1-13045
(Commission
File Number)
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23-2588479
(IRS
Employer Identification No.)
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745
Atlantic Avenue,
Boston,
Massachusetts
(Address of
Principal Executive Offices)
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02111
(Zip
Code)
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·
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elected
Clarke H. Bailey, Constantin R. Boden, Robert T. Brennan, Kent P. Dauten,
Michael Lamach, Arthur D. Little, Vincent J. Ryan, C. Richard Reese and
Laurie A. Tucker as members of the board of directors of the Company for
one-year terms expiring at the next Annual Meeting of Stockholders in
2009;
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·
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approved an
amendment to the Iron Mountain Incorporated 2003 Senior Executive
Incentive Program (the “2003 SEIP”) to modify and re-approve the payment
criteria thereunder. The amendment to the 2003 SEIP is set forth in
Exhibit 10.3 attached hereto; and
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·
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also
ratified the selection of Deloitte & Touche LLP as the Company’s
independent registered public accounting firm for the year ending in
2008.
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Exhibit
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Number
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Exhibit
Description
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4.1
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Seventh
Supplemental Indenture, dated as of June 5, 2008, by and among Iron
Mountain Incorporated, the Guarantors named therein and The Bank of New
York Trust Company, N.A., as
trustee
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10.1
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Amendment
to the 2002 Stock Incentive Plan
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10.2
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Amendment
to the 2006 Senior Executive Incentive Program
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10.3
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Amendment
to the 2003 Senior Executive Incentive
Program
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IRON
MOUNTAIN INCORPORATED
By:
/s/ Ernest
W. Cloutier
Name:
Ernest W. Cloutier
Title: Senior
Vice President and General Counsel
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Page
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ARTICLE 1.
DEFINITIONS
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1
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Section
1.1.
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Definitions
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1
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ARTICLE 2.
FORM AND TERMS OF THE NOTES
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15
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||
Section
2.1.
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Form and
Dating
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15
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Section
2.2.
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Execution
and Authentication
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15
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Section
2.3.
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Depository
and Paying Agent for Notes
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17
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Section
2.4.
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Transfer
and Exchange of Notes
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17
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Section
2.5.
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Redemption
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19
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Section
2.6.
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Covenants
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21
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(a) Restricted
Payments
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21
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(b) Incurrence
of Indebtedness and Issuance of Preferred Stock
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24
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(c) Liens
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25
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(d) Dividend
and Other Payment Restrictions Affecting Restricted
Subsidiaries
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25
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(e) Transactions
with Affiliates
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27
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(f) Certain
Senior Subordinated Debt
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28
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(g) Additional
Subsidiary Guarantees
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28
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(h) Designation
of Unrestricted Subsidiaries
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29
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(i) Limitation
on Sale and Leaseback Transactions
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30
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(j) Asset
Sales
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30
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(k) Change
of Control Offer
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32
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(l) Changes
in Covenants When Notes Rated Investment Grade
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34
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Section
2.7.
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Subsidiary
Guarantees
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35
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Section
2.8.
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Legal
Defeasance and Covenant Defeasance
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35
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Section
2.9.
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Subordination
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35
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Section
2.10
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Amend,
Restate and Replace Provision Regarding Reports
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35
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Section
2.11.
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Events of
Default.
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36
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Section
2.12.
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Amend,
Restate and Replace Provision Regarding Limitations on Amendment or
Waiver.
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36
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Section
2.13.
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Amend,
Restate and Replace Provision Regarding Personal
Liability.
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36
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Section
2.14.
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Amend,
Restate and Replace Provision Regarding Successors.
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36
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ARTICLE 3.
MISCELLANEOUS
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37
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Section
3.1.
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Effect of
Headings
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37
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Section
3.2.
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Successors
and Assigns.
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37
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Section
3.3.
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Separability
Clause.
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37
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Section
3.4.
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Governing
Law.
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37
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Section
3.5.
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Seventh
Supplement to Supersede Indenture.
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37
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EXHIBITS | |
Exhibit A | FORM OF NOTE |
Exhibit B | FORM OF SUPPLEMENTAL INDENTURE |
(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 | |
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(2)
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Indebtedness
encumbering any asset acquired by such specified
Person.
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(1)
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EBITDA of
such Acquisition EBITDA Entity for the most recently ended four full
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
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(2)
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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.
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(1)
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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
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(2)
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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
Seventh Supplemental Indenture (Section 4.9 of the
Indenture).
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(1)
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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
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(2)
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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 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
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(1)
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the fair
market value of the property subject to such arrangement (as determined by
the Board of Directors); and
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(1)
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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;
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(2)
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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;
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(3)
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commercial
paper of an issuer rated at least A-2 by Standard & Poor’s Rating
Group, a division of The McGraw-Hill Companies, Inc., or P-2 by
Moody’s 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;
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(4)
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money
market accounts or funds with or issued by Qualified Issuers;
and
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(5)
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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.
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(1)
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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;
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(2)
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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
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(3)
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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
66
2
/
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
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(4)
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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.
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(1)
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any net
after-tax extraordinary gains or losses (less all fees and expenses
relating thereto);
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(2)
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any net
after-tax gains or losses (less all fees and expenses relating thereto)
attributable to Asset Sales;
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(3)
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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
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(4)
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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.
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(1)
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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:
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(i)
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amortization
of debt discount;
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(ii)
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the net
cost of interest rate contracts (including amortization of
discounts);
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(iii)
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the
interest portion of any deferred payment
obligation;
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(iv)
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amortization
of debt issuance costs; and
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(v)
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the
interest component of Capital Lease Obligations of the Company and its
Restricted Subsidiaries; plus
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(2)
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all
interest on any Indebtedness of any other Person guaranteed and paid by
the Company or any of its Restricted
Subsidiaries;
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(1)
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Consolidated
Interest Expense for such period;
plus
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(2)
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Consolidated
Income Tax Expense for such period;
plus
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(3)
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Consolidated
Non-Cash Charges for such period.
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(1)
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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
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(2)
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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.
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(1)
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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
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(2)
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Adjusted
EBITDA, after giving pro forma effect, without duplication,
to
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(i)
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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;
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(ii)
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if the
Leverage Ratio is being determined in connection with the incurrence of
Indebtedness by the Company or a Restricted Subsidiary, such Indebtedness;
and
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(iii)
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the
Indebtedness to be incurred in connection with the acquisition of any
Acquisition EBITDA Entity.
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(1)
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the sum of
the principal amount of and Make-Whole Amount with respect to such Note;
and
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(2)
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the
redemption price of such Note on June 15,
2013.
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(1)
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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
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(2)
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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.
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(1)
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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
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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
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(2)
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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.
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(1)
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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
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(2)
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the sum
of:
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(i)
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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
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(ii)
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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
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(iii)
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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
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(iv)
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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).
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(1)
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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 Seventh Supplemental Indenture (Section 4.9 of the
Indenture);
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(2)
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any
Investments in Cash Equivalents;
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(3)
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Investments
by the Company or any Restricted Subsidiary of the Company in a Person, if
as a result of such Investment;
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(i)
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such Person
becomes a Restricted Subsidiary (other than an Excluded Restricted
Subsidiary) of the Company; or
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(ii)
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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;
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(4)
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Investments
in assets (including accounts and notes receivable) owned or used in the
ordinary course of business;
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(5)
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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
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(6)
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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).
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(1)
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Liens
existing as of the date of issuance of the
Notes;
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(2)
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Liens on
property or assets of the Company or any Restricted Subsidiary securing
Senior Debt;
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(3)
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Liens on
any property or assets of a Restricted Subsidiary granted in favor of the
Company or any Wholly Owned Restricted
Subsidiary;
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(4)
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Liens
securing the Notes or the
Guarantees;
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(5)
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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 Seventh Supplemental Indenture (Section 4.9 of
the Indenture);
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(6)
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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;
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(7)
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Liens
securing Hedging Obligations permitted to be incurred pursuant to
clause (7) of Section 2.6(b) of the Seventh Supplemental Indenture
(clause (7) of Section 4.9 of the
Indenture);
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(8)
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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;
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(9)
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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;
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(10)
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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;
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(11)
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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);
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(12)
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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;
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(13)
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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;
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(14)
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Liens
arising under options or agreements to sell
assets;
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(15)
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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
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(16)
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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.
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(1)
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any lender
party to the Credit Agreement; or
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(2)
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any
commercial bank:
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(i)
|
which has
capital and surplus in excess of $500,000,000;
and
|
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(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 McGraw-Hill
Companies, Inc. or at least P-2 by Moody’s 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.
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(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);
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(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
|
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so repaid,
redeemed, defeased, extended, refinanced, renewed, replaced or refunded or
shall mature after the maturity date of the
Notes;
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(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, 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;
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(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
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(5)
|
with
respect to Refinancing Indebtedness incurred by a Restricted Subsidiary,
such Refinancing Indebtedness shall rank no more senior, and shall be at
least as subordinated, in right of payment to the Subsidiary Guarantee of
such Restricted Subsidiary as the Indebtedness being extended, refinanced,
renewed, replaced or refunded.
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|
(1)
|
each direct
or indirect Subsidiary of the Company existing on the date of the
Indenture (other than Iron Mountain South America Ltd., Iron Mountain
Mexico, S.A. de R.L. de C.V., Iron Mountain India Holdings, IM Australia
Holdings Pty Ltd., IM New Zealand Holdings ULC, Iron Mountain Asia Pacific
Holdings Limited, Iron Mountain Caribbean Holdings Limited, Iron Mountain
Assurance Corporation, Mountain West Palm Real Estate, Inc. and Upper
Providence Venture I, L.P. and their respective direct and indirect
Subsidiaries, and all direct and indirect Subsidiaries of Iron Mountain
Europe (Group) Limited (other than IME, Iron Mountain (UK) Limited and
Iron Mountain Secure Shredding Ltd.) and IRMT Cyprus Finance Limited);
and
|
|
(2)
|
any other
direct or indirect Subsidiary of the Company formed, acquired or existing
after the date of the Indenture (including an Excluded Restricted
Subsidiary), excluding, however (unless otherwise designated by the
Company’s board of directors) any such direct or indirect Subsidiary of
Iron Mountain South America Ltd., Iron Mountain Mexico, S.A. de R.L. de
C.V., Iron Mountain India Holdings, IM Australia Holdings Pty Ltd., IM New
Zealand Holdings ULC, Iron Mountain Asia Pacific Holdings Limited, Iron
Mountain Europe (Group) Limited, IRMT Cyprus Finance Limited, Iron
Mountain Caribbean Holdings Limited, Iron Mountain Assurance Corporation,
Mountain West Palm Real Estate, Inc. or Upper Providence Venture I,
L.P.,
|
|
(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 Seventh
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.
|
|
(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 Seventh Supplemental
Indenture or the Indenture,
provided
that such
Indebtedness shall be deemed not to have been incurred in violation of the
Seventh 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 Seventh Supplemental Indenture or the
Indenture.
|
|
(1)
|
any
Subsidiary that is designated by the Board of Directors as an Unrestricted
Subsidiary in accordance with Section 2.6(h) of the Seventh Supplemental
Indenture (Section 4.15 of the Indenture);
and
|
|
(2)
|
any
Subsidiary of an Unrestricted
Subsidiary.
|
|
(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.
|
Term
|
Defined in
Section
|
|
“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)
|
|
“Commencement
Date”
|
2.6(j)
|
|
“Company”
|
Preamble
|
|
“Excess
Proceeds”
|
2.6(j)
|
|
“Seventh
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)
|
|
“Trustee”
|
Preamble
|
|
(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
Company 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 Company, evidencing the same debt, and entitled to the
same benefits under the Seventh Supplemental Indenture and the Indenture,
as the Global Notes or Definitive Notes surrendered upon such registration
of transfer or exchange.
|
|
(iv)
|
The Company
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.
|
|
(v)
|
Prior to
due presentment for the registration of a transfer of any Note, the
Trustee, any Agent, the Company 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 Company
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.
|
Year
|
Percentage
|
||
June 15,
2013
|
104.000%
|
||
June 15,
2014
|
102.667%
|
||
June 15,
2015
|
101.333%
|
||
June 15,
2016 and thereafter
|
100.000%
|
||
|
(1)
|
at least
$195.0 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.
|
|
(1)
|
that the
Asset Sale Offer is being made pursuant to this Section 3.9 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 depositary, 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,
depositary 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 Company
so that only Notes in denominations of $2,000, or integral multiples of
$1,000 in excess 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.
|
|
(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 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”);
|
|
(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 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 Company has made the Change of Control Offer as provided in
such covenant with respect to the
Notes
|
|
(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.
|
|
(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
|
|
(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.
|
|
(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;
|
|
(2)
|
the
issuance by the Restricted Subsidiaries of Subsidiary
Guarantees;
|
|
(3)
|
the
incurrence by the Company and its Restricted Subsidiaries of the Existing
Indebtedness;
|
|
(4)
|
the
issuance by the Company 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;
|
|
(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;
|
|
(8)
|
the
incurrence by the Company and its Restricted Subsidiaries of Indebtedness
arising out of letters of credit, performance bonds, surety bonds and
bankers’
|
|
(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
|
|
(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.
|
|
(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.
|
|
(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,
|
|
(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
|
|
(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.
|
|
(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.
|
|
(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
|
|
(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.
|
|
(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.
|
|
(1)
|
a sale or
other disposition of all of the assets of any Restricted Subsidiary, by
way of merger, consolidation (or amalgamation) or
otherwise;
|
|
(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,
|
|
(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.
|
|
(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.
|
|
(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.
|
|
(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
|
|
(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 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);
|
|
(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 Subsidiary 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,
|
|
(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 Seventh Supplemental Indenture or in
businesses similar or reasonably related
thereto.
|
|
(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;
|
|
(4)
|
that,
unless the Company 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 $2,000 in
principal amount or an integral multiple of $1,00 in excess
thereof.
|
|
(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 Company.
|
|
(1)
|
at least
two of the following events occur:
|
|
i.
|
the Notes
are rated Baa3 or better by Moody’s Investors
Service,
|
|
ii.
|
the Notes
are rated BBB- or better by Standard & Poor’s Rating Group, a division
of The McGraw-Hill Companies, Inc.,
or
|
|
iii.
|
the Notes
rated BBB- or better by Fitch Ratings,
Inc.,
|
|
(2)
|
no Default
or Event of Default shall have occurred and be
continuing,
|
|
(1)
|
all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the
Company were required to file such Forms, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations”
and, with respect to the annual information only, a report thereon by the
Company’s certified independent accountants;
and
|
|
(2)
|
all
financial information that would be required to be included in a
Form 8-K filed with the Commission if the Company were required to
file such reports.
|
IRON
MOUNTAIN INCORPORATED
|
|
By:
/s/
Brian P. McKeon
|
|
Brian P. McKeon
Executive
Vice President and Chief Financial Officer
|
|
IRON
MOUNTAIN FULFILLMENT SERVICES, 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. | |
STRATIFY, INC | |
|
|
By:
/s/
Brian P. McKeon
|
|
Brian P. McKeon
Executive
Vice President and Chief Financial Officer
|
|
IRON
MOUNTAIN GLOBAL LLC
|
|
By: Iron
Mountain Global, Inc., its sole member
|
|
By:
/s/ Brian
P. McKeon
|
|
Brian P.
McKeon
|
|
Executive Vice
President and Chief Financial
Officer
|
IRON
MOUNTAIN STATUTORY TRUST - 1998
|
|
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
|
|
By:
/s/
John G. Correla
|
|
Name:
John G. Correla
|
|
Title:
Vice President
|
|
IRON
MOUNTAIN STATUTORY TRUST - 1999
|
|
By:
U.S. BANK
NATIONAL ASSOCIATION, not
individually but as Owner Trustee under that
certain Owner Trust Agreement dated as of
July 1, 1999, as
amended
|
|
By:
/s/
John G. Correla
|
|
Name:
John G. Correla
|
|
Title:
Vice President
|
|
IRON
MOUNTAIN STATUTORY TRUST - 2001
|
|
By:
U.S. BANK
NATIONAL ASSOCIATION, not
individually but as Owner Trustee under that
certain Owner Trust Agreement dated as of
May 22, 2001, as
amended
|
|
By:
/s/
John G. Correla
|
|
Name: John G. Correla | |
Title: Vice President | |
THE BANK OF
NEW YORK TRUST COMPANY, N.A.
|
|
By:
/s/
Vaneta Bernard
|
|
Name:
Vaneta Bernard
|
|
Title:
Vice President
|
Year
|
Percentage
|
June 15,
2013
|
104.000%
|
June 15,
2014
|
102.667%
|
June 15,
2015
|
101.333%
|
June 16,
2013 and thereafter
|
100.000%
|
Name and Position
|
Number of Shares
Underlying Options
|
|||
C. Richard
Reese,
Chairman of
the Board and Chief Executive Officer
|
— | |||
Robert T.
Brennan,
President
and Chief Operating Officer
|
1,112,449 | |||
John J.
Connors,
President,
Americas
|
337,515 | |||
Marc A.
Duale,
President
of Iron Mountain Europe
|
333,958 | |||
John F.
Kenny, Jr.,
Executive
Vice President, Corporate Development
|
68,449 | |||
Brian P.
McKeon,
Chief
Financial Officer
|
469,907 | |||
All current
executive officers as a group
|
2,527,148 | |||
All current
directors who are not executive officers as a group
|
141,750 | |||
Clarke H.
Bailey
|
25,252 | |||
Constantin
R. Boden
|
25,252 | |||
Kent P.
Dauten
|
25,252 | |||
Michael
Lamach
|
6,673 | |||
Arthur D.
Little
|
25,252 | |||
Vincent J.
Ryan
|
25,252 | |||
Laurie A.
Tucker
|
8,817 | |||
Each
associate of such directors and executive officers
|
31,844 | |||
Each other
person who received 5% of such options
|
— | |||
All
employees, including all current officers who are not executive officers,
as a group
|
8,391,574 |