EXHIBIT
4.1
IRON
MOUNTAIN INCORPORATED
THE
GUARANTORS NAMED HEREIN
AND
THE
BANK OF NEW YORK TRUST COMPANY, N.A.,
as
Trustee
8%
Senior Subordinated Notes due 2020
SEVENTH
SUPPLEMENTAL INDENTURE
Dated
as of June 5, 2008
TO
SENIOR
SUBORDINATED INDENTURE
Dated
as of December 30, 2002
TABLE OF CONTENTS
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Page
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ARTICLE 1. DEFINITIONS
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1
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Section 1.1.
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Definitions
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1
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ARTICLE 2. FORM AND TERMS OF THE NOTES
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15
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Section 2.1.
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Form and Dating
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15
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Section 2.2.
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Execution and Authentication
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15
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Section 2.3.
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Depository and Paying Agent for Notes
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17
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Section 2.4.
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Transfer and Exchange of Notes
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17
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Section 2.5.
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Redemption
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19
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Section 2.6.
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Covenants
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21
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(a) Restricted Payments
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21
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(b) Incurrence of Indebtedness and Issuance of Preferred
Stock
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24
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(c) Liens
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25
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(d) Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries
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25
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(e) Transactions with Affiliates
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27
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(f) Certain Senior Subordinated Debt
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28
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(g) Additional Subsidiary Guarantees
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28
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(h) Designation of Unrestricted
Subsidiaries
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29
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(i) Limitation on Sale and Leaseback
Transactions
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30
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(j) Asset Sales
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30
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(k) Change of Control Offer
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32
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(l) Changes in Covenants When Notes Rated Investment
Grade
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34
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Section 2.7.
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Subsidiary Guarantees
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35
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Section 2.8.
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Legal Defeasance and Covenant Defeasance
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35
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Section 2.9.
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Subordination
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35
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Section 2.10
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Amend, Restate and Replace Provision Regarding
Reports
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35
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Section 2.11.
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Events of Default.
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36
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Section 2.12.
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Amend, Restate and Replace Provision Regarding Limitations on
Amendment or Waiver.
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36
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Section 2.13.
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Amend, Restate and Replace Provision Regarding Personal
Liability.
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36
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Section 2.14.
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Amend, Restate and Replace Provision Regarding
Successors.
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36
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ARTICLE 3. MISCELLANEOUS
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37
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Section 3.1.
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Effect of Headings
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37
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Section 3.2.
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Successors and Assigns.
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37
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Section 3.3.
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Separability Clause.
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37
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Section 3.4.
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Governing Law.
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37
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Section 3.5.
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Seventh Supplement to Supersede Indenture.
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37
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| EXHIBITS |
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| Exhibit A |
FORM OF
NOTE |
| Exhibit
B |
FORM OF SUPPLEMENTAL
INDENTURE |
THIS
SEVENTH SUPPLEMENTAL INDENTURE, dated as of June 5, 2008
(“ Seventh 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 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, MA 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 $300,000,000 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 May 21, 2008 and by the unanimous
written consent of the Executive Committee of the Board of
Directors of the Company on May 30, 2008;
WHEREAS,
the Company desires to issue and sell $300,000,000 aggregate
principal amount of the Notes on the date hereof;
WHEREAS,
the Company desires to enter into this Seventh 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 Seventh Supplemental
Indenture, for the equal and proportionate benefit of all
Holders of Notes, as follows:
ARTICLE
1.
DEFINITIONS
Section
1.1. Definitions
(a) All
of the terms used in this Seventh 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 Seventh
Supplemental Indenture) or unless the context otherwise
requires, and for the purposes of this Seventh Supplemental
Indenture, the following terms have the meanings set forth in
this Section:
“
Acquired
Debt ” means, with respect to any specified
Person:
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(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 |
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(2)
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Indebtedness
encumbering any asset acquired by such specified
Person.
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“
Acquisition
EBITDA ” means, as of any date of determination,
with respect to an Acquisition EBITDA Entity, the sum
of:
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(1)
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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
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(2)
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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.
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“
Acquisition
EBITDA Entity ” means, as of any date of
determination, a business or Person:
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(1)
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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
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(2)
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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 Seventh Supplemental Indenture
(Section 4.9 of the Indenture).
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“
Additional
Notes ” means such amount of the Company’s
8% Senior Subordinated Notes due 2020 (other than the Initial
Notes) as the Company may issue from time to time under this
Seventh 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:
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(1)
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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
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(2)
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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:
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(1)
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the fair
market value of the property subject to such arrangement (as
determined by the Board of Directors); and
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(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:
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(1)
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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;
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(2)
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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;
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(3)
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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;
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(4)
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money
market accounts or funds with or issued by Qualified Issuers;
and
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(5)
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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.
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“
Change of
Control ” means the occurrence of any of the
following events:
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(1)
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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;
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(2)
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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 Seventh 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;
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(3)
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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
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(4)
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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.
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“
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:
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(1)
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any net
after-tax extraordinary gains or losses (less all fees and expenses
relating thereto);
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(2)
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any net
after-tax gains or losses (less all fees and expenses relating
thereto) attributable to Asset Sales;
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(3)
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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
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(4)
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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:
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(1)
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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:
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(i)
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amortization
of debt discount;
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(ii)
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the net
cost of interest rate contracts (including amortization of
discounts);
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(iii)
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the
interest portion of any deferred payment obligation;
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(iv)
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amortization
of debt issuance costs; and
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(v)
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the
interest component of Capital Lease Obligations of the Company and
its Restricted Subsidiaries; plus
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(2)
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all
interest on any Indebtedness of any other Person guaranteed and
paid by the Company or any of its Restricted
Subsidiaries;
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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, as amended,
restated, supplemented, modified, renewed, refunded,
increased, extended, replaced or refinanced 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)
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Consolidated
Interest Expense for such period; plus
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(2)
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Consolidated
Income Tax Expense for such period; plus
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(3)
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Consolidated
Non-Cash Charges for such period.
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“
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:
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(1)
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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
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(2)
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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.
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“
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 Seventh 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.
“
Initial
Notes ” means the first $300,000,000 aggregate
principal amount of 8% Senior Subordinated Notes due 2020 that
are issued under this Seventh 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.
“
Leverage
Ratio ” means, at any date, the ratio
of:
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(1)
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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
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(2)
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Adjusted
EBITDA, after giving pro forma effect, without duplication,
to
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(i)
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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;
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(ii)
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if the
Leverage Ratio is being determined in connection with the
incurrence of Indebtedness by the Company or a Restricted
Subsidiary, such Indebtedness; and
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(iii)
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the
Indebtedness to be incurred in connection with the acquisition of
any Acquisition EBITDA Entity.
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“
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 June 15, 2013, 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 June 15, 2013.
“
Make-Whole
Price ” means, with respect to any Note, the
greater of:
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(1)
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the sum of
the principal amount of and Make-Whole Amount with respect to such
Note; and
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(2)
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the
redemption price of such Note on June 15, 2013.
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“
Market
Price ” means:
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(1)
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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)
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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.
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The
closing price for each day shall be:
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(1)
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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
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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
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(2)
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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.
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“
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:
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(1)
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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
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(i)
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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
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(ii)
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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)
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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
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(iv)
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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).
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“
Notes
” has the meaning assigned to it in the preamble to this
Seventh Supplemental Indenture. The Initial Notes
and any Additional Notes shall be treated as a single class
for all purposes under this Seventh Supplemental Indenture and
the Indenture.
“
Permitted
Investments ” means:
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(1)
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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 Seventh Supplemental Indenture (Section 4.9
of the Indenture);
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(2)
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any
Investments in Cash Equivalents;
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(3)
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Investments
by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment;
|
|
|
(i)
|
such
Person becomes a Restricted Subsidiary (other than an Excluded
Restricted Subsidiary) of the Company; or
|
|
|
(ii)
|
such
Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary (other than
an Excluded Restricted Subsidiary) of the Company;
|
|
|
(4)
|
Investments
in assets (including accounts and notes receivable) owned or used
in the ordinary course of business;
|
|
|
(5)
|
Investments
for any purpose related to the Company’s records and
information management business (including, without limitation, the
Company’s confidential destruction and fulfillment
businesses) in an aggregate outstanding amount not to exceed
$10.0 million; and
|
|
|
(6)
|
Investments
by the Company or a Restricted Subsidiary (other than an Excluded
Restricted Subsidiary) in one or more Excluded Restricted
Subsidiaries, the aggregate outstanding amount of which does not
exceed 30% of the consolidated assets of the Company and its
Restricted Subsidiaries (and, for the avoidance of doubt, Permitted
Investments shall include any Investment by an Excluded Restricted
Subsidiary in another Excluded Restricted Subsidiary).
|
“
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 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 Seventh
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 Seventh Supplemental
Indenture (clause (7) of Section 4.9 of the
Indenture);
|
|
|
(8)
|
Liens
arising from purchase money mortgages and purchase money security
interests, or in respect of the construction of property or assets,
incurred in the ordinary course of the business of the Company or a
Restricted Subsidiary; provided that
(i) the related Indebtedness is not secured by any property or
assets of the Company or any Restricted Subsidiary other than the
property and assets so acquired or constructed and (ii) the
Lien securing such Indebtedness is created within 60 days of
such acquisition or construction;
|
|
|
(9)
|
statutory
Liens or landlords’ and carriers’,
warehousemen’s, mechanics’, suppliers’,
materialmen’s, repairmen’s or other like Liens arising
in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate
proceedings, if a reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made
therefor;
|
|
|
(10)
|
Liens for
taxes, assessments, government charges or claims with respect to
amounts not yet delinquent or that are being contested in good
faith by appropriate proceedings diligently conducted, if a reserve
or other appropriate provision, if any, as is required in
conformity with GAAP has been made therefor;
|
|
|
(11)
|
Liens
incurred or deposits made to secure the performance of tenders,
bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance bonds and other obligations of a
like nature incurred in the ordinary course of business (other than
contracts for the payment of money);
|
|
|
(12)
|
easements,
rights-of-way, restrictions and other similar charges or
encumbrances not interfering in any material respect with the
business of the Company or any Restricted Subsidiary incurred in
the ordinary course of business;
|
|
|
(13)
|
Liens
arising by reason of any judgment, decree or order of any court so
long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of
such judgment, decree or order shall not have been finally
terminated or the period within which such proceedings may be
initiated shall not have expired;
|
|
|
(14)
|
Liens
arising under options or agreements to sell assets;
|
|
|
(15)
|
other
Liens securing obligations incurred in the ordinary course of
business, which obligations do not exceed $10.0 million in the
aggregate at any one time outstanding; and
|
|
|
(16)
|
any
extension, renewal or replacement, in whole or in part, of any Lien
described in the foregoing clauses (1) through (15);
provided
that any such extension, renewal or replacement shall not extend to
any additional property or assets.
|
“
Principal
Stockholders ” means each of Vincent J. Ryan,
Schooner Capital LLC, 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
|
|
|
(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.
|
“
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 Seventh 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 Ltd., IM New Zealand Holdings
ULC, Iron Mountain Asia Pacific Holdings Limited, Iron Mountain
Caribbean 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
Caribbean Holdings 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
Seventh 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
|
|
|
(4)
|
any
Indebtedness that is incurred in violation of the Seventh
Supplemental Indenture or the Indenture, provided that such
Indebtedness shall be deemed not to have been incurred in violation
of the Seventh 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 Seventh 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
Seventh 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.
“
1996
Indenture Date ” means October 1,
1996.
“
1999
Indenture Date ” means April 26,
1999.
“
6¾%
Notes ” means the Company’s 6¾%
Senior
Subordinated Notes due 2018 issued pursuant to the
Indenture.
“
6⅝%
Notes ” means the Company’s 6⅝%
Senior
Subordinated Notes due 2016 issued pursuant to the
Indenture.
“
7¼%
Notes ” means the Company’s 7¼%
GBP Senior
Subordinated Notes due 2014 issued pursuant to the
Indenture.
“
7½%
Notes ” means the 7½% Senior Subordinated
Notes of Iron Mountain Canada Corporation due
2017.
“
7¾%
Notes ” means the Company’s 7¾%
Senior Subordinated Notes due 2015 issued pursuant to the
Indenture.
“
8%
Notes ” means the Company’s 8% Senior
Subordinated Notes due 2018 issued pursuant to the
Indenture.
“
8¾%
Notes ” means the Company’s 8 ¾ % Senior
Subordinated Notes due 2018 issued pursuant to the
Indenture.
“
8⅝%
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
|
| |
“Excess
Proceeds”
|
2.6(j)
|
| |
“Seventh
Supplemental Indenture”
|
Preamble
|
| |
“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
|
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 Seventh
Supplemental Indenture and the Indenture, and the Company, the
Guarantors and the Trustee, by their execution and delivery of
the Seventh 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 Seventh 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 Seventh Supplemental
Indenture), the provisions of the Indenture shall govern and
be controlling.
(b) Global
Note s. 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.
Agent
Members shall have no rights either under the Seventh
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 $300,000,000 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
Seventh 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 Seventh 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:
(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
Seventh 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 Seventh 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.
|
|
|
(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 Seventh Supplemental
Indenture, the following Sections supplement Article III of
the Indenture:
§
3.7. Optional
Redemption .
Prior
to June 15, 2013, 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 June
15, 2013, 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 of the years
indicated below:
|
|
Year
|
Percentage
|
|
| |
|
|
|
| |
June
15, 2013
|
104.000%
|
|
| |
June
15, 2014
|
102.667%
|
|
| |
June
15, 2015
|
101.333%
|
|
| |
June
15, 2016 and thereafter
|
100.000%
|
|
| |
|
|
|
Notwithstanding
the foregoing, at any time prior to June 15, 2011 the Company
may on any one or more occasions redeem the Notes at a
redemption price of 108% of the principal amount
thereof,
