FOURTH AMENDMENT
Exhibit 10.1
FOURTH AMENDMENT
AMENDMENT, dated as of June 19, 2014 (the Amendment), to the Credit Agreement, dated as of June 27, 2011 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement), among IRON MOUNTAIN INCORPORATED, a Delaware corporation (the Parent), IRON MOUNTAIN INFORMATION MANAGEMENT, LLC (f/k/a Iron Mountain Information Management, Inc.), a Delaware limited liability company (the Company), each of the other Borrowers party thereto, the several banks and other financial institutions or entities from time to time parties to the Credit Agreement as Lenders (the Lenders), JPMORGAN CHASE BANK, TORONTO BRANCH, as Canadian Administrative Agent and JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, the Administrative Agent), and the other parties thereto.
W I T N E S S E T H:
WHEREAS, the Borrowers, 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 parties hereto 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. Amendments to Credit Agreement.
(a) The definition of Pounds Sterling in Section 1.01 of the Credit Agreement is amended by inserting and £ after Pounds Sterling.
(b) The definition of IME in Section 1.01 of the Credit Agreement is amended by inserting the following sentence as the last sentence thereof: The term IME shall include any public limited company (plc) into which Iron Mountain Europe Limited is converted.
(c) Section 9.08(v) of the Credit Agreement is amended by deleting $600,000,000 at the end of clause (B) and replacing it with: £400,000,000.
(d) The second clause (v) of Section 9.08 shall be renumbered clause (vi) and the remaining clause shall be renumbered clause (vii).
3. Representations and Warranties. On and as of the date hereof, each of the Parent and the Company hereby confirms, reaffirms and restates the representations and warranties set forth in Section 8 of the Credit Agreement and the representations and warranties in the Basic Documents mutatis mutandis, except to the extent that such representations and warranties expressly relate to a specific earlier date in which case the Parent and the Company each hereby confirms, reaffirms and restates such representations and warranties as of such earlier date. Each of
the Parent and the Company represents and warrants that, after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
4. 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) Amendment. The Administrative Agent shall have received this Amendment executed and delivered by the Administrative Agent, the Parent, the Company, each of the other Borrowers, and the 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 Parent, the Company, the Canadian Borrower and each Subsidiary Guarantor.
5. 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.
6. 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.
7. 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.
8. 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.
9. Loan Document; Integration. This Amendment shall constitute a Basic Document. This Amendment and the other Basic Documents represent the agreement of each 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.
10. 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.
11. 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.
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.
| IRON MOUNTAIN INCORPORATED | |
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| By: | /s/ J.P. Lawrence |
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| Name: J.P. Lawrence |
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| Title: Senior Vice President and Treasurer |
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| IRON MOUNTAIN INFORMATION | |
| MANAGEMENT, LLC (f/k/a Iron Mountain Information Management, Inc.) | |
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| By: | /s/ J.P. Lawrence |
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| Name: J.P. Lawrence |
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| Title: Senior Vice President and Treasurer |
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| IRON MOUNTAIN FULFILLMENT SERVICES, INC. | |
| IRON MOUNTAIN GLOBAL HOLDINGS, INC. | |
| IRON MOUNTAIN GLOBAL, LLC | |
| IRON MOUNTAIN US HOLDINGS, INC. | |
| IRON MOUNTAIN SECURE SHREDDING, INC. IRON MOUNTAIN HOLDINGS GROUP, INC. | |
| IRON MOUNTAIN INFORMATION MANAGEMENT SERVICES, INC. | |
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| By: | /s/ J.P. Lawrence |
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| Name: J.P. Lawrence |
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| Title: Senior Vice President and Treasurer |
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| IRON MOUNTAIN CANADA OPERATIONS ULC | |
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| By: | /s/ J.P. Lawrence |
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| Name: J.P. Lawrence |
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| Title: Senior Vice President and Treasure |
| IRON MOUNTAIN SWITZERLAND GMBH | |
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| By: | /s/ Christopher LaRochelle |
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| Name: Christopher LaRochelle |
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| Title: Managing Director |
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| IRON MOUNTAIN EUROPE LIMITED | |
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| By: | /s/ Roderick Day |
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| Name: Roderick Day |
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| Title: Director |
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| IRON MOUNTAIN AUSTRALIA PTY LTD. | |
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| By: | /s/ Ernest W. Cloutier |
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| Name: Ernest W. Cloutier |
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| Title: Director |
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| IRON MOUNTAIN DO BRASIL LTDA. | |
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| By: | /s/ Luiz Alves |
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| Name: Luiz Alves |
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| Title: President |
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| By: | /s/ Wilson Fernandes |
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| Name: Wilson Fernandes |
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| Title: Chief Finance Officer |
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| IRON MOUNTAIN HOLDINGS (EUROPE) LIMITED | |
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| By: | /s/ Roderick Day |
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| Name: Roderick Day |
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| Title: Director |
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| IRON MOUNTAIN (UK) LIMITED | |
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| By: | /s/ Patrick Keddy |
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| Name: Patrick Keddy |
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| Title: Director |
| IRON MOUNTAIN LUXEMBOURG SERVICES S.A.R.L., LUXEMBOURG, SCHAFFHAUSEN BRANCH | |
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| By: | /s/ Christopher LaRochelle |
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| Name: Christopher LaRochelle |
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| Title: Authorized Manager |
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| IRON MOUNTAIN SECURE SHREDDING CANADA, INC. | |
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| By: | /s/ J.P. Lawrence |
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| Name: J.P. Lawrence |
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| Title: Senior Vice President and Treasurer |
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| IRON MOUNTAIN INFORMATION MANAGEMENT SERVICES CANADA, INC. | |
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| By: | /s/ J.P. Lawrence |
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| Name: J.P. Lawrence |
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| Title: Senior Vice President and Treasurer |
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| IRON MOUNTAIN INTERNATIONAL HOLDINGS B.V. | |
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| By: | /s/ Roderick Day |
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| Name: Roderick Day |
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| Title: Director |
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| By: | /s/ Marc Duale |
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| Name: Marc Duale |
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| Title: Director |
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| By: | /s/ TMF Management B.V. |
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| Name: TMF Management B.V. |
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| Title: Director |
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| /s/ R.M. Forterie |
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| R.M. Forterie |
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| Proxy Holder A |
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| /s/ J.T. van Der Linden |
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| J.T. van Der Linden |
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| Proxy Holder B |
| JPMORGAN CHASE BANK, N.A., as Administrative Agent, Lender, Swingline Lender and Issuing Bank | |
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| By: | /s/ Gene R. Riego de Dios |
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| Name: Gene R. Riego de Dios |
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| Title: Vice President |
| JPMORGAN CHASE BANK, N.A. TORONTO BRANCH, as Canadian Administrative Agent, Lender, Swingline Lender and Issuing Bank | |
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| By: | /s/ Gene R. Riego de Dios |
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| Name: Gene R. Riego de Dios |
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| Title: Vice President |
| Signature page to the Fourth Amendment to the | |
| IRON MOUNTAIN INFORMATION MANAGEMENT, LLC | |
| Credit Agreement | |
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| Bank of America, N.A. | |
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| By: | /s/ John F. Lynch |
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| Name: John F. Lynch |
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| Title: S.V.P. |
| Signature page to the Fourth Amendment to the | |
| IRON MOUNTAIN INFORMATION MANAGEMENT, LLC | |
| Credit Agreement | |
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| Bank of America, N.A. (Canada branch) | |
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| By: | /s/ Medina Sales de Andrade |
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| Name: Medina Sales de Andrade |
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| Title: Vice President |
| Signature page to the Fourth Amendment to the | |
| IRON MOUNTAIN INFORMATION MANAGEMENT, LLC | |
| Credit Agreement | |
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| RBS Citizens, N.A. | |
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| By: | /s/ Cheryl Carangelo |
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| Name: Cheryl Carangelo |
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| Title: Senior Vice President |
| Signature page to the Fourth Amendment to the | |
| IRON MOUNTAIN INFORMATION MANAGEMENT, LLC | |
| Credit Agreement | |
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| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK | |
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| By: | /s/ Pamela Donnelly |
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| Name: Pamela Donnelly |
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| Title: Managing Director |
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| By: | /s/ Gordon Yip |
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| Name: Gordon Yip |
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| Title: Director |
| Signature page to the Fourth Amendment to the | |
| IRON MOUNTAIN INFORMATION MANAGEMENT, LLC | |
| Credit Agreement | |
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| BARCLAYS BANK PLC | |
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| By: | /s/ Irina Dimova |
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| Name: Irina Dimova |
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| Title: Vice President |
| Signature page to the Fourth Amendment to the | |
| IRON MOUNTAIN INFORMATION MANAGEMENT, LLC | |
| Credit Agreement | |
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| Wells Fargo Bank, N.A. | |
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| By: | /s/ Thomas Molitor |
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| Name: Thomas Molitor |
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| Title: Managing Director |
| Signature page to the Fourth Amendment to the | |
| IRON MOUNTAIN INFORMATION MANAGEMENT, LLC | |
| Credit Agreement | |
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| THE BANK OF NOVA SCOTIA | |
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| By: | /s/ Michelle C. Phillips |
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| Name: Michelle C. Phillips |
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| Title: Director & Execution Head |
| Signature page to the Fourth Amendment to the | |
| IRON MOUNTAIN INFORMATION MANAGEMENT, LLC | |
| Credit Agreement | |
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| Morgan Stanley Bank, N.A. | |
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| By: | /s/ Nick Zangari |
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| Name: Nick Zangari |
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| Title: Authorized Signatory |
Signature page to the Fourth Amendment to the
IRON MOUNTAIN INFORMATION MANAGEMENT, LLC
Credit Agreement
| T.D. BANK, N.A. | |
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| By: | /s/ Alan Garson |
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| Name: Alan Garson |
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| Title: Senior Vice President |
Signature page to the Fourth Amendment to the
IRON MOUNTAIN INFORMATION MANAGEMENT, LLC
Credit Agreement
| PNC Bank, National Association | |
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| By: | /s/ Michael Richards |
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| Name: Michael Richards |
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| Title: Senior Vice President |
Signature page to the Fourth Amendment to the
IRON MOUNTAIN INFORMATION MANAGEMENT, LLC
Credit Agreement
| PNC BANK CANADA BRANCH | |
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| By: | /s/ Caroline Stade |
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| Name: Caroline Stade |
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| Title: Senior Vice President |
Signature page to the Fourth Amendment to the
IRON MOUNTAIN INFORMATION MANAGEMENT, LLC
Credit Agreement
| The Bank of Tokyo-Mitsubishi UFJ, Ltd. | |
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| By: | /s/ Raveet Mumick |
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| Name: Raveet Mumick |
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| Title: Director |
Signature page to the Fourth Amendment to the
IRON MOUNTAIN INFORMATION MANAGEMENT, LLC
Credit Agreement
| HSBC Bank PLC | |
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| By: | /s/ Ian Sparkes |
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| Name: Ian Sparkes |
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| Title: Senior Corporate Banking Manager |
Signature page to the Fourth Amendment to the
IRON MOUNTAIN INFORMATION MANAGEMENT, LLC
Credit Agreement
| Sumitomo Mitsui Banking Corporation | |
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| By: | /s/ David W. Kee |
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| Name: David W. Kee |
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| Title: Managing Director |
Signature page to the Fourth Amendment to the
IRON MOUNTAIN INFORMATION MANAGEMENT, LLC
Credit Agreement
| ROYAL BANK OF CANADA | |
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| By: | /s/ Brian Gross |
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| Name: Brian Gross |
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| Title: Authorized Signatory |
Signature page to the Fourth Amendment to the
IRON MOUNTAIN INFORMATION MANAGEMENT, LLC
Credit Agreement
| The Huntington National Bank | |
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| By: | /s/ Jared Shaner |
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| Name: Jared Shaner |
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| Title: Assistant Vice President |
| Signature page to the Fourth Amendment to the | |
| IRON MOUNTAIN INFORMATION MANAGEMENT, LLC | |
| Credit Agreement | |
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| Peoples United Bank | |
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| By: | /s/ Yvette D. Hawkins |
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| Name: Yvette D. Hawkins |
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| Title: Vice President |
| Signature page to the Fourth Amendment to the | |
| IRON MOUNTAIN INFORMATION MANAGEMENT, LLC | |
| Credit Agreement | |
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| WEBSTER BANK, N.A. | |
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| By: | /s/ Raymond C. Hoefling |
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| Name: Raymond C. Hoefling |
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| Title: Senior Vice President |
| Signature page to the Fourth Amendment to the | |
| IRON MOUNTAIN INFORMATION MANAGEMENT, LLC | |
| Credit Agreement | |
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| GOLDMAN SACHS BANK USA | |
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| By: | /s/ Michelle Latzoni |
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| Name: Michelle Latzoni |
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| Title: Authorized Signatory |
EXHIBIT A
ACKNOWLEDGMENT AND CONFIRMATION
ACKNOWLEDGMENT AND CONFIRMATION, dated as of June 19, 2014 (this Acknowledgment and Confirmation) made by each of the signatories hereto.
1. Reference is made to the Fourth Amendment, dated as of June 19, 2014 (the Amendment), to the Credit Agreement, dated as of June 27, 2011 (as amended, supplemented or otherwise modified from time to time, the (Credit Agreement), among IRON MOUNTAIN INCORPORATED, a Delaware corporation (the Parent), IRON MOUNTAIN INFORMATION MANAGEMENT, LLC (f/k/a Iron Mountain Information Management, Inc.), a Delaware limited liability company (the Company), each of the other Borrowers party thereto, JPMORGAN CHASE BANK, TORONTO BRANCH, as Canadian Administrative Agent and JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, the Administrative Agent), and the other parties thereto.
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;
(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; and
(c) all of the representations and warranties made by it set forth in each such Basic Document are reaffirmed and restated mutatis mutandis, except to the extent that such representations and warranties expressly relate to a specific earlier date in which case such party hereby confirms, reaffirms and restates such representations and warranties as of such earlier date.
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 | |
| IRON MOUNTAIN INFORMATION | |
| MANAGEMENT, LLC (f/k/a Iron Mountain Information Management, Inc.; successor by merger to Iron Mountain Statutory Trust-1998, Iron Mountain Statutory Trust-1999, Iron Mountain Statutory Trust-2001, | |
| Treeline Services Corporation and Mountain Real Estate Assets, Inc.) | |
| IRON MOUNTAIN FULFILLMENT SERVICES, INC. IRON MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC. | |
| IRON MOUNTAIN GLOBAL HOLDINGS, INC. (f/k/a Iron Mountain Global Holdings, LLC) | |
| IRON MOUNTAIN GLOBAL, LLC | |
| MOUNTAIN RESERVE III, INC. | |
| NETTLEBED ACQUISITION CORP. | |
| IRON MOUNTAIN US HOLDINGS, INC. | |
| IRON MOUNTAIN SECURE SHREDDING, INC. IRON MOUNTAIN HOLDINGS GROUP, INC. | |
| IRON MOUNTAIN INFORMATION MANAGEMENT SERVICES, INC. | |
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| By: |
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| Name: J.P. Lawrence |
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| Title: Senior Vice President and Treasurer |
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| IRON MOUNTAIN CANADA OPERATIONS ULC | |
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| By |
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| Name: J.P. Lawrence |
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| Title: Senior Vice President and Treasurer |