TABLE OF CONTENTS

 

			Page
ARTICLE 1. DEFINITIONS			1
Section 1.1.	Definitions		1
ARTICLE 2. FORM AND TERMS OF THE NOTES			17
Section 2.1.	Form and Dating		17
Section 2.2.	Execution and Authentication		18
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.	Covenants		23
	(a)	Restricted Payments	22
	(b)	Incurrence of Indebtedness and Issuance of Preferred Stock	25
	(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
	(l)	Changes in Covenants When Notes Rated Investment Grade	36
Section 2.7.	Subsidiary Guarantees		36
Section 2.8.	Legal Defeasance and Covenant Defeasance		37
Section 2.9.	Subordination		37
Section 2.10	Amend, Restate and Replace Provision Regarding Reports		37
Section 2.11.	Events of Default		37
Section 2.12.	Amend, Restate and Replace Provision Regarding Personal Liability		38
Section 2.13.	Amend, Restate and Replace Provision Regarding Successors		38
Section 2.14.	Amend, Restate and Replace Provision Regarding Redemption		39
ARTICLE 3. MISCELLANEOUS			39
Section 3.1.	Effect of Headings		39
Section 3.2.	Successors and Assigns		39
Section 3.3.	Separability Clause		40
Section 3.4.	Governing Law		40
Section 3.5.	Eighth Supplement to Supersede Indenture		40

 

EXHIBITS
Exhibit A	FORM OF NOTE
Exhibit B	FORM OF SUPPLEMENTAL INDENTURE

 

 

THIS EIGHTH SUPPLEMENTAL INDENTURE, dated as of August 10, 2009 (“ Eighth Supplemental Indenture ”), is by and between IRON MOUNTAIN INCORPORATED, a Delaware corporation (the “ Company ”), having its principal office at 745 Atlantic Avenue, Boston, Massachusetts 02111, the Guarantors signatory hereto, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as trustee (the “ Trustee ”), having its principal corporate trust office at 222 Berkeley Street, 2 nd  Floor, Boston, Massachusetts  02116.

 

WITNESSETH:

 

WHEREAS, the Company and the Trustee, as successor trustee, are parties to that certain Senior Subordinated Indenture, dated as of December 30, 2002 (the “ Indenture ”), to provide for the issuance by the Company from time to time of Securities to be issued in one or more series as provided in the Indenture;

 

WHEREAS, the issuance and sale of up to $550,000,000 aggregate principal amount of a series of the Company’s Securities (the “ Notes ”) have been authorized by resolutions adopted by the Board of Directors of the Company on August 4, 2009 and by the unanimous written consent of the Executive Committee of the Board of Directors of the Company on August 4, 2009;

 

WHEREAS, the Company desires to issue and sell $550,000,000 aggregate principal amount of the Notes on the date hereof;

 

WHEREAS, the Company desires to enter into this Eighth Supplemental Indenture pursuant to Section 9.1(e) of the Indenture to supplement the Indenture to establish the form and terms of the Notes; and

 

NOW, THEREFORE, for and in consideration of the premises stated herein and the purchase of the Notes by the Holders thereof, the parties hereto hereby enter into this Eighth Supplemental Indenture, for the equal and proportionate benefit of all Holders of Notes, as follows:

 

ARTICLE 1.

DEFINITIONS

 

Section 1.1. Definitions .  All of the terms used in this Eighth Supplemental Indenture that are defined in the Indenture shall have the meanings specified in the Indenture, unless otherwise defined herein (in which case they shall have the meanings defined herein for the purposes of the Indenture as well as for the Eighth Supplemental Indenture) or unless the context otherwise requires, and for the purposes of this Eighth Supplemental Indenture, the following terms have the meanings set forth in this Section:

 

“ Acquired Debt ” means, with respect to any specified Person:

 

(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.

 

 

“ Acquisition EBITDA ” means, as of any date of determination, with respect to an Acquisition EBITDA Entity, the sum of:

 

(1)            EBITDA of such Acquisition EBITDA Entity for the most recently ended four full quarters for which internal financial statements are available at such date of determination (adjusted to give pro forma effect to any acquisition or disposition of a business or Person by such Acquisition EBITDA Entity consummated during the period covered by, or after the date of, such four full fiscal quarters) or, if statements are not available for such four full fiscal quarters, EBITDA for the most recently ended fiscal quarter for which internal financial statements are available, annualized, plus

 

(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.

 

“ Acquisition EBITDA Entity ” means, as of any date of determination, a business or 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 Eighth Supplemental Indenture (Section 4.9 of the Indenture).

 

“ Additional Notes ” means such amount of the Company’s 8 3 / 8 % Senior Subordinated Notes due 2021 (other than the Initial Notes) as the Company may issue from time to time under this Eighth Supplemental Indenture in accordance with Section 2.2 hereof as part of the same series as the Initial Notes.

 

“ Adjusted EBITDA ” means, as of any date of determination and without duplication, the sum of:

 

(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

 

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Subsidiary or an Acquisition EBITDA Entity occurring in any period shall be excluded in the calculation of Adjusted EBITDA.

 

“ Agent Members ” means members of, or participants in, the Depository.

 

“ Attributable Indebtedness ” in respect of a Sale and Leaseback Transaction means, as of the time of determination, the greater of:

 

(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).

 

“ Cash Equivalents ” means:

 

(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.

 

“ Change of Control ” means the occurrence of any of the following events:

 

(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

 

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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 Eighth 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 66 2 / 3 % of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors then in office; or

 

(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.

 

“ Consolidated Adjusted Net Income ” means, for any period, the net income (or net loss) of the Company and its Restricted Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP, adjusted to the extent included in calculating such net income or loss by excluding:

 

(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.

 

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“ Consolidated Income Tax Expense ” means, for any period, the provision for federal, state, local and foreign income taxes of the Company and its Restricted Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP.

 

“ Consolidated Interest Expense ” means, for any period, without duplication, the sum of:

 

(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;

 

provided , however , that Consolidated Interest Expense will not include any gain or loss from extinguishment of debt, including write-off of debt issuance costs.

 

“ Consolidated Non-Cash Charges ” means, for any period, the aggregate depreciation, amortization and other non-cash expenses of the Company and its Restricted Subsidiaries (including without limitation any minority interest) reducing Consolidated Adjusted Net Income for such period, determined on a consolidated basis in accordance with GAAP (excluding any such non-cash charge to the extent that it requires an accrual of or reserve for cash charges for any future period).

 

“ Credit Agent ” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the lenders party to the Credit Agreement, or any successor or successors party thereto.

 

“ Credit Agreement ” means that certain Credit Agreement, dated as of April 16, 2007, as amended, among the Company, the lenders party thereto and the Credit Agent, including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, supplemented, modified, renewed, refunded, increased, extended, replaced in any manner (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time.

 

“ Definitive Notes ” means Notes that are in the form of the Notes attached hereto as Exhibit A, that do not include the information called for by Section 2.15 of the Indenture.

 

“ EBITDA ” means for any period Consolidated Adjusted Net Income for such period increased by:

 

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(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.

 

“ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

“ Equity Proceeds ” means:

 

(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.

 

“ Excluded Restricted Subsidiary ” means any Restricted Subsidiary organized under the laws of a jurisdiction other than the United States (as defined in Regulation S under the Securities Act) and that has not delivered a Subsidiary Guarantee.

 

“ Existing Indebtedness ” means Indebtedness of the Company and its Subsidiaries (other than under the Credit Agreement) in existence on the date of the Eighth Supplemental Indenture, until such amounts are repaid.

 

“ Global Note ” means a permanent global Note that contains the paragraph referred to in Section 2.15.3 of the Indenture and the additional Schedule of Exchanges of Notes to the form of the Note attached hereto as Exhibit A, and that is deposited with and registered in the name of the Depository.

 

“ Hedging Obligations ” means, with respect to any specified Person, the obligations of such Person under:

 

(1)            interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

 

(2)            other agreements or arrangements designed to manage interest rates or interest rate risk; and

 

(3)            other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

 

“ Indebtedness ” means (without duplication), with respect to any Person, whether recourse is to all or a portion of the assets of such Person, and whether or not contingent:

 

(1)            every obligation of such Person for money borrowed;

 

(2)            every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments;

 

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(3)            every reimbursement obligation of such Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person;

 

(4)            every obligation of such Person issued or assumed as the deferred purchase price of property or services;

 

(5)            every Capital Lease Obligation and every obligation of such Person in respect of Sale and Leaseback Transactions that would be required to be capitalized on the balance sheet in accordance with GAAP;

 

(6)            all Disqualified Stock of such Person valued at the greater of its voluntary or involuntary maximum fixed repurchase price, plus accrued and unpaid dividends (unless included in such maximum repurchase price);

 

(7)            all obligations of such Person under or with respect to Hedging Obligations which would be required to be reflected on the balance sheet as a liability of such Person in accordance with GAAP; and

 

(8)            every obligation of the type referred to in clauses (1) through (7) of another Person and dividends of another Person the payment of which, in either case, such Person has guaranteed.

 

For purposes of this definition, the “maximum fixed repurchase price” of any Disqualified Stock that does not have a fixed repurchase price will be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were repurchased on any date on which Indebtedness is required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock, such fair market value will be determined in good faith by the board of directors of the issuer of such Disqualified Stock. Notwithstanding the foregoing, trade accounts payable and accrued liabilities arising in the ordinary course of business and any liability for federal, state or local taxes or other taxes owed by such Person shall not be considered Indebtedness for purposes of this definition. The amount outstanding at any time of any Indebtedness issued with original issue discount is the aggregate principal amount at maturity of such Indebtedness, less the remaining unamortized portion of the original issue discount of such Indebtedness at such time, as determined in accordance with GAAP. Indebtedness shall be calculated without giving effect to the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under the Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.

 

“ Initial Notes ” means the first $550,000,000 aggregate principal amount of 8 3 / 8 % Senior Subordinated Notes due 2021 that are issued under this Eighth Supplemental Indenture, as amended or supplemented from time to time pursuant to the Indenture.

 

“ Investments ” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities and all other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.

 

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“ Leverage Ratio ” means, at any date, the ratio of:

 

(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.

 

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code, or equivalent statutes, of any jurisdiction).

 

‘‘Make-Whole Amount’’ means, with respect to any Note, an amount equal to the excess, if any, of:

 

(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 August 15, 2014 computed using a discount rate equal to the Treasury Rate plus 75 basis points, over

 

(2) the outstanding principal amount of such Note.

 

‘‘Make-Whole Average Life’’ means, with respect to any date of redemption of Notes, the number of years (calculated to the nearest one-twelfth) from such redemption date to August 15, 2014.

 

“ Make-Whole Price ” means, with respect to any Note, the greater of:

 

(1)            the sum of the principal amount of and Make-Whole Amount with respect to such Note; and

 

(2)            the redemption price of such Note on August 15, 2014.

 

“ Market Price ” means:

 

(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

 

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(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.

 

The closing price for each day shall be:

 

(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.

 

“ Net Proceeds ” means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale, which amount is equal to the excess, if any, of:

 

(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

 

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(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 and taxes that the Company reasonably estimates will be incurred by the Company or such Restricted Subsidiary in connection with such transfer at the time such transfer is expected to be received by the Company (including, without limitation, withholding taxes on the remittance of such amount).

 

“ Notes ” has the meaning assigned to it in the preamble to this Eighth Supplemental Indenture.  The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Eighth Supplemental Indenture and the Indenture.

 

“ Officers’ Certificate ” means a certificate signed, unless otherwise specified, by any two of the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer and President, the Chief Financial Officer, the Controller, or an Executive Vice President of the Company, and delivered to the Trustee.

 

“ Permitted Investments ” means:

 

(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 Eighth 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

 

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(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).

 

“ Permitted Liens ” means:

 

(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 Subsidiary 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 Eighth 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 Eighth 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

 

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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.

 

“ Principal Stockholders ” means each of Vincent J. Ryan, Schooner Corporation, C. Richard Reese, Kent P. Dauten, and their respective Affiliates.

 

“ Qualified Equity Offering ” means an offering of Capital Stock, other than Disqualified Stock, of the Company for Dollars, whether registered or exempt from registration under the Securities Act.

 

“ Qualified Issuer ” means:

 

(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.

 

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“ Qualifying Sale and Leaseback Transaction ” means any Sale and Leaseback Transaction between the Company or any of its Restricted Subsidiaries and any bank, insurance company or other lender or investor providing for the leasing to the Company or such Restricted Subsidiary of any property (real or personal) which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such lender or investor or to any Person to whom funds have been or are to be advanced by such lender or investor and where the property in question has been constructed or acquired after the date of the Eighth Supplemental Indenture.

 

“ Refinancing Indebtedness ” means new Indebtedness incurred or given in exchange for, or the proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, other Indebtedness; provided, however , that:

 

(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.

 

“ Restricted Subsidiary ” means:

 

(1)            each direct or indirect Subsidiary of the Company existing on the date of the Indenture (other than Iron Mountain South America Ltd., Iron Mountain Mexico, S.A. de R.L. de C.V., Iron Mountain India Holdings, IM Australia Holdings Pty

 

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Ltd., IM New Zealand Holdings ULC, Iron Mountain Asia Pacific Holdings Limited, Iron Mountain Assurance Corporation, Mountain West Palm Real Estate, Inc. and Upper Providence Venture I, L.P. and their respective direct and indirect Subsidiaries, and all direct and indirect Subsidiaries of Iron Mountain Europe (Group) Limited (other than IME, Iron Mountain (UK) Limited and Iron Mountain Secure Shredding Ltd.) and IRMT Cyprus Finance Limited); and

 

(2)            any other direct or indirect Subsidiary of the Company formed, acquired or existing after the date of the Indenture (including an Excluded Restricted Subsidiary), excluding, however (unless otherwise designated by the Company’s board of directors) any such direct or indirect Subsidiary of Iron Mountain South America Ltd., Iron Mountain Mexico, S.A. de R.L. de C.V., Iron Mountain India Holdings, IM Australia Holdings Pty Ltd., IM New Zealand Holdings ULC, Iron Mountain Asia Pacific Holdings Limited, Iron Mountain Europe (Group) Limited, IRMT Cyprus Finance Limited, Iron Mountain Assurance Corporation, Mountain West Palm Real Estate, Inc. or Upper Providence Venture I, L.P.,

 

which, in the case of (1) or (2), is not designated by the Company’s Board of Directors as an “Unrestricted Subsidiary.”

 

“ Sale and Leaseback Transaction ” means any transaction or series of related transactions pursuant to which a Person sells or transfers any property or asset in connection with the leasing, or the resale against installment payments, of such property or asset to the seller or transferor.

 

“ Senior Bank Debt ” means all Obligations outstanding under or in connection with the Credit Agreement (including Guarantees of such Obligations by Subsidiaries of the Company).

 

“ Senior Debt ” means:

 

(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 Eighth 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.

 

Notwithstanding anything to the contrary in the foregoing, Senior Debt shall not include:

 

(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

 

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(4)            any Indebtedness that is incurred in violation of the Eighth Supplemental Indenture or the Indenture, provided that such Indebtedness shall be deemed not to have been incurred in violation of the Eighth 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 Eighth Supplemental Indenture or the Indenture.

 

“ Treasury Rate ” means, at any time of computation, the yield to maturity at such time (as compiled by and published in the most recent Federal Reserve Statistical Release H.15(519), which has become publicly available at least two business days prior to the date of the redemption notice or, if such Statistical Release is no longer published, any publicly available source of similar market data) of United States Treasury securities with a constant maturity most nearly equal to the Make-Whole Average Life; provided, however , that if the Make-Whole Average Life is not equal to the constant maturity of the United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the Make-Whole Average Life is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

 

“ Unrestricted Subsidiary ” means:

 

(1)            any Subsidiary that is designated by the Board of Directors as an Unrestricted Subsidiary in accordance with Section 2.6(h) of the Eighth Supplemental Indenture (Section 4.15 of the Indenture); and

 

(2)            any Subsidiary of an Unrestricted Subsidiary.

 

“ Voting Stock ” means any class or classes of Capital Stock pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of any Person (irrespective of whether or not, at the time, stock of any other class or classes has, or might have, voting power by reason of the happening of any contingency).

 

“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

 

(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.

 

“ Wholly Owned Restricted Subsidiary ” means any Restricted Subsidiary of the Company all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) shall at the time be owned by the Company or by one or more Wholly Owned Restricted Subsidiaries of the Company.

 

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“ 1996 Indenture Date ” means October 1, 1996.

 

“ 1999 Indenture Date ” means April 26, 1999.

 

“ 6 3 / 4 % Notes ” means the Company’s 6 3 / 4 % Senior Subordinated Notes due 2018 issued pursuant to the Indenture.

 

“ 6 5 / 8 % Notes ” means the Company’s 6 5 / 8 % Senior Subordinated Notes due 2016 issued pursuant to the Indenture.

 

“ 7 1 / 4 % Notes ” means the Company’s 7 1 / 4 % GBP Senior Subordinated Notes due 2014 issued pursuant to the Indenture.

 

“ 7 1 / 2 % Notes ” means the 7 1 / 2 % Senior Subordinated Notes of Iron Mountain Canada Corporation due 2017.

 

“ 7 3 / 4 % Notes ” means the Company’s 7 3 / 4 % Senior Subordinated Notes due 2015 issued pursuant to the Indenture.

 

“ 8% Notes due 2018 ” means the Company’s 8% Senior Subordinated Notes due 2018 issued pursuant to the Indenture.

 

“ 8% Notes due 2020 ” means the Company’s 8% Senior Subordinated Notes due 2020 issued pursuant to the Indenture.

 

“ 8 3 / 4 % Notes ” means the Company’s 8 3 / 4 % Senior Subordinated Notes due 2018 issued pursuant to the Indenture.

 

“ 8 5 / 8 % Notes ” means the Company’s Senior Subordinated Notes due 2013 issued pursuant to the indenture dated April 3, 2001, by and among the Company, certain of its subsidiaries and the Trustee.

 

(b)            Other Definitions.

 

The definitions of the following terms may be found in the Sections indicated as follows:

 

Term		Defined in Section
“Affiliate Transaction”			2.6(e)
“Asset Sale”			2.6(j)
“Asset Sale Offer”			2.6(j)
“Authentication Order”			2.2
“CDS”			2.4(g)(2)
“Change of Control Offer”			2.6(k)
“Change of Control Payment”			2.6(k)
“Change of Control Payment Date”			2.6(k)
“Commencement Date”			2.6(j)
“Company”			Preamble
“Eighth Supplemental Indenture”			Preamble
“Excess Proceeds”			2.6(j)
“Indenture”			Recitals
“Offer Amount”			2.5
“Offer Period”			2.5
“Previously Issued Notes”			2.16
“Purchase Date”			2.5
“Required Consent”			2.16
“Restricted Payments”			2.6(a)
“Trustee”			Preamble

 

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ARTICLE 2.

FORM AND TERMS OF THE NOTES

 

Section 2.1. Form and Dating .

 

(a)            General.   The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A attached hereto.  The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage.  Each Note shall be dated the date of its authentication.  The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of the Eighth Supplemental Indenture and the Indenture, and the Company, the Guarantors and the Trustee, by their execution and delivery of the Eighth Supplemental Indenture and the Indenture (or in the case of any Guarantor that becomes such after the date hereof, a supplemental indenture pursuant to Section 2.6(g) of this Eighth Supplemental Indenture (Section 4.14 of the Indenture)), expressly agree to such terms and provisions and to be bound thereby.  However, to the extent any provision of any Note conflicts with the express provisions of the Indenture (as supplemented by this Eighth Supplemental Indenture), the provisions of the Indenture shall govern and be controlling.

 

(b)            Global Notes.   Notes shall be issued initially in the form of the Global Notes, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Depository at its New York office, and registered in the name of the Depository or a nominee of the Depository, duly executed by the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter provided.

 

Each Global Note shall represent such of the outstanding Notes as shall be specified therein, and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Service Agent, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.4 hereof.

 

(c)            Book-Entry Provisions.   This Section 2.1(c) shall apply only to the Global Notes deposited with or on behalf of the Depository.

 

The Company shall execute and the Trustee shall, in accordance with this Section 2.1(c), authenticate and deliver the Global Notes that (i) shall be registered in the name of the Depository or the nominee of the Depository and (ii) shall be delivered by the Trustee to the Depository or pursuant to the Depository’s instructions or held by the Service Agent.

 

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Agent Members shall have no rights either under the Eighth Supplemental Indenture or the Indenture with respect to any Global Notes held on their behalf by the Depository or by the Service Agent or under such Global Notes, and the Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Notes for all purposes whatsoever.

 

(d)            Definitive Note.  Notes issued in certificated form shall be substantially in the form of Exhibit A attached hereto (but without including the text referred to in Section 2.15.3 of the Indenture).  Except as provided in Section 2.4, owners of beneficial interests in the Global Notes will not be entitled to receive physical delivery of certificated Securities.

 

Section 2.2.           Execution and Authentication.

 

The Trustee shall, upon a written order of the Company signed by an Officer, authenticate up to $550,000,000 aggregate principal amount of Initial Notes and such amount of Additional Notes as the Company may issue from time to time.

 

Section 2.3.           Depository and Paying Agent for Notes.

 

The Company initially appoints The Depository Trust Company (“ DTC ”) to act as Depository with respect to the Global Notes.  The Company initially appoints the Trustee to act as the Registrar, Paying Agent and Service Agent with respect to the Global Notes.

 

Section 2.4.           Transfer and Exchange of Notes.

 

(a)            Transfer and Exchange of Global Notes.  The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depository, in accordance with the Eighth Supplemental Indenture and the Indenture and the procedures of the Depository therefor.  Beneficial interests in the Global Notes may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the Global Notes.

 

(b)            Transfer and Exchange of Definitive Notes.  When Definitive Notes are presented by a Holder to the Registrar with a request:

 

(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.

 

(c)            Restrictions on Transfer and Exchange of Global Notes .  Notwithstanding any other provision of the Eighth Supplemental Indenture or the Indenture (other than the provisions set forth in subsection (d) of this Section 2.4), the Global Notes may not be transferred as a whole except by the Depository to a nominee of the Depository, by a nominee of the Depository to the Depository or to another nominee of the Depository, or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.

 

(d)            Authentication of Definitive Notes in Absence of Depository .  If at any time:

 

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(i) the Depository for the Notes notifies the Company that the Depository is unwilling or unable to continue as Depository for the Global Notes and a successor Depository for the Global Notes is not appointed by the Company within 90 days after delivery of such notice; or

 

(ii) the Company at its sole discretion, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes under the Eighth Supplemental Indenture and the Indenture, then the Company shall execute, and the Trustee shall, upon receipt of an authentication order in accordance with Section 2.2 hereof, authenticate and deliver, Definitive Notes in an aggregate principal amount equal to the principal amount of the Global Notes in exchange for such Global Notes.

 

(e)        Cancellation and/or Adjustment of the Global Notes.  At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.12 of the Indenture.  At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by the Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depository at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depository at the direction of the Trustee to reflect such increase.

 

(f)             General Provisions Relating to Transfers and Exchanges. 

 

(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 Eighth 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.

 

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(v)            Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent, the Company and any Guarantor may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for all purposes, including receiving payment of principal of and interest on such Notes, and neither the Trustee, any Agent, the Company nor any Guarantor shall be affected by notice to the contrary.

 

(vi)           The Trustee shall authenticate Definitive Notes and the Global Notes in accordance with the provisions of Section 2.2 hereof and Section 2.3 of the Indenture.

 

(vii)          All certifications, certificates and opinions of counsel required to be submitted to the Registrar pursuant to this Section 2.4 to effect a registration of transfer or exchange may be submitted by facsimile.

 

Section 2.5.           Redemption.   With respect to the Notes issued under this Eighth Supplemental Indenture, the following Sections supplement Article III of the Indenture:

 

§ 3.7.        Optional Redemption .

 

Prior to August 15, 2014, the Notes shall be subject to redemption at any time at the option of the Company, in whole or in part, upon not less than 10 nor more than 60 days’ notice, at the Make-Whole Price, plus accrued and unpaid interest to but excluding the applicable redemption date. On and after August 15, 2014, the Notes will be subject to redemption at any time at the option of the Company, in whole or in part, upon not less than 10 nor more than 60 days’ notice, at the redemption price (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest to but excluding the applicable redemption date, if redeemed during the 12-month period beginning on August 15 of the years indicated below:

 

Year		Percentage
2014		104.188	%
2015		102.792	%
2016		101.396	%
2017 and thereafter		100.000	%

 

Notwithstanding the foregoing, at any time prior to August 15, 2012 the Company may on any one or more occasions redeem the Notes at a redemption price of 108.375% of the principal amount thereof, plus accrued and unpaid interest, and Liquidated Damages, if any, to the redemption date, with the net cash proceeds of one or more Qualified Equity Offerings; provided that:

 

(1)            at least $357.5 million in aggregate principal amount of the Notes (including any Additional Notes) issued under the Indenture remains outstanding immediately after the occurrence of such redemption (excluding Notes held by the Company or any of its subsidiaries); and

 

(2)            the redemption must occur within six months of the date of the closing of any such Qualified Equity Offering.

 

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