Exhibit 10
EXECUTION COPY
$300,000,000
7-3/4% SENIOR SUBORDINATED NOTES DUE 2015
IRON MOUNTAIN INCORPORATED
UNDERWRITING AGREEMENT
April 9, 2003
BEAR, STEARNS & CO. INC.
as Representative of the
several Underwriters named
in Schedule I attached hereto
c/o Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Ladies/Gentlemen:
Iron Mountain Incorporated, a corporation organized and existing under
the laws of Pennsylvania (the "COMPANY"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several underwriters named in
Schedule I hereto (the "UNDERWRITERS"), for whom Bear, Stearns & Co. Inc. is
acting as representative (the "REPRESENTATIVE"), an aggregate of $300,000,000
principal amount of the Company's 7-3/4% Senior Subordinated Notes due 2015 (the
"NOTES"). The Notes will be irrevocably and unconditionally guaranteed (the
"GUARANTEES") by the subsidiaries of the Company listed in Schedule II hereto
that have signed this Agreement (each, a "GUARANTOR" and, collectively, the
"GUARANTORS"), and will be issued pursuant to the Base Indenture, as
supplemented by the First Supplemental Indenture thereto (as so supplemented,
the "INDENTURE"), each dated as of December 30, 2002, among the Company, the
Guarantors and The Bank of New York, as trustee (in such capacity, the
"TRUSTEE"), pursuant to which the Company previously issued $131,255,000 in
aggregate principal amount of the Company's 7-3/4% Senior Subordinated Notes due
2015 (the "EXISTING NOTES").
The Company and the Underwriters, in accordance with the requirements
of Rule 2710(c)(8) and Rule 2720 ("RULE 2720") of the National Association of
Securities Dealers, Inc. (the "NASD") and subject to the terms and conditions
stated herein, also hereby confirm the engagement of the services of Bear,
Stearns & Co. Inc. (the "INDEPENDENT UNDERWRITER") as a "qualified independent
underwriter" within the meaning of Section (b)(15) of Rule 2720 in connection
with the offering and sale of the Notes.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTORS.
The Company and each of the Guarantors jointly and severally represents and
warrants to, and agrees with, each of the Underwriters and the Independent
Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form S-3 (No.
333-75068), filed on December 13, 2001, as amended by Amendment No. 1 thereto,
filed on February 11, 2002, for the registration of the Company's debt and other
securities, as described therein, including the Notes, under the Securities Act
of 1933, as amended (the "SECURITIES ACT"), and the offering thereof from time
to time in accordance with Rule 415 of the rules and regulations of the
Commission (the "RULES AND REGULATIONS") under the Securities Act. Such
registration statement, as so amended, has been declared effective by the
Commission and copies have heretofore been delivered to the Underwriters and the
Independent Underwriter. Such registration statement, as so amended, including
all information, if any, deemed to be a part thereof pursuant to Rule 430A of
the Rules and Regulations, is referred to herein as the "REGISTRATION
STATEMENT." No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been initiated
or, to the Company's knowledge, threatened by the Commission. The Company has
filed a final prospectus supplement with the Commission pursuant to Rule 424(b)
of the Rules and Regulations relating to the offering and sale of a portion of
the Existing Notes. The Company will file the Prospectus (as defined below) with
the Commission pursuant to Rule 424(b) of the Rules and Regulations. The base
prospectus contained in the Registration Statement, at the time the Registration
Statement was declared effective, as supplemented by the final prospectus
supplement relating to the offering and sale of the Notes (the "OFFERING"), in
the form in which it is to be filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations, is hereinafter referred to as the "PROSPECTUS,"
except that if any revised prospectus or prospectus supplement shall be provided
to the Underwriters and the Independent Underwriter by the Company for use in
connection with the Offering which differs from the Prospectus (whether or not
such revised prospectus or prospectus supplement is required to be filed by the
Company pursuant to Rule 424(b) of the Rules and Regulations), the term
"Prospectus" shall refer to such revised prospectus or prospectus supplement, as
the case may be, from and after the time it is first provided to the
Underwriters and the Independent Underwriter for such use. Any preliminary
prospectus supplement (and the related base prospectus) relating to the Offering
filed with the Commission pursuant to Rule 424 of the Rules and Regulations is
hereafter called the "Preliminary Prospectus." Any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3,
which were filed under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), on or before the effective date of the Registration Statement
or the date of the Prospectus, as the case may be, and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include (i) the
filing of any document under the Exchange Act after the effective date of the
Registration Statement or the date of the Prospectus, as the case may be, which
is incorporated therein by reference and (ii) any such document so filed. All
references in this Agreement to the
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Registration Statement and the Prospectus, or any amendments or supplements to
any of the foregoing, shall be deemed to include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System ("EDGAR").
(b) At the time of the effectiveness of the Registration Statement
or the effectiveness of any post-effective amendment to the Registration
Statement, when the Prospectus is first filed with the Commission pursuant to
Rule 424(b) or Rule 434 of the Rules and Regulations, when any supplement to or
amendment of the Prospectus is filed with the Commission, when any document
filed under the Exchange Act is filed and at the Closing Date (as hereinafter
defined), the Registration Statement and the Prospectus and any amendments
thereof and supplements thereto complied or will comply in all material respects
with the applicable provisions of the Securities Act and the Rules and
Regulations thereunder and the Exchange Act and the Rules and Regulations
thereunder and did not and will not contain an untrue statement of a material
fact and did not and will not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein (i) in the
case of the Registration Statement, not misleading and (ii) in the case of the
Prospectus, or the Preliminary Prospectus, if any, in light of the circumstances
under which they were made, not misleading. When a related Preliminary
Prospectus, if any, was first filed with the Commission (whether filed as part
of the Registration Statement or any amendment thereto or pursuant to Rule
424(a) of the Rules and Regulations) and when any amendment thereof or
supplement thereto was first filed with the Commission, such Preliminary
Prospectus, if any, and any amendments thereof and supplements thereto complied
in all material respects with the applicable provisions of the Securities Act,
the Exchange Act and the respective Rules and Regulations thereunder and did not
contain an untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or related Preliminary Prospectus, if
any, or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter or the Independent Underwriter through you specifically for
use therein ("UNDERWRITERS' INFORMATION"). The parties acknowledge and agree
that the Underwriters' Information consists solely of the material included in
the third and fifth paragraphs under the caption "Underwriting" in the
prospectus supplement portion of the Prospectus.
(c) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth in
or incorporated by reference into the Registration Statement and the Prospectus,
there has been no material adverse change or any development involving a
prospective material adverse change in the business, prospects, properties,
operations, condition (financial or other) or results of operations of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, and since the date of the
latest balance sheet presented in or incorporated by reference into the
Registration Statement and the Prospectus, neither the Company nor any of its
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subsidiaries has incurred or undertaken any liabilities or obligations, direct
or contingent, which are material to the Company and its subsidiaries taken as a
whole, except for liabilities or obligations which are reflected in or
incorporated by reference into the Registration Statement and the Prospectus.
(d) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(e) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and the Rules and Regulations thereunder, and,
when read together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and at the
Closing Date (as hereinafter defined), will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(f) The Company and each of its subsidiaries has been duly
incorporated or formed, is validly existing as a corporation, limited liability
company or Massachusetts statutory business trust in good standing under the
laws of its jurisdiction of incorporation or formation and has the corporate
power and authority to carry on its business as it is currently being conducted
and to own, lease and operate its properties, and each is duly qualified and is
in good standing as a foreign corporation, limited liability company or
statutory business trust authorized to do business in each jurisdiction in which
the nature of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect (financial or otherwise) on the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(g) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable; all of such
capital stock or other ownership interests (in the case of the Company's
wholly-owned subsidiaries) or all of such capital stock or other ownership
interests that the Company owns (in the case of less than wholly-owned
subsidiaries as disclosed in the Prospectus or Schedule III hereto) are owned
directly or indirectly by the Company, in each case, free and clear of any
security interest, claim, lien, encumbrance or adverse claim of any nature,
except as disclosed in the Prospectus or such as are not material to the
business prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole; and Schedule III hereto sets forth the
Company's ownership interest in any subsidiary (as defined in Regulation S-X
Rule 1-02(x) of the Rules and Regulations) that is less than wholly-owned.
(h) This Agreement has been duly authorized, executed and delivered
by the Company and the Guarantors and is a valid and binding agreement of the
Company and the Guarantors enforceable in accordance with its terms except as
(i) rights
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to indemnity and contribution hereunder may be limited by applicable law, (ii)
the enforceability hereof may be limited by bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally and (iii)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(i) The Notes have been duly and validly authorized by the Company
for issuance and sale pursuant to this Agreement, each Guarantee has been duly
and validly authorized by the Guarantor to which it relates and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to the Underwriters and Independent Underwriter against payment
therefor as provided by this Agreement, the Notes and the Guarantees will be
entitled to the benefits of the Indenture, and will be valid and binding
obligations of the Company and the Guarantors, respectively, enforceable in
accordance with their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(j) The Indenture has been duly and validly authorized, executed and
delivered by the Company and each of the Guarantors and has been duly qualified
under the Trust Indenture Act of 1939, as amended; and, assuming the due
authorization, execution and delivery thereof by the Trustee, is a valid and
binding agreement of the Company and the Guarantors, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability. The Indenture conforms and any amendment or supplement thereto
will conform with the requirements of the Trust Indenture Act of 1939, as
amended.
(k) The Notes and Guarantees conform as to legal matters to the
description thereof contained in the Prospectus.
(l) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or comparable organizational documents or
in default (and no condition exists which, with notice or lapse of time or both,
would constitute a default) in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument material to the
conduct of the business of the Company and its subsidiaries, taken as a whole,
to which the Company or any of its subsidiaries is a party or by which it or any
of its subsidiaries or their respective property is bound except for such
defaults as could not, individually or in the aggregate, have a Material Adverse
Effect.
(m) The execution, delivery and performance of this Agreement, the
Indenture, the Notes and the Guarantees and compliance by the Company and the
Guarantors with all the provisions hereof and thereof, as the case may be, and
the
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consummation of the transactions contemplated hereby and thereby will not
require any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body (except as
such may be required under the securities or Blue Sky laws of the various states
or jurisdictions outside the United States), and will not conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws or comparable organizational documents of the Company or
any of its subsidiaries or any agreement, indenture or other instrument to which
it or any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, or violate or conflict with
any laws, administrative regulations or rulings or court decrees applicable to
the Company, any of its subsidiaries or their respective property.
(n) Except as otherwise set forth in the Prospectus, there are no
material legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any of their respective property is
the subject, and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated.
(o) Neither the Company nor any of its subsidiaries is currently in
violation of any foreign, federal, state or local law or regulation relating to
the protection of human health or safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), nor any
federal or state law relating to discrimination in the hiring, promotion or pay
of employees nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or the rules and regulations promulgated thereunder, which singly, or in the
aggregate, could be reasonably expected to have a Material Adverse Effect on the
Company or its subsidiaries, taken as a whole.
(p) The Company and each of its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("PERMITS") including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its respective
properties and to conduct its respective business, except to the extent that the
failure to have such Permits would not singly, or in the aggregate, have a
Material Adverse Effect on the Company and its subsidiaries, taken as a whole;
the Company and each of its subsidiaries has fulfilled and performed all of its
material obligations with respect to such Permits and no event has occurred
which has or after notice or lapse of time would singly, or in the aggregate,
have a Material Adverse Effect on the Company and its subsidiaries, taken as a
whole; and, except as described in the Prospectus, such Permits contain no
restrictions that materially interfere with the business or operations of the
Company or any of its subsidiaries as currently conducted.
(q) In the ordinary course of its business, when the Company or any
of its subsidiaries acquires a fee interest in a parcel of real property located
in the United States, the Company conducts a review of the property (generally
consisting of a Phase I environmental assessment or similar study prepared on
behalf of the seller or a predecessor owner of such property) to determine
whether any conditions exist on the
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property that would constitute a violation of Environmental Laws or would
require a material amount of capital or operating expenditures for clean-up,
closure or compliance with Environmental Laws. In the ordinary course of its
business, when the Company or any of its subsidiaries enters into a long-term
real property lease for property located in the United States, the Company
conducts an internal review, which may or may not result in a Phase I
environmental assessment or similar study (although the Company would typically
obtain a Phase I or similar study where the Company would have the right to
acquire a fee interest in such real property), as it relates to such real
property to determine whether any conditions exist on the property that would
constitute a violation of Environmental Laws or would require a material amount
of capital or operating expenditures for clean-up, closure or compliance with
Environmental Laws. In the ordinary course of its business, the Company utilizes
local counsel to obtain advice regarding owned or leased real property and local
environmental matters outside the United States. On the basis of such reviews
and advice, the Company has concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a Material Adverse Effect on the
Company and its subsidiaries, taken as a whole.
(r) Except as otherwise set forth in the Prospectus or such as are
not material to the business prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, the Company
and each of its subsidiaries has good and marketable title, free and clear of
all liens, claims, encumbrances and restrictions except liens for taxes not yet
due and payable, to all property and assets described in the Prospectus as being
owned by it. All leases to which the Company or any of its subsidiaries is a
party are valid and binding and no default by the Company of any of its
subsidiaries, by any other party, has occurred or is continuing thereunder,
which might result singly, or in the aggregate, in a Material Adverse Effect to
the Company or its subsidiaries, taken as a whole, and the Company and its
subsidiaries enjoy peaceful and undisturbed possession under all such leases to
which any of them is a party as lessee with such exceptions as do not have a
Material Adverse Effect on the Company and its subsidiaries, taken as a whole.
(s) The Company and each of its subsidiaries maintains, with
insurers of recognized standing, reasonably adequate insurance against property
and casualty loss, general liability, business interruption and such other
losses and risks, in each case, in such amounts as are prudent and customary in
the business in which they are engaged.
(t) Arthur Andersen LLP, who certified certain consolidated
financial statements and supporting schedules of the Company, were independent
public accountants as required by the Securities Act, the Exchange Act and the
respective Rules and Regulations thereunder.
(u) Deloitte & Touche LLP, who are the current auditors of the
Company, and RSM Robson Rhodes, who have certified certain financial statements
of Iron Mountain Europe Limited, each are independent public accountants as
required by the Securities Act, the Exchange Act and the respective Rules and
Regulations thereunder.
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(v) The financial statements, together with related schedules and
notes forming part of the Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of operations and
changes in financial position of the Company and its subsidiaries on the basis
stated in the Prospectus at the respective dates or for the respective periods
to which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set forth
in the Prospectus (and any amendment or supplement thereto) is, to the Company's
knowledge, in all material respects, accurately presented and prepared on a
basis reasonably consistent with the books and records of the Company.
(w) Based on the knowledge of the chief executive officer and chief
financial officer of the Company, (i) the Annual Report on Form 10-K for the
year ended December 31, 2002 (the "2002 10-K"), fully complies with the
requirements of Section 13(a) or 15(d) of the Exchange Act; and (ii) the
information contained in the 2002 10-K fairly presents, in all material
respects, the financial condition and results of operations of the Company as of
the date of filing with the Commission.
(x) The pro forma financial statements and other pro forma financial
information (including the notes thereto) included or incorporated by reference
in the Registration Statement and in the Prospectus (i) present fairly the
information shown therein, (ii) have been prepared in accordance with Article 11
of Regulation S-X and the related Rules and Regulations adopted by the
Commission with respect to pro forma financial statements and (iii) have been
properly compiled on the basis described therein, and the assumptions used in
the preparation of such pro forma financial statements and other pro forma
financial information (including the notes thereto) are reasonable and the
adjustments used therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(y) The transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the Notes) will not
violate or result in a violation of Section 7 of the Exchange Act, or any Rules
and Regulations promulgated thereunder, including, without limitation,
Regulations T, U and X of the Board of Governors of the Federal Reserve System.
(z) Neither the Company nor any of its affiliates does business with
the Government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes (Chapter 92 128, Laws of
Florida).
(aa) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus and all of the outstanding shares
of capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable and were not issued in violation of or subject
to any preemptive rights.
(bb) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments for sale or liens related to
or entitling
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any person to purchase or otherwise to acquire any shares of the capital stock
of, or other ownership interest in, the Company (other than any such
arrangements created exclusively by or relating exclusively to one or more of
the Company's stockholders) or any wholly-owned subsidiary thereof or with
respect to any capital stock or other ownership interest that the Company or any
of its subsidiaries (as defined in Regulation S-X Rule 1-02(x) of the Rules and
Regulations) owns in a less than wholly-owned subsidiary except as otherwise
disclosed in the Prospectus or such as are not material to the business
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(cc) The Company has disclosed in the Prospectus any business
relationships or related party transactions of the type that is required to be
disclosed by Item 404 of Regulation S-K of the Rules and Regulations.
(dd) There is (i) no significant unfair labor practice complaint
pending against the Company or any of its subsidiaries or, to the best knowledge
of the Company, threatened against any of them, before the National Labor
Relations Board or any foreign, state or local labor relations board, and no
significant grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is pending against the Company or any of its
subsidiaries or, to the best knowledge of the Company, threatened against any of
them, and (ii) no significant strike, labor dispute, slowdown or stoppage
pending against the Company or any of its subsidiaries or, to the best knowledge
of the Company, threatened against it or any of its subsidiaries, which, singly
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(ee) The chief executive officer and chief financial officer of the
Company are responsible for establishing and maintaining disclosure controls and
procedures (as defined in Rules 13a-14 and 15d-14 of the Rules and Regulations
under the Exchange Act) for the Company and have (i) designed such disclosure
controls and procedures to ensure that material information relating to the
Company and its subsidiaries is made known to the chief executive officer and
chief financial officer by others within the Company and its subsidiaries, (ii)
evaluated the effectiveness of the of the Company's disclosure controls and
procedures as of a date (the "EVALUATION DATE") within 90 days prior to the
filing of the 2002 10-K, and (iii) presented in the 2002 10-K their conclusions
about the effectiveness of the disclosure controls and procedures based on their
evaluation as of the Evaluation Date. The chief executive officer and chief
financial officer of the Company have disclosed, based upon their evaluation as
of the Evaluation Date, to the Company's auditors and the Audit Committee of the
Company's Board of Directors (i) all significant deficiencies in the design or
operation of internal controls which could adversely affect the Company's
ability to record, process, summarize and report financial data and have
identified for the Company's auditors any material weaknesses in internal
controls, and (ii) any fraud, whether or not material, that involves management
or other employees who have a significant role in the registrant's internal
controls. The chief executive officer and chief financial officer have indicated
in the 2002 10-K whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal controls
subsequent to the Evaluation
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Date, including any corrective actions with regard to significant deficiencies
and material weaknesses.
(ff) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(gg) All material tax returns required to be filed by the Company
and each of its subsidiaries in any jurisdiction have been filed, other than
those filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries, have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(hh) The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all material patents, patent applications, trademarks,
service marks, trade names, licenses, copyrights and proprietary or other
confidential information currently employed by them in connection with their
respective businesses, and neither the Company nor any such subsidiary has
received any notice of infringement of or conflict with asserted rights of any
third party with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect, except as described in or contemplated by
the Prospectus.
(ii) No Restricted Subsidiary (as defined in the Indenture) of the
Company is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such Restricted
Subsidiary's capital stock, from repaying to the Company any loan or advances to
such Restricted Subsidiary from the Company or from transferring any of such
Restricted Subsidiary's property or assets to the Company or any other
Restricted Subsidiary of the Company, except as described in or contemplated by
the Prospectus.
(jj) Immediately after each of the Guarantors has entered into
the Guarantee to which it is a party, (i) the fair value of the assets of
such Guarantor will exceed the debts and liabilities, subordinated,
contingent or otherwise, of such Guarantor, (ii) the present fair saleable
value of the property of such Guarantor will be greater than the amount that
will be required to pay the probable liabilities of such Guarantor on its
debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities, subordinated, contingent or otherwise, become
absolute and matured, (iii) such Guarantor will be able to pay its debts and
other liabilities, subordinated, contingent or
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otherwise, as such debts and other liabilities become absolute and matured,
and (iv) such Guarantor will not have an unreasonably small capital with
which to conduct the business in which it is engaged as such business is
conducted and is proposed to be conducted following the Closing Date.
(kk) Neither the Company nor any of its subsidiaries intends, or
intends to permit any of its respective subsidiaries, to incur debts beyond its
ability to pay such debts as they mature, taking into account the timing and the
amounts of cash to be received by the Company or any of its subsidiaries and the
timing and the amounts of cash to be payable on or in respect of the Company's
indebtedness or the indebtedness of each subsidiary.
(ll) Except as have been irrevocably waived in writing, no holder of
securities of the Company has any rights to the registration of securities of
the Company because of the filing of the Registration Statement or otherwise in
connection with the sale of the Notes contemplated hereby.
(mm) None of the Company and the Guarantors is, or upon consummation
of the transactions contemplated under this Agreement and the Indenture will be,
an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT") or be subject to registration under the Investment
Company Act.
(nn) There are no contracts or other documents that are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations that have not
been so described or filed.
(oo) The statistical and market-related data included in the
Prospectus is based on or derived from sources which the Company believes to be
reliable and accurate.
2. PURCHASE, SALE AND DELIVERY OF THE NOTES.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, the aggregate
principal amount of the Notes set forth opposite the name of such Underwriter on
Schedule I hereto, at the purchase price set forth opposite the name of such
Underwriter on Schedule I hereto.
(b) Payment of the purchase price for, and delivery of certificates
for, the Notes shall be made at the office of Latham & Watkins LLP, 885 Third
Avenue, New York, New York 10022 ("UNDERWRITERS' COUNSEL"), or at such other
place as shall be agreed upon by you and the Company, at 10:00 A.M., New York
City time, on the ninth business day (as permitted under Rule 15c6-1 under the
Exchange Act) (unless postponed in accordance with the provisions of Section 6
or Section 9 hereof) following
11
the date hereof or such other time not later than thirteen business days after
such date as shall be agreed upon by you and the Company (such time and date of
payment and delivery being herein called the "CLOSING DATE").
(c) Payment for the Notes shall be made to or upon the order of the
Company of the purchase price by wire transfer in Federal (same day) funds to
the Company or as directed by the Company upon delivery of certificates for the
Notes to you through the facilities of The Depository Trust Company for the
respective accounts of the several Underwriters against receipt therefor signed
by you or on your behalf. The Notes to be delivered to you shall be registered
in such name or names and shall be in such denominations as you may request at
least two business days before the Closing Date. The Company will permit you to
examine and package such certificates for delivery at least one full business
day prior to the Closing Date.
3. OFFERING. Upon the Company's authorization of the release of the
Notes, the Underwriters propose to offer the Notes for sale to the public upon
the terms and conditions set forth in the Prospectus.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with each
of the Underwriters and with the Independent Underwriter that:
(a) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would, in the
judgment of the Underwriters and the Independent Underwriter or the Company
include an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
if it shall be necessary at any time to amend or supplement the Prospectus or
Registration Statement to comply with the Securities Act or the Rules and
Regulations, or to file under the Exchange Act so as to comply therewith any
document incorporated by reference in the Registration Statement or the
Prospectus or in any amendment thereof or supplement thereto, the Company will
notify you promptly and prepare and file with the Commission an appropriate
amendment or supplement (in form and substance satisfactory to you) which will
correct such statement or omission or which will effect such compliance and will
use its best efforts to have any amendment to the Registration Statement
declared effective as soon as possible.
(b) The Company will promptly deliver to each of the Underwriters
and the Independent Underwriter such number of copies of any Preliminary
Prospectus, the Prospectus, the Registration Statement, all amendments of and
supplements to such documents, if any, all documents incorporated by reference
in the Registration Statement and Prospectus or any amendment thereof or
supplement thereto, as you may reasonably request. Prior to 10:00 A.M., New York
time, or if it is not possible to do so prior to such time, as soon thereafter
as practicable, on the business day next succeeding the date of this Agreement
and from time to time thereafter the Company will furnish the Underwriters and
the Independent Underwriter with copies of the Prospectus in New York City in
such quantities as you may reasonably request. The
12
Company will timely file the Prospectus with the Commission as required by Rule
424(b) of the Rules and Regulations.
(c) The Company will endeavor in good faith, in cooperation with
you, at or prior to the date of the Prospectus, to qualify the Notes for
offering and sale under the securities or Blue Sky laws of such jurisdictions as
you may designate and to maintain such qualification in effect for so long as
required for the distribution thereof; except that in no event shall the Company
be obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process where it is not already so
subject.
(d) The Company will make generally available (within the meaning of
Section 11(a) of the Securities Act) to its security holders and to the
Underwriters and the Independent Underwriter as soon as practicable, but in any
event not later than 45 days after the end of its fiscal quarter in which the
first anniversary date of the date of the Prospectus occurs, an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with the provisions of Rule 158 of the Regulation covering a period of
at least twelve consecutive months beginning after the effective date of the
Registration Statement.
(e) During the period from the date hereof until 45 calendar days
after the Closing Date, the Company shall not offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or any Guarantor or
warrants to purchase debt securities of the Company or any Guarantor
substantially similar to the Notes (other than (i) the Notes, (ii) the
Guarantees and (iii) commercial papers issued in the ordinary course of
business), without the Representative's prior written consent.
(f) Whether or not required by the Rules and Regulations, so long as
any Notes are outstanding and so long as the Indenture so requires, the Company
will furnish to you at your reasonable request copies of all reports or other
communications (financial or other) furnished to security holders, and to
deliver to you (i) as soon as they are available, copies of any and all reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in reports
furnished to its security holders generally or to the Commission).
(g) The Company will apply the proceeds from the sale of the Notes
as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will use its best efforts to do or perform, or cause
to be done or performed, all things required or necessary to be done and
performed under this Agreement by the Company and the Guarantors prior to the
Closing Date and to satisfy all conditions precedent to the delivery of the
Notes.
13
(i) The Company will use its best efforts in cooperation with the
Underwriters to permit the Notes to be eligible for clearance and settlement
through the facilities of The Depository Trust Company.
(j) The Company will take all reasonable action necessary to enable
Standard & Poor's Corporation ("S&P") and Moody's Investors Service, Inc.
("MOODY'S") to reaffirm their respective credit ratings on the Company's
outstanding senior subordinated debt, including for this purpose, the issuance
of the Notes.
(k) The Company has not and will not (and has not permitted its
affiliates to, and will cause its affiliates not to) take, directly or
indirectly, any action which is designed to or which constitutes or which might
reasonably be expected to cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Notes and neither the Company nor any of its affiliated purchasers (as
defined in Rule 100 of Regulation M under the Exchange Act) will take any action
prohibited by Regulation M under the Exchange Act.
(l) The Company, during the period when the Prospectus is required
to be delivered under the Act or the Exchange Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the Exchange Act and the rules
and regulations thereunder.
5. PAYMENT OF EXPENSES. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Notes under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters, the Independent Underwriter and dealers; (ii) the
cost of producing the Blue Sky Memoranda, all expenses in connection with the
qualification of the Notes for offering and sale under state securities or Blue
Sky laws as provided in Section 4(c) hereof, including the fees and
disbursements of counsel for the Underwriters and the Independent Underwriter in
connection with such qualification and in connection with the Blue Sky survey;
(iii) all fees and expenses in connection with the inclusion of the Notes in the
book-entry system of The Depository Trust Company; (iv) all travel expenses of
the Company's officers and employees and any other expense of the Company
incurred in connection with attending or hosting meetings with prospective
purchasers of the Notes; (v) fees paid to rating agencies in connection with the
Notes and (vi) the filing fees incident to, and the fees and disbursements of
counsel for the Underwriters and the Independent Underwriter in connection with,
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Notes. The Company also will pay or cause
to be paid: (i) the cost of preparing certificates for the Notes; (ii) the cost
and charges of any transfer agent or registrar; and (iii) all other costs and
expenses incident to the
14
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 5.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters and the Independent Underwriter to purchase and pay for the Notes
under this Agreement are subject to the satisfaction of each of the following
conditions:
(a) The Registration Statement shall have become, and shall remain,
effective on the date of this Agreement and through the Closing Date; the
Prospectus shall have been filed with the Commission in a timely fashion in
accordance with Section 4(b) hereof; and, at or prior to the Closing Date no
stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof shall have been issued and no proceedings
therefor shall have been initiated or threatened by the Commission.
(b) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the same
force and effect as if made on and as of the Closing Date.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading, nor shall
any notice have been given of any intended or potential downgrading in the
rating accorded any of the Company's securities by any nationally recognized
securities rating organization, or any public announcement that any such
organization has under surveillance or review its rating of any such securities
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading of such rating).
(d) (i) Since the date of the latest balance sheet included in the
Prospectus, there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in the business
prospects, financial condition or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, except as otherwise described in the Registration Statement or
Prospectus, (ii) as of the Closing Date, the obligations of the Company to be
performed hereunder on or prior thereto have been duly performed, (iii) since
the date of the latest balance sheet included in the Prospectus there shall not
have been any material adverse change, or any development involving a
prospective material adverse change, in the capital stock or in the long-term
debt of the Company from that set forth in the Prospectus, except as otherwise
described in the Registration Statement or Prospectus, (iv) the Company and its
subsidiaries shall have no liability or obligation, direct or contingent, which
is material to the Company and its subsidiaries, taken as a whole, other than
those in the Registration Statement or Prospectus, and (v) on the Closing Date
you shall have received a certificate dated the Closing Date, signed by C.
Richard Reese, in his capacity as Chairman of the Board and Chief Executive
Officer, and by John F. Kenny, Jr., in his capacity as Executive Vice President
and Chief Financial Officer of the Company, confirming the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 6.
15
(e) At the Closing Date you shall have received the written opinion
of Sullivan & Worcester LLP, counsel for the Company, dated the Closing Date,
addressed to the Underwriters in the form attached hereto as Annex I and in form
and substance reasonably satisfactory to the Underwriters and Underwriters'
Counsel.
(f) At the Closing Date you shall have received the written opinion
of Garry Watzke, Esq., General Counsel for the Company, dated the Closing Date,
addressed to the Underwriters in the form attached hereto as Annex II and in
form and substance reasonably satisfactory to the Underwriters and Underwriters'
Counsel.
(g) At the Closing Date you shall have received the written opinion
of Ballard Spahr Andrews & Ingersoll, LLP, special Pennsylvania counsel to the
Company, dated the Closing Date, addressed to the Underwriters in the form
attached hereto as Annex III and in form and substance reasonably satisfactory
to the Underwriters and Underwriters' Counsel.
(h) The Underwriters shall have received on the Closing Date the
written opinion of Latham & Watkins LLP, counsel for the Underwriters, dated
the Closing Date, as to such matters as the Underwriters shall reasonably
request.
(i) The Underwriters shall have received (i) a letter or letters on
and as of the date of this Agreement (each, an "INITIAL LETTER"), in form and
substance satisfactory to you, from each of Deloitte & Touche LLP (with respect
to Iron Mountain Incorporated) and RSM Robson Rhodes (with respect to Iron
Mountain Europe Limited), each independent public accountants, with respect to
the financial statements and certain financial information contained in the
Prospectus and letters on and as of the Closing Date, in form and substance
satisfactory to you, from each of Deloitte & Touche LLP and RSM Robson Rhodes
confirming the information contained in the initial letter or letters provided
by such accountants, and (ii) a certificate dated as of the date of this
Agreement, signed by C. Richard Reese, in his capacity as Chairman of the Board
and Chief Executive Officer of the Company, and by John F. Kenny, Jr., in his
capacity as Executive Vice President and Chief Financial Officer of the Company,
with respect to the consolidated financial statements, and related schedules and
notes, of the Company audited by Arthur Andersen LLP and incorporated by
reference into the Registration Statement.
(j) Subsequent to the execution and delivery of this Agreement or,
if earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business, properties or
prospects of the Company and its subsidiaries taken as a whole, the effect of
which, in any such case described above, is, in the judgment of the Underwriters
and the Independent Underwriter, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the
16
Notes on the terms and in the manner contemplated in the Prospectus (exclusive
of any supplement).
(k) The Company shall have complied with the provisions of Section
4(b) hereof with respect to the furnishing of Prospectuses on the next business
day succeeding the date of this Agreement.
(l) On or prior to the Closing Date, The Depository Trust Company
shall have accepted the Notes for clearance.
(m) The Company shall have furnished the Underwriters and
Underwriters' Counsel with such other certificates, opinions or other documents
as they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters and the Independent
Underwriter hereunder may be cancelled by you at, or at any time prior to, the
Closing Date. Notice of such cancellation shall be given to the Company in
writing, or by telephone. Any such telephone notice shall be confirmed promptly
thereafter in writing.
7. INDEMNIFICATION.
(a) Each of the Company and the Guarantors shall indemnify and hold
harmless each Underwriter, the Independent Underwriter and each person, if any,
who controls any Underwriter or Independent Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including, but not limited to, attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or any amendment thereof, or related Preliminary
Prospectus, if any, or the Prospectus, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; PROVIDED, HOWEVER, that the Company will
not be liable in any such case to the extent but only to the extent that any
such loss, liability, claim, damage or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter or
Independent
17
Underwriter through you expressly for use therein. This indemnity agreement will
be in addition to any liability which the Company may otherwise have including
under this Agreement.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and the Independent Underwriter, each of the directors
of the Company, each of the officers of the Company who shall have signed the
Registration Statement, and each other person, if any, who controls the Company
or the Independent Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against any losses, liabilities, claims,
damages and expenses whatsoever as incurred (including, but not limited to,
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed or
any amendment thereof, or related Preliminary Prospectus, if any, or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
you expressly for use therein. This indemnity will be in addition to any
liability which any Underwriter may otherwise have including under this
Agreement.
(c) The Independent Underwriter shall indemnify and hold harmless
the Company and each Underwriter, each of the directors of the Company, each of
the officers of the Company who shall have signed the Registration Statement,
and each other person, if any, who controls the Company or any Underwriter
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against any losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Notes, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that
18
any such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Independent
Underwriter expressly for use therein.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of any claims or the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party against
whom indemnification is to be sought in writing of the claim or the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve it
from any liability which it may have under this Section 7). In case any such
claim or action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action or
(iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the indemnified party is or reasonably could have been a party and
indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or reasonably could have been the subject matter of such action and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act, by or on behalf of the indemnified party.
8. CONTRIBUTION. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company, the Independent
Underwriter and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting, in the case of
losses, liabilities, claims, damages and expenses suffered by the Company
19
any contribution received by the Company from persons, other than the
Independent Underwriter or the Underwriters, who may also be liable for
contribution, including persons who control the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, officers of the
Company who signed the Registration Statement and directors of the Company) as
incurred to which the Company, the Independent Underwriter and one or more of
the Underwriters may be subject, in such proportions as is appropriate to
reflect the relative benefits received by the Company, the Independent
Underwriter and the Underwriters from the offering of the Notes or, if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company, the Independent Underwriter and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, the Independent Underwriter and the Underwriters shall be deemed to be
in the same proportion as (x) the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and (y) the underwriting discount received by the Underwriters
bear to the total price to the public of the Notes, in each case as set forth in
the Prospectus. The relative fault of the Company and of the Underwriters shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or either the Independent Underwriter or the Underwriters on the other hand and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 8, no
Underwriter or the Independent Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter or the Independent
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within in the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person, if
any, who controls an Underwriter or the Independent Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as such Underwriter or the Independent
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of this Section 8. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or
20
parties, notify each party or parties from whom contribution may be sought, but
the omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 8 or otherwise. The obligations of the Underwriters to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amount of Notes purchased by each of the Underwriters
hereunder and not joint.
9. DEFAULT BY AN UNDERWRITER.
(a) If one or more of the Underwriters shall fail at the Closing
Date to purchase the Notes which it or they are obligated to purchase under this
Agreement (the "DEFAULTED NOTES") and such Defaulted Notes do not exceed in the
aggregate 10% of the aggregate principal amount of the Notes, then each
non-defaulting Underwriter shall purchase an aggregate amount of the Defaulted
Notes equal to the proportion that the aggregate principal amount of Notes to be
purchased by such Underwriter as set forth opposite such Underwriter's name on
Schedule I hereto bears to the aggregate principal amount of Notes to be
purchased by all non-defaulting Underwriters.
(b) Notwithstanding the foregoing, if the Defaulted Notes equal or
exceed in the aggregate 10% of the aggregate principal amount of the Notes, then
the non-defaulting Underwriters shall have the right, within 48 hours after the
Closing Date, to make arrangements for one or more of such non-defaulting
Underwriters to purchase all, but not less than all, of the Defaulted Notes in
such amounts as may be agreed upon among such non-defaulting Underwriters and
upon the terms herein set forth; PROVIDED that if the non-defaulting
Underwriters shall not have completed such arrangements within such 48-hour
period, then this Agreement shall terminate without liability on the part of the
non-defaulting Underwriters or the Company and the Guarantors.
No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, any of the non-defaulting Underwriters or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Prospectus or in any other
documents or arrangements.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations and
warranties, covenants and agreements of the Underwriters, the Independent
Underwriter and the Company contained in this Agreement, including the
agreements contained in Section 5, the indemnity agreements contained in Section
7 and the contribution agreements contained in Section 8, shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or any controlling person thereof, the Independent
Underwriter and any controlling person thereof, or by or on behalf of the
Company, any of its officers and directors or any controlling person thereof,
and shall survive delivery of and payment for the Notes to and
21
by the Underwriters. The representations contained in Section 1 and the
agreements contained in Sections 5, 7, 8 and 11(d) hereof shall survive the
termination of this Agreement, including termination pursuant to Section 9 or 11
hereof.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(a) This Agreement shall become effective upon the later of when (i)
you and the Company shall have received notification of the effectiveness of the
Registration Statement or (ii) the execution of this Agreement. Until this
Agreement becomes effective as aforesaid, it may be terminated by the Company by
notifying you or by you by notifying the Company. Notwithstanding the foregoing,
the provisions of this Section 11 and of Sections 1, 5, 7 and 8 hereof shall at
all times be in full force and effect.
(b) You shall have the right to terminate this Agreement at any time
prior to the Closing Date: (A) if any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (B) if trading on the New York Stock Exchange (the "EXCHANGE")
shall have been suspended or been made subject to material limitations, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, on the Exchange or by order
of the Commission or any other governmental authority having jurisdiction; or
(C) if a banking moratorium has been declared by any state or federal authority
or if any material disruption in commercial banking or securities settlement or
clearance services shall have occurred; or (D) if any downgrading shall have
occurred in the Company's corporate credit rating or the rating accorded the
Company's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act;) or if any
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities; or (E) (i) if there shall have occurred any outbreak
or escalation of hostilities or acts of terrorism involving the United States or
there is a declaration of a national emergency or war by the United States or
(ii) if there shall have been any other calamity or crisis or any change in
political, financial or economic conditions if the effect of any such event in
(i) or (ii), in your sole judgment, makes it impracticable or inadvisable to
proceed with the offering, sale and delivery of the Notes on the terms and in
the manner contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be
in writing.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Notes provided for herein is not consummated because any
condition to the obligations of the Underwriters and the Independent Underwriter
set forth herein is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement
22
herein or comply with any provision hereof, the Company will, subject to demand
by you, reimburse the Underwriters and the Independent Underwriter for all
reasonable out-of-pocket expenses (including the reasonable fees and expenses of
their counsel), incurred by the Underwriters in connection herewith.
12. NOTICES. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter or the Independent Underwriter, shall
be mailed, delivered, or faxed and confirmed in writing, to such Underwriter c/o
Bear, Stearns & Co. Inc., 383 Madison Avenue, New York, New York 10179,
Attention: John T. Kilgallon, with a copy to Latham & Watkins LLP, 885 Third
Avenue, New York, New York 10022, Attention: Robert A. Zuccaro, Esq.;
(b) if sent to the Company, shall be mailed, delivered, or faxed and
confirmed in writing to the Company and its counsel at the addresses set forth
in the Registration Statement, Attention: Garry B. Watzke, Esq., with a copy to
Sullivan & Worcester LLP, One Post Office Square, Boston, Massachusetts, 02111,
Attention: William J. Curry, Esq.;
PROVIDED, HOWEVER, that any notice to an Underwriter or the Independent
Underwrtier pursuant to Section 7 shall be delivered or sent by mail or
facsimile transmission to such Underwriter or the Independent Underwriter at its
address set forth in its acceptance facsimile to you, if any, which address will
be supplied to any other party hereto by you upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof.
13. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. Each of the Company
and the Guarantors:
(a) irrevocably submits to the jurisdiction of any New York State or
federal court sitting in New York City and any appellate court from any court
thereof in any action or proceeding arising out of or relating to this Agreement
or any other document delivered hereunder;
(b) irrevocably agrees that all claims in respect of any such action
or proceeding may be heard and determined in such New York State court or in
such federal court; and
(c) irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
and irrevocably consents, to the fullest extent permitted by law, to service of
process of any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage prepaid,
to the Company or any of the Guarantors at its address as provided in Section
12(b) of this Agreement, such service to become effective five days after such
mailing;
23
(d) Except as set forth in subsections (a), (b) and (c) above,
nothing in this Section 13 shall affect the right of any person to serve legal
process in any other manner permitted by law or affect the right of any person
to bring any action or proceeding against the Company or any Guarantor or their
properties in the courts of other jurisdictions.
14. PARTIES. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters, the Independent Underwriter, and the
Company and the controlling persons, directors, officers, employees and agents
referred to in Section 7 and 8, and their respective successors and assigns, and
no other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any
provision herein contained. The term "successors and assigns" shall not include
a purchaser, in its capacity as such, of Notes from any of the Underwriters.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
17. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
18. TIME IS OF THE ESSENCE. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
19. INDEPENDENT UNDERWRITER. (a) The Company hereby confirms its
engagement of the services of the Independent Underwriter as, and the
Independent Underwriter hereby confirms its agreement with the Company to render
services as, a "qualified independent underwriter" within the meaning of Section
(b)(15) of Rule 2720 with respect to the offering and sale of the Notes.
(b) The Independent Underwriter hereby represents and warrants to,
and agrees with, the Company and the Underwriters that with respect to the
offering and sale of the Notes as described in the Prospectus:
(i) The Independent Underwriter constitutes a "qualified
independent underwriter" within the meaning of Section (b)(15) of Rule 2720;
(ii) The Independent Underwriter has participated in the
preparation of the Registration Statement and the Prospectus and has exercised
the usual standards of "due diligence" in respect thereto;
24
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act specifically
including those inherent in Section 11 thereof;
(iv) Based upon (A) a review of the Company, including an
examination of the Registration Statement, information regarding the earnings,
assets, capital structure and growth rate of the Company and other pertinent
financial and statistical data, (B) inquiries of and conferences with the
management of the Company and its counsel and independent public accountants
regarding the business and operations of the Company, (C) consideration of the
prospects for the industry in which the Company competes, estimates of the
business potential of the Company, assessments of its management, the general
condition of the securities markets, market prices of the capital stock and debt
securities of, and financial and operating data concerning, companies believed
by the Independent Underwriter to be comparable to the Company with debt
securities of maturity and seniority similar to the Notes, and (D) such other
studies, analyses and investigations as the Independent Underwriter has deemed
appropriate, and assuming that the offering and sale of the Notes is made as
contemplated herein and in the Prospectus, the Independent Underwriter
recommends, as of the date of the execution and delivery of this Agreement, that
the yield to worst on the Notes be not less than 7.066% (corresponding to an
initial public offering price of the Notes of 104.000% of par, plus accrued
interest, assuming a settlement on April 22, 2003), which minimum yield should
in no way be considered or relied upon as an indication of the value of the
Notes; and
(v) Subject to the provisions of Section 6 hereof, the
Independent Underwriter will furnish to the Underwriters on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect of clauses (i) through (iv) above.
(c) The Independent Underwriter hereby agrees with the Company and
the Underwriters that, as part of its services hereunder, in the event of any
amendment or supplement to the Prospectus, the Independent Underwriter will
render services as a "qualified independent underwriter" within the meaning of
Section (b)(15) of Rule 2720 with respect to the offering and sale of the Notes
as described in the Prospectus as so amended or supplemented that are
substantially the same as those services being rendered with respect to the
offering and sale of the Notes as described in the Prospectus (including those
described in subsection (b) above).
(d) The Company, the Underwriters and the Independent Underwriter
agree to comply in all material respects with all of the requirements of Rule
2720 applicable to them in connection with the offering and sale of the Notes.
The Company agrees to cooperate with the Underwriters and the Independent
Underwriter to enable the Underwriters to comply with Rule 2720 and the
Independent Underwriter to perform the services contemplated by this Agreement.
(e) The Company and the Independent Underwriter agree that the
Independent Underwriter will provide its services in its capacity as Independent
25
Underwriter hereunder without compensation other than such compensation that the
Independent Underwriter may receive as an Underwriter hereunder.
(f) The Independent Underwriter hereby consents to the references to
it as set forth under the caption "Underwriting" in the Prospectus and in any
amendment or supplement thereto made in accordance with Section 4 hereof.
[signature page follows]
26
If the foregoing correctly sets forth the understanding
between you and the Company, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement among
us. It is understood that your acceptance of this letter on behalf of each of
the Underwriters is pursuant to the authority set forth in a form of Agreement
among Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
IRON MOUNTAIN INCORPORATED
By: /s/ C. Richard Reese
-------------------------------------------------
Name: C. Richard Reese
Title: Chairman and Chief Executive Officer
COMAC, INC.
DSI TECHNOLOGY ESCROW SERVICES, INC.
IRON MOUNTAIN GLOBAL, INC.
IRON MOUNTAIN INFORMATION MANAGEMENT, INC.
MOUNTAIN REAL ESTATE ASSETS, INC.
By: /s/ C. Richard Reese
-------------------------------------------------
Name: C. Richard Reese
Title: Sole Director
IRON MOUNTAIN GLOBAL, LLC
By: Iron Mountain Global, Inc., its sole member
By: /s/ C. Richard Reese
-------------------------------------------------
Name: C. Richard Reese
Title: Sole Director
IRON MOUNTAIN BUSINESS TRUST #1
By: /s/ C. Richard Reese
-------------------------------------------------
Name: C. Richard Reese
Title: Trustee
By: /s/ John F. Kenny, Jr.
-------------------------------------------------
Name: John F. Kenny, Jr.
Title: Trustee
By: /s/ Garry B. Watzke
-------------------------------------------------
Name: Garry B. Watzke
Title: Trustee
Accepted as of the date first above written
BEAR, STEARNS & CO. INC.
By: /s/ Charles Diao
-----------------------------------------------
Name: Charles Diao
Title: Senior Managing Director
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
-----------------------------------------------
Name: Goldman, Sachs & Co.
Title:
J.P. MORGAN SECURITIES INC.
By: /s/ Timothy B. Donahue
-----------------------------------------------
Name: Timothy B. Donahue
Title: Vice President
LEHMAN BROTHERS INC.
By: /s/ Michael A. Goldberg
-----------------------------------------------
Name: Michael A. Goldberg
Title: Managing Director
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Andrew McCarthy
-----------------------------------------------
Name: Andrew McCarthy
Title: Director
WILLIAM BLAIR & COMPANY, L.L.C.
By: /s/ Christine N. Evans Kelly
-----------------------------------------------
Name: Christine N. Evans Kelly
Title: Principal
BNY CAPITAL MARKETS, INC.
By: /s/ Bennett Leichman
-----------------------------------------------
Name: Bennett Leichman
Title: Vice President
FLEET SECURITIES, INC.
By: /s/ Robert Hornstein
-----------------------------------------------
Name: Robert Hornstein
Title: Director
SCOTIA CAPITAL (USA) INC.
By: /s/ Steven A. Janicek
-----------------------------------------------
Name: Steven A. Janicek
Title: Director
WACHOVIA SECURITIES, INC.
By: /s/ Rit N. Armin
-----------------------------------------------
Name: Rit N. Armin
Title: Vice President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
BEAR, STEARNS & CO. INC.
Acting as Independent Underwriter
By: /s/ Charles Diao
-----------------------------------------------
Name: Charles Diao
Title: Senior Managing Director
SCHEDULE I
AGGREGATE PRINCIPAL AGGREGATE PURCHASE
AMOUNT OF NOTES PRICE OF NOTES TO BE
NAME OF UNDERWRITER TO BE PURCHASED PURCHASED
Bear, Stearns & Co. Inc. $ 120,000,000 $ 123,136,000
Goldman, Sachs & Co. $ 30,000,000 $ 30,784,000
J.P. Morgan Securities Inc. $ 30,000,000 $ 30,784,000
Lehman Brothers Inc. $ 30,000,000 $ 30,784,000
Banc One Capital Markets, Inc. $ 15,000,000 $ 15,392,000
William Blair & Company, L.L.C. $ 15,000,000 $ 15,392,000
BNY Capital Markets, Inc. $ 15,000,000 $ 15,392,000
Fleet Securities, Inc. $ 15,000,000 $ 15,392,000
Scotia Capital (USA) Inc. $ 15,000,000 $ 15,392,000
Wachovia Securities, Inc. $ 15,000,000 $ 15,392,000
Total...................... ===================== ==============
$ 300,000,000 $ 307,840,000
S-I-1
SCHEDULE II
LIST OF GUARANTORS
NAME
Iron Mountain Information Management, Inc.
COMAC, Inc.
Iron Mountain Global, Inc.
Iron Mountain Global, LLC
DSI Technology Escrow Services, Inc.
Mountain Real Estate Assets, Inc.
Iron Mountain Business Trust #1
S-II-1
SCHEDULE III
"B"S IM US IM US
PERCENT PERCENT "NET" %
OWNERSHIP OWNERSHIP OWNERSHIP
ENTITY NAME ("A") OWNED BY ("B") OF "A" OF "B" OF "A"
USA
Upper Providence Venture I, L.P. Iron Mountain Information Management, Inc.
(1% GP, 54% LP) 55.00% 100.00% 55.00%
LATIN/SOUTH AMERICA
H. Investments Ltd. Iron Mountain South America Limited 100.00% 50.10% 50.10%
Sistemas de Archivo Corporativo
S.A. de R.L. de C.V. Iron Mountain Mexico S.A. de R.L de C.V. 50.10% 100.00% 50.10%
Sistemas de Archivo S.A.
de R.L. de C.V. Sistemas de Archivo Corporativo S.A. de R.L. de C.V. 100.00% 50.10% 50.10%
Sistemas de Archivo de Mexico S.A. de R.L. Sistemas de Archivo Corporativo S.A. de R.L. de C.V. 100.00% 50.10% 50.10%
Iron Mountain South America Limited Iron Mountain Cayman Limited 50.10% 100.00% 50.10%
IMSA Peru SRL Iron Mountain South America Limited 99.88% 50.10% 50.05%
Iron Mountain Peru S.A. IMSA Peru SRL 99.90% 50.0399% 50.00%
Iron Mountain Chile S.A. Iron Mountain South America Limited 55.00% 50.10% 27.56%
Iron Mountain do Brasil Emprenedimentos Ltda. Iron Mountain South America Limited 99.90% 50.10% 50.05%
Iron Mountain Argentina S.A. Iron Mountain South America Limited 80.01% 50.10% 40.09%
Box Security Iron Mountain South America Limited 99.90% 50.10% 50.05%
Iron Mountain do Brasil S.A. Iron Mountain do Brasil Emprenedimentos Ltda. 70.00% 50.05% 34.33%
Iron Mountain Chile S.A. (99.9%) and
Almacenaje Y Administracion de Archives LTDA Custodia de Documentos LTDA de Archives LTDA ((0.1%) 100.00% 50.10% 50.10%
Iron Mountain Chile S.A. (99.9% and
Custodia de Documentos LTDA de Archives LTDA Immobiliria E Inversiones LA Primavera LTDA (0.1%) 100.00% 50.10% 50.10%
Iron Mountain Chile S.A. (99.9%) and
Immobiliria E Inversiones LA Primavera LTDA Iron Mountain South America (0.1%) 100.00% 50.10% 50.10%
Movers & Files S.A. H. Investments 100.00% 50.10% 50.10%
EUROPE
Iron Mountain Europe Limited Iron Mountain Group (Europe) Limited 50.10% 100.00% 50.10%
TM 1177 Ltd. Iron Mountain Group (Europe) Limited 100.00% 100.00% 100.00%
Iron Mountain (UK) Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Arcus Data Security, Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
The Document Storage Company Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Iron Mountain Scotland (Holdings) Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Iron Mountain Scotland Limited Iron Mountain Scotland (Holdings) Limited 100.00% 50.10% 50.10%
Iron Mountain Ireland (Holdings) Ltd. Iron Mountain Holdings (Europe) Limited 100.00% 50.10% 50.10%
Iron Mountain Ireland Ltd. Iron Mountain Ireland (Holdings) Ltd. 100.00% 50.10% 50.10%
JAD 93 Limited Iron Mountain Scotland (Holdings) Limited 100.00% 50.10% 50.10%
Document and Information Management
Services Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Kestrel Data Services Limited Iron Mountain (UK) Limited 100.00% 50.10% 50.10%
Miller Data Management Limited Iron Mountain (UK) Limited 100.00% 50.10% 50.10%
Kestrel Data UK Limited Kestrel Data Services Limited 100.00% 50.10% 50.10%
Britannia Data Management Ltd. Kestrel Data UK Limited 100.00% 50.10% 50.10%
Kestrel Reprographics Limited Kestrel Data UK Limited 100.00% 50.10% 50.10%
Datavault Holdings Limited (65.97%,
Iron Mountain Europe Limited (28.12%),
Datavault Limited Silver Sky Limited (5.9%) 100.00% 50.10% 50.10%
Silver Sky Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Datavault Holdings Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Datavault Northwest Limited Datavault Limited 100.00% 50.10% 50.10%
Datavault Southwest Limited Datavault Limited 100.00% 50.10% 50.10%
Iron Mountain Deutschland GmbH Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Archive Services Limited Iron Mountain (UK) Limited 100.00% 50.10% 50.10%
Jones and Crossland Limited Archive Services Limited 100.00% 50.10% 50.10%
Iron Mountain Holdings (Europe) Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Document and Information Management
Limited (99.9%) and
Iron Mountain Holdings (France) SNC Miller Data Management Limited (0.1%) 100.00% 50.10% 50.10%
Iron Mountain (France) S.A. Iron Mountain Holdings (France) S.n.c. 100.00% 50.10% 50.10%
Archivage Actif Group
Iron Mountain SAS Iron Mountain (France) S.A. 100.00% 50.10% 50.10%
FIME S.A. Iron Mountain (France) S.A. 100.00% 50.10% 50.10%
Memogarde S.A. FIME S.A. 100.00% 50.10% 50.10%
Societe Civile Immobiliere du Chemin
Cornillon FIME S.A. 100.00% 50.10% 50.10%
Iron Mountain Espana S.A. Iron Mountain Holdings (Europe) Limited 100.00% 50.10% 50.10%
Innovator Projects, S.A. Iron Mountain Holdings (Europe) Limited 100.00% 50.10% 50.10%
Iron Mountain Holdings (Europe) Limited (36.8%) and
Datavault S.A. Innovator Projects, S.A. (63.2%) 70.80% 50.10% 35.47%
Datavault, S.A. (99.98%),
Innovator Projects, S.A. (0.1%),
Iron Mountain Iberica, SL Iron Mountain Holdings (Europe) Limited (0.1%) 100.00% 50.10% 50.10%
Schedule III - 1
Annex I - 3
ANNEX I
FORM OF OPINION OF COMPANY'S OUTSIDE COUNSEL
Each of the Guarantors (i) has been duly incorporated or formed, (ii)
is validly existing as a corporation, limited liability company or Massachusetts
statutory business trust, (iii) is in good standing under the laws of its
jurisdiction of incorporation or formation and (iv) has the corporate, limited
liability company or statutory business trust power and authority required to
carry on its business as it is described in the Registration Statement and the
Prospectus.
The Company is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
All of the issued and outstanding shares of capital stock of, or other
ownership interests in, each of the Guarantors have been duly and validly
authorized and issued and are fully paid and non-assessable, and are, to our
knowledge, owned beneficially by the Company or its subsidiaries, free and clear
of any perfected security interest or adverse claim, except to the extent
described in the Prospectus or as would not be material to the business,
prospects, financial conditions or results of operations of the Company and its
subsidiaries, taken as a whole.
The Indenture has been duly authorized by all necessary corporate,
limited liability company or statutory business trust, as the case may be,
action of the Guarantors and, when the Notes are executed and authenticated in
accordance with the provisions of the Indenture and delivered to the
Underwriters against payment therefor as provided by the Underwriting Agreement,
the Notes and the Guarantees will be entitled to the benefits of the Indenture,
and will be valid and binding obligations of the Company and the Guarantors,
respectively, enforceable in accordance with their terms.
The Underwriting Agreement has been duly delivered by the Company and
duly authorized, executed and delivered by the Guarantors.
The Indenture has been duly delivered by the Company and duly
authorized, executed and delivered by the Guarantors and is a valid and binding
agreement of the Company and the Guarantors enforceable in accordance with its
terms.
The statements under the "Description of the Notes," "Material United
States Federal Income Tax Considerations" and "Underwriting" in the Prospectus,
as amended or supplemented through the date hereof, insofar as such statements
constitute a summary of legal matters, documents or proceedings referred to
therein, fairly present the information so summarized with respect to such legal
matters, documents and proceedings.
Annex I - 1
To our knowledge, no holder of any securities of the Company has the
right to require registration of any security of the Company in connection with
the filing of the Registration Statement or the issuance of the Notes.
The execution, delivery and performance of the Underwriting Agreement,
the Indenture and the Notes, the performance of the Guarantees, and compliance
by the Company and the Guarantors with all the provisions thereof and the
consummation of the transactions contemplated thereby do not require any
consent, approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (or pursuant to any consent
decree known to us by which the Company or a Guarantor is bound), and do not
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws or comparable organizational documents of
the Company or any of the Guarantors or any agreement filed as an exhibit to the
Registration Statement or the Company's Annual Report on Form 10-K for the year
ended December 31, 2002 (the "Annual Report") or any other agreement or other
document known to us under which the Company or any of the Guarantors has
outstanding indebtedness for money borrowed in excess of $4,000,000, or violate
or conflict with any laws, administrative regulations or rulings or, to our
knowledge, court decrees applicable to the Company, any of the Guarantors or
their respective property.
To our knowledge (A) no legal or governmental proceedings are pending
or threatened to which the Company or any of the Guarantors is a party or to
which any of their respective property is subject that are required to be
described in the Prospectus and are not so described and (B) no contract or
other document is required to be described in the Prospectus or filed as an
exhibit to the Registration Statement that is not so described or filed.
Neither the Company nor any Guarantor is now, nor immediately after the
offering of the Notes as described in the Prospectus will be, an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, or is or will be subject to
registration under the Investment Company Act.
The Registration Statement has become effective under the Act, and, to
our knowledge, no stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose are pending before or
threatened by the Commission. Any required filing of the Prospectus pursuant to
Rule 424 under the Act has been made in accordance with said Rule 424. The
Indenture has been duly qualified under the Trust Indenture Act.
The Registration Statement and the Prospectus and any supplements or
amendments thereto (except for (i) the financial statements and the notes
thereto and the schedules and other financial data included or incorporated by
reference therein, and (ii) the part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) of the Trustee under the
Trust Indenture Act, as to which we express no opinion), as of their respective
effective dates or issue dates, complied as to form in all material respects
with the requirements of the Act.
Annex I - 2
The Annual Report (except for the financial statements and the notes
thereto and the schedules and other financial data included or incorporated by
reference therein, as to which we express no opinion) complied as to form when
filed with the Commission in all material respects with the requirements of the
Exchange Act.
Such opinion shall also recite that:
In the course of the Company's preparation of the Registration Statement and the
Prospectus, we have participated in conferences with officers and other
representatives of the Company, counsel for the Underwriters, representatives of
the independent public accountants for the Company, and you, at which the
contents of the Registration Statement and Prospectus and related matters were
discussed and, although we are not passing upon, and do not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus and have not
made any independent check or verification thereof (except as set forth in
paragraph (vii)), on the basis of the foregoing, we advise you that (except as
to (i) the financial statements, schedules and other financial data included in
the Registration Statement or the Prospectus, and (ii) that part of the
Registration Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act, as to which you have not asked us to express, and
as to which we do not express, any views) no facts have come to our attention
that would lead us to believe that (x) the Registration Statement (including the
documents incorporated by reference therein), as of the time it became effective
under the Act, as of March 21, 2003 at the time of filing the Annual Report, or
on the date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or (y) the
Prospectus (including the documents incorporated by reference therein), at the
time it was first provided to the Underwriters for use in connection with the
offering of the Notes or at the date hereof, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
Annex I - 3
ANNEX II
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
(i) the statements under the captions "Item 11. Executive
Compensation" and "Item 13. Certain Relationships and Related Transactions" in
the Company's Annual Report on Form 10-K for the year ended December 31, 2002
and under the caption "Executive Compensation" in the Company's Notice of Annual
Meeting and Proxy Statement dated April 17, 2003 incorporated by reference in
the Prospectus, as amended or supplemented, insofar as such statements
constitute a summary of legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such legal
matters, documents and proceedings;
(ii) the execution, delivery and performance of the Underwriting
Agreement, the Indenture, the Notes and the Guarantees and compliance by the
Company and the Guarantors with all the provisions thereof and the consummation
of the transactions contemplated thereby do not require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body (except as such may be required under the
securities or Blue Sky laws of the various states or jurisdictions outside the
United States), and will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws or comparable
organizational documents of the Company or any of its subsidiaries or any
agreement, indenture or other instrument to which it or any of its subsidiaries
is a party or by which it or any of its subsidiaries or their respective
property is bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company, any of its
subsidiaries or their respective property;
(iii) I do not know of (A) any legal or governmental proceeding
pending or threatened to which the Company or any of its subsidiaries is a party
or to which any of their respective property is subject which is required to be
described in the Prospectus and is not so described, or (B) any contract or
other document which is required to be described in the Prospectus or filed as
an exhibit to the Registration Statement and is not so described or so filed;
(iv) to my knowledge, neither the Company nor any of its
subsidiaries is in violation of its respective charter or by-laws or comparable
organizational documents and, to my knowledge, neither the Company nor any of
its subsidiaries is in default in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or other evidence of
indebtedness or in any other agreement, indenture or instrument material to the
conduct of the business of the Company and its subsidiaries, taken as a whole,
to which the Company or any of its subsidiaries is a party or by which it or any
of its subsidiaries or their respective properties are bound;
(v) all leases to which the Company or any of its subsidiaries is a
party relating to real property in Massachusetts or California are valid and
binding and no default has occurred or is continuing thereunder which might
result in any material adverse change in the business prospects, financial
condition or results of operations of
Annex II - 1
the Company and its subsidiaries taken as a whole, and the Company and its
subsidiaries enjoy peaceful and undisturbed possession under all such leases to
which any of them is a party as lessee with such exceptions as do not materially
interfere with the use made thereof by the Company or such subsidiary; and
(vi) to my knowledge, the Company and each of its subsidiaries has
such permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("Permits"), including without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and operate its
respective properties and to conduct its respective business in the manner
described in the Prospectus; to my knowledge, the Company and each of its
subsidiaries has fulfilled and performed all of its material obligations with
respect to such Permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or would result
in any other material impairment of the rights of the holder of any such Permit,
except as in each case as would not, singly or in the aggregate, have a material
adverse effect (financial or otherwise) on the Company and its subsidiaries,
taken as a whole and, except as described in the Prospectus, such Permits
contain no restrictions that materially interfere with the business or
operations of the Company or any of its subsidiaries as currently conducted.
Such opinion shall also recite that:
I assisted in collecting information requested by your counsel and outside
counsel to the Company and responded to inquiries concerning the Company and its
subsidiaries raised by such counsel, and I have reviewed the Registration
Statement and the Prospectus; although except as expressly set forth herein, I
am not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus, no facts have come to my attention that would lead
me to believe that (except as to (i) financial statements, schedules and other
financial data contained therein and (ii) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under the
Trust Indenture Act, as to which I express no view), (x) the Registration
Statement (including the documents incorporated by reference therein), as of the
time it became effective under the Act, as of March 21, 2003 at the time of
filing the Annual Report, or on the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or (y) the Prospectus (including the documents
incorporated by reference therein), at the time it was first provided to the
Underwriters for use in connection with the offering of the Notes or at the date
hereof, included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Annex II - 2
ANNEX III
FORM OF OPINION OF SPECIAL PENNSYLVANIA COUNSEL TO THE COMPANY
(i) The Company is a corporation duly incorporated and validly
subsisting under the laws of the Commonwealth of Pennsylvania and has the
corporate power to own, lease and operate its properties and to conduct its
business as described in the Prospectus, to execute, deliver an perform its
obligations under the Underwriting Agreement and the Indenture and to consummate
the transactions contemplated by the Underwriting Agreement and by the
Prospectus.
(ii) The Underwriting Agreement and the Indenture have been duly
executed by the Company.
(iii) The execution, delivery and performance of the Underwriting
Agreement, the Indenture and the Note, and the consummation of the transactions
contemplated therein, have been duly authorized by all necessary corporate
action on the part of the Company and will not (i) violate the provisions of the
Articles of Incorporation or Bylaws of the Company or (ii) violate any present
statute, rule or regulation promulgated by the Commonwealth of Pennsylvania
which in our experience is normally applicable both to general business
corporations which are not engaged in regulated business activities and to
transactions of the type contemplated by the Registration Statement, the
Prospectus, the Indenture, the Note and the Underwriting Agreement
(collectively, the "Law").
(iv) The statements under the captions "Description of Capital
Stock" and "Description of Certain Provisions of Pennsylvania Law and Our
Articles of Incorporation and ByLaws" in the Prospectus and "Item. 15.
Indemnification of Directors and Officers" in the Registration Statement have
been reviewed by us, and insofar as such statements constitute summaries of
certain provisions of the Articles of Incorporation or Bylaws of the Company,
statutes, rules, regulations or statements of Law, they constitute fair
summaries thereof.
(v) No consent or approval of, or notice to or filing with, any
governmental authority or agency of the Commonwealth of Pennsylvania under any
provision of applicable Law is required by the Company in connection with the
execution and delivery of the Indenture or the issuance of the Note pursuant to
the Indenture, or the offer and sale of the Note pursuant to the Underwriting
Agreement, except those already obtained or made or those described in the
Prospectus.
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