EXHIBIT 10
$225,000,000
8 5/8% SENIOR SUBORDINATED NOTES DUE 2013
IRON MOUNTAIN INCORPORATED
UNDERWRITING AGREEMENT
March 27, 2001
Bear, Stearns & Co. Inc.
William Blair & Company, L.L.C.
Fleet Securities, Inc.
Goldman, Sachs & Co.
JPMorgan, a division of Chase Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies/Gentlemen:
Iron Mountain Incorporated, a corporation organized and existing under the
laws of Pennsylvania (the "COMPANY"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several underwriters named in
Schedule I hereto (the "UNDERWRITERS") an aggregate of $225,000,000 principal
amount of the Company's 8 5/8% Senior Subordinated Notes due 2013 (the "NOTES").
The Notes will be irrevocably and unconditionally guaranteed (the "GUARANTEES")
by the subsidiaries of the Company listed in Schedule II hereto that have signed
this Agreement (each, a "GUARANTOR" and, collectively, the "GUARANTORS"), and
will be issued pursuant to an Indenture as supplemented by the First
Supplemental Indenture thereto (as so supplemented the "INDENTURE"), each to be
dated as of the Closing Date (as defined below), among the Company, the
Guarantors and The Bank of New York, as trustee (in such capacity, the
"TRUSTEE").
The Company and the Underwriters, in accordance with the requirements of
Rule 2710(c)(8) and Rule 2720 ("RULE 2720") of the National Association of
Securities Dealers, Inc. (the "NASD") and subject to the terms and conditions
stated herein, also hereby confirm the engagement of the services of Bear,
Stearns & Co. Inc. (the "INDEPENDENT UNDERWRITER") as a "qualified independent
underwriter" within the
meaning of Section (b)(15) of Rule 2720 in connection with the offering and sale
of the Notes.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTORS. The
Company and each of the Guarantors jointly and severally represents and warrants
to, and agree with, each of the Underwriters and the Independent Underwriter
that:
(a) The Company has filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement on Form S-3 (No. 333-54030)
filed on January 19, 2001 and Amendment No. 1 thereto, filed on January 29,
2001, and related base preliminary prospectuses for the registration under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), of
$500,000,000 of the Company's securities as described therein, including
the Notes, which registration statement, as so amended, has been declared
effective by the Commission and copies of which have heretofore been
delivered to the Underwriters and the Independent Underwriter. The
registration statement, as amended, at the time it became effective,
including the exhibits and information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act, is hereinafter referred to as the "REGISTRATION
STATEMENT." No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
initiated or, to the Company's knowledge, threatened by the Commission. The
Company will file the Prospectus (as defined below) with the Commission
pursuant to Rule 424(b) of the rules and regulations of the Commission (the
"RULES AND REGULATIONS"). The base prospectus contained in the Registration
Statement at the time it was declared effective, as supplemented by the
final prospectus supplement relating to the offering and sale of the Notes
(the "OFFERING"), in the form in which it is to be filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations, is
hereinafter referred to as the "PROSPECTUS," except that if any revised
prospectus or prospectus supplement shall be provided to the Underwriters
and the Independent Underwriter by the Company for use in connection with
the Offering which differs from the Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the Rules and Regulations), the term
"Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first
provided to the Underwriters and the Independent Underwriter for such use.
The preliminary prospectus supplement (and the related base prospectus)
relating to the Offering filed with the Commission pursuant to Rule 424 of
the Rules and Regulations is hereafter called the "Preliminary Prospectus."
Any reference herein to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3, which were filed under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), on or before the effective date of the Registration
Statement, the date of such Preliminary Prospectus or the date of the
Prospectus, as the case may be, and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include (i) the filing of any document under the Exchange Act
after the effective date of the Registration Statement, the date of such
Preliminary Prospectus or
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the date of the Prospectus, as the case may be, which is incorporated
therein by reference and (ii) any such document so filed. All references in
this Agreement to the Registration Statement, the Preliminary Prospectus
and the Prospectus, or any amendments or supplements to any of the
foregoing, shall be deemed to include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("EDGAR").
(b) At the time of the effectiveness of the Registration Statement or
the effectiveness of any post-effective amendment to the Registration
Statement, when the Prospectus is first filed with the Commission pursuant
to Rule 424(b) or Rule 434 of the Rules and Regulations, when any
supplement to or amendment of the Prospectus is filed with the Commission,
when any document filed under the Exchange Act is filed and at the Closing
Date (as hereinafter defined), the Registration Statement and the
Prospectus and any amendments thereof and supplements thereto complied or
will comply in all material respects with the applicable provisions of the
Securities Act and the Rules and Regulations and the Exchange Act and the
respective Rules and Regulations thereunder and did not and will not
contain an untrue statement of a material fact and did not and will not
omit to state any material fact required to be stated therein or necessary
in order to make the statements therein (i) in the case of the Registration
Statement, not misleading and (ii) in the case of the Prospectus or the
Preliminary Prospectus, in light of the circumstances under which they were
made, not misleading. When any related Preliminary Prospectus was first
filed with the Commission (whether filed as part of the registration
statement for the registration of the Notes or any amendment thereto or
pursuant to Rule 424(a) of the Rules and Regulations) and when any
amendment thereof or supplement thereto was first filed with the
Commission, such Preliminary Prospectus and any amendments thereof and
supplements thereto complied in all material respects with the applicable
provisions of the Securities Act and the Rules and Regulations and the
Exchange Act and the respective rules and regulations thereunder and did
not contain an untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading. No representation and warranty is made in
this subsection (b), however, with respect to any information contained in
or omitted from the Registration Statement or the Prospectus or any related
Preliminary Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter or the Independent
Underwriter through you specifically for use therein ("UNDERWRITERS'
INFORMATION"). The parties acknowledge and agree that the Underwriters'
Information consists solely of the material included in the third and fifth
paragraphs under the caption "Underwriting" in the prospectus supplement
portion of the Prospectus.
(c) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth
in the Registration Statement and the Prospectus, there has been no
material adverse change or any development involving a prospective material
adverse change in the business, prospects, properties, operations,
condition (financial or other) or results of operations of the Company and
its subsidiaries, taken as a whole, whether or not arising from
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transactions in the ordinary course of business, and since the date of the
latest balance sheet presented in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has incurred or
undertaken any liabilities or obligations, direct or contingent, which are
material to the Company and its subsidiaries taken as a whole, except for
liabilities or obligations which are reflected in the Registration
Statement and the Prospectus.
(d) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(e) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and, when read together with the other information
in the Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the Closing Date (as hereinafter
defined), will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(f) The Company and each of its subsidiaries has been duly
incorporated or formed, is validly existing as a corporation or limited
liability company in good standing under the laws of its jurisdiction of
incorporation or formation and has the corporate power and authority to
carry on its business as it is currently being conducted and to own, lease
and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation or limited liability company authorized
to do business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect (financial or otherwise) on the Company and its subsidiaries, taken
as a whole (a "MATERIAL ADVERSE EFFECT").
(g) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable; all of
such capital stock or other ownership interests (in the case of the
Company's wholly-owned subsidiaries) or all of such capital stock or other
ownership interests that the Company owns (in the case of less than
wholly-owned subsidiaries as disclosed in the Prospectus or Schedule III
hereto) are owned directly or indirectly by the Company, in each case, free
and clear of any security interest, claim, lien, encumbrance or adverse
claim of any nature, except as disclosed in the Prospectus or such as are
not material to the business prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole; and
Schedule III hereto sets forth the Company's ownership interest in any
subsidiary (as defined in Regulation S-X Rule 1-02(n) of the Rules and
Regulations) that is less than wholly-owned.
(h) This Agreement has been duly authorized, executed and delivered by
the Company and the Guarantors and is a valid and binding agreement of the
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Company and the Guarantors enforceable in accordance with its terms except
as (i) rights to indemnity and contribution hereunder may be limited by
applicable law, (ii) the enforceability hereof may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally and (iii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability.
(i) The Notes have been duly and validly authorized by the Company for
issuance and sale pursuant to this Agreement, each Guarantee has been duly
and validly authorized by the Guarantor to which it relates and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to the Underwriters and Independent Underwriter
against payment therefor as provided by this Agreement, the Notes and the
Guarantees will be entitled to the benefits of the Indenture, and will be
valid and binding obligations of the Company and the Guarantors,
respectively, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(j) The Indenture has been duly and validly authorized by the Company
and each of the Guarantors and has been duly qualified under the Trust
Indenture Act of 1939, as amended; on the Closing Date the Indenture will
have been duly and validly executed and delivered by the Company and each
of the Guarantors and, assuming the due authorization, execution and
delivery thereof by the Trustee, will be a valid and binding agreement of
the Company and the Guarantors, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. The Indenture and any amendment or supplement thereto will
conform with the requirements of the Trust Indenture Act of 1939, as
amended.
(k) The Notes and Guarantees conform as to legal matters to the
description thereof contained in the Prospectus.
(l) Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or comparable organizational documents or
in default (and no condition exists which, with notice or lapse of time or
both, would constitute a default) in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture or instrument
material to the conduct of the business of the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound except for such defaults as could not,
individually or in the aggregate, have a Material Adverse Effect.
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(m) The execution, delivery and performance of this Agreement, the
Indenture, the Notes and the Guarantees and compliance by the Company and
the Guarantors with all the provisions hereof and thereof, as the case may
be, and the consummation of the transactions contemplated hereby and
thereby will not require any consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other
governmental body (except as such may be required under the securities or
Blue Sky laws of the various states or jurisdictions outside the United
States), and will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws or
comparable organizational documents of the Company or any of its
subsidiaries or any agreement, indenture or other instrument to which it or
any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, or violate or conflict
with any laws, administrative regulations or rulings or court decrees
applicable to the Company, any of its subsidiaries or their respective
property.
(n) Except as otherwise set forth in the Prospectus, there are no
material legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or to which any of their respective
property is the subject, and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated.
(o) Neither the Company nor any of its subsidiaries is currently in
violation of any foreign, federal, state or local law or regulation
relating to the protection or human health or safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or the rules
and regulations promulgated thereunder, which singly, or in the aggregate,
could be reasonably expected to have a Material Adverse Effect on the
Company or its subsidiaries, taken as a whole.
(p) The Company and each of its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("PERMITS") including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its
respective properties and to conduct its respective business, except to the
extent that the failure to have such Permits would not singly, or in the
aggregate, have a Material Adverse Effect on the Company and its
subsidiaries, taken as a whole; the Company and each of its subsidiaries
has fulfilled and performed all of its material obligations with respect to
such Permits and no event has occurred which has or after notice or lapse
of time would singly, or in the aggregate, have a Material Adverse Effect
on the Company and its subsidiaries, taken as a whole; and, except as
described in the Prospectus, such Permits contain no restrictions that
materially interfere with the business or operations of the Company or any
of its subsidiaries as currently conducted.
(q) In the ordinary course of its business, when the Company or any of
its subsidiaries acquires a fee interest in a parcel of real property
located in the
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United States, the Company conducts a review of the property (generally
consisting of a Phase I environmental assessment or similar study prepared
on behalf of the seller or a predecessor owner of such property) to
determine whether any conditions exist on the property that would
constitute a violation of Environmental Laws or would require a material
amount of capital or operating expenditures for clean-up, closure or
compliance with Environmental Laws. In the ordinary course of its business,
when the Company or any of its subsidiaries enters into a long-term real
property lease for property located in the United States, the Company
conducts an internal review, which may or may not result in a Phase I
environmental assessment or similar study (although the Company would
typically obtain a Phase I or similar study where the Company would have
the right to acquire a fee interest in such real property), as it relates
to such real property to determine whether any conditions exist on the
property that would constitute a violation of Environmental Laws or would
require a material amount of capital or operating expenditures for
clean-up, closure or compliance with Environmental Laws. In the ordinary
course of its business, the Company utilizes local counsel to obtain advice
regarding owned or leased real property and local environmental matters
outside the United States. On the basis of such reviews and advice, the
Company has concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a Material Adverse Effect on the Company
and its subsidiaries, taken as a whole.
(r) Except as otherwise set forth in the Prospectus or such as are not
material to the business prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, the
Company and each of its subsidiaries has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions except liens
for taxes not yet due and payable, to all property and assets described in
the Prospectus as being owned by it. All leases to which the Company or any
of its subsidiaries is a party are valid and binding and no default by the
Company of any of its subsidiaries, by any other party, has occurred or is
continuing thereunder, which might result singly, or in the aggregate, in a
Material Adverse Effect to the Company or its subsidiaries, taken as a
whole, and the Company and its subsidiaries enjoy peaceful and undisturbed
possession under all such leases to which any of them is a party as lessee
with such exceptions as do not materially interfere with the use made or
proposed to be made by the Company or such subsidiary.
(s) The Company and each of its subsidiaries maintains, with insurers
of recognized standing, reasonably adequate insurance against property and
casualty loss, general liability, business interruption and such other
losses and risks, in each case, in such amounts as are prudent and
customary in the business in which they are engaged.
(t) Arthur Andersen LLP, who have certified certain financial
statements and supporting schedules incorporated by reference in the
Registration Statement, and Moss Adams LLP, Deloitte & Touche LLP, and RSM
Robson Rhodes, who have certified certain financial statements of Data
Base, Inc. and Data Base Real Estate Holdings LLC, Data Storage Center,
Inc. and Iron Mountain Europe Limited, respectively, each are independent
public accountants as required by the Act and the Rules and Regulations.
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(u) The financial statements, together with related schedules and
notes forming part of the Prospectus (and any amendment or supplement
thereto), present fairly the consolidated financial position, results of
operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Prospectus at the respective dates
or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Prospectus (and any
amendment or supplement thereto) is, to the Company's knowledge, in all
material respects, accurately presented and prepared on a basis reasonably
consistent with the books and records of the Company.
(v) The pro forma financial statements and other pro forma financial
information (including the notes thereto) included or incorporated by
reference in the Registration Statement and in the Prospectus (i) present
fairly the information shown therein, (ii) have been prepared in accordance
with Article 11 of Regulation S-X and the related Rules and Regulations
adopted by the Commission with respect to pro forma financial statements
and (iii) have been properly compiled on the basis described therein, and
the assumptions used in the preparation of such pro forma financial
statements and other pro forma financial information (including the notes
thereto) are reasonable and the adjustments used therein are appropriate to
give effect to the transactions or circumstances referred to therein.
(w) The transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the Notes)
will not violate or result in a violation of Section 7 of the Exchange Act,
or any regulation promulgated thereunder, including, without limitation,
Regulations T, U and X of the Board of Governors of the Federal Reserve
System.
(x) Neither the Company nor any of its affiliates does business with
the Government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes (Chapter 92-128,
Laws of Florida).
(y) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus and all of the outstanding
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable and were not issued in
violation of or subject to any preemptive rights.
(z) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments for sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interest in, the Company (other than
any such arrangements created exclusively by or relating exclusively to one
or more of the Company's stockholders) or any wholly-owned subsidiary
thereof or with respect to any capital stock or other ownership interest
that the Company or any of its subsidiaries (as defined in Regulation S-X
Rule 1-02(n) of the Rules and Regulations) owns in a less than wholly-owned
subsidiary except as otherwise disclosed in the Prospectus or such as are
not material to
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the business prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(aa) The Company has disclosed in the Prospectus any business
relationships or related party transactions of the type that is
required to be disclosed by Item 404 of Regulation S-K of the
Commission.
(bb) There is (i) no significant unfair labor practice complaint
pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against any of them, before the
National Labor Relations Board or any foreign, state or local labor
relations board, and no significant grievance or arbitration
proceeding arising out of or under any collective bargaining agreement
is pending against the Company or any of its subsidiaries or, to the
best knowledge of the Company, threatened against any of them, and
(ii) no significant strike, labor dispute, slowdown or stoppage
pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against it or any of its
subsidiaries except for such actions specified in clause (i) or (ii)
above, which, singly or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(cc) The Company and each of its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted
only in accordance with management's general or specific authorization
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(dd) All material tax returns required to be filed by the Company
and each of its subsidiaries in any jurisdiction have been filed,
other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of its
subsidiaries, have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(ee) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent
applications, trademarks, service marks, trade names, licenses,
copyrights and proprietary or other confidential information currently
employed by them in connection with their respective businesses, and
neither the Company nor any such subsidiary has received any notice of
infringement of or conflict with asserted rights of any third party
with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect, except as
described in or contemplated by the Prospectus.
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(ff) No Restricted Subsidiary (as defined in the Indenture) of
the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other
distribution on such Restricted Subsidiary's capital stock, from
repaying to the Company any loan or advances to such Restricted
Subsidiary from the Company or from transferring any of such
Restricted Subsidiary's property or assets to the Company or any other
Restricted Subsidiary of the Company, except as described in or
contemplated by the Prospectus.
(gg) Immediately after each subsidiary of the Company has entered
into the Guarantees to which it is a party, (i) the fair value of the
assets of such subsidiary will exceed the debts and liabilities,
subordinated, contingent or otherwise, of such subsidiary, (ii) the
present fair saleable value of the property of such subsidiary will be
greater than the amount that will be required to pay the probable
liabilities of such subsidiary on its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other
liabilities, subordinated, contingent or otherwise, become absolute
and matured, (iii) such subsidiary will be able to pay its debts and
other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured, and (iv) such
subsidiary will not have an unreasonably small capital with which to
conduct the business in which it is engaged as such business is
conducted and is proposed to be conducted following the Closing Date.
(hh) Neither the Company nor any of its subsidiaries intends, or
intends to permit any of its respective subsidiaries, to incur debts
beyond its ability to pay such debts as they mature, taking into
account the timing and the amounts of cash to be received by the
Company or any of its subsidiaries and the timing and the amounts of
cash to be payable on or in respect of the Company's indebtedness or
the indebtedness of each subsidiary.
(ii) Except as have been irrevocably waived in writing, no holder
of securities of the Company has any rights to the registration of
securities of the Company because of the filing of the Registration
Statement or otherwise in connection with the sale of the Notes
contemplated hereby.
(jj) None of the Company and the Guarantors is, or upon
consummation of the transactions contemplated under this Agreement and
the Indenture will be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY
ACT") or be subject to registration under the Investment Company Act.
(kk) There are no contracts or other documents that are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations and that have not been so described or filed.
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(ll) The statistical and market-related data included in the
Prospectus is based on or derived from sources which the Company
believes to be reliable and accurate.
2. PURCHASE, SALE AND DELIVERY OF THE NOTES.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, the aggregate
principal amount of the Notes set forth opposite the name of such Underwriter on
Schedule I hereto, at a purchase price equal to 97.625% of the principal amount
thereof.
(b) Payment of the purchase price for, and delivery of certificates for,
the Notes shall be made at the office of Latham & Watkins, 885 Third Avenue, New
York, New York 10022 ("UNDERWRITERS' COUNSEL"), or at such other place as shall
be agreed upon by you and the Company, at 10:00 A.M., New York City time, on the
fifth business day (as permitted under Rule 15c6-1 under the Exchange Act)
(unless postponed in accordance with the provisions of Section 6 or Section 9
hereof) following the date hereof or such other time not later than ten business
days after such date as shall be agreed upon by you and the Company (such time
and date of payment and delivery being herein called the "CLOSING DATE").
(c) Payment for the Notes shall be made to or upon the order of the Company
of the purchase price by wire transfer in Federal (same day) funds to the
Company or as directed by the Company upon delivery of certificates for the
Notes to you through the facilities of The Depository Trust Company for the
respective accounts of the several Underwriters against receipt therefor signed
by you or on your behalf. The Notes to be delivered to you shall be registered
in such name or names and shall be in such denominations as you may request at
least two business days before the Closing Date. The Company will permit you to
examine and package such certificates for delivery at least one full business
day prior to the Closing Date.
3. OFFERING.
(a) Upon the Company's authorization of the release of the Notes, the
Underwriters propose to offer the Notes for sale to the public upon the terms
and conditions set forth in the Prospectus.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with each of
the Underwriters and with the Independent Underwriter that:
(a) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would, in
the judgment of the Underwriters and the Independent Underwriter or the
Company include an untrue statement of a material fact or omit to state any
material fact required to be stated therein
11
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary at any time to amend or supplement the Prospectus or Registration
Statement to comply with the Securities Act or the Rules and Regulations,
or to file under the Exchange Act so as to comply therewith any document
incorporated by reference in the Registration Statement or the Prospectus
or in any amendment thereof or supplement thereto, the Company will notify
you promptly and prepare and file with the Commission an appropriate
amendment or supplement (in form and substance satisfactory to you) which
will correct such statement or omission or which will effect such
compliance and will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
(b) The Company will promptly deliver to each of the Underwriters and
the Independent Underwriter such number of copies of any Preliminary
Prospectus, the Prospectus, the Registration Statement, all amendments of
and supplements to such documents, if any, all documents incorporated by
reference in the Registration Statement and Prospectus or any amendment
thereof or supplement thereto, as you may reasonably request. Prior to
10:00 A.M., New York time, on the business day next succeeding the date of
this Agreement and from time to time thereafter the Company will furnish
the Underwriters and the Independent Underwriter with copies of the
Prospectus in New York City in such quantities as you may reasonably
request. The Company will timely file the Prospectus with the Commission as
required by Rule 424(b) of the Rules and Regulations.
(c) The Company will endeavor in good faith, in cooperation with you,
at or prior to the date of the Prospectus, to qualify the Notes for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as you may designate and to maintain such qualification in
effect for so long as required for the distribution thereof; except that in
no event shall the Company be obligated in connection therewith to qualify
as a foreign corporation or to execute a general consent to service of
process where it is not already so subject.
(d) The Company will make generally available (within the meaning of
Section 11(a) of the Securities Act) to its security holders and to the
Underwriters and the Independent Underwriter as soon as practicable, but in
any event not later than 45 days after the end of its fiscal quarter in
which the first anniversary date of the date of the Prospectus occurs, an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with the provisions of Rule 158 of the Regulation
covering a period of at least twelve consecutive months beginning after the
effective date of the Registration Statement.
(e) During the period from the date hereof until 45 calendar days
after the Closing Date, the Company shall not offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company or any Guarantor
or warrants to purchase debt securities of the Company or any Guarantor
substantially similar to the Notes (other than (i) the Notes, (ii) the
Guarantees and (iii) commercial papers issued in the ordinary course of
business), without the Representative's prior written consent.
12
(f) Whether or not required by the Rules and Regulations, so long as
any Notes are outstanding and so long as the Indenture so requires, the
Company will furnish to you at your reasonable request copies of all
reports or other communications (financial or other) furnished to security
holders, and to deliver to you (i) as soon as they are available, copies of
any and all reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its security holders
generally or to the Commission).
(g) The Company will apply the proceeds from the sale of the Notes as
set forth under "Use of Proceeds" in the Prospectus.
(h) The Company shall use its best efforts to do or perform, or cause
to be done or performed, all things required or necessary to be done and
performed under this Agreement by the Company and the Guarantors prior to
the Closing Date and to satisfy all conditions precedent to the delivery of
the Notes.
(i) The Company will use its best efforts in cooperation with the
Underwriters to permit the Notes to be eligible for clearance and
settlement through the facilities of The Depository Trust Company.
(j) The Company will take all reasonable action necessary to enable
Standard & Poor's Corporation ("S&P") and Moody's Investors Service, Inc.
("MOODY'S") to provide their respective initial credit ratings on the
Notes.
(k) The Company will not (and will cause its affiliates not to) take,
directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Notes and neither the Company nor
any of its affiliated purchasers (as defined in Rule 100 of Regulation M
under the Exchange Act) will take any action prohibited by Regulation M
under the Exchange Act.
(l) The Company, during the period when the Prospectus is required to
be delivered under the Act or the Exchange Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15
of the Exchange Act within the time periods required by the Exchange Act
and the rules and regulations thereunder.
5. PAYMENT OF EXPENSES. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection
13
with the registration of the Notes under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters, the Independent Underwriter and dealers; (ii) the cost of
producing the Blue Sky Memoranda, all expenses in connection with the
qualification of the Notes for offering and sale under state securities or Blue
Sky laws as provided in Section 4(c) hereof, including the fees and
disbursements of counsel for the Underwriters and the Independent Underwriter in
connection with such qualification and in connection with the Blue Sky survey;
(iii) all fees and expenses in connection with the inclusion of the Notes in the
book-entry system of The Depository Trust Company; (iv) all travel expenses of
the Company's officers and employees and any other expense of the Company
incurred in connection with attending or hosting meetings with prospective
purchasers of the Notes; (v) fees paid to rating agencies in connection with the
Notes and (vi) the filing fees incident to, and the fees and disbursements of
counsel for the Underwriters and the Independent Underwriter in connection with,
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Notes. The Company also will pay or cause
to be paid: (i) the cost of preparing certificates for the Notes; (ii) the cost
and charges of any transfer agent or registrar; and (iii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 5.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters and the Independent Underwriter to purchase and pay for the Notes
under this Agreement are subject to the satisfaction of each of the following
conditions:
(a) The Registration Statement shall have become, and shall remain,
effective on the date of this Agreement and through the Closing Date; the
Prospectus shall have been filed with the Commission in a timely fashion in
accordance with Section 4(b) hereof; and, at or prior to the Closing Date
no stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereof shall have been issued and no
proceedings therefor shall have been initiated or threatened by the
Commission.
(b) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same
force and effect as if made on and as of the Closing Date.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading, nor
shall any notice have been given of any intended or potential downgrading
in the rating accorded any of the Company's securities by any nationally
recognized securities rating organization, or any public announcement that
any such organization has under surveillance or review its rating of any
such securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading of such
rating).
14
(d) (i) Since the date of the latest balance sheet included in the
Prospectus, there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in the
business prospects, financial condition or results of operations of the
Company and its subsidiaries taken as a whole, whether or not arising in
the ordinary course of business, except as otherwise described in the
Registration Statement or Prospectus, (ii) as of the Closing Date, the
obligations of the Company to be performed hereunder on or prior thereto
have been duly performed, (iii) since the date of the latest balance sheet
included in the Prospectus there shall not have been any material adverse
change, or any development involving a prospective material adverse change,
in the capital stock or in the long-term debt of the Company from that set
forth in the Prospectus, except as otherwise described in the Registration
Statement or Prospectus, (iv) the Company and its subsidiaries shall have
no liability or obligation, direct or contingent, which is material to the
Company and its subsidiaries, taken as a whole, other than those in the
Registration Statement or Prospectus, and (v) on the Closing Date you shall
have received a certificate dated the Closing Date, signed by C. Richard
Reese, in his capacity as Chairman of the Board and Chief Executive
Officer, and by John F. Kenny, Jr., in his capacity as Executive Vice
President and Chief Financial Officer of the Company, confirming the
matters set forth in paragraphs (a), (b), (c) and (d) of this Section 6.
(e) At the Closing Date you shall have received the written opinion of
Sullivan & Worcester LLP counsel for the Company, dated the Closing Date
addressed to the Underwriters in the form attached hereto as Annex I and in
form and substance reasonably satisfactory to the Underwriters and
Underwriters' Counsel.
(f) At the Closing Date you shall have received the written opinion of
Garry Watzke, Esq., General Counsel for the Company, dated the Closing Date
addressed to the Underwriters in the form attached hereto as Annex II and
in form and substance reasonably satisfactory to the Underwriters and
Underwriters' Counsel.
(g) At the Closing Date you shall have received the written opinion of
Ballard Spahr Andrews & Ingersoll, LLP, special Pennsylvania counsel to the
Company, dated the Closing Date addressed to the Underwriters in the form
attached hereto as Annex III and in form and substance reasonably
satisfactory to the Underwriters and Underwriters' Counsel.
(h) The Underwriters shall have received on the Closing Date the
written opinion of Latham & Watkins, counsel for the Underwriters, dated
the Closing Date, as to such matters as the Underwriters shall reasonably
request.
(i) The Underwriters shall have received a letter or letters on and as
of the date of this Agreement (each, an "INITIAL LETTER"), in form and
substance satisfactory to you, from each of Arthur Andersen LLP (with
respect to Iron Mountain Incorporated), RSM Robson Rhodes (with respect to
Iron Mountain Europe Limited), Moss Adams LLP (with respect to Data Base,
Inc. and Affiliate) and Deloitte & Touche LLP (with respect to Data Storage
Center, Inc.) each independent public accountants, with respect to the
financial statements and certain financial information contained in the
15
Prospectus and letters on and as of the Closing Date, in form and substance
satisfactory to you, each of Arthur Andersen LLP, RSM Robson Rhodes, Moss
Adams LLP and Deloitte & Touche LLP confirming the information contained in
the initial letter or letters provided by such accountants.
(j) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto), there shall not have been any change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and its
subsidiaries taken as a whole, the effect of which, in any such case
described above, is, in the judgment of the Underwriters and the
Independent Underwriter, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Notes on the terms and in the manner contemplated in the
Prospectus (exclusive of any supplement).
(k) The Company shall have complied with the provisions of Section
4(b) hereof with respect to the furnishing of Prospectuses on the next
business day succeeding the date of this Agreement.
(l) On or prior to the Closing Date, The Depository Trust Company
shall have accepted the Notes for clearance.
(m) The Company shall have furnished the Underwriters and
Underwriters' Counsel with such other certificates, opinions or other
documents as they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to you or to Underwriters'
Counsel pursuant to this Section 6 shall not be in all material respects
reasonably satisfactory in form and substance to you and to Underwriters'
Counsel, all obligations of the Underwriters and the Independent Underwriter
hereunder may be cancelled by you at, or at any time prior to, the Closing Date.
Notice of such cancellation shall be given to the Company in writing, or by
telephone. Any such telephone notice shall be confirmed promptly thereafter in
writing.
7. INDEMNIFICATION.
(a) Each of the Company and the Guarantors shall indemnify and hold
harmless each Underwriter, the Independent Underwriter and each person, if any,
who controls any Underwriter or Independent Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating,
16
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Notes, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
the Company will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter or
Independent Underwriter through you expressly for use therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have including under this Agreement.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company and the Independent Underwriter, each of the directors of
the Company, each of the officers of the Company who shall have signed the
Registration Statement, and each other person, if any, who controls the Company
or the Independent Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against any losses, liabilities, claims,
damages and expenses whatsoever as incurred (including but not limited to
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Notes, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through you expressly for use therein. This indemnity
will be in addition to any liability which any Underwriter may otherwise have
including under this Agreement.
(c) The Independent Underwriter shall indemnify and hold harmless the
Company and each Underwriter, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration Statement, and
17
each other person, if any, who controls the Company or any Underwriter within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against any losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Notes, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Independent Underwriter
expressly for use therein.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of any claims or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the claim or the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve it
from any liability which it may have under this Section 7). In case any such
claim or action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action or
(iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the indemnified party is or reasonably could have been a party and
indemnity or contribution
18
may be or could have been sought hereunder by the indemnified party, unless such
settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability on claims that are or reasonably could have
been the subject matter of such action and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act, by or on behalf of
the indemnified party.
8. CONTRIBUTION. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company, the Independent
Underwriter and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting, in the case of
losses, liabilities, claims, damages and expenses suffered by the Company any
contribution received by the Company from persons, other than the Independent
Underwriter or the Underwriters, who may also be liable for contribution,
including persons who control the Company within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, officers of the Company who signed
the Registration Statement and directors of the Company) as incurred to which
the Company, the Independent Underwriter and one or more of the Underwriters may
be subject, in such proportions as is appropriate to reflect the relative
benefits received by the Company, the Independent Underwriter and the
Underwriters from the offering of the Notes or, if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Company, the Independent Underwriter and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, the Independent Underwriter and
the Underwriters shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and (y) the underwriting
discount received by the Underwriters bear to the total price to the public of
the Notes, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and of the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or either the Independent Underwriter or the Underwriters on the other hand and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 8, no
Underwriter or the Independent Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such
19
Underwriter or the Independent Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within in the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person, if any, who controls an Underwriter or the
Independent Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter or the Independent Underwriter, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) of this Section 8. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties, notify each party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 8 or otherwise. The obligations of the
Underwriters to contribute pursuant to this Section 8 are several in proportion
to the respective principal amount of Notes purchased by each of the
Underwriters hereunder and not joint.
9. DEFAULT BY AN UNDERWRITER.
(a) If one or more of the Underwriters shall fail at the Closing Date to
purchase the Notes which it or they are obligated to purchase under this
Agreement (the "DEFAULTED NOTES") and such Defaulted Notes do not exceed in the
aggregate 10% of the aggregate principal amount of the Notes, then each
non-defaulting Underwriter shall purchase an aggregate amount of the Defaulted
Notes equal to the proportion that the aggregate principal amount of Notes to be
purchased by such Underwriter as set forth opposite such Underwriter's name on
Schedule I hereto bears to the aggregate principal amount of Notes to be
purchased by all non-defaulting Underwriters.
(b) Notwithstanding the foregoing, if the Defaulted Notes equal or exceed
in the aggregate 10% of the aggregate principal amount of the Notes, then the
non-defaulting Underwriters shall have the right, within 48 hours after the
Closing Date, to make arrangements for one or more of such non-defaulting
Underwriters to purchase all, but not less than all, of the Defaulted Notes in
such amounts as may be agreed upon among such non-defaulting Underwriters and
upon the terms herein set forth; PROVIDED that if the non-defaulting
Underwriters shall not have completed such arrangements within such 48-hour
period, then this Agreement shall terminate without liability on the part of the
non-defaulting Underwriters or the Company and the Guarantors.
No action taken pursuant to this Section 9 shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
20
In the event of any such default which does not result in a termination of
this Agreement, any of the non-defaulting Underwriters or the Company shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Prospectus or in any other documents
or arrangements.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations and
warranties, covenants and agreements of the Underwriters, the Independent
Underwriter and the Company contained in this Agreement, including the
agreements contained in Section 5, the indemnity agreements contained in Section
7 and the contribution agreements contained in Section 8, shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or any controlling person thereof, the Independent
Underwriter and any controlling person thereof, or by or on behalf of the
Company, any of its officers and directors or any controlling person thereof,
and shall survive delivery of and payment for the Notes to and by the
Underwriters. The representations contained in Section 1 and the agreements
contained in Sections 5, 7, 8 and 11(d) hereof shall survive the termination of
this Agreement, including termination pursuant to Section 9 or 11 hereof.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(a) This Agreement shall become effective upon the later of when (i) you
and the Company shall have received notification of the effectiveness of the
Registration Statement or (ii) the execution of this Agreement. Until this
Agreement becomes effective as aforesaid, it may be terminated by the Company by
notifying you or by you by notifying the Company. Notwithstanding the foregoing,
the provisions of this Section 11 and of Sections 1, 5, 7 and 8 hereof shall at
all times be in full force and effect.
(b) You shall have the right to terminate this Agreement at any time prior
to the Closing Date if: (A) trading in the Company's securities on the New York
Stock Exchange has been suspended or made subject to material limitations; (B)
if trading on the New York Stock Exchange shall have been suspended or been made
subject to material limitations, or minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices for securities shall have been
required, on the New York Stock Exchange or by order of the Commission or any
other governmental authority having jurisdiction; (C) if a banking moratorium
has been declared by a state or federal authority or if any new restriction
materially adversely affecting the distribution of the Notes shall have become
effective; (D) if any downgrading has occurred in the rating of the Company's
debt securities by any "nationally recognized statistical rating-organization"
(as defined for purposes of Rule 436(g) under the Act;) or (E) (i) if the United
States becomes engaged in hostilities or there is an escalation of hostilities
involving the United States or there is a declaration of a national emergency or
war by the United States such that the effect of any such event in your sole
judgment makes it impracticable or inadvisable to proceed with the offering,
sale and delivery of the Notes on the terms contemplated by the Prospectus.
21
(c) Any notice of termination pursuant to this Section 11 shall be in
writing.
(d) If this Agreement shall be terminated pursuant to any of the provisions
hereof (otherwise than pursuant to (i) notification by you as provided in
Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if the sale of
the Notes provided for herein is not consummated because any condition to the
obligations of the Underwriters and the Independent Underwriter set forth herein
is not satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof,
the Company will, subject to demand by you, reimburse the Underwriters and the
Independent Underwriter for all out-of-pocket expenses (including the fees and
expenses of their counsel), incurred by the Underwriters in connection herewith.
12. NOTICES. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter or the Independent Underwriter, shall
be mailed, delivered, or faxed and confirmed in writing, to such
Underwriter c/o Bear, Stearns & Co. Inc., 245 Park Avenue, New York, New
York 10167, Attention: John T. Kilgallon, with a copy to Latham & Watkins,
885 Third Avenue, New York, New York 10022, Attention: Robert A. Zuccaro,
Esq.;
(b) if sent to the Company, shall be mailed, delivered, or faxed and
confirmed in writing to the Company and its counsel at the addresses set
forth in the Registration Statement, Attention: Garry B. Watzke Esq., with
a copy to Sullivan & Worcester LLP, One Post Office Square, Boston,
Massachusetts, 02111, Attention: William J. Curry Esq.;
PROVIDED, HOWEVER, that any notice to an Underwriter or the Independent
Underwriter pursuant to Section 7 shall be delivered or sent by mail or
facsimile transmission to such Underwriter or the Independent Underwriter at its
address set forth in its acceptance facsimile to you, which address will be
supplied to any other party hereto by you upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof.
13. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. Each of the Company and
the Guarantors:
(a) irrevocably submits to the jurisdiction of any New York State or
federal court sitting in New York City and any appellate court from any
thereof in any action or proceeding arising out of or relating to this
Agreement or any other document delivered hereunder;
(b) irrevocably agrees that all claims in respect of any such action
or proceeding may be heard and determined in such New York State court or
in such federal court; and
22
(c) irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding and irrevocably consents, to the fullest extent permitted by
law, to service of process of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Company or any of the Guarantors at
its address as provided in Section 10(c) of this Agreement, such service to
become effective five days after such mailing;
(d) Nothing in this Section 13 shall affect the right of any person to
serve legal process in any other manner permitted by law or affect the
right of any person to bring any action or proceeding against the Company
or any Guarantor or their properties in the courts of other jurisdictions.
14. PARTIES. This Agreement shall inure solely to the benefit of, and shall
be binding upon, the Underwriters, the Independent Underwriter and the Company
and the controlling persons, directors, officers, employees and agents referred
to in Section 7 and 8, and their respective successors and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provision
herein contained. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Notes from any of the Underwriters.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of new york, but without regard to
principles of conflicts of law.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
17. HEADINGS. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
18. TIME IS OF THE ESSENCE. Time shall be of the essence of this Agreement.
As used herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
19. INDEPENDENT UNDERWRITER. (a) The Company hereby confirms its
engagement of the services of the Independent Underwriter as, and the
Independent Underwriter hereby confirms its agreement with the Company to
render services as, a "qualified independent underwriter" within the meaning
of Section (b)(15) of Rule 2720 with respect to the offering and sale of the
Notes.
(b) The Independent Underwriter hereby represents and warrants to, and
agrees with, the Company and the Underwriters that with respect to the
offering and sale of the Notes as described in the Prospectus:
23
(i) The Independent Underwriter constitutes a "qualified
independent underwriter" within the meaning of Section (b)(15) of Rule
2720;
(ii) The Independent Underwriter has participated in the
preparation of the Registration Statement and the Prospectus and has
exercised the usual standards of "due diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) Based upon (A) a review of the Company, including an
examination of the Registration Statement, information regarding the
earnings, assets, capital structure and growth rate of the Company and
other pertinent financial and statistical data, (B) inquiries of and
conferences with the management of the Company and its counsel and
independent public accountants regarding the business and operations
of the Company, (C) consideration of the prospects for the industry in
which the Company competes, estimates of the business potential of the
Company, assessments of its management, the general condition of the
securities markets, market prices of the capital stock and debt
securities of, and financial and operating data concerning, companies
believed by the Independent Underwriter to be comparable to the
Company with debt securities of maturity and seniority similar to the
Notes, and (D) such other studies, analyses and investigations as the
Independent Underwriter has deemed appropriate, and assuming that the
offering and sale of the Notes is made as contemplated herein and in
the Prospectus, the Independent Underwriter recommends, as of the date
of the execution and delivery of this Agreement, that the yield on the
Notes be not less than 8.625% (corresponding to an initial public
offering price of 100.000%), which minimum yield should in no way be
considered or relied upon as an indication of the value of the Notes;
and
(v) Subject to the provisions of Section 6 hereof, the
Independent Underwriter will furnish to the Underwriters on the
Closing Date a letter, dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect of clauses (i) through
(iv) above.
(c) The Independent Underwriter hereby agrees with the Company and the
Underwriters that, as part of its services hereunder, in the event of any
amendment or supplement to the Prospectus, the Independent Underwriter will
render services as a "qualified independent underwriter" within the meaning
of Section (b)(15) of Rule 2720 with respect to the offering and sale of
the Notes as described in the Prospectus as so amended or supplemented that
are substantially the same as those services being rendered with respect to
the offering and sale of the Notes as described in the Prospectus
(including those described in subsection (b) above).
(d) The Company, the Underwriters and the Independent Underwriter
agree to comply in all material respects with all of the requirements of
Rule 2720 applicable to them in connection with the offering and sale of
the Notes. The
24
Company agrees to cooperate with the Underwriters and the Independent
Underwriter to enable the Underwriters to comply with Rule 2720 and the
Independent Underwriter to perform the services contemplated by this
Agreement.
(e) The Company and the Independent Underwriter agree that the
Independent Underwriter will provide its services in its capacity as
Independent Underwriter hereunder without compensation other than such
compensation that the Independent Underwriter may receive as an Underwriter
hereunder.
(f) The Independent Underwriter hereby consents to the references to
it as set forth under the caption "Underwriting" in the Prospectus and in
any amendment or supplement thereto made in accordance with Section 4
hereof.
[signature page follows]
25
If the foregoing correctly sets forth the understanding between you and the
Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among us. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
IRON MOUNTAIN INCORPORATED
By: /S/ C. RICHARD REESE
--------------------------------------
Name: C. Richard Reese
Title: Chairman of the Board and
Chief Executive Officer
ARCUS DATA SECURITY, INC.
COMAC, INC.
DSI TECHNOLOGY ESCROW SERVICES, INC.
IM BILLERICA, INC.
IRON MOUNTAIN GLOBAL, INC.
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF MICHIGAN, INC.
By: /S/ C. RICHARD REESE
--------------------------------------
Name: C. Richard Reese
Title: Chairman of the Board and
Chief Executive Officer
IRON MOUNTAIN CONSULTING SERVICES, LLC
IRON MOUNTAIN/NATIONAL UNDERGROUND STORAGE, LLC
IRON MOUNTAIN CONFIDENTIAL DESTRUCTION LLC
By: Iron Mountain Records Management, Inc.,
Its Manager
By: /S/ C. RICHARD REESE
--------------------------------------
Name: C. Richard Reese
Title: Chairman of the Board
and Chief Executive Officer
IRON MOUNTAIN GLOBAL LLC
By: Iron Mountain Global, Inc.,
Its Manager
By: /S/ C. RICHARD REESE
--------------------------------------
Name: C. Richard Reese
Title: Chairman of the Board and Chief
Executive Officer
ARCUS DATA SECURITY LLC
By: Arcus Data Security, Inc.,
Its Manager
By: /S/ C. RICHARD REESE
--------------------------------------
Name: C. Richard Reese
Title: Chairman of the Board and Chief
Executive Officer
Accepted as of the date first above written
BEAR, STEARNS & CO. INC.
By: /S/ H.C. CHARLES DIAO
--------------------------------------
Name: H.C. Charles Diao
Title: Senior Managing Director
WILLIAM BLAIR & COMPANY, L.L.C.
By: /S/ CHRISTINE N. EVANS KELLY
--------------------------------------
Name: Christine N. Evans Kelly
Title: Principal
FLEET SECURITIES, INC.
By: /S/ JOHN BOWMAN
--------------------------------------
Name: John Bowman
Title: Managing Director
GOLDMAN, SACHS & CO.
By: /S/ GOLDMAN, SACHS & CO.
--------------------------------------
Goldman, Sachs & Co.
JPMORGAN, A DIVISION OF CHASE SECURITIES INC.
By: /S/ STEVEN TULIP
--------------------------------------
Name: Steven Tulip
Title: Managing Director
MERRILL LYNCH, PIERCE FENNER & SMITH
INCORPORATED
By: /S/ DAVID D. R. BULLOCK
--------------------------------------
Name: David D. R. Bullock
Title: Director
The foregoing Underwriting
Agreement is hereby confirmed and
accepted as of the date first above
written:
BEAR, STEARNS & CO. INC.
Acting as Independent Underwriter
By: /S/ H.C. CHARLES DIAO
--------------------------------------
Name: H.C. Charles Diao
Title: Senior Managing Director
SCHEDULE I
AGGREGATE PRINCIPAL
AMOUNT OF NOTES
NAME OF UNDERWRITER TO BE PURCHASED
------------------- ---------------
Bear, Stearns & Co. Inc. $ 112,500,000
William Blair & Company, L.L.C. 22,500,000
Fleet Securities, Inc. 22,500,000
Goldman, Sachs & Co. 22,500,000
JPMorgan, a division of Chase Securities Inc. 22,500,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 22,500,000
Total............. ================
$ 225,000,000
SCHEDULE II
LIST OF GUARANTORS
NAME
Iron Mountain Records Management, Inc.
Iron Mountain Records Management of Michigan, Inc.
Iron Mountain Consulting Services, LLC
IM Billerica, Inc.
COMAC, Inc.
Arcus Data Security, Inc.
Arcus Data Security LLC
Iron Mountain Global, Inc.
Iron Mountain Global, LLC
Iron Mountain Confidential Destruction LLC Iron
Mountain/National Underground Storage, LLC DSI
Technology Escrow Services, Inc.
SCHEDULE III
ENTITY NAME ("A") OWNED BY ("B")
- ----------------- --------------
USA
Upper Providence Venture I, L.P. PLRH, Inc. (1% GP) & Iron Mountain, Inc. (54% LP)
LATIN/SOUTH AMERICA
Sistemas de Archivo Corporativo S.A. de R.L. de C.V. Iron Mountain Mexico S.A. de R.L de C.V.
Sistemas de Archivo S.A. de R.L. de C.V. Sistemas de Archivo Corporativo S.A. de R.L. de C.V.
Sistemas de Archivo de Mexico S.A. de R.L. Sistemas de Archivo Corporativo S.A. de R.L. de C.V.
Iron Mountain South America Ltd. Iron Mountain Cayman Ltd.
IMSA Peru SRL Iron Mountain South America Ltd.
Iron Mountain Peru S.A. IMSA Peru SRL
Iron Mountain Chile S.A. Iron Mountain South America Ltd.
Iron Mountain do Brasil Emprendimentos Ltda. Iron Mountain South America Ltd.
C.A.D.A. Storage S.A. Iron Mountain South America Ltd.
Box Security Iron Mountain South America Ltd.
Iron Mountain do Brasil S.A. Iron Mountain do Brasil Emprendimentos Ltda.
EUROPE
Iron Mountain Europe Ltd. Iron Mountain (Europe) Group Ltd.
Iron Mountain (UK) Ltd. Iron Mountain Europe Ltd.
Arcus Data Security, Ltd. Iron Mountain Europe Ltd.
The Document Storage Company Ltd. Iron Mountain Europe Ltd.
Stortext (Holdings) Ltd. Iron Mountain Europe Ltd.
Stortext Limited Stortext (Holdings) Ltd.
JAD 93 Limited Stortext (Holdings) Ltd.
Document and Information Management Services Ltd. Iron Mountain Europe Ltd.
Kestrel Data Services Limited Iron Mountain (UK) Ltd.
Miller Data Management Limited Iron Mountain (UK) Ltd.
Kestrel Data UK Limited Kestrel Data Services Limited
Kestrel Data Storage and Management Ltd. Kestrel Data UK Limited
"B"S IM US IM US
PERCENT PERCENT "NET" %
OWNERSHIP OWNERSHIP OWNERSHIP
ENTITY NAME ("A") OF "A" OF "B" OF "A"
- ----------------- ------ ------ ------
USA
Upper Providence Venture I, L.P. 55.00% 100.00% 55.00%
LATIN/SOUTH AMERICA
Sistemas de Archivo Corporativo S.A. de R.L. de C.V. 50.10% 100.00% 50.10%
Sistemas de Archivo S.A. de R.L. de C.V. 100.00% 50.10% 50.10%
Sistemas de Archivo de Mexico S.A. de R.L. 100.00% 50.10% 50.10%
Iron Mountain South America Ltd. 50.10% 100.00% 50.10%
IMSA Peru SRL 99.90% 50.10% 50.05%
Iron Mountain Peru S.A. 99.90% 50.05% 50.00%
Iron Mountain Chile S.A. 55.00% 50.10% 27.56%
Iron Mountain do Brasil Emprendimentos Ltda. 99.90% 50.10% 50.05%
C.A.D.A. Storage S.A. 99.90% 50.10% 50.05%
Box Security 99.90% 50.10% 50.05%
Iron Mountain do Brasil S.A. 68.60% 50.05% 34.33%
EUROPE
Iron Mountain Europe Ltd. 50.10% 100.00% 50.10%
Iron Mountain (UK) Ltd. 100.00% 50.10% 50.10%
Arcus Data Security, Ltd. 100.00% 50.10% 50.10%
The Document Storage Company Ltd. 100.00% 50.10% 50.10%
Stortext (Holdings) Ltd. 100.00% 50.10% 50.10%
Stortext Limited 100.00% 50.10% 50.10%
JAD 93 Limited 100.00% 50.10% 50.10%
Document and Information Management Services Ltd. 100.00% 50.10% 50.10%
Kestrel Data Services Limited 100.00% 50.10% 50.10%
Miller Data Management Limited 100.00% 50.10% 50.10%
Kestrel Data UK Limited 100.00% 50.10% 50.10%
Kestrel Data Storage and Management Ltd. 100.00% 50.10% 50.10%
ENTITY NAME ("A") OWNED BY ("B")
- ----------------- --------------
Kestrel Reprographics Limited Kestrel Data UK Limited
Datavault Limited Iron Mountain Europe Ltd.
Silver Sky Ltd. Iron Mountain Europe Ltd.
Datavault Holdings Limited Iron Mountain Europe Ltd.
Datavault Northwest Limited Datavault Limited
Datavault Southwest Limited Datavault Limited
Secur' Archiv Aktenmanagement GmbH Iron Mountain Europe Ltd.
Archive Services Limited Iron Mountain (UK) Ltd.
Jones and Crossland Limited Archive Services Limited
Iron Mountain Holdings (Europe) Limited Iron Mountain Europe Ltd.
Iron Mountain Holdings (France) S.n.c. DIMS & Miller Data Mgmt. Ltd.
Iron Mountain (France) S.A. Iron Mountain Holdings (France) S.n.c.
MAP S.A. Iron Mountain (France) S.A.
BDM S.A. MAP S.A.
FIME S.A. BDM S.A.
Memogarde S.A. FIME S.A.
France Telesauvegarde S.A. FIME S.A.
Societe Civile Immobiliere du Chemin Cornillon FIME S.A.
Iron Mountain Espana S.A. Iron Mountain Holdings (Europe) Limited
Boston Data S.A. Iron Mountain Espana S.A.
Documentalia S.A. Iron Mountain Espana S.A.
MGR Arrendamientos Industriales S.L. Iron Mountain Espana S.A. & Documentalia S.A.
Innovator Projects S.A. Iron Mountain Holdings (Europe) Limited
Datavault S.A. IM Holdings (Europe) Ltd. & Innovator Projects S.A.
"B"S IM US IM US
PERCENT PERCENT "NET" %
OWNERSHIP OWNERSHIP OWNERSHIP
ENTITY NAME ("A") OF "A" OF "B" OF "A"
- ----------------- ------ ------ ------
Kestrel Reprographics Limited 100.00% 50.10% 50.10%
Datavault Limited 100.00% 50.10% 50.10%
Silver Sky Ltd. 100.00% 50.10% 50.10%
Datavault Holdings Limited 100.00% 50.10% 50.10%
Datavault Northwest Limited 100.00% 50.10% 50.10%
Datavault Southwest Limited 100.00% 50.10% 50.10%
Secur' Archiv Aktenmanagement GmbH 100.00% 50.10% 50.10%
Archive Services Limited 100.00% 50.10% 50.10%
Jones and Crossland Limited 100.00% 50.10% 50.10%
Iron Mountain Holdings (Europe) Limited 100.00% 50.10% 50.10%
Iron Mountain Holdings (France) S.n.c. 100.00% 50.10% 50.10%
Iron Mountain (France) S.A. 100.00% 50.10% 50.10%
MAP S.A. 100.00% 50.10% 50.10%
BDM S.A. 100.00% 50.10% 50.10%
FIME S.A. 100.00% 50.10% 50.10%
Memogarde S.A. 100.00% 50.10% 50.10%
France Telesauvegarde S.A. 100.00% 50.10% 50.10%
Societe Civile Immobiliere du Chemin Cornillon 100.00% 50.10% 50.10%
Iron Mountain Espana S.A. 100.00% 50.10% 50.10%
Boston Data S.A. 100.00% 50.10% 50.10%
Documentalia S.A. 100.00% 50.10% 50.10%
MGR Arrendamientos Industriales S.L. 100.00% 50.10% 50.10%
Innovator Projects S.A. 100.00% 50.10% 50.10%
Datavault S.A. 70.80% 50.10% 35.47%
ANNEX I
FORM OF OPINION OF COMPANY'S OUTSIDE COUNSEL
(i) Each of the Guarantors has been duly incorporated or formed, is validly
existing as a corporation or limited liability company in good standing under
the laws of its jurisdiction of incorporation or formation and has the corporate
or limited liability company power and authority required to carry on its
business as it is described in the Registration Statement and the Prospectus.
(ii) The Company is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(iii) All of the issued and outstanding shares of capital stock of, or
other ownership interests in, each of the Guarantors have been duly and validly
authorized and issued and are fully paid and non-assessable, and except as set
forth in the Prospectus are, to our knowledge, owned beneficially by the Company
or its subsidiaries, free and clear of any perfected security interest or
adverse claim, except to the extent described in the Prospectus or on the
Schedule to the Underwriting Agreement.
(iv) The Guarantees have been duly authorized by all necessary corporate or
limited liability company, as the case may be, action of the Guarantors and,
when the Notes are executed and authenticated in accordance with the provisions
of the Indenture and delivered to the Underwriters against payment therefor as
provided by the Underwriting Agreement, the Notes and the Guarantees will be
entitled to the benefits of the Indenture, and will be valid and binding
obligations of the Company and the Guarantors, respectively, enforceable in
accordance with their terms.
(v) The Underwriting Agreement has been duly delivered by the Company and
duly authorized, executed and delivered by the Guarantors.
(vi) The Indenture has been duly delivered by the Company and duly
authorized, executed and delivered by the Guarantors and is a valid and binding
agreement of the Company and the Guarantors enforceable in accordance with its
terms.
(vii) The statements under the "Description of the Notes," "Description of
Other Debt," "Certain United States Federal Income Tax Considerations" and
"Underwriting" in the Prospectus, as amended or supplemented through the date
hereof, insofar as such statements constitute a summary of legal matters,
documents or proceedings referred to therein, fairly present the information so
summarized with respect to such legal matters, documents and proceedings.
(viii) To our knowledge, no holder of any securities of the Company has the
right to require registration of any security of the Company in connection with
the filing of the Registration Statement or the issuance of the Notes.
(ix) The execution, delivery and performance of the Underwriting Agreement,
the Indenture and the Notes, the performance of the Guarantees, and compliance
by the Company and the Guarantors with all the provisions thereof and the
consummation of the transactions contemplated thereby do not require any
consent, approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (or pursuant to any consent
decree known to us by which the Company or a Guarantor is bound), and do not
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws or comparable organizational documents of
the Company or any of the Guarantors or any agreement filed as an exhibit to the
Company's Annual Report on Form 10-K for the year ended December 31, 2000 (the
"Annual Report") or any other agreement or other document known to us under
which the Company or any of the Guarantors has outstanding indebtedness for
money borrowed in excess of $4 million, or violate or conflict with any laws,
administrative regulations or rulings or, to our knowledge, court decrees
applicable to the Company, any of the Guarantors or their respective property.
(x) To our knowledge (A) no legal or governmental proceedings are pending
or threatened to which the Company or any of the Guarantors is a party or to
which any of their respective property is subject that are required to be
described in the Prospectus and are not so described and (B) no contract or
other document is required to be described in the Prospectus or filed as an
exhibit to the Registration Statement that is not so described or filed.
(xi) Neither the Company nor any Guarantor is now, nor immediately after
the offering of the Notes as described in the Prospectus will be, an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, or is or will be subject to
registration under the Investment Company Act.
(xii) The Registration Statement has become effective under the Act, and,
to our knowledge, no stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose are pending before or
threatened by the Commission. Any required filing of the Prospectus pursuant to
Rule 424 under the Act has been made in accordance with said Rule 424. The
Indenture has been duly qualified under the Trust Indenture Act.
(xiii) The Registration Statement and the Prospectus and any supplements or
amendments thereto (except for (i) the financial statements and the notes
thereto and the schedules and other financial and statistical data included or
incorporated by reference therein, and (ii) the part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) of the
Trustee under the Trust Indenture Act, as to which we express no opinion), as of
their respective effective dates or issue dates, complied as to form in all
material respects with the requirements of the Act.
(xiv) The Annual Report and the Current Report on Form 8-K filed with the
Commission on March 23, 2001 (the "Current Report") (except for the financial
statements and the notes thereto and the schedules and other financial and
statistical data included or incorporated by reference therein, as to which we
express no opinion) complied as to form when filed with the Commission in all
material respects with the requirements of the Exchange Act.
Such opinion shall also recite that:
In the course of the Company's preparation of the Registration Statement and the
Prospectus, we have participated in conferences with officers and other
representatives of the Company, counsel for the Underwriters, representatives of
the independent public accountants for the Company, and you, at which the
contents of the Registration Statement and Prospectus and related matters were
discussed and, although we are not passing upon, and do not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus and have not
made any independent check or verification thereof (except as set forth in
paragraph (vii)), on the basis of the foregoing, we advise you that (except as
to (i) the financial statements, schedules and other financial and statistical
data included in the Registration Statement or the Prospectus, and (ii) that
part of the Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act, as to which you have not asked us to
express, and as to which we do not express, any views) no facts have come to our
attention that would lead us to believe that (x) the Registration Statement
(including the documents incorporated by reference therein), as of the time it
became effective under the Act or as of March 23, 2001 at the time of filing the
Annual Report and the Current Report or on the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or (y) the Prospectus (including the documents
incorporated by reference therein), at the time it was first provided to the
Underwriters for use in connection with the offering of the Notes or at the date
hereof, included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
ANNEX II
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
(i) the statements under the captions "Item 12. Executive Compensation" and
"Item 13. Certain Relationships and Related Transactions" in the Company's
Annual Report on Form 10-K for the year ended December 31, 2001 incorporated by
reference in the Prospectus, as amended or supplemented, insofar as such
statements constitute a summary of legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect to
such legal matters, documents and proceedings;
(ii) the execution, delivery and performance of the Underwriting Agreement,
the Indenture, the Notes and the Guarantees and compliance by the Company and
the Guarantors with all the provisions thereof and the consummation of the
transactions contemplated thereby do not require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body (except as such may be required under the
securities or Blue Sky laws of the various states or jurisdictions outside the
United States), and will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws or comparable
organizational documents of the Company or any of its subsidiaries or any
agreement, indenture or other instrument to which it or any of its subsidiaries
is a party or by which it or any of its subsidiaries or their respective
property is bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company, any of its
subsidiaries or their respective property;
(iii) I do not know of (A) any legal or governmental proceeding pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of their respective property is subject which is required to be
described in the Prospectus and is not so described, or (B) any contract or
other document which is required to be described in the Prospectus or filed as
an exhibit to the Registration Statement and is not so described or so filed;
(iv) to my knowledge, neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or comparable organizational
documents and, to my knowledge, neither the Company nor any of its subsidiaries
is in default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or other evidence of indebtedness or in
any other agreement, indenture or instrument material to the conduct of the
business of the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective properties are bound;
(v) all leases to which the Company or any of its subsidiaries is a party
relating to real property in Massachusetts or California are valid and binding
and no default has occurred or is continuing thereunder which might result in
any material adverse change in the business prospects, financial condition or
results of operations of the Company and its subsidiaries taken as a whole, and
the Company and its subsidiaries enjoys peaceful and undisturbed possession
under all such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made thereof by the
Company or such subsidiary; and
(vi) to my knowledge, the Company and each of its subsidiaries has such
permits, licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its respective
properties and to conduct its respective business in the manner described in the
Prospectus; to my knowledge, the Company and each of its subsidiaries
has fulfilled and performed all of its material obligations with respect to such
permits and no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or would result in any other
material impairment of the rights of the holder of any such permit, except as in
each case as would not, singly or in the aggregate, have a material adverse
effect (financial or otherwise) on the Company and its subsidiaries, taken as a
whole and, except as described in the Prospectus, such permits contain no
restrictions that materially interfere with the business or operations of the
Company or any of its subsidiaries as currently conducted.
Such opinion shall also recite that:
I assisted in collecting information requested by your counsel and outside
counsel to the Company and responded to inquiries concerning the Company and its
subsidiaries raised by such counsel, and I have reviewed the Registration
Statement and the Prospectus; although except as expressly set forth herein, I
am not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus, no facts have come to my attention that wold lead
me to believe that (as to (i) financial statements, schedules and other
financial and statistical data contained therein and (ii) that part of the
Registration Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act, as to which I express no view), (x) the
Registration Statement (including the documents incorporated by reference
therein), as of the time it became effective under the Act or as of March 23,
2001 at the time of filing the Annual Report and the Current Report or on the
date hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or (y) the
Prospectus (including the documents incorporated by reference therein), at the
time it was first provided to the Underwriters for use in connection with the
offering of the Notes or at the date hereof, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
ANNEX III
FORM OF OPINION OF SPECIAL PENNSYLVANIA COUNSEL TO THE COMPANY
(i) The Company is a corporation duly incorporated and validly subsisting
under the laws of the Commonwealth of Pennsylvania and has the corporate power
to own, lease and operate its properties and to conduct its business as
described or incorporated by reference in the Prospectus, to enter into and
perform its obligations under the Agreement and to consummate the transactions
contemplated by the Agreement and in the Prospectus.
(ii) The Agreement has been duly authorized and executed by the Company.
(iii) The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Indenture.
(iv) The statements under the captions "Description of Capital Stock" and
"Description of Certain Provisions of Pennsylvania Law and Our Articles of
Incorporation and ByLaws" in the Prospectus and "Item. 15. Indemnification of
Directors and Officers" in the Registration Statement have been reviewed by us,
and insofar as they refer to statements of law, descriptions of statutes, rules
or regulations, or legal conclusions, are correct in all material respects.
(v) The execution, delivery and performance of the Agreement, the Notes and
the Indenture, and the consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate action on the part
of the Company and will not violate (i) the provisions of the Articles of
Incorporation or Bylaws of the Company or (ii) any statute, rule or regulation
of the United States or the Commonwealth of Pennsylvania or any administrative
body thereof, or, to our knowledge, any administrative or court order or decree.
(vi) No consent, authorization, or approval of, or notice to or filing
with, any court, governmental authority or agency of the Commonwealth of
Pennsylvania is necessary or required by the Company in connection with the
issue and sale of the Notes pursuant to the Indenture or the execution and
delivery of the Indenture, except those already obtained or made or those
described in the Prospectus.