IRON MOUNTAIN CANADA OPERATIONS ULC IRON MOUNTAIN INCORPORATED IRON MOUNTAIN REIT, INC. THE GUARANTORS NAMED HEREIN AND WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee SECOND SUPPLEMENTAL INDENTURE Dated as of January 20, 2015 TO SENIOR INDENTURE...
Exhibit 4.6
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IRON MOUNTAIN CANADA OPERATIONS ULC
IRON MOUNTAIN INCORPORATED
IRON MOUNTAIN REIT, INC.
THE GUARANTORS NAMED HEREIN
AND
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
Dated as of January 20, 2015
TO
SENIOR INDENTURE
Dated as of August 13, 2013
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TABLE OF CONTENTS
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ARTICLE 1 Assumption |
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Section 1.01. |
Assumption of Obligations |
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Section 1.02. |
Successor Corporation Substituted |
2 |
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ARTICLE 2 Miscellaneous |
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Section 2.01. |
Conflict of Any Provision of Indenture with Trust Indenture Act |
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Section 2.02. |
Duplicate Originals |
2 |
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Section 2.03. |
New York Law to Govern |
2 |
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Section 2.04. |
No Adverse Interpretation of Other Agreements |
2 |
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Section 2.05. |
Severability |
3 |
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Section 2.06. |
Effect of Headings |
3 |
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Section 2.07. |
No Personal Liability of Directors, Officers, Employees and Stockholders |
3 |
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Section 2.08. |
Provisions of Supplemental Indenture for the Sole Benefit of Parties and Holders |
3 |
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Section 2.09. |
Execution as Supplemental Indenture |
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Section 2.10. |
Ratification and Incorporation of Indenture |
3 |
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Section 2.11. |
Trustee |
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THIS SECOND SUPPLEMENTAL INDENTURE, dated as of January 20, 2015 (the “Second Supplemental Indenture”), is among IRON MOUNTAIN CANADA OPERATIONS ULC, an unlimited liability company organized and existing under the laws of British Columbia, Canada (the “Company”), IRON MOUNTAIN INCORPORATED, a Delaware corporation (“Iron Mountain”), , IRON MOUNTAIN REIT, INC., a Delaware corporation and wholly owned subsidiary of Iron Mountain (“Iron Mountain REIT”), the Guarantors signatory hereto (the “Guarantors”) and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”). Capitalized terms used herein without definition shall have the respective meanings ascribed to them in the Indenture (as defined below).
WITNESSETH THAT:
WHEREAS, Iron Mountain and the Trustee are parties to that certain Senior Indenture, dated as of August 13, 2013 (the “Base Indenture” and, as supplemented, amended or modified from time to time, including, without limitation, as supplemented by a supplemental indenture dated as of August 13, 2013, among the Company, Iron Mountain, the Guarantors named therein and ▇▇▇▇▇ Fargo Bank, National Association, as trustee, relating to the 6.125% CAD Senior Notes due 2021 (the “Securities”), as amended from time to time, the “Indenture”);
WHEREAS, Iron Mountain and Iron Mountain REIT entered into an Agreement and Plan of Merger dated as of November 12, 2014 (the “Merger Agreement”), providing for the merger of Iron Mountain with and into Iron Mountain REIT (the “Merger”), with Iron Mountain REIT as the surviving corporation;
WHEREAS, Section 5.1(b) of the Base Indenture provides that, with respect to Iron Mountain, in the event of a merger, the surviving corporation shall expressly assume by supplemental indenture all of Iron Mountain’s obligations under the Indenture and all the Securities;
WHEREAS, the Merger complies with the other provisions of Section 5.01 of the Base Indenture;
WHEREAS, Section 9.1(c) of the Base Indenture permits Iron Mountain and the Trustee to enter into a supplemental indenture to the Base Indenture without prior notice to or consent of the Holders of any outstanding Securities for the purpose of evidencing the assumption of Iron Mountain’s obligations to Holders of the Securities in the case of a merger, consolidation or amalgamation of Iron Mountain;
WHEREAS, effective as of 11:59 p.m., Eastern Time, on January 20, 2015 (the “Effective Time”), Iron Mountain will merge pursuant to the Merger Agreement, with Iron Mountain REIT as the surviving corporation (which will be renamed “Iron Mountain Incorporated” simultaneous with or immediately following the Merger);
WHEREAS, this Second Supplemental Indenture has not resulted in a material modification of the Securities for Foreign Account Tax Compliance Act (“FACTA”) purposes;
WHEREAS, Iron Mountain has requested that the Trustee execute and deliver this Supplemental Indenture and the execution and delivery of this Supplemental Indenture has been duly authorized in all respects; and
WHEREAS, all acts and requirements necessary to make this Supplemental Indenture, when executed and delivered by the parties hereto, the legal, valid and binding obligation of each of Iron Mountain and Iron Mountain REIT, in accordance with its terms, have been done.
NOW, THEREFORE:
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Securities.
ARTICLE 1
ASSUMPTION
Section 1.01. ASSUMPTION OF OBLIGATIONS.
Effective as of the Effective Time, Iron Mountain REIT, as the surviving entity in the Merger, expressly assumes by this Supplemental Indenture all of the obligations of Iron Mountain under the Indenture and all the Securities.
Section 1.02. SUCCESSOR CORPORATION SUBSTITUTED.
Effective as of the Effective Time, Iron Mountain REIT shall succeed to, and be substituted for (so that from and after the Effective Time, the provisions of the Indenture referring to the “Parent” shall refer instead to Iron Mountain REIT and not to Iron Mountain), and may exercise every right and power of, Iron Mountain under the Indenture with the same effect as if Iron Mountain REIT had been named as the Parent therein.
ARTICLE 2
MISCELLANEOUS
Section 2.01. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT.
If and to the extent that any provision of this Supplemental Indenture limits, qualifies or conflicts with another provision included in this Supplemental Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act (an “Incorporated Provision”), such Incorporated Provision shall control.
Section 2.02. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart by facsimile shall be effective as delivery of a manually executed counterpart thereof.
Section 2.03. NEW YORK LAW TO GOVERN.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 2.04. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Supplemental Indenture may not be used to interpret another indenture, loan or debt agreement of Iron Mountain, Iron Mountain REIT or any of their respective Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Supplemental Indenture.
Section 2.05. SEVERABILITY.
If any provision of this Supplemental Indenture shall be held to be invalid, illegal or unenforceable under applicable law, then the remaining provisions hereof shall be construed as though such invalid, illegal or unenforceable provision were not contained herein.
Section 2.06. EFFECT OF HEADINGS.
The Article and Section headings in this Supplemental Indenture and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 2.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator, stockholder or agent of Iron Mountain or Iron Mountain REIT, as such, shall have any liability for any obligations of Iron Mountain or Iron Mountain REIT under this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities of any series.
Section 2.08. PROVISIONS OF SUPPLEMENTAL INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS.
Nothing in this Supplemental Indenture, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Supplemental Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 2.09. EXECUTION AS SUPPLEMENTAL INDENTURE.
This Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Base Indenture and, as provided in the Base Indenture, this Supplemental Indenture forms a part thereof.
Section 2.10. RATIFICATION AND INCORPORATION OF INDENTURE.
As supplemented hereby, the Base Indenture is in all respects ratified and confirmed, and the Base Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
Section 2.11. TRUSTEE.
The Trustee makes no representations as to the validity or adequacy of this Supplemental Indenture, and it shall not be responsible for any statement or recital herein.
[Remainder of Page Left Blank Intentionally; Signature Page Follows Immediately.]
IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be duly executed, and attested, all as of the date and year first written above.
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IRON MOUNTAIN CANADA OPERATIONS ULC |
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By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Title: Senior Vice President and Treasurer |
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IRON MOUNTAIN INCORPORATED |
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By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Title: Senior Vice President and Treasurer |
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IRON MOUNTAIN REIT, INC. |
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By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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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 HOLDINGS GROUP, INC.
IRON MOUNTAIN INFORMATION MANAGEMENT SERVICES, INC.
IRON MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC.
IRON MOUNTAIN SECURE SHREDDING, INC.
IRON MOUNTAIN US HOLDINGS, INC.
MOUNTAIN RESERVE III, INC.
NETTLEBED ACQUISITION CORP.
IRON MOUNTAIN INFORMATION MANAGEMENT, LLC, and
IRON MOUNTAIN GLOBAL, LLC
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By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Title: Senior Vice President and Treasurer |
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▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Trustee
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By: |
/s/ Stefan Victory |
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Name: Stefan Victory |
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Title: Vice President |
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