FIRST AMENDMENT
EXHIBIT 10.1
FIRST AMENDMENT
FIRST AMENDMENT, dated as of November 9, 2004 (the “Amendment”), to the Seventh Amended and Restated Credit Agreement, dated as of July 8, 2004 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among IRON MOUNTAIN INCORPORATED, a Pennsylvania corporation (the “Company”), IRON MOUNTAIN CANADA CORPORATION, a company organized under the laws of the Province of Nova Scotia, the several banks and other financial institutions or entities from time to time parties to the Credit Agreement (the “Lenders”), BANK OF AMERICA, N.A. (formerly known as Fleet National Bank), as syndication agent, WACHOVIA BANK, NATIONAL ASSOCIATION and THE BANK OF NOVA SCOTIA, as co-documentation agents, XXXXXXXX XXXXX XXXX, XXXXXXX BRANCH, as Canadian Administrative Agent, JPMORGAN CHASE BANK, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and X.X. XXXXXX SECURITIES INC., as arranger and bookrunner.
W I T N E S S E T H:
WHEREAS, the Company, the Lenders and the Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Company has requested certain amendments to the Credit Agreement; and
WHEREAS, the Lenders are willing to agree to such amendments, subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the Company, the Lenders and the Administrative Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, all capitalized terms used herein shall have the meanings given to them in the Credit Agreement.
2. Amendment to Section 9.09. Section 9.09 of the Credit Agreement is hereby amended by deleting the table appearing therein in its entirety and substituting in lieu thereof the following new table:
Period |
Consolidated Leverage Ratio |
From June 30, 2004 through December 31, 2005 |
5.25 to 1 |
From January 1, 2006 through June 30, 2006 |
5.00 to 1 |
From July 1, 2006 through December 31, 2006 |
4.75 to 1 |
From January 1, 2007 through December 31, 2007 |
4.50 to 1 |
From January 1, 2008 and thereafter |
4.25 to 1 |
3. Amendment to Section 9.10. Section 9.10 of the Credit Agreement is hereby amended by deleting the table appearing therein in its entirety and substituting in lieu thereof the following new table:
Period |
Domestic Leverage Ratio |
From June 30, 2004 through December 31, 2005 |
5.50 to 1 |
From January 1, 2006 through June 30, 2006 |
5.25 to 1 |
From July 1, 2006 through December 31, 2006 |
5.00 to 1 |
From January 1, 2007 through December 31, 2007 |
4.75 to 1 |
From January 1, 2008 and thereafter |
4.50 to 1 |
4. Representations and Warranties. On and as of the date hereof, the Company hereby confirms, reaffirms and restates the representations and warranties set forth in Section 8 of the Credit Agreement mutatis mutandis, except to the extent that such representations and warranties expressly relate to a specific earlier date in which case the Company hereby confirms, reaffirms and restates such representations and warranties as of such earlier date. The Company represents and warrants that, after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
5. Effectiveness. This Amendment shall become effective as of the date set forth above (the “Effective Date”) upon the satisfaction of the following conditions precedent:
(a) First Amendment. The Administrative Agent shall have received this Amendment executed and delivered by the Administrative Agent, the Company, and Lenders party to the Credit Agreement constituting the “Majority Lenders” thereunder (or, in the case of any Lender, a lender addendum or joinder agreement in a form specified by the Administrative Agent).
(b) Security Documents. The Administrative Agent shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit A hereto, executed and delivered by an authorized officer of the Company, the Canadian Borrower and each Subsidiary Guarantor.
6. Valid and Binding. This Amendment shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.
7. Payment of Expenses. The Company agrees to pay or reimburse the Administrative Agent for all out-of-pocket costs and expenses incurred in connection with the Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the reasonable fees and disbursements of counsel.
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8. Reference to and Effect on the Credit Agreement; Limited Effect. On and after the Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement as amended hereby. This Amendment shall not constitute an amendment of any other provision of the Credit Agreement not expressly referred to herein and shall not be construed as a waiver or consent to any further or future action on the part of the Company that would require a waiver or consent of the Lenders or the Administrative Agent. Except as expressly amended hereby, the provisions of the Credit Agreement are and shall remain in full force and effect.
9. Severability. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
10. Loan Document; Integration. This Amendment shall constitute a Basic Document. This Amendment and the other Basic Documents represent the agreement of the Company, the Canadian Borrower, each Subsidiary Guarantor, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Basic Documents.
11. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12. Counterparts. This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts (which may include counterparts delivered by facsimile transmission), each of which shall be deemed to be an original, and all of which taken together shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
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IRON MOUNTAIN INCORPORATED |
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By: /s/ X.X. Xxxxxxxx Name: X.X. Xxxxxxxx |
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JPMORGAN CHASE BANK, as |
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By: /s/ Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx |
JPMORGAN CHASE BANK, TORONTO BRANCH, as Canadian Administrative Agent and as a Canadian Lender
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By: /s/ Xxxxxxxxx Xxxx Name: Xxxxxxxxx Xxxx |
BANK ONE, NA, as a Lender |
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By: /s/ Xxxxxx X. Xxxxx |
Name: Xxxxxx X. Xxxxx |
Title: Managing Director |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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The Bank of New York |
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By: /s/ Xxxxxxx X. Xxxxxxx, Xx. Name: Xxxxxxx X. Xxxxxxx, Xx. |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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The Bank of Nova Scotia |
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as Canadian Lender |
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By: /s/ Xxxxx Xxxx Name: Xxxxx Xxxx
By: /s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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The Bank of Nova Scotia as US$ Lender |
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By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Managing Director |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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The Bank of Nova Scotia |
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as Multi-Currency Lender |
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By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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The Bank of Nova Scotia |
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as US$-Canadian Lender |
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By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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BEAR XXXXXXX CORPORATE LENDING INC. |
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By: /s/ Xxxxxx Xxxxxxxxxxxx Name: Xxxxxx Xxxxxxxxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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BNP PARIBAS |
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By: /s/ Xxxxx Xxxxxxxxx Name: Xxxxx Xxxxxxxxx
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BNP PARIBAS |
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By: /s/ Shayn March Name: Shayn March |
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Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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CALYON NEW YORK BRANCH |
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By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
By: /s/ Xxx Xxxxx Name: Xxx Xxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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CIBC Inc. |
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By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
CIBC World Markets Corp., as Agent |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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Citizens Bank of Massachusetts |
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By: /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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Fleet National Bank |
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By: /s/ Xxxx X. Xxxxx Name: Xxxx X. Xxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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GENERAL ELECTRIC CAPITAL CORPORATION |
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By: /s/ Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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HSBC Bank USA, National Association |
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By: /s/ Xxxxxxx X. XxXxxxxx Name: Xxxxxxx X. XxXxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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National City Bank |
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By: /s/ Xxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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Sovereign Bank |
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By: /s/ Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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Toronto Dominion (New York), Inc. |
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By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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Union Bank of California, N.A. |
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By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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Wachovia Bank, National Association |
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By: /s/ Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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Xxxxxxx Bank, National Association |
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By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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PPM SPYGLASS FUNDING TRUST |
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By: /s/ Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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PPM SHADOW CREEK FUNDING LLC |
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By: /s/ Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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SAWGRASS TRADING LLC |
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By: /s/ Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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KZH PONDVIEW LLC |
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By: /s/ Hi Hua Name: Hi Hua |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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Fidelity Advisor Series II: Fidelity Advisor Floating Rate High Income Fund |
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By: /s/ Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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Oasis Collateralized High Income Portfolios-1 Ltd. |
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By: Patriarch Partners XIII, LLC Its Managing Agent |
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By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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AVALON CAPITAL LTD. 2 |
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By: INVESCO Senior Secured Management, Inc. As Portfolio Advisor |
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By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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CHAMPLAIN CLO, LTD. |
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By: INVESCO Senior Secured Management, Inc. As Collateral Manager |
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By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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CHARTER VIEW PORTFOLIO |
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By: INVESCO Senior Secured Management, Inc. As Investment Advisor |
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By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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DIVERSIFIED CREDIT PORTFOLIO LTD. |
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By: INVESCO Senior Secured Management, Inc. as Investment Adviser
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By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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AIM FLOATING RATE FUND |
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By: INVESCO Senior Secured Management, Inc. As Sub-Adviser |
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By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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INVESCO CBO 2000-1 LTD. |
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By: INVESCO Senior Secured Management, Inc. As Portfolio Advisor |
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By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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SARATOGA CLO I, LIMITED |
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By: INVESCO Senior Secured Management, Inc. As Asset Manager |
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By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx |
Signature page to the First Amendment
dated as of November 9, 2004 to the
IRON MOUNTAIN INCORPORATED
Seventh Amended and Restated Credit Agreement
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SEQUILS-LIBERTY, LTD. |
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By: INVESCO Senior Secured Management, Inc. as Collateral Manager |
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By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx |
EXHIBIT A
FORM OF ACKNOWLEDGMENT AND CONFIRMATION
ACKNOWLEDGMENT AND CONFIRMATION, dated as of November 9, 2004 (this “Acknowledgment and Confirmation”) made by each of the signatories hereto.
1. Reference is made to First Amendment, dated as of November 9, 2004 (the “Amendment”), to the Seventh Amended and Restated Credit Agreement, dated as of July 8, 2004 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among IRON MOUNTAIN INCORPORATED, a Pennsylvania corporation (the “Company”), IRON MOUNTAIN CANADA CORPORATION, a company organized under the laws of the Province of Nova Scotia, the several banks and other financial institutions or entities from time to time parties to the Credit Agreement (the “Lenders”), BANK OF AMERICA, N.A. (formerly known as Fleet National Bank), as syndication agent, WACHOVIA BANK, NATIONAL ASSOCIATION and THE BANK OF NOVA SCOTIA, as co-documentation agents, X.X. XXXXXX BANK CANADA, as Canadian Administrative Agent, JPMORGAN CHASE BANK, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and X.X. XXXXXX SECURITIES INC., as arranger and bookrunner.
2. Each of the parties hereto hereby agrees, with respect to each Basic Document to which it is a party:
(a) all of its obligations, liabilities and indebtedness under such Basic Document shall remain in full force and effect on a continuous basis after giving effect to the Amendment; and
(b) all of the Liens and security interests created and arising under such Basic Document remain in full force and effect on a continuous basis after giving effect to the Amendment, as collateral security for its obligations, liabilities and indebtedness under the Credit Agreement and under its guarantees in the Basic Documents.
3. THIS ACKNOWLEDGMENT AND CONFIRMATION SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
4. This Acknowledgment and Confirmation may be executed by one or more of the parties hereto on any number of separate counterparts (including by telecopy), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Acknowledgement and Confirmation to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
IRON MOUNTAIN INCORPORATED |
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By:____________________________ |
Name: |
Title: |
IRON MOUNTAIN CANADA CORPORATION |
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By:____________________________ |
Name: |
Title: |
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SUBSIDIARY GUARANTORS |
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COMAC, INC. |
IRON MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC. |
IRON MOUNTAIN GLOBAL, INC. |
IRON MOUNTAIN GLOBAL, LLC |
IRON MOUNTAIN INFORMATION |
MANAGEMENT, INC. |
MOUNTAIN REAL ESTATE ASSETS, INC., |
MOUNTAIN RESERVE II, INC. |
TREELINE SERVICES CORPORATION |
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By:____________________________ |
Name: |
Title: |
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SUBSIDIARY PLEDGORS |
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IRON MOUNTAIN GLOBAL, INC. |
IRON MOUNTAIN GLOBAL, LLC |
IRON MOUNTAIN INFORMATION |
MANAGEMENT, INC. |
TREELINE SERVICES CORPORATION |
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By:____________________________ |
Name: |
Title: |
SUBSIDIARY GUARANTORS |
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IRON MOUNTAIN STATUTORY TRUST – 1998 |
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By: WACHOVIA BANK, NATIONAL |
ASSOCIATION (formerly FIRST UNION NATIONAL |
BANK), not individually but as Owner Trustee under |
that certain Amended and Restated Owner Trust |
Agreement dated as of October 1, 1998, as amended |
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By:______________________________ |
Name: |
Title: |
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IRON MOUNTAIN STATUTORY TRUST – 1999 |
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By: WACHOVIA BANK, NATIONAL |
ASSOCIATION (formerly FIRST UNION NATIONAL |
BANK), not individually but as Owner Trustee under |
that certain Owner Trust Agreement dated as of July 1, 1999 |
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By:______________________________ |
Name: |
Title: |
SUBSIDIARY PLEDGORS |
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IRON MOUNTAIN STATUTORY TRUST – 1998 |
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By: WACHOVIA BANK, NATIONAL |
ASSOCIATION (formerly FIRST UNION NATIONAL |
BANK), not individually but as Owner Trustee under |
that certain Amended and Restated Owner Trust |
Agreement dated as of October 1, 1998, as amended |
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By:______________________________ |
Name: |
Title: |
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IRON MOUNTAIN STATUTORY TRUST – 1999 |
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By: WACHOVIA BANK, NATIONAL |
ASSOCIATION (formerly FIRST UNION NATIONAL |
BANK), not individually but as Owner Trustee under |
that certain Owner Trust Agreement dated as of July 1, 1999 |
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By:______________________________ |
Name: |
Title: |