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EXECUTION COPY
$210,000,000
8-5/8% SENIOR SUBORDINATED NOTES DUE 2013
IRON MOUNTAIN INCORPORATED
UNDERWRITING AGREEMENT
September 6, 2001
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
William Blair & Company, L.L.C.
First Union Securities, Inc.
JPMorgan Securities Inc.
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"), for whom Bear
Stearns & Co. Inc. is acting as representative (the "REPRESENTATIVE"), an
aggregate of $210,000,000 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 the Base Indenture as supplemented by the First Supplemental Indenture
thereto (as so supplemented the "INDENTURE"), each dated as of April 3, 2001,
among the Company, the Guarantors and The Bank of New York, as trustee (in
such capacity, the "TRUSTEE") pursuant to which the Company previously issued
$225,000,000 in aggregate principal amount of the Company's 8-5/8% Senior
Subordinated Notes due 2013 (the "EXISTING 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 agrees with, each of the Underwriters that:
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(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, Amendment No. 1 thereto, filed on
January 29, 2001, the 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. 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 has filed a final prospectus supplement with the
Commission pursuant to Rule 424(b) of the rules and regulations of the
Commission (the "RULES AND REGULATIONS") relating to the offering and sale of
the Existing Notes. The Company will file the Prospectus (as defined below)
with the Commission pursuant to Rule 424(b) of 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 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 for such use. Any
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 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 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 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 or 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 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
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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 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 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.
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(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 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
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authenticated in accordance with the provisions of the Indenture and
delivered to the Underwriters 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,
executed and delivered by the Company and each of the Guarantors and has been
duly qualified under the Trust Indenture Act of 1939, as amended; and,
assuming the due authorization, execution and delivery thereof by the Trustee
is 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 conforms 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.
(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
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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 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
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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 have a Material Adverse Effect on the Company and its
subsidiaries, taken as a whole.
(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.
(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.
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(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 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
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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.
(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 of the Guarantors has entered into
the Guarantee to which it is a party, (i) the fair value of the assets of
such Guarantor will exceed the debts and liabilities, subordinated,
contingent or otherwise, of such Guarantor, (ii) the present fair saleable
value of the property of such Guarantor will be greater than
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the amount that will be required to pay the probable liabilities of such
Guarantor 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 Guarantor 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 Guarantor 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.
(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 the purchase price set forth
opposite the name of such Underwriter on Schedule I hereto.
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(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 eighth 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 thirteen 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. 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 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 or the Company include an untrue statement of a
material fact or omit to state any 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, 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 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
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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 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 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.
(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.
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(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 reaffirm their respective credit ratings on the Existing
Notes, including for this purpose, the issuance of the Notes.
(k) The Company has not and will not (and has not permitted
its affiliates to, 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 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 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 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 in connection with, securing
any required
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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 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).
(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,
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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
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) The Underwriters shall have received a letter on the
Closing Date from the Company confirming that less than 10% of the net
proceeds from the sale of the Notes will be used to repay any credit facility
in which any of the Underwriters or any of their affiliates or associates are
parties or lenders.
(k) 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
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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, 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).
(l) 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.
(m) On or prior to the Closing Date, The Depository Trust
Company shall have accepted the Notes for clearance.
(n) 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 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 and each person, if any, who controls any
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, 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
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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 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, 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 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) Promptly after receipt by an indemnified party under
subsection (a) or (b) 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
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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 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 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 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 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 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 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 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 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 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
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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 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 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 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, 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
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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 Underwriter from liability in respect of its default.
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 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 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
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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.
(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 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 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, 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 pursuant to Section 7 shall
be delivered or sent by mail or facsimile transmission to such Underwriter at
its address set forth in its acceptance facsimile to you, if any, 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;
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(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
(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) Except as set forth in subsections (a), (b) and (c) above,
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 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.
[signature page follows]
22
<Page>
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:
------------------------------------
Name:
Title:
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:
------------------------------------
Name:
Title:
<Page>
ARCUS DATA SECURITY, LLC
By: Arcus Data Security, Inc., its
sole manager
By:
------------------------------------
Name:
Title:
IRON MOUNTAIN CONSULTING SERVICES, LLC
IRON MOUNTAIN/NATIONAL UNDERGROUND
STORAGE, LLC
IRON MOUNTAIN CONFIDENTIAL DESTRUCTION LLC
By: Iron Mountain Records Management,
Inc., its sole member
By:
------------------------------------
Name:
Title:
IRON MOUNTAIN GLOBAL, LLC
By: Iron Mountain Global, Inc.,
its sole member
By:
------------------------------------
Name:
Title:
<Page>
Accepted as of the date first above written
BEAR, STEARNS & CO. INC.
By:
---------------------------------
Name:
Title:
GOLDMAN, SACHS & CO.
By:
---------------------------------
(Goldman, Sachs & Co.)
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------------
Name:
Title:
WILLIAM BLAIR & COMPANY, L.L.C.
By:
---------------------------------
Name:
Title:
FIRST UNION SECURITIES, INC.
By:
---------------------------------
Name:
Title:
<Page>
JPMORGAN SECURITIES INC.
By:
---------------------------------
Name:
Title:
<Page>
SCHEDULE I
<Table>
<Caption>
Aggregate Principal Aggregate Purchase
Amount of Notes Price of Notes To be
Name of Underwriter To be Purchased Purchased
------------------- -------------- ------------
Bear, Stearns & Co. Inc. $ 73,500,000 $ 73,296,956
Goldman, Sachs & Co. $ 36,750,000 $ 36,648,479
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $ 36,750,000 $ 36,648,479
William Blair & Company, L.L.C. $ 21,000,000 $ 20,941,987
First Union Securities, Inc. $ 21,000,000 $ 20,941,987
JPMorgan Securities Inc. $ 21,000,000 $ 20,941,987
Total............. =============== =============
$ 210,000,000 $ 209,419,875
</Table>
S-I - 1
<Page>
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.
S-II - 1
<Page>
SCHEDULE III
<Table>
<Caption>
"B"S IM US IM US
PERCENT PERCENT "NET" %
OWNERSHIP OWNERSHIP OWNERSHIP
ENTITY NAME ("A") OWNED BY ("B") OF "A" OF "B" OF "A"
- ----------------- -------------- --------- --------- ---------
USA
Upper Providence Venture I, L.P. PLRH, Inc. (1% GP) & Iron Mountain,
Inc. (54% LP) 55.00% 100.00% 55.00%
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. 50.10% 100.00% 50.10%
Sistemas de Archivo S.A. de R.L. de C.V. Sistemas de Archivo Corporativo S.A. de R.L. de C.V. 100.00% 50.10% 50.10%
Sistemas de Archivo de Mexico S.A. de R.L. Sistemas de Archivo Corporativo S.A. de R.L. de C.V. 100.00% 50.10% 50.10%
Iron Mountain South America Ltd. Iron Mountain Cayman Ltd. 50.10% 100.00% 50.10%
IMSA Peru SRL Iron Mountain South America Ltd. 99.88% 50.10% 50.03%
Iron Mountain Peru S.A. IMSA Peru SRL 99.60% 50.03% 49.83%
Iron Mountain Chile S.A. Iron Mountain South America Ltd. 55.00% 50.10% 27.56%
Iron Mountain do Brasil Emprendimentos Ltda. Iron Mountain South America Ltd. 99.90% 50.10% 50.05%
C.A.D.A. Storage S.A. Iron Mountain South America Ltd. 99.90% 50.10% 50.05%
Box Security Iron Mountain South America Ltd. 99.90% 50.10% 50.05%
Iron Mountain do Brasil S.A. Iron Mountain do Brasil Emprendimentos Ltda. 70.00% 50.05% 35.04%
EUROPE
Iron Mountain Europe Ltd. Iron Mountain (Europe) Group Ltd. 50.10% 100.00% 50.10%
Iron Mountain (UK) Ltd. Iron Mountain Europe Ltd. 100.00% 50.10% 50.10%
Arcus Data Security, Ltd. Iron Mountain Europe Ltd. 100.00% 50.10% 50.10%
The Document Storage Company Ltd. Iron Mountain Europe Ltd. 100.00% 50.10% 50.10%
Stortext (Holdings) Ltd. Iron Mountain Europe Ltd. 100.00% 50.10% 50.10%
Stortext Limited Stortext (Holdings) Ltd. 100.00% 50.10% 50.10%
JAD 93 Limited Stortext (Holdings) Ltd. 100.00% 50.10% 50.10%
Document and Information Management
Services Ltd. Iron Mountain Europe Ltd. 100.00% 50.10% 50.10%
Kestrel Data Services Limited Iron Mountain (UK) Ltd. 100.00% 50.10% 50.10%
Miller Data Management Limited Iron Mountain (UK) Ltd. 100.00% 50.10% 50.10%
Kestrel Data UK Limited Kestrel Data Services Limited 100.00% 50.10% 50.10%
</Table>
Schedule III - 1
<Page>
<Table>
<Caption>
"B"S IM US IM US
PERCENT PERCENT "NET" %
OWNERSHIP OWNERSHIP OWNERSHIP
ENTITY NAME ("A") OWNED BY ("B") OF "A" OF "B" OF "A"
- ----------------- -------------- --------- --------- ---------
Kestrel Data Storage and Management Ltd. Kestrel Data UK Limited 100.00% 50.10% 50.10%
Kestrel Reprographics Limited Kestrel Data UK Limited 100.00% 50.10% 50.10%
Datavault Limited Iron Mountain Europe Ltd. 100.00% 50.10% 50.10%
Silver Sky Ltd. Iron Mountain Europe Ltd. 100.00% 50.10% 50.10%
Datavault Holdings Limited Iron Mountain Europe Ltd. 100.00% 50.10% 50.10%
Datavault Northwest Limited Datavault Limited 100.00% 50.10% 50.10%
Datavault Southwest Limited Datavault Limited 100.00% 50.10% 50.10%
Iron Mountain Deutschland GmbH Iron Mountain Europe Ltd. 100.00% 50.10% 50.10%
Archive Services Limited Iron Mountain (UK) Ltd. 100.00% 50.10% 50.10%
Jones and Crossland Limited Archive Services Limited 100.00% 50.10% 50.10%
Iron Mountain Holdings (Europe) Limited Iron Mountain Europe Ltd. 100.00% 50.10% 50.10%
Iron Mountain Holdings (France) S.n.c. DIMS & Miller Data Mgmt. Ltd. 100.00% 50.10% 50.10%
Iron Mountain (France) S.A. Iron Mountain Holdings (France) S.n.c. 100.00% 50.10% 50.10%
MAP S.A. Iron Mountain (France) S.A. 100.00% 50.10% 50.10%
BDM S.A. MAP S.A. 100.00% 50.10% 50.10%
FIME S.A. BDM S.A. 100.00% 50.10% 50.10%
Memogarde S.A. FIME S.A. 100.00% 50.10% 50.10%
France Telesauvegarde S.A. FIME S.A. 100.00% 50.10% 50.10%
Societe Civile Immobiliere du Chemin Cornillon FIME S.A. 100.00% 50.10% 50.10%
Iron Mountain Iberica S.L. IM Holdings (Europe) Ltd., Innovator Projects
S.A. & Datavault S.A. 100.00% 50.10% 50.10%
Iron Mountain Espana S.A. Iron Mountain Holdings (Europe) Limited 100.00% 50.10% 50.10%
Documentalia S.A. Iron Mountain Espana S.A. 100.00% 50.10% 50.10%
Innovator Projects S.A. Iron Mountain Holdings (Europe) Limited 100.00% 50.10% 50.10%
Datavault S.A. IM Holdings (Europe) Ltd. & Innovator Projects S.A. 100.00% 50.10% 50.10%
</Table>
Schedule III - 2
<Page>
ANNEX I
FORM OF OPINION OF COMPANY'S OUTSIDE COUNSEL
(i) Each of the Guarantors (i) has been duly incorporated or
formed, (ii) is validly existing as a corporation or limited liability
company, (iii) is in good standing under the laws of its jurisdiction of
incorporation or formation and (iv) 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,"
"Material 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.
Annex I - 1
<Page>
(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 Registration Statement, the
Company's Annual Report on Form 10-K for the year ended December 31, 2000
(the "Annual Report") or the Company's Quarterly Reports on Form 10-Q for the
three-month periods ended March 31, 2001 and June 30, 2001 (each a "Quarterly
Report" and, together, the Quarterly Reports") or the Company's Current
Report on Form 8-K dated April 3, 2001 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
Annex I - 2
<Page>
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, the Quarterly Reports and the Current
Reports on Form 8-K filed with the Commission on March 23, 2001, April 3,
2001 and September 6, 2001 (each, a "Current Report" and, together, the
"Current Reports") (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
September 6, 2001 at the time of filing the Annual Report, the Quarterly
Reports and the Current Reports 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 I - 3
<Page>
ANNEX II
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
(i) the statements under the captions "Item 11. 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,
2000 and under the caption "Executive Compensation" in the Company's Notice
of Annual Meeting and Proxy Statement dated April 24, 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
Annex II - 1
<Page>
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 (except 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 September 6, 2001 at the time of filing the Annual Report,
the Quarterly Reports and the Current Reports 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 - 2
<Page>
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.
A-III - 1