MASTER CONSTRUCTION AGENCY AGREEMENT
Dated as of May 22, 2001
between
IRON MOUNTAIN STATUTORY TRUST - 2001,
as Lessor
and
IRON MOUNTAIN RECORDS MANAGEMENT, INC.,
as Construction Agent
TABLE OF CONTENTS
PAGE
Article 1 DEFINITIONS......................................................1
1.1 Definitions; Interpretation......................................1
Article 2 APPOINTMENT AND DUTIES OF CONSTRUCTION AGENT.....................1
2.1 Appointment......................................................1
2.2 Construction Properties..........................................1
2.3 Term.............................................................2
2.4 Construction Documents...........................................2
2.5 Scope of Authority...............................................2
2.6 Covenants of the Construction Agent..............................3
2.7 Insurance........................................................4
2.8 Representations and Warranties of Construction Agent.............8
2.9 Indemnification During Construction Period.......................8
Article 3 THE IMPROVEMENTS.................................................9
3.1 Construction.....................................................9
3.2 Amendments; Modifications........................................9
3.3 Casualty and Condemnation.......................................10
3.4 Cost Over-Runs..................................................10
Article 4 PAYMENT OF FUNDS................................................10
4.1 Funding of Property Improvements Costs..........................10
Article 5 CONSTRUCTION AGENCY AGREEMENT EVENTS OF DEFAULT.................11
5.1 Construction Agency Agreement Events of Default.................11
5.2 Survival........................................................14
5.3 Remedies Cumulative; Waivers....................................14
5.4 Limitation on Recourse Liability................................14
Article 6 NO CONSTRUCTION AGENCY FEE......................................15
6.1 Lease as Fulfillment of Lessor's Obligations....................15
Article 7 MISCELLANEOUS...................................................15
7.1 Notices.........................................................15
7.2 Successors and Assigns..........................................15
7.3 GOVERNING LAW...................................................15
7.4 Amendments, etc.................................................15
7.5 Counterparts....................................................15
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TABLE OF CONTENTS
7.6 Severability....................................................15
7.7 Headings and Table of Contents..................................16
7.8 No Recourse.....................................................16
Annex I Form of Construction Documents Assignment
Exhibit A Form of Supplement to Master Construction Agency Agreement
Exhibit B Acceptable Insurance Exclusions
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MASTER CONSTRUCTION AGENCY AGREEMENT
MASTER CONSTRUCTION AGENCY AGREEMENT (this "AGREEMENT"), dated as of May
22, 2001, is entered into between IRON MOUNTAIN STATUTORY TRUST -- 2001, a
Connecticut statutory trust, as Lessor, and IRON MOUNTAIN RECORDS MANAGEMENT,
INC., a Delaware corporation, as Construction Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Lessor and the Construction Agent are parties to that
certain Master Lease and Security Agreement, dated as of the date hereof (the
"LEASE"), pursuant to which (i) the Lessee has leased from Lessor, and the
Lessor has leased to the Lessee, Lessor's interest in certain Properties
and (ii) the Lessee and the Lessor may in the future agree to the financing,
development and lease of certain other Properties; and
WHEREAS, subject to the terms and conditions hereof and with respect
to each Construction Property, (i) the Lessor desires to appoint the
Construction Agent as its sole and exclusive agent for the construction of the
Improvements in accordance with the Plans and Specifications for such
Construction Property and the Lease and this Agreement and (ii) the
Construction Agent desires, for the benefit of the Lessor, to cause the
Improvements to be constructed in accordance with the Plans and
Specifications for such Construction Property and the Lease and this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS; INTERPRETATION. Capitalized terms used but not
otherwise defined in this Agreement shall have the meanings specified in
APPENDIX 1 to the Lease, and the rules of interpretation set forth in
APPENDIX 1 to the Lease shall apply to this Agreement.
Article 2
APPOINTMENT AND DUTIES OF CONSTRUCTION AGENT
2.1 APPOINTMENT. Pursuant to and subject to the terms and conditions
set forth herein and in the Lease and the other Operative Documents, with
respect to each Construction Property, the Lessor hereby irrevocably
designates and appoints the Construction Agent as its exclusive agent for the
construction of the Improvements in accordance with the Plans and
Specifications for such Property, and the Construction Agent hereby
unconditionally accepts the designation and appointment as Construction
Agent.
2.2 CONSTRUCTION PROPERTIES. Each Construction Property will be
subjected to the terms of this Agreement upon the execution and delivery of a
Construction Agency Agreement Supplement on the Acquisition Date
therefor.
2.3 TERM. This Agreement shall commence on the date hereof and
shall terminate:
(a) as to any particular Construction Property, upon the first to
occur of:
(i) the completion of the Construction of such
Property, including completion of punch list items referred to in
SECTION 2.6(g);
(ii) payment by the Lessee of the Lease Balance for such
Property and the expiration of the Lease Term for such Property in accordance
with the terms and conditions of the Lease;
(iii) a Significant Casualty or a Significant Condemnation with
respect to such Property as provided in SECTION 19.3 of the Lease; and
(b) in its entirety, upon termination of this Agreement pursuant to
ARTICLE V.
2.4 CONSTRUCTION DOCUMENTS. The Construction Agent shall enter into
such agreements with architects and contractors as the Construction Agent
deems necessary or desirable for the completion of the Construction pursuant
hereto (the "CONSTRUCTION DOCUMENTS"); PROVIDED, HOWEVER, that no such
Construction Document shall limit or reduce in any way the Construction
Agent's duties and obligations under this Agreement. Contemporaneously
with the execution and delivery of the Construction Agency Agreement
Supplement for a Construction Property, the Construction Agent will execute
and deliver to the Lessor the Construction Documents Assignment.
2.5 SCOPE OF AUTHORITY.
(a) Subject to the terms, conditions, restrictions and
limitations set forth in the Operative Documents with respect to each
Construction Property, the Lessor hereby expressly authorizes the
Construction Agent, or any agent or contractor of the Construction Agent,
and the Construction Agent unconditionally agrees, for the benefit of the
Lessor, to take all action necessary or desirable for the performance and
satisfaction of all of the Construction Agent's obligations hereunder,
including:
(i) identify and assist with the acquisition of related
Improvements in accordance with the terms and conditions of the Lease
and the Plans and Specifications for such Property;
(ii) perform or cause to be performed all design and supervisory
functions and all engineering work related to the Construction to be
performed in connection with such Property;
(iii)negotiate and enter into all contracts or arrangements to
procure the equipment necessary to construct the Improvements to be
constructed on such Property on such terms and conditions as are customary and
reasonable in light of local standards and practices;
(iv) obtain or cause to be obtained all necessary permits,
licenses, consents, approvals and other authorizations, including those
required under Applicable Law, from all Governmental Authorities in
connection with the Construction to be performed in connection with such
Property and grant on behalf of the Lessor such easements as are necessary or
appropriate to effect such Construction or that otherwise would not have an
adverse effect on the value of any Property;
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(v) maintain all books and records with respect to the
Construction to be performed in connection with such Property; and
(vi) perform all of its obligations under the Construction
Documents relating to such Property and any other acts necessary in connection
with the acquisition of such Property and the construction and
development of the Improvements in accordance with the Plans and Specifications
for such Property.
(b) Subject to the terms of this Agreement and the other Operative
Documents, the Construction Agent may execute any of its duties under this
Agreement by or through agents, contractors, subcontractors, employees or
attorneys-in-fact.
(c) Subject to the terms and conditions of this Agreement and the
other Operative Documents, the Construction Agent shall have sole and
exclusive management and control over the construction means, methods,
sequences and procedures with respect to the Construction to be performed in
connection with such Property.
(d) Neither the Construction Agent nor any of its Affiliates or
agents shall enter into any contract which would, directly or indirectly,
impose any liability or obligation on the Lessor arising out of the Lessee's
actions or failures to act for which the Lessor is not indemnified by the
Lessee under the Lease or any of the other Operative Documents.
2.6 COVENANTS OF THE CONSTRUCTION AGENT. The Construction Agent
hereby covenants and agrees that it will, with respect to each Construction
Property subject to this Agreement:
(a) promptly commence the Construction of such Property
following the Acquisition Date therefor and prosecute the Construction
diligently and without interruption (subject only to delays caused by Force
Majeure Events) in accordance with the Plans and Specifications, the other
Construction Documents and all Requirements of Law and Insurance Requirements;
(b) notify the Lessor in writing not less than five (5) Business Days
after the occurrence of each Force Majeure Event;
(c) use its best efforts to minimize the disruption of and delays to
the construction process arising from Force Majeure Events;
(d) comply with all Applicable Law (including Environmental Laws)
relating to such Property during Construction of the Improvements;
(e) obtain, maintain and comply with the terms of all Governmental
Actions required for the Construction of the Improvements;
(f) cause all Liens (including, without limitation, Liens or claims
for materials supplied or labor or services performed in connection with the
construction of the Improvements), other than Permitted Liens, to be discharged;
(g) following the Substantial Completion of the Construction of such
Property, cause all outstanding punch list items with respect to such
Construction to be completed diligently and as promptly as practicable after the
date of Substantial Completion and, in any case, before the exercise of the
Remarketing Option for such Property;
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(h) use its best efforts to minimize or avoid damage or destruction
to the Improvements, prevent loss or deterioration to the materials stored at
the project site, and prevent injury to third Persons or property of third
Persons;
(i) enter into an EPC Construction Contract or GC Construction
Contracts, as the case may be, for such Property which conform to the
requirements of the Lease and furnish true and correct copies thereof to the
Lessor at or before the time required by the Lease;
(j) prepare or cause to be prepared and furnish to the Lessor at or
before the time required by the Lease true and correct copies of the Plans and
Specification and the Budget for such Property; and
(k) not amend the Construction Documents (including the EPC
Construction Contract or the GC Construction Contract, as the case may be), the
Plans and Specifications or the Budget for such Property except as permitted by
SECTION 3.2.
2.7 INSURANCE.
(a) INSURANCE BY THE CONSTRUCTION AGENT. The Construction Agent shall
procure and maintain in full force and effect for each Construction Property
during the Construction Period for such Construction Property insurance policies
with insurance companies having a Best Insurance Reports rating of "A-" or
better and a financial size category of "IX" or higher at the time of policy
issuance with limits and coverage provisions as set forth below.
GENERAL LIABILITY INSURANCE. Liability insurance on an occurrence basis
against claims filed anywhere in the United States and occurring in anywhere
in the United States for the Construction Agent's and Lessor's liability
arising out of claims for personal injury (including bodily injury and
death) and property damage. Such insurance shall provide coverage for
products/completed operations, blanket contractual, broad form property damage,
personal injury and independent contractors, with a $10,000,000 minimum
limit per occurrence for combined bodily injury and property damage. A maximum
deductible or self-insured retention of $25,000 per occurrence shall be
allowed with respect to each Property.
BUILDER'S RISK INSURANCE. Property damage insurance on an "all risk" basis
insuring the Construction Agent the Lessor and the Construction Agent, as
their interests may appear, including coverage against loss or damage from the
perils of earth movement (including earthquake, landslide, subsidence
and volcanic eruption), flood, and boiler and machinery accidents, and not
containing any exclusions other than those listed on EXHIBIT B.
(i) PROPERTY COVERED. The builder's risk policy shall provide
coverage for (A) the buildings, structures, machinery, equipment,
facilities, fixtures, supplies and other properties constituting a part of
the Improvements, (B) property of others in the care, custody or control of
the Construction Agent in connection with such Property, (C) all
preliminary works, temporary works and interconnection works and (D)
foundations and other property below the surface of the ground.
(ii) ADDITIONAL COVERAGES. The builder's risk policy shall
insure (A) the cost of preventive measures to reduce or prevent a loss in
an amount not less than $2,000,000, (B) inland transit with sub-limits
sufficient to insure the largest single shipment to or from any Property
site from anywhere within North America, (C) attorney's fees, engineering
and other consulting costs, and permit fees directly incurred in order to
repair or replace damaged insured
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property in a minimum amount of $1,000,000, (D) expediting expenses
(defined as extraordinary expenses incurred after an insured loss to make
temporary repairs and expedite the permanent repair of the damaged property
including the delayed startup coverage even if such expenses do not reduce
the delayed startup loss) in an amount not less than $1,000,000, (E)
off-site storage with sub-limits sufficient to insure the full replacement
value of any property or equipment not stored on the Property site and in
any event not less than the lower of $2,500,000 and 25% of the Maximum
Lease Balance for such Property, (F) the removal of debris with a sub-limit
not less than $1,000,000 and (G) pollution clean up and removal for a
sub-limit not less than $50,000.
(iii) SPECIAL CLAUSES. The builder's risk policy shall include
(A) a 72 hour clause in the case of storms and no such limit in the case of
flood and earthquake, (B) unintentional errors and omissions clause, (C) a
requirement that the insurer pay losses within thirty (30) days after
receipt of an acceptable proof or loss or partial proof of loss, (D) an
other insurance clause making this insurance primary over any other
insurance and (E) a clause stating that the policy shall not be subject to
cancellation by the insurer without thirty (30) days written notice to the
named insured and each additional insured (or ten (10) days notice, in the
case of non-payment of premium).
(iv) PROHIBITED EXCLUSIONS. The builder's risk policy shall not
contain any (A) coinsurance provisions, (B) exclusion for loss or damage
resulting from freezing or mechanical breakdown, (C) exclusion for loss or
damage covered under any guarantee or warranty arising out of an insured
peril or (D) exclusion for resultant damage caused by ordinary wear and
tear, gradual deterioration, normal subsidence, settling, cracking,
expansion or contraction, or faulty workmanship, design or materials.
(v) SUM INSURED. The builder's risk policy shall (A) be on a
completed value form, with no periodic reporting requirements, (B) insure
100% of the completed insurable value of the Improvements, (C) value losses
at replacement cost, without deduction for physical depreciation or
obsolesce and (D) insure loss or damage from earth movement and flood with
respect to each Property in an amount of not less than the Maximum Lease
Balance for such Property minus the Land Acquisition Cost for such
Property.
(vi) DEDUCTIBLE. The builder's risk policy shall have no
deductible greater than $25,000 per occurrence.
(vii) DELAYED STARTUP INSURANCE. Delayed startup coverage
insuring the Construction Agent the Lessor, as their interests may appear,
covering all of the Lessor's costs and expenses (including ground rent, all
Impositions and all Capitalized Interest and Capitalized Commitment Fees)
incurred as a result of loss or damage insured by the builder's risk
insurance resulting in a delay in completion of the Improvements beyond
their anticipated date of completion. Such insurance shall (A) have a
deductible of not greater than fifteen (15) days in the aggregate for all
occurrences during the Construction Period with respect to each
Construction Property, (B) have an indemnity period of not less than six
(6) months, (C) include an interim payments clause allowing for the
periodic payment of a claim pending final determination of the full claim
amount, (D) cover loss sustained when access to any Construction Property
site is prevented due to an insured peril at premises in the vicinity of
such Property site, (E) cover loss sustained due to the action of a public
authority preventing access to any Construction Property site due to
imminent or actual loss or destruction arising from an insured peril at
premises in the vicinity of such Property site, (F) not contain any form of
a coinsurance provision or include a waiver of such provision and (G) cover
loss sustained due to the accidental interruption or failure, caused by an
insured peril, of supplies of electricity, gas, sewers, water or
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telecommunication up to the terminal point of any utility supplier with
respect to any Construction Property site.
(viii) ENDORSEMENTS. All policies of liability insurance
required to be maintained by the Construction Agent shall be endorsed
as follows:
(A) To name the Lessor, the Trustee, FUNB (as defined in
the Trust Agreement), the Collateral Agent, the Administrative
Agent, the Lenders and the Equity Participants as additional
insureds;
(B) To provide a severability of interests and cross
liability clause except with respect to limits and deductibles;
(C) That the insurance shall be primary and not excess to
or contributing with any insurance or self-insurance maintained
by the Lessor.
(ix) WAIVER OF SUBROGATION. The Construction Agent hereby waives
any and every claim for recovery from the Lessor for any and all loss or
damage covered by any of the insurance policies to be maintained under this
Agreement to the extent that such loss or damage is recovered under any
such policy. If the foregoing waiver will preclude the assignment of any
such claim to the extent of such recovery, by subrogation (or otherwise),
to an insurance company (or other person), the Construction Agent shall
give written notice of the terms of such waiver to each insurance company
has issued, or which may issue in the future, any such policy of insurance
(if such notice is required by the insurance policy) and shall cause each
such insurance policy to be properly endorsed by the issuer thereof to, or
to otherwise contain one or more provisions that, prevent the invalidation
of the insurance coverage provided thereby by reason of such waiver.
(b) CONDITIONS.
(i) ADJUSTMENT OF LOSSES. Losses, if any, with respect to any
Improvements under any property damage policies required to be carried
under this Agreement shall be adjusted with the insurance companies,
including the filing of appropriate proceedings, as follows: (x) so long as
no Construction Agency Agreement Event of Default shall have occurred and
be continuing, and provided that the Construction Agent is required by the
Operative Documents, or has agreed, to repair the damage to the relevant
Construction Property, such losses shall be adjusted by the Construction
Agent with the consent of the Lessor, and (y) if any Construction Agency
Agreement Event of Default shall have occurred and be continuing, or if the
Construction Agent is not required to, and has not agreed, to repair the
damage to the relevant Construction Property, such losses shall be adjusted
solely by the Lessor. The party which shall be entitled to adjust losses
may appear in any proceeding or action to negotiate, prosecute, adjust or
appeal any claim for any award, compensation or insurance payment and shall
pay all expenses thereof. At such party's reasonable request, and at the
Construction Agent's sole cost and expense, the Construction Agent, and the
Lessor, as the case may be, shall participate in any such proceeding,
action, negotiation, prosecution or adjustment. The parties hereto agree
that this Agreement shall control the rights of the parties hereto in and
to any such award, compensation or insurance payment affecting the relevant
Construction Property during the Construction Period with respect thereto.
(ii) APPLICATION OF INSURANCE PROCEEDS. All proceeds of
insurance maintained pursuant to this SECTION 2.7 on account of any damage
to or destruction of the Improvements or any part thereof shall be paid
over to the Collateral Agent; PROVIDED that, except
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in the case of a Significant Casualty, if no Construction Agency
Agreement Event of Default shall have occurred, such funds shall be held by
the Collateral Agent in a segregated account and disbursed to the
Construction Agent to effect the repair of such Property.
(iii) ADDITIONAL INSURANCE. Any additional insurance obtained by
the Construction Agent or the Lessor shall provide that it shall not
interfere with or in any way limit the insurance described this SECTION 2.7
or increase the amount of any premium payable with respect to any insurance
described herein. The proceeds of any such additional insurance will be for
the account of the party maintaining such additional insurance.
(iv) CAPITALIZED PREMIUMS. All premiums and other costs and
fees that are due and payable with respect to the insurance required
hereunder shall be specifically itemized in the Budget prepared by the
Construction Agent for each Construction Property and shall be paid from
Fundings and capitalized and included in the Lease Balance for the
Construction Property to which the required coverage applies.
(v) POLICY CANCELLATION AND CHANGE. All policies of insurance
required to be maintained pursuant to this SECTION 2.7 shall be endorsed so
that if at any time they are canceled, or their coverage is materially
reduced (by any party including the insured) so as to affect the interests
of the Lessor or the Collateral Agent, such cancellation or material
reduction shall not be effective as to the Lessor and the Collateral Agent
for sixty (60) days, except for non-payment of premium which shall be for
ten (10) days, after receipt by the Lessor and the Collateral Agent of
written notice from such insurer of such cancellation or reduction.
(vi) MISCELLANEOUS POLICY PROVISIONS. All property damage and
delayed startup insurance policies (A) shall not include any annual or term
aggregate limits of liability or clause requiring the payment of additional
premium to reinstate the limits after loss except for insurance covering
the perils of flood and earth movement, (B) shall include the Lessor and
the Collateral Agent as named insureds as their interests may appear, and
(C) shall include a clause requiring the insurer to make final payment on
any claim within thirty (30) days after the submission of proof of loss and
its acceptance by the insurer.
(vii) SEPARATION OF INTERESTS. The builders risk policy shall
insure the interests of the Lessor regardless of any breach or violation by
the Construction Agent or any other Person of warranties, declarations or
conditions contained in such policy or any act or omission or negligence of
the Construction Agent or others.
(viii) ACCEPTABLE POLICY TERMS AND CONDITIONS. All policies of
insurance required to be maintained pursuant to this SECTION 2.7 shall
contain terms and conditions reasonably acceptable to the Lessor and the
Administrative Agent.
(ix) WAIVER OF SUBROGATION. All policies of insurance to be
maintained by the provisions of this SECTION 2.7 shall provide for waivers
of subrogation in favor of the Lessor.
(c) EVIDENCE OF INSURANCE. On or before the Acquisition Date
with respect to each Construction Property and on an annual basis at least ten
(10) days prior to each policy anniversary, the Construction Agent shall furnish
the Lessor and the Administrative Agent with certificates of insurance or
binders, in a form acceptable to the Lessor and the Administrative Agent,
evidencing all of the insurance required by the provisions of this SECTION 2.7.
Such certificates of insurance/binders shall be executed by each insurer or by
an authorized representative of each insurer where it is not practical for such
insurer to execute the certificate itself. Such certificates of
insurance/binders shall identify underwriters, the type of
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insurance, the insurance limits and the policy term and shall specifically list
the special provisions enumerated for such insurance required by this SECTION
2.7. Upon request, the Construction Agent will promptly furnish the Lessor and
the Administrative Agent with copies of all insurance policies, binders and
cover notes or other evidence of such insurance relating to the insurance
required to be maintained by the Construction Agent.
(d) REPORTS. Upon request of the Lessor, the Construction Agent shall
furnish the Lessor and the Administrative Agent with a certificate signed by a
representative of the risk management group of the Construction Agent stating
that the insurance then carried is in accordance with the terms of this SECTION
2.7. In addition, the Construction Agent will advise the Lessor and the
Administrative Agent in writing promptly of any default in the payment of any
premium and of any other act or omission on the part of the Construction Agent
which may invalidate or render unenforceable, in whole or in part, any insurance
being maintained by the Construction Agent pursuant to this SECTION 2.7.
(e) FAILURE TO MAINTAIN INSURANCE. In the event the Construction Agent
fails to take out or maintain the full insurance coverage required by this
SECTION 2.7, the Lessor, upon thirty (30) days' prior notice (unless the
aforementioned insurance would lapse within such period, in which event notice
should be given as soon as reasonably possible) to the Construction Agent of any
such failure, may (but shall not be obligated to) take out the required policies
of insurance and pay the premiums on the same. All amounts so advanced thereof
by the Lessor shall be deemed to be a Funding and shall be capitalized in the
Lease Balance of the relevant Construction Property.
(f) NO DUTY OF LESSOR TO VERIFY OR REVIEW. No provision of this
SECTION 2.7 or any provision of this Agreement shall impose on the Lessor, the
Collateral Agent or any other Person any duty or obligation to verify the
existence or adequacy of the insurance coverage maintained by the Construction
Agent, nor shall the Lessor or the Collateral Agent be responsible for any
representations or warranties made by or on behalf of the Construction Agent to
any insurance company or underwriter. Any failure on the part of the Lessor or
the Collateral Agent to pursue or obtain the evidence of insurance required by
this Agreement from the Construction Agent and/or failure of the Lessor or the
Collateral Agent to point out any non-compliance of such evidence of insurance
shall not constitute a waiver of any of the insurance requirements in this
Agreement.
2.8 REPRESENTATIONS AND WARRANTIES OF CONSTRUCTION AGENT. The
Construction Agent hereby represents and warrants to the Lessor as follows:
(a) LEGAL DESCRIPTION OF LAND. Set forth on SCHEDULE I to each
Construction Agency Agreement Supplement is a true and correct description of
the Land with respect to the Construction Property described on such
Construction Agency Agreement Supplement.
(b) BUDGET. The Budget for each Construction Property, as
amended from time to time in accordance with this Agreement, will (i) be
prepared with due care in accordance with prudent business practices and (ii)
show all costs and expenses that could reasonably be expected to be incurred to
effect the acquisition of the Land and the Construction of the Improvements
thereon (including contingencies, all ground rent payable during the
Construction Period under any Ground Lease, all Impositions in respect of the
Land and Improvements, all Transaction Expenses attributable to such Property
and all financing costs and premiums in respect of the required property damage
insurance coverage to be capitalized during the Construction Period for such
Property).
2.9 INDEMNIFICATION DURING CONSTRUCTION PERIOD. The Lessee will
indemnify, protect, defend, save and hold harmless each Indemnitee pursuant to
ARTICLE XXVII of the Lease for all Claims and Impositions relating to any
Construction Property; PROVIDED, HOWEVER, that, notwithstanding anything to
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the contrary in this Agreement or the other Operative Documents, during the
Construction Period for any Construction Property, the Lessee shall only be
required to indemnify, protect, defend, save and hold harmless such Indemnitee
pursuant to SECTION 27.1 and 27.3 of the Lease for Claims and Impositions
relating to a Construction Property to the extent such Claims or Impositions are
caused directly or indirectly by, or result directly or indirectly from, the
Construction Agent's actions or failure to act while in possession or control of
such Property. As used in this SECTION 2.9, "the Construction Agent's actions or
failure to act while in possession or control of such Property" includes any
action or failure to act on the part of the EPC Contractor, any other
subcontractors of the Construction Agent or any other Person permitted by the
Construction Agent to enter upon such property and, for purposes of this SECTION
2.9 the Construction Agent shall be deemed to be in possession and control of
such Property until the Lease Commencement Date for such Property.
ARTICLE 3
THE IMPROVEMENTS
3.1 CONSTRUCTION. The Construction Agent will cause the Improvements
located on each Construction Property to be constructed in accordance with the
Plans and Specifications for such Property, in compliance with all Requirements
of Law and Insurance Requirements, and otherwise in compliance with the
requirements of this Agreement, the Lease and the other Operative Documents.
The Construction Agent agrees that the Lease Balance with respect to any
Construction Property shall not exceed the Maximum Lease Balance
with respect to such Property.
3.2 AMENDMENTS; MODIFICATIONS. The Construction Agent may, subject to the
conditions, restrictions and limitations set forth herein and in the other
Operative Documents, at any time during the term hereof revise, amend
or modify the Plans and Specifications, the Budget and/or the Construction
Documents in respect of any Construction Property without the consent of the
Lessor; PROVIDED that:
(a) the Lessor's prior written consent will be required (except
to the extent that such revision, amendment or modification constitutes a
Required Modification) if (i) such revision, amendment or modification would
result in the Substantial Completion of the Construction of such Property
occurring after the Outside Completion Date for such Property, (ii) the
aggregate effect of such revision, amendment or modification, when taken
together with any previous or contemporaneous revisions, amendments or
modifications, would be to reduce the Fair Market Sales Value of such Property
upon completion of the Construction of such Property or (iii) such revision,
amendment or modification would materially change the suitability of the
Improvements for such Property for the purposes contemplated by the Lease;
(b) the Construction Agent shall not terminate any Construction
Document, or modify any provision of any Construction Document requiring
retainage, construction bonds, set completion dates or fixed or guaranteed
maximum prices, without the prior written consent of the Lessor;
(c) the Construction Agent shall promptly furnish to the Lessor
copies of all revisions, amendments and modifications to the Plans and
Specifications, the Budget, the EPC Construction Contract or the GC Construction
Contracts and, if requested by the Lessor, all other revisions, amendments and
modifications to any of the other Construction Documents;
(d) if such revision, amendment or modification results in a
change to any item of the Budget, the Construction Agent shall prepare and
deliver an amended Budget showing all Estimated Improvement Costs (after giving
effect to such revision, amendment or modification); and
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(e) the Lessor may not in any event revise, amend or modify the
Budget for any Construction Property to increase the total amount thereof to an
amount in excess of the Maximum Lease Balance for such Property.
3.3 CASUALTY AND CONDEMNATION. If, with respect to any Construction
Property at any time prior to the Lease Commencement Date for such
Property, there occurs a Casualty or the Lessor or the Construction Agent
receives notice of a Condemnation, then, except as otherwise provided in ARTICLE
XIX of the Lease, in each case this Agreement shall continue in effect with
respect to such Property and the proceeds of any insurance received as a result
of such Casualty shall be made available to the Construction Agent as provided
in SECTION 2.7(B)(II).
3.4 COST OVER-RUNS. In the event that the Lease Balance for any
Construction Property would exceed the Maximum Lease Balance for such Property,
the Lessor and the Lessee may agree to increase the Maximum Lease Balance for
such Property (and, if necessary, the Total Commitment) upon mutually acceptable
terms, PROVIDED that neither party shall have any obligation to agree to any
increase proposed by the other party.
ARTICLE 4
PAYMENT OF FUNDS
4.1 FUNDING OF PROPERTY IMPROVEMENTS COSTS.
(a) In connection with and during the course of the construction of
the Improvements, the Construction Agent may request that the Lessor advance
funds for the payment of Land Acquisition Costs and Property Improvements
Costs in respect of each Construction Property subject hereto, and the Lessor
will comply with such request to the extent of the Lessor's commitment provided
for under the Lease. The Construction Agent and the Lessor acknowledge and agree
that the Lessee's right to request funds and the Lessor's obligation to advance
funds for the payment of Land Acquisition Costs and Property Improvements Costs
for such Property is subject in all respects to the terms and conditions of the
Lease and each of the other Operative Documents.
(b) The proceeds of any funds made available to the Lessor to
pay Land Acquisition Costs and Property Improvements Costs for any Construction
Property shall be made available to the Construction Agent in accordance with
the Funding Request relating thereto, the terms of the Lease and, if applicable,
a disbursing agreement entered into between the Construction Agent, the Title
Company, the Lessee and the Lessor. The Construction Agent will use such
proceeds only to pay the Land Acquisition Costs and Property Improvements Costs
set forth in such Funding Request and only in accordance with the current Budget
for such Construction Property.
(c) The Construction Agent shall at all times cause to be and
remain vested in the Lessor's control any and all construction materials and
equipment not yet incorporated into any Construction Property for which funds
shall have been requested pursuant to this ARTICLE IV, and cause such title to
be and remain free of all Liens other than Permitted Liens.
(d) Notwithstanding anything to the contrary in this Agreement
or any other Operative Document, the Construction Agent shall not be required to
use its own funds (i) to repair or restore the effect of any Force Majeure
Event, Casualty or Condemnation during the Construction Period for any
Construction Property or (ii) to pay the cost of completing the Construction for
any Construction Property if the Lease Balance for such Property would exceed
the Maximum Lease Balance for such Property. During the Construction Period for
any Construction Property, (i) all charges and costs for
10
utilities and services, (ii) all Impositions (except for those Impositions for
which the Construction Agent is obligated to reimburse an Indemnitee pursuant to
SECTION 2.9) and (iii) all amounts payable under SECTION 32.3, 32.4 or 32.5 of
the Lease, in each case to the extent relating or allocable to such Property or
the Construction of the Improvements thereon, shall be paid by the Construction
Agent (or the Construction Agent shall be reimbursed therefor) from the
proceeds of Fundings.
ARTICLE 5
CONSTRUCTION AGENCY AGREEMENT EVENTS OF DEFAULT
5.1 CONSTRUCTION AGENCY AGREEMENT EVENTS OF DEFAULT. If any one or more
of the following events (each a "CONSTRUCTION AGENCY AGREEMENT EVENT OF
DEFAULT") shall occur:
(a) APPLICATION OF FUNDS. the Construction Agent fails to apply
any funds paid by the Lessor to the Construction Agent to the payment of the
appropriate Land Acquisition Costs and Property Improvements Costs; or
(b) SUBSTANTIAL COMPLETION. the Construction Agent shall fail to
cause the Substantial Completion of all Improvements for any Construction
Property on or before the Outside Completion Date for such Property; or
(c) PAYMENT. the Construction Agent shall fail to make payment
of (i) any Lease Balance or Construction Period Guaranteed Amount when due or
(ii) any other amount payable hereunder when due and such other amount shall not
be paid in full within three (3) Business Days after the due date therefor; or
(d) INSURANCE. the Construction Agent shall fail to maintain
insurance as required by SECTION 2.7; or
(e) OTHER COVENANTS. the Construction Agent shall fail to
observe or perform any term, covenant or condition of the Construction Agent
under this Agreement other than those described in SECTIONS 5.1(a) through (d)
hereof and, in each such case, such failure shall have continued for thirty (30)
days after the earlier of (i) delivery to the Construction Agent of written
notice thereof from the Lessor or (ii) a Responsible Employee of the
Construction Agent shall have knowledge that such failure, if not cured, will
constitute a Construction Agency Agreement Event of Default, PROVIDED, that no
Construction Agency Agreement Event of Default shall be deemed to occur if such
failure or breach cannot reasonably be cured within such period, so long as the
Construction Agent shall have promptly commenced the cure thereof and continues
to act with diligence to cure such failure or breach and in fact cures such
failure or breach within one hundred twenty (120) days; or
(f) IMPROVEMENTS. the Construction Agent shall cause or permit the
Improvements for any Construction Property to be constructed and equipped in a
manner which (i) violates in any material respect any Applicable Law or (ii)
deviates in any material respect from the Plans and Specifications for such
Property, and said violation remains uncured for a period of thirty (30) days
after the earlier of (i) delivery to the Construction Agent of written notice
thereof from the Lessor or (ii) a Responsible Employee of the Construction Agent
shall have knowledge that such failure, if not cured, will constitute a
Construction Agency Agreement Event of Default, PROVIDED, that no Construction
Agency Agreement Event of Default shall be deemed to occur if such failure or
breach cannot reasonably be cured within such period, so long as the
Construction Agent shall have promptly commenced the cure thereof and continues
to act with diligence to cure such failure or breach and in fact cures such
failure or breach within one hundred twenty (120) days; or
11
(g) REPRESENTATIONS AND WARRANTIES OF CONSTRUCTION AGENT. any
representation or warranty made by the Construction Agent in any Operative
Document to which it is a party or in any certificate or other document
delivered pursuant thereto shall prove to have been inaccurate in any material
respect at the time made or shall be breached in any material respect; or
(h) REPRESENTATIONS AND WARRANTIES OF GUARANTOR.any representation or
warranty made by the Guarantor in any Operative Document to which it is a party
or in any certificate or other document delivered pursuant thereto shall prove
to have been inaccurate in any material respect at the time made or shall be
breached in any material respect; or
(i) MAXIMUM LEASE BALANCE. if the Lease Balance for any Construction
Property at any time plus the Construction Agent's good faith estimate at such
time of the aggregate additional amount to be expended to achieve Substantial
Completion with respect to the Improvements for such Property (including
Capitalized Interest, Capitalized Commitment Fees, Transaction Expenses and all
other amounts to be capitalized for such Property) shall exceed the Maximum
Lease Balance for such Property (excluding any such excess resulting from an
amendment or change order to the Plans and Specifications and other Construction
Documents expressly and specifically agreed to by the Lessor); or
(j) CROSS-DEFAULT. the Construction Agent, the Guarantor or any
Subsidiary of the Guarantor (other than any Foreign Subsidiary Borrower) shall
default in the payment when due of any principal of or interest on any
Indebtedness having an aggregate outstanding principal amount of at least
$5,000,000; or any event or condition shall occur which results in the
acceleration of the maturity of any such Indebtedness of the Construction Agent,
the Guarantor or any Subsidiary of the Guarantor (other than any Foreign
Subsidiary Borrower) or enables (or, with the giving of notice or lapse of time
or both, would enable) the holder of any such Indebtedness or any Person acting
on such holder's behalf to accelerate the maturity thereof; or
(k) VOLUNTARY PROCEEDINGS. the Construction Agent or the Guarantor
shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or shall consent
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(l) INVOLUNTARY PROCEEDINGS. an involuntary case or other proceeding
shall be commenced against the Construction Agent or the Guarantor seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of sixty (60) days; or an order for relief shall be entered against the
Construction Agent or the Guarantor under the federal bankruptcy laws as now or
hereafter in effect; or
(m) JUDGMENTS. (i) one or more judgments, orders, decrees or
arbitration awards requiring Construction Agent or Guarantor to pay an aggregate
amount of $5,000,000 or more (exclusive of amounts covered by insurance issued
by an insurer not an Affiliate of Guarantor) shall be rendered against
Construction Agent or Guarantor in connection with any single or related series
of transactions, incidents or circumstances and the same shall not be satisfied,
vacated or stayed for a period of sixty (60) consecutive days; or (ii) any
judgment, writ, assessment, warrant of attachment, tax lien or execution or
similar process shall be issued or levied against a substantial part of the
property of the Construction
12
Agent or Guarantor and the same shall not be released, stayed, vacated, or
otherwise dismissed within sixty (60) days after issue or levy; or
(n) GUARANTY. an Event of Default (as defined therein) shall occur the
Guaranty; or
(o) REPUDIATION; INVALIDITY. the Construction Agent or the Guarantor
shall directly or indirectly contest the validity of this Agreement or the
Guaranty in any manner in any court of competent jurisdiction, or shall
repudiate, or purport to discontinue or terminate, this Agreement or the
Guaranty or this Agreement or the Guaranty shall cease to be a legal, valid and
binding obligation of the Construction Agent or the Guarantor or shall cease to
be in full force and effect against the Construction Agent or the Guarantor for
any reason (and in the event this Agreement or the Guaranty shall so cease to be
a legal, valid and binding obligation of the Construction Agent or the Guarantor
or cease to be in full force and effect against the Construction Agent or the
Guarantor, the Construction Agent or Guarantor, as the case may be, shall not
have taken all such actions necessary or desirable (in the reasonable opinion of
the Lessor and the Administrative agent and its counsel) to put the Lessor, the
Administrative Agent, the Collateral Agent, the Equity Participants and the
Lenders in the same position they would have enjoyed had this Agreement or the
Guaranty not ceased to be a legal, valid and binding obligation of the
Construction Agent or the Guarantor or ceased to be in full force and effect);
or
(p) OWNERSHIP OF LESSEE. the Guarantor shall cease to own, directly or
indirectly, all of the issued and outstanding capital stock of the Lessee; or
(q) VOLUNTARY CHANGE OF CONTROL. an event described in clauses (a)
through (c) of the definition of Change of Control in the Iron Mountain Credit
Agreement (as in effect on the date hereof without regard to any subsequent
amendment, modification, waiver, supplement or termination of such credit
agreement) shall occur and, in the case of any event described in clauses (a) or
(b) of such definition, the Guarantor or its Board of Directors shall have
caused, consented to or failed to exercise rights available to it to prevent,
such event; or
(r) CESSATION OF CONSTRUCTION. the Construction Agent ceases
construction of the Improvements for any Construction Property after the
commencement thereof for a period in excess of sixty (60) days in the aggregate
as a result of the Construction Agent's actions or omissions (and not due to a
Force Majeure Event);
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this ARTICLE V but subject to SECTION 5.4, immediately
terminate this Agreement by giving the Construction Agent written notice of such
termination, and upon the giving of such notice, all rights of the Construction
Agent and all obligations of the Lessor under this Agreement shall cease. Upon
any such termination, the Construction Agent shall immediately pay to the
Lessor, as and for liquidated damages, an amount equal to the Lease Balance as
of the date of such payment for all Construction Properties for which the Lease
Term has not commenced (whereupon the Lessor shall convey title to such
Properties to the Construction Agent or its designee in accordance with ARTICLES
XXII and XXV of the Lease). Alternatively, the Lessor, with or without
terminating this Agreement and without waiving or releasing the Construction
Agent from any obligation or Construction Agency Agreement Event of Default, may
(but shall be under no obligation to) remedy any Construction Agency Agreement
Event of Default for the account of and at the sole cost and expense of the
Construction Agent. The Construction Agent shall pay upon demand all costs,
expenses, losses, expenditures and damages (including, without limitation,
reasonable attorneys' fees) incurred by or on behalf of Lessor in connection
with any Construction Agency Agreement Event of Default, together with interest
thereon at the Overdue Rate from the date on which such amounts are paid by the
Lessor until such amounts are paid in full by the Construction Agent.
13
5.2 SURVIVAL. The termination of this Agreement pursuant to SECTION 5.1
shall in no event relieve the Construction Agent of its liability
and obligations hereunder which accrued prior to such termination, all of which
shall survive any such termination.
5.3 REMEDIES CUMULATIVE; WAIVERS.
(a) If a Construction Agency Agreement Event of Default shall have
occurred and be continuing, the Lessor shall have, in addition to the rights and
remedies provided for in SECTION 5.1, all rights and remedies available under
the Operative Documents or available at law, equity or otherwise.
(b) No failure to exercise and no delay in exercising, on the part of
the Lessor, any right, remedy, power or privilege under this Agreement or under
the other Operative Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided in this Agreement, including with particularity SECTION 5.1,
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
5.4 LIMITATION ON RECOURSE LIABILITY. Notwithstanding anything
contained herein or in any other Operative Document to the contrary, upon the
occurrence and during the continuance of a Construction Agency Agreement Event
of Default described in SECTION 5.1(b) or (i) (unless such default results from
the Construction Agent's fraud, misapplication of funds, illegal acts or willful
misconduct) and provided that no other Construction Agency Agreement Event of
Default has occurred and is continuing, the aggregate maximum recourse liability
of the Construction Agent to the Lessor or any Person claiming by, through or
under the Lessor in respect of any Construction Property for which the Lease
Term has not commenced shall be limited to the Construction Period Guaranteed
Amount with respect to such Property. The Construction Agent or any Person
designated by it may, within five (5) Business Days of receipt of notice of the
occurrence of such Construction Agency Agreement Event of Default, purchase all
but not less than all of such Construction Properties for the aggregate Lease
Balance with respect to such Properties. Any such purchase shall be made in
accordance with the procedures set forth in SECTION 25.1 of the Lease. If the
Construction Agent does not elect to purchase such Construction Properties, the
Lessor may do any of the following as it may elect in its sole discretion:
(a) offer to extend the Construction Period for any affected
Construction Property;
(b) terminate this Agreement with respect to any affected
Construction Property and complete the Improvements applicable thereto (and upon
completion of such Improvements the Lease Term with respect to such Property
shall commence); or
(c) require the Construction Agent to pay to the Lessor the
Construction Period Guaranteed Amount with respect to any Construction Property
for which the Lease Term has not commenced and to relinquish its interests in
such Construction Property and convey possession thereof to the Lessor or its
designee free and clear of all Liens (other than Lessor Liens) and in compliance
with all Environmental Laws, accompanied by an affidavit to the Lessor and the
Lessor's title insurer to such effect, whereupon the Lessor shall be entitled to
sell such Construction Property.
With regard to the Lessor's right to sell any Construction Property for which
the Lease Term has not commenced, the Lessor and the Construction Agent
acknowledge and agree that the Lessor shall be entitled to recover from such
sale proceeds the entire Lease Balance for such Property all accrued and unpaid
interest, yield and other costs and expenses of the Lessor incurred in
connection with such Property from and after the occurrence of the
applicable Construction Agency Agreement Event of
14
Default (including any costs incurred in connection with completion of the
Construction of the Improvements and/or any sale of such Property or any portion
thereof) and any other amounts then due and payable to the Lessor or any other
Person under the Operative Documents, and all amounts recovered in excess of
such amounts shall be for the account of the Construction Agent.
5.5 INVOLUNTARY CHANGE OF CONTROL. If an Involuntary Change of Control
shall occur, then any Lender in its sole discretion may, not less than
ninety (90) and not more than one hundred twenty (120) days after such
occurrence, give a notice to the Administrative Agent, the other Lenders, the
Lessor and the Construction Agent stating that it does not approve of such
Involuntary Change of Control. If any Lender gives such notice, then
notwithstanding anything to the contrary in any of the Operative Documents, and
provided no Event of Default or Construction Agency Agreement Event of Default
has occurred: (a) the Construction Agent shall have the right to cause the
Lessor to exercise its right under the Credit Agreement to require such Lender
to assign, on or before the date (the "TAKEOUT DATE") which is ninety (90) days
after the date on which such notice is received by the Construction Agent, to
one or more assignees designated by the Construction Agent all (but not less
than all) of such Lender's rights and obligations under the Credit Agreement and
(b) if the Construction Agent does not arrange for such assignment by such date,
then on the Takeout Date the Construction Agent will pay to the Lessor for the
account of such Lender an amount equal to such Lender's share of the Lease
Balance of each Construction Property for which the Lease Term has not
commenced, in which case: (i) such Lender's unused Commitment shall be cancelled
and (ii) the Lease Balance and the Maximum Lease Balance for such Property shall
be reduced by an amount equal to the amount so paid by the Construction Agent.
ARTICLE 6
NO CONSTRUCTION AGENCY FEE
6.1 LEASE AS FULFILLMENT OF LESSOR'S OBLIGATIONS. All obligations, duties
and requirements imposed upon or allocated to the Construction Agent shall be
performed by the Construction Agent at the Construction Agent's sole cost
and expense, and the Construction Agent will not be entitled to, and the
Lessor shall have no obligation to pay, any agency fee or other fee or
compensation, and the Construction Agent shall not be entitled to, and the
Lessor shall have no obligation to make or pay, any reimbursement therefor,
it being understood that this Agreement is being entered into as consideration
for and as an inducement to the Lessor and the Construction Agent
entering into the Lease and the other Operative Documents.
ARTICLE 7
MISCELLANEOUS
7.1 NOTICES. All notices, consents, directions, approvals, instructions,
requests, demands and other communications required or permitted
by the terms hereof to be given to any Person shall be given in writing in the
manner provided in, shall be sent to the respective addresses set forth in, and
the effectiveness thereof shall be governed by the provisions of, SECTION 34.4
of the Lease.
7.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the Lessor, the Construction Agent and their
respective successors and assigns.
7.3 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
15
7.4 AMENDMENTS, ETC. Neither this Agreement nor any provision
hereof may be amended, waived, discharged or terminated except by an instrument
in writing signed by the Lessor and the Construction Agent.
7.5 COUNTERPARTS. This Agreement may be executed in any number
of separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
7.6 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.7 HEADINGS AND TABLE OF CONTENTS. The headings and table of
contents contained in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
7.8 NO RECOURSE. Notwithstanding anything contained herein to
the contrary, this Agreement has been executed on behalf of the Lessor by the
Trustee and in no event shall the Trustee have any liability for the
performance, breach or failure of the representations, warranties, covenants,
agreements or other obligations of the Lessor hereunder or under any other
Operative Document, as to all of which recourse shall be had solely to the
assets of the Lessor. For all purposes of this Agreement, in the performance of
any duties or obligations of the Lessor hereunder, or the taking of any action
by the Lessor, the Trustee shall be entitled to the benefits of the terms and
provisions of the Trust Agreement. Nothing contained in this SECTION 7.8 shall
be construed to limit the exercise or enforcement, in accordance with the terms
of this Agreement and any other documents referred to herein, of rights and
remedies against the Lessor or its Assets, or against the Lessee or any other
Person expressly undertaking obligations in connection with the transactions
contemplated hereby.
16
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
IRON MOUNTAIN STATUTORY TRUST -- 2001,
as Lessor
By: First Union National Bank,
not in its individual
capacity but solely as
trustee
By: /s/ W. Xxxxxxx Xxxxxx
----------------------------------
Name: W. Xxxxxxx Xxxxxx
Title: Vice President
IRON MOUNTAIN RECORDS MANAGEMENT,
INC.,
as Construction Agent
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President and
Treasurer
17
ANNEX I
TO CONSTRUCTION AGENCY AGREEMENT
FORM OF CONSTRUCTION DOCUMENTS ASSIGNMENT
CONSTRUCTION DOCUMENTS ASSIGNMENT
FOR VALUE RECEIVED, and to secure the performance by IRON
MOUNTAIN RECORDS MANAGEMENT, INC. (the "ASSIGNOR"), of all of its obligations
under that certain Master Lease and Security Agreement dated as of May 22, 2001
(the "LEASE") between the Assignor and Iron Mountain Statutory Trust -- 2001
(the "SECURED PARTY") and its other Liabilities (as defined below), the Assignor
does hereby quitclaim, sell, assign, transfer and set over unto the Secured
Party all of the Assignor's right, title and interest in and to the following
(referred to collectively herein as the "COLLATERAL"):
(i) all construction contracts relating to the Construction
Property described in Lease Supplement No. ___ dated __________,
200__ (collectively, the "CONSTRUCTION CONTRACTS");
(ii) all design services agreements pertaining to such
Construction Property (collectively, the "ARCHITECT'S AGREEMENTS");
(iii) all plans, specifications and drawings of any and every
kind heretofore or hereafter prepared for use in connection with
such Construction Property (including, without limitation, the
Plans and Specifications for such Property), and any supplements,
amendments or modifications thereto (collectively, the "PLANS"); and
(iv) all building and other permits, licenses, approvals and
other Governmental Actions which are necessary or useful to the
commencement and completion of the Construction for such Construction
Property, or otherwise relate to such Construction, heretofore or
hereafter obtained or applied for by or on behalf of the Assignor or
any architects, engineers or contractors working on any aspect of such
Construction, and any deposits made in connection therewith
(collectively, the "PERMITS");
PROVIDED, HOWEVER, that the Secured Party shall have no obligation or
liability of any kind under or with respect to the Construction
Contracts, the Architect's Agreements, the Plans or the Permits, either
before or after the Secured Party's exercise of any rights hereby
granted to it, and the Assignor agrees to save and hold the Secured
Party harmless from and against, and to indemnify the Secured Party
for, any and all such obligations and liabilities, contingent or
otherwise, including without limitation reasonable attorneys' fees and
expenses incurred in connection therewith, except to the extent caused
by the gross negligence or willful misconduct of the Secured Party.
This Construction Documents Assignment shall inure to the
benefit of the Secured Party and its successors and assigns and shall be binding
upon the Assignor and shall continue in full force and effect until all
obligations, liabilities and indebtedness of any kind now or hereafter due the
Secured Party from the Assignor under or with respect to the Lease and any of
the other Operative Documents, or which are otherwise secured hereby, whether
now existing or hereafter arising or incurred (collectively, the "LIABILITIES"),
have been fully paid, performed and satisfied, and the Commitment has
terminated, at which time this Construction Documents Assignment will terminate.
The Secured Party will not exercise any of its rights hereunder until there
shall have occurred and be continuing a Construction Agency Agreement Event of
Default.
I-1
For purposes of completing the Construction after any Construction
Agency Agreement Event of Default shall have occurred and be continuing,
the Secured Party may, at its option, further assign its right, title
and interest in the Collateral without the consent of the Assignor or any
contractor, architect or other design professional.
This Construction Documents Assignment is a present, perfected
and absolute assignment; PROVIDED, HOWEVER, that the Secured Party shall not
have the right to undertake completion of the Construction of the Construction
Property referred to herein or directly to enforce the provisions of any
Construction Contract or any Architect's Agreement until a Construction Agency
Agreement Event of Default shall have occurred and be continuing. During the
continuance of any such Construction Agency Agreement Event of Default, the
Secured Party may, without affecting any other right or remedy available to it,
exercise its rights under this Construction Documents Assignment as provided
herein in any manner permitted by law. If any notice to the Assignor is required
by law, such notice shall be deemed commercially reasonable if given at least
ten (10) days prior to the date of intended action.
This Construction Documents Assignment may be effectively
waived, modified, amended or terminated only by a written instrument executed by
the Secured Party and the Assignor. Any waiver by the Secured Party shall be
effective only with respect to the specific instance described therein. Delay or
course of conduct shall not constitute a waiver of any right or remedy of the
Secured Party.
Capitalized terms used but not otherwise defined in this
Construction Documents Assignment have the respective meanings specified in
APPENDIX 1 to the Lease; and the rules of interpretation set forth in APPENDIX 1
to the Lease shall apply to this Construction Documents Assignment.
THIS CONSTRUCTION DOCUMENTS ASSIGNMENT HAS BEEN DELIVERED IN,
AND SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF) APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
IN WITNESS WHEREOF, the undersigned has caused this Construction
Documents Assignment to be duly executed and delivered as of this ___ day of
_____________, 200__ by its proper and duly authorized officer.
IRON MOUNTAIN RECORDS MANAGEMENT,
INC.,
as Assignor
By:
-----------------------------------
Name:
Title:
I-2
EXHIBIT A
TO CONSTRUCTION AGENCY AGREEMENT
FORM OF SUPPLEMENT TO
MASTER CONSTRUCTION AGENCY AGREEMENT
SUPPLEMENT TO
MASTER CONSTRUCTION AGENCY AGREEMENT
SUPPLEMENT NO. ____ (this "SUPPLEMENT") to
Master Construction Agency
Agreement dated as of _____________, 200__, between IRON MOUNTAIN STATUTORY
TRUST -- 2001 (the "LESSOR"), and IRON MOUNTAIN RECORDS MANAGEMENT, INC. (the
"CONSTRUCTION AGENT"). Capitalized terms used but not otherwise defined in this
Supplement have the respective meanings specified in APPENDIX 1 to the Lease
referred to below; and the rules of interpretation set forth in APPENDIX 1 to
the Lease shall apply to this Supplement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Master Lease and Security Agreement dated as of
May 22, 2001 (the "LEASE"), between the Lessor and Iron Mountain Records
Management, Inc., as lessee (the "LESSEE"), the Lessor and the Lessee have
entered into Lease Supplement No. ____ dated ___________, ____ pursuant to which
the Lessee has agreed to lease certain Construction Property from the Lessor;
and
WHEREAS, subject to the terms and conditions of the Construction Agency
Agreement, the Lessor and the Construction Agent desire that the terms of the
Construction Agency Agreement apply to such Construction Property, more
particularly described in SCHEDULE 1, and wish to execute this Supplement to
provide therefor;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
1. The Construction Agent agrees to act as Construction Agent and to
perform its obligations under the Construction Agency Agreement in connection
with the completion of construction of the Improvements on the Land described in
SCHEDULE 1 in accordance with the Plans and Specifications and for such
Improvements.
2. This Supplement shall, upon its execution and delivery, constitute a
part of the Construction Agency Agreement.
Dated as of this ______ day of _______, 200__.
LESSOR
IRON MOUNTAIN STATUTORY TRUST-- 2001
By: First Union National Bank,
not in its individual capacity,
but solely as trustee
By:
-----------------------------------
Name:
Title:
A-1
CONSTRUCTION AGENT
IRON MOUNTAIN RECORDS MANAGEMENT,
INC.
By:
----------------------------------
Name:
Title:
A-2
EXHIBIT B
TO CONSTRUCTION AGENCY AGREEMENT
ACCEPTABLE INSURANCE EXCLUSIONS
The builder's risk policy may provide that this policy does not insure:
a) against any fraudulent or dishonest act or acts
committed by the Insured or any of the Insured's employees with the manifest
intent to:
i) cause the Insured to sustain such loss; and
ii) obtain financial benefit for the Insured's employee, or for
any other person or organization intended by the Insured or the employee to
receive such benefit, other than salaries, commissions, fees, bonuses,
promotions, awards, profit sharing, pensions, or other employee benefits earned
in the normal course of employment;
b) against the cost of making good defective design or
specifications, faulty material, or faulty workmanship; however, this exclusion
shall not apply to loss or damage resulting from such defective design or
specifications, faulty material, or faulty workmanship;
c) against errors in processing or manufacture of the
Insured's product unless a peril not otherwise excluded ensues and then this
policy shall cover for such ensuing loss or damage;
d) against ordinary wear and tear, gradual deterioration,
decay, erosion, corrosion, insects, rodents, inherent vice, latent defect, mold,
wet or dry rot unless a peril not otherwise excluded ensues and then this policy
shall cover for such ensuing loss or damage;
e) against normal settling, cracking, shrinking, bulging
or expansion of pavements, foundations, walls, floors, roofs or ceilings unless
a peril not otherwise excluded ensues and then this policy shall cover for such
ensuing loss or damage;
f) against accumulated effects of smog, smoke, vapor,
liquid or dust;
g) the release, discharge, dispersal, seepage, migration
or escape of pollutants except this policy will cover the release, discharge,
dispersal, seepage, migration or escape of pollutants only if proximately and
predominately caused by: fire; lightning; explosion; wind or hail; smoke;
aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire
protective equipment; sinkhole collapse; volcanic action; breakage of glass;
falling objects; weight of snow, ice or sleet; water damage; sonic shock waves;
earthquake and/or flood.
This exclusion shall not apply to loss or damage from resulting
fire, explosion, smoke, vehicles, riot or civil commotion, vandalism, leakage
from fire protective equipment, falling objects or water damage. However, this
Company shall be liable only for such resulting loss or damage.
h) against nuclear reaction, nuclear radiation, or radioactive
contamination, all whether controlled or uncontrolled, and whether such loss
be direct or indirect, proximate, or remote; or be in whole or in part caused
by, contributed to, or aggravated by the peril(s) insured against in this
policy; except if a covered peril ensues, liability is specifically assumed for
direct loss by such ensuing peril but
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not including any loss due to nuclear reaction, nuclear radiation, or
radioactive contamination. This Company shall be liable for loss or damage
caused by sudden and accidental radioactive contamination including resultant
radiation damage for each occurrence from material used or stored or from
processes conducted on insured premises provided at the time of loss there
is neither a nuclear reactor capable of sustaining nuclear fission in a
self-supporting chain reaction nor any new or used nuclear fuel on the
insured premises;
i) against hostile or warlike action in time of peace or war,
including action in hindering, combating, or defending against an actual,
impending, or expected attack by any government or sovereign power (de jure or
de facto) or by any authority maintaining or using military, naval, or air
forces; or by military, naval, or air forces; or by any agent of any such
government, power, authority, or forces;
i) against any weapon employing atomic fission or fusion;
ii) against rebellion, revolution, civil war, usurped power, or
action taken by governmental authority in hindering, combating, or defending
against such occurrence;
iii) against seizure or destruction by order of public authority,
except destruction by order of public authority to prevent the spread of, or
to otherwise contain, control or minimize loss, damage or destruction which
occurs due to a peril insured against under this policy;
iv) against risks of contraband or illegal trade.
Notwithstanding the above provisions, this insurance shall cover
loss or damage directly caused by acts committed by an agent of any government,
party, or faction engaged in war, hostilities, or warlike operations, provided
such agent is acting secretly and not in connection with any operation of armed
forces (whether military, naval, or air forces) in the country where the
property is situated. Nothing in the foregoing shall be construed to include any
loss, damage, or expense caused by or resulting from any of the risks or perils
excluded above, excepting only the acts of certain agents expressly covered
herein, but in no event shall this insurance include any loss, damage, or
expense caused by or resulting from any weapon or war employing atomic fission
or fusion whether in time of peace or war.
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