Exhibit 10.8 Asset Purchase and Sale Agreement dated as of December 1, 2000 by
and between National Archives, Inc. and Iron Mountain Records Management, Inc.
ASSET PURCHASE AND SALE AGREEMENT
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This Agreement dated this 1st day of December, 2000, between Iron Mountain
Records Management, Inc., a Delaware corporation ("Buyer"), and National
Archives, Inc., a Pennsylvania corporation ("Seller").
RECITALS
A. Seller operates a magnetic media and hard copy records offsite storage
business (the "Business") at its facility at 00 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (the "Facility").
B. Seller wishes to sell and assign its customer contracts for the
Business, and all correspondence, documents and rights related to such
contracts, together with certain other assets related to the Business, to Buyer,
and Buyer wishes to purchase and acquire such assets, on the terms and
conditions herein stated.
NOW, THEREFORE, Buyer and Seller hereby agree as follows:
1. Sale and Purchase. Seller hereby agrees to sell, transfer, convey
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and assign to Buyer, and Buyer agrees to purchase, pay for and acquire from
Seller, the following assets (the "Subject Assets"):
(a) all of Seller's contracts with customers for storage of such
customers' records (the "Customer Contracts"), together with
all of Seller's records, correspondence and files (including
computer inventories and location records) related thereto;
(b) accounts receivable derived from the Business and
outstanding as of the Effective Date (as hereinafter
defined);
(c) the server resident with the warehouse inventory, and owned
and licensed computer programs and software used in the
Business;
(d) deposits related to operation of the Business, adjusted pro
rata in accordance with Section 3(b)(i) if applicable; and
(e) noncompetition agreements for the benefit of the Business.
The following assets of Seller are excluded from the transaction:
(i) cash;
(ii) any personal property not used in the Business; and
(iii) racking used in the Business.
2. Price.
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(a) As full and complete consideration for the Subject Assets,
Buyer shall pay Seller the sum of One Hundred Ninety Five Thousand Five Hundred
Dollars ($195,500) (the "Base Price"), subject to adjustment as provided in
Section 2(b) and Section 3(b).
(b) If and to the extent that aged accounts receivable
outstanding under 90 days as of the Effective Date is less than $25,000, the
Base Price shall be reduced an amount equal to such shortfall.. Invoices issued
with respect to storage to be provided in December, 2000 (or periods after
December, 2000) will not be considered outstanding as of the Effective Date.
Invoices issued with respect to services provided in November, 2000 as invoiced
on December 1, 2000 will be considered outstanding as of the Effective Date.
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3. Payment of Purchase Price.
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(a) On the Closing Date, One Hundred Fifteen Thousand Five
Hundred Dollars ($115,500) of the Purchase Price, adjusted as provided in
Section 2(b) and Section 3(b)(i), will be paid to Seller by wire transfer of
immediately available funds to an account designated by Seller not less than two
business days prior to the Closing Date. The remaining Eighty Thousand Dollars
($80,000) of the Purchase Price (the "Holdback"), will be paid to Seller
according to Section 3(b)(ii).
(b) The Purchase Price shall be subject to the following
adjustments in addition to the adjustment described in Sections 2(b):
(i) The Purchase Price shall be reduced by an amount equal
to customer payments received by Seller prior to the Closing Date in respect of
storage or services to be provided after the Closing Date other than the
$7,728.00 prepaid by Xxxxx Xxxxxxxx for storage to be performed for the period
of 12/1/2000 through 3/31/2001, which shall be reflected as a credit amount in
the accounts receivable balance required in Section 2(b).
(ii) If and to the extent that average monthly recurring
revenues for the Business for the two months following the Effective Date (the
"Test Period") are less than $275,000 on an annualized basis (the "Revenue
Calculation"), then the Base Price will be reduced by the amount of shortfall
multiplied by 1.3. Such product shall be deducted from the Holdback, and the
remainder of the Holdback, if any, will be paid to Seller on or before February
1, 2001. Any customer having given notice of its intent to terminate its records
management and storage services contract before or during the Test Period will
not be included in the Revenue Calculation other than any customers of Seller
which became customers of Buyer between November 7, 2000 and the closing date.
Revenues of $1,932 per month related to the prepaid storage for Seller's
customer Xxxxx Xxxxxxxx and revenues related to First Chesapeake (provided such
customer has signed a contract with Buyer) shall be included in the Revenue
Calculation related to the Test Period. There shall be no reduction in the
portion of the Holdback payable to Seller to the extent the revenue shortfall is
due to customer terminations caused by (i) Buyer's increasing prices or (ii)
poor service by Buyer. The reduction in the Purchase Price will not exceed the
Holdback amount. Recurring records management revenues shall not include
abnormal levels of permanent removal charges or revenues from customers which
notify Buyer during the Test Period that they intend to terminate use of Buyer's
services. The Base Price, as so adjusted, is referred to herein as the "Purchase
Price".
4. Limited Assumption of Liabilities. Buyer shall not assume any
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obligations of the Business or Seller of any kind other than the following:
(a) post-closing performance obligations under Customer
Contracts;
(b) the Lease Agreement with regard to the Facility entered into
by Buyer and Oregon Avenue Associates, Inc.; and
(c) all expenses associated with operation of the Business,
including but no limited to Seller employee costs (pursuant
to paragraph 8 hereof), vehicle rental and operating
expenses, supplies and materials, utilities, insurances
(excluding property insurance), and other reasonable
out-of-pocket costs of operating the Business, which shall
be reimbursed monthly within 14 days of Buyer submission of
an itemized schedule of expenses to Seller.
5. Representations and Warranties. Seller hereby represents and
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warrants to Buyer as follows:
(a) No consents or approvals, other than the consent of
customers to assignment of their contracts to Buyer, are required under any
loan, credit or other agreement by which Seller is bound or affected prior to
carrying out the transactions contemplated by this Agreement.
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(b) Seller owns all the Subject Assets free and clear of
all liens, security interests and other encumbrances. At the Closing Buyer will
receive good and clear title to all the Subject Assets, subject to no liens,
security interests or other encumbrances.
(c) All financial information related to the Business which
has been provided to Buyer by Seller (including information related to customer
account activity and accounts receivable aging) is true, correct and complete in
all material respects.
(d) Seller's invoiced amounts from the Business were not
less than $22,710 for the monthly invoicing cycle issued at November 1, 2000.
(e) Seller's inventory system permits Seller to access and
locate customers' cartons promptly and efficiently.
(f) Seller has all material permits and licenses necessary
to operate the Business in the Facility.
(g) Seller has full right and authority to transfer and
sell the Subject Assets to Buyer.
(h) Seller has performed all storage and services for
clients which it has agreed to perform prior to the Closing Date or for which it
has been paid (except for prepayments for which an adjustment is being made
pursuant to Section 3(b)(i)).
6. Real Estate. At closing, Buyer and Oregon Avenue Associates,
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Inc. shall have entered into a lease for the Facility substantially in the form
of Exhibit 6(a) for a period ending seven (7) months after the Effective Date.
The lease payment for the approximately 50,000 square feet of space will be
$8,500 per month gross and shall be paid in full at close.
7. Other Agreements.
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(a) Seller shall, except as required by this Agreement,
operate the Business in the normal course between the date hereof and the
Closing Date. Buyer will use reasonable efforts to retain in effect all Customer
Contracts until the Test Period ends.
(b) Promptly after the Closing, Buyer shall commence a
process of relocating customers' cartons to Buyer's facilities. In the course of
relocating customers' cartons, Buyer shall create an inventory of all cartons
moved, and shall provide a copy of such inventory to Seller for the written
acknowledgement of Xxxxx Xxxx. Such inventory, together with an inventory of
customers' cartons held by customers on temporary retrieval, shall be conclusive
evidence of the cartons for which Buyer has become responsible under the
Customers' Contracts, except to the extent that Seller identifies or locates
cartons reflected in Seller's inventory which are not on Buyer's initial
inventory.
8. Employees. Commencing with the Effective Date, Buyer will
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administer Seller's customer contracts, utilizing Seller's personnel. Seller
will make all employees who had participated in the Business prior to the
closing available to Buyer to assist in serving the customers during the
transition; provided, that if an employee of Seller (who participated in the
Business) terminates his or her employment with Seller, Seller shall not be
required to replace such employee with a new employee. Buyer will reimburse
Seller for its costs for such employees' time at their current pay rates plus
employee benefit costs accrued by Seller, including FICA and other benefits and
taxes, but excluding 401(k) plan contributions. Buyer will reimburse Seller for
employee expenses within 14 days after receipt of Seller's invoices therefor. As
an incentive for such employees, Seller shall offer them an extra two (2) weeks'
pay if they continue their employment through the full seven month transition
period, which bonus will be paid by Buyer. Buyer will not be obligated to offer
employment to any of Seller's employees, although it will have the right to
offer employment to any of Seller's employees that have participated in the
Business prior to closing. Any potential employee retention will be at the sole
discretion of Buyer and will be subject to further operational review. It will
be a condition precedent to Buyer's obligation to close that Seller's employee,
Xxxxx Xxxx, be available no less
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than 40 hours per week (excluding reasonable holiday, vacation and/or sick time)
to Buyer to assist in managing, customer interfaces, and operating the Business
for a minimum period of seven (7) months after the Closing Date. Buyer will
reimburse Seller for its costs for Xxxxx Xxxx'x time at his current pay rates
plus employee benefit costs accrued by Seller, including FICA and other benefits
and taxes, but excluding 401(k) plan contributions until either Buyer offers
employment to Xxxxx Xxxx and he accepts or Buyer gives Seller notice of no
longer requiring his services.
9. Closing Date. The "Closing Date" shall be December 4, 2000,
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effective as of December 1, 2000 (the "Effective Date").
10. Non-competition and Confidentiality Agreements. On the
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Closing Date, Seller and Xxxx Xxxxxxxxx shall each execute a Noncompetition and
Confidentiality Agreement in the form of Exhibits B and C hereto.
11. Conditions to Closing. Buyer's obligation to carry out the
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transactions contemplated by this Agreement shall be subject to the satisfaction
of the following conditions, unless waived by Buyer:
(a) Seller shall have complied with all of Seller's
covenants and agreements contained in this Agreement, and Seller's
representations and warrantees shall be true and correct on the Closing Date as
if stated on such date;
(b) Buyer shall have been satisfied that the Subject Assets
are free and clear of all liens, encumbrances and security interests;
(c) No suit, action or other proceeding or injunction shall
be threatened or pending before any court or other tribunal in which it is
sought to restrain or prohibit or obtain damages or other relief in connection
with this Agreement or the consummation of the transactions contemplated hereby;
(d) Buyer and Oregon Avenue Associates, Inc. shall have
executed the Lease Agreement for the Philadelphia, Pennsylvania facility; and
(e) Seller and Xxxx Xxxxxxxxx shall each have executed the
Noncompetition and Confidentiality Agreements.
12. No Requirement to Employ. Buyer will not be required to
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offer to employ any employees of Seller.
13. Communications. Buyer and Seller will work together to
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coordinate communications to customers to effect a smooth transition of
customers to Buyer. Similarly, Buyer and Seller will coordinate communications
to Seller's and Buyer's employees related to the transactions contemplated
hereby.
14. Indemnification.
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(a) Seller shall indemnify and hold harmless Buyer, its
successors and assigns, from and against any and all claims, liabilities,
obligations, damages, losses, costs and expenses whatsoever (including
reasonable attorney's fees and disbursements) arising out of or resulting from
any and all claims, liabilities, obligations, damages, losses, costs and
expenses, claimed or demanded by third parties and arising out of or resulting
from performance prior to the Effective Date of the Customer Contracts acquired
by Buyer pursuant to this Agreement and/or Seller's operation of the Business
prior to the Effective Date. Seller shall have no obligation to indemnify Buyer
with respect to post Effective Date events related to cartons, tapes, and/or
files transferred to Buyer's facility (the "Transferred Inventory"), as
evidenced by the inventory created during the move. The Buyer will provide the
Seller with notice of any indemnifiable claim as soon as reasonably possible
under the circumstances and will allow the Seller the opportunity to defend the
claim.
(b) Buyer, and its successors and assigns, shall indemnify
and hold harmless Seller, its successors and assigns, from and against any and
all claims, liabilities, obligations, damages, losses, costs and expenses
whatsoever (including reasonable attorney's fees and disbursements) arising out
of or resulting from any
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and all claims, liabilities, obligations, damages, losses, costs and expenses,
claimed or demanded by third parties and arising out of or resulting from
performance after the Effective Date of the Customer Contracts acquired by Buyer
pursuant to this Agreement and/or the Buyer's operation of the Business
following the Effective Date, in each case with respect to the Transferred
Inventory only. Buyer shall have no obligation to indemnify Seller with respect
to cartons, tapes, and/or files not transferred to Buyer's facility, as
evidenced by the inventory created during the move. The Seller will provide the
Buyer with notice of any indemnifiable claim as soon as reasonably possible
under the circumstances and will allow the Buyer the opportunity to defend the
claim.
15. Miscellaneous.
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(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, and the parties
hereby agree that they are subject to the exclusive jurisdiction of the federal
courts of the Commonwealth of Pennsylvania in respect of any rights, liabilities
or disputes arising hereunder.
(b) This Agreement may be amended only by a written
instrument signed by both parties.
(c) No waiver, release or other action hereunder shall be
enforceable unless signed by the party against which enforcement is sought; and
no such waiver, release or other action shall be effective with respect to more
than the specific instance in which it was granted unless the instrument
specifically so states.
(d) Sales tax and any other taxes imposed in respect of the
transactions contemplated by this Agreement shall be paid by the party which
customarily bears the economic burden thereof.
(e) This Agreement contains the entire agreement between
Buyer and Seller in respect of the subject matters hereof and supersedes all
other prior agreements, oral or written.
(f) All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if delivered by telecopier (with notice of
receipt), or if served personally on the party to whom notice is to be given; or
if delivered by overnight private carrier, on the date of delivery; or on the
third day after mailing if mailed to the party to whom notice is to be given by
first class mail, certified, postage prepaid, and properly addressed as
following:
To Seller: National Archives, Inc.
c/o First Chesapeake Financial Corporation
00 X. Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
Telecopier: (000) 000-0000
With a copy (which shall not constitute notice but which is nonetheless
required for notice) to:
Xxxxxx X. Xxxxxxxxx, III
Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx, LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
To Buyer:
Iron Mountain Records Management, Inc.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Vice President, Mergers and
Acquisitions
Telecopier: (000) 000-0000
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With a copy (which shall not constitute notice but which is nonetheless
required for notice) to:
Xxxxx X. Xxxxxx, Esq.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telecopier: (000) 000-0000
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written by officers hereunto duly authorized.
National Archives, Inc. Iron Mountain Records Management, Inc.
By By
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Name: Xxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Title: Vice President Mergers & Acquisitions
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