|
Page
|
||||
|
ARTICLE
1. DEFINITIONS
|
1
|
|||
|
Section
1.1.
|
Definitions
|
1
|
||
|
ARTICLE
2. FORM AND TERMS OF THE NOTES
|
16
|
|||
|
Section
2.1.
|
Form
and Dating
|
16
|
||
|
Section
2.2.
|
Execution
and Authentication
|
17
|
||
|
Section
2.3.
|
Depository
and Paying Agent for Notes
|
18
|
||
|
Section
2.4.
|
Transfer
and Exchange of Notes
|
18
|
||
|
Section
2.5.
|
Redemption
|
20
|
||
|
Section
2.6.
|
Additional
Covenants
|
23
|
||
|
(a)
|
Restricted
Payments
|
23
|
||
|
(b)
|
Incurrence
of Indebtedness and Issuance of Preferred Stock
|
26
|
||
|
(c)
|
Liens
|
27
|
||
|
(d)
|
Dividend
and Other Payment Restrictions Affecting Restricted
Subsidiaries
|
27
|
||
|
(e)
|
Transactions
with Affiliates
|
29
|
||
|
(f)
|
Certain
Senior Subordinated Debt
|
30
|
||
|
(g)
|
Additional
Subsidiary Guarantees
|
30
|
||
|
(h)
|
Designation
of Unrestricted Subsidiaries
|
31
|
||
|
(i)
|
Limitation
on Sale and Leaseback Transactions
|
32
|
||
|
(j)
|
Asset
Sales
|
32
|
||
|
(k)
|
Change
of Control Offer
|
34
|
||
|
(1)
|
Changes
in Covenants When Notes Rated Investment Grade
|
36
|
||
|
(m)
|
Additional
Tax Amounts
|
36
|
||
|
(n)
|
Listing
|
38
|
||
|
Section
2.7.
|
Subsidiary
Guarantees
|
38
|
||
|
Section
2.8.
|
Legal
Defeasance and Covenant Defeasance
|
39
|
||
|
(a)
|
Ability
to Effect Legal Defeasance or Covenant Defeasance
|
39
|
||
|
(b)
|
Amend,
Restate and Replace Covenant Regarding Deposit
|
39
|
||
|
Section
2.9.
|
Subordination
|
39
|
||
|
Section
2.10.
|
Amend,
Restate and Replace Covenant Regarding Reports
|
39
|
||
|
Section
2.11.
|
Events
of Default
|
40
|
||
|
Section
2.12.
|
Notice
to Holders
|
40
|
||
|
Section
2.13.
|
Amend,
Restate and Replace Provision Regarding Amendment with the
Consent of
the
Holders of the Notes
|
41
|
||
|
Section
2.14.
|
Amend,
Restate and Replace Provision Regarding Limitations on Amendment
or Waiver
|
41
|
||
|
|
||||
|
ARTICLE
3. MISCELLANEOUS
|
42
|
|||
|
Section
3.1.
|
Effect
of Headings
|
42
|
||
|
Section
3.2.
|
Successors
and Assigns
|
42
|
||
|
Section
3.3.
|
Separability
Clause
|
42
|
||
|
Section
3.4.
|
Governing
Law
|
42
|
||
|
Section
3.5.
|
Fifth
Supplement to Supersede Indenture
|
42
|
||
|
(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
|
|
(2)
|
Indebtedness
encumbering any asset acquired by such specified Person.
|
|
(1)
|
EBITDA
of such Acquisition EBITDA Entity for the most recently ended four
full
fiscal 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
|
|
(2)
|
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.
|
|
(1)
|
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
|
|
(2)
|
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
Fifth Supplemental Indenture (Section 4.9 of the Indenture).
|
|
(1)
|
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
|
|
(2)
|
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
|
|
(1)
|
the
fair market value of the property subject to such arrangement (as
determined by the Board of Directors); and
|
|
(2)
|
the
present value (discounted at the rate of interest implicit in such
transaction) of the total obligations of the lessee for rental
payments
during the remaining terms of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease
has been
extended).
|
|
(1)
|
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;
|
|
(2)
|
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;
|
|
(3)
|
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;
|
|
(4)
|
money
market accounts or funds with or issued by Qualified Issuers; and
|
|
(5)
|
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.
|
|
(1)
|
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;
|
|
(2)
|
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 or other property,
other
than any such transaction where (i) the outstanding Voting Stock of
the Company is not converted or exchanged at all (except to the
extent
necessary to reflect a change in the jurisdiction of incorporation)
or is
converted into or exchanged for (A) Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person or
(B) cash, securities and other property (other than Capital Stock
described in the foregoing clause (A)) of the surviving or transferee
Person in an amount that could be paid as a Restricted Payment
pursuant to
Section 2.6(a) of the Fifth Supplemental Indenture (Section 4.8
of the
Indenture) and (ii) immediately after such transaction, no “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
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
total outstanding Voting Stock of the surviving or transferee Person;
|
|
(3)
|
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
662/3%
of the directors then still in office who were either directors
at the
beginning of such period or
|
|
(4)
|
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.
|
|
(1)
|
any
net after-tax extraordinary gains or losses (less all fees and
expenses
relating thereto);
|
|
(2)
|
any
net after-tax gains or losses (less all fees and expenses relating
thereto) attributable to Asset Sales;
|
|
(3)
|
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
|
|
(4)
|
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.
|
|
(1)
|
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:
|
|
(i)
|
amortization
of debt discount;
|
|
(ii)
|
the
net cost of interest rate contracts (including amortization of
discounts);
|
|
(iii)
|
the
interest portion of any deferred payment obligation;
|
|
(iv)
|
amortization
of debt issuance costs; and
|
|
(v)
|
the
interest component of Capital Lease Obligations of the Company
and its
Restricted Subsidiaries; plus
|
|
(2)
|
all
interest on any Indebtedness of any other Person guaranteed and
paid by
the Company or any of its Restricted Subsidiaries;
|
|
(1)
|
Consolidated
Interest Expense for such period; plus
|
|
(2)
|
Consolidated
Income Tax Expense for such period; plus
|
|
(3)
|
Consolidated
Non-Cash Charges for such period.
|
|
(1)
|
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
|
|
(2)
|
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.
|
|
(1)
|
the
present value of the remaining principal, premium and interest
payments
that would be payable with respect to such Note if such Note were
redeemed
on October 15, 2011, computed using a discount rate equal to the Bund
Rate plus 75 basis points, over
|
|
(2)
|
the
outstanding principal amount of such
Note.
|
|
(1)
|
the
sum of the principal amount of and Euro Make-Whole Amount with
respect to
such Note; and
|
|
(2)
|
the
redemption price of such Note on October 15,
2011.
|
|
(1)
|
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
|
|
(2)
|
Adjusted
EBITDA, after giving pro forma effect, without duplication, to
|
|
(i)
|
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;
|
|
(ii)
|
if
the Leverage Ratio is being determined in connection with the incurrence
of Indebtedness by the Company or a Restricted Subsidiary, such
Indebtedness; and
|
|
(iii)
|
the
Indebtedness to be incurred in connection with the acquisition
of any
Acquisition EBITDA Entity.
|
|
(1)
|
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
|
|
(2)
|
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.
|
|
(1)
|
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 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
|
|
(2)
|
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.
|
|
(1)
|
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
|
|
(2)
|
the
sum of:
|
|
(i)
|
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
|
|
(ii)
|
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
|
|
(iii)
|
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
|
|
(iv)
|
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
|
|
(1)
|
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 Fifth Supplemental Indenture (Section 4.9 of the Indenture);
|
|
(2)
|
any
Investments in Cash Equivalents;
|
|
(3)
|
Investments
by the Company or any Restricted Subsidiary of the Company in a
Person, if
as a result of such Investment;
|
|
(i)
|
such
Person becomes a Restricted Subsidiary (other than an Excluded Restricted
Subsidiary) of the Company; or
|
|
(ii)
|
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;
|
|
(4)
|
Investments
in assets (including accounts and notes receivable) owned or used
in the
ordinary course of business;
|
|
(5)
|
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
|
|
(6)
|
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).
|
|
(1)
|
Liens
existing as of the date of issuance of the Notes;
|
|
(2)
|
Liens
on property or assets of the Company or any Restricted Subsidiary
securing
Senior Debt;
|
|
(3)
|
Liens
on any property or assets of a Restricted Subsidiary granted in
favor of
the Company or any Wholly Owned Restricted Subsidiary;
|
|
(4)
|
Liens
securing the Notes or the Guarantees;
|
|
(5)
|
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 Fifth Supplemental Indenture (Section
4.9 of
the Indenture);
|
|
(6)
|
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;
|
|
(7)
|
Liens
securing Hedging Obligations permitted to be incurred pursuant
to
clause (7) of Section 2.6(b) of the Fifth Supplemental Indenture
(clause (7) of Section 4.9 of the
Indenture);
|
|
(8)
|
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;
|
|
(9)
|
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;
|
|
(10)
|
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;
|
|
(11)
|
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);
|
|
(12)
|
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;
|
|
(13)
|
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;
|
|
(14)
|
Liens
arising under options or agreements to sell assets;
|
|
(15)
|
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
|
|
(16)
|
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.
|
|
(1)
|
any
lender party to the Credit Agreement; or
|
|
(2)
|
any
commercial bank:
|
|
(i)
|
which
has capital and surplus in excess of $500,000,000; and
|
|
(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.
|
|
(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);
|
|
(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 so repaid, redeemed, defeased, extended, refinanced,
renewed,
replaced or refunded or shall mature after the maturity date of
the Notes;
|
|
(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;
|
|
(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
|
|
(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.
|
|
(1)
|
each
direct or indirect Subsidiary of the Company existing on the date
of the
Fifth Supplemental Indenture (other than Subsidiaries of Iron Mountain
Global, Inc. (including Iron Mountain Europe Limited, Iron Mountain
Mexico, S.A. de R.L. de C.V. and their respective Subsidiaries,
but
excluding, in any event, Iron Mountain Cayman Ltd., Iron Mountain
(Gibraltar) Holdings Limited, Iron Mountain (Netherlands) B.V.
and Iron
Mountain Switzerland GmbH), Iron Mountain Assurance Corporation,
Mountain
West Palm Real Estate, Inc. and Upper Providence Venture I, L.P.);
and
|
|
(2)
|
any
other direct or indirect Subsidiary of the Company formed, acquired
or
existing after the date of the Fifth Supplemental Indenture (including
an
Excluded Restricted Subsidiary),
|
|
(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
Fifth
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 Fifth Supplemental
Indenture or the Indenture, provided
that such Indebtedness shall be deemed not to have been incurred
in
violation of the Fifth 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 Fifth 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 Fifth 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
|
|
“Additional
Tax Amounts”
|
2.6(m)
|
|
“Affiliate
Transaction”
|
2.6(e)
|
|
“Asset
Sale”
|
2.6(j)
|
|
“Asset
Sale Offer”
|
2.6(j)
|
|
“Change
of Control Offer”
|
2.6(k)
|
|
“Change
of Control Payment”
|
2.6(k)
|
|
“Change
of Control Payment Date”
|
2.6(k)
|
|
“Code”
|
2.6(m)
|
|
“Commencement
Date”
|
2.6(j)
|
|
“Company”
|
Preamble
|
|
“Excess
Proceeds”
|
2.6(j)
|
|
“Fifth
Supplemental Indenture”
|
Preamble
|
|
“Indenture”
|
Recitals
|
|
“Offer
Amount”
|
2.5
|
|
“Offer
Period”
|
2.5
|
|
“Participants”
|
2.1(c)
|
|
“Previously
Issued Notes”
|
2.13
|
|
“Purchase
Date”
|
2.5
|
|
“Required
Consent”
|
2.13
|
|
“Restricted
Payments”
|
2.6(a)
|
|
“Tax
Authority
|
2.6(m)
|
|
“Tax
Redemption Date”
|
2.5
|
|
“Trustee”
|
Preamble
|
|
(x)
|
to
register the transfer of the Definitive Notes;
or
|
|
(y)
|
to
exchange such Definitive Notes for an equal principal amount of
Definitive
Notes of other authorized denominations, the Registrar shall register
the
transfer or make the exchange as requested if its requirements
for such
transactions are met; provided,
however,
that the Definitive Notes presented or surrendered for register
of
transfer or exchange shall be duly endorsed or accompanied by a
written
instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in
writing.
|
|
(i)
|
Euroclear
and Clearstream notify the Company that each is unwilling or unable
to
continue as Depository for the Global Note and a successor Depository
for
the Global Note is not appointed by the Company within 120 days
after
delivery of such notice; or
|
|
(ii)
|
a
Default under the Indenture has occurred and is
continuing,
|
|
(iii)
|
the
Company, in its sole discretion, notifies the Trustee that the
Company
elects to cause the issuance of Definitive Notes,
or
|
|
(iv)
|
certain
other events provided in the Indenture
occur,
|
|
(i)
|
To
permit registrations of transfers and exchanges, the Company shall
execute
and the Trustee shall authenticate Global Notes and Definitive
Notes upon
receipt of an Authentication Order in accordance with Section 2.2
hereof
or at the Registrar’s request.
|
|
(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 Fifth 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.
|
|
(iv)
|
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.
|
|
(v)
|
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.
|
|
(vi)
|
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
|
||
|
2011
|
103.375%
|
||
|
2012
|
102.250%
|
||
|
2013
|
101.125%
|
||
|
2014
and thereafter
|
100.000%
|
||
|
(1)
|
at
least €50.0 million in the aggregate principal amount of the Notes
(including any Additional Notes) issued under the Indenture remains
outstanding immediately
|
|
(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 3.10
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 Depository, 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,
Depository 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 €50,000, or integral
multiples 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
|
|
(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.
|
|
(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
|
|
(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 and has repurchased all
Notes
validly tendered for payment in connection with such Change of
Control
Offer; and
|
|
(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
Unrestricted Subsidiary) the calculation under clause (iii) of
the first
paragraph of this Section; and
|
|
(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’ acceptances incurred in the ordinary course of business up to an
aggregate of $5.0 million at any one time outstanding;
|
|
(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, replacements or refinancings are no more restrictive
in the
aggregate with respect to such dividend and other payment restrictions
than those contained in the Credit Agreement as in effect on the
date of
the Indenture;
|
|
(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
|
|
(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 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 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 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
|
|
(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 Fifth 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
|
|
(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 €50,000 in
principal amount or an integral multiple 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/
GARRY B. WATZKE
|
|
|
Name:
Garry
B. Watzke
Title:
Senior
Vice President and General Counsel
|
|
|
COMAC,
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.
|
|
|
By:
/s/
GARRY B. WATZKE
|
|
|
Name:
Garry B. Watzke
Title:
Senior Vice President and General Counsel
|
|
|
IRON
MOUNTAIN GLOBAL LLC
|
|
|
By:
Iron Mountain Global, Inc., its sole member
|
|
|
By:
/s/
GARRY B. WATZKE
|
|
|
Name:
Garry
B. Watzke
|
|
|
Title:
Senior
Vice President and General Counsel
|
|
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 CORREIA
|
|
|
Name:
John Correia
|
|
|
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 CORREIA
|
|
|
Name:
John Correia
|
|
|
Title:
Vice President
|
|
|
THE
BANK OF NEW YORK TRUST COMPANY, N.A.
|
|
|
By:
/s/ PETER M. MURPHY
|
|
|
Name:
Peter M. Murphy
|
|
|
Title:
Vice President
|
|
IRON
MOUNTAIN INCORPORATED
|
|
|
By:_________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
By:
_________________________________
|
|
|
Name:
|
|
|
Title
|
|
|
(SEAL)
|
|
Year
|
Percentage
|
|
2011
|
103.375%
|
|
2012
|
102.250%
|
|
2013
|
101.125%
|
|
2014
and thereafter
|
100.000%
|
|
¨
|
Section
4.17
|
|
¨
|
Section
4.18
|
|
Date:
__________
|
Your
Signature: ____________________________
|
|
Sign
exactly as your name appears on the Note)
|
|
|
Tax
Identification No.:_______________________
|
|
Date
of Exchange
|
Amount
of decrease in Principal Amount of this Global Note
|
Amount
of increase in Principal Amount of this Global Note
|
Principal
Amount of this Global Note following such decrease (or
increase)
|
Signature
of authorized office
of
Trustee or Service Agent
|
|
[Guaranteeing
Subsidiary]
|
|
|
By:________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
[Company]
|
|
|
By:
________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
[Trustee],
|
|
|
as
Trustee
|
|
|
By:
________________________________
|
|
|
Authorized
Signatory
|