EXHIBIT 5
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
1025 CONNECTICUT AVENUE, N.W. 767 THIRD AVENUE
WASHINGTON, D.C. 20036 NEW YORK, NEW YORK 10017
(202) 775-8190 (212) 486-8200
FAX NO. 202-293-2275 FAX NO. 212-758-2151
January 13, 1998
Iron Mountain Incorporated
745 Atlantic Avenue
Boston, Massachusetts 02111
Re: Iron Mountain Incorporated Registration
Statement on Form S-3
Ladies and Gentlemen:
In connection with the registration by Iron Mountain Incorporated, a
Delaware corporation (the "Company"), of up to $350,000,000 in aggregate amount
of one or more series of (i) debt securities of the Company (the "Debt
Securities"), which may be guaranteed (the "Guarantees") by all of the present
and future subsidiaries of the Company (the "Subsidiary Guarantors"), (ii)
shares of preferred stock, $.01 par value per share, of the Company (the
"Preferred Shares"), (iii) depositary shares representing fractional interests
in Preferred Shares ("Depositary Shares") evidenced by depositary receipts
therefor ("Depositary Receipts"), (iv) shares of common stock, $.01 par value
per share, of the Company (the "Common Shares"), or (v) warrants to purchase
Debt Securities, Preferred Shares, Depositary Shares or Common Shares (the
"Warrants" and, together with the Debt Securities, the Guarantees, Preferred
Shares, Depositary Shares, and Common Shares, the "Registered Securities"), for
offering by the Company from time to time, as set forth in the final prospectus
that forms a part of the Registration Statement, as defined below (the
"Prospectus"), and as to be set forth in one or more final supplements to the
Prospectus (each, a "Prospectus Supplement"), the following opinion is furnished
to the Company to be filed with the Securities and Exchange Commission (the
"Commission") as Exhibit 5 to the Company's Registration Statement on Form S-3,
under the Securities Act of 1933, as amended (the "Securities Act"), to be filed
on or about the date hereof. As used in this opinion, the term "Registration
Statement" means, 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
Iron Mountain Incorporated
January 13, 1998
Page 2
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 Certificate of
Incorporation (the "Restated Certificate") and Amended and Restated By-laws,
(ii) in the case of the Guarantees, in accordance with all applicable laws and
the Subsidiary Guarantors' charters and by-laws, and (ii) 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
such opinions with respect to any Common Shares or Preferred Shares 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 Certificate that will be unissued and not otherwise reserved for
issuance.
To the extent that the obligations of the Company under each Indenture
or any Warrant Agreement or Depositary Agreement (each as defined below) may be
dependent upon such matters, we have assumed for purposes of this opinion that
each Trustee and each Warrant Agent
Iron Mountain Incorporated
January 13, 1998
Page 3
and Depositary (each as defined below) are duly organized, validly existing and
in good standing under the laws of their respective jurisdictions of
organization, and are duly qualified to engage in the activities contemplated
by, and have the requisite organizational and legal power and authority to
perform their respective obligations under, each Indenture, Warrant Agreement
and Depositary Agreement to which they are parties, that each Trustee, Warrant
Agent and Depositary will be in compliance, generally with respect to acting as
a trustee or agent under each applicable Indenture, Warrant Agreement and
Depositary Agreement, with all applicable laws and regulations, and that each
Indenture and any Warrant Agreement and Depositary Agreement will be the valid
and binding agreements of each party thereto (other than, in the case of an
indenture in the form filed as Exhibit 4.1 or 4.2 to the Registration Statement
when appropriately completed, 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, the Delaware General
Corporation Law and the federal laws of the United States of America, and we
express no opinion as to state securities or blue sky laws.
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 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, we are of the opinion that, as
of the date hereof:
1. Each series of Debt Securities and the Guarantees, if any,
will be validly issued and binding obligations of the Company and the
Subsidiary Guarantors when (i) the Registration Statement shall have
become effective under the Securities Act and the indentures filed as
Exhibit 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 the
Indenture shall have been duly authorized, executed and delivered by
the Company and a
Iron Mountain Incorporated
January 13, 1998
Page 4
trustee named thereunder (the "Trustee"), (ii) a Prospectus Supplement
with respect to such Debt Securities and the Guarantees shall have been
filed with the Commission pursuant to Rule 424 under the Securities
Act, (iii) the Company's Board of Directors or a duly authorized
committee thereof shall have duly adopted final resolutions (the "Final
Debt Resolutions") authorizing the issuance and sale of such Debt
Securities and the Subsidiary Guarantors' Board of Directors shall have
duly adopted final resolutions (the "Final Guarantor Resolutions")
authorizing the Guarantees, each as contemplated by the Registration
Statement, the Prospectus, the applicable Prospectus Supplement and the
Indenture, (iv) such series of Debt Securities shall have been (A) duly
executed by the Company and authenticated by the Trustee as provided in
the Indenture and the Final Debt Resolutions and (B) duly delivered to
the purchasers thereof against payment of the agreed consideration
therefor, as provided in the Registration Statement, the Prospectus,
the applicable Prospectus Supplement, the Indenture and the Final Debt
Resolutions and (v) the consideration, if any, separately payable for
the Guarantees shall have been received, as provided in the
Registration Statement, the Prospectus, the applicable Prospectus
Supplement, the Indenture and the Final Guarantor Resolutions. 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 thereof and of the conversion, exchange or
exercise thereof, are validly issued, fully paid and non-assessable by
the Company or are validly issued 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 Registration
Statement shall have become effective under the Securities Act, (ii) a
Prospectus Supplement with respect to such Preferred Shares shall have
been filed with the Commission pursuant to Rule 424 under the
Securities Act, (iii) the Company's Board of Directors or a duly
authorized committee thereof shall have duly adopted final resolutions
(the "Final Preferred Shares Resolutions") authorizing the issuance and
sale of such Preferred Shares as contemplated by the Registration
Statement, the Prospectus and the applicable Prospectus Supplement,
(iv) a Certificate of Designation 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 Preferred Shares Resolutions,
shall have been duly executed and filed with and accepted for record by
the Secretary of State of the State of Delaware, and (v) certificates
evidencing such Preferred Shares shall have been duly executed,
countersigned and registered and duly delivered to the purchasers
thereof against payment of the agreed consideration therefor (and in
any event an amount at least equal to the par value, if any, thereof),
as provided in the Registration Statement, the
Iron Mountain Incorporated
January 13, 1998
Page 5
Prospectus, the applicable Prospectus Supplement and the Final
Preferred Shares Resolutions. 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 thereof and of the conversion, exchange or exercise thereof,
are validly issued, fully paid and non-assessable by the Company or are
validly issued 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 Company's Board of Directors
or a duly authorized committee thereof shall have duly adopted
resolutions (the "Final Depositary Shares Resolutions") approving one
or more depositary agreements, including a form of Depositary Receipt
set forth therein or related thereto (each, a "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, (iv) the related
Preferred Shares shall have been duly deposited with the Depositary
under the Depositary Agreement and (v) the applicable Depositary
Receipts shall have been duly executed by the Depositary as provided in
the applicable Depositary Agreement and the Final Depositary Shares
Resolutions and registered and shall have been duly delivered to the
purchasers thereof against payment of the agreed consideration
therefor, as provided in the Registration Statement, the Prospectus,
the applicable Prospectus Supplement, the applicable Depositary
Agreement and the Final Depositary Shares Resolutions.
4. The Common Shares will be validly issued, fully paid and
non-assessable by the Company when (i) the Registration Statement shall
have become effective under the Securities Act, (ii) a Prospectus
Supplement with respect to such Common Shares shall have been filed
with the Commission pursuant to Rule 424 under the Securities Act,
(iii) the Company's Board of Directors or a duly authorized committee
thereof shall have duly adopted final resolutions (the "Final Common
Shares Resolutions") authorizing the issuance and sale of such Common
Shares as contemplated by the Registration Statement, the Prospectus
and the applicable Prospectus Supplement, and (iv) certificates
evidencing such Common Shares shall have been duly executed,
countersigned and registered and duly delivered to the purchasers
thereof against payment of the agreed consideration therefor (and in
any event an amount at least equal to the par value thereof), as
provided
Iron Mountain Incorporated
January 13, 1998
Page 6
in the Registration Statement, the Prospectus, the applicable
Prospectus Supplement and the Final Common Shares Resolutions. If such
Common 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 Common Shares, at
the time of the issuance thereof and of the conversion, exchange or
exercise thereof, are validly issued, fully paid and non-assessable by
the Company or are validly issued 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 Registration Statement
shall have become effective under the Securities Act, (ii) a Prospectus
Supplement with respect to such Warrants shall have been filed with the
Commission pursuant to Rule 424 under the Securities Act, (iii) the
Company's Board of Directors or a duly authorized committee thereof
shall have duly adopted final resolutions (the "Final Warrant
Resolutions") authorizing the issuance and sale of such Warrants as
contemplated by the Registration Statement, the Prospectus and the
applicable Prospectus Supplement and 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"), (iv) the applicable Warrant Agreement shall have been duly
executed and delivered by the Company and the Warrant Agent, and (v)
such Warrants shall have been duly executed by the Company and
authenticated by the Warrant Agent as provided in the applicable
Warrant Agreement and the Final Warrant Resolutions and registered and
shall have been duly delivered to the purchasers thereof against
payment of the agreed consideration therefor, as provided in the
Registration Statement, the Prospectus, the applicable Prospectus
Supplement, the applicable Warrant Agreement and the Final Warrant
Resolutions. 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 thereof and of the conversion, exchange or
exercise thereof, are validly issued, fully paid and non-assessable by
the Company or are validly issued and binding obligations of the
Company, as applicable.
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 Act or under the rules and regulations of the
Commission promulgated thereunder.
Iron Mountain Incorporated
January 13, 1998
Page 5
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP