EXHIBIT 3.2M
LIMITED LIABILITY COMPANY AGREEMENT
OF
IRON MOUNTAIN RECORDS MANAGEMENT OF MISSOURI LLC
A Delaware Limited Liability Company
This Limited Liability Company Agreement of Iron Mountain Records
Management of Missouri LLC (this "Agreement"), dated as of April 24, 1996, is
adopted by and executed and agreed to by Iron Mountain Records Management, Inc.
and Iron Mountain Records Management of Maryland, Inc. (individually, a "Member"
and collectively referred to as the "Members").
ARTICLE 1
DEFINITIONS
P. 1.01. Definition. The following terms shall have the following meanings when
used in this Agreement:
"Act" means the Delaware Limited Liability Company Act and any successor
statute, as amended form time to time.
"Adjusted Capital Account Deficit" means the Capital Account maintained for each
Member as of the end of each fiscal year of the Company after giving effect to
the following adjustments:
(a) Increased by any amounts which the Member is obligated to restore
under the stands set forth in Treas. Reg. ss. 1.704-1(b)(2)(ii)(c) or is deemed
obligated to restore under Treas. Reg. ss. 1.704-2(g)(1) (relating to minimum
gains) and Treas. Reg. ss. 1.704-2(i))(5) (relating to member minimum gains);
and
(b) Decreased by:
(i) All losses and deductions that, as of the end of the applicable
fiscal year, are reasonably expected to be allocated to the Member in years
subsequent to the applicable fiscal year under Code ss.ss. 704(e)(2) and 706(d)
and under Treas. Reg. ss. 1.751-1(b)(ii); and
(ii) Distributions that are reasonably expected to be made to the
applicable Member to the extent that such distributions exceed offsetting
increases in the applicable Member's Capital Account that are reasonably
expected to occur during (or prior to) the year in which such distributions are
reasonably expected to be made. Notwithstanding anything to the contrary
contained herein, an Adjusted Capital Account Deficit shall be determined in
accordance with Treas. Reg. ss. 1.704-1(b)(2)(ii)(d).
"Adjusted Capital Contribution" means, as of any day, a Member's Capital
Contribution adjusted as follows:
(a) Increased by the amount of any Company liabilities which, in
connection with distributions pursuant to P. P. 4.06 or 10.03, are assumed by
such Member or are secured by any Company Property distributed to such Member;
and
(b) Reduced by the amount of cash and the fair market value (as determined
by the Members) of any Company Property distributed to such Member pursuant to
P. P. 4.06 and 10.03 and the amount of any liabilities of such Member assumed by
the Company or which are secured by any Property contributed by such member to
the Company.
In the event any Person transfers all or any portion of its Interest, the
transferee shall succeed to the Adjusted Capital Contribution of the transferor
to the extent it relates to the transferred Interest.
"Affiliate" of another Person means: (a) any entity or individual that directly
or indirectly controls or holds the power to vote 10% or more of the outstanding
voting securities of the Person in question; (b) any Person 10% or more of whose
voting securities are directly or indirectly owned, controlled or held with
power to vote, by such other Person; (c) any Person directly or indirectly
controlling, controlled by, or under common control with such other Person; (d)
any officer, director or partner of such other Person; and (e) if such other
Person is an officer, director or partner, any company for which such Person
acts in any such capacity.
"Agreed Value" of any Contributed Property means the fair market value of the
property at the time of contribution as determined by the Members; provided,
however, that the Agreed Value of any Property deemed contributed to the Company
for federal income tax purposes upon termination and reconstitution thereof
pursuant to Code ss. 708 shall be determined in accordance with P. 3.06. Subject
to P. 3.06, in the event that more than a single item of Property is contributed
to the Company in a single or integrated transaction, the Members shall use such
method as they deem reasonable and appropriate to allocate the aggregate Agreed
Value of Contributed Properties among each separate property in proportion to
the respective fair market value of each item of such Property.
"Articles" means the Certificate of Formation filed for the Company in
accordance with the Act.
"Bankruptcy" means, with respect to any Member: (i) an assignment for the
benefit of creditors; (ii) a voluntary petition in bankruptcy; (iii)
adjudication as a bankrupt or insolvent; (iv) the filing of a petition or answer
seeking any reorganization, arrangement, composition, readjustment, liquidation
or similar relief under any statute, regulation or law; (v) the filing of an
answer or other pleading admitting or failing to contest the material
allegations of a petition filed against the Member in any proceeding of this
nature; or (vi) seeking, consenting to, or acquiescing in the appointment of a
trustee, receiver, or liquidator of such Member's properties or of all or any
substantial part of the Member's properties.
"Book-Tax Disparity" shall mean with respect to any item of Contributed Property
or Revalued Property, as of the date of any determination, the difference
between the Carrying Value of such Contributed Property or Revalued Property and
the adjusted basis thereof for federal income tax
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purposes as of such date. A Member's share of the Company's Book-Tax Disparities
in all of its Contributed Property and Revalued Property will be reflected by
the difference between such Member's Capital Account balance, as maintained
pursuant to Article 3, and the balance of such Member's Capital Account computed
as if it had been maintained strictly in accordance with federal income tax
accounting principles.
"Capital Contributions" means the total amount of capital contributed by a
Member to the Company, as determined from time to time, which shall include the
Net Agreed Value of any Contributed Property.
"Carrying Value" means:
a) With respect to a Contributed property, the Agreed Value of such
Property reduced (but not below zero) by all depreciation, depletion
(computed as a separate item of deduction), amortization and cost recovery
deductions charged to the Members' Capital Accounts;
b) With respect to a Revalued Property, the fair market value of such
Property at the time of revaluation, as determined by the Members in
accordance with P. 3.07 hereof, reduced (but not below zero) by all
depreciation, depletion, amortization and cost recovery deductions charged
to the Members' Capital Accounts; and
c) With respect to any other Company Property, the adjusted basis of such
Property for federal income tax purposes, all as of the time of
determination.
The Carrying Value of any Property shall be adjusted from time to time in
accordance with P. 3.07 hereof.
"Code" means the Internal Revenue Code of 1986 and any successor statute, as
amended from time to time.
"Company" means Iron Mountain Records Management of Missouri LLC, a Delaware
limited liability company.
"Company Property" or "Property" means all properties, assets and rights of any
type owned by the Company.
"Contributed Property" means any property contributed to the Company at any time
or from time to time (or deemed contributed to the Company upon a termination
and reconstitution thereof under Code ss. 708). Once the Carrying Value of
Contributed Property has been adjusted pursuant to P. 3.07 hereof, such property
shall be deemed Revalued Property and shall no longer be deemed Contributed
Property.
"Corporation Act" means the Delaware General Corporation Law and any successor
statute, as amended from time to time.
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"Impasse" means the failure of a Member to consent to or approve any of the
following actions, after any such action has been proposed by the other Member:
(i) to sell or exchange all or any substantial part of the Company Property;
(ii) to change the Company's purpose or the purpose for which the Company
Property is owned; (iii) to refinance any of the Company's indebtedness; (iv) to
incur more than Fifty Thousand Dollars ($50,000) of indebtedness in the
aggregate; or (v) to raise any additional capital for the Company and/or issue
any additional Membership Interests. An Impasse shall be considered to have
occurred if the Members are unable to agree with respect to any of the foregoing
actions within ten (10) days after any such action has been proposed.
"Limited Liability Company Agreement" means this Agreement as it may from time
to time be amended.
"Majority Interest" means one or more Members holding more than 50% of the
Units.
"Member" means each Person identified as such in the introductory paragraph and
each Person hereafter admitted to the Company as a Member as provided in this
Agreement. The Members' Interests are set forth on attached and incorporated
Exhibit "A".
"Membership Interest" or "Interest" means the membership interest or interest of
a member in the Company, including the right to any and all benefits to which
such member may be entitled in accordance with this Agreement, and the
obligations as provided in this Agreement and the Act.
"Net Agreed Value" means, as follows:
(a) In the case of any Contributed Property, the Agreed Value of such
property net of liabilities either assumed by the Company upon such contribution
or to which such property is subject when contributed to the Company, as
determined in accordance with Code ss.752; and
(b) In the case of any property distributed to a Member, the Company's
Carrying Value of such property at the time such property is distributed, net of
any indebtedness either assumed by such distributee Member upon such
distribution or to which such property is subject at the time of distribution
determined in accordance with Code ss.752.
"Net Cash Receipts" means the gross cash proceeds from the operation of the
Company's business less the portion thereof used to establish reserves for or to
pay Company expenses, debt payments and capital expenditures. "Net Cash
Receipts" shall include any net cash proceeds from the sale or disposition of
company Property and from the refinancing of indebtedness of the Company, shall
be increased by any reduction of reserves previously established by the Members,
and shall not be reduced by depreciation, cost recovery, amortization or similar
noncash deductions.
"Person" means any individual, corporation, trust, partnership, joint venture,
limited liability company or other entity.
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"Proceeding" has the meaning given that term in P. 7.01.
"Profits" and "Losses" mean, for each fiscal year, an amount equal to the
Company's taxable income or loss for such year, determined in accordance with
Code ss.703(a) (including all items required to be stated separately) with the
following adjustments:
(a) Any income exempt from federal income tax shall be included;
(b) Any expenditures of the Company described in Code ss.705(a)(2)(B)
(including expenditures treated as such pursuant to Treas. Reg.
ss.1.704-1(b)(2)(iv)(i)) shall be subtracted;
(c) In the event any Company Property is revalued pursuant to P. 3.07, the
amount of such adjustment shall be taken into account in determining gain or
loss from the disposition of such Property;
(d) Any items which are specially allocated pursuant to P. 4.02 or 4.03
shall not be taken into account in computing Profits or Losses;
(e) Gain or loss resulting from any disposition of Company Property with
respect to which gain or loss is recognized for federal income tax purposes
shall be computed by reference to the Carrying Value of the Property disposed
of, notwithstanding that the adjusted tax basis of such Property differs from
its Carrying Value; and
(f) In the case of Company Property having a Book-Tax Disparity, in lieu
of depreciation, amortization or other cost recovery deductions allowable under
the Code ("Tax Depreciation"), there shall be taken into account for each
Property a depreciation allowance which bears the same ratio to its initial
Agreed Value (or, with respect to Revalued Property, its initial Carrying Value)
as the Tax Depreciation for such year bears to its beginning adjusted tax basis.
"Representative" shall mean the legally appointed guardian of a mentally
incapacitated Member, the conservator of a mentally incapacitated Member's
assets or the legally appointed and qualified executor or personal
representative of the estate of a deceased Member. In the event no such
guardian, executor or personal representative is appointed, then the
Representative shall mean the spouse of such incapacitated or deceased Member,
or if such Member does not have a spouse or the spouse is not then living or is
unable ro unwilling to act, such Member's then living lineal descendants who are
willing and capable of acting, one at a time in descending order of age but in
no event younger than 21 years of age or, if none, such Member's then-living
lineal ancestors who are willing and capable of acting, one at a time and in
ascending order of age.
"Revalued Property" shall mean any Property the Carrying Value of which has been
adjusted in accordance with P. 3.07(a) or (b). If a Revalued Property is deemed
distributed by, and recontributed to, the Company for federal income tax
purposes upon a termination of the Company pursuant to Code ss.708, such
Property shall constitute a Contributed Property until the Carrying Value of
such Property is subsequently adjusted (if at all) pursuant to P. 3.07(a) or
(b).
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"Sharing Ratio" shall mean the ratio in which the Members share in all Profits,
Losses and distributions to the Members. The Sharing Ratio for each Member shall
be the same percentage that such Member's Units bear to all outstanding Units.
"Transfer" means, with respect to an Interest, a sale, assignment, gift or any
other disposition by a Member, whether voluntary, involuntary or by operation of
law.
"Transferor" means a Member who proposes to make a voluntary Transfer of its
Interest, a Withdrawing Member, or the Representative of a Withdrawing Member.
"Treasury Regulations", Treas. Reg. or "Reg.") means the income tax regulations
promulgated under the Code as amended from time to time (including corresponding
provisions of succeeding regulations).
"Unit" means an Interest representing a Capital Contribution $10,000 to the
Company.
"Unrealized Gain" attributable to any item of Company Property means, as of any
date of determination, the excess, if any, of (a) the fair market value of such
Property (as determined under P. 3.07 hereof) as of such date, over (b) the
Carrying Value of such Property as of such date (prior to any adjustment to be
made pursuant to P. 3.07) as of such date.
"Unrealized Loss" attributable to any item of Company Property means, as of any
date of determination, the excess, if any, of (a) the Carrying Value of such
Property as of such date (prior to any adjustment to be made pursuant to P. 3.07
as of such date), over (b) the fair market value of such Property (as determined
under P. 3.07) as of such date.
"Withdrawing Member" has the meaning given that term in P. 5.03(b).
ARTICLE 2
ORGANIZATION
P. 2.01. Formation. The Company has been organized as a Delaware limited
liability company under and pursuant to the Act and a certificate of formation
for the Company has been filed with the Secretary of State of Delaware. The
rights and obligations of the Members shall be as set forth in the Act except as
this Agreement expressly provides otherwise.
P. 2.02. Name. The name of the Company is "Iron Mountain Records Management of
Missouri LLC" and all Company business shall be conducted in that name or such
other name as the Members may select from time to time and which is in
compliance with all applicable laws.
P. 2.03. Registered Office and Registered Agent and Principal Office. The
registered office of the Company required by the Act to be maintained in the
State of Delaware shall be the office of the initial registered agent named in
the Certificate of Formation or such other office as the Members may designate
from time to time in the manner provided by law. The registered agent
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of the Company in the State of Delaware shall be the initial registered agent
named in the Articles or such other Person or Persons as the Members may
designate from time to time. The principal office of the Company shall be at
such place as the Members may designate from time to time, and the Company shall
maintain records there as required by the Act.
P. 2.04. Purposes. The purposes of the Company shall be to provide records
management and storage services and to undertake all such other activities and
businesses as may be undertaken by a limited liability company under the Act.
P. 2.05. Foreign Qualification. The Company shall not engage in any business
outside the State of Delaware unless and until the Company has complied with the
requirements necessary to qualify the Company as a foreign limited liability
company in the other jurisdiction.
P. 2.06. Term. The Company commenced on the date of issuance of its certificate
of formation and shall continue in existence until December 31, 2025 or such
earlier time as may be determined in accordance with the terms of the Agreement.
P. 2.07. Recapitalization, Acquisitions, Restructuring and Mergers. The Company
may participate in or be a party to any recapitalization, acquisition,
restructuring or merger in accordance with and as allowed by the Act or the
Corporation Act.
P. 2.08. Entity Declaration. The Company shall not be a general partnership, a
limited partnership or a joint venture, and no Member shall be considered a
partner or joint venturer of or with any other Member, for any purposes other
than for federal and state tax purposes, and this Agreement shall not be
construed otherwise.
ARTICLE 3
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
P. 3.01. Initial Contributions. The Members shall make Capital Contributions to
the Company in cash in the amount set forth in attached and incorporated Exhibit
"A."
P. 3.02. Subsequent Contributions. No Member shall be obligated to make any
Capital Contributions to the Company other than those set forth on Exhibit "A."
P. 3.03. Return of Capital Contributions. Each Member agrees not to withdraw as
a member of the Company and, except as expressly provided herein, no Member
shall be entitled to the return of any part of its Capital Contributions or to
be paid interest in respect to either its Capital Account or its Capital
Contributions. An unpaid Capital Contribution is not a liability of the Company
or of any Member.
P. 3.04. Loans by Members. Any Member may, but is not obligated to, loan to the
Company such sums as the Members determine to be appropriate for the conduct of
the Company's business. Any such loans shall bear interest at one percent (1%)
above the prime rate of interest
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charged from time to time by The Chase Manhattan Bank (National Association) and
shall be on such other terms as the Members may agree. All loans shall be repaid
in full before any distributions are made to the Members.
P. 3.05. Capital Accounts. A separate Capital Account shall be maintained for
each Member in accordance with Treas. Reg. ss.1.704-1(b)(2)(iv). Subject to the
requirements of Treas. Reg. ss.704-1(b)(2)(iv), each Capital Account:
(a) shall be credited with: (i) all cash contributions of such Members to
the Company; (ii) the Net Agreed Value of Contributed Property, (iii) such
Member's share of the Company's Profits; (iv) the amount of any liabilities of
the Company assumed by such Member (other than liabilities included in the
netting process of Subparagraph (b)(ii) below or increases in the Member's share
of the Company's liabilities determined in accordance with the provisions of
Code ss.752); and (v) the amount of any basis increase in Company Property
attributable to investment credit recapture allocated to such Member; and
(b) shall be debited for: (i) distributions of cash to such Member; (ii)
the Net Agreed Value of Company Property distributed to such Member, (iii) such
Member's share of the Company's Losses (including expenditures which can neither
be capitalized nor deducted for tax purposes, organization and syndication
expenses not subject to amortization, and loss on sale or disposition of Company
Property, whether or not disallowed under the rules of Code ss.ss.267 or 707,
but excluding losses or deductions described in Treas. Reg. ss.1.704-1(b)(4)(i)
or (iii)); (iv) the amount of any liabilities of such Member assumed by the
Company (other than liabilities already included in the netting process of
Subparagraph (a)(ii) above or decreases in the Member's share of the Company's
liabilities determined in accordance with the provisions of Code ss.752); and
(v) the amount of any basis decrease in Company Property attributable to
investment credit recapture allocated to such Member.
P. 3.06. Capital Accounts Upon Sale or Exchange of Membership Interests. Upon
the sale or exchange of an Interest, the following shall apply: (i) if such sale
or exchange causes a termination of the Company in accordance with Code
ss.708(b)(1)(B), the Company's Property shall be deemed to have been distributed
to the Members in a liquidation of the Company and to have been recontributed to
a new Company, and the Capital Accounts of the Members shall be redetermined in
accordance with P. 3.07, or (ii) if such sale or exchange does not cause a
termination of the Company in accordance with Code ss.708(b)(1)(B), the Capital
Account of the selling or exchanging Member will be transferred to the
transferee on a pro rata basis.
P. 3.07. Revaluation of Capital Accounts Upon Occurrence of Certain Events.
(a) Contributions. In accordance with the provisions of Treas. Reg.
ss.1.704- 1(b)(2)(iv)(f), if after the initial capital is contributed pursuant
to P. 3.01, money or property in other than a de minimis amount is contributed
to the Company in exchange for an Interest, the Capital Accounts of the Members
and Carrying Values of all the Company's Property (determined immediately prior
to such issuance) shall be adjusted to reflect the Unrealized Gain or Unrealized
Loss attributable to each such Company Property as if such Unrealized Gain or
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Unrealized Loss had been recognized on a sale of each such item of Company
Property immediately prior to such issuance and had been allocated to the
Members in accordance with Article 4. In determining the Unrealized Gain or
Unrealized Loss, the fair market value of Company Property shall be as
determined by the Members.
(b) Distributions. In accordance with the provisions of Treas. Reg.
ss.1.704- 1(b)(2)(iv)(f), if money or Company Property in other than a de
minimis amount is distributed (including any deemed distribution under P.
3.06(i)) to a Member in exchange for or part of an Interest, the Capital
Accounts of the Members and the Carrying Values of all the Company's Property
(determined immediately prior to such distribution) shall be adjusted to reflect
the Unrealized Gain or Unrealized Loss attributable to each item of Company
Property as if such Unrealized Gain or Unrealized Loss had been recognized on a
sale of each such item of Company Property immediately prior to such
distribution and had been allocated to the Members in accordance with Article 4.
In determining the Unrealized Gain or Unrealized Loss, the fair market value of
the distributed Property shall be as determined by the Members.
ARTICLE 4
ALLOCATIONS AND DISTRIBUTIONS
P. 4.01. Allocation of Profits and Losses. After giving effect to the special
allocations set forth in P. P. 4.02 and 4.03, Profits and Losses for each fiscal
year shall be allocated among the Members in accordance with the Sharing Ratio.
P. 4.02. Special Allocations. Items of income, gain, loss and deduction shall be
allocated in accordance with the provisions of this P. 4.02 without regard to
the allocation provision contained in P. 4.01 in the following order:
(a) Qualified Income Offset. If any Member's Capital Account is
unexpectedly adjusted for, or such Member is unexpectedly allocated or there is
unexpectedly distributed to such Member, any item described in Treas. Reg.
ss.1.704-1(b)(2)(ii)(d)(4)-(6), and such treatment creates or increases a
Member's Adjusted Capital Account Deficit, then without regard to the
allocations provided in P. 4.01, the Company shall allocate to such member items
of Company income and gain (consisting of a pro rata portion of each item of
Company income, including gross income, and gain for such year) in an amount and
manner sufficient to eliminate such Adjusted Capital Account Deficit as quickly
as possible.
(b) Gross Income Allocation. In the event that a Member has a deficit
Capital Account at the end of any Company fiscal year which is in excess of the
sum of (i) the amount the Member is obligated to restore pursuant to any
provision of this Agreement, and (ii) the amount the Member is deemed to be
obligated to restore pursuant to Treas. Reg. ss.1.704-2(g) and (i)(5), the
Member shall be specially allocated items of Company income and gain in the
amount of such excess as quickly as possible, provided that an allocation
pursuant to this paragraph shall be made if and to the extent that the Member
would have a deficit Capital Account in excess of
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such sum after all other allocations provided for in this P. 4.02 have been
tentatively made as if this P. 4.02(b) were not in this Agreement.
P. 4.03. Curative Allocations. The allocations set forth in P. 4.02 ("Regulatory
Allocations") are intended to comply with certain requirements of Treas. Reg.
ss.1.704-1(b). Notwithstanding any other provision of Article 4 (other than
Regulatory Allocations), the Regulatory Allocations shall be taken into account
in allocating other profits, losses and items of income, gain, loss and
deduction among the Members so that, to the extent possible, the net amount of
such allocations of other profits, losses and other items and the Regulatory
Allocations to each member shall be equal to the amount that would have been
allocated if the Regulatory Allocations had not occurred.
P. 4.04. Code Sections 704(c) Allocations. In accordance with Code ss.704(c),
income, gain, loss and deduction concerning any Contributed Property shall,
solely for tax purposes, be allocated among the Members to take account of any
variation between the adjusted tax basis of such property and the Agreed Value
of such property upon contribution. If the value of any Company Property is
adjusted under P. 3.07 of this Agreement, subsequent allocations of income,
gain, loss and deduction with respect to such asset shall take account of any
variation between the adjusted tax basis of such asset for federal income tax
purposes and its Carrying Value in the same manner as under Code ss.704(c).
Allocations under this P. 4.04 are solely for purposes of federal income taxes
and shall not affect or be taken into account in computing any Member's Capital
Account.
P. 4.05. Allocations Concerning Transferred Interests. Unless the Code requires
otherwise, any Profits or Losses allocable to an interest which has been
transferred during any year shall be allocated among the Persons who were
holders of such Interest during such year by taking into account their varying
interests during such taxable year in accordance with Code ss.706(d) and using
any convention selected by the Members.
P. 4.06. Distributions of Net Cash Receipts. Except as otherwise provided in P.
10.03, Net Cash Receipts, if any, shall be distributed to the Members within
thirty (30) days after the end of each fiscal year, in the following order and
priority:
(a) First, pro rata to the Members in proportion to their Units, an amount
equal to their Adjusted Capital Contributions, and
(b) The balance to the Members in accordance with the Sharing Ratio.
ARTICLE 5
MEMBERSHIP; DISPOSITIONS OF INTERESTS
P. 5.01. Initial Members. The initial members of the Company are the Persons
executing this Agreement as Members as of the date of this Agreement, each of
which is admitted to the
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Company as a Member effective contemporaneously with the execution by such
Person of this Agreement.
P. 5.02. Representations and Warranties. Each Member hereby represents and
warrants to the Company and to each other Member that (a) if that Member is a
corporation, it is duly organized, validly existing, and in good standing under
the law of the state of its incorporation and is duly qualified and in good
standing as a foreign corporation in the jurisdiction of its principal place of
business (if not incorporated therein); (b) if that Member is a limited
liability company, it is duly organized, validly existing, and (if applicable)
in good standing under the law of the state of its organization and is duly
qualified and (if applicable) in good standing as a foreign limited liability
company in the jurisdiction of its principal place of business (if not organized
therein); (c) if that Member is a partnership, trust, or other entity, it is
duly formed, validly existing, and (if applicable) in good standing under the
law of the state of its formation, and if required by law is duly qualified to
do business and (if applicable) in good standing in the jurisdiction of its
principal place of business (if not formed therein), and the representations and
warranties in clauses (a)-(c), as applicable, are true and correct with respect
to each partner (other than limited partners), trustee, or other member thereof;
(d) the Member has full corporate, limited liability company, partnership,
trust, or other applicable power and authority to execute and agree to this
Agreement and to perform its obligations hereunder and all necessary actions by
the board of directors, shareholders, members, partners, trustees,
beneficiaries, or other Persons necessary for the due authorization, execution,
delivery, and performance of this Agreement by that Member have been duly taken;
(e) the Member has duly executed and delivered this Agreement; (f) the Member's
authorization, execution, delivery, and performance of this Agreement does not
conflict with (i) any law, rule or court order applicable to that Member, (ii)
that Member's articles of incorporation, bylaws, partnership agreement,
Agreement or articles of organization, or (iii) any other agreement or
arrangement to which that Member is a party or by which it is bound.
P. 5.03. Restrictions on Transfer of Membership Interests.
(a) Voluntary Transfer. If a Member intends to Transfer any Membership
Interests it owns to any Person other than the Company, it shall give written
notice to the Company and the nonselling Member ("Remaining Member") of its
intention to do so ("Transfer Notice"). The Transfer Notice, in addition to
stating the Member's intention to Transfer its Membership Interests, shall
state: (i) the number of Units it desires to Transfer; (ii) the name, business
and residence address of the proposed transferee; and (iii) whether or not the
Transfer is made at arm's length for full and valuable consideration and, if so,
the amount of the consideration and the other terms of the sale. For sixty (60)
days following the Company's receipt of the Transfer Notice (the "Company Option
Period"), the Company shall have the option to purchase all or any portion of
the Membership Interests which are proposed to be transferred, for the price and
upon the terms set form in P. 5.03(i), and if the Company does not exercise its
option to purchase all, but not less than all, of such Membership Interests
within said sixty (60)-day period, the Remaining Member for a period of fifteen
(15) days after the expiration of the Company Option Period shall have an option
to purchase all of the membership Interests which have not been purchased by the
Company, at the price and upon the terms set forth in P. 5.03(i).
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(b) Involuntary Transfers. In the event of the death, incompetency,
bankruptcy, withdrawal or dissolution of a Member (a "Withdrawing Member"), (i)
for a period of ninety (90) days after the Company receives actual notice
thereof, the Company shall have the option to purchase all or any portion of the
Withdrawing Member's Interest, for the price and upon the terms set forth in P.
5.03(i). If the Company does not exercise its option to purchase all of the
Withdrawing Member's Interest, for a period ending fifteen (15) days after the
close of the Company's 90-day option period, the Remaining Member shall have an
option to purchase all, but not less than all, of such Withdrawing Member's
Interest at the price set forth in P. 5.03(i)(i)(2) and upon the same terms as
provided for an option regarding a voluntary transfer in P. 5.03(a) of this
Agreement. Notwithstanding the foregoing, neither the Company nor the Remaining
Member may exercise this option unless the Remaining Member has agreed pursuant
to P. 10.01(f) to continue the Company's business with a new Member. If the
Company and the Remaining Member do not exercise their options, the provisions
of P. 5.03(e) and (g) shall apply to the Withdrawing Member.
(c) Exercise of Options.
(i) Means of Exercise. The Company and the Remaining Member who
exercises any option granted by this Article 5 shall do so by giving written
notice ("Exercise Notice") of the exercise of their respective options within
the time periods provided in this Article 5 to the Member and, in the case of an
option upon involuntary transfer, to the Withdrawing Member's Representative.
(ii) Voting to Exercise. A Transferor, in its capacity as a Member,
shall not be entitled to vote in the Company's determination of whether to
exercise any purchase option granted by this Agreement or with respect to any
decisions or actions involving the purchase option or the consummation of the
exercise thereof.
(d) Nonexercise of Options. If the Remaining Member and the Company fail
to exercise their purchase options to acquire all of the membership Interests
which are proposed to be transferred in compliance with P. 5.03(a) of this
Agreement, the Transferor may, within thirty (3) days following their expiration
of the option period for the Remaining Member, transfer the Interests to the
transferee named in the Transfer Notice, subject to the terms of this Agreement;
provided, however, that such Transfer must be upon the terms and for the
consideration specified in said Transfer Notice. If the Transfer is not upon the
terms or is not to the transferee stated in the Transfer Notice, or is not made
within said thirty (30)-days period, or if the Transferor, after the Transfer,
reacquires all or any portion of the transferred Units, the initial Transfer
shall be void and without legal or other effect.
(e) Requirements for Transfer. Subject to any restrictions on
transferability required by law (including the Securities Act of 1933, any state
securities or "Blue Sky" law, and the rules promulgated thereunder), and subject
to the provisions of P. 5.03(a) and (b), each Member shall have the right to
Transfer (but not to substitute the assignee as a substitute Member in its
place, except in accordance with P. 5.03(g) hereof), by a written instrument,
the whole or any part
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of its Interest, provided that: (i) the transferee is a citizen and resident of
the United States, and otherwise not a tax-exempt entity under Section 168(h) of
the Code; (ii) the Transferor delivers to the Company and the Remaining Member
an unqualified opinion of counsel in form and substance satisfactory to counsel
designated by the Remaining Member that neither the Transfer nor any offering in
connection therewith violates any provision of any federal or state securities
law; (iii) the transferee executes a statement that it is acquiring such
Interest or such part thereof for its own account for investment and not with a
view to distribution, fractionalization or resale thereof; and (iv) the Company
receives a favorable opinion of the Company's legal counsel or such other
counsel selected by the Remaining Member that such Transfer would not result in
the termination of the Company (within the meaning of Section 708(b) of the
Code) or the termination of its status as a partnership under the Code;
provided, further, that the Remaining Member may elect to waive the requirement
of the opinions of counsel set forth in P. 5.03(e)(ii) and (iv) above should it,
in its sole discretion, determine that the cost or time delays involved in
procuring such opinions may impede the Company's ability to effect the
contemplated Transfer.
(f) Effectiveness of Assignment. No Transfer shall be effective unless and
until the requirements of P. 5.03(e) are satisfied. The Transfer by a Member of
all or part of its Interest shall become effective on the first day of the
calendar month immediately succeeding the month in which all of the requirements
of this P. 5.03 have been met, and the Company has received from the Transferor
a transfer fee sufficient to cover all expenses of the Company connected with
such transfer; provided, however, that the Remaining Member may elect to waive
this fee in its sole discretion. All distributions prior to the effective date
shall be made to the Transferor and all distributions made thereafter shall be
made to the transferee.
(g) Requirements for Admission. No transferee of the whole or a portion of
a Member's Interest shall have the right to become a Member unless and until all
of the following conditions are satisfied:
(i) a duly executed and acknowledged written instrument of transfer
approved by the Remaining Member has been filed with the Company setting forth
(A) the intention of the transferee to be admitted as a Member, (B) the notice
address of the transferee, and (C) the number of Units transferred by the
Transferor to the transferee;
(ii) the opinions of counsel described in P. 5.03(e) above are
delivered to the Company and the Remaining Member, subject to the Remaining
Member's right to waive the delivery of these opinions in its sole discretion;
the Transferor and transferee execute and acknowledge, and cause such other
Persons to execute and acknowledge, such other instruments and provide such
other evidence as the Remaining Member may reasonably deem necessary or
desirable to effect such admission, including without limitation: (A) the
written acceptance and adoption by the transferee of the provisions of this
Agreement including a representation and warranty that the representations and
warranties in P. 5.02 are true and correct with respect to the transferee; (B)
the transferee's completion of a purchaser qualification questionnaire which
will enable counsel for the Company to determine whether such proposed
substitution is consistent with the requirements of a private placement
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exemption from registration under the Securities Act of 1933 and relevant state
law; and (C) the transferee's completion, if applicable, of acknowledgment of
the use of a purchaser representative, and such representative's completion of a
purchaser representative questionnaire which will enable counsel for the Company
to determine whether such proposed substitution is consistent with the
requirements of a private placement exemption from registration under the
Securities Act of 1933 and relevant state law;
(iii) the admission is approved by the Remaining Member, the
granting or denial of which shall be within the sole and absolute discretion of
the Remaining Member; and
(iv) a transfer fee has been paid to the Company by the Transferor
sufficient to cover all expenses in connection with the transfer and admission,
including but not limited to attorney's fees for the legal opinions referred to
in P. 5.03(e) and (g), subject to the Remaining Member's right to waive the
payment of this fee in its sole discretion.
(h) Rights of Mere Assignees. If a transferee of an Interest is not
admitted as a Member, it shall not be entitled to inspect the Company's books
and records, receive an accounting of Company financial affairs, exercise the
voting rights of a member, or otherwise take part in the Company's business or
exercise the rights of a Member under this Agreement.
(i) Purchase Price and Terms.
(i) Purchase Price. If the Company or the Remaining Member exercises
its option (the "Optionor"), the purchase price which Optionor shall pay for the
Transferor's Membership Interest following the exercise of an option to purchase
under P. 5.03(a) or (b) shall be an amount equal to: (1) the purchase price as
stated in the Transfer Notice where (a) the proposed transfer is for full and
adequate consideration and (b) the transferee identified in the Transfer Notice
is not a member of the Transferor's family or an Affiliate of the Transferor;
and (2) in all other cases, the value of the Transferor's Membership Interest as
mutually agreed upon by the Members. If the parties cannot agree within ten (10)
days after the date of the final Exercise Notice, the Purchase price shall be
the amount which the Transferor would receive if all the Company Property were
sold at its appraised fair market value and the proceeds were applied in
accordance with P. 10.03. An independent appraiser ("Qualified Appraiser")
experienced in conducting appraisals of assets similar to the Company Property
shall conduct an appraisal of all of the Company Property to determine its fair
market value ("First Appraisal"). The Optionor shall select a Qualified
appraiser to perform the First Appraisal and shall assume the cost of the First
Appraisal. If, within five (5) days after receipt of the First Appraisal, the
Transferor disputes the value determined by the First Appraisal, the Transferor
may obtain, at its own cost, a second appraisal ("Second Appraisal") of the fair
market value of the Company Property by a Qualified Appraiser of its choice. If
the parties agree, the Second Appraisal shall be used to determine the value of
the Company Property. If the two appraisals are performed and the parties cannot
agree within ten (10) days which of the appraisals accurately reflects the value
of the Company Property, then the two appraisers selected under this
subparagraph shall select a Qualified Appraiser to conduct a third appraisal
("Third Appraisal") of the fair market value of the Company Property. The fair
market value of the Company Property established by the Third
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Appraisal shall be final and binding in all respects on all parties. The
Optionor and the Transferor shall each pay fifty percent (50%) of the costs of
the Third Appraisal.
(ii) Payment of Purchase Price and Closing. The closing of any sale
and purchase of the Transferor's Membership Interest in the Company shall be
within thirty (30) days from the later of (1) the date of the final Exercise
Notice, or (2) delivery of the final appraisal performed pursuant to P.
5.03(i)(i). The Optionor shall pay the purchase price (1) at the time and in
accordance with the terms and conditions as stated in the Transfer Notice, where
the purchase price is determined pursuant to P. 5.03(i)(1), or (2) at the
closing in all other cases, unless the parties agree on different terms. The
Transferor shall deliver documents satisfactory to the Optionor conveying its
Membership Interest free and clear of all liens, claims and encumbrances, any of
which may be paid out of the purchase price, with the remainder, if any, paid to
the Transferor. If the purchase price is insufficient to satisfy any such liens,
the Transferor shall discharge the balance.
P. 5.04. Additional Members. Additional Persons may be admitted to the Company
as Members and Membership Interests may be created and issued to those Persons
and to existing Members upon the approval of all of the Members on such terms
and conditions as they may determine at the time of admission. The terms of
admission or issuance must specify the Sharing Ratios applicable thereto and may
provide for the creation of different classes or groups of Interests having
different rights, powers and duties. The creation of any new class or group
shall be reflected in an amendment to this Agreement indicating the different
rights, powers and duties. The provisions of this P. 5.04 shall not apply to
Transfers of Membership Interests.
P. 5.05. Interests in Member. A Member that is not a natural person may not
cause or permit an ownership interest, direct or indirect, in itself to be
disposed of such that, after the disposition: (a) the Company would be
considered to have terminated within the meaning of Code ss.708; or (b) without
the written consent of the other Member, that Member shall cease to be
controlled by substantially the same Persons who control it as of the date of
the Member's admission to the Company. For a period of 120 days after notice to
the Company of any Member's breach of the provisions of clause (b) of the
immediately preceding sentence, the Company shall have the option to buy, and on
exercise of that option the breaching Member shall sell, the breaching Member's
Membership Interest, at the price determined in accordance with P.
5.03(i)(i)(2). The breaching Member shall deliver documents satisfactory to the
Company conveying its Membership Interest free and clear of all liens, claims
and encumbrances, any of which may be paid out of the purchase price, with the
remainder, if any, paid to the selling Member. If the purchase price is
insufficient to satisfy any such liens, the selling Member shall discharge the
balance.
P. 5.06. Information.
(a) In addition to the other rights specifically set forth in this
Agreement, each Member is entitled to all information to which that Member is
entitled to have access pursuant to the Act under the circumstances and subject
to the conditions therein stated.
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(b) The Members acknowledge that, from time to time, they may receive
information from or regarding the Company in the nature of trade secrets or that
otherwise is confidential, the release of which may be damaging to the Company
or Persons with which it does business. Each Member shall hold in strict
confidence any information it receives regarding the Company that is identified
as being confidential (and if that information is provided in writing, that is
so marked) and may not disclose it to any Person other than another Member,
except for disclosures: (i) compelled by law (but the Member must notify the
other Members promptly of any request for that information, before disclosing it
if practicable); (ii) to advisers or representatives of the Member or Persons to
which that Member's Membership Interest may be transferred as permitted by this
Agreement, but only if the recipients have agreed to be bound by the provisions
of this P. 5.06(b); or (iii) of information that the Member also has received
from a source independent of the Company that the Member reasonably believes
obtained that information without breach of any obligation of confidentiality.
The Members acknowledge that breach of the provisions of this P. 5.06(b) may
cause irreparable injury to the Company for which monetary damages are
inadequate, difficult to compute, or both. Accordingly, the Members agree that
the provisions of this P. 5.06(b) may be enforced by specific performance
without posting bond.
P. 5.07. Liability to Third Parties. No Member shall, by virtue of its status as
a Member or its ownership of an Interest, be liable for the debts, obligations
or liabilities of the Company, including but not limited to a judgment decree or
order of a court.
P. 5.08. Withdrawal. A Member does not have the right or power to withdraw from
the Company as a Member.
P. 5.09. Lack of Authority. No Member has the authority or power to act for or
on behalf of the Company, to do any act that would be binding on the Company, or
to incur any expenditures on behalf of the Company, except to the extent that
such act or expenditure has been approved by a Majority Interest or such greater
interest required by the Agreement, the Articles or applicable law.
P. 5.10. Certificates of Interest. Interests shall be represented by
certificates of interests in the Company, which shall be in such form as may be
approved by the Managers.
ARTICLE 6
MANAGEMENT OF COMPANY AND MEETINGS OF MEMBERS
P. 6.01. Management.
(a) General. The business and affairs of the Company shall be managed by
its Managers. The Managers shall direct, manage, and control the business of the
Company to the best of their ability. Except for situations in which the
approval of the Members is expressly required by this Agreement or by
nonwaivable provisions of applicable law, the Managers shall have full and
complete authority, power, and discretion to manage and control the business,
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affairs, and properties of the Company, to make all decisions regarding those
matters and to perform any and all other acts or activities customary or
incident to the management of the Company's business. At any time when there is
more than one Manager, any one Manager may take any action permitted to be taken
by the Managers, unless the approval of more than one of the Managers is
expressly required pursuant to this Agreement or the Act.
(b) Number, Tenure, and Qualifications. The Company shall initially have
one Manager, which shall be Iron Mountain Records Management, Inc. The number of
Managers of the Company shall be fixed from time to time by the affirmative vote
of Members holding at least two-thirds of all Capital Interests in the Company's
capital, but in no instance shall there be less than one Manager. Each Manager
shall hold office until the next annual meeting of Members or until a successor
shall have been elected and qualified. Managers shall be elected by the
affirmative vote of Members holding at least a Majority Interest. Managers need
not be residents of the State of Delaware or Members of the Company.
(c) Certain Powers of Manager. Without limiting the generality of
ss.6.01(a) above, the Managers shall have the power and authority, on behalf of
the company:
(i) to acquire property from any Person as the Managers may
determine. The fact that a Manager or Member is directly or indirectly
affiliated or connected with any such Person shall not prohibit the Managers
from dealing with that Person;
(ii) to borrow money for the Company from banks, other lending
institutions, the Managers, Members, or affiliates of the Managers or Members on
such terms as the Managers deem appropriate, and in connection therewith, to
hypothecate, encumber, and grant security interests in the assets of the Company
to secure repayment of the borrowed sums. No debt shall be contracted or
liability incurred by or on behalf of the Company except by the Managers, or to
the extent permitted under the Act, by agents or employees of the Company
expressly authorized to contract such debt or incur such liability of the
Managers;
(iii) to hold and own any Company real and/or personal properties in
the name of the Company;
(iv) to purchase liability and other insurance to protect the
Company's property and business;
(v) to invest any Company funds temporarily (by way of example but
not limitation) in time deposits, short-term governmental obligations,
commercial paper, or other investments;
(vi) upon the affirmative vote of the Members holding at least
two-thirds of all Interests, to sell or otherwise dispose of all or
substantially all of the assets of the Company as part of a single transaction
or plan so long as that disposition is not in violation of or a cause of a
default under any other agreement to which the Company may be bound; provided,
however,
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that the affirmative vote of the Members shall not be required with respect to
any sale or disposition of the Company's assets in the ordinary course of the
Company's business;
(vii) to execute on behalf of the Company all instruments and
documents, including, without limitation: checks; drafts; notes and other
negotiable instruments; mortgages, or deeds of trust; security agreements;
financing statements; documents providing for the acquisition, mortgage or
disposition of the Company's property; assignments; bills of sale; leases;
partnership agreements; operating agreements of other limited liability
companies; and any other instruments or documents necessary, in the opinion of
the Managers, to the business of the Company;
(viii)to employ accountants, legal counsel, managing agents, or
other experts to perform services for the Company and to compensate them from
Company funds;
(ix) to enter into any and all other agreements on behalf of the
Company, with any other Person for any purpose, in such forms as the Managers
may approve; and
(x) to do and perform all other acts as any be necessary or
appropriate to the conduct of the Company's business.
Unless authorized to do so by this Agreement or by a Manager or Managers of the
Company, no attorney-in-fact, employee, or other agent of the Company shall have
any power or authority to bind the Company in any way, to pledge its credit or
to render it liable pecuniarily for any purpose. No Member shall have any power
or authority to bind the Company unless the Member has been authorized by the
Managers to act as an agent of the Company in accordance with the previous
sentence.
(d) Liability for Certain Acts. The Managers shall perform their
managerial duties in good faith, in a manner they reasonably believe to be in
the best interests of the Company, and with such care as an ordinarily prudent
person in a like position would use under similar circumstances. A Manager who
so performs the duties of Manager shall not have any liability by reason of
being or having been a Manager of the Company. A Manager does not, in any way,
guarantee the return of the Members' Capital Contributions or a profit for the
Members from the operations of the Company. A Manager shall not be liable to the
Company or to any Member for any loss or damage sustained by the Company or any
Member unless the loss or damage shall have been the result of fraud, deceit,
gross negligence, willful misconduct, or a wrongful taking by the Manager.
(e) Managers Have No Exclusive Duty to Company. The Managers shall not be
required to manage the Company as their sole and exclusive function and they may
have other business interests and may engage in other activities in addition to
those relating to the Company. Neither the Company nor any Member shall have any
right, by virtue of this Agreement, to share or participate in such other
investments or activities of the Managers or to the income or proceeds derived
therefrom. The Managers shall incur no liability to the Company or to any of the
Members as a result of engaging in any other business or venture.
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(f) Bank Accounts. The Managers may from time to time open bank accounts
in the name of the Company, and the Managers shall be the sole signatory
thereon, unless the Managers determine otherwise.
(g) Indemnity of the Managers, Employees, and Other Agents. To the maximum
extent permitted under the Act, the Company shall indemnify the Managers and
make advances for expenses. The Company shall indemnify its employees and other
agents who are not Managers to the fullest extent permitted by law, provided
that the indemnification in any given situation is approved by Members owning a
Majority Interest.
(h) Resignation. Any Manager of the Company may resign at any time by
giving written notice to the Members of the Company. The resignation of any
Manager shall take effect upon receipt of that notice or at such later time as
shall be specified in the notice; and, unless otherwise specified in the notice,
the acceptance of the resignation shall not be necessary to make it effective.
The resignation of a Manager who is also a Member shall not affect the Manager's
rights as a Member and shall not constitute a withdrawal of a Member.
(i) Removal. At a meeting called expressly for that purpose, all or any
lesser number of Managers may be removed at any time, with or without cause, by
the affirmative vote of Members holding a Majority Interest. The removal of a
Manager who is also a Member shall not affect the Manager's rights as a Member
and shall not constitute a withdrawal of a Member.
(j) Vacancies. Any vacancy occurring for any reason in the number of
Managers of the Company may be filled by the affirmative vote of a majority of
the remaining Managers then in office, provided that if there are no remaining
Managers, the vacancy(ies) shall be filled by the affirmative vote of Members
holding a Majority Interest.
(i) Any Manager's position to be filled by reason of an increase in
the number of Managers shall be filled by the affirmative vote of a majority of
the Managers then in office or by an election at an annual meeting or at a
special meeting of Members called for that purpose or by the Members' unanimous
written consent.
(ii) A Manager elected to fill a vacancy shall be elected for the
unexpired term of the Manager's predecessor in office and shall hold office
until the expiration of that term and until the Manager's successor shall be
elected and shall qualify or until the Manager's earlier death, resignation, or
removal.
(iii) A Manager chosen to fill a position resulting from an increase
in the number of Managers shall hold office until the next annual meeting of
Members and until a successor shall be elected and shall qualify, or until the
Manager's earlier death, resignation, or removal.
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(k) Compensation. The compensation of the Managers shall be fixed from
time to time by an affirmative vote of Members holding at least a Majority
Interest and no Manager shall be prevented from receiving compensation because
the Manager is also a Member.
P. 6.02. Meetings. Meetings of the Members may be called by Members holding not
less than twenty-five percent (25%) of the Units. The meeting shall be held at
the principal place of business of the Company or as designated in the notice or
waivers of notice of the meeting.
P. 6.03. Notice. Notice of any meeting of the Members shall be given no fewer
than ten days and no more than thirty days prior to the date of the meeting.
Notices shall be delivered in the manner set forth in P. 11.02 and shall specify
the purpose or purposes for which the meeting is called. The attendance of a
Member at any meeting shall constitute a waiver of notice of such meeting,
except where a Member attends a meeting for the express purpose of objecting to
the transaction of any business because the meeting is not lawfully called or
convened.
P. 6.04. Quorum. A Majority Interest, present in person or represented by proxy,
shall constitute a quorum for transaction of business at any meeting of the
Members, provided that if less than a Majority Interest are present at said
meeting, the holders of a majority of the Units present may adjourn the meeting
at any time without further notice.
P. 6.05. Manner of Acting. The act of a Majority Interest shall be the act of
the Members, unless the act of a greater number is required by this Agreement,
the Articles or applicable law.
P. 6.06. Action Without Meeting. Unless specifically prohibited by the Articles,
any action required to be taken at a meeting of the Members or any other action
which may be taken at a meeting of the Members, may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall be signed by
the holders of Units having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which the holders
of all of the Units were present and voting. Prompt notice of the taking of the
action without a meeting by less than unanimous consent shall be given in
writing to those Members who were entitled to vote but did not consent in
writing.
P. 6.07. Telephonic Meetings. The Members may participate in and act at any
meeting of Members through the use of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in such meeting shall constitute
attendance and presence in person at the meeting of the person or persons so
participating.
P. 6.08. Proxies. Each Member entitled to vote at a meeting of Members or to
express consent or dissent to action in writing without a meeting may authorize
another Person or Persons to act for him by proxy. Such proxy shall be deposited
at the principal offices of the Company not less than 48 hours before a meeting
is held or action is taken, but no proxy shall be valid after eleven months from
the date of its execution, unless otherwise provided in the proxy.
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P. 6.09. Voting of Interests. Each outstanding Unit shall be entitled to one
vote upon each matter submitted to a vote at a meeting of Members.
P. 6.10. Officers. The officers of the Company shall consist of a President, one
or more Vice Presidents, a Treasurer, Controller and a Secretary. The officers
shall be appointed by the Managers and shall exercise such powers and perform
such duties as are prescribed by the Managers. Any number of offices may be held
by the same person, as the Managers may determine, except that no person may
simultaneously hold the offices of President and Secretary.
P. 6.11. Term of Office. The officers shall hold office for the term for which
they were appointed and until their successors are elected and qualified;
provided, however, that any officer may be removed with or without cause by the
affirmative vote of a Majority Interest.
ARTICLE 7
INDEMNIFICATION
P. 7.01. Rights to Indemnification. Subject to the limitations and conditions
provided in this Article 7 and in the Act, each Person ("Indemnified Person")
who was or is made a party or is threatened to be made a party to or is involved
in any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, arbitrative or investigative ("Proceeding"), or
any appeal in such a Proceeding or any inquiry or investigation that could lead
to such a Proceeding, by reason of the fact that he was or is a Member, Manager
or an officer of the Company or it was the legal representative of or a manager,
director, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of a Member, shall be indemnified by the Company against
judgments, penalties (including excise and similar taxes and punitive damages),
fines, settlements and reasonable costs and expenses (including, without
limitation, attorneys' fees) actually incurred by such Indemnified Person in
connection with such Proceeding if such Indemnified Person acted in good faith
and in a manner if reasonably believed to be in, or not opposed to, the best
interest of the Company and, with respect to any criminal action or proceeding,
had no reasonable cause to believe its conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Indemnified Person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal action or proceeding
that the Indemnified Person had reasonable cause to believe that its conduct was
unlawful.
P. 7.02. Derivative Claims. Subject to the limitations and conditions provided
in this Article 7 and in the Act, the Company shall and does hereby indemnify
any Person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that such
Person is or was a Member, Manager or an officer of the Company, the legal
representative of a Member, Manager or officer, or a manager, director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
of a Member against expenses (including
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attorneys' fees) actually and reasonably incurred by such Person in connection
with the defense or settlement of such action or suit, if such Person acted in
good faith and in a manner it reasonably believed to be in, or not opposed to,
the best interests of the Company, provided that no indemnification shall be
made in respect of any claim, issue or matter as to which such Person shall have
been adjudged to be liable for negligence or misconduct in the performance of
its duty to the Company unless and only to the extent that, the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability, but in view of all the circumstances of the case,
such Person is fairly and reasonably entitled to indemnify for such expenses as
the court shall deem proper.
P. 7.03. Success on Merits. To the extent that a Person has been successful, on
the merits or otherwise, in the defense of any action, suit or proceeding
referred to in P. P. 7.01 or 7.02, or in defense of any claim, issue or matter
therein, such Person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by such Person in connection therewith.
P. 7.04. Determinations. Any indemnification under P. P. 7.01 or 7.02 (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case, upon a determination that indemnification is proper in the
circumstances because such person has met the applicable standard of conduct set
forth therein. Such determination shall be made (i) by the holders of a majority
of the Units held by Members who were not parties to such action, suit or
proceedings, or (ii) if such a quorum is not obtainable, or even if obtainable,
if a quorum of disinterested Members so directs, by the Company's independent
legal counsel in a written opinion.
P. 7.05. Survival. Indemnification under this Article 7 shall continue as to a
Person who has ceased to serve in the capacity which initially entitled such
Person to indemnity hereunder. The rights granted pursuant to this Article 7
shall be deemed contract rights, and no amendment, modification or repeal of
this Article 7 shall have the effect of limiting or denying any such rights with
respect to actions taken or Proceedings arising prior to any such amendment,
modification or repeal.
P. 7.06. Advance Payment. The right to indemnification conferred by this Article
7 shall include the right to be paid or reimbursed by the Company for the
reasonable expenses incurred in advance of the final disposition of the
Proceeding and without any determination as to the Person's ultimate entitlement
to indemnification, provided, however, that the payment of such expenses
incurred in advance of the final disposition of a Proceeding shall be made only
upon delivery to the Company of a written affirmation by such Person of its good
faith belief that it has met the standard of conduct necessary for
indemnification under this Article 7 and a written undertaking, by or on behalf
of such Person to repay all amounts so advanced if it shall ultimately be
determined that such Person is not entitled to be indemnified under this Article
7 or otherwise.
P. 7.07. Nonexclusivity of Rights. The right to indemnification and the
advancement and payment of expenses conferred by this Article 7 shall not be
exclusive of any other right which a
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Person may have or hereafter acquire under any law (common or statutory),
provision of the Act, the vote of Members or otherwise.
P. 7.08. Insurance. The Company may purchase and maintain insurance, at its
expense, to protect itself and any Indemnified Person against any expense,
liability or loss, whether or not the Company would have the power to indemnify
such Person against such expense, liability or loss under this Article 7.
P. 7.09. Savings Clause. If P. P. 7.01, 7.02 or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify and hold harmless each Indemnified Person
as to costs, charges and expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative to the full extent
permitted by any applicable portion of this Article 7 that shall not have been
invalidated and to the fullest extent permitted by applicable law.
ARTICLE 8
BOOKS, RECORDS, REPORTS AND BANK ACCOUNTS
P. 8.01. Maintenance of Books and Records. The Company shall keep books and
records of accounts and shall keep minutes of the proceedings of its Members at
the registered office of the Company or its principal place of business. In
addition, the Company shall maintain the following at its registered office or
its principal place of business:
(a) A current list of the full name and last know business address of each
Member, separately identifying the Members in alphabetical order;
(b) A copy of the filed Articles and all amendments thereto, together with
executed copies of any powers of attorney pursuant to which any document has
been executed;
(c) Copies of the Company's federal, state and local income tax returns
and reports and financial statements, if any, for the three (3) most recent
years;
(d) Copies of this Agreement and any amendments thereto; and
(e) Unless contained in this Agreement, the Articles or in any amendments
hereto, a writing setting out:
(i) The amount of cash, a description and statement of the agreed
value of the other property or services contributed by each Member and which
each Member has agreed to contribute;
(ii) The items as to which or events on the happening of which any
additional contributions agreed to be made by each Member are to be made;
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(iii) Any right of a Member to receive, or of the Members to make,
distributions which include a return of all or any part of the Member's
contribution; and
(iv) Any events upon the happening of which the Company is to be
dissolved and its affairs wound up.
Records kept pursuant to this P. 8.01 are subject to inspection and copying at
the reasonable request, and at the expense, of any Member during ordinary
business hours.
P. 8.02. Reports. On or before the 90th day following the end of each fiscal
year during the term of the Company, the Company shall cause each Member to be
furnished with a federal (and, where applicable, state) income tax reporting
Form K-1 or its equivalent and a financial report for the preceding fiscal year
which shall include a balance sheet and a profit and loss statement prepared in
accordance with generally accepted accounting principles applied on a consistent
basis.
P. 8.03. Taxable Year and Accounting Method. The Company's taxable and fiscal
years shall be the calendar year. the Company shall initially use the accrual
method of accounting.
P. 8.04. Tax Elections. All elections required or permitted to be made by the
Company under the Code shall be made by the Members. In particular:
(i) The Company shall elect to deduct expenses incurred in
organizing the Company ratably over a 60-month period as provided in Section 709
of the Code.
(ii) In case of a Transfer of all or part of any Interest, the
Company may elect, in a timely manner pursuant to Section 754 of the Code and
pursuant to corresponding provisions of applicable state and local tax laws, to
adjust the basis of Company Property pursuant to Sections 734 and 743 of the
Code.
(iii) The Company shall elect to deduct start-up expenditures
ratably over a 60- month period as provided in Section 195 of the Code.
(iv) The Company shall not elect to be excluded from the application
of the provisions of Subchapter K of Chapter 1 of Subtitle A of the Code or
corresponding provisions of state or local law.
P. 8.05. Bank Accounts. All funds of the Company are to be deposited in the
Company's name in such bank accounts or investment accounts as may be designated
by the Managers and shall be withdrawn on the signature of a duly authorized
officer of the Managers, or such other Person or Persons as a Majority Interest
may authorize. The Company's funds may not be commingled with the funds of any
Member or officer of the Company.
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P. 8.06. "Tax Matters Partner." The Managers shall be the "tax matters partner"
of the Company pursuant to Code ss.6231(a)(7). Any one of the Managers is
authorized to take such actions as are permitted by Code ss.ss.6221 through
6233.
ARTICLE 9
PUT-CALL
P. 9.01. Put-Call Arrangement. In the event of an Impasse, each Member shall
have the right to make an optional "put-call" offer to the other Member to
purchase the other Member's entire Membership Interest. Notwithstanding the
above, neither Member may initiate a put-call when there is an outstanding Offer
(defined in P. 9.02(a) below) pending. The Member initiating a put-call shall be
referred to as the "Offeror" and the other Member shall be referred to as the
"Offeree".
P. 9.02. Terms of Offer.
(a) Written Offer. Upon the terms described in P. 9.01, the Offeror may
submit to the Offeree a written offer ("Offer") to purchase the Membership
Interest then owned by the Offeree.
(b) Aggregate Asset Price. The Offer shall state the aggregate price at
which the Offeror would be willing to purchase all the Company Property
("Aggregate Asset Price"); provided, however, that such Aggregate Asset Price
shall be at least equal to or greater than the amount necessary (i) to repay all
outstanding Company liabilities (including accrued interest), including but not
limited to all outstanding loans by Members to the Company and (ii) to return to
each Member its aggregate unreturned Adjusted Capital Contribution.
(c) Price. The "Price" for the Offeree's Membership Interest shall be the
amount which the Offeree would receive if all the Company Property were sold for
the Aggregate Asset Price and the proceeds were applied in accordance with P.
10.03.
(d) Release from Recourse Obligations. If, at the time an Offer is made,
the Offeree or any of its Affiliates are personally liable under any guaranties
or other financial undertakings for the repayment or performance of all or part
of any third-party loan made to the Company ("Offeree's Recourse Liability"),
then the Offer must include the Offeror's written agreement to use its best
efforts to obtain the release of Offeree's Recourse Liability and, if required
by the holders of the Offeree's Recourse Liability, to substitute acceptable
guaranties, letters of credit or other financial undertakings in exchange for
such release of Offeree's Recourse Liability. If any lender will not agree to
release the Offeree's Recourse Liability, then the Offeror shall protect,
defend, indemnify and hold such Offeree, its Affiliates, officers, directors,
agents, shareholders, partners, beneficiaries and trustees harmless from any
manner of loss, claim, damage or expense arising out of or relating to the
Offeree's Recourse Liability from and after the Closing Date (as defined in P.
9.04).
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P. 9.03. Acceptance/Rejection of Offer. The Offeree shall either accept or
reject the Offer, which acceptance or rejection shall be in writing and
delivered to the Offeror on or before 10:00 a.m. on the thirtieth (30th)
calendar day after the offer is delivered. If the Offeree fails to either accept
or reject the Offer on a timely basis, it shall be deemed to have consented to
the unagreed action which precipitated the impasse.
(a) Acceptance. If the Offeree accepts the Offer, the Offeror shall be
deemed the "Buyer" and the Offeree shall be deemed the "Seller". The Put-Call
closing (as defined in P. 9.04) shall take place pursuant to P. 9.04 below.
Effective immediately upon the delivery to the Offeror of the Offeree's
acceptance of the Offer, the Offeror's obligations under the Offer and this
Article 9 shall become recourse, absolute, unconditional and irrevocable
obligations, and shall not be subject to any terms or conditions other than the
default of the Offeree under the Offer.
(b) Rejection of Offer. If the Offeree rejects the Offer, the Offeree
shall thereafter be deemed the "Buyer" and the Offeror shall be deemed the
"Seller". The closing of the transaction described in the Offer shall take place
on the Closing Date pursuant to P. 9.04 below. If the Offeree properly rejects
the Offer, it shall proceed to purchase form the Offeror, and the Offeror shall
sell to the Offeree, the entire Membership Interest owned by the Offeror for a
Price equal to the amount which the Offeror would receive if all the Company
Property were sold for the Aggregate Asset Price and the proceeds were applied
in accordance with P. 10.03.
P. 9.04. Put-Call Closing Procedures. The transaction described in the Offer
shall close on the earlier of (i) the sixtieth (60th) day after the date the
Offer is either accepted or rejected by the Offeree, or (ii) such earlier date
as Buyer may elect with ten (10) days prior written notice to Seller ("Put-Call
closing" or "Closing Date"). At the Put-Call closing, the following shall occur:
(a) The Buyer shall pay to the Seller, in immediately available funds, a
sum equal to the Price.
(b) The Seller shall deliver to the Buyer a complete and absolute
assignment of one hundred percent (100%) of the Seller's Membership Interest
("Assignment").
(c) The Buyer shall satisfy its obligation under P. 9.02(d) above.
(d) The Seller shall cause its Affiliates to terminate any agreements with
the Company as instructed by Buyer in its sole and absolute discretion,
effective from and after the Closing Date, provided that any such Affiliate
shall be paid in full on the Closing Date for all services rendered prior to
such termination.
(e) The buyer and the Seller shall each deliver to the other a release
("Mutual Release") of the other from all acts and conduct of the other relating
to the Company or its affairs, occurring or performed during the tem of this
Agreement, except that neither the buyer nor the Seller shall be released from
any actions (or failures to act) in violation of this Agreement or from any
grossly negligent, reckless or intentionally wrongful acts or omissions.
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From and after delivery the Seller shall have no rights or obligations under
this Agreement with respect to the management and operation of the Company
Property, or otherwise.
P. 9.05. Failure To Perform.
(a) Buyer's Failure To Perform. If the Buyer fails to perform as required
under P. 9.04, then the Seller shall have the option, exercisable within sixty
(60) days after the original Closing Date, to (i) pursue Buyer for specific
performance of its obligations as Buyer; or (ii) continue the Company as if no
put-call procedure had been implemented except that the Buyer shall be deemed to
have consented to the unagreed action which precipitated the Impasse; or (iii)
become the Buyer under the defaulted Offer, subject to the same terms and
conditions set forth in the Offer with the exceptions that: (1) the Price shall
be eighty percent (80%) of the amount which the defaulting party would receive
if all the Company Property were sold for the Aggregate Asset Price and the
proceeds were applied in accordance with P. 10.03; and (2) the nondefaulting
party shall be entitled to select a new Closing Date up to one hundred eighty
(180) days after the original Closing Date.
(b) Seller's Failure To Perform. If the Seller fails to perform as
required under P. 9.04, then: (i) the Seller shall be liable to Buyer, as a
recourse obligation, for all actual and consequential damages caused by Seller
as a result of its breach, together with all expenses of litigation and
attorneys' fees, court costs and expenses; and (ii) the Buyer shall have the
option, exercisable within sixty (60) days after the original Closing Date, to
either: (1) pursue Seller for specific performance of its obligations as Seller
or (2) continue the Company as if no put-call procedure had been implemented
except that the Seller shall be deemed to have consented to the unagreed action
which precipitated the Impasse; provided, however, that in no event shall the
election of either option (or failure to elect) preclude Buyer from pursuing any
other remedy available to Buyer as a matter of law or equity, including, but not
limited to, the damages described in clause (i) above.
P. 9.06. No Withdrawal or Revocation. An Offer shall be irrevocable and shall
not be subject to withdrawal or revocation by the Offeror, except by the written
agreement of all of the Members.
P. 9.07. Decision-Making. Notwithstanding anything to the contrary in this
Agreement, at any time during the period after the acceptance or rejection of an
Offer and the earlier of (i) the termination of the Offer pursuant to P.
9.05(a)(ii) or (b)(ii)(2) above, as the case may be, or (ii) the Closing Date,
the Buyer shall have exclusive control of all decision-making on behalf of the
Company (other than any decisions which may have a substantial adverse impact on
the financial obligations of the Seller in the event that the Buyer defaults in
the purchase of the Seller's Membership Interest).
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ARTICLE 10
DISSOLUTION, LIQUIDATION AND TERMINATION
P. 10.01. Events of Dissolution. The Company shall be dissolved and shall
commence winding up its affairs upon the first to occur of the following:
(a) December 31, 2025;
(b) The vote of Members holding two thirds of the Units;
(c) Any event which makes it unlawful or impossible to carry on the
Company's business;
(d) The sale, disposition or abandonment of all or substantially all of
the Company Property;
(e) The entry of a decree of judicial dissolution under the Act; or
(f) The death, incompetency, retirement, resignation, expulsion,
dissolution or bankruptcy of a Member, or any other event which terminates the
membership of a Member in the Company, unless within ninety (0) days after such
event the Remaining Member agrees to continue the business of the Company with
the Representative of the Withdrawing Member or with a new Member admitted to
the Company.
P. 10.02. Winding Up. Upon the dissolution of the Company, the Members shall
wind up the Company's affairs and satisfy the Company's liabilities. The Members
shall liquidate all of the Company Property as quickly as possible consistent
with obtaining the full fair market value of said Property. During this period,
the Company shall continue to operate Company Property and all of the provisions
of this Agreement shall remain in effect. The Company shall notice all known
creditors and claimants of the dissolution of the Company in accordance with the
Act.
P. 10.03. Final Distribution. The proceeds from the liquidation of the Company
Property shall be distributed as follows:
(a) First, to creditors, including Members who are creditors, until all of
the Company's debts and liabilities are paid and discharged (or provision is
made for payment thereof); and
(b) The balance, if any, to the Members, in proportion to their Capital
Accounts as of the date of such distribution, after giving effect to all
contributions, distributions, and allocations for all periods.
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P. 10.04. Distributions in Kind. In connection with the termination and
liquidation of the Company, the Members shall attempt to sell all of the
Property. To the extent that Property is not sold, each Member will receive a
pro rata share of any distribution in kind. Any Property distributed in kind
upon liquidation of the Company shall be treated as though the Property were
sold and the cash proceeds distributed.
P. 10.05. No Recourse Against Members. The Members shall look solely to the
assets of the Company for the return of their investment, and if the Property
remaining after the payment or discharge of the debts and liabilities of the
Company is insufficient to return such investment, they shall have no recourse
against any other Member.
P. 10.06. Purchase by Member. A Member or an Affiliate of a Member may, if it so
desires, purchase an item of Property upon liquidation provided that (a) the
purchase price is at fair market value as determined by an independent appraiser
selected by the other Member, and (b) at least 15 days' advance notice of the
proposed sale has been given to the other Member.
P. 10.07. Deficit Capital Accounts. Notwithstanding anything to the contrary
contained in this Agreement, and notwithstanding any custom or rule of law to
the contrary, the deficit, if any, in the Capital Account of any Member upon
dissolution of the Company shall not be an asset of the Company and such Member
shall not be obligated to contribute such amount to the Company to bring the
balance of such Member's Capital Account to zero.
P. 10.08. Articles of Dissolution. On completion of the distribution of Company
assets as provided herein, the Company is terminated, and the Members (or such
other Person or Persons as the Act may require or permit) shall file articles of
dissolution with the Secretary of State, cancel any other filings made pursuant
to P. 2.05 and take such other actions as may be necessary to terminate the
Company.
ARTICLE 11
GENERAL PROVISIONS
P. 11.01. Entire Agreement; Amendments. This Agreement embodies the entire
understanding between the Members concerning the Company and their relationship
as Members and supersedes any and all prior negotiations, understandings or
agreements. This Agreement may be amended or modified from time to time only by
a written instrument adopted, executed and agreed to by all of the Members.
P. 11.02. Notices. All notices and demands required or permitted under this
Agreement shall be in writing, as follows: (i) by actual delivery of the notice
into the hands of the party entitled to receive it; (ii) by mailing such notice
by registered or certified mail, return receipt requested, in which case the
notice shall be deemed to be given on the date of its mailing; or (iii) by
Federal Express or any other overnight carrier, in which case the notice shall
be deemed to be given as of the date it is sent. All notices which concern this
as follows:
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If to the Company or Managers:
c/o Iron Mountain Records Management, Inc.
745 Atlantic Avenue
Boston, Massachusetts 02111
Attn: Eugene B. Doggett, Executive Vice President
Copy to:
Iron Mountain Records Management, Inc.
745 Atlantic Avenue
Boston, Massachusetts 02111
Attn: General Counsel
If to the Members: To the address as shown from time to time on the records of
the Company. Any Member may specify a different address, which change shall
become effective upon receipt of such notice by the Company.
P. 11.03. Severability. If any provision of this Agreement or the application of
such provision to any Person or circumstance shall be held invalid, the
remainder of this Agreement, or the application of such provision to Persons or
circumstances other than those as to which it is held invalid, shall not be
affected.
P. 11.04. Parties Bound. This Agreement shall be binding upon the Members and
their respective successors, assigns, heirs, devisees, legal representatives,
executors and administrators.
P. 11.05. Applicable Law. The laws of the State of Delaware shall govern this
Agreement, excluding any conflict of laws rules. The Members irrevocably agree
that all actions or proceedings in any way, manner or respect, arising out of or
from or related to this Agreement shall be litigated only in courts having situs
within the State of Delaware. Each Member hereby consents and submits to the
jurisdiction of any local, state or federal court located within said county and
state and hereby waives any rights it may have to transfer or change the venue
of any such litigation. The prevailing party in any litigation in connection
with this Agreement shall be entitled to recover from the other party all costs
and expenses, including without limitation fees of attorneys and paralegals,
incurred by such party in connection with any such litigation. To the extent
permitted by applicable law, the provisions of this Agreement shall override the
provisions of the Act to the extent of any inconsistency or contradiction
between them.
P. 11.06. Partition. Each Member irrevocably waives any right that it may have
to maintain any action for partition with respect to Company Property.
P. 11.07. Strict Construction. It is the intent of the Members that this
Agreement shall be deemed to have been prepared by all of the parties to the end
that no Member shall be entitled to
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the benefit of any favorable interpretation or construction of any term or
provision hereof under any rule or law.
P. 11.08. Headings. The headings in this Agreement are inserted for convenience
and identification only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provision.
P. 11.09. Counterparts. This Agreement may be executed in multiple counterparts
with separate pages, and each such counterpart shall be considered an original,
but all of which together shall constitute one and the same instrument.
P. 11.10. Pronouns. All pronouns shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identify of the person or persons
may require.
P. 11.11. Effect of Waiver or Consent. A waiver or consent, express or implied,
to or of any breach or default by any Person in the performance by that Person
of its obligations hereunder or with respect to the Company is not a consent or
waiver to or of any other breach or default in the performance by that Person of
the same or any other obligations of that Person. Failure on the part of a
Person to complain of any act or to declare any Person in default hereunder,
irrespective of how long that failure continues, does not constitute a waiver by
that Person of its rights with respect to that default.
P. 11.12. Further Assurances. Each Member shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and the transactions contemplated herein.
P. 11.13. Indemnification for Breach. To the fullest extent permitted by law,
each Member shall indemnify the Company and each other member and hold them
harmless from and against all losses, costs, liabilities, damages and expenses
(including, without limitation, costs of suit and attorneys' fees) they may
incur on account of any material breach by that Member of this Agreement.
P. 11.14. Disclosure and Wavier of Conflicts. In connection with the preparation
of this Agreement, the Members acknowledge and agree: (i) the attorney that
prepared this Agreement ("Attorney") acted as legal counsel to the Company; (ii)
the Members have been advised by the Attorney that the interests of the members
are opposed to each other and are opposed to the interests of the Company and,
accordingly, the Attorney's representation of the Company may not be in the best
interests of the Members; and (iii) each of the Members has been advised by the
Attorney to retain separate legal counsel. Notwithstanding the foregoing, the
Members (i) desire the Attorney to represent the Company; (ii) acknowledge that
they have been advised to retain separate counsel and have waived their right to
do so; and (iii) jointly and severally forever waive any claim that the
Attorney's representation of the Company constitutes a conflict of interest.
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IN WITNESS WHEREOF, the Members have executed this Agreement as of the
date first set forth above.
MEMBERS:
Iron Mountain Records Management, Inc.
By: /s/ Eugene B. Doggett
Name: Eugene B. Doggett
Title: Executive Vice President
Date of Execution: April 24, 1996
Iron Mountain Records Management of
Maryland, Inc.
By: /s/ Eugene B. Doggett
Name: Eugene B. Doggett
Title: Executive Vice President
Date of Execution: April 24, 1996
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EXHIBIT A
Name and Address of Each Member Capital Contribution Number of Units
- ------------------------------- -------------------- ---------------
Iron Mountain Records Management, $1,000.00 50
Inc.
745 Atlantic Avenue
Boston, MA 02111
Iron Mountain Records Management $1,000.00 50
of Maryland, Inc.
745 Atlantic Avenue
Boston, MA 02111