EXHIBIT 1.1
EXECUTION COPY
$170,000,000
6-5/8% Senior Subordinated Notes Due 2016
Iron Mountain Incorporated
UNDERWRITING AGREEMENT
December 4, 2003
BEAR, XXXXXXX & CO. INC.
as Representative of the
several Underwriters named
in Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies/Gentlemen:
Iron Mountain Incorporated, a corporation organized and existing under the
laws of Pennsylvania (the "COMPANY"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several underwriters named in
Schedule I hereto (the "UNDERWRITERS"), for whom Bear, Xxxxxxx & Co. Inc. is
acting as representative (the "REPRESENTATIVE"), an aggregate of $170,000,000
principal amount of the Company's 6-5/8% Senior Subordinated Notes due 2016 (the
"Notes"). The Notes will be irrevocably and unconditionally guaranteed (the
"GUARANTEES") by the subsidiaries of the Company listed in Schedule II hereto
that have signed this Agreement (each, a "Guarantor" and, collectively, the
"GUARANTORS"), and will be issued pursuant to an Indenture dated as of December
30, 2002 (the "BASE INDENTURE"), as supplemented by a Second Supplemental
Indenture thereto, dated as of June 20, 2003 (the "SECOND SUPPLEMENTAL
INDENTURE") among the Company, the Guarantors and The Bank of New York, as
trustee (in such capacity, the "TRUSTEE"), pursuant to which the Company
previously issued $150,000,000 in aggregate principal amount of the Company's
6-5/8% Senior Subordinated Notes due 2016 (the "EXISTING NOTES"). The Base
Indenture, as supplemented by the Second Supplemental Indenture, is hereafter
called the "Indenture". If you are the only Underwriter, all references herein
to the Representative shall be deemed to be to the Underwriter.
The Company and the Underwriters, in accordance with the requirements of
Rule 2710(c)(8) and Rule 2720 ("RULE 2720") of the National Association of
Securities Dealers, Inc. (the "NASD") and subject to the terms and conditions
stated herein, also hereby confirm the engagement of the services of Bear,
Xxxxxxx & Co. Inc.
(the "INDEPENDENT UNDERWRITER") as a "qualified independent underwriter" within
the meaning of Section (b)(15) of Rule 2720 in connection with the offering and
sale of the Notes.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTORS. The
Company and each of the Guarantors jointly and severally represents and
warrants to, and agrees with, each of the Underwriters and the Independent
Underwriter that:
(a) The Company has filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement on Form S-3 (No. 333-105494)
filed on May 23, 2003, as amended by Amendment No. 1 thereto, filed on June
5, 2003, for the registration of the Company's debt and other securities,
as described therein, including the Notes, under the Securities Act of
1933, as amended (the "SECURITIES ACT"), and the offering thereof from time
to time in accordance with Rule 415 of the rules and regulations of the
Commission (the "RULES AND REGULATIONS") under the Securities Act. Such
registration statement, as so amended, has been declared effective by the
Commission and copies have heretofore been delivered to the Underwriters
and the Independent Underwriter. Such registration statement, as so
amended, including all information, if any, deemed to be a part thereof
pursuant to Rule 430A of the Rules and Regulations, is referred to herein
as the "REGISTRATION STATEMENT." No stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that
purpose has been initiated or, to the Company's knowledge, threatened by
the Commission. The Company has filed with the Commission a final
prospectus supplement pursuant to Rule 424(b) of the Rules and Regulations
relating to the offering and sale of a portion of the Existing Notes. The
Company will file the Prospectus (as defined below) with the Commission
pursuant to Rule 424(b) of the Rules and Regulations. The base prospectus
contained in the Registration Statement, at the time such registration
statement was declared effective, as supplemented by the final prospectus
supplement relating to the offering and sale of the Notes (the "OFFERING"),
in the form in which it is to be filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations, is hereinafter referred to as the
"PROSPECTUS," except that if any revised prospectus or prospectus
supplement shall be provided to the Underwriters and the Independent
Underwriter by the Company for use in connection with the Offering which
differs from the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Company pursuant to
Rule 424(b) of the Rules and Regulations), the term "Prospectus" shall
refer to such revised prospectus or prospectus supplement, as the case may
be, from and after the time it is first provided to the Underwriters and
the Independent Underwriter for such use. Any preliminary prospectus
supplement (and the related base prospectus) relating to the Offering filed
with the Commission pursuant to Rule 424 of the Rules and Regulations is
hereafter called the "Preliminary Prospectus." Any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3, which were filed under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), on or before the effective date of the
Registration Statement or the date of the Prospectus, as the case may be,
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the
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Registration Statement or the Prospectus shall be deemed to refer to and
include (i) the filing of any document under the Exchange Act after the
effective date of the Registration Statement or the date of the Prospectus,
as the case may be, which is incorporated therein by reference and (ii) any
such document so filed. All references in this Agreement to the
Registration Statement and the Prospectus, or any amendments or supplements
to any of the foregoing, shall be deemed to include any copy thereof filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("XXXXX").
(b) At the time of the effectiveness of the Registration Statement or
the effectiveness of any post-effective amendment to the Registration
Statement, when the Prospectus is first filed with the Commission pursuant
to Rule 424(b) or Rule 434 of the Rules and Regulations, when any
supplement to or amendment of the Prospectus is filed with the Commission,
when any document filed under the Exchange Act is filed and at the Closing
Date (as hereinafter defined), the Registration Statement and the
Prospectus and any amendments thereof and supplements thereto complied or
will comply in all material respects with the applicable provisions of the
Securities Act and the Rules and Regulations thereunder and the Exchange
Act and the Rules and Regulations thereunder and did not and will not
contain an untrue statement of a material fact and did not and will not
omit to state any material fact required to be stated therein or necessary
in order to make the statements therein (i) in the case of the Registration
Statement, not misleading and (ii) in the case of the Prospectus, or the
Preliminary Prospectus, if any, in light of the circumstances under which
they were made, not misleading. When a related Preliminary Prospectus, if
any, was first filed with the Commission (whether filed as part of the
Registration Statement or any amendment thereto or pursuant to Rule 424(a)
of the Rules and Regulations) and when any amendment thereof or supplement
thereto was first filed with the Commission, such Preliminary Prospectus,
if any, and any amendments thereof and supplements thereto complied in all
material respects with the applicable provisions of the Securities Act, the
Exchange Act and the respective Rules and Regulations thereunder and did
not contain an untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading. No representation and warranty is made in
this subsection (b), however, with respect to any information contained in
or omitted from the Registration Statement or the Prospectus or related
Preliminary Prospectus, if any, or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter or the
Independent Underwriter through you specifically for use therein
("UNDERWRITERS' INFORMATION"). The parties acknowledge and agree that the
Underwriters' Information consists solely of the material included in the
fourth and sixth paragraphs under the caption "Underwriting" in the
prospectus supplement portion of the Prospectus.
(c) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth
in or incorporated by reference into the Registration Statement and the
Prospectus, there has been no material adverse change or any development
involving a prospective material adverse change in the business, prospects,
properties, operations, condition (financial
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or other) or results of operations of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, and since the date of the latest balance sheet
presented in or incorporated by reference into the Registration Statement
and the Prospectus, neither the Company nor any of its subsidiaries has
incurred or undertaken any liabilities or obligations, direct or
contingent, which are material to the Company and its subsidiaries taken as
a whole, except for liabilities or obligations which are reflected in or
incorporated by reference into the Registration Statement and the
Prospectus.
(d) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(e) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act and the Rules and Regulations
thereunder, and, when read together with the other information in the
Prospectus, at the time the Registration Statement and any amendments
thereto become effective and at the Closing Date (as hereinafter defined),
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(f) The Company and each of its subsidiaries has been duly
incorporated or formed, is validly existing as a corporation, limited
liability company or Massachusetts statutory business trust in good
standing under the laws of its jurisdiction of incorporation or formation
and has the corporate power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its properties, and
each is duly qualified and is in good standing as a foreign corporation,
limited liability company or statutory business trust authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where
the failure to be so qualified would not have a material adverse effect
(financial or otherwise) on the Company and its subsidiaries, taken as a
whole (a "MATERIAL ADVERSE EFFECT").
(g) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable; all of
such capital stock or other ownership interests (in the case of the
Company's wholly-owned subsidiaries) or all of such capital stock or other
ownership interests that the Company owns (in the case of less than
wholly-owned
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subsidiaries as disclosed in the Prospectus or Schedule III hereto) are
owned directly or indirectly by the Company, in each case, free and clear
of any security interest, claim, lien, encumbrance or adverse claim of any
nature, except as disclosed in the Prospectus or such as are not material
to the business prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole; and Schedule III hereto
sets forth the Company's ownership interest in any subsidiary (as defined
in Regulation S-X Rule 1-02(x) of the Rules and Regulations) that is less
than wholly-owned.
(h) This Agreement has been duly authorized, executed and delivered by
the Company and the Guarantors and is a valid and binding agreement of the
Company and the Guarantors enforceable in accordance with its terms except
as (i) rights to indemnity and contribution hereunder may be limited by
applicable law, (ii) the enforceability hereof may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally and (iii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability.
(i) The Notes have been duly and validly authorized by the Company for
issuance and sale pursuant to this Agreement, each Guarantee has been duly
and validly authorized by the Guarantor to which it relates and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to the Underwriters and the Independent Underwriter
against payment therefor as provided by this Agreement, the Notes and the
Guarantees will be entitled to the benefits of the Indenture, and will be
valid and binding obligations of the Company and the Guarantors,
respectively, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(j) The Indenture has been duly and validly authorized, executed and
delivered by the Company and each of the Guarantors and has been duly and
validly qualified under the Trust Indenture Act of 1939, as amended, and
assuming the due authorization, execution and delivery thereof by the
Trustee, the Indenture is a valid and binding agreement of the Company and
the Guarantors, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability. The Indenture
conforms and any amendment or supplement thereto will conform with the
requirements of the Trust Indenture Act of 1939, as amended.
(k) The Notes and Guarantees conform as to legal matters to the
description thereof contained in the Prospectus.
(l) Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or comparable organizational documents or
in default (and no condition exists which, with notice or lapse of time or
both, would constitute a default) in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture or instrument
material to the conduct of the business of the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound except for such defaults as could not,
individually or in the aggregate, have a Material Adverse Effect.
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(m) The execution, delivery and performance of this Agreement, the
Indenture, the Notes and the Guarantees and compliance by the Company and
the Guarantors with all the provisions hereof and thereof, as the case may
be, and the consummation of the transactions contemplated hereby and
thereby will not require any consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other
governmental body (except as such may be required under the securities or
Blue Sky laws of the various states or jurisdictions outside the United
States), and will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws or
comparable organizational documents of the Company or any of its
subsidiaries or any agreement, indenture or other instrument to which it or
any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, or violate or conflict
with any laws, administrative regulations or rulings or court decrees
applicable to the Company, any of its subsidiaries or their respective
property.
(n) Except as otherwise set forth in the Prospectus, there are no
material legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or to which any of their respective
property is the subject, and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated.
(o) Neither the Company nor any of its subsidiaries is currently in
violation of any foreign, federal, state or local law or regulation
relating to the protection of human health or safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or the rules
and regulations promulgated thereunder, which singly, or in the aggregate,
could be reasonably expected to have a Material Adverse Effect on the
Company or its subsidiaries, taken as a whole.
(p) The Company and each of its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("PERMITS") including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its
respective properties and to conduct its respective business, except to the
extent that the failure to have such Permits would not singly, or in the
aggregate, have a Material Adverse Effect on the Company and its
subsidiaries, taken as a whole; the Company and each of its subsidiaries
has fulfilled and performed all of its material obligations with respect to
such Permits and no event has occurred which has or after notice or lapse
of time would singly, or in the aggregate, have a Material Adverse Effect
on the Company and its subsidiaries, taken as a whole; and, except as
described in the Prospectus, such Permits contain no restrictions that
materially interfere with the business or operations of the Company or any
of its subsidiaries as currently conducted.
(q) In the ordinary course of its business, when the Company or any of
its subsidiaries acquires a fee interest in a parcel of real property
located in the
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United States, the Company conducts a review of the property (generally
consisting of a Phase I environmental assessment or similar study prepared
on behalf of the seller or a predecessor owner of such property) to
determine whether any conditions exist on the property that would
constitute a violation of Environmental Laws or would require a material
amount of capital or operating expenditures for clean-up, closure or
compliance with Environmental Laws. In the ordinary course of its business,
when the Company or any of its subsidiaries enters into a long-term real
property lease for property located in the United States, the Company
conducts an internal review, which may or may not result in a Phase I
environmental assessment or similar study (although the Company would
typically obtain a Phase I or similar study where the Company would have
the right to acquire a fee interest in such real property), as it relates
to such real property to determine whether any conditions exist on the
property that would constitute a violation of Environmental Laws or would
require a material amount of capital or operating expenditures for
clean-up, closure or compliance with Environmental Laws. In the ordinary
course of its business, the Company utilizes local counsel to obtain advice
regarding owned or leased real property and local environmental matters
outside the United States. On the basis of such reviews and advice, the
Company has concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a Material Adverse Effect on the Company
and its subsidiaries, taken as a whole.
(r) Except as otherwise set forth in the Prospectus or such as are not
material to the business prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, the
Company and each of its subsidiaries has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions except liens
for taxes not yet due and payable, to all property and assets described in
the Prospectus as being owned by it. All leases to which the Company or any
of its subsidiaries is a party are valid and binding and no default by the
Company of any of its subsidiaries, by any other party, has occurred or is
continuing thereunder, which might result singly, or in the aggregate, in a
Material Adverse Effect to the Company or its subsidiaries, taken as a
whole, and the Company and its subsidiaries enjoy peaceful and undisturbed
possession under all such leases to which any of them is a party as lessee
with such exceptions as do not have a Material Adverse Effect on the
Company and its subsidiaries, taken as a whole.
(s) The Company and each of its subsidiaries maintains, with insurers
of recognized standing, reasonably adequate insurance against property and
casualty loss, general liability, business interruption and such other
losses and risks, in each case, in such amounts as are prudent and
customary in the business in which they are engaged.
(t) Xxxxxx Xxxxxxxx LLP, who certified certain consolidated financial
statements and supporting schedules of the Company, were independent public
accountants as required by the Securities Act, the Exchange Act and the
respective Rules and Regulations thereunder.
(u) Deloitte & Touche LLP, who are the current auditors of the
Company, and RSM Xxxxxx Xxxxxx LLP who have certified certain financial
statements
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of Iron Mountain Europe Limited, each are independent public accountants as
required by the Securities Act, the Exchange Act and the respective Rules
and Regulations thereunder.
(v) The financial statements, together with related schedules and
notes forming part of the Prospectus (and any amendment or supplement
thereto), present fairly the consolidated financial position, results of
operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Prospectus at the respective dates
or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Prospectus (and any
amendment or supplement thereto) is, to the Company's knowledge, in all
material respects, accurately presented and prepared on a basis reasonably
consistent with the books and records of the Company.
(w) Based on the knowledge of the chief executive officer and chief
financial officer of the Company, (i) the Annual Report on Form 10-K, as
amended by Amendment No. 1 on Form 10-K/A, for the year ended December 31,
2002, and the Quarterly Reports on Form 10-Q for the quarters ended March
31, 2003, June 30, 2003 and September 30, 2003 (each a "REPORT", and
together, the "REPORTS"), fully comply with the requirements of Section
13(a) or 15(d) of the Exchange Act; and (ii) the information contained in
each Report fairly presents, in all material respects, the financial
condition and results of operations of the Company as of the date of filing
with the Commission.
(x) The pro forma financial statements and other pro forma financial
information (including the notes thereto) included or incorporated by
reference in the Registration Statement and in the Prospectus, if any, (i)
present fairly the information shown therein, (ii) have been prepared in
accordance with Article 11 of Regulation S-X and the related Rules and
Regulations adopted by the Commission with respect to pro forma financial
statements and (iii) have been properly compiled on the basis described
therein, and the assumptions used in the preparation of such pro forma
financial statements and other pro forma financial information (including
the notes thereto) are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(y) The transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the Notes)
will not violate or result in a violation of Section 7 of the Exchange Act,
or any Rules and Regulations promulgated thereunder, including, without
limitation, Regulations T, U and X of the Board of Governors of the Federal
Reserve System.
(z) Neither the Company nor any of its affiliates does business with
the Government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes (Chapter 92 128,
Laws of Florida).
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(aa) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus and all of the outstanding
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable and were not issued in
violation of or subject to any preemptive rights.
(bb) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments for sale or liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, the Company
(other than any such arrangements created exclusively by or relating
exclusively to one or more of the Company's stockholders) or any wholly
owned subsidiary thereof or with respect to any capital stock or other
ownership interest that the Company or any of its subsidiaries (as defined
in Regulation S-X Rule 1-02(x) of the Rules and Regulations) owns in a less
than wholly owned subsidiary except as otherwise disclosed in the
Prospectus or such as are not material to the business prospects, financial
condition or results of operations of the Company and its subsidiaries,
taken as a whole.
(cc) The Company has disclosed in the Prospectus any business
relationships or related party transactions of the type that is required to
be disclosed by Item 404 of Regulation S-K of the Rules and Regulations.
(dd) There is (i) no significant unfair labor practice complaint
pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against any of them, before the
National Labor Relations Board or any foreign, state or local labor
relations board, and no significant grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is pending
against the Company or any of its subsidiaries or, to the best knowledge of
the Company, threatened against any of them, and (ii) no significant
strike, labor dispute, slowdown or stoppage pending against the Company or
any of its subsidiaries or, to the best knowledge of the Company,
threatened against it or any of its subsidiaries, which, singly or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(ee) The chief executive officer and chief financial officer of the
Company are responsible for establishing and maintaining disclosure
controls and procedures (as defined in Rules 13a-14 and 15d-14 of the Rules
and Regulations under the Exchange Act) for the Company and have (i)
designed such disclosure controls and procedures to ensure that material
information relating to the Company and its subsidiaries is made known to
the chief executive officer and chief financial officer by others within
the Company and its subsidiaries, (ii) evaluated the effectiveness of the
of the Company's disclosure controls and procedures as of a date (the
"EVALUATION DATE") within 90 days prior to the filing of each of the
Reports, and (iii) presented in each Report their conclusions about the
effectiveness of the disclosure controls and procedures based on their
evaluation as of the Evaluation Date. The chief executive officer and chief
financial officer of the Company have disclosed, based upon their
evaluation as of the Evaluation Date, to the Company's auditors and the
Audit Committee of the Company's Board of Directors (i) all significant
deficiencies in the design or operation of internal
9
controls which could adversely affect the Company's ability to record,
process, summarize and report financial data and have identified for the
Company's auditors any material weaknesses in internal controls, and (ii)
any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls. The chief executive officer and chief financial officer have
indicated in each Report whether or not there were significant changes in
internal controls or in other factors that could significantly affect
internal controls subsequent to the Evaluation Date, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
(ff) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general
or specific authorization and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(gg) All material tax returns required to be filed by the Company and
each of its subsidiaries in any jurisdiction have been filed, other than
those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due pursuant to such returns or pursuant to any assessment
received by the Company or any of its subsidiaries, have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided.
(hh) The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all material patents, patent applications, trademarks,
service marks, trade names, licenses, copyrights and proprietary or other
confidential information currently employed by them in connection with
their respective businesses, and neither the Company nor any such
subsidiary has received any notice of infringement of or conflict with
asserted rights of any third party with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect,
except as described in or contemplated by the Prospectus.
(ii) No Restricted Subsidiary (as defined in the Indenture) of the
Company is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
Restricted Subsidiary's capital stock, from repaying to the Company any
loan or advances to such Restricted Subsidiary from the Company or from
transferring any of such Restricted Subsidiary's property or assets to the
Company or any other Restricted Subsidiary of the Company, except as
described in or contemplated by the Prospectus.
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(jj) Immediately after each of the Guarantors has entered into the
Guarantee to which it is a party, (i) the fair value of the assets of such
Guarantor will exceed the debts and liabilities, subordinated, contingent
or otherwise, of such Guarantor, (ii) the present fair saleable value of
the property of such Guarantor will be greater than the amount that will be
required to pay the probable liabilities of such Guarantor on its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities, subordinated, contingent or otherwise, become absolute
and matured, (iii) such Guarantor will be able to pay its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured, and (iv) such Guarantor will not
have an unreasonably small capital with which to conduct the business in
which it is engaged as such business is conducted and is proposed to be
conducted following the Closing Date.
(kk) Neither the Company nor any of its subsidiaries intends, or
intends to permit any of its respective subsidiaries, to incur debts beyond
its ability to pay such debts as they mature, taking into account the
timing and the amounts of cash to be received by the Company or any of its
subsidiaries and the timing and the amounts of cash to be payable on or in
respect of the Company's indebtedness or the indebtedness of each
subsidiary.
(ll) Except as have been irrevocably waived in writing, no holder of
securities of the Company has any rights to the registration of securities
of the Company because of the filing of the Registration Statement or
otherwise in connection with the sale of the Notes contemplated hereby.
(mm) None of the Company and the Guarantors is, or upon consummation
of the transactions contemplated under this Agreement and the Indenture
will be, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "INVESTMENT COMPANY ACT") or be subject to
registration under the Investment Company Act.
(nn) There are no contracts or other documents that are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations that have
not been so described or filed.
(oo) The statistical and market-related data included in the
Prospectus is based on or derived from sources which the Company believes
to be reliable and accurate.
2. PURCHASE, SALE AND DELIVERY OF THE NOTES.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters and the
Underwriters, severally and not jointly, agree to purchase from the
Company, the aggregate principal amount of the Notes
11
set forth opposite the name of such Underwriter on Schedule I hereto, at
the purchase price set forth opposite the name of such Underwriter on
Schedule I hereto.
(b) Payment of the purchase price for, and delivery of certificates
for, the Notes shall be made at the office of Xxxxxx & Xxxxxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("UNDERWRITERS' COUNSEL"), or at
such other place as shall be agreed upon by you and the Company, at 10:00
A.M., New York City time, on the seventh business day, as permitted under
Rule 15c6-1 under the Exchange Act, (unless postponed in accordance with
the provisions of Section 6 or Section 9 hereof) following the date hereof
or such other time not later than thirteen business days after such date as
shall be agreed upon by you and the Company (such time and date of payment
and delivery being herein called the "CLOSING DATE").
(c) Payment for the Notes shall be made to or upon the order of the
Company of the purchase price by wire transfer in Federal (same day) funds
to the Company or as directed by the Company upon delivery of certificates
for the Notes to you through the facilities of The Depository Trust Company
for the respective accounts of the several Underwriters against receipt
therefor signed by you or on your behalf. The Notes to be delivered to you
shall be registered in such name or names and shall be in such
denominations as you may request at least two business days before the
Closing Date. The Company will permit you to examine and package such
certificates for delivery at least one full business day prior to the
Closing Date.
3. OFFERING. Upon the Company's authorization of the release of the Notes, the
Underwriters propose to offer the Notes for sale to the public upon the
terms and conditions set forth in the Prospectus.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with each of the
Underwriters and with the Independent Underwriter that:
(a) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would, in
the judgment of the Underwriters and the Independent Underwriter or the
Company include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply with the
Securities Act or the Rules and Regulations, or to file under the Exchange
Act so as to comply therewith any document incorporated by reference in the
Registration Statement or the Prospectus or in any amendment thereof or
supplement thereto, the Company will notify you promptly and prepare and
file with the Commission an appropriate amendment or supplement (in form
and substance satisfactory to you) which will correct such statement or
omission or which will effect such compliance and will use its best efforts
to have any amendment to the Registration Statement declared effective as
soon as possible.
12
(b) The Company will promptly deliver to each of the Underwriters and
the Independent Underwriter such number of copies of any Preliminary
Prospectus, the Prospectus, the Registration Statement, all amendments of
and supplements to such documents, if any, all documents incorporated by
reference in the Registration Statement and Prospectus or any amendment
thereof or supplement thereto, as you may reasonably request. Prior to
10:00 A.M., New York time, or if it is not possible to do so prior to such
time, as soon thereafter as practicable, on the business day next
succeeding the date of this Agreement and from time to time thereafter the
Company will furnish the Underwriters and the Independent Underwriter with
copies of the Prospectus in New York City in such quantities as you may
reasonably request. The Company will timely file the Prospectus with the
Commission as required by Rule 424(b) of the Rules and Regulations.
(c) The Company will endeavor in good faith, in cooperation with you,
at or prior to the date of the Prospectus, to qualify the Notes for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as you may designate and to maintain such qualification in
effect for so long as required for the distribution thereof; except that in
no event shall the Company be obligated in connection therewith to qualify
as a foreign corporation or to execute a general consent to service of
process where it is not already so subject.
(d) The Company will make generally available (within the meaning of
Section 11(a) of the Securities Act) to its security holders and to the
Underwriters and the Independent Underwriter as soon as practicable, but in
any event not later than 45 days after the end of its fiscal quarter in
which the first anniversary date of the date of the Prospectus occurs, an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with the provisions of Rule 158 of the Regulation
covering a period of at least twelve consecutive months beginning after the
effective date of the Registration Statement.
(e) During the period from the date hereof until 45 calendar days
after the Closing Date, the Company shall not offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company or any Guarantor
or warrants to purchase debt securities of the Company or any Guarantor
substantially similar to the Notes (other than (i) the Notes, (ii) the
Guarantees and (iii) commercial papers issued in the ordinary course of
business), without the Representative's prior written consent.
(f) Whether or not required by the Rules and Regulations, so long as
any Notes are outstanding and so long as the Indenture so requires, the
Company will furnish to you at your reasonable request copies of all
reports or other communications (financial or other) furnished to security
holders, and to deliver to you (i) as soon as they are available, copies of
any and all reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the
13
extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its security holders generally or to the Commission).
(g) The Company will apply the proceeds from the sale of the Notes as
set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will use its best efforts to do or perform, or cause
to be done or performed, all things required or necessary to be done and
performed under this Agreement by the Company and the Guarantors prior to
the Closing Date and to satisfy all conditions precedent to the delivery of
the Notes.
(i) The Company will use its best efforts in cooperation with the
Underwriters to permit the Notes to be eligible for clearance and
settlement through the facilities of The Depository Trust Company.
(j) The Company will take all reasonable action necessary to enable
Standard & Poor's Corporation ("S&P") and Xxxxx'x Investors Service, Inc.
("MOODY'S") to reaffirm their respective credit ratings on the Company's
outstanding senior subordinated debt, including for this purpose, the
issuance of the Notes.
(k) The Company has not and will not (and has not permitted its
affiliates to, and will cause its affiliates not to) take, directly or
indirectly, any action which is designed to or which constitutes or which
might reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Notes and neither the Company nor any of its
affiliated purchasers (as defined in Rule 100 of Regulation M under the
Exchange Act) will take any action prohibited by Regulation M under the
Exchange Act.
(l) The Company, during the period when the Prospectus is required to
be delivered under the Act or the Exchange Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15
of the Exchange Act within the time periods required by the Exchange Act
and the rules and regulations thereunder.
5. PAYMENT OF EXPENSES. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of
the obligations of the Company hereunder, including the following: (i) the
fees, disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the Notes under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters, the Independent Underwriter and
dealers; (ii) the cost of producing the Blue Sky Memoranda, all expenses in
connection with the qualification of the Notes for offering and sale under
state securities or Blue Sky laws as provided in Section 4(c) hereof,
including the fees and disbursements of counsel for the Underwriters and
the Independent Underwriter in connection with such
14
qualification and in connection with the Blue Sky survey; (iii) all fees
and expenses in connection with the inclusion of the Notes in the
book-entry system of The Depository Trust Company; (iv) all travel expenses
of the Company's officers and employees and any other expense of the
Company incurred in connection with attending or hosting meetings with
prospective purchasers of the Notes; (v) fees paid to rating agencies in
connection with the Notes and (vi) the filing fees incident to, and the
fees and disbursements of counsel for the Underwriters and the Independent
Underwriter in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Notes. The Company also will pay or cause to be paid: (i) the cost
of preparing certificates for the Notes; (ii) the cost and charges of any
transfer agent or registrar; and (iii) all other costs and expenses
incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 5.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters and the Independent Underwriter to purchase and pay for the
Notes under this Agreement are subject to the satisfaction of each of the
following conditions:
(a) The Registration Statement shall have become, and shall remain,
effective on the date of this Agreement and through the Closing Date; the
Prospectus shall have been filed with the Commission in a timely fashion in
accordance with Section 4(b) hereof; and, at or prior to the Closing Date
no stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereof shall have been issued and no
proceedings therefor shall have been initiated or threatened by the
Commission.
(b) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same
force and effect as if made on and as of the Closing Date.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading, nor
shall any notice have been given of any intended or potential downgrading
in the rating accorded any of the Company's securities by any nationally
recognized securities rating organization, or any public announcement that
any such organization has under surveillance or review its rating of any
such securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading of such
rating).
(d) (i) Since the date of the latest balance sheet included in the
Prospectus, there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in the
business prospects, financial condition or results of operations of the
Company and its subsidiaries taken as a whole, whether or not arising in
the ordinary course of business, except as otherwise described in the
Registration Statement or Prospectus, (ii) as of the Closing Date, the
obligations of the Company to be performed hereunder on or prior thereto
have been duly performed, (iii) since the date of the latest balance sheet
included in the Prospectus there shall not
15
have been any material adverse change, or any development involving a
prospective material adverse change, in the capital stock or in the
long-term debt of the Company from that set forth in the Prospectus, except
as otherwise described in the Registration Statement or Prospectus, (iv)
the Company and its subsidiaries shall have no liability or obligation,
direct or contingent, which is material to the Company and its
subsidiaries, taken as a whole, other than those in the Registration
Statement or Prospectus, and (v) on the Closing Date you shall have
received a certificate dated the Closing Date, signed by C. Xxxxxxx Xxxxx,
in his capacity as Chairman of the Board and Chief Executive Officer, and
by Xxxx X. Xxxxx, Xx., in his capacity as Executive Vice President and
Chief Financial Officer of the Company, confirming the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 6.
(e) At the Closing Date you shall have received the written opinion of
Xxxxxxxx & Worcester LLP, counsel for the Company, dated the Closing Date,
addressed to the Underwriters in the form attached hereto as Annex I and in
form and substance reasonably satisfactory to the Underwriters and
Underwriters' Counsel.
(f) At the Closing Date you shall have received the written opinion of
Xxxxx Xxxxxx, Esq., General Counsel for the Company, dated the Closing
Date, addressed to the Underwriters in the form attached hereto as Annex II
and in form and substance reasonably satisfactory to the Underwriters and
Underwriters' Counsel.
(g) At the Closing Date you shall have received the written opinion of
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, special Pennsylvania counsel to the
Company, dated the Closing Date, addressed to the Underwriters in the form
attached hereto as Annex III and in form and substance reasonably
satisfactory to the Underwriters and Underwriters' Counsel.
(h) The Underwriters shall have received on the Closing Date the
written opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters,
dated the Closing Date, as to such matters as the Underwriters shall
reasonably request.
(i) The Underwriters shall have received (i) a letter or letters on
and as of the date of this Agreement (each, an "INITIAL LETTER"), in form
and substance satisfactory to you, from each of Deloitte & Touche LLP (with
respect to Iron Mountain Incorporated) and RSM Xxxxxx Xxxxxx (with respect
to Iron Mountain Europe Limited), each independent public accountants, with
respect to the financial statements and certain financial information
contained in the Prospectus and letters on and as of the Closing Date, in
form and substance satisfactory to you, from each of Deloitte & Touche LLP
and RSM Xxxxxx Xxxxxx confirming the information contained in the initial
letter or letters provided by such accountants, and (ii) a certificate
dated as of the date of this Agreement, signed by C. Xxxxxxx Xxxxx, in his
capacity as Chairman of the Board and Chief Executive Officer of the
Company, and by Xxxx X. Xxxxx, Xx., in his capacity as Executive Vice
President and Chief Financial Officer of the Company, with respect to the
consolidated financial statements, and related schedules and notes, of the
Company audited by Xxxxxx Xxxxxxxx LLP and incorporated by reference into
the Registration Statement.
16
(j) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto), there shall not have been any change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and its
subsidiaries taken as a whole, the effect of which, in any such case
described above, is, in the judgment of the Underwriters and the
Independent Underwriter, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Notes on the terms and in the manner contemplated in the
Prospectus (exclusive of any supplement).
(k) The Company shall have complied with the provisions of Section
4(b) hereof with respect to the furnishing of Prospectuses on the next
business day succeeding the date of this Agreement.
(l) On or prior to the Closing Date, The Depository Trust Company
shall have accepted the Notes for clearance.
(m) The Company shall have furnished the Underwriters and
Underwriters' Counsel with such other certificates, opinions or other
documents as they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to you or to Underwriters'
Counsel pursuant to this Section 6 shall not be in all material respects
reasonably satisfactory in form and substance to you and to Underwriters'
Counsel, all obligations of the Underwriters and the Independent Underwriter
hereunder may be cancelled by you at, or at any time prior to, the Closing Date.
Notice of such cancellation shall be given to the Company in writing, or by
telephone. Any such telephone notice shall be confirmed promptly thereafter in
writing.
7. INDEMNIFICATION.
(a) Each of the Company and the Guarantors shall indemnify and hold
harmless each Underwriter, the Independent Underwriter and each person, if
any, who controls any Underwriter or Independent Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including, but not limited to, attorneys' fees and
any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
17
untrue statement of a material fact contained in the Registration Statement
as originally filed or any amendment thereof, or related Preliminary
Prospectus, if any, or the Prospectus, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to
the extent but only to the extent that any such loss, liability, claim,
damage or expense arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter or Independent Underwriter
through you expressly for use therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have including
under this Agreement.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and the Independent Underwriter, each of the
directors of the Company, each of the officers of the Company who shall
have signed the Registration Statement, and each other person, if any, who
controls the Company or the Independent Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including, but not limited to, attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, as originally filed or any
amendment thereof, or related Preliminary Prospectus, if any, or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through you expressly for use therein. This
indemnity will be in addition to any liability which any Underwriter may
otherwise have including under this Agreement.
(c) The Independent Underwriter shall indemnify and hold harmless the
Company and each Underwriter, each of the directors of the Company, each of
the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company or any
Underwriter within the meaning of Section 15 of the Act or Section 20(a) of
the Exchange Act, against any losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to attorneys'
fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or
18
any claim whatsoever, and any and all amounts paid in settlement of any
claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, as originally filed or any amendment thereof, or related
Preliminary Prospectus, if any, or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the
Independent Underwriter expressly for use therein.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of any claims or the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under such subsection, notify each
party against whom indemnification is to be sought in writing of the claim
or the commencement thereof (but the failure so to notify an indemnifying
party shall not relieve it from any liability which it may have under this
Section 7). In case any such claim or action is brought against any
indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such indemnified party or parties
unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense
of such action, (ii) the indemnifying parties shall not have employed
counsel to have charge of the defense of such action within a reasonable
time after notice of commencement of the action or (iii) such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the indemnifying parties.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to
the entry of judgment with respect to, any pending or threatened action in
respect of which the indemnified party is or reasonably could have been a
party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party
from all liability on claims that are or reasonably could have been the
subject matter of such action and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf
of the indemnified party.
19
8. CONTRIBUTION. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 7 hereof is for any
reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company,
the Independent Underwriter and the Underwriters shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and
any amount paid in settlement of, any action, suit or proceeding or any
claims asserted, but after deducting, in the case of losses, liabilities,
claims, damages and expenses suffered by the Company any contribution
received by the Company from persons, other than the Independent
Underwriter or the Underwriters, who may also be liable for contribution,
including persons who control the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, officers of the Company
who signed the Registration Statement and directors of the Company) as
incurred to which the Company, the Independent Underwriter and one or more
of the Underwriters may be subject, in such proportions as is appropriate
to reflect the relative benefits received by the Company, the Independent
Underwriter and the Underwriters from the offering of the Notes or, if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but
also the relative fault of the Company, the Independent Underwriter and the
Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits received by
the Company, the Independent Underwriter and the Underwriters shall be
deemed to be in the same proportion as (x) the total proceeds from the
offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and (y) the underwriting
discount received by the Underwriters bear to the total price to the public
of the Notes, in each case as set forth in the Prospectus. The relative
fault of the Company and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one
hand or either the Independent Underwriter or the Underwriters on the other
hand and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 8, neither the Independent Underwriter nor any
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter or the Independent Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within in the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person,
if any, who controls an Underwriter or the
20
Independent Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to
contribution as such Underwriter or the Independent Underwriter, and each
person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Company,
subject in each case to clauses (i) and (ii) of this Section 8. Any party
entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party
or parties, notify each party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
obligation it or they may have under this Section 8 or otherwise. The
obligations of the Underwriters to contribute pursuant to this Section 8
are several in proportion to the respective principal amount of Notes
purchased by each of the Underwriters hereunder and not joint.
9. DEFAULT BY AN UNDERWRITER.
(a) If one or more of the Underwriters shall fail at the Closing Date
to purchase the Notes which it or they are obligated to purchase under this
Agreement (the "DEFAULTED NOTES") and such Defaulted Notes do not exceed in
the aggregate 10% of the aggregate principal amount of the Notes, then each
non-defaulting Underwriter shall purchase an aggregate amount of the
Defaulted Notes equal to the proportion that the aggregate principal amount
of Notes to be purchased by such Underwriter as set forth opposite such
Underwriter's name on Schedule I hereto bears to the aggregate principal
amount of Notes to be purchased by all non-defaulting Underwriters.
(b) Notwithstanding the foregoing, if the Defaulted Notes equal or
exceed in the aggregate 10% of the aggregate principal amount of the Notes,
then the non-defaulting Underwriters shall have the right, within 48 hours
after the Closing Date, to make arrangements for one or more of such
non-defaulting Underwriters to purchase all, but not less than all, of the
Defaulted Notes in such amounts as may be agreed upon among such
non-defaulting Underwriters and upon the terms herein set forth; PROVIDED
that if the non-defaulting Underwriters shall not have completed such
arrangements within such 48-hour period, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters
or the Company and the Guarantors.
No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, any of the non-defaulting Underwriters or the Company shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Prospectus or in any other documents
or arrangements.
21
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations and
warranties, covenants and agreements of the Underwriters, the Independent
Underwriter and the Company contained in this Agreement, including the
agreements contained in Section 5, the indemnity agreements contained in
Section 7 and the contribution agreements contained in Section 8, shall
remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling
person thereof, the Independent Underwriter or any controlling person
thereof or by or on behalf of the Company, any of its officers and
directors or any controlling person thereof, and shall survive delivery of
and payment for the Notes to and by the Underwriters. The representations
contained in Section 1 and the agreements contained in Sections 5, 7, 8 and
11(d) hereof shall survive the termination of this Agreement, including
termination pursuant to Section 9 or 11 hereof.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(a) This Agreement shall become effective upon the later of when (i)
you and the Company shall have received notification of the effectiveness
of the Registration Statement or (ii) the execution of this Agreement.
Until this Agreement becomes effective as aforesaid, it may be terminated
by the Company by notifying you or by you by notifying the Company.
Notwithstanding the foregoing, the provisions of this Section 11 and of
Sections 1, 5, 7 and 8 hereof shall at all times be in full force and
effect.
(b) You shall have the right to terminate this Agreement at any time
prior to the Closing Date: (A) if any domestic or international event or
act or occurrence has materially disrupted, or in your opinion will in the
immediate future materially disrupt, the market for the Company's
securities or securities in general; or (B) if trading on the New York
Stock Exchange (the "NYSE") or the NASDAQ National Market (the "NASDAQ")
shall have been suspended or been made subject to material limitations, or
minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, on the NYSE or
the NASDAQ or by order of the Commission or any other governmental
authority having jurisdiction; or (C) if a banking moratorium has been
declared by any state or federal authority or if any material disruption in
commercial banking or securities settlement or clearance services shall
have occurred; or (D) if any downgrading shall have occurred in the
Company's corporate credit rating or the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act;) or if any such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities; or (E) (i) if there shall have occurred any
outbreak or escalation of hostilities or acts of terrorism involving the
United States or there is a declaration of a national emergency or war by
the United States or (ii) if there shall have been any other calamity or
crisis or any change in political, financial or economic conditions if the
effect of any such event in (i) or (ii), in your sole judgment, makes it
impracticable or inadvisable to proceed with the offering, sale and
delivery of the Notes on the terms and in the manner contemplated by the
Prospectus.
22
(c) Any notice of termination pursuant to this Section 11 shall be in
writing.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or
if the sale of the Notes provided for herein is not consummated because any
condition to the obligations of the Underwriters and the Independent
Underwriter set forth herein is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement
herein or comply with any provision hereof, the Company will, subject to
demand by you, reimburse the Underwriters and the Independent Underwriter
for all reasonable out-of-pocket expenses (including the reasonable fees
and expenses of their counsel), incurred by the Underwriters in connection
herewith.
12. NOTICES. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter or the Independent Underwriter, shall
be mailed, delivered, or faxed and confirmed in writing, to such
Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxxxx, with a copy to Xxxxxx &
Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxxx, Esq.;
(b) if sent to the Company, shall be mailed, delivered, or faxed and
confirmed in writing to the Company and its counsel at the addresses set
forth in the Registration Statement, Attention: Xxxxx X. Xxxxxx, Esq., with
a copy to Xxxxxxxx & Worcester LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, 00000, Attention: Xxxxxxx X. Xxxxx, Esq.;
PROVIDED, HOWEVER, that any notice to an Underwriter or the Independent
Underwriter pursuant to Section 7 shall be delivered or sent by mail or
facsimile transmission to such Underwriter or the Independent Underwriter
at its address set forth in its acceptance facsimile to you, if any, which
address will be supplied to any other party hereto by you upon request. Any
such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
13. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. EACH OF THE COMPANY AND THE
GUARANTORS:
(a) irrevocably submits to the jurisdiction of any New York State or
federal court sitting in New York City and any appellate court from any
court thereof in any action or proceeding arising out of or relating to
this Agreement or any other document delivered hereunder;
(b) irrevocably agrees that all claims in respect of any such action
or proceeding may be heard and determined in such New York State court or
in such federal court; and
23
(c) irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding and irrevocably consents, to the fullest extent permitted by
law, to service of process of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Company or any of the Guarantors at
its address as provided in Section 12(b) of this Agreement, such service to
become effective five days after such mailing;
(d) Except as set forth in subsections (a), (b) and (c) above, nothing
in this Section 13 shall affect the right of any person to serve legal
process in any other manner permitted by law or affect the right of any
person to bring any action or proceeding against the Company or any
Guarantor or their properties in the courts of other jurisdictions.
14. PARTIES. This Agreement shall inure solely to the benefit of, and shall be
binding upon, the Underwriters, the Independent Underwriter and the Company
and the controlling persons, directors, officers, employees and agents
referred to in Section 7 and 8, and their respective successors and
assigns, and no other person shall have or be construed to have any legal
or equitable right, remedy or claim under or in respect of or by virtue of
this Agreement or any provision herein contained. The term "successors and
assigns" shall not include a purchaser, in its capacity as such, of Notes
from any of the Underwriters.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
16. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same instrument.
17. HEADINGS. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
18. TIME IS OF THE ESSENCE. Time shall be of the essence of this Agreement. As
used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
19. INDEPENDENT UNDERWRITER. (a) The Company hereby confirms its engagement
of the services of the Independent Underwriter as, and the Independent
Underwriter hereby confirms its agreement with the Company to render
services as, a "qualified Independent Underwriter" within the meaning of
Section (b)(15) of Rule 2720 with respect to the offering and sale of the
Notes.
24
(b) The Independent Underwriter hereby represents and warrants to, and
agrees with, the Company and the Underwriters that with respect to the
offering and sale of the Notes as described in the Prospectus:
(i) The Independent Underwriter constitutes a "qualified
Independent Underwriter" within the meaning of Section (b)(15) of Rule
2720;
(ii) The Independent Underwriter has participated in the
preparation of the Registration Statement and the Prospectus and has
exercised the usual standards of "due diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) Based upon (A) a review of the Company, including an
examination of the Registration Statement, information regarding the
earnings, assets, capital structure and growth rate of the Company and
other pertinent financial and statistical data, (B) inquiries of and
conferences with the management of the Company and its counsel and
independent public accountants regarding the business and operations
of the Company, (C) consideration of the prospects for the industry in
which the Company competes, estimates of the business potential of the
Company, assessments of its management, the general condition of the
securities markets, market prices of the capital stock and debt
securities of, and financial and operating data concerning, companies
believed by the Independent Underwriter to be comparable to the
Company with debt securities of maturity and seniority similar to the
Notes, and (D) such other studies, analyses and investigations as the
Independent Underwriter has deemed appropriate, and assuming that the
offering and sale of the Notes is made as contemplated herein and in
the Prospectus, the Independent Underwriter recommends, as of the date
of the execution and delivery of this Agreement, that the yield to
worst on the Notes be not less than 7.06% (corresponding to an initial
public offering price of the Notes of 96.5% of par, plus accrued
interest, assuming a settlement on December 15, 2003), which minimum
yield should in no way be considered or relied upon as an indication
of the value of the Notes; and
(v) Subject to the provisions of Section 6 hereof, the
Independent Underwriter will furnish to the Underwriters on the
Closing Date a letter, dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect of clauses (i) through
(iv) above.
(c) The Independent Underwriter hereby agrees with the Company and the
Underwriters that, as part of its services hereunder, in the event of any
amendment or supplement to the Prospectus, the Independent Underwriter will
render services as a "qualified Independent Underwriter" within the meaning
of Section (b)(15) of Rule 2720 with respect to the offering and sale of
the Notes as described in the
25
Prospectus as so amended or supplemented that are substantially the same as
those services being rendered with respect to the offering and sale of the
Notes as described in the Prospectus (including those described in
subsection (b) above).
(d) The Company, the Underwriters and the Independent Underwriter
agree to comply in all material respects with all of the requirements of
Rule 2720 applicable to them in connection with the offering and sale of
the Notes. The Company agrees to cooperate with the Underwriters and the
Independent Underwriter to enable the Underwriters to comply with Rule 2720
and the Independent Underwriter to perform the services contemplated by
this Agreement.
(e) The Company and the Independent Underwriter agree that the
Independent Underwriter will provide its services in its capacity as
Independent Underwriter hereunder without compensation other than such
compensation that the Independent Underwriter may receive as an Underwriter
hereunder.
(f) The Independent Underwriter hereby consents to the references to
it as set forth under the caption "Underwriting" in the Prospectus and in
any amendment or supplement thereto made in accordance with Section 4
hereof.
[signature page follows]
26
If the foregoing correctly sets forth the understanding between you and the
Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among us. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
IRON MOUNTAIN INCORPORATED
By: /s/ C. Xxxxxxx Xxxxx
----------------------------------
Name: C. Xxxxxxx Xxxxx
Title: Chairman and Chief Executive
Officer
COMAC, INC.
DATA SECURITY AND STORAGE, INC.
DSI TECHNOLOGY ESCROW SERVICES, INC.
IRON MOUNTAIN GLOBAL, INC.
IRON MOUNTAIN INFORMATION MANAGEMENT, INC.
MOUNTAIN REAL ESTATE ASSETS, INC.
MOUNTAIN RESERVE II, INC.
TREELINE SERVICES CORPORATION
By: /s/ C. Xxxxxxx Xxxxx
---------------------------------------
Name: C. Xxxxxxx Xxxxx
Title: Chairman and Chief Executive
Officer
IRON MOUNTAIN GLOBAL, LLC
By: Iron Mountain Global, Inc., its sole
member
By: /s/ C. Xxxxxxx Xxxxx
----------------------------------
Name:
Title:
IRON MOUNTAIN BUSINESS TRUST #1
By: /s/ C. Xxxxxxx Xxxxx
----------------------------------------
Name: C. Xxxxxxx Xxxxx
Title: Trustee
By: /s/ Xxxx X. Xxxxx, Xx.
----------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Trustee
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Trustee
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
By: /s/ H.C. Xxxxxxx Xxxx
--------------------------------
Name: H.C. Xxxxxxx Xxxx
Title: Senior Managing Director
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Director
XXXXXXX XXXXX & COMPANY, L.L.C.
By: /s/ Xxxxx XxXxxxxx
--------------------------------
Name: Xxxxx XxXxxxxx
Title: Principal
BNY CAPITAL MARKETS, INC.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
CIBC WORLD MARKETS CORP.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
FLEET SECURITIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
SCOTIA CAPITAL (USA) INC.
By: /s/ Xxxx Woynariki
--------------------------------
Name: Xxxx Woynariki
Title: Managing Director
WACHOVIA SECURITIES, INC.
By: /s/ Rit Amin
--------------------------------
Name: Rit Amin
Title: Vice President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
BEAR, XXXXXXX & CO. INC.
Acting as Independent Underwriter
By: /s/ H.C. Xxxxxxx Xxxx
--------------------------------
Name: H.C. Xxxxxxx Xxxx
Title: Senior Managing Director
SCHEDULE I
Aggregate Principal Amount Aggregate Purchase Price
of Notes of Notes
Name of Underwriter To be Purchased to be Purchased
------------------- --------------- ---------------
Bear, Xxxxxxx & Co. Inc. $85,200,000 $80,984,730
X.X. Xxxxxx Securities Inc. $20,000,000 $19,010,500
Xxxxxx Brothers Inc. $20,000,000 $19,010,500
Banc One Capital Markets, Inc. $6,400,000 $6,083,360
Xxxxxxx Xxxxx & Company, L.L.C. $6,400,000 $6,083,360
BNY Capital Markets, Inc. $6,400,000 $6,083,360
CIBC World Markets Corp. $6,400,000 $6,083,360
Fleet Securities, Inc. $6,400,000 $6,083,360
Scotia Capital (USA) Inc. $6,400,000 $6,083,360
Wachovia Securities, Inc. $6,400,000 $6,083,360
Total...................... ===================== ===================
$170,000,000 $161,589,250
S-I-1
SCHEDULE II
LIST OF GUARANTORS
NAME
Iron Mountain Information Management, Inc.
COMAC, Inc.
Iron Mountain Global, Inc.
Iron Mountain Global, LLC
DSI Technology Escrow Services, Inc.
Mountain Real Estate Assets, Inc.
Iron Mountain Business Trust #1
Data Security and Storage, Inc.
Mountain Reserve II, Inc.
Treeline Services Corporation
S-II-1
SCHEDULE III
"B"S IM US IM US
PERCENT PERCENT "NET" %
OWNERSHIP OWNERSHIP OWNERSHIP
ENTITY NAME ("A") OWNED BY ("B") OF "A" OF "B" OF "A"
----------------- -------------- --------- --------- ---------
USA
Upper Providence Venture I, L.P. Iron Mountain Information Management, Inc.
(1% GP, 54% LP) 55.00% 100.00% 55.00%
LATIN/SOUTH AMERICA
H. Investments Ltd. Iron Mountain South America Limited 100.00% 50.10% 50.10%
Sistemas de Archivo
Corporativo S.A. de X.X. de C.V. Iron Mountain Mexico S.A. de X.X de C.V. 50.10% 100.00% 50.10%
Sistemas de Archivo S.A. de X.X. de C.V. Sistemas de Archivo
Corporativo S.A. de X.X. de C.V. 100.00% 50.10% 50.10%
Sistemas de Archivo de Mexico S.A. de X.X. Sistemas de Archivo
Corporativo S.A. de X.X. de C.V. 100.00% 50.10% 50.10%
Iron Mountain South America Limited Iron Mountain Cayman Limited 50.10% 100.00% 50.10%
IMSA Peru SRL Iron Mountain South America Limited 99.88% 50.10% 50.05%
Iron Mountain Peru S.A. IMSA Peru SRL 99.96% 50.0399% 50.00%
Iron Mountain Chile S.A. Iron Mountain South America Limited 55.00% 50.10% 27.56%
Iron Mountain do Brasil
Emprenedimentos Ltda. Iron Mountain South America Limited 99.90% 50.10% 50.05%
Iron Mountain Argentina S.A. Iron Mountain South America Limited 80.01% 50.10% 40.09%
Iron Mountain do Brasil S.A. Iron Mountain do Brasil Emprenedimentos Ltda. 70.00% 50.05% 34.33%
Almacenaje Y Administracion de Archives LTDA Iron Mountain Chile S.A. (99.9%) and
Custodia de Documentos LTDA
de Archives LTDA ((0.1%) 100.00% 50.10% 50.10%
Custodia de Documentos LTDA de Archives LTDA Iron Mountain Chile S.A. (99.9%) and
Immobiliria E Inversiones
LA Primavera LTDA (0.1%) 100.00% 50.10% 50.10%
Immobiliria E Inversiones LA Primavera LTDA Iron Mountain Chile S.A. (99.9%) and
. Iron Mountain South America (0.1%) 100.00% 50.10% 50.10%
Movers & Files S.A H. Investments 100.00% 50.10% 50.10%
EUROPE
Iron Mountain Europe Limited Iron Mountain Group (Europe) Limited 50.10% 100.00% 50.10%
TM 1177 Ltd. Iron Mountain Group (Europe) Limited 100.00% 100.00% 100.00%
Iron Mountain (UK) Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Arcus Data Security, Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Schedule III-1
"B"S IM US IM US
PERCENT PERCENT "NET" %
OWNERSHIP OWNERSHIP OWNERSHIP
ENTITY NAME ("A") OWNED BY ("B") OF "A" OF "B" OF "A"
----------------- -------------- --------- --------- ---------
The Document Storage Company Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Iron Mountain Scotland (Holdings) Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Iron Mountain Scotland Limited Iron Mountain Scotland (Holdings) Limited
and JAD (93) Limited (28.2%) 71.8% 50.10% 50.10%
Iron Mountain Ireland (Holdings) Ltd. Iron Mountain Holdings (Europe) Limited 100.00% 50.10% 50.10%
Iron Mountain Ireland Ltd. Iron Mountain Ireland (Holdings) Ltd. 100.00% 50.10% 50.10%
Record Data Limited Iron Mountain Ireland Limited 100.00% 50.10% 50.10%
Honanross Limited Record Data Limited 100.00% 50.10% 50.10%
JAD 93 Limited Iron Mountain Scotland (Holdings) Limited 100.00% 50.10% 50.10%
Document and Information Management
Services Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Kestrel Data Services Limited Iron Mountain (UK) Limited 100.00% 50.10% 50.10%
Xxxxxx Data Management Limited Iron Mountain (UK) Limited 100.00% 50.10% 50.10%
Kestrel Data UK Limited Kestrel Data Services Limited 100.00% 50.10% 50.10%
Britannia Data Management Ltd. Kestrel Data UK Limited 100.00% 50.10% 50.10%
Kestrel Reprographics Limited Kestrel Data UK Limited 100.00% 50.10% 50.10%
Datavault Limited Datavault Holdings Limited (65.97%,
Iron Mountain Europe Limited (28.12%),
Silver Sky Limited (5.9%) 100.00% 50.10% 50.10%
Silver Sky Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Datavault Holdings Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Datavault Northwest Limited Datavault Limited 100.00% 50.10% 50.10%
Datavault Southwest Limited Datavault Limited 100.00% 50.10% 50.10%
Array Investments BV Iron Mountain (Holdings) Europe Limited 100.00% 50.10% 50.10%
Xxxx Informatiebeheer Array Investments BV 100.00% 50.10% 50.10%
Iron Mountain Deutschland GmbH Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Xxxx Information Management Gmb H Iron Mountain Deutschland GmbH 100.00% 50.10% 50.10%
Archive Services Limited Iron Mountain (UK) Limited 100.00% 50.10% 50.10%
Xxxxx and Xxxxxxxxx Limited Archive Services Limited 100.00% 50.10% 50.10%
Iron Mountain Holdings (Europe) Limited Iron Mountain Europe Limited 100.00% 50.10% 50.10%
Iron Mountain Holdings (France) SNC Document and Information Management
Limited (99.9%) and
Xxxxxx Data Management Limited (0.1%) 100.00% 50.10% 50.10%
Iron Mountain (France) S.A. Iron Mountain Holdings (France) S.n.c. 100.00% 50.10% 50.10%
Archivage Actif Group
Iron Mountain SAS Iron Mountain (France) S.A. 100.00% 50.10% 50.10%
Schedule III-2
"B"S IM US IM US
PERCENT PERCENT "NET" %
OWNERSHIP OWNERSHIP OWNERSHIP
ENTITY NAME ("A") OWNED BY ("B") OF "A" OF "B" OF "A"
----------------- -------------- --------- --------- ---------
FIME S.A. Iron Mountain (France) S.A. 100.00% 50.10% 50.10%
Memogarde S.A. FIME S.A. 100.00% 50.10% 50.10%
Societe Civile Immobiliere
du Chemin Cornillon FIME S.A. 100.00% 50.10% 50.10%
Iron Mountain Espana S.A. Iron Mountain Holdings (Europe) Limited 100.00% 50.10% 50.10%
Xxxx Information Management Solutions AS Iron Mountain Holdings (Europe) Limited 100.00% 50.10% 50.10%
TTN Geodata Services AS Xxxx Information Management Solutions AS 100.00% 50.10% 50.10%
Norsk Geodata Xxxxxx AS TTN Geodata Services AS 100.00% 50.10% 50.10%
Iron Mountain Belgium NV Iron Mountain Holdings (Europe) Limited 100.00% 50.10% 50.10%
Schedule III-3
ANNEX I
FORM OF OPINION OF COMPANY'S OUTSIDE COUNSEL
1. Each of the Guarantors (i) has been duly incorporated or formed, (ii) is
validly existing as a corporation, limited liability company or
Massachusetts statutory business trust, (iii) is in good standing under the
laws of its jurisdiction of incorporation or formation and (iv) has the
corporate, limited liability company or statutory business trust power and
authority required to carry on its business as it is described in the
Registration Statement and the Prospectus.
2. The Company is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
3. All of the issued and outstanding shares of capital stock of, or other
ownership interests in, each of the Guarantors have been duly and validly
authorized and issued and are fully paid and non-assessable, and are, to
our knowledge, owned beneficially by the Company or its subsidiaries, free
and clear of any perfected security interest or adverse claim, except to
the extent described in the Prospectus or as would not be material to the
business, prospects, financial conditions or results of operations of the
Company and its subsidiaries, taken as a whole.
4. The Indenture has been duly authorized by all necessary corporate, limited
liability company or statutory business trust, as the case may be, action
of the Guarantors and, when the Notes are executed and authenticated in
accordance with the provisions of the Indenture and delivered to the
Underwriter against payment therefor as provided by the
Underwriting
Agreement, the Notes and the Guarantees will be entitled to the benefits of
the Indenture, and will be valid and binding obligations of the Company and
the Guarantors, respectively, enforceable in accordance with their terms.
5. The
Underwriting Agreement has been duly delivered by the Company and duly
authorized, executed and delivered by the Guarantors.
6. The Indenture has been duly delivered by the Company and duly authorized,
executed and delivered by the Guarantors and is a valid and binding
agreement of the Company and the Guarantors enforceable in accordance with
its terms.
7. The statements under the "Description of the Notes," "Material United
States Federal Income Tax Considerations" and "Underwriting" in the
Prospectus, as amended or supplemented through the date hereof, insofar as
such statements constitute a summary of legal matters, documents or
proceedings referred to therein, fairly present the information so
summarized with respect to such legal matters, documents and proceedings.
Annex I - 1
8. To our knowledge, no holder of any securities of the Company has the right
to require registration of any security of the Company in connection with
the filing of the Registration Statement or the issuance of the Notes.
9. The execution, delivery and performance of the
Underwriting Agreement, the
Indenture and the Notes, the performance of the Guarantees, and compliance
by the Company and the Guarantors with all the provisions thereof and the
consummation of the transactions contemplated thereby do not require any
consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (or pursuant to any
consent decree known to us by which the Company or a Guarantor is bound),
and do not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws or comparable
organizational documents of the Company or any of the Guarantors or any
agreement filed as an exhibit to the Registration Statement, the Company's
Annual Report on Form 10-K for the year ended December 31, 2002, including
any amendments thereto (the "Annual Report"), the Company's Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2003, June 30, 2003
and September 30, 2003, including any amendments thereto (collectively, the
"Quarterly Reports") or any other agreement or other document known to us
under which the Company or any of the Guarantors has outstanding
indebtedness for money borrowed in excess of $4,000,000, or violate or
conflict with any laws, administrative regulations or rulings or, to our
knowledge, court decrees applicable to the Company, any of the Guarantors
or their respective property.
10. To our knowledge (A) no legal or governmental proceedings are pending or
threatened to which the Company or any of the Guarantors is a party or to
which any of their respective property is subject that are required to be
described in the Prospectus and are not so described and (B) no contract or
other document is required to be described in the Prospectus or filed as an
exhibit to the Registration Statement that is not so described or filed.
11. Neither the Company nor any Guarantor is now, nor immediately after the
offering of the Notes as described in the Prospectus will be, an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or is
or will be subject to registration under the Investment Company Act.
12. The Registration Statement has become effective under the Act, and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose are pending
before or threatened by the Commission. Any required filing of the
Prospectus pursuant to Rule 424 under the Act has been made in accordance
with said Rule 424. The Indenture has been duly qualified under the Trust
Indenture Act.
13. The Registration Statement and the Prospectus and any supplements or
amendments thereto (except for (i) the financial statements and the notes
thereto and the schedules and other financial data included or incorporated
by reference therein, and (ii) the part of the Registration Statement that
constitutes the Statement of Eligibility (Form
Annex I - 2
T-1) of the Trustee under the Trust Indenture Act, as to which we express
no opinion), as of their respective effective date or issue date, complied
as to form in all material respects with the requirements of the Act.
14. The Registration Statement, the Annual Report and each of the Quarterly
Reports (except for the financial statements and the notes thereto and the
schedules and other financial data included or incorporated by reference
therein, as to which we express no opinion) complied as to form when filed
with the Commission in all material respects with the requirements of the
Exchange Act.
Such opinion shall also recite that:
In the course of the Company's preparation of the Registration Statement and the
Prospectus, we have participated in conferences with officers and other
representatives of the Company, counsel for the Underwriter, representatives of
the independent public accountants for the Company, and you, at which the
contents of the Registration Statement and Prospectus and related matters were
discussed and, although we are not passing upon, and do not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus and have not
made any independent check or verification thereof (except as set forth in
paragraph 7), on the basis of the foregoing, we advise you that (except as to
(i) the financial statements, schedules and other financial data included in the
Registration Statement or the Prospectus, and (ii) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under the
Trust Indenture Act, as to which you have not asked us to express, and as to
which we do not express, any views) no facts have come to our attention that
would lead us to believe that (x) the Registration Statement (including the
Annual Report, the Quarterly Reports and the Incorporated Documents), as of the
time it became effective under the Act, as of March 21, 2003 at the time of
filing the Annual Report, or on the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or (y) the Prospectus (including the documents
incorporated by reference therein), at the time it was first provided to the
Underwriter for use in connection with the offering of the Notes or at the date
hereof, included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Annex I - 3
ANNEX II
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
1. The statements under the captions "Executive Compensation" and "Certain
Relationships and Related Transactions" in the Company's Proxy Statement
for the annual meeting of shareholders held on May 22, 2003 incorporated by
reference in the Company's Annual Report on Form 10-K, as amended by
Amendment No. 1 on Form 10-K/A, for the year ended December 31, 2002 and
incorporated by reference in the Prospectus, as amended or supplemented,
insofar as such statements constitute a summary of legal matters, documents
or proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings;
2. The execution, delivery and performance of the
Underwriting Agreement, the
Indenture, the Notes and the Guarantees and compliance by the Company and
the Guarantors with all the provisions thereof and the consummation of the
transactions contemplated thereby do not require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body (except as such may be required under the
securities or Blue Sky laws of the various states or jurisdictions outside
the United States), and will not conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the charter or
by-laws or comparable organizational documents of the Company or any of its
subsidiaries or any agreement, indenture or other instrument to which it or
any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, or violate or conflict
with any laws, administrative regulations or rulings or court decrees
applicable to the Company, any of its subsidiaries or their respective
property;
3. I do not know of (A) any legal or governmental proceeding pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of their respective property is subject which is required to be
described in the Prospectus and is not so described, or (B) any contract or
other document which is required to be described in the Prospectus or filed
as an exhibit to the Registration Statement and is not so described or so
filed;
4. To my knowledge, neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or comparable organizational
documents and, to my knowledge, neither the Company nor any of its
subsidiaries is in default in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or other evidence of
indebtedness or in any other agreement, indenture or instrument material to
the conduct of the business of the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by
which it or any of its subsidiaries or their respective properties are
bound;
5. All leases to which the Company or any of its subsidiaries is a party
relating to real property in Massachusetts or California are valid and
binding and no default has occurred or is continuing thereunder which might
result in any material adverse change in the business prospects, financial
condition or results of operations of the Company and its
Annex II - 1
subsidiaries taken as a whole, and the Company and its subsidiaries enjoy
peaceful and undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not materially
interfere with the use made thereof by the Company or such subsidiary; and
6. To my knowledge, the Company and each of its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("Permits"), including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its
respective properties and to conduct its respective business in the manner
described in the Prospectus; to my knowledge, the Company and each of its
subsidiaries has fulfilled and performed all of its material obligations
with respect to such Permits and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof or would result in any other material impairment of the rights of
the holder of any such Permit, except as in each case as would not, singly
or in the aggregate, have a material adverse effect (financial or
otherwise) on the Company and its subsidiaries, taken as a whole; and,
except as described in the Prospectus, such Permits contain no restrictions
that materially interfere with the business or operations of the Company or
any of its subsidiaries as currently conducted.
Such opinion shall also recite that:
I assisted in collecting information requested by your counsel and outside
counsel to the Company and responded to inquiries concerning the Company and its
subsidiaries raised by such counsel, and I have reviewed the Registration
Statement and the Prospectus; although except as expressly set forth herein, I
am not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus, no facts have come to my attention that would lead
me to believe that (except as to (i) financial statements, schedules and other
financial data contained therein and (ii) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under the
Trust Indenture Act, as to which I express no view), (x) the Registration
Statement (including the documents incorporated by reference therein), as of the
time it became effective under the Securities Act, as of March 21, 2003 at the
time of filing the Annual Report, or on the date hereof, contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading or (y) the Prospectus (including the documents
incorporated by reference therein), at the time it was first provided to the
Underwriters for use in connection with the offering of the Notes or at the date
hereof, included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Annex II - 2
ANNEX III
FORM OF OPINION OF SPECIAL PENNSYLVANIA COUNSEL TO THE COMPANY
1. In reliance on the various certificates from the Commonwealth of
Pennsylvania and a secretary's certificate from the Company, the Company is
a corporation duly incorporated and validly subsisting under the laws of
the Commonwealth of Pennsylvania and has the corporate power to own, lease
and operate its properties and to conduct its business as described in the
Prospectus, to execute, deliver and perform its obligations under the
Underwriting Agreement and the Indenture and to consummate the transactions
contemplated by the
Underwriting Agreement and by the Prospectus.
2. The
Underwriting Agreement and the Indenture have been duly executed by the
Company.
3. The execution, delivery and performance of the
Underwriting Agreement, the
Indenture and the Note, and the consummation of the transactions
contemplated therein, have been duly authorized by all necessary corporate
action on the part of the Company and will not (i) violate the provisions
of the Articles of Incorporation or Bylaws of the Company or (ii) violate
any present statute, rule or regulation promulgated by the Commonwealth of
Pennsylvania which in our experience is normally applicable both to general
business corporations which are not engaged in regulated business
activities and to transactions of the type contemplated by the Registration
Statement, the Prospectus, the Indenture, the Note and the Underwriting
Agreement (collectively, the "Law").
4. The statements under the captions "Description of Our Capital Stock" and
"Description of Certain Provisions of Pennsylvania Law and Our Articles of
Incorporation and Bylaws" in the Prospectus and "Indemnification of
Directors and Officers" in the Registration Statement have been reviewed by
us, and insofar as such statements constitute summaries of certain
provisions of the Articles of Incorporation or Bylaws of the Company,
statutes, rules, regulations or statements of Law, they constitute fair
summaries thereof.
5. No consent or approval of, or notice to or filing with, any governmental
authority or agency of the Commonwealth of Pennsylvania under any provision
of applicable Law is required by the Company in connection with the
execution and delivery of the Indenture or the issuance of the Note
pursuant to the Indenture, or the offer and sale of the Note pursuant to
the Underwriting Agreement, except those already obtained or made or those
described in the Prospectus.
Annex III - 1
