Exhibit 5.1
SULLIVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO. 617-338-2880
IN WASHINGTON, D.C. IN NEW YORK CITY
1666 K STREET, N.W. 565 FIFTH AVENUE
WASHINGTON, D.C. 20006 NEW YORK, NEW YORK 10017
(202) 775-8190 (212) 486-8200
FAX NO. 202-293-2275 FAX NO. 212-758-2151
December 13, 2001
Iron Mountain Incorporated
745 Atlantic Avenue
Boston, Massachusetts 02111
Re: Iron Mountain Incorporated Registration Statement on Form S-3
Ladies and Gentlemen:
We are rendering this opinion in connection with a registration
statement on Form S-3 (the "Registration Statement") to be filed today by Iron
Mountain Incorporated, a Pennsylvania corporation (the "Company"), and by IM
Capital Trust I, a statutory business trust formed under the laws of the State
of Delaware (the "Trust"), with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"). The Registration Statement relates to the proposed issuance and sale from
time to time pursuant to Rule 415 under the Securities Act as set forth in the
final prospectus that forms a part of the Registration Statement (the
"Prospectus"), and as to be set forth in one or more final supplements to the
Prospectus (each, a "Prospectus Supplement") of up to $500,000,000 in aggregate
amount of the following securities (the "Registered Securities"): (i) debt
securities of the Company (the "Debt Securities"), which may be guaranteed (the
"Subsidiary Guarantees") by certain present and future wholly owned domestic
subsidiaries of the Company (the "Subsidiary Guarantors"); (ii) shares of
preferred stock, $0.01 par value per share, of the Company (the "Preferred
Shares"); (iii) depositary shares representing fractional interests in Preferred
Shares (the "Depositary Shares"), evidenced by depositary receipts therefor (the
"Depositary Receipts"); (iv) shares of common stock, $0.01 par value per share,
of the Company (the "Common Shares"); (v) warrants to purchase Debt Securities,
Preferred Shares, Depositary Shares or Common Shares (the "Warrants"); (vi)
preferred securities of the Trust (the "Trust Preferred Securities"); (vii) the
Company's guarantee with respect to the Trust Preferred Securities (each a
"Trust Guarantee" and, collectively, the "Trust Guarantees"); (viii) the
Company's stock purchase contracts (the "Stock Purchase Contracts") to purchase
Common Shares at a future date; and (ix) the Company's stock purchase units (the
"Stock Purchase Units"), consisting of a Stock Purchase Contract and Debt
Securities, Trust Preferred Securities or debt obligations of third parties
securing the holders' obligations to purchase the Common Shares under the Stock
Purchase Contract. The following opinion is furnished to the Company to be filed
with the Commission as Exhibit 5.1 to the Registration Statement. As used in
this
Iron Mountain Incorporated
December 13, 2001
Page 2
opinion, the term "Registration Statement" includes, unless otherwise stated,
such Registration Statement, as amended when declared effective by the
Commission (including any necessary post-effective amendments thereto); the term
"Convertible Registered Securities" means Registered Securities which are
convertible into, exchangeable for or exercisable for other Registered
Securities, and the term "Underlying Registered Securities" means any Registered
Securities which are issuable upon conversion, exchange or exercise of
Convertible Registered Securities.
In connection with this opinion, we have examined and relied upon a
copy of the Registration Statement to be filed with the Commission on or about
the date hereof. We have also examined and relied upon originals or copies of
such records, agreements and instruments of the Company, certificates of public
officials and of officers of the Company and such other documents and records,
and such matters of law, as we have deemed necessary as a basis for the opinions
hereinafter expressed. In making such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies, which facts we have
not independently verified.
We have necessarily assumed in connection with the opinions expressed
below that the terms and conditions of the Registered Securities and any related
indentures, agreements and instruments, except to the extent described in the
Registration Statement and the form of preliminary prospectus contained therein,
as originally filed, will be, and that any related proceedings of the Company
conducted after the date hereof will be conducted, (i) in accordance with all
applicable laws and the Company's Amended and Restated Articles of Incorporation
(the "Restated Articles") and Amended and Restated By-laws, (ii) in the case of
the Subsidiary Guarantees, in accordance with all applicable laws and the
Subsidiary Guarantors' charters and by-laws, and (iii) not in conflict with any
contractual or other restrictions which are binding on the Company, and that,
without limiting the generality of the foregoing, any agreements or instruments
that are hereafter required to be filed as an exhibit to the Registration
Statement will be properly filed by an amendment thereto or by the filing of a
Form 8-K by the Company under the Securities Exchange Act of 1934, as amended,
and properly incorporated by reference in the Registration Statement, as
permitted by the Securities Act and the rules and regulations of the Commission
thereunder.
We have also necessarily assumed in connection with the opinions
expressed below that (i) the Registration Statement, and any amendments thereto
(including post-effective amendments), will have become effective under the
Securities Act; (ii) a Prospectus Supplement will have been filed with the
Commission pursuant to Rule 424 under the Securities Act describing the
Registered Securities offered thereby; (iii) the Company's Board of Directors
(the "Board"), and, if applicable, the Subsidiary Guarantors' Board of
Directors, or a duly authorized committee thereof shall have duly adopted final
resolutions (the "Final Resolutions") authorizing the issuance and sale of the
applicable Registered Security as contemplated by the Registration Statement,
the Prospectus, the applicable Prospectus Supplement and any applicable
Principal Document (as defined below); (iv) evidence of each Registered Security
shall have been duly executed, countersigned, authenticated and registered, as
required by the applicable Principal
Iron Mountain Incorporated
December 13, 2001
Page 3
Document and Final Resolution for that Registered Security, and shall have been
duly delivered to the purchasers thereof against payment of the agreed
consideration therefor (which shall, in any event, be an amount at least equal
to the par value, if any, thereof), as provided in the Registration Statement,
the Prospectus and the applicable Prospectus Supplement, Principal Document and
Final Resolutions for such Registered Security; (v) all Registered Securities
will be issued and sold in compliance with applicable federal and state
securities laws and in the manner stated in the Registration Statement and the
applicable Prospectus Supplement; (vi) any Underlying Registered Securities
being offered will be duly authorized, created and, if appropriate, reserved for
issuance upon such conversion, exchange, redemption or exercise; and (vii) with
respect to any Common Shares or Preferred Shares offered, or any Convertible
Registered Securities as to which Common Shares or Preferred Shares are the
related Underlying Registered Securities that, at the time of the issuance
thereof, the Company will have a sufficient number of shares of authorized
Common Shares or Preferred Shares, as the case may be, under the Restated
Articles that will be unissued and not otherwise reserved for issuance.
To the extent that the obligations of the Company under each Indenture
or any Depositary Agreement, Warrant Agreement, Guarantee Agreement, Stock
Purchase Contract Agreement or Stock Purchase Unit Agreement (each as defined
below and collectively, the "Principal Documents") may be dependent upon such
matters, we have assumed for purposes of this opinion that (i) each Trustee,
Depositary, Warrant Agent, Guarantee Trustee, Stock Purchase Contract Agent and
Stock Purchase Unit Agent (each as defined below) is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified to engage in the activities contemplated by,
and has the requisite organizational and legal power and authority to perform
its obligations under, each Principal Document to which it is a party; (ii) each
Trustee, Depositary, Warrant Agent, Guarantee Trustee, Stock Purchase Contract
Agent and Stock Purchase Unit Agent will be in compliance with all applicable
laws and regulations, with respect to acting as a trustee or agent under each
applicable Principal Document; and (iii) each Principal Document will be the
valid and binding agreements of each party thereto (other than the Company),
enforceable against such parties in accordance with their respective terms.
We express no opinion herein as to the laws of any jurisdiction other
than the laws of The Commonwealth of Massachusetts and the federal laws of the
United States of America, and we express no opinion as to state securities or
blue sky laws. Insofar as this opinion involves matters of Pennsylvania law we
have, with your permission, relied solely on the opinion of Ballard Spahr
Andrews & Ingersoll, LLC dated December 13, 2001, a copy of which we understand
you are filing herewith as Exhibit 5.2 to the Registration Statement, and our
opinion is subject to the exceptions, qualifications and limitations therein
expressed.
Our opinions set forth below with respect to the validity or binding
effect of any security or obligation are subject to (i) limitations arising
under applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws affecting the enforcement generally of the
rights and remedies of creditors and secured parties or the obligations of
debtors; (ii) general principles of equity (regardless of whether considered in
a proceeding at law or in equity), including, without limitation, the discretion
of any court of
Iron Mountain Incorporated
December 13, 2001
Page 4
competent jurisdiction in granting specific performance or injunctive or other
equitable relief; and (iii) an implied duty on the part of the party seeking to
enforce rights or remedies to take action and make determinations on a
reasonable basis and in good faith to the extent required by applicable law.
Based on and subject to the foregoing, and subject to the assumptions,
limitations and qualifications set forth herein, we are of the opinion that, as
of the date hereof:
1. Each series of Debt Securities and the Subsidiary
Guarantees, if any, will be validly issued and binding obligations of
the Company and the Subsidiary Guarantors when (i) the indentures filed
as Exhibits 4.1 and 4.2 to the Registration Statement, including any
necessary supplemental indenture, or any other indenture, including any
necessary supplemental indenture thereto, filed as an exhibit to the
Registration Statement, as the case may be (the applicable indenture,
as so filed and supplemented, the "Indenture"), shall have been
qualified under the Trust Indenture Act of 1939, as amended; and (ii)
the Indenture shall have been duly authorized, executed and delivered
by the Company and a trustee named thereunder (the "Trustee"). If such
Debt Securities are Underlying Registered Securities, the opinion set
forth in this paragraph is subject to the further condition that the
Convertible Registered Securities relating to such Debt Securities, at
the time of the issuance or delivery thereof, as applicable, and of the
conversion, exchange or exercise thereof, are validly issued, fully
paid and non-assessable by the Company or are valid and binding
obligations of the Company, as applicable.
2. Each series of Preferred Shares will be validly issued,
fully paid and non-assessable by the Company when (i) the Board or a
duly authorized committee thereof shall have duly adopted resolutions
approving a Statement with Respect to Shares setting forth the terms of
such series of Preferred Shares, including establishing a sufficient
quantity thereof and setting forth the preferences, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption, consistent with the Final Resolutions for such series of
Preferred Shares; and (ii) the Statement with Respect to Shares shall
have been duly executed and filed with and accepted for record by the
Department of State of the Commonwealth of Pennsylvania. If such
Preferred Shares are Underlying Registered Securities, the opinion set
forth in this paragraph is subject to the further condition that the
Convertible Registered Securities relating to such Preferred Shares, at
the time of the issuance or delivery thereof, as applicable, and of the
conversion, exchange or exercise thereof, are validly issued, fully
paid and non-assessable by the Company or are valid and binding
obligations of the Company, as applicable.
3. The Depositary Shares will be validly issued, fully paid
and non-assessable by the Company and the Depositary Receipts will be
validly issued and will entitle the holders thereof to the rights
specified therein and in the applicable Depositary Agreement, when (i)
the conditions set forth in paragraph 2 above with respect to the
related Preferred Shares are met; (ii) the Board or a duly authorized
committee thereof shall have duly adopted resolutions approving one or
more depositary agreements, including a form of Depositary Receipt set
forth therein or related thereto (each, a
Iron Mountain Incorporated
December 13, 2001
Page 5
"Depositary Agreement"), relating to such Depositary Shares, between
the Company and a financial institution identified therein as
depositary (each, a "Depositary"); (iii) the applicable Depositary
Agreement shall have been duly executed and delivered by the Company
and the Depositary; and (iv) the related Preferred Shares shall have
been duly deposited with the Depositary under the Depositary Agreement.
4. The Common Shares will be validly issued, fully paid and
non-assessable by the Company. If such Common Shares are Underlying
Registered Securities, the opinion set forth in this paragraph is
subject to the condition that the Convertible Registered Securities
relating to such Common Shares, at the time of the issuance or delivery
thereof, as applicable, and of the conversion, exchange or exercise
thereof, are validly issued, fully paid and non-assessable by the
Company or are valid and binding obligations of the Company, as
applicable.
5. The Warrants will be duly authorized and validly issued and
binding obligations of the Company when (i) the Board or a duly
authorized committee thereof shall have duly adopted resolutions
approving one or more warrant agreements, including a form of warrant
set forth therein or related thereto (each, a "Warrant Agreement"),
establishing the terms and conditions of such Warrants, between the
Company and a financial institution identified therein as warrant agent
(each, a "Warrant Agent"); and (ii) the applicable Warrant Agreement
shall have been duly executed and delivered by the Company and the
Warrant Agent. If such Warrants are Underlying Registered Securities,
the opinion set forth in this paragraph is subject to the further
condition that the Convertible Registered Securities relating to such
Warrants, at the time of the issuance or delivery thereof, as
applicable, and of the conversion, exchange or exercise thereof, are
validly issued, fully paid and non-assessable by the Company or are
valid and binding obligations of the Company, as applicable.
6. The Trust Guarantees will be duly authorized and validly
issued and binding obligations of the Company when (i) the Board or a
duly authorized committee thereof shall have duly adopted resolutions
approving one or more guarantee agreements, ("Guarantee Agreement"),
establishing the terms and conditions of such Trust Guarantees, between
the Company and a financial institution identified therein as guarantee
trustee ("Guarantee Trustee"); and (ii) the applicable Guarantee
Agreement shall have been duly executed and delivered by the Company
and the Guarantee Trustee.
7. The Stock Purchase Contracts will be duly authorized and
validly issued and binding obligations of the Company when (i) the
Board or a duly authorized committee thereof shall have duly adopted
resolutions approving one or more stock purchase agreements, ("Stock
Purchase Contract Agreement"), establishing the terms and conditions of
such Stock Purchase Contract, between the Company and a financial
institution identified therein as stock purchase contract agent ("Stock
Purchase Contract Agent"); and (ii) the applicable Stock Purchase
Contract Agreement shall have been duly executed and delivered by the
Company and the Stock Purchase Contract Agent.
Iron Mountain Incorporated
December 13, 2001
Page 6
8. The Stock Purchase Units will be duly authorized and
validly issued and binding obligations of the Company when (i) the
Board or a duly authorized committee thereof shall have duly adopted
resolutions approving one or more stock purchase agreements ("Stock
Purchase Unit Agreement") covering the Stock Purchase Units,
establishing the terms and conditions of such Stock Purchase Units,
between the Company and a financial institution identified therein as
stock purchase unit agent ("Stock Purchase Unit Agent"); and (ii) the
Stock Purchase Agreement shall have been duly executed and delivered by
the Company and the Stock Purchase Unit Agent.
All of the opinions set forth herein are rendered as of the date
hereof, and we assume no obligation to update such opinions to reflect any facts
or circumstances which may hereafter come to our attention or any changes in the
law which may hereafter occur.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectus
forming a part of the Registration Statement. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act or under the rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ SULLIVAN & WORCESTER LLP
SULLIVAN & WORCESTER LLP