EXHIBIT 10.2
Exchange and Registration Rights Agreement
This Exchange and Registration Rights Agreement (this
"Agreement") dated as of April 26, 1999 among Iron Mountain Incorporated (the
"Company"), a Delaware corporation, the Company's subsidiaries a party hereto
(the "Guarantors") and Bear, ▇▇▇▇▇▇▇ & Co. Inc. (the "Representative") on behalf
of itself and the other Initial Purchasers (the "Initial Purchasers")
signatories hereto, which Initial Purchasers have agreed to purchase from the
Company $150,000,000 in aggregate principal amount of the Company's 8 1/4%
Senior Subordinated Notes due 2011 (the "Notes") pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated as of April 19, 1999 (the "Purchase Agreement"), among the Company, the
Guarantors, the Representative and each of the other Initial Purchasers. The
Notes will be issued pursuant to an Indenture (the "Indenture") to be dated as
of April 26, 1999 between the Company, the Guarantors and The Bank of New York,
as trustee (the "Trustee"). As an inducement to the Initial Purchasers to enter
into the Purchase Agreement, the Company agrees with the Initial Purchasers, for
the benefit of the holders of the Notes and the Registered Notes (as herein
defined), as follows:
Section 1. Certain Defined Terms.
(a) As used in this Agreement, the following capitalized terms
shall have the following meanings:
"Broker-Dealer" means any broker or dealer registered under
the Exchange Act.
"Business Day" means any day other than a Saturday, a Sunday
or a day on which the banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
"Commission" means the United States Securities and Exchange
Commission.
"Consummate" means, with respect to a Registered Exchange
Offer, (i) the filing and declaration of effectiveness under the
Securities Act of the Exchange Offer Registration Statement relating to
the Registered Notes to be issued in the Registered Exchange Offer,
(ii) maintaining the continuous effectiveness of such Exchange Offer
Registration Statement and keeping the Registered Exchange Offer open
for a period of not less than 20 Business Days after the date of the
mailing of the Prospectus pursuant to Section 2(d)(i) hereof and (iii)
the delivery by the Company to the Registrar under the Indenture of the
Registered Notes in the same aggregate principal amount as the
aggregate principal amount of the Notes that were duly tendered by
Holders thereof pursuant to the Registered Exchange Offer, and
"Consummated" or "Consummation" shall have a correlative meaning.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated
thereunder.
"Exchange Offer Registration Statement" means a registration
statement (together with the Prospectus included therein, all
amendments and supplements thereto (including post-effective
amendments) and all exhibits and materials incorporated by reference
therein) with respect to the Registered Exchange Offer.
"Holder" means any Person who is the registered or beneficial
owner of the Notes or the Registered Notes, as the case may be.
"NASD" means the National Association of Securities Dealers,
Inc.
"Person" means an individual, partnership, corporation, joint
stock company, joint venture, trust, unincorporated organization or a
government, agency or political subdivision thereof, firm or other
entity.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented, including, without limitation,
by any post-effective amendments thereto, and all material incorporated
by reference into such prospectus.
"Registration Statement" means the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the context requires.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Shelf Registration Statement" means a registration statement
filed for a delayed or continuous period pursuant to Rule 415 or any
similar rule that may be adopted by the Commission under the Securities
Act (together with the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all
exhibits and materials incorporated by reference therein) with respect
to a Shelf Registration.
"TIA" means the United States Trust Indenture Act of 1939, as
amended and in effect on the date of the Indenture.
"Transfer Restricted Securities" means each Note and each
Registered Note, the Holder of which is subject to prospectus delivery
requirements of the Securities Act in order to sell such Note or
Registered Note, until the occurrence of any of the following events:
(i) the first date on which such Note may be
exchanged for a Registered Note in the Registered Exchange
Offer, if following such exchange such Holder would be
entitled to resell such Registered Note to the public without
complying with the prospectus delivery requirements of the
Securities Act;
(ii) the date on which such Note has been registered
pursuant to an effective Shelf Registration Statement under
the Securities Act and disposed of in
2
accordance with the "Plan of Distribution" section of the
Prospectus contained in such Shelf Registration Statement;
(iii) the date on which such Note is sold to the
public pursuant to Rule 144 under the Securities Act or by a
Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein); or
(iv) such Note or Registered Note, as the case may
be, shall have ceased to be outstanding.
(b) Each of the following terms is defined in the Section set
forth opposite such term:
Term Section
---- -------
Agent 10(h)
Agreement Preamble
Company Preamble
Indemnified Holder 7(a)
Indenture Preamble
Initial Purchasers Preamble
Interest Rate Increase 8
Issue Date 2(a)(i)
Losses 7(a)
Notes Preamble
Participating Broker-Dealer 4(a)
Purchase Agreement Preamble
Registered Exchange Offer 2(a)
Registered Notes 2(a)
Registration Default 8
Representative Preamble
Shelf Registration 3(a)
Trustee Preamble
Section 2. Registered Exchange Offer.
(a) The Company and the Guarantors shall:
(i) prepare and, not later than 75 calendar days
after the Issue Date (as defined in the Indenture), use their
best efforts to file with the Commission an Exchange Offer
Registration Statement on an appropriate form under the
Securities Act with respect to a proposed offer to exchange
(the "Registered Exchange Offer") any and all of the
outstanding Notes (including, if permitted by the then
prevailing interpretations of the staff of the Commission, any
Notes held by any of the Initial Purchasers having the status
of an unsold allotment in the initial distribution) for a like
aggregate principal amount of the Company's 8 1/4%
3
Senior Subordinated Notes due 2011 guaranteed by the
Guarantors (the "Registered Notes");
(ii) unless it would be a violation of applicable law
or Commission staff interpretation, use their best efforts to
cause the Exchange Offer Registration Statement to become
effective under the Securities Act as soon as practicable
thereafter, but in no event later than 180 calendar days after
the Issue Date, and to keep the Exchange Offer Registration
Statement effective for a period of 180 calendar days after
the Consummation of the Registered Exchange Offer;
(iii) in connection with the foregoing, use their
best efforts to file (A) all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in
order to cause such Exchange Offer Registration Statement to
become effective and (B) cause all necessary filings, if any,
in connection with the registration and qualification of the
Registered Notes to be made under the "blue sky" laws of such
jurisdictions as are necessary to permit Consummation of the
Registered Exchange Offer except that in no event shall the
Company or the Guarantors be obligated in connection therewith
to qualify as a foreign corporation or to execute a general
consent to service of process or to take any other action that
would subject it or them to service of process in suits in any
jurisdiction other than those arising out of the offering or
sale of the Notes in such jurisdiction pursuant to such
Exchange Offer Registration Statement; and
(iv) upon the effectiveness of the Exchange Offer
Registration Statement, promptly commence the Registered
Exchange Offer to enable each Holder of the Notes (other than
Holders who are affiliates of the Company (within the meaning
of the Securities Act) or underwriters (as defined in the
Securities Act) with respect to the Registered Notes) to
exchange the Notes for Registered Notes.
The Company and the Guarantors shall cause the Exchange Offer
Registration Statement and the related Prospectus, as of the effective
date of such Exchange Offer Registration Statement, (i) to comply with
the applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not misleading.
(b) The Company and the Guarantors shall cause the Registered
Exchange Offer to be consummated in compliance with the Securities Act,
the Exchange Act and all other applicable laws and regulations. No
securities other than the Registered Notes shall be included in the
Exchange Offer Registration Statement. The Company and the Guarantors
shall use their best efforts to cause the Registered Exchange Offer to
be Consummated no later than 30 calendar days (or longer if required by
applicable law) after the effective date of the Exchange Offer
Registration Statement. The Registered Exchange Offer shall be on an
appropriate form under the Securities Act as to permit resales of
Registered Notes by delivering the Prospectus contained in the Exchange
Offer Registration Statement.
4
(c) The Company and the Guarantors shall use their best
efforts to keep the Exchange Offer Registration Statement continuously
effective and to amend and supplement the Prospectus contained therein
in order to permit such Prospectus to be lawfully delivered by all
persons subject to the prospectus delivery requirements of the
Securities Act for a period of up to 180 calendar days after the
Consummation of the Registered Exchange Offer (or such longer period if
extended pursuant to Section 4(c)(ix)).
(d) In connection with the Registered Exchange Offer, the
Company and the Guarantors shall:
(i) mail, or cause to be mailed, to each Holder of
the Notes a copy of the Prospectus forming a part of the
Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for a
period of not less than 20 Business Days after the date notice
thereof is mailed to the Holders of the Notes (or longer if
required by applicable law);
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York; and
(iv) permit Holders of the Notes to withdraw tendered
Notes at any time prior to the close of business, New York
time, on the last Business Day on which the Registered
Exchange Offer shall remain open (the "Exchange Date").
(e) As soon as practicable after the Exchange Date, the
Company and the Guarantors shall:
(i) accept for exchange all Notes duly tendered and
not validly withdrawn pursuant to the Registered Exchange
Offer;
(ii) deliver or cause to be delivered to the Trustee
for cancellation all Notes or portions thereof so accepted for
exchange by the Company;
(iii) execute and deliver to, or cause to be
delivered to, the Trustee for authentication and delivery,
Registered Notes in an aggregate principal amount equal to the
aggregate principal amount of the Notes so accepted for
exchange; and
(iv) cause the Trustee to authenticate and deliver
promptly to each Holder of the Notes accepted for exchange,
Registered Notes having an aggregate principal amount at
maturity equal to the aggregate principal amount at maturity
of the Notes surrendered by such Holder and accepted for
exchange.
5
Section 3. Shelf Registration.
(a) If:
(i) because of any change in law or in then
prevailing interpretations of the staff of the Commission, the
Company is not permitted to effect a Registered Exchange Offer
as contemplated by Section 2 hereof or Holders of the Notes
(other than Holders who would not be permitted to participate
in the Registered Exchange Offer) would not receive freely
tradeable Registered Notes upon the Consummation of the
Registered Exchange Offer, other than as the result of such
holder being an affiliate of the company,
(ii) the Registered Exchange Offer is not Consummated
within the earlier of 210 calendar days after the Issue Date
and 30 calendar days (or longer if required by applicable law)
after the date the Exchange Offer Registration Statement is
declared effective by the Commission, or
(iii) the Representative so requests with respect to
Notes acquired and held by the Initial Purchasers as part of
their initial distribution,
the Company and the Guarantors shall take the following actions:
(A) After the occurrence of one of the
events described in 3(a)(i), (ii) or (iii), the
Company and the Guarantors shall use their best
efforts to prepare and file with the Commission as
promptly as practicable a Shelf Registration
Statement on an appropriate form under the Securities
Act relating to the offer and sale by the Holders of
the Notes in accordance with the methods of
distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act (a
"Shelf Registration") and use their best efforts to
cause such Shelf Registration Statement to be
declared effective as promptly as practicable after
such filing but in no event later than 90 calendar
days after the occurrence of one of the events
described in 3(a)(i), (ii) or (iii); provided that,
with respect to Notes acquired and held by the
Initial Purchasers as part of an unsold allotment in
the initial distribution, the Company and the
Guarantors, at their option, may, if permitted by
then-current interpretations by the Commission's
staff, file a post-effective amendment to the
Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507
and/or 508, as applicable, in satisfaction of its
obligations under Section 3(a)(iii) with respect
thereto; and
(B) The Company and the Guarantors shall
keep the Shelf Registration Statement continuously
effective, and agrees to amend or supplement the
prospectus contained therein (and use their best
efforts to cause any such amendment to become and
remain effective) in order to permit the prospectus
included therein to be available for resales of, and
lawfully delivered by the Holders of, the Notes
covered thereby, until the
6
earliest of (x) the second anniversary of the Issue
Date (or for such longer period if extended pursuant
to Section 4(i)(ix)), (y) such time as all the Notes
covered by such Shelf Registration Statement have
been sold pursuant thereto or (z) the date on which
all persons that are not affiliates may resell the
Notes pursuant to Rule 144(k) under the Securities
Act or the date on which the Notes otherwise cease to
be Transfer Restricted Securities.
(b) The Company and the Guarantors shall cause any Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of such Shelf Registration
Statement, amendment or supplement, (i) to comply with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made not misleading.
Section 4. Registration Procedures.
(a) Registered Exchange Offer. In connection with the
Registered Exchange Offer:
(i) the Company and the Guarantors shall comply with
all of the provisions of Section 4(c) (other than those that
are not applicable);
(ii) prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall make the following
representations (in substantially the form set forth below) to
the staff of the Commission:
(A) that the Company is registering the
Registered Notes and the Registered Exchange Offer in
reliance on the position of the staff of the
Commission enunciated in "Exxon Capital Holdings
Corporation" SEC No-Action Letter (the "Exxon Capital
Letter") (available May 13, 1988), "▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and Co., Inc." SEC No-Action Letter (available June
5, 1991), and "Shearman & Sterling" SEC No-Action
Letter (available July 2, 1993); and
(B) that the Company has not entered into
any arrangement or understanding with any person to
distribute the Registered Notes to be received in the
Registered Exchange Offer and that, to the best of
the Company's information and belief, each Person
participating in the Registered Exchange Offer is
acquiring the Registered Notes in its ordinary course
of business and has no arrangement or understanding
with any person to participate in the distribution of
the Registered Notes to be received in the Registered
Exchange Offer. In this regard, the Company will make
each person participating in the Registered Exchange
Offer aware (through the Prospectus included in the
Exchange Offer
7
Registration Statement or otherwise) that, if the
Registered Notes and the Registered Exchange Offer
are being registered for the purpose of secondary
resales of the Registered Notes, any Holder using the
Registered Exchange Offer to participate in a
distribution of the Registered Notes (1) could not
rely on the staff position enunciated in the Exxon
Capital Letter or similar letters and (2) must comply
with registration and prospectus delivery
requirements of the Securities Act in connection with
any secondary resale transaction of the Registered
Notes. The Company acknowledges that such a secondary
resale transaction should be covered by an effective
registration statement containing the selling
security holder information required by Item 507 of
Regulation S-K;
(iii) the Company will require each Holder that is a
Broker-Dealer and that is the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Notes acquired for its
own account as a result of market-making activities or other
trading activities (a "Participating Broker-Dealer"), to
include a representation in such Participating Broker-Dealer's
letter of transmittal with respect to the Registered Exchange
Offer that such Participating Broker-Dealer has not entered
into any arrangement or understanding with the Company or any
affiliate of the Company to distribute the Registered Notes;
and
(iv) the Company (1) will make each Person
participating in the Registered Exchange Offer aware (through
the prospectus included in the Exchange Offer Registration
Statement or otherwise) that any Broker-Dealer who holds Notes
acquired for its own account as a result of market-making
activities or other trading activities, and who receives
Registered Notes in exchange for such Notes pursuant to the
Registered Exchange Offer, may be a statutory underwriter and
in connection with any resale of such Registered Notes must
deliver a Prospectus meeting the requirements of the
Securities Act and describing the methods by which
Participating Broker-Dealers may resell such Registered Notes,
and (2) will include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order
to participate in the Registered Exchange Offer the following
additional provision:
"If the undersigned is a broker-dealer
holding Notes acquired for its own account
as a result of market-making activities or
other trading activities, the undersigned
hereby acknowledges that it will deliver a
prospectus meeting the requirements of the
Securities Act in connection with any resale
of Registered Notes received in respect of
such Notes pursuant to the Registered
Exchange Offer"
and the transmittal letter or similar documentation may also
include a statement to the effect that by so acknowledging and
by delivering a prospectus, a Broker-Dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the
Securities Act;
8
(v) as a condition to its participation in the
Registered Exchange Offer pursuant to the terms of this
Agreement, each Holder of the Notes who tenders such Notes
pursuant to the Registered Exchange Offer shall furnish a
written representation to the Company (which may be contained
in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that by accepting
the Registered Exchange Offer, such Holder represents to the
Company that:
(A) it is not an affiliate of the Company
(within the meaning of the Securities Act);
(B) it is not engaged in and does not intend
to engage in, and has no arrangement or understanding
with any person to participate in, a distribution of
the Registered Notes to be issued in the Registered
Exchange Offer;
(C) it is acquiring the Registered Notes in
its ordinary course of business; and
(D) if it is a Participating Broker-Dealer
holding Notes acquired for its own account as a
result of market-making activities or other trading
activities, it acknowledges that it will deliver a
prospectus meeting the requirements of the Securities
Act in connection with any resale of Registered Notes
received in respect of such Notes pursuant to the
Registered Exchange Offer;
and the transmittal letter or similar documentation may also
include a statement to the effect that by so acknowledging and
by delivering a prospectus, a Broker-Dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the
Securities Act; and
(vi) the Company shall include within the Prospectus
contained in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," in form and substance
reasonably acceptable to the Representative, which shall
contain:
(A) a statement substantially to the effect
that any Broker-Dealer and any Holder using the
Registered Exchange Offer to participate in a
distribution of the Registered Notes to be acquired
in the Registered Exchange Offer:
(I) could not under Commission
policy as in effect on the date of this
Agreement rely on the position of the
Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
Co. Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May
13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling
(available July 2, 1993), and similar
no-action letters, and
9
(II) must comply with the
registration and prospectus delivery
requirements of the Securities Act in
connection with a secondary resale
transaction of the Registered Notes and that
such a secondary resale transaction should
be covered by an effective registration
statement containing the selling security
holder information required by Item 507 or
508, as applicable, of Regulation S-K; and
(B) a summary statement of the positions
taken or policies made by the Staff of the Commission
with respect to the potential "underwriter" status of
any Participating Broker-Dealer.
Such "Plan of Distribution" section shall also allow the use
of the Prospectus by Participating Broker-Dealers for a period of 180 calendar
days from the Consummation of the Exchange Offer, or such shorter period as will
terminate when all the Notes acquired by Participating Broker-Dealers have been
exchanged for the Registered Notes and resold by such broker-dealers, and
include a statement to the effect that any Broker-Dealer who holds Notes
acquired for its own account as a result of market-making activities or other
trading activities, and who receives Registered Notes in exchange for such Notes
pursuant to the Registered Exchange Offer, may be a statutory underwriter and
must deliver a Prospectus meeting the requirements of the Securities Act in
connection with any resale of such Registered Notes and that any profit or
commissions received by such Broker-Dealer may be deemed to be underwriting
compensation under the Securities Act, and describing the means by which
Participating Broker-Dealers may resell the Registered Notes. The "Plan of
Distribution" section in the Prospectus contained in the Exchange Offer
Registration Statement shall not name any such Participating Broker-Dealer or
disclose the amount of Notes held by any such Participating Broker-Dealer except
to the extent required by Commission policy.
(b) Shelf Registration Statement. In connection with any Shelf
Registration Statement, the Company and the Guarantors shall comply
with all the provisions of Section 4(c) (other than those that are not
applicable) and shall effect such registration to permit the resale of
Notes being sold in accordance with the intended method or methods of
distribution set forth in the Shelf Registration Statement.
(c) Registration Procedures. In connection with any
Registration Statement and any Prospectus required by this Agreement,
the Company and the Guarantors shall:
(i) prepare and file with the Commission a
Registration Statement on the appropriate form under the
Securities Act, which form (x) shall be selected by the
Company and (y) shall, in the case of a Shelf Registration
Statement, be available for the sale of Notes by the selling
Holders thereof and (z) shall comply as to form with the
requirements of the Securities Act and the rules and
regulations thereunder, and include all financial statements
required by the Commission to be filed therewith, and use
their best efforts to cause such Registration Statement to
become effective and to keep such Registration Statement
continuously effective for the period provided for in Section
2, in the
10
case of an Exchange Offer Registration Statement, and for the
period provided for in Section 3, in the case of a Shelf
Registration Statement;
(ii) (A) prepare and file with the Commission such
amendments and post-effective amendments to such Registration
Statement as may be necessary to keep such Registration
Statement effective for the applicable period set forth in
Section 2 or Section 3, as the case may be; and (B) cause each
Prospectus to be supplemented by any required prospectus
supplement, and, as so supplemented, cause the Prospectus to
be filed pursuant to Rule 424 under the Securities Act and to
comply in all material respects with the applicable provisions
of Rules 424 and 430A under the Securities Act in a timely
manner;
(iii) advise the Initial Purchasers, each Holder of
the Notes included in the Shelf Registration Statement and,
with respect to the Exchange Offer Registration Statement, any
Participating Broker-Dealer from whom the Company has received
prior written notice that it will be a Participating
Broker-Dealer in the Registered Exchange Offer:
(A) when each Registration Statement or any
amendment thereto has been filed with the Commission
and when each such Registration Statement or any
post-effective amendment thereto has been declared
effective;
(B) of any request by the Commission for
amendments or supplements to a Registration Statement
or the Prospectus included therein or for additional
information;
(C) of the issuance by the Commission of any
stop order suspending the effectiveness of a
Registration Statement or the initiation or
threatening of any proceedings for that purpose;
(D) of the receipt by either of the Company
or its legal counsel of any notification with respect
to the suspension of the qualification of the Notes
or the Registered Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding
for such purpose;
(E) when the prospectus contained in any
Registration Statement may not be used for offers or
sales of the Registered Notes because (x) of the
existence of any fact or the happening of any event
(including any material non-public information) that
makes untrue any statement of a material fact made in
the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document
incorporated by reference therein, or that requires
the making of any additions to or changes in the
Registration Statement or the Prospectus in order to
make the statements therein not misleading or (y)
such prospectus shall not contain the current
information required by the Securities Act and the
rules and regulations of the Commission or (z) the
Company
11
determines that it is advisable to suspend the use of
the Prospectus for no more than 15 days, no more than
twice in any given twelve month period, due to
pending material corporate developments or similar
material events that have not yet been publicly
disclosed and as to which the Company believes public
disclosure will be prejudicial to the Company; it
being understood that any notice delivered pursuant
to this subparagraph need not specifically recite the
reasons for its delivery, provided that the Company
consults with the Representative prior to such
notice's delivery as to the reasons underlying such
notice;
(iv) use their best efforts to prevent the issuance
of any order of the Commission suspending the effectiveness of
a Registration Statement; and if at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or
other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Notes or
the Registered Notes under state securities or "blue sky"
laws, the Company and the Guarantors shall use their best
efforts to obtain the withdrawal of such order at the earliest
possible time, and provide prompt notice of the withdrawal of
any such order to each Holder of any Notes included in the
Shelf Registration Statement, and, with respect to the
Exchange Offer Registration Statement, to any Participating
Broker-Dealer participating in the Registered Exchange Offer;
(v) furnish to the Initial Purchasers, upon request,
and, in the case of a Shelf Registration, to each Holder of
any Notes included in the Shelf Registration Statement, and
counsel to the Initial Purchasers referred to in Section 5, a
reasonable time prior to filing with the Commission, copies of
any Registration Statement or any Prospectus included therein
and any amendments or supplements thereto (including all
documents incorporated by reference prior to the effectiveness
of such Registration Statement), which documents, other than
documents incorporated by reference, will be subject to the
review of such Initial Purchasers for a period of at least
five Business Days, and the Company shall use its best efforts
to reflect in each such document when so filed with the
Commission, such comments as the Representative or such
Holders reasonably may propose within five Business Days after
the receipt thereof;
(vi) promptly prior to the filing of any document
that is to be incorporated by reference into a Registration
Statement or Prospectus subsequent to the effectiveness
thereof (A) if requested, provide copies of such document to
any Holder of any Notes included in such Registration
Statement, to the Initial Purchasers and (B) make
representatives of the Company available for discussion of
such document and other customary due diligence matters, and
(C) use its best efforts to include such information in such
document prior to the filing thereof as Holders or the Initial
Purchasers may reasonably request;
(vii) (A) make available at reasonable times for
inspection by the Initial Purchasers and, in the case of a
Shelf Registration, Holders of any Notes included
12
in such Registration Statement, and any attorney or accountant
retained by such Holder or the Initial Purchasers, or any
underwriter participating in any disposition pursuant to a
Shelf Registration Statement, all relevant financial and other
records, pertinent corporate documents and properties of the
Company and the Guarantors and (B) cause the officers,
directors and employees of the Company to supply all
information reasonably requested by any such Holder, Initial
Purchaser, attorney, accountant or underwriter in connection
with such Registration Statement subsequent to the filing
thereof and prior to its effectiveness, in each case, as is
customary for similar due diligence examinations; provided,
however, that the foregoing inspection and information
gathering shall, to the greatest extent possible, be
coordinated by and on behalf of such Holders, Initial
Purchasers and other parties and be limited to a reasonable
number of inspections in any 12-month period; it being
recognized that any such inspections undertaken in connection
with the release of quarterly or annual financial information
of the Company or other material event shall be deemed
reasonable; (viii) if requested by the Holders of a majority
of the principal amount of the Notes included in a Shelf
Registration Statement or the Initial Purchasers, (A) promptly
incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders or the Initial
Purchasers may reasonably request, and to which the Company
does not reasonably object, to have included therein,
including, without limitation, information relating to the
"Plan of Distribution" of the Notes, the purchase price being
paid therefor and any other terms of the offering of the Notes
to be sold in such offering, and (B) make all required filings
of any such Prospectus supplement or post-effective amendment
as promptly as practicable after the Company is notified of
the matters to be incorporated in such Prospectus supplement
or post-effective amendment;
(ix) upon the occurrence of any event of the kind
described in Section 4(c)(iii)(E) or any other event that
would cause such Registration Statement or the Prospectus
contained therein not to be effective and usable for resales
of Notes or Registered Notes during the period required by
this Agreement, promptly (except as contemplated by Section
2(c) or 3(a)(iii)(B) hereof) prepare a post-effective
amendment to the applicable Registration Statement or a
supplement to the related Prospectus and use their best
efforts to cause such amendment to be declared effective, or
file any other required document so that the Registration
Statement and the Prospectus, as thereafter delivered to
Holders of the Transfer Restricted Securities or the
purchasers of Transfer Restricted Securities, (A) will not
contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading and (B) will contain all current
information required by the Securities Act. If the Initial
Purchasers, the Holders of any Notes or Registered Notes
covered by a Registration Statement or any known Participating
Broker-Dealer is required by the terms of this Agreement to
suspend the use of a Prospectus until the requisite changes to
such Prospectus have been made, then
13
the period of effectiveness of the applicable Shelf
Registration Statement provided for in Section 3 and the
Exchange Offer Registration Statement provided for in Section
2 shall each be extended by the number of days during the
period from and including the date such notice is required to
be given under this Agreement to and including the date when
the Initial Purchasers, each selling Holder covered by such
Registration Statement, and any known Participating
Broker-Dealer shall have received an amended or supplemented
Prospectus contemplated by this clause (ix) or shall have
received Advice (as defined below) from the Company;
(x) in the case of a Registered Exchange Offer,
deliver (A) to the Representative one manually signed copy of
the Exchange Offer Registration Statement and (B) to each of
the other Initial Purchasers at least one copy of the Exchange
Offer Registration Statement, in each case without charge and
with and any post-effective amendment thereto, including
financial statements and schedules, and, if the recipient
requests, all exhibits (including those, if any, incorporated
by reference);
(xi) in the case of a Registered Exchange Offer,
deliver to the Initial Purchasers, any Participating
Broker-Dealer and such other persons required to deliver a
Prospectus in connection with the offering and sale of the
Registered Notes following the Registered Exchange Offer,
without charge, as many copies of the final Prospectus
included in the Exchange Offer Registration Statement and any
amendment or supplement thereto as such persons may reasonably
request, and, in connection therewith, the Company and each of
the Guarantors hereby consents, subject to any notice by the
Company in accordance with this Section 4(c) of the existence
of any fact or event of the kind described in Section
4(c)(iii)(E), to the use of the Prospectus or any amendment or
supplement thereto by the Initial Purchasers, if necessary,
any Participating Broker-Dealer and such other persons as are
required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the
Registered Notes covered by the Prospectus, or any amendment
or supplement thereto, included in such Exchange Offer
Registration Statement;
(xii) in the case of a Shelf Registration, furnish to
the Representative, without charge, one manually signed copy
of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and
schedules, and, if the recipient Holder so requests, all
exhibits (including those, if any, incorporated by reference);
(xiii) in the case of a Shelf Registration, deliver,
without charge, to the Initial Purchasers and each Holder of
the Notes included within the coverage of a Shelf Registration
Statement which was declared effective by the Commission as
many copies of the Prospectus (including each preliminary
prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such person may
reasonably request, and, in connection therewith, the Company
and each of the Guarantors hereby consents, subject to any
notice by the Company in accordance with this Section 4(c) of
the existence of any fact or event of the
14
kind described in Section 4(c)(iii)(E), to the use of the
Prospectus or any amendment or supplement thereto by each of
the selling Holders of the Notes in connection with the
offering and sale of the Notes covered by the Prospectus, or
any amendment or supplement thereto, included in such Shelf
Registration Statement,
(xiv) in the case of a Shelf Registration, (A) enter
into such customary agreements and take all such other actions
in connection therewith in order to expedite or facilitate the
offering or disposition of the Notes included in the Shelf
Registration Statement, including, but not limited to,
furnishing to each Initial Purchaser and each Holder of any
Notes included in the Shelf Registration Statement, in such
substance and scope as they may request and as are customarily
made by issuers to underwriters in primary underwritten
offerings, upon the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of
effectiveness of the Shelf Registration
Statement, signed by (x) the president or
chief executive officer of the Company and
(y) the chief financial officer or the
principal financial or accounting officer of
the Company, confirming, as of the date
thereof, that the Shelf Registration
Statement and the related Prospectus do not
contain any untrue statement of a material
fact or omit to state a material fact
required to be stated therein or necessary
to make the statements therein not
misleading and as to such other matters as
such parties may reasonably request;
(2) opinions, dated the date of
effectiveness of the Shelf Registration
Statement, of outside counsel for the
Company, covering such matters as are
customarily included in opinions to
underwriters in primary underwritten
offerings and as are reasonably requested by
such parties; and
(3) a customary comfort letter,
dated as of the date of effectiveness of the
Shelf Registration Statement, from the
independent certified public accountants of
the Company, in customary form and covering
matters of the type customarily covered in
comfort letters by underwriters in
connection with primary underwritten
offerings, and addressing, to the extent
relevant, the matters set forth in the
comfort letters delivered pursuant to
Section 6(h) of the Purchase Agreement;
(B) in the case of an underwriting agreement
entered into in connection with a Shelf Registration,
set forth in full indemnification provisions and
procedures substantially in the form of those set
forth in Section 7 hereof with respect to all parties
required to be indemnified pursuant to such Section
7; and
15
(C) deliver such other documents and
certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above.
The Company shall be required to make an underwritten
offering only upon the request of Holders of at least 20% of
the aggregate principal amount of the Registered Notes
outstanding at the time such request is delivered to the
Company.
(xv) prior to any public offering of any Notes
pursuant to a Shelf Registration Statement, (A) cooperate with
the selling Holders participating in a Shelf Registration, and
their respective counsel, in connection with the registration
and qualification of the Notes under the securities or "blue
sky" laws of such jurisdictions as the selling Holders may
request, and (B) do any and all other acts or things necessary
or advisable to enable the offering or disposition in such
jurisdictions of the Notes, as the case may be, covered by the
Shelf Registration Statement; except that in no event shall
Company or any Guarantor be obligated in connection therewith
to qualify as a foreign corporation or to execute a general
consent to service of process or to take any other action that
would subject it to service of process in suits in any
jurisdiction other than those arising out of the offering or
sale of Notes in such jurisdiction pursuant to such
Registration Statement;
(xvi) to the extent that any Notes are held in
certificated form and are not represented by global
certificates, cooperate with the holders of such Notes, in
connection with the Registered Exchange Offer, to include an
aggregate principal amount of such Notes in a global
certificate representing the Registered Notes, and, to the
extent that any Notes or Registered Notes are not eligible to
be held in book-entry form, prepare and deliver Notes or
Registered Notes in certificated form as the Holders may
request; provided, in either case, that the Company and the
Guarantors will cooperate with participating Broker Dealers
(in the case of a Registered Exchange Offer) and any Holders
selling Notes pursuant to a Shelf Registration Statement, to
facilitate the timely delivery of such certificates (whether
in book-entry or certificated form as provided above)
representing such Registered Notes or Notes, as the case may
be, to be sold which do not bear any restrictive legends
(other than any customary legend required by the applicable
depository or any legend that would be required by a Note or
Registered Note held by an affiliate of the Company);
(xvii) use their best efforts to cause the Notes or
Registered Notes covered by the Registration Statement to be
registered with or approved by such other governmental
agencies or authorities (except as may be required solely as
consequence of a Holder's business) as may be necessary to
enable the Consummation of the Registered Exchange Offer or,
in the case of a Shelf Registration, as may be applicable to
the Company with respect to filing and having declared
effective the Shelf Registration Statement;
16
(xviii) obtain appropriate CUSIP numbers for each
series of Registered Notes not later than the effective date
of the Registration Statement and provide the Trustee with
printed certificates for the Notes or Registered Notes, as the
case may be, in a form eligible for deposit with The
Depository Trust Company, or with ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Brussels Office, as operator of the
Euroclear System ("Euroclear") and Cedel Bank, Societe Anonyme
("CEDEL");
(xix) otherwise use their best efforts to comply with
all applicable rules and regulations of the Commission, and
make generally available to its security holders, no later
than 45 days after the end of any fiscal quarter (or 90 days
after the end of any fiscal year), a consolidated earnings
statement (which need not be audited) satisfying the
requirements of Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 under the
Securities Act) for a period of at least twelve months
beginning after the effective date of a Registration
Statement; and
(xx) cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required to be filed by this Agreement,
and, in connection therewith: (A) cooperate with the Trustee
and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and (B)
execute, and use all reasonable efforts to cause the Trustee
to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so
qualified in a timely manner.
Each Initial Purchaser, each Holder of Notes included in a
Shelf Registration Statement and each Participating Broker-Dealer using the
prospectus included in the Exchange Offer Registration Statement for the resale
of Registered Notes, by its acquisition of a Note or a Registered Note, agrees
that, upon receipt of any notice from the Company of the existence of any fact
or event of the kind described in Section 4(c)(iii)(E), such Initial Purchaser,
Holder or Participating Broker-Dealer will forthwith discontinue disposition of
the Notes or the Registered Notes, as applicable, and suspend the use of the
Prospectus until such Initial Purchaser, Holder or Participating Broker-Dealer
has received copies of a supplemented or amended Prospectus as contemplated by
Section 4(c)(ix), or until it is advised in writing (the "Advice") by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus. If so directed by the Company, each such Initial Purchaser, each
such selling Holder of Notes or each such Participating Broker-Dealer, as the
case may be, will deliver to the Company (at the expense of the Company) all
copies, other than permanent file copies then in such Holder's, Initial
Purchaser's or Participating Broker-Dealer's possession, of the Prospectus
covering such Notes or Registered Notes, as applicable, that was current at the
time of receipt of such notice.
17
Section 5. Hold-Back Agreements.
The Company agrees, without the prior written consent of the
Representative, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or any Guarantor or warrants to purchase debt
securities of the Company or any Guarantor substantially similar to the Notes
(other than (i) the Notes, (ii) the Registered Notes, (iii) the Guarantees (as
defined in the Purchase Agreement), (iv) the Registered Guarantees (as defined
in the Purchase Agreement) and (v) commercial paper issued in the ordinary
course of business), from the date of this Agreement through the earlier of (i)
45 calendar days after the Consummation of the Registered Exchange Offer and
(ii) 210 calendar days after the Issue Date.
Section 6. Registration Expenses.
All expenses incident to the Company's performance of or
compliance with its obligations under Sections 2, 3 and 4 of this Agreement will
be borne by the Company regardless of whether a Registration Statement becomes
effective, and, in the case of a Shelf Registration Statement, the Company will
reimburse the Holders covered thereby for the reasonable fees and disbursements
of one counsel designated by the Holders of a majority of the principal amount
of the Notes or Registered Notes included in any such Registration Statement to
act as counsel for the Holders in connection therewith.
Section 7. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company
and each of the Guarantors, jointly and severally, agrees to indemnify
and hold harmless (i) each Initial Purchaser, each Participating
Broker-Dealer and each Holder of Notes to be included in such
Registration Statement, (ii) each person, if any, who controls (within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any such Initial Purchaser, Participating Broker-Dealer
or Holder (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person") and (iii) the
respective officers, directors, partners, employees, representatives
and agents of any such Initial Purchaser, Participating Broker-Dealer
or Holder or controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified
Holder") from and against any and all losses, liabilities, claims,
damages and expenses whatsoever as incurred (including, but not limited
to, reasonable attorneys fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and,
subject to Section 6(c), any and all amounts paid in settlement of any
claim or litigation), joint or several, to which any such Indemnified
Holder may become subject under the Securities Act, the Exchange Act or
otherwise (collectively, "Losses"), insofar as such Losses (or actions
or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus, or any amendment
or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company and the Guarantors shall not be liable in any such case to the
extent, but only to the extent, that any such Loss (or
18
action or proceeding in respect thereof) arises out of or is based upon
an untrue statement or alleged untrue statement in or omission or
alleged omission from the Registration Statement or Prospectus
contained therein made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such
Indemnified Holder expressly for use therein. This indemnity obligation
will be in addition to any liability which the Company and the
Guarantors may otherwise have to such Indemnified Holder, including
under this Agreement.
(b) The Company hereby also agrees that in connection with any
underwritten offering of Transfer Restricted Securities pursuant to
Section 3, the Company and each of the Guarantors, jointly and
severally, will also indemnify any underwriters, selling brokers,
dealers and similar securities industry professionals participating in
the distribution, their officers, directors, employees, agents,
advisors and representatives, and each controlling person thereof,
substantially to the same extent as provided in Section 6(a) with
respect to the indemnification of each Initial Purchaser and Holder of
Transfer Restricted Securities (and such Persons will indemnify the
Company and the Guarantors and each controlling person thereof to the
same extent as provided in Section 6(c)).
(c) Each Indemnified Holder will, severally and not jointly,
indemnify and hold harmless the Company and the Guarantors and any
person controlling the Company and the Guarantors (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act),
each Initial Purchaser and the other selling Holders, and their
respective officers, directors, partners, employees, representatives
and agents, and any controlling person thereof, against any Losses to
which the Company, any Guarantor any Initial Purchaser or other selling
Holder, or any such officer, director, partner, employee,
representative, agent or controlling persons thereof, may become
subject under the Securities Act, the Exchange Act or otherwise, from
and against any Losses insofar as such Losses (or actions or
proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus contained therein
or any amendment or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by or
on behalf of such Holder specifically for use therein, and shall
reimburse the Company and the Guarantors for any legal or other
expenses reasonably incurred by the Company and the Guarantors in
connection with investigating or preparing to defend or defending
against or appearing as third party witness in connection with any such
Loss as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a) or (c) of this Section 7 of notice of the commencement
of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be
sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability
which it may have under this Section 6). In case any such
19
action is brought against any indemnified party, and such indemnified
party notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in the defense of
such action, and to the extent such indemnifying party may elect by
written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party to assume
the defense thereof with counsel satisfactory to such indemnified
party. Notwithstanding the foregoing, the indemnified party or parties
shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense
of such indemnified party or parties unless (a) the employment of such
counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action, (b)
the indemnifying parties shall not have employed counsel to have charge
of the defense of such action within a reasonable time after notice of
commencement of the action, or (c) such indemnified party or parties
shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to
one or all of the indemnifying parties (in which case the indemnifying
parties shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties (it
being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one
additional local counsel for each relevant jurisdiction). Anything in
this subsection to the contrary notwithstanding, an indemnifying party
shall not be liable for any settlement of any claim or action effected
without its written consent (which consent may not be unreasonably
withheld).
(e) If the foregoing indemnification is unavailable or
insufficient to an indemnified party for any reason in respect to any
Losses or reimbursable expenses referred to therein, then in lieu of
indemnification, each indemnifying party shall contribute to the amount
paid or payable, including expenses, by such indemnified party in such
proportion as is appropriate to reflect the relative benefits received
(or anticipated to be received) by the indemnifying party or parties on
the one hand and the indemnified party on the other from the offering
of the Notes or Registered Notes, as the case may be, or, if such
allocation is not permitted by applicable law, then in such proportion
as is appropriate to reflect not only the relative benefits received
(or anticipated to be received) but also the relative fault of each of
the parties in connection with the statements or omissions or alleged
statements or omissions that resulted in such Losses, as well as any
other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, (i)
whether any losses, claims, damages or liabilities relate to
information supplied by the Company or such Holder of Notes or such
other indemnified person, as the case may be, (ii) the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and (iii) any other
equitable considerations appropriate in the circumstances. The Company,
the Guarantors and each indemnified party agrees that it would not be
just and equitable if the amount of such contribution were determined
by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to in the
first sentence of this paragraph (e). Notwithstanding any other
provision of this paragraph (e), the Holders of the Notes shall not be
obligated to make contributions hereunder in any amount in excess of
the amount by which the net
20
proceeds received by such Holders from the sale of the Notes exceeds
the amount of damages which such Holders have otherwise been required
to pay in respect of the same or any substantially similar claim, and
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Holders to contribute
pursuant to this Section 7(e) are several in proportion to the
respective principal amount of Notes held by each of the Holders
hereunder and not joint. For purposes of this Section 7(e), each
director, officer, employee and agent of any indemnified party and each
person, if any, who controls such indemnified party (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act)
shall have the same rights to contribution as such indemnified party
and each director and officer of the Company, and each person, if any,
who controls the Company (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) shall have the same
rights to contribution as the Company.
(f) The foregoing provisions are in addition to any rights
that an indemnified party may have at common law or otherwise. The
agreements contained in this Section 7 shall survive the sale of the
Notes or the Registered Notes pursuant to a Registration Statement and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
Section 8. Liquidated Damages.
The Company, the Guarantors and the Initial Purchasers agree
that the Holders of Transfer Restricted Securities will suffer damages if the
Company and the Guarantors fail to fulfill their obligations under this
Agreement and that it would not be feasible to ascertain the extent of such
damages with precision. Accordingly, in the event that, for any reason
whatsoever, (i) the Company has not filed the Exchange Offer Registration
Statement with the Commission on or prior to the 75th calendar day following the
Issue Date, (ii) such Exchange Offer Registration Statement has not been
declared effective by the Commission on or prior to the 180th calendar day
following the Issue Date, (iii) the Registered Exchange Offer has not been
Consummated on or prior to the 30th calendar day (or longer if required by
applicable law) following the date on which the Exchange Offer Registration
Statement is declared effective by the Commission or (iv) any Registration
Statement required by the terms of this Agreement is filed and declared
effective but shall thereafter cease to be effective (except as specifically
permitted herein) without being succeeded immediately by an additional
Registration Statement filed and declared effective (any such event referred to
in clauses (i) through (iv), a "Registration Default"), then the per annum
interest rate borne by the Notes (and, if applicable, the Registered Notes) will
increase with respect to the first 90-day period immediately following the
occurrence of such Registration Default by 0.25% per annum over the rate stated
on the face of the Notes (and, if applicable, the Registered Notes), as
liquidated damages and not as a penalty, commencing on the date of the
occurrence of a Registration Default, and will increase by an additional 0.25%
per annum, as liquidated damages and not as a penalty, with respect to each
subsequent 90-day period (the aggregate of such interest rate increases being
the "Interest Rate Increase"); provided, however, (1) upon the filing of the
Exchange Offer Registration Statement or a Shelf Registration Statement (in the
case of clause (i) above), (2) upon the effectiveness of
21
the Exchange Offer Registration Statement or a Shelf Registration Statement (in
the case of clause (ii) above), (3) upon the Consummation of the Registered
Exchange Offer (in the case of clause (iii) above), or (4) at such time as the
Registration Statement that has ceased to remain effective again becomes
effective, Liquidated Damages shall cease to accrue as a result of the
Registration Default. Notwithstanding the foregoing, at no time shall the
maximum interest rate borne by the Notes exceed 10 1/4%, which rate is two
percentage points greater than the per annum interest rate borne by the Notes on
the Issue Date. At such time as no Registration Default is continuing, the
interest rate borne by the Notes (and, if applicable, the Registered Notes)
shall be reduced by the amount of the Interest Rate Increase and such additional
interest will cease to accrue. In the event of any Interest Rate Increase, the
Company will provide notice to the Trustee of such Interest Rate Increase, and
will cause the Trustee to provide appropriate notice thereof to the Holders of
the Notes (or, if applicable, the Registered Notes).
Section 9. Rule 144.
The Company agrees that to the extent it shall be required to
do so under the Exchange Act, the Company shall timely file the reports required
to be filed by it under the Exchange Act or the Securities Act (including, but
not limited to, the reports under Section 13 and 15(d) of the Exchange Act
referred to in subparagraph (c)(1) of Rule 144 under the Securities Act), and
shall take such further action as any Holder of Transfer Restricted Securities
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Transfer Restricted Securities without registration under
the Securities Act within the limitations of the exemptions provided by Rule
144, as such Rule may be amended from time to time, or any similar or successor
rule or regulation hereafter adopted by the Commission. Upon the request of any
Holder of Transfer Restricted Securities in connection with the Holder's sale
pursuant to Rule 144, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements.
Section 10. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in
aggregate principal amount of Transfer Restricted Securities; provided
that the provisions of Section 7 of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions thereof may not be given, unless the Company has
obtained the written consent of each Indemnified Holder adversely
affected thereby.
(b) No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect
to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder are not
inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
22
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
or courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Representative, the Company or any of
the Guarantors, at their respective addresses set forth in the
Purchase Agreement.
All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if
personally delivered; three Business Days after being
deposited in the mail, postage prepaid, if mailed; and on the
day delivered, if sent by overnight air courier guaranteeing
next day delivery.
Copies of all such notices. demands or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee at the address specified in the
Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including, without limitation and without the need for an
express assignment, subsequent Holders of Transfer Restricted
Securities.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK FOR
CONTRACTS MADE AND TO BE FULLY PERFORMED IN SUCH STATE AND WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
(h) Agent for Service; Submission to Jurisdiction. (i) Each of
the Company and the Guarantors:
(x) irrevocably submits to the jurisdiction of any
New York State or federal court sitting in New York City and
any appellate court from any thereof in any action or
proceeding arising out of or relating to this Agreement or any
other document delivered hereunder;
23
(y) irrevocably agrees that all claims in respect of
any such action or proceeding may be heard and determined in
such New York State court or in such federal court; and
(z) irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding and irrevocably
consents, to the fullest extent permitted by law, to service
of process of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Company
or any of the Guarantors at its address as provided in Section
10(c) of this Agreement, such service to become effective five
days after such mailing;
(ii) Nothing in this Section shall affect the right
of any person to serve legal process in any other manner
permitted by law or affect the right of any person to bring
any action or proceeding against the Company or any Guarantor
or their properties in the courts of other jurisdictions.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and the remaining provisions contained herein shall not, to the
fullest extent permitted by law, be affected or impaired thereby.
(j) Third Party Beneficiaries. Holders of the Notes and
Registered Notes and each Indemnified Holder are intended third party
beneficiaries of this Agreement and this Agreement may be enforced by
such persons.
(k) Entire Agreement. This Agreement, together with the other
transaction documents described in the Purchase Agreement, is intended
by the parties as a final expression of their agreement and is intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises. warranties or
undertakings, other than those set forth or referred to herein, with
respect to the registration rights granted by the Company with respect
to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to
such subject matter.
24
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Very truly yours,
IRON MOUNTAIN INCORPORATED
By: /S/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman and Chief Executive Officer
Iron Mountain Records Management, Inc., Criterion
Atlantic Property, Inc., HIMSCORP of San Diego, Inc.,
Iron Mountain Consulting Services, Inc., Iron
Mountain of Maryland LLC, Iron Mountain Records
Management of Ohio, Inc., Iron Mountain Records
Management of Michigan, Inc., Iron Mountain Records
Management of San Antonio, Inc., Iron Mountain
Records Management of San ▇▇▇▇▇▇▇-▇▇, Inc., Iron
Mountain/Safesite, Inc., IM-AEI Acquisition Corp., IM
Billerica, Inc., Arcus Data Security, Inc., Iron
Mountain/National Underground Storage, Inc., Iron
Mountain Safe Deposit Corporation, HIMSCORP of
Philadelphia, Inc., HIMSCORP of Pittsburgh, Inc.,
HIMSCORP of New Orleans, Inc., HIMSCORP of Los
Angeles, Inc., HIMSCORP of Cleveland, Inc., HIMSCORP
of Portland, Inc., HIMSCORP of Detroit, Inc.,
HIMSCORP of Houston, Inc., Recordkeepers, Inc., Arcus
Data Security LLC, DSI Technology Escrow Services,
Inc., Iron Mountain Records Management of Utah, Inc.
and Arcus Staffing Resources, Inc.
By: /S/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman and Chief Executive Officer
Accepted as of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Managing Director
CHASE SECURITIES INC.
By: /S/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
BNY CAPITAL MARKETS, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
FLEET SECURITIES, INC.
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
PRUDENTIAL SECURITIES INCORPORATED
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
SCOTIA CAPITAL MARKETS (USA) INC.
By: /S/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: CEO