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EXHIBIT 10.3
AMENDMENT NO. 4 AND CONSENT TO GUARANTY
AMENDMENT NO. 4 AND CONSENT TO UNCONDITIONAL GUARANTY dated as of
August 15, 2000 between IRON MOUNTAIN INCORPORATED, a Pennsylvania corporation
(Guarantor) and IRON MOUNTAIN STATUTORY TRUST - 1998, a Connecticut statutory
trust (Owner), and consented to by each of the Lenders and Agent Bank listed on
the signature pages hereto.
Guarantor and Owner are parties to a certain Unconditional Guaranty
dated as of October 1, 1998, as amended by Amendment and Consent to Guaranty
Dated as July 1, 1999, by Amendment No. 2 and Consent to Guaranty dated as of
October 22, 1999 and by Amendment No. 3 and Consent to Guaranty dated as of
January 31, 2000 (collectively, the Guaranty) pursuant to which the Guarantor
guarantees to Owner and the Indemnified Parties the Guaranteed Obligations,
including, without limitation, certain obligations of Iron Mountain Records
Management, Inc. (Lessee/Agent) under (i) a Lease Agreement from Owner to
Lessee/Agent dated as of October 1, 1998, as amended (the Lease), and (ii) an
Amended and Restated Agency Agreement between Lessee/Agent and Owner dated as of
October 1, 1998, as amended (the Agency Agreement). Each of the Lease and the
Agency Agreement have been assigned to the Agent Bank pursuant to an Assignment
of Lease and Agency Agreement from Owner to Agent Bank and consented to by
Lessee/Agent dated as of October 1, 1998. Guarantor has requested that Owner,
Agent Bank and the Lenders amend the Guaranty with respect to certain financial
covenants and related definitions and Guarantor has requested that the Lenders
and Agent Bank consent to such changes. Accordingly, the parties hereto agree as
follows:
Section 1. DEFINITIONS. Except as otherwise defined in this Agreement,
terms defined in the Guaranty are used herein as defined therein.
Section 2. AMENDMENTS. Subject to the terms and conditions contained
herein, the Guaranty is hereby amended as follows:
A. INTEREST COVERAGE RATIO. The Interest Coverage Ratio "grid" in
Section 10(a)(ii) of the Guaranty is hereby amended to read as follows:
<TABLE>
<CAPTION>
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PERIOD INTEREST COVERAGE
RATIO
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<S> <C>
From August 15, 2000 through June 30, 2001 1.75 to 1
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From July 1, 2001 through December 31, 2002 2.00 to 1
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From January 1, 2003 through December 31, 2003 2.25 to 1
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From January 1, 2004 and all times thereafter 2.50 to 1
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</TABLE>
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B. LIENS. Section 10(a)(iv) of the Guaranty is hereby amended by
deleting the word "and" at the end of clause (vii), substituting "; and" for the
period at the end of clause (viii) and by adding thereto the following clause
(ix):
"(ix) Liens under the instruments governing (I) an Accounts Receivable
Financing or (II) a Permitted Mortgage Financing under Section 9.08 of the
Credit Agreement."
C. DEFINITIONS.
(i) Section 10(c) of the Guaranty is hereby amended by
inserting the following definitions (or, in the case of any definition for a
term that is defined in the Guaranty before giving effect to this Agreement, by
amending and restating such definition to read as set forth below):
"ACCOUNTS RECEIVABLE FINANCING" shall mean any accounts receivable sale
arrangement, credit facility or conditional purchase contract or similar
arrangement providing financing secured directly or indirectly by the accounts
receivable and related records, collateral and rights of the Guarantor or its
Subsidiaries; provided that any such transaction shall be consummated pursuant
to documentation in form and substance reasonably satisfactory to the
Administrative Agent, as evidenced by its written approval thereof (such
approval not to be unreasonably withheld).
"ADMINISTRATIVE AGENT" shall have the meaning set forth in the preamble
to the Credit Agreement.
"CREDIT AGREEMENT" shall mean the Fourth Amended and Restated Credit
Agreement dated as of August 14, 2000 in the amount of up to $750,000,000 among
Guarantor and the other parties thereto, as amended, amended and restated,
modified, extended, refinanced or supplemented from time to time, except to the
extent that the Operative Documents refer to it as in effect on the date hereof.
"FACILITY" shall have the meaning assigned to it in the Credit
Agreement.
"NET CASH PROCEEDS" shall have the meaning set forth in the Credit
Agreement.
"PERMITTED MORTGAGE FINANCING" shall mean any financing (or series of
related financings) by the Guarantor or any of its Subsidiaries after the
Effective Date that is secured by a mortgage on one or more Facilities, provided
that (a) the proceeds of such financing (except to the extent that Permitted
Mortgage Financings of Facilities acquired after the Effective Date are excluded
by the definition of "Net Cash Proceeds") are applied to the repayment of Loans
(as defined in the Credit Agreement) as provided in Section 3.02(b) of the
Credit Agreement, (b) such financings are otherwise permitted by the terms of
Section 9.08 of the Credit Agreement, and (c) in the case of each such mortgage
financing by a Subsidiary of the Guarantor, each such mortgage created thereby
is a Permitted Mortgage.
"PERMITTED MORTGAGE" shall have the meaning set forth in the Credit
Agreement.
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(ii) The definition of "EBITDA" in Section 10(c) of the Guaranty is
hereby amended by deleting in clause (v) thereof the word "losses" and
replacing it with the word "charges".
(iii) The definition of "INDEBTEDNESS" in Section 10(c) of the
Guaranty is hereby amended by deleting the word "and" at the end of clause
(v), substituting "; and" for the period at the end of clause (vi) and by
adding thereto the following clause (vii):
"(vii) Accounts Receivable Financings and Permitted Mortgage
Financings of such Person."
D. PERMITTED TRANSACTIONS.
(i) Section 10(d)(x) of the Guaranty is hereby amended by
adding in the second line thereof after the word "entirety" the following:
"except with respect to dispositions of accounts receivable
and related general intangibles, and related lockbox and other
collection accounts records and/or proceeds pursuant to instruments
governing an Accounts Receivable Financing Permitted by Section 9.08 of
the Credit Agreement, and".
(ii) Section 10(d)(y) of the Guaranty is hereby amended by
adding in the third line thereof after the word "entirety" the following:
"except with respect to dispositions of accounts receivable
and related general intangibles, and related lockbox and other
collection accounts records and/or proceeds pursuant to instruments
governing an Accounts Receivable Financing Permitted by Section 9.08 of
the Credit Agreement, and".
Section 3. CONDITIONS OF EFFECTIVENESS. This Agreement shall become
effective as of the date hereof when, and only when, the Owner, the Lenders and
the Agent Bank shall have received a counterpart of this Agreement duly executed
by the parties hereto.
Section 4. REPRESENTATIONS AND WARRANTIES. As of the date hereof,
Guarantor hereby represents and warrants to Owner, Agent Bank, the Lenders
and their respective counsel that:
A. the representations and warranties made by Guarantor in each
Operative Document to which it is a party and the Guarantor's Certificate dated
and delivered to the Lenders as of February 1, 2000 are true and 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 under any Operative Document
that constitutes a Default or an Event of Default.
Section 4. MISCELLANEOUS. Except as herein provided, the Guaranty and
each of the other Operative Documents shall remain unchanged and in full force
and effect. Upon the effectiveness of this Agreement, on and after the date
hereof, each reference in any Operative Document to the Guaranty shall mean and
be a reference to the Guaranty as amended hereby.
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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
Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties hereunto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
GUARANTOR:
IRON MOUNTAIN INCORPORATED
By: /s/ J.P. Lawrence
---------------------------------
Name: J. P. Lawrence
Title: Vice President & Treasurer
LENDERS:
THE BANK OF NOVA SCOTIA, as Agent
Bank and as a Lender
By: /s/ T.M. Pitcher
---------------------------------
Name: T.M. Pitcher
Title:
[GUARANTY AMENDMENT NO. 4]
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ Nancy Perkins
---------------------------------
Name: Nancy Perkins
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Michael Palmer
---------------------------------
Name: Michael A. Palmer
Title: Senior Vice President
FLEET NATIONAL BANK,
f/k/a BANKBOSTON, N.A.
By: /s/ Michael Palmer
---------------------------------
Name: Michael A. Palmer
Title: Senior Vice President
CITIZENS BANK OF MASSACHUSETTS,
f/k/a USTRUST
By: /s/ Anne Hemmer
---------------------------------
Name: Anne Hemmer
Title: Vice President
OWNER:
IRON MOUNTAIN STATUTORY TRUST - 1998
By: First Union National Bank, not in its
individual capacity, but solely as
trustee
By: /s/ W. Jeffrey Kramer
---------------------------------
Name: W. Jeffrey Kramer
Title: Vice President
[GUARANTY AMENDMENT NO. 4]
