such Restricted Subsidiary) will be released and relieved of
any
obligations under its Subsidiary Guarantee, provided that the Net Proceeds
of
such sale or other disposition are applied in accordance with the applicable
provisions of Section 4.17 of the Indenture.
(h) Designation
of Unrestricted Subsidiaries.
§4.15.
Designation
of Unrestricted Subsidiaries.
The
Board of Directors may designate any Subsidiary (including any Restricted
Subsidiary or any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary so long as:
(1)
|
neither
the Company nor any Restricted Subsidiary is directly or indirectly
liable
for any Indebtedness of such Subsidiary;
|
(2)
|
no
default with respect to any Indebtedness of such Subsidiary would
permit
(upon notice, lapse of time or otherwise) any holder of any other
Indebtedness of the Company or any Restricted Subsidiary to declare
a
default on such other Indebtedness or cause the payment thereof to
be
accelerated or payable prior to its stated maturity;
|
(3)
|
any
Investment in such Subsidiary deemed to be made as a result of designating
such Subsidiary an Unrestricted Subsidiary will not violate the provisions
of Section 4.8 of the Indenture;
|
(4)
|
neither
the Company nor any Restricted Subsidiary has a contract, agreement,
arrangement, understanding or obligation of any kind, whether written
or
oral, with such Subsidiary other than (A) those that might be
obtained at the time from Persons who are not Affiliates of the Company
or
(B) administrative, tax sharing and other ordinary course contracts,
agreements, arrangements and understandings or obligations entered
into in
the ordinary course of business; and
|
(5)
|
neither
the Company nor any Restricted Subsidiary has any obligation to subscribe
for additional shares of Capital Stock or other Equity Interests
in such
Subsidiary, or to maintain or preserve such Subsidiary’s financial
condition or to cause such Subsidiary to achieve certain levels of
operating results other than as permitted under Section 4.8 of the
Indenture.
|
Notwithstanding
the foregoing, the Company may not designate as an Unrestricted Subsidiary
any
Subsidiary which, on the 1999 Indenture Date, was a Significant Subsidiary,
and
may not sell, transfer or otherwise dispose of any properties or assets of
any
such Significant Subsidiary to an Unrestricted Subsidiary, other than in the
ordinary course of business, in each case other than Iron Mountain Global,
Inc.
and its Subsidiaries (including, without limitation, Iron Mountain Europe
Limited and its Subsidiaries). For the avoidance of doubt,
the
provisions of this Section
4.15
shall
not limit or
42
restrict
the ability of any Restricted Subsidiary to sell, transfer or otherwise dispose
of any properties or assets to any other Subsidiary, including any Unrestricted
Subsidiary, to the extent such sale, transfer or other disposition is permitted
by the provisions of the Indenture described under Section
4.12 or Section 4.17.
The
Board
of Directors may designate any Unrestricted Subsidiary as a Restricted
Subsidiary; provided that such designation will be deemed to be an incurrence
of
Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of
such
Unrestricted Subsidiary and such designation will only be permitted if:
(1)
|
such
Indebtedness is permitted under Section 4.9 of the Indenture; and
|
(2)
|
no
Default or Event of Default would occur as a result of such designation.
|
(i) Limitation
on Sale and Leaseback Transactions.
§4.16.
Limitation
on Sale and Leaseback Transactions.
The
Company will not, and will not permit any Restricted Subsidiary to, enter into
any Sale and Leaseback Transaction unless:
(1)
|
the
consideration received in such Sale and Leaseback Transaction is
at least
equal to the fair market value of the property sold, as determined
by a
resolution of the Board of Directors; and
|
(2)
|
the
Company or such Restricted Subsidiary could incur the Attributable
Indebtedness in respect of such Sale and Leaseback Transaction in
compliance with Section 4.9 of the Indenture.
|
(j) Asset
Sales.
§4.17.
Asset
Sales.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to:
(1)
|
sell,
lease, convey or otherwise dispose of any assets (including by way
of a
Sale and Leaseback Transaction, but excluding a Qualifying Sale and
Leaseback Transaction) other than sales of inventory in the ordinary
course of business (provided that the sale, lease, conveyance or
other
disposition of all or substantially all of the assets of the Company
will
be governed by the provisions of Section 4.18 of the Indenture and/or
the
provisions of Section 5.1 of the Indenture and not by the provisions
of
this Section 4.17); or
|
(2)
|
issue
or sell Equity Interests of any of its Restricted Subsidiaries
|
that
in
the case of either clause (1) or (2) above, whether in a single
transaction or a series of related transactions:
(i)
have
a
fair market value in excess of $2.0 million; or
(ii) result
in
Net Proceeds in excess of $2.0 million (each of the foregoing, an “Asset
Sale”) unless (x) the Company (or the Restricted Subsidiary, as the case
may be) receives consideration at the time of such Asset Sale at least equal
to
the fair market value (evidenced by an Officers’ Certificate delivered to the
Trustee, and
43
for
Asset
Sales having a fair market value or resulting in Net Proceeds in excess of
$10.0 million, evidenced by a resolution of the Board of Directors set
forth in an Officers’ Certificate delivered to the Trustee) of the assets sold
or otherwise disposed of and (y) at least 75% of the consideration therefor
received by the Company or such Restricted Subsidiary is in the form of cash
or
like-kind assets (in each case as determined in good faith by the Company,
evidenced by a resolution of the Board of Directors and certified by an
Officers’ Certificate delivered to the Trustee);
provided,
however,
that
the amount of:
(A)
|
any
liabilities (as shown on the Company’s or such Restricted Subsidiary’s
most recent balance sheet or in the notes thereto) of the Company
or such
Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Notes or any Note Guarantee) that are assumed
by the
transferee of any such assets; and
|
(B)
|
any
notes or other obligations received by the Company or such Restricted
Subsidiary from such transferee that are immediately converted by
the
Company or such Restricted Subsidiary into cash (to the extent of
the cash
received) or Cash Equivalents,
|
shall
be
deemed to be cash for purposes of this provision; and provided, further, that
the 75% limitation referred
to in the foregoing clause (ii) (y) shall not apply to any Asset Sale
in which the cash portion of the consideration received therefrom is equal
to or
greater than what the after-tax proceeds would have been had such Asset Sale
complied with the aforementioned
75%
limitation. For the avoidance of doubt, a disposition that constitutes a
Restricted Payment will be governed by the provisions of Section
4.8
and
not by this Section
4.17.
A
transfer of assets or issuance of Equity Interests by the Company to a Wholly
Owned Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary to the
Company or to another Wholly Owned Restricted Subsidiary will not be deemed
to
be an Asset Sale.
Within
360 days of any Asset Sale, the Company may, at its option, apply an amount
equal to the Net Proceeds from such Asset Sale either:
(1)
|
to
permanently reduce Senior Debt; or
|
(2)
|
to
an investment in a Restricted Subsidiary or in another business or
capital
expenditure or other long-term/tangible assets, in each case, in
the same
line of business as the Company or any of its Restricted Subsidiaries
was
engaged in on the date of the Sixth Supplemental Indenture or in
businesses similar or reasonably related thereto.
|
Pending
the final application of any such Net Proceeds, the Company may temporarily
reduce Senior Bank Debt or otherwise invest such Net Proceeds in any manner
that
is not prohibited by the Indenture. Any Net Proceeds from such Asset Sale that
are not applied or invested as provided in the first sentence of this paragraph
will be deemed to constitute “Excess Proceeds.” When the aggregate amount of
Excess Proceeds exceeds $10.0 million, the Company shall make an offer to
all Holders of the Notes, all holders of the 8⅝% Notes, the 7¼% Notes, the 7¾%
Notes, the 6⅝% Notes, the 8¾% Notes, the 8% Notes and the 6¾% Notes, and the
holders of any future Indebtedness ranking pari
passu
with the
Notes, which Indebtedness contains similar provisions requiring the Company
to
repurchase such
44
Indebtedness
(an “Asset Sale Offer”), to purchase the maximum principal amount of Notes and
such other Indebtedness that may be purchased out of the Excess Proceeds, at
an
offer price in cash in an amount equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase, Additional
Interest and Additional Tax Amounts, if any, in accordance with the procedures
set forth in the Indenture. To the extent that the aggregate amount of Notes
and
other pari
passu
Indebtedness (including the 8⅝% Notes, the 7¼% Notes, the 7¾% Notes, the 6⅝%
Notes, the 8¾ % Notes, the 8% Notes and the 6¾% Notes) tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Notes and such other Indebtedness surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes and such other Indebtedness to be purchased on a pro rata basis. Upon
completion of such offer to purchase, the amount of Excess Proceeds shall be
reset at zero.
The
Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent those laws and
regulations are applicable in connection with each repurchase of Notes pursuant
to an Asset Sale Offer. To the extent that the provisions of any securities
laws
or regulations conflict with the provisions of this Section 4.17, the Company
shall comply with the applicable securities laws and regulations and shall
not
be deemed to have breached its obligations under the Asset Sale provisions
of
the Indenture by virtue of such conflict.
An
Asset
Sale Offer shall be made pursuant to the provisions of Section 3.10 hereof.
No
later than the date which is five Business Days after the date on which the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall
notify the Trustee of such Asset Sale Offer and provide the Trustee with an
Officers’ Certificate setting forth the calculations used in determining the
amount of Net Proceeds to be applied to the purchase of Notes. The Company
shall
commence or cause to be commenced the Asset Sale Offer on a date no later than
15 Business Days after such notice (the “Commencement Date”).
(k) Change
of Control Offer.
§
4.18. Change
of Control Offer.
(a) Upon
the
occurrence of a Change of Control, the Issuer shall repurchase all of each
Holder’s Notes pursuant to the offer described below (the “Change of Control
Offer”) at an offer price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest to but excluding the date of
repurchase, and Additional Interest and Additional Tax Amounts, if any (the
“Change of Control Payment”).
Within
30
calendar days following any Change of Control, the Issuer shall mail a notice
to
each Holder, with a copy to the Trustee, stating:
(1)
|
that
the Change of Control Offer is being made pursuant to this Section
4.18
and that all Notes tendered shall be accepted for payment;
|
(2)
|
the
purchase price and the purchase date, which shall be no earlier than
30
calendar days nor later than 60 calendar days from the date such
notice is
mailed (the “Change
of Control Payment Date”);
|
(3)
|
that
any Note not tendered shall continue to accrue interest;
|
45
(4)
|
that,
unless the Issuer defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of
Control
Offer shall cease to accrue interest on and after the Change of Control
Payment Date;
|
(5)
|
that
Holders electing to have any Notes purchased pursuant to a Change
of
Control Offer shall be required to surrender the Notes, with the
form
entitled “Option of Holder to Elect Purchase” on the reverse of the Notes
completed, to the Paying Agent at the address specified in such notice
prior to the close of business on the fifth Business Day preceding
the
Change of Control Payment Date;
|
(6)
|
that
Holders will be entitled to withdraw their election if the Paying
Agent
receives, not later than the close of business on the second Business
Day
preceding the Change of Control Payment Date, facsimile transmission
or
letter setting forth the name of the Holder, the principal amount
of Notes
delivered for purchase, and a statement that such Holder is withdrawing
its election to have such Notes purchased; and
|
(7)
|
that
Holders whose Notes are being purchased only in part will be issued
new
Notes equal in principal amount to the unpurchased portion of the
Notes
surrendered, which unpurchased portion must be equal to C$1,000 in
principal amount or an integral multiple thereof.
|
The
Issuer shall comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder, to the extent
such
laws and regulations are applicable to the repurchase of the Notes in connection
with a Change of Control. To the extent that the provisions of any securities
laws or regulations conflict with this Section 4.18, the Issuer shall comply
with the applicable securities laws and regulations and shall not be deemed
to
have breached its obligations under the Change of Control provisions of the
Indenture or the Sixth Supplemental Indenture by virtue of such conflict.
(b) On
the
Change of Control Payment Date, the Issuer shall, to the extent lawful:
(1)
|
accept
for payment Notes or portions thereof tendered pursuant to the Change
of
Control Offer;
|
(2)
|
deposit
with the Paying Agent an amount equal to the Change of Control Payment
in
respect of all Notes or portions thereof so tendered; and
|
(3)
|
deliver
or cause to be delivered to the Trustee the Notes so accepted together
with an Officers’ Certificate stating the Notes or portions thereof
tendered to the Issuer.
|
The
Paying Agent shall promptly mail to each Holder of Notes so accepted the Change
of Control Payment for such Notes, and the Trustee shall promptly authenticate
and mail to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new Note
shall
be in a principal amount of C$1,000
or an
integral multiple thereof. Prior to complying with the provisions of this
Section 4.18, but in any event within 90 calendar days following a Change of
Control, the Company shall either repay all outstanding Senior Debt or obtain
the requisite consents, if any, under all agreements governing outstanding
Senior Debt to permit the repurchase of Notes required by this Section 4.18.
The
Company shall publicly announce in The Wall Street Journal, or if no longer
published, a national newspaper of general circulation, the results of the
Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
46
The
Issuer shall not be required to make a Change of Control Offer upon a Change
of
Control if a third party, including the Company, makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.18 applicable to a Change of Control
Offer made by the Issuer and purchases all Notes properly tendered and not
withdrawn under the Change of Control Offer.
(l) Changes
in Covenants When Notes Rated Investment Grade.
If
on any
date following the date of this Sixth Supplemental Indenture:
(1)
|
at
least two of the following events
occur:
|
i.
|
the
Notes are rated Baa3 or better by Xxxxx’x Investors
Service,
|
ii.
|
the
Notes are rated BBB- or better by Standard & Poor’s Rating Group, a
division of The XxXxxx-Xxxx Companies, Inc., or
|
iii.
|
the
Notes rated BBB- or better by Fitch Ratings,
Inc.,
|
(or,
if
any such entity ceases to rate the Notes for reasons outside of the control
of
the Company, the equivalent investment grade credit rating from any other
“nationally recognized statistical rating organization” within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as
a replacement agency); and
(2)
|
no
Default or Event of Default shall have occurred and be
continuing,
|
then,
beginning on that day and continuing at all times thereafter regardless of
any
subsequent changes in the rating of the Notes, Sections 3.10, 4.8, 4.9, 4.11,
4.12, 4.15 and 4.17, clause (3) of Section 4.14, clause (2) of Section 4.16
and
clause (d) of Section 5.1 of the Indenture shall no longer be applicable to
the
Notes.
(m) Additional
Tax Amounts.
§
4.20. Additional
Tax Amounts.
All
payments made by or on behalf of the Issuer under or with respect to the Notes
or any of the Guarantors on its guarantee shall be made free and clear of and
without withholding or deduction for, or on account of, any present or future
Taxes imposed or levied by or on behalf of any jurisdiction in which the Issuer
or any Guarantor (including any successor entity), is then incorporated or
resident for tax purposes or any political subdivision thereof or therein (for
avoidance of doubt, it being understood that tax residency for these purposes
does not result from mere permanent establishments) (each of the foregoing,
a
“Tax Authority”), unless the withholding or deduction of such Taxes is then
required by law. If any deduction or withholding for, or on account of, any
Taxes of any Tax Authority shall at any time be required to be made from or
imposed directly on any Holder or beneficial owner of the Notes on any payments
made by or on behalf of the Issuer under or with respect to the Notes or any
of
the Guarantors with respect to any guarantee, including payments of principal,
redemption price, purchase price, interest, premium or Additional Interest,
if
any, the Issuer or the relevant Guarantor, as applicable, shall pay such
additional amounts (the “Additional Tax Amounts”), as may be necessary in order
that the net amounts received and retained in respect of such payments by each
Holder or beneficial owner (including
47
Additional
Tax Amounts) after such withholding, deduction or imposition shall equal the
respective amounts which would have been received and retained in respect of
such payments in the absence of such withholding, deduction or imposition;
provided,
however,
that no
Additional Tax Amounts shall be payable with respect to:
(a) any
payments on a Note in respect of Taxes which would not have been imposed but
for
the Holder or the beneficial owner of the Note being, or having been, a citizen
or resident or national of, incorporated in, or carrying on a business in the
jurisdiction in which such Taxes are imposed other than by the mere holding
of
such Note or enforcement of rights thereunder or the receipt of payments in
respect thereof;
(b) any
Taxes
that are imposed or withheld as a result of the failure of the Holder of a
Note
or beneficial owner of a Note to satisfy any certification, identification,
information or other reporting requirement, which is required or imposed by
a
statute, treaty, regulation or administrative practice of the relevant taxing
jurisdiction as a precondition to exemption from all or part of such
Taxes;
(c) any
Note
presented for payment (where Notes are in physical, certificated form and
presentation is required) more than 30 days after the relevant payment is first
made available for payment to the Holder (except to the extent that the Holder
would have been entitled to Additional Tax Amounts had the Note been presented
on the last day of such 30 day period);
(d) any
estate, inheritance, gift, sale, transfer, personal property or similar Tax
or
assessment;
(e) any
Taxes
payable otherwise than by way of deduction or withholding;
(f) any
person who is a fiduciary or partnership or any person other than the sole
beneficial owner of such payment, to the extent that a beneficiary or settlor
with respect to such fiduciary, a member of such partnership or the beneficial
owner of such payment would not have been entitled to the Additional Tax Amounts
had such beneficiary, settlor, member or beneficial owner been the actual holder
of the Note;
(g) any
Holder of a Note or a beneficial owner of a Note that is or was a “10-percent
shareholder” of the Company as defined in Section 871(h)(3) of the United
States Internal Revenue Code of 1986, as amended (the “Code”), or any successor
provision;
(h) any
Holder of a Note or a beneficial owner of a Note that is a bank receiving
interest described in Section 881(c)(3)(A) of the Code; or
(i) any
combination of items (a) through (h) above.
In
addition to the foregoing, the Issuer and the Guarantors shall also pay any
present or future stamp, transfer, court or documentary taxes, or any other
excise or property taxes, charges or similar levies or Taxes which are levied
by
any Tax Authority on the execution, delivery, registration or enforcement of
any
of the Notes, the Indenture, any guarantee or any other document or instrument
referred to therein or herein, or the receipt of any payments with respect
to
the Notes or the guarantees. The Issuer and the Guarantors shall not, however,
be obligated to pay any present or future stamp, transfer, court or documentary
tax, or any other excise or property tax, charge or similar levy or Tax which
is
levied by any Tax Authority in connection with any transfer of any Note by
any
Holder.
48
If
the
Issuer or any Guarantor, as the case may be, becomes aware that it shall be
obligated to pay Additional Tax Amounts with respect to any payment under or
with respect to the Notes or any guarantee, the Issuer or the relevant
Guarantor, as the case may be, shall deliver to the Trustee on a date which
is
at least 30 days prior to the date of that payment (unless the obligation
to pay Additional Tax Amounts arises after the 30th day prior to that payment
date, in which case the Issuer or the relevant Guarantor shall notify the
Trustee promptly thereafter) an Officers’ Certificate stating the fact that
Additional Tax Amounts shall be payable and the amount estimated to be so
payable. The Officers’ Certificate must also set forth any other information
reasonably necessary to enable the Paying Agents to pay Additional Tax Amounts
to Holders on the relevant payment date. The Issuer or the relevant Guarantor
shall provide the Trustee with documentation reasonably satisfactory to the
Trustee evidencing the payment of Additional Tax Amounts.
The
Issuer or the relevant Guarantor shall make all required withholdings and
deductions and shall remit the full amount deducted or withheld to the relevant
Tax Authority in accordance with applicable law. The Issuer or the relevant
Guarantor shall use commercially reasonable efforts to facilitate administrative
actions necessary to assist beneficial owners to obtain any refund of or credit
against Taxes for which Additional Tax Amounts are not paid as a result of
the
conditions in the proviso to the first paragraph of this Section
4.20.
In
the
event that either the Issuer or the relevant Guarantor has become, or would
be,
obliged to pay on the next date on which any amount would be payable under
or
with respect to the Notes, any Additional Tax Amounts as a result of certain
changes affecting the laws relating to withholding or deduction of Taxes, the
Issuer may redeem all, but not less than all, the Notes in accordance with
Section 3.8.
Whenever
in the Indenture there is mentioned, in any context, the payment of amounts
based upon the principal amount of the Notes or of principal, interest,
Additional Interest or of any other amount payable under, or with respect to,
any of the Notes, such mention shall be deemed to include mention of the payment
of Additional Tax Amounts to the extent that, in such context, Additional Tax
Amounts are, were or would be payable in respect thereof.
(n) Release
of Company and Subsidiary Guarantees and Guarantors.
(a)
If:
(1) the
Company sells or otherwise disposes, by way of a merger, consolidation or
otherwise, all the capital stock or all or substantially all of the assets
of
the Issuer to an unaffiliated third party,
(2) the
Note Guarantees (and, in the case of the disposition of all or substantially
all
of the assets of the Issuer, the Notes) are assumed by such third party and
(3) the
Company elects to make an irrevocable offer for all of each Holder's notes
at an
offer price in cash equal to 101% of the aggregate principal amount thereof
plus
accrued and unpaid interest to but excluding the date of repurchase, and
Additional Interest and Additional Tax Amounts, if any,
then
the
Company and the Subsidiary Guarantors will be unconditionally released and
relieved of any obligations under the Note Guarantees and under the Indenture
with respect to the Notes (and, in the case of the disposition of all or
substantially all of the assets of the Issuer, the Issuer will also be released
and
49
relieved
of any obligations in respect of the Notes). The Company shall not be obligated
to make such offer. Any such offer, if made, will be made substantially on
the
terms and conditions set forth in Section 4.18 of the Indenture.
(b)
The
release of the Company and the Subsidiary Guarantors (and, in the case of the
disposition of all or substantially all of the assets of the Issuer, the Issuer)
will be subject to the satisfaction of the following additional conditions:
(1) such
third party must be a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia, or of Canada
or
any province thereof,
(2) such
third party must have assumed all the obligations of the Company and the
Subsidiary Guarantors under the Note Guarantees and the Indenture with respect
to the Notes (and, in the case of the disposition of all or substantially all
of
the assets of the Issuer, the third party must also have assumed the obligations
of the Issuer in respect of the Notes) pursuant to a supplemental indenture
in a
form reasonably satisfactory to the Trustee,
(3) immediately
after such acquisition, no Default or Event of Default exists, and
(4) such
third party will, at the time of such acquisition and giving effect thereto,
be
permitted to incur at least $1.00 of additional indebtedness pursuant to the
test set forth in the first paragraph of Section 4.9 of the
Indenture.
Section
2.7. Replacement
of Certain References in the Indenture.
With
respect to the Notes issued under this Sixth Supplemental Indenture, the
Indenture shall be amended as follows:
(a)
All references to “Subsidiary Guarantee” or “Subsidiary Guarantees” shall be
replaced with references to “Note Guarantee” and “Note Guarantees,”
respectively, and
(b)
Except as otherwise provided herein, all references to “the Company,” “the
Company’s” and “Company Order” shall be replaced with references to “the
Issuer,” “the Issuer’s” and “Issuer Order,” respectively, for Articles II, III
and XIII and the following Sections: 4.4, 6.1(d), 6.3-6.6, 6.9, 7.1(f), 7.4,
7.7, 7.8, 8.1-8.3, 8.4(d) and (f), 8.5-8.7, 9.1, 9.2, 9.6, 10.2-10.4, 10.8,
10.12, 10.15, 10.16, 11.2, 11.3, 12.1 and 12.2.
Section
2.8. Provisions
Regarding Incorporation by Reference of Trust Indenture Act.
With
respect to the Notes issued under this Sixth Supplemental Indenture, the
definition of “obligor” under Section 1.3 of the Indenture shall be amended and
restated with the following:
“obligor”
on the indenture securities means the Issuer, the Guarantors, if any, and any
successor obligor upon the Securities or any Note Guarantee, as the case may
be.
Section
2.9. Amend,
Restate and Replace Provision Regarding Payment of Principal and
Interest.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Section
4.1
of the Indenture is amended, restated and replaced in its entirety by the
following:
50
§
4.1. Payment
of Principal and Interest.
The
Issuer covenants and agrees for the benefit of the Holders of the Notes that
it
will duly and punctually pay the principal of, interest, Additional Interest
or
Additional Tax Amounts, if any, on the Notes in accordance with the terms
thereof and this Indenture. The Issuer will pay all Additional Interest, if
any,
in the same manner on the dates and in the amounts set forth in the Registration
Rights Agreement.
Section
2.10. Provisions
Regarding Successors.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Section
5.1(b) of the Indenture is hereby amended and restated in its entirety with
the
following:
(b) the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all the obligations
of the Company under the Securities of a Series, the supplemental indentures
applicable to such Series, the Indenture and the Registration Rights Agreement
(pursuant to a supplemental indenture in a form reasonably satisfactory to
the
Trustee);
Section
2.11. Events
of Default.
Section
6.1 of the Indenture is amended with regard to this Sixth Supplemental Indenture
and the Notes issued hereunder (i) by deleting the $10.0 million threshold
in
Sections 6.1(e)(ii) and 6.1(f) and substituting in lieu thereof the threshold
of
$50.0 million and (ii) by deleting references to “the Company” in Sections
6.1(c) and 6.1(d) and replacing them with “the Issuer.” Section 6.1 of the
Indenture is further amended with regard to this Sixth Supplemental Indenture
by
deleting Sections 6.1(a), 6.1(g), 6.1(h) and 6.1(i) of the Indenture and
replacing them in their entirety with the following, respectively:
(a)
default for 30 days in the payment when due of interest or Additional Interest
or Additional Tax Amounts, if any, on any Security of that Series (whether
or
not prohibited by the subordination provisions of Article XIII of the
Indenture);
(g)
the
Issuer, the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary:
(i)
commences a voluntary case,
(ii)
consents to the entry of an order for relief against it in an involuntary
case,
(iii)
consents to the appointment of a Custodian of it or for all or substantially
all
of
its
property,
(iv)
makes a general assignment for the benefit of its creditors, or
(v)
admits in writing that it generally is unable to pay its debts as the same
become
due;
in
each
case, pursuant to or within the meaning of any Bankruptcy Law; or
51
(h)
a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(1) is
for relief against the Issuer, the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary in an involuntary case,
(2) appoints
a Custodian of the Issuer, the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or for all or substantially all of its
property, or
(3) orders
the liquidation of Issuer, the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary,
and
such
order or decree remains unstayed and in effect for 60 days;
(i)
except as permitted by the Indenture or the Note Guarantees, any Note Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or
shall
cease for any reason to be in full force and effect, or the Company or any
Restricted Subsidiary or any person acting on behalf of the Company or any
Restricted Subsidiary shall deny or disaffirm in writing its obligations under
its Guarantee.
Section
2.12. Acceleration
of Maturity.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Section
6.2
is hereby amended, restated and replaced in its entirety by the
following
§6.2
Acceleration
of Maturity:
If
any
Event of Default (other than an Event of Default specified in clauses (g) and
(h) of Section 6.1 of the Indenture relating to the Issuer, the Company or
any
of its Restricted Subsidiaries that is a Significant Subsidiary) occurs and
is
continuing, the Trustee by notice to the Issuer or the Holders of at least
25%
in principal amount of the then outstanding Securities of a Series by notice
to
the Issuer and the Trustee may declare the unpaid principal of and any interest,
Additional Interest or Additional Tax Amounts on all the Securities of that
Series (or, if any Securities of that Series are Discount Securities, such
portion of the principal amount as may be specified in the terms of such
Securities) to be due and payable immediately; provided, however, that if any
Obligation with respect to Senior Bank Debt is outstanding pursuant to the
Credit Agreement upon a declaration of acceleration of the Securities of a
Series, the principal, premium or Additional Tax Amounts, in any and interest
on
such Securities will not be payable until the earlier of:
(a)
the
day which is five Business Days after written notice of acceleration is received
by the Company and the Credit Agent or
(b)
the
date of acceleration of the Indebtedness under the Credit Agreement. If an
Event
of Default specified in clauses (g) and (h) of Section 6.1 of the Indenture
with
respect to the Issuer, the Company or any Restricted Subsidiary that is a
Significant Subsidiary occurs, the principal of, and premium, Additional
Interest or Additional Tax Amounts, if any, and any accrued and unpaid interest
on all outstanding Securities of that Series will become immediately due and
payable without further action or notice.
In
the
event of a declaration of acceleration of the Securities of that Series because
an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness
52
described
in clause (e) of Section 6.1 of the Indenture, the declaration of acceleration
of the Securities of that Series shall be automatically annulled if the holders
of any Indebtedness described in such clause have rescinded the declaration
of
acceleration in respect of such Indebtedness within 30 days from the date
of such declaration and if:
(A)
the
annulment of the acceleration of the Securities of that Series would not
conflict with any judgment or decree of a competent jurisdiction and
(B)
all
existing Events of Default, except non-payment of principal or interest on
the
Securities of that Series that became due solely because of the acceleration
of
such Securities, have been cured or waived.
In
the
case of any Event of Default occurring by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Issuer or the Company
with
the intention of avoiding payment of any make whole price or premium, as
applicable, that the Issuer or the Company would have had to pay if the Issuer
or the Company then had elected to redeem the Securities of a Series pursuant
to
the optional redemption provisions of the Indenture, if any, the applicable
make
whole price, or an equivalent premium, as the case may be, shall become and
be
immediately due and payable to the extent permitted by law upon the acceleration
of the Securities of that Series.
Section
2.13. Waiver
of Past Defaults.
Section
6.13 of the Indenture is amended with regard to this Sixth Supplemental
Indenture and the Notes issued hereunder by deleting the first sentence thereof
and replacing it in its entirety with the following:
The
Holders of not less than a majority in principal amount of the outstanding
Notes
may on behalf of the Holders of all the Notes waive any past Default or Event
of
Default and its consequences under the Indenture except a continuing Default
or
Event of Default in the payment of interest, Additional Interest or Additional
Tax Amounts on, or the principal of, the Notes (provided, however, that the
Holders of a majority in principal amount of the outstanding Notes may rescind
an acceleration and its consequences, including any related payment default
that
resulted from such acceleration).
Section
2.14. Legal
Defeasance and Covenant Defeasance.
(a) Ability
to Effect Legal Defeasance or Covenant Defeasance.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Article
VIII of the Indenture shall apply, and the Issuer shall have the option to
effect Legal Defeasance or Covenant Defeasance pursuant to Article VIII of
the
Indenture. In connection with any Covenant Defeasance, the Issuer and Company
shall be released from its obligations under the covenants specified in Sections
4.2 and 5.1 of the Indenture and Section 2.6 of this Sixth Supplemental
Indenture.
(b) Amend,
Restate and Replace Covenant Regarding Legal Defeasance and
Discharge.
With
respect to the Notes issued under this Sixth Supplemental Indenture, clause
(a)
of Section 8.1 is hereby amended, restated and replaced in its entirety by
the
following:
(a)
the
rights of Holders of outstanding Securities of such Series to receive solely
from the trust fund described in Section 8.4 hereof, and as more fully set
forth
in such section, payments in
53
respect
of the principal of, premium or Additional Interest of Additional Tax Amounts,
if any, and interest on such Securities when such payments are due,
(c) Amend,
Restate and Replace Covenant Regarding Deposit.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Sections
8.4(a), (b), (c), (g) and (h) are hereby amended, restated and replaced in
their
entirety by the following:
(a)
the
Issuer must irrevocably deposit with the Trustee, in trust, for the benefit
of
the Holders, cash in Canadian Dollars, Canadian Government Obligations, or
a
combination thereof, in such amounts as will be sufficient, in the opinion
of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, Additional Interest or Additional Tax Amounts, if any,
and interest on the outstanding Securities of such Series on the Stated Maturity
or on the applicable redemption date, as the case may be, of such principal
or
installment of principal of, premium or Additional Tax Amounts, if any, or
interest on the outstanding Securities of such Series.
(b)
in
the case of an election under Section 8.2 hereof, the Issuer shall have
delivered to the Trustee an Opinion of Counsel in the United States (which
counsel may be an employee of the Company or any Subsidiary of the Company)
reasonably acceptable to the Trustee confirming that (A) the Issuer has received
from, or there has been published by, the Internal Revenue Service a ruling
or
(B) since the date hereof, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding Securities
of such Series will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c)
in
the case of an election under Section 8.3 hereof, the Issuer shall have
delivered to the Trustee an Opinion of Counsel in the United States (which
counsel may be an employee of the Company or any Subsidiary of the Company)
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Securities of such Series will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance and
will
be subject to federal income tax on the same amounts, in the same manner and
at
the same times as would have been the case if such Covenant Defeasance had
not
occurred;
(g)
the
Company shall have delivered to the Trustee an Officer’s Certificate stating
that the deposit as not made by the Issuer with the intent of preferring the
Holders of such Securities over any other creditors of the Issuer with the
intent of defeating, hindering, delaying or defrauding creditors of the Issuer
or others;
(h)
the
Company shall have delivered to the Trustee an Officers’ Certificate and an
opinion of counsel, each stating that all conditions precedent relating to
the
Legal Defeasance or the Covenant Defeasance have been complied with;
and
(d) Delivery
of an Opinion of Canadian Counsel.
With
respect to the Notes issued under this Sixth Supplemental Indenture, the
following is hereby added to Section 8.4(i):
(i)
the
Issuer shall have delivered to the Trustee an opinion of counsel in Canada
reasonably acceptable to the Trustee confirming that the Holders of such
Securities will be subject to
54
Canadian
federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such Legal Defeasance or Covenant
Defeasance had not occurred.
Section
2.15. Subordination.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Article
XIII of the Indenture shall apply, and the Notes shall be subject to
subordination pursuant to Article XIII of the Indenture.
Section
2.16. Amend,
Restate and Replace Provision Regarding Amendment with the Consent of the
Holders of the Notes.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Section
9.2
of the Indenture is amended, restated and replaced in its entirety by the
following:
§
9.2. With
Consent of Holders.
Except
as
provided in Sections 9.1 and 9.3 of the Indenture, the Indenture or the Notes
may be amended or supplemented by the Company and the Trustee after having
received the Required Consent (as defined below), and, except as provided in
Sections 6.8 and 6.12 of the Indenture, any existing Default or Event of Default
or compliance with any provision of the Indenture or the Notes may be waived
by
the Trustee upon receipt by the Trustee of the Required Consent.
The
term “Required Consent” means the
consent of:
(a)
Holders
of a majority in aggregate principal amount at stated maturity of the Notes
(with respect to matters requiring only the consent of such Holders);
or
(b)
holders of a majority in aggregate principal amount at stated maturity of:
(i) the
Notes,
(ii) the
8 5/8%
Notes,
the 7 3/4%
Notes,
the 7 1/4%
Notes,
the 6 5/8%
Notes,
the 8 3/4%
Notes,
the 8% Notes and the 6 3/4%
Notes,
(the “Previously Issued Notes”), if the holders of the Previously Issued Notes
are being requested to consent to such action with respect to the terms of
the
Previously Issued Notes or the indentures under which the Previously Issued
Notes were issued, and
(iii)
any
other issue or series of notes issued or guaranteed by the Company that rank
pari
passu
with the
Company Guarantee, if such notes or guarantee or the indenture pursuant to
which
such notes were issued both (x) require the consent of the holders of such
notes to such action, and (y) provide that the such holders will vote with
the Holders of the Notes and the other securities referenced above with respect
to such action.
Section
2.17. Amend,
Restate and Replace Provision Regarding Limitations on Amendment or
Waiver.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Sections
9.3(d), (f) and (h) of the Indenture are amended, restated and replaced in
their
entirety by the following:
(d)
waive
a Default or Event of Default in the payment of principal of or premium, if
any,
or interest or Additional Tax Amounts, if any, on any Security (except a
rescission of acceleration of the
55
Securities
of any Series by the Holders of at least a majority in aggregate principal
amount of the then outstanding Securities of such Series and a waiver of the
payment default that resulted from such acceleration);
(f)
make
any change in the provisions of the Indenture relating to waivers of past
Defaults or the rights of Holders of Securities of any Series to receive
payments of principal of or premium, if any, or interest or Additional Tax
Amounts, if any, on the Securities;
(h)
except pursuant to the Indenture, release any Guarantor from its obligations
under the Note Guarantees, or change the Note Guarantees in any manner that
would materially adversely affect the Securityholders; or
Section
2.18. Amend,
Restate and Replace Provision Regarding Personal Liability.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Section
10.8 of the Indenture is amended, restated and replaced in its entirety by
the
following:
No
past,
present or future director, officer, employee, incorporator or stockholder
of
the Issuer, the Company or any Restricted Subsidiary, as such, shall have any
liability for any obligations of the Issuer, the Company or any Restricted
Subsidiary under the Securities of any Series, Note Guarantees or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations
or
their creation. Each Holder of Securities of any Series, by accepting a Security
and the related Note Guarantees, waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Series
of
Securities and the Note Guarantees.
Section
2.19. Note
Guarantees.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Article
XII
of the Indenture shall apply, and the Notes shall constitute a Series to be
guaranteed by the Guarantors pursuant to Article XII of the
Indenture.
Section
2.20. Provisions
Regarding Subsidiary Guarantees and Limitation of Guarantor’s
Liability.
With
respect to the Notes issued under this Sixth Supplemental Indenture, the first
clause of the first paragraph of Section 12.1 of the Indenture is replaced
with
the following:
The
Company and each Subsidiary that is a signatory hereto, as a Guarantor and
each
Subsidiary of the Company that in accordance with the terms of any Securities
of
a Series issued hereunder pursuant to any supplemental indenture relating to
such Securities becomes party to this Indenture as a guarantor (each a
“Guarantor”),
Section
2.21. Provisions
Regarding Agreement to Subordinate.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Section
13.1 of the Indenture is amended, restated and replaced in its entirety by
the
following:
§
13.1. Agreement
to Subordinate.
56
The
Issuer, the Trustee and each Securityholder by accepting a Security agrees,
that
the indebtedness and obligations evidenced by the Security are subordinated
in
right of payment, to the extent and in the manner provided in this Article,
to
the prior payment in full, in cash of all Obligations with respect to Senior
Debt of the Issuer (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed), and that the subordination is for the benefit
of the holders of Senior Debt of the Issuer.
Section
2.22. Provisions
Regarding Subordination of Note Guarantees.
With
respect to the Notes issued under this Sixth Supplemental Indenture, Section
13.14 of the Indenture is amended, restated and replaced in its entirety by
the
following:
§
13.14.
Subordination
of Note Guarantees.
Each
Guarantor, the Trustee, and each Securityholder by accepting a Security agrees,
that the indebtedness and obligations under the Note Guarantees (a) rank
pari
passu
with
such Guarantor’s obligations (whether as issuer or guarantor) with respect to
the Existing Senior Subordinated Securities and (b) are subordinated in right
of
payment, to the extent and in the manner provided in this Article, to the prior
payment in full, in cash, of all Obligations with respect to Senior Debt of
such
Guarantor (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed), and that the subordination is for the benefit
of the holders of Senior Debt of such Guarantor.
ARTICLE
3.
Section
3.1. Effect
of Headings.
The
Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
Section
3.2. Successors
and Assigns.
All
covenants and agreements in this Sixth Supplemental Indenture by the Company
and
the Issuer shall bind their successors and assigns, whether so expressed or
not.
Section
3.3. Separability
Clause.
In
case
any provision in this Sixth Supplemental Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of
the remaining provisions shall not in any way be affected or impaired
thereby.
Section
3.4. Governing
Law.
This
Sixth Supplemental Indenture and the Notes created hereby shall be governed
by
and construed in accordance with the laws of the State of New York without
giving effect to any conflicts of law provisions (other than Section 5-1401
of
the New York General Obligations Law) that might cause this Sixth Supplemental
Indenture and the Notes to be governed by or construed or enforced in accordance
with the laws of any other jurisdiction.
57
Section
3.5. Sixth
Supplement to Supersede Indenture.
The
Indenture, as supplemented by the Sixth Supplemental Indenture, remains in
full
force and effect as of the date hereof. Notwithstanding the foregoing, to the
extent that any provision of the Indenture shall conflict with any provision
of
this Sixth Supplemental Indenture, the terms of this Sixth Supplemental
Indenture shall be deemed controlling and the conflicting provision of the
Indenture shall be null and void to the extent of such conflict.
[The
rest of this page has been intentionally left blank.]
58
IRON
MOUNTAIN NOVA SCOTIA FUNDING COMPANY
|
|
By:
/s/ Xxxxx X. Xxxxxx
|
|
Name:
Xxxxx X. Xxxxxx
Title:
Senior Vice President and General Counsel
|
|
IRON
MOUNTAIN INCORPORATED
|
|
COMAC,
INC.
|
|
IRON
MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC.
|
|
IRON
MOUNTAIN GLOBAL, INC.
|
|
IRON
MOUNTAIN GOVERNMENT SERVICES INCORPORATED
|
|
IRON
MOUNTAIN INFORMATION MANAGEMENT, INC.
|
|
MOUNTAIN
REAL ESTATE ASSETS, INC.
|
|
MOUNTAIN
RESERVE III, INC.
|
|
TREELINE
SERVICES CORPORATION
|
|
NETTLEBED
ACQUISITION CORP.
|
|
By:
/s/
Xxxxx X. Xxxxxx
|
|
Name:
Xxxxx X. Xxxxxx
Title:
Senior Vice President and General Counsel
|
|
IRON
MOUNTAIN GLOBAL LLC
|
|
By:
Iron Mountain Global, Inc., its sole member
|
|
By:
/s/
Xxxxx X. Xxxxxx
|
|
Name:
Xxxxx
X. Xxxxxx
|
|
Title:
Senior
Vice President and General Counsel
|
59
|
|
By:
U.S.
BANK
NATIONAL ASSOCIATION,
not individually but as Owner Trustee under that certain Amended
and Restated Owner Trust Agreement dated
as of October 1,
1998, as amended
|
|
Name:
Xxxx Xxxxxxx
|
|
|
|
|
|
By:
U.S.
BANK
NATIONAL ASSOCIATION,
not individually but as Owner Trustee under that certain Amended
and Restated Owner Trust Agreement dated
as of July 1,
1999, as amended
|
|
By:
/s/ Xxxx Xxxxxxx
|
|
|
|
|
|
THE
BANK OF NEW YORK TRUST COMPANY, N.A.
|
|
By:
/s/ Xxxxx X. Xxxxxx
|
|
Name:
Xxxxx X. Xxxxxx
Title:
Vice President
|
EXHIBIT
A
Form
of Notes
[Face of
Note]
7½ % Senior Subordinated Notes due 2017
7½ % Senior Subordinated Notes due 2017
ISIN No.
|
C$_____________
|
CUSIP No.:
|
|
IRON MOUNTAIN NOVA SCOTIA FUNDING
COMPANY
promises to pay to ___________ or registered
assigns, the principal sum of _________ Canadian Dollars on March 15,
2017.
Interest Payment Dates: March 15 and
September 15
Record Dates: March 1 and September
1
Dated: __________, 00___
|
XXXX XXXXXXXX
XXXX
XXXXXX FUNDING COMPANY
|
|
By:___________________________
|
|
Name:
|
|
Title:
|
|
By:
___________________________
|
|
Name:
|
|
Title
|
(SEAL)
This is one of the Notes
referred to in the within-
mentioned Indenture:
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
referred to in the within-
mentioned Indenture:
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
By:
______________________
Authorized
Signatory
A-1
7½% Senior Subordinated Notes due 2017
[Insert
Global
Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert
Private
Placement Legend, if applicable pursuant to the provisions of the
Indenture]
Capitalized terms used herein shall have
the
meanings assigned to them in the Indenture referred to below unless otherwise
indicated.
1.
INTEREST. Iron Mountain Nova Scotia Funding Company, a Nova Scotia
unlimited liability company (the “Issuer”) promises to pay interest on the
principal amount of this Note at 7½% per annum from __________ until maturity
and shall pay the Additional Interest, if any, payable pursuant to Section
5 of
the Registration Rights Agreement referred to below. The Issuer shall pay
interest and Additional Interest, if any, semi-annually in arrears, on _______
and ________ of each year, or if any such day is not a Business Day, on the
next
succeeding Business Day (each an “Interest Payment Date”). Interest on the
Notes will accrue from the most recent date to which interest has been paid
or,
if no interest has been paid, from the date of issuance; provided that if
there is no existing Default in the payment of interest, and if this Note
is
authenticated between a record date referred to on the face hereof and the
next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the
first Interest Payment Date shall be _________, 20___. The Issuer shall
pay interest (including post-petition interest to the extent allowed in any
proceeding under any Bankruptcy Law) on overdue principal from time to time
on
demand at a rate equal to the per annum rate on the Notes then in effect;
it
shall pay interest (including post-petition interest to the extent allowed
in
any proceeding under any Bankruptcy Law) on overdue installments of interest
and
Additional Interest, if any (without regard to any applicable grace periods),
from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2.
METHOD OF PAYMENT. The Issuer will pay principal, premium,
Additional Interest and Additional Tax Amounts, if any, and interest on the
Notes in Canadian dollars. The Issuer, however, may pay principal,
premium, Additional Interest and Additional Tax Amounts, if any, and interest
by
check payable in such money. It may mail an interest check to a Holder’s
registered address.
3.
PAYING AGENT, REGISTRAR AND SERVICE AGENT. Initially, The Bank of
New York Trust Company, N.A., the Trustee under the Indenture, will act as
paying agent, registrar and service agent. The Issuer has appointed BNY
Trust Company of Canada as a sub-paying agent for the Notes. The Notes may
be presented for registration of transfer and exchange at the offices of
the
registrar. The Issuer or Iron Mountain Incorporated, a Delaware
corporation (the “Company”), may change any paying agent, sub-paying agent,
service agent or registrar without notice to any Holder. The Company or any
of
its Subsidiaries may act in any such capacity.
4.
INDENTURE. The Issuer issued the Notes under an Indenture dated as
of December 30, 2002 (the “Base Indenture”), as supplemented by a Sixth
Supplemental Indenture dated as of March 15, 2007 (the “Sixth Supplemental
Indenture” and, together with the Base Indenture, the “Indenture”), among the
Issuer, the Guarantors and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (15 U.S. Code
§§ 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern
and be
controlling. The Notes issued under the Indenture are subordinated
unsecured obligations
A-2
of the Issuer limited
to
C$175,000,000 in aggregate principal amount, plus amounts, if any, issued
to pay
Additional Interest on outstanding Notes as set forth in Paragraph 20
hereof.
(a) Prior to March 15,
2012, the Notes shall be subject to redemption at any time at the option
of the
Issuer, in whole or in part, upon not less than 10 nor more than 60 days’
notice, at the CAD Make-Whole Price, plus accrued and unpaid interest and
Additional Interest and Additional Tax Amounts, if any, to but excluding
the
applicable redemption date. On and after March 15, 2012, the Notes
will be subject to redemption at any time at the option of the Issuer, in
whole
or in part, upon not less than 10 nor more than 60 days’ notice, at the
redemption price (expressed as percentages of principal amount) set forth
below,
plus accrued and unpaid interest and Additional Interest and Additional Tax
Amounts, if any, to but excluding the applicable redemption date, if redeemed
during the twelve-month period beginning on March 15 of the years indicated
below:
Year
|
Percentage
|
|
|
2012
|
103.750%
|
2013
|
102.500%
|
2014
|
101.250%
|
2015
and thereafter
|
100.000%
|
|
|
Notwithstanding the foregoing, at any time
prior to March 15, 2010 the Issuer may on any one or more occasions redeem
the Notes at a redemption price of 107.500% of the principal amount thereof,
plus accrued and unpaid interest, and Additional Interest and Additional
Tax
Amounts, if any, to the redemption date, with the net cash proceeds of one
or
more Qualified Equity Offerings; provided that (i) at least C$115.0
million in the aggregate principal amount of the Notes (including any Additional
Notes) issued under the Indenture remains outstanding immediately after the
occurrence of such redemption (excluding Notes held the Company, and the
Company’s Subsidiaries) and (ii) the redemption must occur within six months of
the date of the closing of any such Qualified Equity Offering.
(b) The Issuer may redeem
the Notes, in whole but not in part, at its discretion at any time upon giving
not less than 10 nor more than 60 days’ prior notice to the Holders (which
notice will be irrevocable and given in accordance with the procedures described
in Section 10.2 of the Indenture), at a redemption price equal to the principal
amount thereof, together with accrued and unpaid interest, if any, to the
date
fixed by the Issuer for redemption, (the “Tax Redemption Date”), and all
Additional Tax Amounts (if any) then due and which will become due on the
Tax
Redemption Date as a result of the redemption or otherwise (and in the case
of
Notes that are in physical, certificated form, subject to the right of Holders
on the relevant record date to receive interest due on the relevant Interest
Payment Date and Additional Tax Amounts (if any) in respect thereof), if
on the
next date on which any amount would be payable in respect of the Notes, the
Issuer has or would be required to pay Additional Tax Amounts, and the Issuer
cannot avoid any such payment obligation taking reasonable measures available,
as a result of:
(i) any change
in, or amendment to, the laws or treaties (or any regulations, or rulings
promulgated thereunder) of the relevant Tax Authority affecting Taxation
which
becomes effective on or after March 15, 2007 (or, if the relevant Tax
Authority has changed since March 15, 2007, the date on which the then
current Tax Authority became the applicable Tax Authority under the Indenture);
or
(ii) any
change in, or amendment to, the existing official position or the introduction
of an official position regarding the application, administration or
interpretation of such laws, treaties,
A-3
regulations
or rulings (including a holding, judgment or order by a court of competent
jurisdiction or a change in published practice), and becomes effective on
or
after March 15, 2007 (or, if the relevant Tax Authority has changed since
March 15, 2007, the date on which the then current Tax Authority became the
applicable Tax Authority under the Indenture).
The Issuer will not give any such notice
of
redemption earlier than 90 days prior to the earliest date on which the
Issuer would be obligated to make such payment or withholding if a payment
in
respect of the Notes were then due. Prior to the publication or, where
relevant, mailing of any notice of redemption of the Notes pursuant to the
foregoing, the Issuer will deliver to the Trustee (a) an Officers’
Certificate to the effect that the Issuer cannot avoid such obligation to
pay
Additional Tax Amounts by taking reasonable measures available to it and
(b) an Opinion of Counsel to the effect that the Issuer will be obligated
to pay Additional Tax Amounts as a result of an event described above.
6.
ADDITIONAL TAX AMOUNTS. The Issuer and the Guarantors will pay to
the Holders of the Notes any Additional Tax Amounts as may become payable
under
Section 4.20 of the Indenture.
7.
NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
10 days but not more than 60 days before the redemption date to each Holder
of
the Notes to be redeemed at its registered address. For Notes which are
represented by global certificates held on behalf of the Depository, notices
may
be given by delivery of the relevant notices to the Depository for communication
to entitled account holders in substitution for the aforesaid publication.
The Notes in denominations larger than C$1,000 may be redeemed in part but
only
in integral multiples of C$1,000, unless all the Notes held by a Holder are
to
be redeemed. In the event of a redemption of less than all of the Notes,
the Notes will be chosen for redemption by the Trustee in accordance with
the
Indenture. On and after the redemption date, interest ceases to accrue on
the Notes or portions of them called for redemption.
If
this Note is
redeemed subsequent to a Record Date with respect to any Interest Payment
Date
specified above and on or prior to such Interest Payment Date, then any accrued
interest will be paid to the Person in whose name this Note is registered
at the
close of business on such Record Date.
8.
MANDATORY REDEMPTION. Except as set forth in paragraph 9 below, the
Issuer shall not be required to repurchase or to make mandatory redemption
payments with respect to the Notes. There are no sinking fund payments
with respect to the Notes.
9.
REPURCHASE AT OPTION OF HOLDER. This Note is subject to purchase at
the option of the Holder upon the circumstances set forth in Sections 3.10,
4.17
and 4.18 of the Indenture.
10.
SUBORDINATION. The payment of the principal of, interest on, and
Additional Interest and Additional Tax Amounts or any other amounts due on
the
Notes is subordinated in right of payment to all existing and future Senior
Debt
of the Issuer and the Company, as described in the Indenture. Each Holder,
by accepting a Note, agrees to such subordination and authorizes and directs
the
Trustee on its behalf to take such action as may be necessary or appropriate
to
effectuate the subordination so provided and appoints the Trustee as its
attorney-in-fact for such purpose.
11.
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in minimum denominations of C$1,000 and integral multiples
of
C$1,000 in excess thereof. The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Issuer may require a Holder to
pay
any taxes and fees required by law or permitted by the Indenture. The
Issuer need not exchange or register the
A-4
transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion
of
any Note being redeemed in part. Also, the Issuer need not exchange or
register the transfer of any Notes for a period of 15 days before a selection
of
Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
12.
PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
13.
AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture with respect to the Notes or the Notes may be amended or
supplemented with the consent of, and any existing default or event of default
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of: (A) Holders of a majority in aggregate principal amount
at
stated maturity of the Notes (with respect to matters requiring only the
consent
of such Holders) or (B) holders of a majority in aggregate principal amount
at stated maturity of (1) the Notes, (2) the 8 5/8% Notes, the 7 3/4%
Notes, the 7 1/4% Notes, the 6 5/8% Notes, the 8 3/4% Notes, the 8% Notes
and
the 6 3/4% Notes (the “Previously Issued Notes”), if the holders of the
Previously Issued Notes are being requested to consent to such action with
respect to the terms of the Previously Issued Notes or the indentures under
which the Previously Issued Notes were issued, and (3) any other issue or
series of notes issued or guaranteed by the Company that rank pari passu
with the Company Guarantee of the Notes, if such notes or guarantee the
indenture pursuant to which such notes were issued both (i) require the
consent of the holders of such notes to such action and (ii) provide that
the such holders will vote with the Holders of the Notes and the other
securities referenced above with respect to such action. Without the
consent of any Holder of the Notes, the Indenture with respect to the Notes
or
the Notes may be amended or supplemented to, in addition to other events
more
fully described in the Indenture, cure any ambiguity, defect or inconsistency,
provide for uncertificated Notes in addition to or in place of certificated
Notes, provide for the assumption of the Issuer’s obligations to Holders of the
Notes in the case of a merger or consolidation, make any change that would
provide any additional rights or benefits to the Holders of the Notes or
that
does not adversely affect the legal rights under the Indenture of any such
Holder, or comply with requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the TIA.
14.
DEFAULTS AND REMEDIES. An Event of Default with respect to the
Notes occurs upon the occurrence of any of the following events: the default
for
30 days in the payment when due of interest on the Notes or Additional Interest
or Additional Tax Amounts, if any (whether or not prohibited by the
subordination provisions of the Indenture); the default in payment when due
of
the principal of or premium, if any, on the Notes (whether or not prohibited
by
the subordination provisions of the Indenture); the failure by the Issuer
to
comply with Section 4.18 of the Indenture; the failure by the Issuer or any
Guarantor for 60 days after written notice from the Trustee or Holders of
not
less than 25% of the aggregate principal amount of the Notes (including
Additional Notes, if any) outstanding to comply with any of its other agreements
in the Indenture, Notes, or the Note Guarantees; the default under any mortgage,
indenture or instrument under which there may be issued or by which there
may be
secured or evidenced any Indebtedness for money borrowed by the Company or
any
of its Restricted Subsidiaries (or the payment of which is guaranteed by
the
Company or any of its Restricted Subsidiaries) whether such Indebtedness
or
guarantee exists on the date of the Indenture or is created thereafter, if:
(i)
such default results in the acceleration of such Indebtedness prior to its
express maturity or shall constitute a default in the payment of such
Indebtedness at final maturity of such Indebtedness; and (ii) the principal
amount of any such Indebtedness that has been accelerated or not paid at
maturity, when added to the aggregate principal amount of all other such
Indebtedness that has been accelerated or not paid at maturity, exceeds $50.0
million; the failure by the Company or any of its Restricted Subsidiaries
to pay
final judgments aggregating in excess of $50.0 million, which judgments remain
unpaid, undischarged or unstayed for a period of 60 days; certain events
of
bankruptcy or insolvency with respect to the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary; or except as permitted by
the
Indenture, the Note Guarantees, any Note Guarantee issued by the Company
or a
Restricted Subsidiary shall be held in any
A-5
judicial proceeding to
be
unenforceable or invalid or shall cease for any reason to be in full force
and
effect, or the Company or any Restricted Subsidiary or any Person acting
on
behalf of the Company or any Restricted Subsidiary shall deny or disaffirm
in
writing its obligations under its Note Guarantee.
If
any Event of
Default occurs and is continuing, the Trustee or the Holders of at least
25% in
principal amount of the then outstanding Notes (including Additional Notes,
if
any) may declare all the Notes to be due and payable immediately;
provided, however, that if any Obligation with respect to Senior
Bank Debt is outstanding pursuant to the Credit Agreement upon a declaration
of
acceleration of the Notes, the principal, premium or Additional Tax Amounts,
if
any, and interest on the Notes will not be payable until the earlier of:
(1) the
day which is five business days after written notice of acceleration is received
by the Issuer and the Credit Agent; or (2) the date of acceleration of the
Indebtedness under the Credit Agreement. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy
or
insolvency with respect to the Company or any Restricted Subsidiary that
is a
Significant Subsidiary, the principal of, and premium and Additional Interest
and Additional Tax Amounts, if any, and any accrued and unpaid interest on
all
outstanding Notes will become due and payable without further action or
notice. In the event of a declaration of acceleration of the Notes because
an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness described in Section 6.1(e) of the Indenture,
the declaration of acceleration of the Notes shall be automatically annulled
if
the holders of any Indebtedness described in such section have rescinded
the
declaration of acceleration in respect of such Indebtedness within 30 days
from the date of such declaration and if: (1) the annulment of the acceleration
of the Notes would not conflict with any judgment or decree of a competent
jurisdiction; and (2) all existing Events of Default, except non-payment
of
principal or interest on the Notes that became due solely because of the
acceleration of the Notes, have been cured or waived.
Subject
to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of the Notes notice of any continuing Default
or Event of Default (except a Default or Event of Default relating to the
payment of principal, interest, Additional Interest or Additional Tax Amounts
if
it determines that withholding notice is in their interest). The Issuer is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Issuer is required, upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default and what action the Issuer is taking or
proposes to take thereto.
15.
THE NOTE GUARANTEES. Payment of principal of, premium or Additional
Tax Amounts, if any, and interest (including interest on overdue principal,
if
any, and interest, if lawful) on the Notes is guaranteed on an unsecured,
senior
subordinated basis by the Guarantors pursuant to Article XII of the
Indenture.
16.
RELEASE OF GUARANTEES AND GUARANTORS. If (1) the Company sells
or otherwise disposes, by way of a merger, consolidation or otherwise, all
the
capital stock or all or substantially all of the assets of the Issuer to
an
unaffiliated third party, (2) the Note Guarantees (and, in the case of the
disposition of all or substantially all of the assets of the Issuer, the
Notes)
are assumed by such third party and (3) the Company elects to make an
irrevocable offer for all of each Holder's notes at an offer price in cash
equal
to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest to but excluding the date of repurchase, and Additional Interest
and
Additional Tax Amounts, if any, then the Company and the Subsidiary Guarantors
will be unconditionally released and relieved of any obligations under the
Note
Guarantees and the Indenture with respect to the Notes (and, in the case
of the
disposition of all or substantially all of the assets of the Issuer, the
Issuer
will also be released and relieved of any obligations in respect of the Notes).
The Company shall not be obligated to make such offer. Any such offer, if
made,
will be made substantially on the terms and conditions applicable to an offer
under Section 4.18 of the Indenture.
A-6
The release of the Company and the Subsidiary Guarantors (and, in the case
of
the disposition of all or substantially all of the assets of the Issuer,
the
Issuer) will be subject to the satisfaction of the following additional
conditions: (a) such third party must be a corporation organized or
existing under the laws of the United States, any state thereof or the District
of Columbia, or of Canada or any province thereof, (b) such third party
must have assumed all the obligations of the Company and the Subsidiary
Guarantors under the Note Guarantees and the Indenture with respect to the
Notes
(and, in the case of the disposition of all or substantially all of the assets
of the Issuer, the third party must also have assumed the obligations of
the
Issuer in respect of the Notes) pursuant to a supplemental indenture in a
form
reasonably satisfactory to the Trustee, (c) immediately after such
acquisition, no Default or Event of Default exists, and (d) such third
party will, at the time of such acquisition and giving effect thereto, be
permitted to incur at least $1.00 of additional indebtedness pursuant to
the
test set forth in the first paragraph of Section 4.9 of the Indenture.
17.
TRUSTEE DEALINGS WITH ISSUER. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Issuer
or its
Affiliates, as if it were not the Trustee.
18.
NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder, as such, of the Issuer or
any
Guarantor shall have any liability for any obligations of the Issuer or any
Guarantor under the Notes, the Note Guarantees or the Indenture or for any
claim
based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Note and the related Note Guarantees
waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
19.
AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
20. ADDITIONAL
RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE
NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Definitive
Notes will have all the rights set forth in the Registration Rights Agreement
dated as of March 15, 2007, among the Issuer, the Guarantors and the other
parties named on the signature pages thereof or, in the case of Additional
Notes, Holders of Restricted Global Notes and Restricted Definitive Notes
will
have the rights set forth in one or more registration rights agreements,
if any,
among the Issuer, the Guarantors and the other parties thereto, relating
to
rights given by the Issuer and the Guarantors to the purchasers of any
Additional Notes (collectively, the “Registration Rights
Agreement”).
21.
ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform
Gifts
to Minors Act).
22.
CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or
as
contained in any notice of redemption and reliance may be placed only on
the
other identification numbers placed thereon.
A-7
The Issuer shall furnish to any Holder upon
written request and without charge a copy of the Indenture and the Registration
Rights Agreement. Requests may be made to:
Iron Mountain Nova Scotia Funding
Company
c/o Iron Mountain Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
c/o Iron Mountain Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
A-8
ASSIGNMENT
FORM
To assign this Note, fill in the
form
below: (I) or (we) assign and transfer this Note
to
(Insert assignee’s soc. sec. or tax I.D. no.)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: __________
Your Signature:
(Sign exactly as your name appears on the face of this Note)
(Sign exactly as your name appears on the face of this Note)
A-9
OPTION
OF
HOLDER TO ELECT PURCHASE
If you want to elect to have this Note
purchased by the Issuer pursuant to Section 4.17 or 4.18 of the Indenture,
check
the box below:
o
Section 4.17
o Section
4.18
If you want to elect to have only part of
the
Note purchased by the Issuer pursuant to Section 4.17 of the Indenture, state
the amount you elect to have purchased: $__________
Date: __________
|
Your
Signature:_____________________________
|
|
(Sign exactly as your name appears
on the
Note)
|
|
|
|
Tax Identification
No.:_______________________
|
A-10
EXHIBIT
B
FORM
OF
CERTIFICATE OF TRANSFER
Iron Mountain
Nova Scotia Funding Company
c/o Iron Mountain Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
c/o Iron Mountain Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
[Registrar address block]
Re: Iron Mountain Nova Scotia
Funding Company 7½% Senior Subordinated Notes due 2017
Reference is hereby made to the Senior
Subordinated Indenture, dated as of December 30, 2002, between Iron Mountain
Incorporated and the Bank of New York Trust Company, N.A., as successor
trustee
(the “Trustee”) (the “Base Indenture” and, as supplemented by the
Sixth Supplemental Indenture, dated as of March 15, 2007, by and among
Iron
Mountain Nova Scotia Funding Company (the “Issuer”), the Guarantors party
thereto and the Trustee, the “Indenture”), and the Indenture. Capitalized
terms used but not defined herein shall have the meanings given to them
in the
Indenture.
___________________, (the “Transferor”)
owns and proposes to transfer the Note[s] or interest in such Note[s] specified
in Annex A hereto, in the principal amount of $___________ in such Note[s]
or
interests (the “Transfer”), to ___________________________ (the
“Transferee”), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
(1) o
Check
if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Restricted Definitive Note pursuant to Rule 144A.
The Transfer is being effected pursuant to and in accordance
with Rule 144A
under the Securities Act of 1933, as amended (the “Securities Act”), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive
Note for
its own account, or for one or more accounts with respect to which such
Person
exercises sole investment discretion, and such Person and each such account
is a
“qualified institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance
with
any applicable blue sky securities laws of any state of the United States.
Upon consummation of the proposed Transfer in accordance with the terms
of the
Indenture, the transferred beneficial interest or Definitive Note will
be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive
Note and
in the Indenture and the Securities Act.
(2) o
Check
if Transferee will take delivery of a beneficial interest in the Regulation
S
Global Note or a Restricted Definitive Note pursuant to Regulation
S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being
made
to a Person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor
and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed
in,
on or through the facilities of a designated offshore securities market
and
neither such Transferor nor any Person acting on its behalf knows that
the
transaction was prearranged with a buyer in the United States, (ii) no
directed
B-1
selling efforts have
been
made in contravention of the requirements of Rule 903(b) or Rule 904(b)
of
Regulation S under the Securities Act and, (iii) the transaction is not
part of
a plan or scheme to evade the registration requirements of the Securities
Act
and (iv) if the proposed transfer is being made prior to the expiration
of the
Restricted Period, the transfer is not being made to a U.S. Person or for
the
account or benefit of a U.S. Person (other than an Initial Purchaser).
Upon consummation of the proposed transfer in accordance with the terms
of the
Indenture, the transferred beneficial interest or Definitive Note will
be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note, and/or the Restricted Definitive
Note and in the Indenture and the Securities Act.
(3) o
Check
and complete if Transferee will take delivery of a beneficial interest
in the
IAI Global Note or a Restricted Definitive Note pursuant to any provision
of the
Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities
Act and
any applicable blue sky securities laws of any state of the United States,
and
accordingly the Transferor hereby further certifies that (check one):
(a)
o
such Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act;
or
(b)
o
such
Transfer is being effected to the Company or a subsidiary thereof;
or
(c)
o
such
Transfer is being effected pursuant to an effective registration statement
under
the Securities Act and in compliance with the prospectus delivery requirements
of the Securities Act;
or
(d)
o
such
Transfer is being effected to an Institutional Accredited Investor and
pursuant
to an exemption from the registration requirements of the Securities Act
other
than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general solicitation within
the
meaning of Regulation D under the Securities Act and the Transfer complies
with
the transfer restrictions applicable to beneficial interests in a Restricted
Global Note or Restricted Definitive Notes and the requirements of the
exemption
claimed, which certification is supported by a certificate executed by
the
Transferee in the form of Exhibit D to the Indenture, to the effect that
such
Transfer is in compliance with the Securities Act. Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on
the IAI Global Note and/or the Restricted Definitive Notes and in the Indenture
and the Securities Act.
(4) o
Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.
(a) o
Check
if
Transfer is pursuant to Rule 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities
Act
and in compliance with the transfer
B-2
restrictions contained
in
the Indenture and any applicable blue sky securities laws of any state
of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(b) oCheck
if
Transfer is Pursuant to Regulation S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under
the
Securities Act and in compliance with the transfer restrictions contained
in the
Indenture and any applicable blue sky securities laws of any state of the
United
States and (ii) the restrictions on transfer contained in the Indenture
and the
Private Placement Legend are not required in order to maintain compliance
with
the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest
or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) o
Check
if
Transfer is Pursuant to Other Exemption. (i) The Transfer is
being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule
903 or
Rule 904 and in compliance with the transfer restrictions contained in
the
Indenture and any applicable blue sky securities laws of any State of the
United
States and (ii) the restrictions on transfer contained in the Indenture
and the
Private Placement Legend are not required in order to maintain compliance
with
the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest
or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained
herein are made for your benefit and the benefit of the Issuer.
|
__________________________________
[Insert
Name
of Transferor]
|
|
By:____________________________
|
|
Name:
|
|
Title:
|
Dated: _______________________
B-3
ANNEX
A TO
CERTIFICATE OF TRANSFER
1.
The Transferor owns and proposes to transfer
the following:
[CHECK
ONE OF
(a) OR (b)]
(a) o
a
beneficial
interest in the:
(i) o
144A Global Note
(CUSIP _________), or
(ii) o
Regulation
S
Global Note (CUSIP _________), or
(iii)
o IAI
Global Note (CUSIP _________); or
(b) o
a Restricted Definitive
Note.
2.
After the Transfer the Transferee will
hold:
[CHECK
ONE]
(a) o
a
beneficial
interest in the:
(i) o
144A
Global Note
(CUSIP _________), or
(ii) o
Regulation
S
Global Note (CUSIP _________), or
(iii)
o IAI Global
Note (CUSIP _________); or
(iv) o
Unrestricted
Global Note (CUSIP _________); or
(b) o
a
Restricted
Definitive Note; or
(c) o
an
Unrestricted
Definitive Note,
in accordance with
the
terms of the Indenture.
B-4
EXHIBIT
C
FORM
OF
CERTIFICATE OF EXCHANGE
Iron Mountain
Nova Scotia Funding Company
c/o Iron Mountain Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
c/o Iron Mountain Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
[Registrar address block]
Re: Iron Mountain Nova Scotia
Funding Company 7½% Senior Subordinated Notes due 2017
(CUSIP ____________)
Reference is hereby made to the Senior
Subordinated Indenture, dated as of December 30, 2002, between Iron Mountain
Incorporated and the Bank of New York Trust Company, N.A., as successor
trustee
(the “Trustee”) (the “Base Indenture” and as supplemented by the
Sixth Supplemental Indenture, dated as of March 15, 2007, by and among
Iron
Mountain Nova Scotia Funding Company (the “Issuer”), the Guarantors party
thereto and the Trustee (the “Indenture”)) and the Indenture. Capitalized
terms used but not defined herein shall have the meanings given to them
in the
Indenture.
__________________________, (the
“Owner”) owns and proposes to exchange
the Note[s] or interest in such
Note[s] specified herein, in the principal amount of $____________ in such
Note[s] or interests (the “Exchange”). In connection with the
Exchange, the Owner hereby certifies that:
1.
Exchange of Restricted Definitive
Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests
in an Unrestricted Global Note
(a) o
Check
if
Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note. In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note for a
beneficial interest in an Unrestricted Global Note in an equal principal
amount,
the Owner hereby certifies (i) the beneficial interest is being acquired
for the
Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes
and
pursuant to and in accordance with the Securities Act of 1933, as amended
(the
“Securities Act”), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain
compliance with the Securities Act and (iv) the beneficial interest in
an
Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) oCheck
if
Exchange is from beneficial interest in a Restricted Global Note to Unrestricted
Definitive Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired
for
the Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted
Global
Notes and pursuant to and in accordance with the Securities Act, (iii)
the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act
and (iv) the Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
C-1
(c) o
Check
if
Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is
being
acquired for the Owner’s own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is
being
acquired in compliance with any applicable blue sky securities laws of
any state
of the United States.
(d) o
Check
if
Exchange is from Restricted Definitive Note to Unrestricted Definitive
Note. In connection with the Owner’s Exchange of a Restricted
Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i) the Unrestricted Definitive Note is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes
and
pursuant to and in accordance with the Securities Act, (iii) the restrictions
on
transfer contained in the Indenture and the Private Placement Legend are
not
required in order to maintain compliance with the Securities Act and (iv)
the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2.
Exchange of Restricted Definitive
Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) o
Check
if
Exchange is from beneficial interest in a Restricted Global Note to Restricted
Definitive Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note
with an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner’s own account without
transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will
continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) o
Check
if
Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the
Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
o 144A Global Note, o Regulation S Global Note, o IAI Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial
interest
issued will be subject to the restrictions on transfer enumerated in the
Private
Placement Legend printed on the relevant Restricted Global Note and in
the
Indenture and the Securities Act.
This certificate and the statements contained
herein are made for your benefit and the benefit of the Issuer.
C-2
|
__________________________________
[Insert
Name
of Transferor]
|
|
By:____________________________
|
|
Name:
|
|
Title:
|
Dated: ______________________
C-3
EXHIBIT
D
FORM
OF
CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Iron Mountain
Nova Scotia Funding Company
c/o Iron Mountain Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
c/o Iron Mountain Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
[Registrar address block]
Re: Iron Mountain Nova Scotia
Funding Company 7½% Senior Subordinated Notes due 2017
Reference is hereby made to the Senior
Subordinated Indenture, dated as of December 30, 2002, between Iron Mountain
Incorporated and the Bank of New York Trust Company, N.A., as successor
trustee
(the “Trustee”) (the “Base Indenture” and as supplemented by the
Sixth Supplemental Indenture, dated as of March 15, 2007, by and among
Iron
Mountain Nova Scotia Funding Company (the “Issuer”), the Guarantors party
thereto and the Trustee (the “Indenture”)) and the Indenture. Capitalized
terms used but not defined herein shall have the meanings given to them
in the
Indenture.
In connection with our proposed purchase
of
$____________ aggregate principal amount of:
(a) o
a
beneficial
interest in a Global Note, or
(b) o
a
Definitive
Note,
we confirm that:
1.
We understand that any subsequent transfer
of the Notes or any interest therein
is subject to certain restrictions and conditions set forth in the Indenture
and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended
(the
“Securities Act”).
2.
We understand that the offer and sale
of the Notes have not been registered
under the Securities Act, and that the Notes and any interest therein may
not be
offered or sold except as permitted in the following sentence. We agree,
on our own behalf and on behalf of any accounts for which we are acting
as
hereinafter stated, that if we should sell the Notes or any interest therein,
we
will do so only (A) to the Issuer or any subsidiary thereof, (B) in accordance
with Rule 144A under the Securities Act to a “qualified institutional buyer” (as
defined therein), (C) to an institutional “accredited investor” (as defined
below) that, prior to such transfer, furnishes (or has furnished on its
behalf
by a U.S. broker-dealer) to you and to the Issuer a signed letter substantially
in the form of this letter, (D) outside the United States in accordance
with
Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further
agree
to provide to any Person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that
resales
thereof are restricted as stated herein.
D-1
3.
We understand that, on any proposed resale
of the Notes or beneficial interest
therein, we will be required to furnish to you and the Issuer such
certifications, legal opinions and other information as you and the Issuer
may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.
4.
We are an institutional “accredited investor” (as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act) and have such
knowledge and experience in financial and business matters as to be capable
of
evaluating the merits and risks of our investment in the Notes, and we
and any
accounts for which we are acting are each able to bear the economic risk
of our
or its investment.
5.
We are acquiring the Notes or beneficial
interest therein purchased by us for
our own account or for one or more accounts (each of which is an institutional
“accredited investor”) as to each of which we exercise sole investment
discretion.
You and the Issuer are entitled to rely
upon
this letter and are irrevocably authorized to produce this letter or a
copy
hereof to any interested party in any administrative or legal proceedings
or
official inquiry with respect to the matters covered hereby.
|
__________________________________
[Insert
Name
of Accredited Investor]
|
|
By:____________________________
|
|
Name:
|
|
Title:
|
Dated: _______________________
D-2
EXHIBIT
E
Form
of Supplemental Indenture
To Be Delivered By Future Guarantors
To Be Delivered By Future Guarantors
Supplemental Indenture (this “Supplemental
Indenture”), dated as of ________________, 20__, among _______________ (the
“Guaranteeing Subsidiary”), a subsidiary of Iron Mountain Incorporated
(or its successor), a Delaware corporation (the “Company”), Iron Mountain
Nova Scotia Funding Company (or its successor), a Nova Scotia unlimited
liability company, and The Bank of New York Trust Company, N.A., a national
banking association, as trustee under the Indenture referred to below (the
“Trustee”).
1.
CAPITALIZED TERMS. Capitalized terms used herein
without definition
shall have the meanings assigned to them in the Indenture.
2.
AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees
that its obligations to the Holder and the Trustee pursuant to this Subsidiary
Guarantee shall be as expressly set forth in Article XII of the Indenture
and in
such other provisions of the Indenture as are applicable to the Guarantors
(including, without limitation, Article XIII of the Indenture), and reference
is
made to the Indenture for the precise terms of this Supplemental
Indenture. The terms of Article XII of the Indenture and such other
provisions of the Indenture (including, without limitation, Article XIII
of the
Indenture) as are applicable to the Guarantors are incorporated herein
by
reference.
3.
EXECUTION AND DELIVERY OF SUBSIDIARY
GUARANTEES.
(a)
If an Officer whose signature is on this
Supplemental Indenture no longer holds
that office at the time the Trustee authenticates the Note, the Subsidiary
Guarantee shall be valid nevertheless.
(b)
The delivery of any Note by the Trustee,
after the authentication thereof under
the Indenture, shall constitute due delivery of the Subsidiary Guarantee
set
forth in this Supplemental Indenture on behalf of the Guaranteeing
Subsidiary.
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4.
NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Guaranteeing Subsidiary,
as such, shall have any liability for any obligations of the Issuer or
any
Guarantor (including the Guaranteeing Subsidiary) under the Notes, any
Subsidiary Guarantee, the Indenture or this Supplemental Indenture or for
any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration
for issuance of the Notes.
5.
NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE
OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
6.
COUNTERPARTS. The parties may sign any number
of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
7.
EFFECT OF HEADINGS. The Section headings herein are
for convenience
only and shall not affect the construction hereof.
8.
THE TRUSTEE. The Trustee shall not be responsible
in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of
which
recitals are made solely by the Guaranteeing Subsidiary and the Issuer.
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Dated: _______________, 20___
[
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Guaranteeing
Subsidiary]
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By:_______________________________________
Name:
Title:
|
|
|
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[Issuer]
|
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By:_______________________________________
|
|
Name:
|
|
Title:
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|
|
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[Trustee],
as Trustee
|
|
|
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By:_______________________________________
|
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Authorized
Signatory
|
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