Exhibit 2.1
AMENDMENT NO. 1 TO
ASSET PURCHASE AND SALE AGREEMENT
THIS AMENDMENT NO. 1, dated as of May 1, 2000 (this "Amendment"), to
the Asset Purchase and Sale Agreement, dated as of February 18, 2000 (the
"Agreement"), by and among Iron Mountain Records Management, Inc., Data Storage
Center, Inc., Data Storage Center of Florida, Inc., Data Storage Centers of
Massachusetts, Inc., and Suddath Van Lines, Inc., is made by and among each of
the undersigned parties to the Agreement and the undersigned Suddath Family
Trust U/A 11/8/79 (the "Suddath Trust"). Capitalized terms used and not
otherwise defined herein have the respective meanings ascribed to them in the
Agreement.
WHEREAS, the undersigned wish to amend the Agreement to join the
Suddath Trust as an additional Seller party thereto and to set forth certain
other agreements; and
NOW THEREFORE, pursuant to Section 12.13 of the Agreement, and in
consideration of the mutual covenants and agreements set forth herein, the
parties hereby agree, and the Agreement is hereby amended, as follows:
1. JOINDER. The Suddath Trust hereby joins in the execution and delivery of the
Agreement and agrees that it shall be deemed to be a Seller for all purposes
under the Agreement. The Suddath Trust hereby agrees to be bound by all terms
and conditions contained in the Agreement as if it were an original Seller party
thereto on the date of the Agreement.
2. AMENDMENT. Effective upon the execution of this Amendment by the parties
hereto,
(a) the initial paragraph of the Agreement shall be amended and
restated in its entirety to read as follows:
"THIS AGREEMENT ("Agreement") is made as of the 18th day of February,
2000 by and among Iron Mountain Records Management, Inc., a Delaware
corporation ("Buyer"), Data Storage Center, Inc., a Florida
corporation, Data Storage Center of Florida, Inc., a Florida
corporation, Data Storage Centers of Massachusetts, Inc., a
Massachusetts corporation, and Suddath Family Trust U/A 11/8/79, a
trust formed under the laws of the State of Florida (collectively,
"Seller"), and Suddath Van Lines, Inc., a Florida corporation d/b/a
Suddath Relocation Systems (the "Stockholder")."
(b) Section 1.23 of the Agreement shall be amended and restated in its
entirety to read as follows:
"Section 1.23. SUBJECT ASSETS. The term "Subject Assets" shall mean all
of those assets and properties of Seller used, useful to or held by
Seller in the operation of the Business including, without limitation,
all racking, shelving, warehouse equipment, owned and leased vehicles,
office equipment, telephone systems, security systems, computers,
computer programs (including data security inventory software),
customer Contracts, deposits, the right to use the name "Data Storage
Center," non-competition and
confidentiality agreements obtained by Seller for the benefit of the
Business (which, in the case of employee non-competition and
confidentiality agreements, shall mean only such agreements with
Seller Employees employed by Buyer on the Closing Date), accounts
receivable and security deposits; PROVIDED, HOWEVER, that the Subject
Assets (a) shall not include the Excluded Assets and (b) with regard
to the Suddath Family Trust U/A 11/8/79 only, shall consist solely of
its Business related customer Contracts, accounts receivable and
deposits, the right to use the name "Data Storage Center," and any
non-competition and confidentiality agreements obtained by it for the
benefit of the Business (which, in the case of employee
non-competition and confidentiality agreements, shall mean only such
agreements with Seller Employees employed by Buyer on the Closing
Date)."
(c) Section 2.3 of the Agreement shall be amended and restated in its
entirety to read as follows:
"Section 2.3. ALLOCATION. The Purchase Price shall be
allocated among each of the Subject Assets and to the Confidentiality
and Non-Competition Agreements in the manner set forth in a schedule,
which shall be agreed upon by Buyer and Seller no later than the tenth
(10th) business day after the Closing Date."
(d) Immediately following Section 6.5(c) of the Agreement there shall
be inserted a new Section 6.5(d), which shall read in its entirety as follows:
"(d) With regard to each of the Leased Premises as to which
the landlord has not waived its right (if any) under the underlying
Lease to require tenant to remove any tenant improvements and restore
the Leased Premises at the expiration or earlier termination of said
Lease, Seller shall retain responsibility for such removal or
restoration in, on and about the Leased Premises, to the extent that
such tenant improvements or restoration obligations are (i) existing as
of the Closing Date (ii) required to be removed or repaired by the
landlord in accordance with the terms and conditions of the underlying
Lease, and (iii) unrelated to the removal of racking from the Leased
Premises or the repair of the Leased Premises related to racking
attachments and supports. Within thirty (30) days after Closing, Buyer
and Seller shall jointly prepare a schedule which sets forth each
removal and/or restoration obligation described under clauses (i) and
(iii), and if practicable, clause (ii), of this Section 6.5(d)."
(e) Immediately following Section 9.4 of the Agreement there shall be
inserted a new Section 9.5, which shall read in its entirety as follows:
"Section 9.5 MAY LEASE PAYMENTS. Seller agrees to make timely
payment of all amounts due for the month of May, 2000 under each Lease
described under Sections 6.5(a) and 7.6(a) hereof, and each lease of
Owned Premises described under Sections 6.5(b) and 7.6(b) hereof. Buyer
agrees to reimburse Seller at Closing for such payments.
(f) The initial paragraph of Section 11.2(a) of the Agreement shall be
amended and restated in its entirety to read as follows:
(a) Seller and Stockholder agree, jointly and severally, that
on and after the Closing they shall indemnify and hold harmless Buyer
and its Affiliates, stockholders, directors, officers, employees,
agents and representatives (collectively, the "Buyer Indemnified
Parties") from and against any and all damages, claims, losses,
expenses, costs, obligations, and liabilities including, without
limiting the generality of the foregoing, liabilities for all
reasonable attorneys', accountants' and experts' fees and expenses
actually paid, including those incurred to enforce the terms of this
Agreement or any Collateral Document (excluding consequential damages,
lost profits, lost business opportunities and incidental damages)
(collectively, "Loss and Expense"), suffered by the Buyer Indemnified
Parties by reason of or arising out of (i) any breach of representation
or warranty made by Seller or Stockholder pursuant to this Agreement or
any Collateral Document, (ii) any failure by Seller or Stockholder to
perform or fulfill any of its covenants or agreements set forth in this
Agreement or any Collateral Document, (iii) any Excluded Liability
(including, without limitation, any such Loss and Expense suffered by
the Buyer Indemnified Parties by reason of or arising out of the rack
collapses at Seller's Miami, Florida facilities in 1995 and at Seller's
Dallas, Texas facilities in August 1999, and the computerized inventory
tracking server and backup failure at Seller's Charlotte, North
Carolina facilities in 1997), (iv) for a period of twenty-four (24)
months after the Closing Date, without limiting anything contained in
Section 11.2(a)(iii), any lost, damaged or improperly destroyed records
of customers with which Seller did not, as of the Effective Time, have
a contract which limited Seller's liability in the event of loss,
damage or destruction to $3.00 or less per standard letter legal
carton, if it cannot be determined with reasonable certainty whether
the date of such loss, damage or destruction occurred prior to or after
the Effective Time, provided that, with respect to any loss, damage or
destruction described in this Section 11.2(a)(iv), Seller shall
indemnify Buyer for only fifty percent (50%) of any such Loss and
Expense, (v) any hazardous substance, hazardous material or other
environmental condition existing on, in or under the Owned or Leased
Premises on or before the Effective Time, or (vi) repair costs,
including without limitation any such costs in respect of materials,
supplies, labor costs, required disassembly or re-assembly of racking
and equipment and other expenses and charges, directly arising out of
any subsidence, sagging or other instability of the floor or
substructure, or other resulting structural failure, of the Leased
Premises located at 3029 Bankers Industrial Drive, Doraville, Georgia,
but only to the extent such repair costs were not caused by the use of
such Leased Premises by Buyer after the Closing Date in a manner that
is materially more stressful on the floor, structure or substructure of
such location than Seller's prior use thereof.
3. WAIVERS. Buyer hereby waives Seller's compliance at Closing with the
provisions of:
(a) Section 6.12(a) of the Agreement, PROVIDED, HOWEVER, that (i) at
Closing Seller shall have completed the removal of all cartons and other
materials which constitute Subject Assets from its facilities located at 315
East Bay Street, Jacksonville, Florida, and (ii) Buyer and Seller shall work
together to move any and all cartons and other materials which constitute
Subject Assets from its facilities located at 6414 East Adamo Drive Tampa,
Florida within a reasonable time after Closing, which in no event shall be more
than sixty (60) days (during which time no rental, lease or similar payments
shall be due Seller from Buyer with respect thereto), and
(b) Section 6.14 of the Agreement, PROVIDED, HOWEVER, that Seller
hereby agrees to complete, within ninety (90) business days of the Closing Date,
at its sole cost and expense, the construction of a permanent demising wall
dividing the portion of the leased space at Seller's Grand Prairie, Texas
location which is to be subleased by Buyer at Closing.
4. MIAMI CONSENT. Nothing contained in the Agreement of Assignment, dated May,
2000, among Data Storage Center, Inc., Buyer and the City of Miami shall be
construed to alter the provisions of Section 2.2(c) of the Agreement, or to
otherwise amend the Agreement.
5. COUNTERPARTS. This Amendment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument, and
any of the parties hereto may execute this Amendment by signing any such
counterpart.
6. EFFECT ON AGREEMENT. The Agreement is hereby amended only as specifically set
forth herein, and as so amended will remain in full force and effect in
accordance with its terms.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date and year first set forth above.
DATA STORAGE CENTER, INC. IRON MOUNTAIN RECORDS
MANAGEMENT, INC.
By: /s/ Michael E. Demont By: /s/ Donald P. Richards
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Michael E. Demont Donald P. Richards
Chief Executive Officer Vice President
DSC OF FLORIDA, INC.
By: /s/ Michael E. Demont
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Michael E. Demont
Chief Executive Officer
DSC OF MASSACHUSETTS, INC.
By: /s/ Michael E. Demont
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Michael E. Demont
Chief Executive Officer
SUDDATH VAN LINES, INC.
By: /s/ Barry S. Vaughn
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Barry S. Vaughn
Chief Operating Officer
SUDDATH FAMILY TRUST U/A 11/8/79
By: /s/ Barbara S. Strickland
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Barbara S. Strickland
Trustee