AMENDMENT XX. 0
XXXXXXXXX XX. 0 (this "Agreement") dated as of February 26,
1999 among IRON MOUNTAIN INCORPORATED, a Delaware corporation (the "Company");
each of the lenders (the "Lenders") listed on the signature pages hereof; and
THE CHASE MANHATTAN BANK, as administrative agent for the Lenders under the
Credit Agreement referred to below (in such capacity, the "Administrative
Agent").
The Company, the Lenders and the Administrative Agent are
parties to a Second Amended and Restated Credit Agreement dated as of September
26, 1997 (as from time to time amended, the "Credit Agreement"), providing,
subject to the terms and conditions thereof, for extensions of credit (by the
making of loans and the issuing of letters of credit) by the Lenders to the
Company in an aggregate principal or face amount not exceeding $250,000,000. The
Company has requested the Lenders to amend the Credit Agreement in certain
respects, and the Lenders are willing to so amend the Credit Agreement, all on
the terms and conditions set forth herein.
Accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Agreement, terms defined in the Credit Agreement are used herein as defined
therein.
Section 2. Amendments. Subject to (i) the Administrative
Agent's receipt of counterparts of this Agreement, duly executed by each of the
Company, the Majority Lenders and the Administrative Agent, (ii) the written
consent and agreement hereto by the Subsidiary Guarantors as provided at the
foot hereof and (iii) payment by the Company to the Administrative Agent of such
fees as the Company shall have agreed to pay in connection herewith, but
effective as of the date hereof, the Credit Agreement is hereby amended as
follows:
A. Definitions. Section 1.01 of the Credit Agreement is
amended by inserting the following definitions in their appropriate alphabetical
locations (or, in the case of any definition for a term that is defined in the
Credit Agreement before giving effect to this Agreement, by amending and
restating such definition to read as set forth below):
"1999 Senior Subordinated Debt" shall mean Indebtedness of the
Company in an aggregate principal amount not exceeding $300,000,000 to
be issued (in one or more offerings) by the Company on or prior to
February 26, 2000 that is (i) subordinated in right of payment to the
obligations of the Company hereunder and under the Notes to at least
the same extent as the 1996 Senior Subordinated Debt and (ii) otherwise
on terms and conditions, and pursuant to documentation, reasonably
satisfactory to the Administrative Agent and the Majority Lenders.
"1999 Senior Subordinated Debt Indenture" shall mean the
indenture among the Company and a trustee to be identified, as the same
may be amended or modified, without prejudice to the provisions of
Section 9.20 hereof, providing for the issuance of the 1999 Senior
Subordinated Debt.
Amendment No. 3
-2-
"Rain Acquisition" shall mean that certain contemplated
Acquisition of the business referred to by the Company as "Rain" and
certain real estate owned by one or more affiliates of Rain, for
Acquisition Consideration consisting of (x) Stock Consideration in an
aggregate amount of up to $50,000,000 (determined in good faith by the
Company at the time of the execution of the acquisition agreements
relating to the Rain Acquisition) and (y) cash in an aggregate amount
of up to $70,000,000.
"Senior Subordinated Debt" shall mean, collectively, the 1996
Senior Subordinated Debt, the 1997 Senior Subordinated Debt and the
1999 Senior Subordinated Debt.
"Senior Subordinated Debt Indentures" shall mean,
collectively, the 1996 Senior Subordinated Debt Indenture, the 1997
Senior Subordinated Debt Indenture and the 1999 Senior Subordinated
Indenture.
B. Letters of Credit. Section 2.08 of the Credit Agreement is
hereby amended by changing the figure "$10,000,000" in clause (ii) thereof
(relating to Letter of Credit Liabilities) to read "$20,000,000".
C. Year 2000. Section 8 of the Credit Agreement is hereby
amended by adding new Section 8.18, to read as follows:
"8.18 Year 2000. The Company has (i) initiated a review and
assessment of all areas within its and each of its Subsidiaries'
business and operations that it reasonably believes would be adversely
affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by the Company or any of its Subsidiaries may be
unable to recognize and perform properly date-sensitive functions
involving certain dates prior to, in and following the year 2000), (ii)
developed a plan for addressing the Year 2000 Problem on a timely
basis, and (iii) initiated implementation of that plan. Based on the
foregoing, the Company believes that any reprogramming or replacements
required to permit the proper functioning, prior to, in and following
the year 2000, of (i) the Company's and each of its Subsidiaries'
material computer systems and (ii) material equipment of the Company
and each of its Subsidiaries containing embedded microchips (including
systems and equipment supplied by others or with which the Company's
and each of its Subsidiaries' systems interface) and the verification
of all such systems and equipment, as so reprogrammed or replaced, as
the case may be, will be completed by September 30, 1999, except that
any such reprogramming, replacement and verification with respect to
systems acquired by the Company in Permitted Acquisitions will be
completed by December 31, 1999. The cost to the Company and each of its
Subsidiaries of such reprogramming or replacement, as the case may be,
and testing and of the reasonably foreseeable consequences of the Year
2000 Problem to the Company and each of its Subsidiaries (including
reprogramming errors and the failure of others' systems or equipment)
will not, in the good faith belief of the Company, result in a Default
or have a Material Adverse Effect."
Amendment No. 3
-3-
D. Indebtedness. Without prejudice to Sections 9.09, 9.10 or
9.11 of the Credit Agreement, clause (iii) of Section 9.08 of the Credit
Agreement is hereby amended to read as follows:
"(iii) 1997 Senior Subordinated Debt in an aggregate
outstanding principal amount not exceeding $300,000,000 and 1999 Senior
Subordinated Debt in an aggregate outstanding principal amount not
exceeding $300,000,000;"
E. Mergers, Asset Dispositions, Etc. Paragraphs (a) and (b) of
Section 9.12 of the Credit Agreement are hereby amended to read as follows:
"(a) Maximum Periodic Consideration. Without the consent of
the Majority Lenders, the aggregate amount of Acquisition Consideration
(including Stock Consideration) paid in respect of Acquisitions shall
not exceed (i) $350,000,000 during the fourth quarter of 1997, provided
that up to $175,000,000 may be carried forward to the first quarter of
1998 solely in conjunction with the contemplated acquisition currently
referred to as the "Toy" acquisition if such acquisition occurs in such
quarter, or (ii) $150,000,000 in any year after 1997, subject to
adjustment as provided in clause (i) herein; provided that the
aggregate amount of Acquisition Consideration excluding Stock
Consideration paid in respect of Acquisitions shall not exceed (x)
$250,000,000 in the fourth quarter of 1997, provided that up to
$125,000,000 may be carried forward to the first quarter of 1998 solely
in conjunction with said "Toy" acquisition if such acquisition occurs
in such quarter, or (y) $100,000,000 in any year after 1997, subject to
adjustment as provided in clause (x) herein; provided further that the
Rain Acquisition shall, so long as (i) no Default has occurred and is
continuing at the time of such Acquisition and (ii) the Rain
Acquisition complies with the requirements of this Section 9.12 (other
than clauses (a) and (b) hereof), (1) be excluded from the limitations
set forth in this clause (a) and be disregarded in determining whether
any other Acquisition in the year 1999 is in compliance with the
applicable Acquisition Consideration limits set forth above and (2) be
deemed to be a "Permitted Acquisition" for all purposes of this
Agreement.
(b) Maximum Individual Consideration. Without the consent of
the Majority Lenders, the Acquisition Consideration (including Stock
Consideration) payable in respect of any single Acquisition or series
of related Acquisitions shall not exceed $65,000,000, provided that
said "Toy" acquisition, the contemplated acquisition currently referred
to as the "Health" acquisition and the Rain Acquisition shall not be
subject to the limitation in this clause (b)."
F. General. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby.
Section 3. Representations and Warranties. The Company hereby
represents and warrants to the Administrative Agent and the Lenders that:
Amendment No. 3
-4-
(a) the representations and warranties made by each of the
Company and the Subsidiary Guarantors in each Basic Document to which
it is a party (other than the representations and warranties set forth
in paragraphs (a) and (b) of Section 8.10 of the Credit Agreement) are
correct on and as of the date hereof, as though made on and as of such
date (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date); and
(b) no event has occurred and is continuing that constitutes a
Default or an Event of Default (and the parties agree that breach of
any of the representations and warranties in this Section 3 shall
constitute an Event of Default under Section 10.01(c) of the Credit
Agreement).
Section 4. Miscellaneous. Except as herein provided, the
Credit Agreement and each of the other Basic Documents shall remain unchanged
and in full force and effect. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
Amendment No. 3
-5-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE COMPANY
IRON MOUNTAIN INCORPORATED
By /s/ X.X. Xxxxxxxx
Name: X.X. Xxxxxxxx
Title: Vice President and Treasurer
THE ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK
By /s/ Xxxxxxx Lancia
Name: Xxxxxxx Lancia
Title: Vice President
THE LENDERS
THE CHASE MANHATTAN BANK
By /s/ Xxxxxxx Lancia
Name: Xxxxxxx Lancia
Title: Vice President
BANKBOSTON, N.A.
By /s/ Xxxxx X. Law
Name: Xxxxx X. Law
Title: Vice President
Amendment Xx. 0
-0-
XXX XXXX XX XXX XXXX
By /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Vice President
CIBC INC.
By /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Executive Director
FLEET NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: First Vice President - Manager
US TRUST
By /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
Amendment No. 3
-7-
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ X. X. Xxxxxxx
Name: X. X. Xxxxxxx
Title: Authorized Signatory
XXXXXX FINANCIAL, INC.
By /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Senior Vice President
NATIONAL CITY BANK
By /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG (f/k/a GIROCREDIT BANK
AG DER SPARKASSEN, GRAND CAYMAN
ISLAND BRANCH)
By /s/ Xxxxxxx Xxxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President
By /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: First Vice President
Amendment No. 3
-8-
CONSENTED TO AND AGREED:
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
DSI TECHNOLOGY ESCROW SERVICES, INC.
IRON MOUNTAIN/SAFESITE, INC.
IRON MOUNTAIN CONSULTING SERVICES, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF SAN XXXXXXX-XX, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF SAN ANTONIO, INC.
CRITERION ATLANTIC PROPERTY, INC.
IM BILLERICA, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF MICHIGAN, INC.
IRON MOUNTAIN SAFE DEPOSIT CORPORATION
NATIONAL UNDERGROUND STORAGE, INC.
IRON MOUNTAIN OF MARYLAND, LLC
ARCUS DATA SECURITY, INC.
HIMSCORP OF PHILADELPHIA, INC.
RECORDKEEPERS, INC.
HIMSCORP OF PITTSBURGH, INC.
HIMSCORP OF CLEVELAND, INC.
HIMSCORP OF NEW ORLEANS, INC.
HIMSCORP OF PORTLAND, INC.
HIMSCORP OF SAN DIEGO, INC.
HIMSCORP OF DETROIT, INC.
HIMSCORP OF LOS ANGELES, INC.
HIMSCORP OF HOUSTON, INC.
IM-AEI ACQUISITION CORPORATION
IRON MOUNTAIN RECORDS MANAGEMENT OF UTAH, INC.
ARCUS STAFFING RESOURCES, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF OHIO, INC.
IRON MOUNTAIN GLOBAL, INC.
ARCUS DATA SECURITY LLC
By /s/ X. X. Xxxxxxxx
Name: X.X. Xxxxxxxx
Title: Vice President and Treasurer
Amendment No. 3
