<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark One)
\X\ Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the Quarterly Period Ended September 30, 1999
or
\ \ Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the Transition Period from to
---- ----
COMMISSION FILE NUMBER 1-14937
IRON MOUNTAIN INCORPORATED
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 04-3107342
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
745 ATLANTIC AVENUE, BOSTON, MA 02111
(Address of Principal Executive Offices, Including Zip Code)
(617) 535-4766
(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
YES X NO
---- ----
As of November 5, 1999, there were 35,415,837 shares of the Registrant's Common
Stock, par value $0.01 per share, and no shares of the Registrant's Nonvoting
Common Stock, par value $0.01 per share, outstanding.
<PAGE>
IRON MOUNTAIN INCORPORATED
INDEX
<TABLE>
<CAPTION>
PAGE
PART I - FINANCIAL INFORMATION
<S> <C> <C>
Item 1 - Financial Statements
Condensed Consolidated Balance Sheets at September 30, 1999 and
December 31, 1998 (Unaudited) 3
Condensed Consolidated Statements of Operations for the Three Months Ended
September 30, 1999 and 1998 (Unaudited) 4
Condensed Consolidated Statements of Operations for the Nine Months Ended
September 30, 1999 and 1998 (Unaudited) 5
Condensed Consolidated Statements of Cash Flows for the Nine Months Ended
September 30, 1999 and 1998 (Unaudited) 6
Notes to Condensed Consolidated Financial Statements (Unaudited) 7-16
Item 2 - Management's Discussion and Analysis of Financial Condition and Results of
Operations 17-23
Item 3 - Quantitative and Qualitative Disclosures About Market Risk 24
PART II - OTHER INFORMATION
Item 6 - Exhibits and Reports on Form 8-K 24-25
Signatures 26
</TABLE>
2
<PAGE>
IRON MOUNTAIN INCORPORATED
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands)
(Unaudited)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1999 1998
----------------- -----------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and Cash Equivalents $ 3,472 $ 1,715
Accounts Receivable (less allowances of $4,475
and $3,316 respectively) 106,115 75,565
Foreign Currency Transaction Receivable -- 45,885
Deferred Income Taxes 12,528 10,474
Prepaid Expenses and Other 22,873 10,298
----------- -----------
Total Current Assets 144,988 143,937
PROPERTY, PLANT AND EQUIPMENT:
Property, Plant and Equipment 477,889 354,101
Less: Accumulated Depreciation (98,640) (87,358)
----------- -----------
Property, Plant and Equipment, net 379,249 266,743
OTHER ASSETS:
Goodwill, net 724,578 527,235
Customer Acquisition Costs, net 14,985 9,574
Deferred Financing Costs, net 17,014 13,392
Other 7,110 6,504
----------- -----------
Total Other Assets 763,687 556,705
----------- -----------
Total Assets $ 1,287,924 $ 967,385
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current Portion of Long-term Debt $ 4,570 $ 1,731
Accounts Payable 19,543 20,620
Accrued Expenses and Other 60,776 48,878
Foreign Currency Transaction Payable -- 46,200
Deferred Income 31,579 26,043
----------- -----------
Total Current Liabilities 116,468 143,472
LONG-TERM DEBT, NET OF CURRENT PORTION 598,493 454,447
OTHER LONG-TERM LIABILITIES 8,914 8,925
DEFERRED RENT 10,591 9,616
DEFERRED INCOME TAXES 20,946 12,043
MINORITY INTEREST 48,357 --
STOCKHOLDERS' EQUITY:
Common Stock 368 294
Additional Paid-in Capital 556,360 355,927
Accumulated Deficit (31,142) (17,339)
Accumulated Other Comprehensive Income (1,947) --
Treasury Stock (39,484) --
----------- -----------
Total Stockholders' Equity 484,155 338,882
----------- -----------
Total Liabilities and Stockholders' Equity $ 1,287,924 $ 967,385
=========== ===========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL
STATEMENTS.
3
<PAGE>
IRON MOUNTAIN INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands except Per Share Data)
(Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SEPTEMBER 30,
-----------------------------------------
1999 1998
------------------ -----------------
<S> <C> <C>
REVENUES:
Storage $ 82,339 $ 59,506
Service and Storage Material Sales 54,568 39,038
--------- ---------
Total Revenues 136,907 98,544
OPERATING EXPENSES:
Cost of Sales (Excluding Depreciation) 69,226 49,506
Selling, General and Administrative 33,381 24,069
Depreciation and Amortization 16,338 12,630
--------- ---------
Total Operating Expenses 118,945 86,205
--------- ---------
OPERATING INCOME 17,962 12,339
INTEREST EXPENSE 14,075 10,979
OTHER INCOME 115 --
--------- ---------
Income from Continuing Operations Before Provision for
Income Taxes and Minority Interest 4,002 1,360
PROVISION FOR INCOME TAXES 2,953 2,378
MINORITY INTEREST 50 --
--------- ---------
Income (Loss) from Continuing Operations 999 (1,018)
LOSS FROM DISCONTINUED OPERATIONS (NET OF APPLICABLE TAXES) -- (51)
LOSS ON SALE OF DISCONTINUED OPERATIONS (4,000) --
--------- ---------
Net Loss $ (3,001) $ (1,069)
========= =========
NET LOSS PER COMMON SHARE - BASIC AND DILUTED:
Income (Loss) from Continuing Operations $ 0.03 $ (0.03)
Loss from Discontinued Operations (Net of Applicable Taxes) -- (0.01)
Loss on Sale of Discontinued Operations (0.11) --
--------- ---------
Net Loss Per Common Share - Basic and Diluted $ (0.08) $ (0.04)
========= =========
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING:
Basic 35,331 29,209
========= =========
Diluted 36,196 29,209
========= =========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL
STATEMENTS.
4
<PAGE>
IRON MOUNTAIN INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands except Per Share Data)
(Unaudited)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
---------------------------------------
1999 1998
------------------ ----------------
<S> <C> <C>
REVENUES:
Storage $ 229,989 $ 168,046
Service and Storage Material Sales 148,054 113,018
--------- ---------
Total Revenues 378,043 281,064
OPERATING EXPENSES:
Cost of Sales (Excluding Depreciation) 189,828 141,179
Selling, General and Administrative 94,194 70,067
Depreciation and Amortization 46,214 35,591
--------- ---------
Total Operating Expenses 330,236 246,837
--------- ---------
OPERATING INCOME 47,807 34,227
INTEREST EXPENSE 40,246 34,166
OTHER INCOME 115 1,700
--------- ---------
Income from Continuing Operations Before Provision for
Income Taxes and Minority Interest 7,676 1,761
PROVISION FOR INCOME TAXES 7,805 3,720
MINORITY INTEREST 515 --
--------- ---------
Loss from Continuing Operations (644) (1,959)
INCOME FROM DISCONTINUED OPERATIONS (NET OF APPLICABLE TAXES) 241 315
LOSS ON SALE OF DISCONTINUED OPERATIONS (13,400) --
--------- ---------
Net Loss $ (13,803) $ (1,644)
========= =========
NET LOSS PER COMMON SHARE - BASIC AND DILUTED:
Loss from Continuing Operations $ (0.02) $ (0.07)
Income from Discontinued Operations (Net of Applicable Taxes) 0.01 0.01
Loss on Sale of Discontinued Operations $ (0.41) --
--------- ---------
Net Loss Per Common Share - Basic and Diluted $ (0.42) $ (0.06)
========= =========
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING - BASIC AND DILUTED 32,641 26,848
========= =========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL
STATEMENTS.
5
<PAGE>
IRON MOUNTAIN INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands except Per Share Data)
(Unaudited)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
----------------------------------------
1999 1998
----------------- -------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Loss $ (13,803) $ (1,644)
Adjustments to reconcile net loss to loss from continuing operations:
Income from Discontinued Operations (241) (315)
Loss on sale of Discontinued Operations 13,400 --
--------- ---------
Loss from Continuing Operations (644) (1,959)
Adjustments to Reconcile Loss from Continuing Operations to Cash Flows
Provided by Operating Activities of Continuing Operations:
Minority Interest 5,295 --
Depreciation and Amortization 46,214 35,591
Amortization of Financing Costs 1,455 1,350
Provision for Doubtful Accounts 1,580 1,236
Other, net (97) --
Changes in Assets and Liabilities (Exclusive of Acquisitions):
Accounts Receivable (18,653) (6,305)
Prepaid Expenses and Other Current Assets (10,186) 8,196
Deferred Income Taxes 7,248 2,490
Other Assets 139 967
Accounts Payable (4,947) (5,709)
Accrued Expenses and Other Current Liabilities (1,283) 1,889
Deferred Income 1,422 537
Deferred Rent 975 1,107
Other Long-term Liabilities (9) 4,170
--------- ---------
Cash Flows Provided by Continuing Operations 28,509 43,560
Cash Flows Provided by Discontinued Operations 790 1,171
--------- ---------
Cash Flows Provided by Operating Activities 29,299 44,731
CASH FLOWS FROM INVESTING ACTIVITIES:
Cash Paid for Acquisitions (187,513) (175,029)
Capital Expenditures (72,769) (36,957)
Additions to Customer Acquisition Costs (6,061) (2,326)
--------- ---------
Cash Flows Used in Continuing Operations (266,343) (214,312)
Cash Flows Used in Discontinued Operations (409) (262)
--------- ---------
Cash Flows Used in Investing Activities (266,752) (214,574)
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayment of Debt (236,420) (142,286)
Proceeds from Borrowings 216,744 153,600
Net Proceeds from Sale of Senior Subordinated Notes 149,460 --
Financing Costs (5,077) (344)
Net Proceeds from Equity Offering 153,755 132,905
Repurchase of Common Stock (39,484) --
Proceeds from Exercise of Stock Options 1,518 2,961
Stock Issuance Costs (1,220) (981)
--------- ---------
Cash Flows Provided by Continuing Operations 239,276 145,855
Cash Flows Provided by Discontinued Operations -- --
--------- ---------
Cash Flows Provided by Financing Activities 239,276 145,855
EFFECT OF EXCHANGE RATES ON CASH AND CASH EQUIVALENTS (66) --
--------- ---------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 1,757 (23,988)
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 1,715 24,510
--------- ---------
CASH AND CASH EQUIVALENTS, END OF PERIOD 3,472 522
========= =========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL
STATEMENTS.
6
<PAGE>
IRON MOUNTAIN INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands except Per Share Data)
(Unaudited)
(1) GENERAL
The interim condensed consolidated financial statements presented herein have
been prepared by Iron Mountain Incorporated ("Iron Mountain" or the "Company")
without audit and, in the opinion of management, reflect all adjustments of a
normal recurring nature necessary for a fair presentation. Interim results are
not necessarily indicative of results for a full year.
The condensed consolidated balance sheet presented as of December 31, 1998, has
been derived from the consolidated financial statements that have been audited
by the Company's independent public accountants. The unaudited condensed
consolidated financial statements have been prepared pursuant to the rules and
regulations of the Securities and Exchange Commission. Certain information and
footnote disclosures normally included in the annual financial statements
prepared in accordance with generally accepted accounting principles have been
omitted pursuant to those rules and regulations, but the Company believes that
the disclosures are adequate to make the information presented not misleading.
The condensed consolidated financial statements and notes included herein should
be read in conjunction with the consolidated financial statements and related
notes for the year ended December 31, 1998 included in the Company's Current
Report on Form 8-K filed with the Securities and Exchange Commission on July 9,
1999.
(2) COMPREHENSIVE INCOME (LOSS)
Statement of Financial Accounting Standards No. 130, "Reporting Comprehensive
Income," requires presentation of the components of comprehensive income (loss),
including the changes in equity from non-owner sources such as unrealized gains
(losses) on securities and foreign currency translation adjustments. The
Company's total comprehensive income (loss) is as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------------------ ------------------------------
1999 1998 1999 1998
----------------- --------------- ------------- -------------
<S> <C> <C> <C> <C>
Comprehensive Loss:
Net Loss $ (3,001) $ (1,069) $(13,803) $ (1,644)
Other Comprehensive Income (Loss):
Foreign Currency Translation Adjustment 340 -- (1,947) --
-------- -------- -------- --------
Comprehensive Loss $ (2,661) $ (1,069) $(15,750) $ (1,644)
======== ======== ======== ========
</TABLE>
7
<PAGE>
IRON MOUNTAIN INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands except Per Share Data)
(Unaudited)
(Continued)
(3) ACQUISITIONS
During the nine months ended September 30, 1999, the Company: (i) purchased a
controlling 50.1% interest in Britannia Data Management Limited ("BDM"), a
provider of records and information management services in the United
Kingdom; (ii) purchased substantially all of the assets, and assumed certain
liabilities, of 11 records and information management businesses, including
BDM's acquisition of Memogarde, S.A.; and (iii) invested in Sistemas de
Archivo Corporativo ("SAC"), a provider of records and information management
services in Mexico, to gain a controlling 50.1% interest and to infuse growth
capital (collectively, the "1999 Acquisitions"). Each of the 1999
Acquisitions and all 15 of the records and information management businesses
acquired during 1998 (the "1998 Acquisitions"), were accounted for using the
purchase method of accounting and, accordingly, the results of operations for
each acquisition have been included in the consolidated results of the
Company from their respective acquisition dates. In connection with certain
1999 and 1998 acquisitions, related real estate was also purchased. The
aggregate purchase price for the 1999 Acquisitions was comprised of cash, the
Company's common stock and the capital stock of Arcus Data Security Limited
("ADS"), the Company's existing data security business in London, and
exceeded the underlying fair value of the net assets acquired by $165,458,
which has been assigned to goodwill and is being amortized over 25 to 30
years. The $63,586 of goodwill recorded by BDM relates to the 1996
acquisition of BDM by Mentmore Abbey plc. The purchase price allocations are
preliminary and subject to adjustment.
A summary of the total consideration and the preliminary allocation of the
aggregate purchase price of the 1999 Acquisitions, as of the acquisition dates,
is as follows:
<TABLE>
<S> <C>
Purchase Price:
Cash Paid $ 187,513
Fair Value of Common Stock Issued 46,000
Fair Value of ADS Capital Stock 2,489
---------
Total Purchase Price $ 236,002
=========
Allocation of Purchase Price:
Current Assets $ 23,331
Property, Plant & Equipment 64,561
Other Assets 1,647
Fair Value of ADS Net Assets 2,489
Goodwill Recorded by BDM 63,586
Goodwill Recorded by Iron Mountain 165,458
Liabilities Assumed (45,747)
Minority Interest (39,323)
---------
Total Allocation of Purchase Price $ 236,002
=========
</TABLE>
In May 1999, the Company repurchased for $39,484 all of the 1,476,577 shares of
its common stock issued in connection with a certain 1999 Acquisition. These
shares had a fair value of $46,000 when issued.
8
<PAGE>
IRON MOUNTAIN INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands except Per Share Data)
(Unaudited)
(Continued)
(3) ACQUISITIONS (CONTINUED)
In September 1999, BDM acquired Stortext (Holdings) Limited and Datavault, S.A.
for approximately $22 million in cash and assumed debt. Stortext operates seven
facilities in Edinburgh and Glasgow, Scotland and Datavault operates seven
facilities in five markets in Spain including Madrid and Bilbao. Due to the
two-month difference in fiscal year ends between the Company and BDM, BDM's
acquisitions of Stortext and Datavault are not reflected in the accompanying
condensed consolidated financial statements and notes thereto.
The following unaudited pro forma information shows the results of the
Company's operations for the nine months ended September 30, 1999 and the
year ended December 31, 1998, as though each of the 1999 and 1998
Acquisitions, except Stortext (Holdings) Limited and Datavault, S.A., had
occurred as of the beginning of the respective period:
<TABLE>
<CAPTION>
YEAR
NINE MONTHS ENDED ENDED
SEPTEMBER 30, DECEMBER 31,
1999 1998
----------------- ----------------
<S> <C> <C>
Revenues $ 399,320 $ 480,843
Loss from Continuing Operations (1,540) (10,003)
Loss from Continuing Operations Per Share - Basic and Diluted (0.05) (0.34)
</TABLE>
The pro forma results have been prepared for comparative purposes only and are
not necessarily indicative of the actual results of operations had the
acquisitions taken place as of the beginning of each period or the results that
may occur in the future. Furthermore, the pro forma results do not give effect
to all cost savings or incremental costs which may occur as a result of the
integration and consolidation of the businesses.
9
<PAGE>
IRON MOUNTAIN INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands except Per Share Data)
(Unaudited)
(Continued)
(4) LONG-TERM DEBT
Long-term debt consists of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999 DECEMBER 31, 1998
---------------------------------- ---------------------------------
CARRYING FAIR CARRYING FAIR
AMOUNT VALUE AMOUNT VALUE
-------------- ------------- -------------- --------------
<S> <C> <C> <C> <C>
8-1/4% Senior Subordinated Notes (the
"1999 Notes") $ 149,479 $ 135,750 $ -- $ --
8-3/4% Senior Subordinated Notes (the
"1997 Notes") 249,596 235,000 249,566 257,500
10-1/8% Senior Subordinated Notes (the
"1996 Notes") 165,000 167,475 165,000 178,200
Revolving Credit Facility -- -- 35,300 35,300
Real Estate Mortgages 2,123 2,123 2,349 2,349
Other 36,865 36,865 3,963 3,963
--------- ---------
Total Long-term Debt 603,063 456,178
Less: Current Portion (4,570) (1,731)
--------- ---------
Long-term Debt, Net of Current Portion
$ 598,493 $ 454,447
========= =========
</TABLE>
The estimated fair values for the long-term debt are based on the borrowing
rates available to the Company at September 30, 1999 and December 31, 1998 for
loans with similar terms and average maturities. The fair values of the 1996
Notes, 1997 Notes and 1999 Notes are based on the quoted market prices for those
notes on September 30, 1999 and December 31, 1998.
10
<PAGE>
IRON MOUNTAIN INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands except Per Share Data)
(Unaudited)
(Continued)
(5) SELECTED CONSOLIDATED FINANCIAL STATEMENTS OF PARENT, GUARANTORS AND NON-
GUARANTORS
The 1996 Notes, the 1997 Notes and the 1999 Notes are fully and
unconditionally guaranteed, on a joint and several senior subordinated
basis, by most, but not all, of the Company's direct and indirect
subsidiaries (the "Guarantors"). Currently, BDM and its subsidiaries, SAC
and its subsidiaries, Iron Mountain (Puerto Rico), Inc. and certain parent
holding companies (the "Non-Guarantors") are the only subsidiaries that do
not guarantee the 1996 Notes, the 1997 Notes or the 1999 Notes.
Prior to the acquisition of BDM in January 1999, substantially all of the
Company's operations were conducted by its direct and indirect wholly owned
subsidiaries, all of which, other than ADS, were guarantors of the 1996
Notes and 1997 Notes. ADS represented less than 1% of the Company's
consolidated revenues and was not material to its results of operations. The
Company's management does not believe that separate financial statements of,
and other disclosures with respect to, the Guarantors for periods prior to
1999 are meaningful or material to investors. Accordingly, no such financial
statements were provided.
The following financial data summarizes the consolidating Company on the
equity method of accounting as of and for the three and nine month periods
September 30, 1999:
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999
------------------------------------------------------------------------
NON-
PARENT GUARANTORS GUARANTORS ELIMINATIONS CONSOLIDATED
---------- ----------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and Cash Equivalents $ -- $ 1,422 $ 2,050 $ -- $ 3,472
Accounts Receivable -- 98,425 7,690 -- 106,115
Other Current Assets -- 30,741 5,325 (665) 35,401
---------- ---------- ----------- ----------- ------------
Total Current Assets -- 130,588 15,065 (665) 144,988
PROPERTY, PLANT AND EQUIPMENT, NET -- 334,688 44,561 -- 379,249
OTHER ASSETS:
Due From Affiliates 214,543 -- -- (214,543) --
Long-term Notes Receivable from Affiliates 549,867 -- -- (549,867) --
Investment in Subsidiaries 279,818 56,583 -- (336,401) --
Goodwill, net -- 634,033 90,545 -- 724,578
Other 16,297 22,209 603 -- 39,109
---------- ---------- ----------- ----------- ------------
Total Other Assets 1,060,525 712,825 91,148 (1,100,811) 763,687
---------- ---------- ----------- ----------- ------------
Total Assets $1,060,525 $1,178,101 $ 150,774 $(1,101,476) $ 1,287,924
========== ========== =========== =========== ============
LIABILITIES AND STOCKHOLDERS' EQUITY
TOTAL CURRENT LIABILITIES 11,395 93,865 11,873 (665) 116,468
LONG-TERM DEBT, NET OF CURRENT PORTION 564,975 3,206 30,312 -- 598,493
DUE TO AFFILIATES -- 214,543 -- (214,543) --
LONG-TERM NOTES PAYABLE TO AFFILIATES -- 549,867 -- (549,867) --
OTHER LONG-TERM LIABILITIES -- 39,397 1,054 -- 40,451
MINORITY INTEREST -- -- 48,357 -- 48,357
STOCKHOLDERS' EQUITY 484,155 277,223 59,178 (336,401) 484,155
---------- ---------- ----------- ----------- ------------
Total Liabilities and Stockholders' Equity $1,060,525 $1,178,101 $ 150,774 $(1,101,476) $ 1,287,924
========== ========== =========== =========== ============
</TABLE>
11
<PAGE>
IRON MOUNTAIN INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands except Per Share Data)
(Unaudited)
(Continued)
(5) SELECTED CONSOLIDATED FINANCIAL STATEMENTS OF PARENT, GUARANTORS AND NON-
GUARANTORS (CONTINUED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SEPTEMBER 30, 1999
----------------------------------------------------------------------
NON-
PARENT GUARANTORS GUARANTORS ELIMINATIONS CONSOLIDATED
--------- ---------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C>
REVENUES:
Storage $ -- $ 76,880 $ 5,459 $ -- $ 82,339
Service and Storage Material Sales -- 50,711 3,857 -- 54,568
--------- ---------- ----------- ----------- ----------
Total Revenues -- 127,591 9,316 -- 136,907
OPERATING EXPENSES:
Cost of Sales (Excluding Depreciation) -- 64,044 5,182 -- 69,226
Selling, General and Administrative 31 31,298 2,052 -- 33,381
Depreciation and Amortization -- 15,180 1,158 -- 16,338
--------- ---------- ----------- ----------- ----------
Total Operating Expenses 31 110,522 8,392 -- 118,945
--------- ---------- ----------- ----------- ----------
OPERATING INCOME (LOSS) (31) 17,069 924 -- 17,962
INTEREST INCOME (13,746) -- -- 13,746 --
INTEREST EXPENSE 13,553 13,932 336 (13,746) 14,075
EQUITY IN THE (EARNINGS) LOSSES OF SUBSIDIARIES
3,163 32 -- (3,195) --
OTHER INCOME -- 115 -- -- 115
--------- ---------- ----------- ----------- ----------
Income (Loss) from Continuing Operations
Before Provision for Income Taxes and
Minority Interest (3,001) 3,220 588 3,195 4,002
PROVISION FOR INCOME TAXES -- 2,553 400 -- 2,953
MINORITY INTEREST IN NET INCOME OF CONSOLIDATED
SUBSIDIARIES -- -- 50 -- 50
--------- ---------- ----------- ----------- ----------
Income (Loss) from Continuing Operations (3,001) 667 138 3,195 999
LOSS ON SALE OF DISCONTINUED OPERATIONS -- (4,000) -- -- (4,000)
--------- ---------- ----------- ----------- ----------
Net Income (Loss) $ (3,001) $ (3,333) $ 138 $ 3,195 $ (3,001)
========== ========== =========== =========== ===========
</TABLE>
12
<PAGE>
IRON MOUNTAIN INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands except Per Share Data)
(Unaudited)
(Continued)
(5) SELECTED CONSOLIDATED FINANCIAL STATEMENTS OF PARENT, GUARANTORS AND NON-
GUARANTORS (CONTINUED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30, 1999
----------------------------------------------------------------------
NON-
PARENT GUARANTORS GUARANTORS ELIMINATIONS CONSOLIDATED
--------- ----------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
REVENUES:
Storage $ -- $ 217,914 $ 12,075 $ -- $ 229,989
Service and Storage Material Sales -- 139,081 8,973 -- 148,054
--------- ----------- ----------- ----------- ----------
Total Revenues -- 356,995 21,048 -- 378,043
OPERATING EXPENSES:
Cost of Sales (Excluding Depreciation) -- 177,861 11,967 -- 189,828
Selling, General and Administrative 216 90,125 3,853 -- 94,194
Depreciation and Amortization -- 43,653 2,561 -- 46,214
--------- ----------- ----------- ----------- ----------
Total Operating Expenses 216 311,639 18,381 -- 330,236
--------- ----------- ----------- ----------- ----------
OPERATING INCOME (LOSS) (216) 45,356 2,667 -- 47,807
INTEREST INCOME (37,858) -- -- 37,858 --
INTEREST EXPENSE 39,142 38,309 653 (37,858) 40,246
EQUITY IN THE (EARNINGS) LOSSES OF SUBSIDIARIES
12,303 (328) -- (11,975) --
OTHER INCOME -- 115 -- -- 115
--------- ----------- ----------- ----------- ----------
Income (Loss) from Continuing Operations
Before Provision for Income Taxes and
Minority Interest (13,803) 7,490 2,014 11,975 7,676
PROVISION FOR INCOME TAXES -- 6,831 974 -- 7,805
MINORITY INTEREST IN NET INCOME OF CONSOLIDATED
SUBSIDIARIES -- -- 515 -- 515
--------- ----------- ----------- ----------- ----------
Income (Loss) from Continuing Operations (13,803) 659 525 11,975 (644)
INCOME FROM DISCONTINUED OPERATIONS (NET OF
APPLICABLE TAXES) -- 241 -- -- 241
LOSS ON SALE OF DISCONTINUED OPERATIONS -- (13,400) -- -- (13,400)
--------- ----------- ----------- ----------- ----------
Net Income (Loss) $ (13,803) $ (12,500) $ 525 $ 11,975 $ (13,803)
========= =========== =========== =========== ==========
</TABLE>
13
<PAGE>
IRON MOUNTAIN INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands except Per Share Data)
(Unaudited)
(Continued)
(5) SELECTED CONSOLIDATED FINANCIAL STATEMENTS OF PARENT, GUARANTORS AND NON-
GUARANTORS (CONTINUED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30, 1999
----------------------------------------------------------------------
NON-
PARENT GUARANTORS GUARANTORS ELIMINATIONS CONSOLIDATED
--------- ---------- ---------- ------------ ------------
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Cash Flows (Used in) Provided by Continuing Operations
$(27,505) $ 53,581 $ 2,433 -- $ 28,509
Cash Flows Provided by Discontinued Operations -- 790 -- -- 790
--------- --------- --------- --------- ---------
Cash Flows (Used in) Provided by Operating Activities (27,505) 54,371 2,433 -- 29,299
CASH FLOWS FROM INVESTING ACTIVITIES:
Cash Paid for Acquisitions (2,398) (125,327) (59,788) -- (187,513)
Capital Expenditures -- (60,497) (12,272) -- (72,769)
Intercompany Loans to Subsidiaries (139,129) -- -- 139,129 --
Investment in Subsidiaries (55,599) (55,599) -- 111,198 --
Additions to Customer Acquisition Costs -- (6,061) -- -- (6,061)
--------- --------- --------- --------- ---------
Cash Flows Used in Continuing Operations (197,126) (247,484) (72,060) 250,327 (266,343)
Cash Flows Used in Discontinued Operations -- (409) -- -- (409)
--------- --------- --------- --------- ---------
Cash Flows Used in Investing Activities (197,126) (247,893) (72,060) 250,327 (266,752)
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayment of Debt (235,000) (1,420) -- -- (236,420)
Net Proceeds from Borrowings 200,600 -- 16,144 -- 216,744
Net Proceeds from Sale of Senior Subordinated Notes 149,460 -- -- -- 149,460
Net Proceeds from Equity Offering 153,755 -- -- -- 153,755
Repurchase of Common Stock (39,484) -- -- -- (39,484)
Intercompany Loans from Parent -- 139,129 -- (139,129) --
Equity Contribution from Parent -- 55,599 55,599 (111,198) --
Proceeds from Exercise of Stock Options 1,518 -- -- -- 1,518
Debt Financing and Stock Issuance Costs (6,230) (67) -- -- (6,297)
--------- --------- --------- --------- ---------
Cash Flows Provided by Continuing Operations 224,619 193,241 71,743 (250,327) 239,276
Cash Flows Provided by Discontinued Operations -- -- -- -- --
--------- --------- --------- --------- --------
Cash Flows Provided by Financing Activities 224,619 193,241 71,743 (250,327) 239,276
EFFECT OF EXCHANGE RATES ON CASH AND CASH
EQUIVALENTS -- -- (66) -- (66)
--------- --------- --------- --------- --------
INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS (12) (281) 2,050 -- 1,757
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 12 1,703 -- -- 1,715
--------- --------- --------- --------- ---------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ -- $ 1,422 $ 2,050 $ -- $ 3,472
========= ========= ========= ========= =========
</TABLE>
14
<PAGE>
IRON MOUNTAIN INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands except Per Share Data)
(Unaudited)
(Continued)
(6) EARNINGS PER SHARE
In accordance with Statement of Financial Accounting Standards No. 128, basic
net income (loss) per common share is calculated by dividing net income
(loss) by the weighted average number of common shares outstanding. The
calculation of diluted net income (loss) per share is consistent with that of
basic net income (loss) per share but gives effect to all dilutive potential
common shares (that is, securities such as options, warrants or convertible
securities) that were outstanding during the period, unless the effect is
antidilutive. For the nine months ended September 30, 1999 and 1998 and the
three months ended September 30, 1998, 2,344, 2,341 and 2,341 potential
common shares, respectively, have been excluded from the calculation of
diluted net income (loss) per share, as their effects are antidilutive.
(7) DISCONTINUED OPERATIONS
In June 1999, the Company decided to sell its information technology staffing
business, Arcus Staffing Resources, Inc. ("Arcus Staffing"). Arcus Staffing
was acquired in January 1998 as part of the acquisition of Arcus Group, Inc.
In accordance with the provisions of Accounting Principles Board Opinion No.
30 concerning reporting the effect of the disposal of a business, the results
of operations of Arcus Staffing have been classified as discontinued in the
accompanying statements of operations for the three and nine month periods
ended September 30, 1999 and 1998. The following table sets forth the revenue
and net income (loss) from discontinued operations for all of the periods
presented:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
-------------------------------- ------------------------------
1999 1998 1999 1998
--------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Revenues $10,196 $ 9,416 $32,188 $29,443
Net Income (Loss) from
Discontinued Operations -- (51) 241 315
</TABLE>
The Company has recorded an estimated loss on the sale of Arcus Staffing of
$13,400. The estimated loss is comprised of a write-off of nondeductible and
deductible goodwill, a deferred tax benefit and estimated expenses directly
related to the transaction partially offset by the estimated income from
operations of Arcus Staffing through the date of disposition. Effective
November 1, 1999, the Company completed the sale of substantially all of the
assets of Arcus Staffing.
15
<PAGE>
IRON MOUNTAIN INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands except Per Share Data)
(Unaudited)
(Continued)
(8) SUBSEQUENT EVENTS
In October 1999, the Company acquired substantially all of the assets of one
records and information management business for approximately $8 million in
cash.
On October 21, 1999, the Company announced the execution of a definitive
agreement to acquire Pierce Leahy Corp. in a stock-for-stock merger valued at
approximately $1.1 billion including the assumption of approximately $583
million in outstanding Pierce Leahy debt. The merger consideration will result
in the equivalent of a fixed exchange ratio of 1.1 shares of Iron Mountain
common stock for each share of Pierce Leahy common stock. The proposed
transaction is subject to approval by the shareholders of both companies, the
completion of regulatory review and other customary conditions. The transaction
is expected to be completed in early 2000 and will be accounted for as a
purchase.
16
<PAGE>
IRON MOUNTAIN INCORPORATED
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of the Company's financial condition
and results of operations for the three and nine month periods ended
September 30, 1999 and 1998 should be read in conjunction with the
consolidated financial statements and footnotes for the three and nine month
periods ended September 30, 1999 included herein, and the year ended
December 31, 1998, included in the Company's Current Report on Form 8-K
filed with the Securities and Exchange Commission on July 9, 1999.
OVERVIEW
The Company's consolidated revenues increased $38.4 million, or 38.9%, to
$136.9 million for the third quarter of 1999 from $98.5 million for the
third quarter of 1998. Internal revenue growth was 15.2%. For the nine
months ended September 30, 1999, the Company's consolidated revenues were
$378.0 million compared to $281.1 million for the same period last year, an
increase of 34.5%. Internal revenue growth was 12.7%.
On April 26, 1999, the Company completed the sale, in a private placement to
qualified institutional buyers, of $150 million in aggregate principal
amount of its 8 1/4% Senior Subordinated Notes due 2011. The 1999 Notes were
issued at a price to investors of 99.64% of par. On May 17, 1999, the
Company completed an underwritten public offering of 5,750,000 shares of its
common stock (the "Equity Offering") at a price to the public of $28.00 per
share (including 750,000 shares as a result of the underwriters' exercise of
their overallotment option). The net proceeds from these financing
transactions were used to repurchase all of the 1,476,577 shares of the
common stock issued in the acquisition of Data Base, Inc. at a price of
$26.74 per share, to repay outstanding indebtedness under the Company's
revolving credit facility and for general corporate purposes, including
acquisitions.
In June 1999, in order to focus on its records and information management
services business, the Company decided to sell its information technology
staffing business, Arcus Staffing, which was acquired in January 1998 as
part of the acquisition of Arcus Group, Inc. The sale of Arcus Staffing is
being accounted for as a discontinued operation. Accordingly, the Arcus
Staffing operations have been segregated from the Company's continuing
operations and reported as a separate line item on the Company's statement
of operations. For the nine months ended September 30, 1999, the Company
recorded an estimated loss on the sale of Arcus Staffing of $13.4 million
comprised primarily of the write-off of nondeductible goodwill. Effective
November 1, 1999, the Company completed the sale of substantially all of
the assets of Arcus Staffing.
On October 21, 1999, the Company announced the execution of a definitive
agreement to acquire Pierce Leahy Corp. in a stock-for-stock merger valued
at approximately $1.1 billion including the assumption of approximately $583
million in outstanding Pierce Leahy debt. The merger consideration will
result in the equivalent of a fixed exchange ratio of 1.1 shares of Iron
Mountain common stock for each share of Pierce Leahy common stock. The
acquisition is structured as a reverse merger where Pierce Leahy Corp. will
be the surviving legal entity and will change its name to Iron Mountain
Incorporated. The proposed transaction is subject to approval by the
shareholders of both companies, the completion of regulatory review and
other customary conditions. The transaction is expected to be completed in
early 2000 and will be accounted for as a purchase.
17
<PAGE>
IRON MOUNTAIN INCORPORATED
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO THREE MONTHS
ENDED SEPTEMBER 30, 1998
Consolidated storage revenues increased $22.8 million, or 38.4%, to $82.3
million for the third quarter of 1999 from $59.5 million for the third
quarter of 1998. Internal storage revenue growth was 10.3%. The internal
storage revenue growth resulted primarily from net increases in records and
other media stored by existing customers and from sales to new customers.
Consolidated service and storage material sales revenues increased $15.6
million, or 39.8%, to $54.6 million for the third quarter of 1999 from $39.0
million for the third quarter of 1998. Internal service and storage material
sales revenue growth was 22.5%. The internal revenue growth resulted from
increases in service and storage material sales to existing customers and
the addition of new customer accounts.
For the reasons discussed above, total consolidated revenues increased
$38.4 million, or 38.9%, to $136.9 million for the third quarter of 1999
from $98.5 million for the third quarter of 1998.
Consolidated cost of sales (excluding depreciation) increased $19.7 million,
or 39.8%, to $69.2 million (50.6% of consolidated revenues) for the third
quarter of 1999 from $49.5 million (50.2% of consolidated revenues) for the
third quarter of 1998. The dollar increase was primarily attributable to the
increase in records and other media stored and expenses related to certain
facility moves.
Consolidated selling, general and administrative expenses increased $9.3
million, or 38.7%, to $33.4 million (24.4% of consolidated revenues) for the
third quarter of 1999 from $24.1 million (24.4% of consolidated revenues)
for the third quarter of 1998. The dollar increase was primarily
attributable to: (i) the adoption, effective January 1, 1999, of Statement
of Position 98-1, "Accounting for the Costs of Computer Software Developed
or Obtained for Internal Use" which requires certain computer software costs
associated with internal use software to be expensed as incurred and (ii)
increased personnel, office and overhead costs to support the Company's
growth.
Consolidated depreciation and amortization expense increased $3.7 million,
or 29.4%, to $16.3 million (11.9% of consolidated revenues) for the third
quarter of 1999 from $12.6 million (12.8% of consolidated revenues) for the
third quarter of 1998. The dollar increase was primarily attributable to the
additional depreciation and amortization expense related to the 1998 and
1999 Acquisitions, and capital expenditures including racking systems,
information systems and expansion of storage capacity in existing
facilities.
As a result of the foregoing factors, consolidated operating income
increased $5.7 million, or 45.6%, to $18.0 million (13.1% of consolidated
revenues) for the third quarter of 1999 from $12.3 million (12.5% of
consolidated revenues) for the third quarter of 1998.
Consolidated interest expense increased $3.1 million, or 28.2%, to $14.1
million for the third quarter of 1999 from $11.0 million for the third
quarter of 1998. The increase was primarily attributable to increased
indebtedness related to the financing of acquisitions and capital
expenditures. The increase was partially offset by lower effective interest
rates for the third quarter of 1999 compared to the same period in 1998.
18
<PAGE>
IRON MOUNTAIN INCORPORATED
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
Consolidated other income for the third quarter of 1999 is comprised of a
$0.1 million net foreign currency exchange gain.
As a result of the foregoing factors, consolidated income from continuing
operations before provision for income taxes and minority interest increased
$2.6 million to $4.0 million (2.9% of consolidated revenues) for the third
quarter of 1999 from $1.4 million (1.4% of consolidated revenues) for the
third quarter of 1998. The provision for income taxes was $3.0 million for
the third quarter of 1999 compared to $2.4 million for the third quarter of
1998. The Company's effective tax rate is higher than statutory rates
primarily due to the amortization of the nondeductible portion of goodwill
associated with certain acquisitions (the tax laws generally permit
deduction of such expenses for asset purchases, but not for acquisitions of
stock). In connection with the acquisitions closed in the third quarter of
1999, the Company recorded approximately $17 million in nondeductible
goodwill.
Consolidated income (loss) from continuing operations increased $2.0 million
to income of $1.0 million (0.7% of consolidated revenues) for the third
quarter of 1999 from a loss of $1.0 million (1.0% of consolidated revenues)
for the third quarter of 1998. The loss on the sale of discontinued
operations is comprised primarily of the write-off of goodwill net of
applicable taxes.
As a result of the foregoing factors, consolidated EBITDA from continuing
operations increased $9.3 million, or 37.4%, to $34.3 million (25.1% of
consolidated revenues) for the third quarter of 1999 from $25.0 million
(25.3% of consolidated revenues) for the third quarter of 1998.
NINE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO NINE MONTHS
ENDED SEPTEMBER 30, 1998
Consolidated storage revenues increased $62.0 million, or 36.9%, to $230.0
million for the first nine months of 1999 from $168.0 million for the first
nine months of 1998. Internal storage revenue growth was 9.9%. The internal
storage revenue growth resulted primarily from net increases in records and
other media stored by existing customers and from sales to new customers.
Consolidated service and storage material sales revenues increased $35.0
million, or 31.0%, to $148.0 million for the first nine months of 1999 from
$113.0 million for the first nine months of 1998. Internal service and
storage material sales revenue growth was 17.0%. The internal revenue growth
resulted from increases in service and storage material sales to existing
customers and the addition of new customer accounts.
For the reasons discussed above, total consolidated revenues increased
$97.0 million, or 34.5%, to $378.0 million for the first nine months of
1999 from $281.0 million for the first nine months of 1998.
Consolidated cost of sales (excluding depreciation) increased $48.6 million,
or 34.5%, to $189.8 million (50.2% of consolidated revenues) for the first
nine months of 1999 from $141.2 million (50.2% of consolidated revenues) for
the first nine months of 1998. The dollar increase was primarily
attributable to the increase in records and other media stored and expenses
related to certain facility moves.
19
<PAGE>
IRON MOUNTAIN INCORPORATED
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
Consolidated selling, general and administrative expenses increased $24.1
million, or 34.4%, to $94.2 million (24.9% of consolidated revenues) for the
first nine months of 1999 from $70.1 million (24.9% of consolidated
revenues) for the first nine months of 1998. The dollar increase was
primarily attributable to: (i) the Company's national sales and marketing
meeting occurring in January 1999; (ii) the adoption of Statement of
Position 98-1; and (iii) increased personnel, office and overhead costs to
support the Company's growth.
Consolidated depreciation and amortization expense increased $10.6 million,
or 29.8%, to $46.2 million (12.2% of consolidated revenues) for the first
nine months of 1999 from $35.6 million (12.7% of consolidated revenues) for
the first nine months of 1998. The dollar increase was primarily
attributable to the additional depreciation and amortization expense related
to the 1998 and 1999 Acquisitions, and capital expenditures including
racking systems, information systems and expansion of storage capacity in
existing facilities.
As a result of the foregoing factors, consolidated operating income
increased $13.6 million, or 39.7%, to $47.8 million (12.7% of consolidated
revenues) for the first nine months of 1999 from $34.2 million (12.2% of
consolidated revenues) for the first nine months of 1998.
Consolidated interest expense increased $6.0 million, or 17.8%, to $40.2
million for the first nine months of 1999 from $34.2 million for the first
nine months of 1998. The increase was primarily attributable to increased
indebtedness related to the financing of acquisitions and capital
expenditures. The increase was partially offset by lower effective interest
rates for the first nine months of 1999 compared to the same period in 1998.
Consolidated other income for the first nine months of 1998 is comprised of
a $1.7 million gain resulting from the settlement of several insurance
claims, including a significant claim under its business interruption
insurance policy, related to the March 1997 fires at the Company's South
Brunswick Township, New Jersey facilities.
As a result of the foregoing factors, consolidated income from continuing
operations before provision for income taxes and minority interest increased
$5.9 million to $7.7 million (2.0% of consolidated revenues) for the first
nine months of 1999 from $1.8 million (0.6% of consolidated revenues) for
the first nine months of 1998. The provision for income taxes was $7.8
million for the first nine months of 1999 compared to $3.7 million for the
first nine months of 1998. The Company's effective tax rate is higher than
statutory rates primarily due to the amortization of the nondeductible
portion of goodwill associated with certain acquisitions (the tax laws
generally permit deduction of such expenses for asset purchases, but not for
acquisitions of stock). In connection with the 1999 Acquisitions, the
Company recorded approximately $132 million in nondeductible goodwill.
Consolidated loss from continuing operations decreased $1.4 million to a
loss of $0.6 million (0.2% of consolidated revenues) for the first nine
months of 1999 from a loss $2.0 million (0.7% of consolidated revenues) for
the first nine months of 1998. The loss on the sale of discontinued
operations is comprised of a $13.1 million write-off of goodwill and $1.3
million of estimated expenses directly related to the sale of Arcus Staffing
offset by a $1.0 million deferred tax benefit and the estimated income from
discontinued operations through the date of disposition.
As a result of the foregoing factors, consolidated EBITDA from continuing
operations increased $24.2 million, or 34.7%, to $94.0 million (24.9% of
consolidated revenues) for the first nine months of 1999 from $69.8 million
(24.8% of consolidated revenues) for the first nine months of 1998.
20
<PAGE>
IRON MOUNTAIN INCORPORATED
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
LIQUIDITY AND CAPITAL RESOURCES
As the Company has sought to increase its EBITDA, it has made significant
capital investments, consisting primarily of: (i) acquisitions; (ii) capital
expenditures, primarily related to growth (including investments in real
estate, racking systems, information systems and improvements to existing
facilities); and (iii) customer acquisition costs. Cash paid for these
investments during the first nine months of 1999 amounted to $187.5 million,
$72.8 million and $6.1 million, respectively. Included in the $72.8 million
of capital expenditures is approximately $10 million paid by BDM in
connection with the acquisition of real estate. In addition, the Company
advanced $12.0 million to BDM. BDM used the cash to fund a portion of the
purchase price of its acquisitions of Memogarde, S.A. and Stortext
(Holdings) Limited. These investments have been primarily funded through
cash flows from operations, borrowings under the Company's revolving credit
facility, a portion of the net proceeds from the sale of the 1999 Notes and
a portion of the net proceeds from the Equity Offering.
Net cash provided by operations was $29.3 million for the first nine months
of 1999 compared to $44.7 million for the same period in 1998. The decrease
resulted primarily from increases in accounts receivable and advances to BDM
and decreases in accrued expenses and other long-term liabilities, which
were partially offset by an increase in EBITDA.
Net cash provided by financing activities was $239.3 million for the nine
months ended September 30, 1999, consisting primarily of the $303.2 million
of net proceeds from the sale of the 1999 Notes and the Equity Offering
offset by the repurchase of the 1,476,577 shares of common stock issued in
the Data Base acquisition for $39.5 million and $19.7 million net repayment
of debt.
On April 26, 1999, the Company completed the sale, in a private placement to
qualified institutional buyers, of $150 million in aggregate principal
amount of its 1999 Notes. The 1999 Notes were issued at a price to investors
of 99.64% of par. On August 25, 1999 the holders of the privately placed
1999 Notes exchanged them for notes with the same terms as the 1999 Notes,
except that the new notes were registered under the Securities Act of 1933,
as amended. The net proceeds from the sale of the 1999 Notes were used to
repay outstanding indebtedness under the Company's revolving credit
facility.
On May 17, 1999, the Company issued and sold an aggregate of 5.8 million
shares (including approximately 0.8 million shares to cover over-allotments)
of its Common Stock in an underwritten public offering at a price to the
public of $28.00 per share. Net proceeds to the Company after deducting
underwriting discounts and commissions were $153.8 million and were used:
(i) to repurchase all of the 1,476,577 shares of the Company's Common Stock
issued in connection with the acquisition of Data Base, Inc. at a purchase
price of $26.74 per share; (ii) to repay outstanding indebtedness under the
Company's revolving credit facility; and (iii) for general corporate
purposes, including the funding of future acquisitions.
If the contemplated merger with Pierce Leahy Corp. is consummated, the 1996,
1997 and 1999 Notes, as well as the public debt of Pierce Leahy Corp., will
remain outstanding as the merger will not result in a "change of control"
under either company's indentures. The consent of the lenders under the
Company's existing credit facility is required in connection with the
Pierce Leahy merger. The Company expects to enter into a new credit
facility in an amount sufficient to repay indebtedness under the
Company's and Pierce Leahy's credit facilities and to provide additional
borrowing capacity after the merger.
21
<PAGE>
IRON MOUNTAIN INCORPORATED
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
YEAR 2000 READINESS
General
The Year 2000 ("Y2K") problem refers to the inability of systems, primarily
software systems, to properly recognize and process date sensitive
information relating to the year 2000 and beyond. In order to respond to
this problem, the Company has established a Y2K Project Plan (the "Plan").
The Plan is comprised of five major phases: awareness, assessment,
renovation, validation and implementation. These phases are applied to three
general categories: operational systems (consisting primarily of inventory
and billing systems), financial accounting systems and other products and
services obtained from third parties.
Operational Systems
The Company's primary operational systems are SAFEKEEPER-TM-, an internally
developed software application used mainly in its business records
operations, and MEDIALINK-TM-, a software application obtained from a third
party used mainly in the Company's data security operations. Additionally,
as an active acquirer of businesses, the Company currently uses, and will
continue to use, several different legacy operational systems that have
been, and will be, inherited through its ongoing acquisition program. Both
SAFEKEEPER and MEDIALINK are Y2K compliant. Based on the Company's
assessment, management believes that more than 99% of its business units are
currently operating with an operational system that is Y2K compliant.
Conversion of the remaining business units to a Y2K compliant operational
system is currently underway and is expected to be completed before
year-end.
Financial Accounting Systems
As part of its normal course of business, the Company has several system
improvement initiatives underway, the most significant of which involves the
installation of new financial accounting software from Oracle Corporation
("Oracle"). Oracle has certified that its accounting software is Y2K
compliant. The installation of the Oracle software is complete.
The Company currently uses, and will continue to use, several different
legacy accounting systems that have been, and will be, inherited through its
ongoing acquisition program. Accordingly, the Company will continue to
assess legacy systems acquired in future acquisitions. Based on vendor
certifications, the Company believes that all of the existing legacy systems
are Y2K compliant.
Products and Services Obtained from Third Parties
Products and services obtained from third parties are comprised mainly of
(i) facility systems, including telecommunications, climate control systems,
security systems, fire and safety systems ("Facility Systems"), and (ii)
products and services purchased from vendors, including third party payroll
processing and products for resale such as cartons and operating supplies.
The Company has completed the implementation of its remediation plan, in all
material respects, related to its Facility Systems and products and services
purchased from vendors.
22
<PAGE>
IRON MOUNTAIN INCORPORATED
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
Customers
The Company's customer base is diversified in terms of revenue and industry
concentration. Only two customers account for more than 1% of total revenues
and no customer accounts for more than 2% of total revenues. Given the
nature of the services the Company provides to its customers, as well as the
diversification of its customer base, the Company does not believe that Y2K
issues associated with its customers will have a material adverse effect on
its financial condition or results of operations.
Costs
Based on the Company's current assessment of its Y2K issues, the total cost
associated with required modifications to become Y2K compliant is not
expected to be material to the Company's financial position. Certain costs
associated with the Company's pre-existing system improvement initiatives
and the purchase of equipment (including the financial accounting software
developed by Oracle, SAFEKEEPER and MEDIALINK) will be capitalized and
amortized over their useful lives. Certain payroll and related costs
represent the redeployment of existing staff resources rather than
incremental costs to the Company. All other costs associated with the Plan
will be expensed as incurred. Costs associated with the Plan to be incurred
in 1999 are estimated to be under $3 million and are included in the
Company's operating and capital budgets for 1999.
Contingency Plans
As part of its Y2K project, the Company has analyzed its points of major
risk and has developed contingency plans as a backup to its remediation
effort. Management continues to review these contingency plans to ensure
their viability.
Year 2000 Risks
The failure on the part of the Company or one of its suppliers to correct a
material Y2K problem could result in an interruption in, or a failure of,
certain normal business activities or operations, although the extent of
such a business disruption is not known at this time. The implementation of
the Plan has significantly reduced the Company's level of uncertainty about
the Y2K problem. The Company believes that, with the completion of its
existing system improvement initiatives and the successful execution of the
Plan, the likelihood of significant interruptions of normal operations has
been substantially reduced. However, the Company cannot assure that it has
been able to address the Y2K issues for all of its software applications and
major operating systems. If the Company or its major third party suppliers
of products and services have failed to adequately address their Y2K issues,
or the Company has failed to successfully integrate or convert its computer
systems generally, the Company's business, financial condition or results of
operations could be materially adversely affected.
23
<PAGE>
IRON MOUNTAIN INCORPORATED
ITEM 3 - QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company does not hold any derivative financial instruments, derivative
commodity instruments or other financial instruments. The Company's existing
international operations and any future international investments, if
completed, may be subject to risks and uncertainties relating to
fluctuations in currency valuation.
The Company engages neither in speculative nor derivative trading
activities. As of September 30, 1999, the Company had $28.2 million of
variable rate debt outstanding with a weighted average interest rate of
4.99% and $574.8 million of fixed rate debt. If the weighted average
variable interest rate had increased by 1% to 5.99%, such increase would
have had a negative impact on the Company's net income for the three and
nine month periods ended September 30, 1999 of approximately $59,000 and
$106,000, respectively. See Note 4 to the Condensed Consolidated Financial
Statements for a discussion of the Company's long-term indebtedness,
including the fair values of such indebtedness as of September 30, 1999 and
December 31, 1998.
PART II - OTHER INFORMATION
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
<TABLE>
<CAPTION>
<S> <C> <C>
(a) EXHIBIT DESCRIPTION
10.1 Agency Agreement, dated as of July 1, 1999, by and
between Iron Mountain Statutory Trust-1999 and Iron
Mountain Records Management, Inc.
10.2 Lease Agreement, dated as of July 1, 1999, by and
between Iron Mountain Statutory Trust-1999 and Iron
Mountain Records Management, Inc.
10.3 Unconditional Guaranty, dated as of July 1, 1999, from
Iron Mountain Incorporated to Iron Mountain Statutory
Trust-1999
27.1 Financial Data Schedule for the Nine Months Ended
September 30, 1999
27.2 Financial Data Schedule for the Nine Months Ended
September 30, 1998 (Restated)
</TABLE>
(b)Reports on Form 8-K
On July 9, 1999, the Company filed a Current Report on Form 8-K to: (i)
announce its decision to sell Arcus Staffing; (ii) account for the sale
of Arcus Staffing as a discontinued operation; and (iii) restate certain
historical financial information to reflect the accounting of the sale as
a discontinued operation. The Report on Form 8-K also included audited
financial statements and certain pro forma financial information with
respect to acquisitions of businesses deemed to be individually
significant under Rule 3-05 of Regulation S-X.
On July 29, 1999, the Company filed a Current Report on Form 8-K to
announce recent amendments to its Second Amended and Restated Credit
Agreement and to announce its operating results for the three and
six-month periods ended June 30, 1999.
24
<PAGE>
IRON MOUNTAIN INCORPORATED
CERTAIN IMPORTANT FACTORS
This Quarterly Report on Form 10-Q contains statements that constitute
forward looking statements within the meaning of the Securities Exchange Act
of 1934, as amended. These statements appear in a number of places in this
Form 10-Q and include statements regarding the strategies, beliefs or current
expectations of the Company and its management. Readers are cautioned that
any such forward looking statements are not guarantees of future performance
and involve risks and uncertainties, which could cause actual results to
differ materially from those in the forward looking statements. Such factors
include but are not limited to: (i) the Company's ability or inability to
complete the merger of Iron Mountain and Pierce Leahy due to the failure to
obtain necessary regulatory approvals or satisfy other customary conditions,
(ii) failure to fully realize the anticipated cost savings related to the
Pierce Leahy merger in a timely manner because of difficulty in integrating
the operations of the two companies and unanticipated costs as a result of
the merger, (iii) the Company's ability or inability to complete other
acquisitions on satisfactory terms and to integrate acquired companies
efficiently, (iv) the cost and availability of financing for contemplated
growth, (v) the cost and availability of appropriate storage facilities, (vi)
the possibility of a natural disaster or other casualty disrupting operations
to an extent greater than the Company is insured for, (vii) the demand and
price for the Company's services, relative to the cost of providing such
services, (viii) certain risks and uncertainties associated with the
Company's readiness for the year 2000, including but not limited to, the
Company's inability to recruit and/or retain key staff necessary for
addressing year 2000 issues; failure of major third party suppliers of
products and services to adequately address their year 2000 issues despite
assurances to the contrary; delays in the conversion or upgrade of acquired
and to be acquired businesses' software systems to appropriate year 2000
compliant software systems; and actual future costs associated with the
Company's year 2000 plan being greater than currently expected, or (ix) other
trends in competitive or economic conditions affecting the Company's
financial condition or results of operations not presently contemplated. The
information contained in this Form 10-Q and the Company's Annual Report on
Form 10-K for the year ended December 31, 1998, including under the headings
"Business" and "Management's Discussion and Analysis of Financial Condition
and Results of Operations," as revised by the Company's Current Report on
Form 8-K filed with the Securities and Exchange Commission on July 9, 1999,
identifies other important factors that could cause such differences.
25
<PAGE>
IRON MOUNTAIN INCORPORATED
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
IRON MOUNTAIN INCORPORATED
NOVEMBER 12, 1999 By: /S/ JEAN A. BUA
(date)
-----------------------------
Jean A. Bua
Vice President and
Corporate Controller
(Principal Accounting Officer)
26
<PAGE>
EXHIBIT 10.1
AGENCY AGREEMENT
by and between
IRON MOUNTAIN STATUTORY TRUST - 1999
and
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
Dated as of July 1, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
PAGE
PRELIMINARY STATEMENT........................................................1
ARTICLE 1 DEFINED TERMS..................................................1
ARTICLE 2 AGENCY.........................................................2
2.1 Appointment. ...........................................2
2.2 Payment for Costs of the Properties. ...................2
2.3 Other Payments. ........................................2
2.4 Suits and Actions. .....................................3
ARTICLE 3 OWNER'S ADVANCES...............................................3
3.1 Owner's Advances. ......................................3
3.2 Owner's Cooperation. ...................................4
ARTICLE 4 INITIAL CLOSING, DESIGNATION OF PROPERTIES BY AGENT, AND
PROPERTY CLOSINGS..............................................4
4.1 Initial Closing. .......................................4
4.2 Designation of Proposed Properties. ....................5
4.3 Limits on Acquisition of Proposed Properties. ..........6
4.4 Procedures for Property Closings. ......................6
4.5 Loan Financing. ........................................6
ARTICLE 5 CONDITIONS OF OWNER'S OBLIGATIONS..............................6
5.1 Conditions to Closings. ................................6
5.1.1 Operative Documents. .............................7
5.1.2 Taxes. ...........................................8
5.1.3 Status of Title. ..................................8
5.1.4 Title Insurance. .................................8
5.1.5 Survey; Zoning; Certificate of Occupancy. ........8
5.1.6 Opinions of Counsel. .............................9
5.1.7 Certificates. ....................................9
5.1.8 Legal Restrictions. ..............................9
5.1.9 No Adverse Change. ...............................9
5.1.10 Environmental Reports. .......................9
5.1.11 Evidence of Insurance. ......................10
5.1.12 Closing of Loans and Equity Investment. .....10
5.1.13 Proceedings and Documents. ..................10
<PAGE>
- ii -
5.1.14 Fees and Expenses. ..........................11
5.1.15 Requisition. ................................11
5.1.16 Appraisals. .................................11
5.1.17 Other Requirements. .........................11
ARTICLE 6 CONDITIONS OF AGENT'S OBLIGATIONS AT CLOSINGS.................12
6.1 Operative Documents. ..................................12
6.2 Opinions of Counsel. ..................................12
6.3 Certificates. .........................................12
6.4 Legal Restrictions. ...................................12
6.5 Costs of the Properties. ..............................12
ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF AGENT.......................13
7.1 Organization and Power. ...............................13
7.2 Full Disclosure. ......................................13
7.3 Litigation. ...........................................13
7.4 No Adverse Change. ....................................14
7.5 No Defaults. ..........................................14
7.6 No Violation. .........................................14
7.7 Agreements are Legal and Authorized. ..................14
7.8 Insurance...............................................14
7.9 Consents. .............................................14
7.10 Approvals. ............................................15
7.11 Compliance; Taxes. ....................................15
7.12 Use of Advances. ......................................15
7.13 Lease. ................................................15
7.14 Use. ..................................................15
7.15 ERISA. ................................................16
7.16 Property Related Information. .........................16
7.17 Location of Office and Records. .......................16
7.18 Brokers. ..............................................16
ARTICLE 8 REPRESENTATIONS AND WARRANTIES OF OWNER.......................16
8.1 Organization and Power. ...............................16
8.2 Agreements Legal and Authorized. ......................17
8.3 Litigation. ...........................................17
8.4 No Violation. .........................................17
8.5 Consents. .............................................17
ARTICLE 9 DEFAULTS AND REMEDIES.........................................18
<PAGE>
- iii -
9.1 Events of Default. ....................................18
9.2 Remedies. .............................................18
9.3 Costs of Enforcement. .................................19
9.4 Cumulative Remedies. ..................................19
ARTICLE 10 MISCELLANEOUS.................................................19
10.1 Governing Law; Jurisdiction and Venue. ................19
10.2 Notices; Modification; Waiver .........................20
10.3 Illegal Provision. ....................................20
10.4 Binding Effect; Third Party Beneficiary. ..............20
10.5 Counterparts. .........................................21
10.6 Headings. .............................................21
10.7 Reproduction of Documents. ............................21
10.8 Time of Essence. ......................................21
10.9 Payment of Expenses. ..................................21
10.10 Advisory Fee. .........................................22
10.11 Limited Liability of Owner. ...........................22
10.12 Waiver of Jury Trial. ..................................23
Appendix I Definitions
Schedule A Land Parcels
<PAGE>
This AGENCY AGREEMENT, is dated as of July 1, 1999 (this Agreement), by
and between IRON MOUNTAIN STATUTORY TRUST - 1999, a Connecticut statutory trust
(together with its successors and assigns, Owner), and IRON MOUNTAIN RECORDS
MANAGEMENT, INC., a Delaware corporation (together with its successors and
assigns, Agent).
PRELIMINARY STATEMENT
Agent has accepted the Lease Proposal made by Placement Agent for the
lease financing of Properties consisting of warehouse storage facilities to be
located in several states. Agent, as agent for Owner, desires from time to time
to designate for acquisition by Owner a Property or Properties pursuant to
Article 4 below. Owner will appoint Agent as its agent to undertake such
acquisition of such Properties. Upon acquisition by Owner of a Property, Owner
will lease such Property to Agent pursuant to the Lease. From time to time,
Agent, as Agent for Owner may cause Additional Improvements to be constructed on
a Property in accordance with Section 3.2 of the Loan Agreement and with Section
10(d) of the Lease. For each Property, the Costs of the Property will be
satisfied with the payments made and to be made by Owner pursuant to Article 3
hereof and, to the extent required under the Operative Documents, with funds of
the Agent. Pursuant to the Loan Agreement, Owner will borrow up to 96% of the
funds necessary to make such payments. In connection therewith, and in order to
induce the Lenders to enter into the loan transactions contemplated by the Loan
Agreement, Owner is entering into the Loan Agreement, granting a first deed of
trust or mortgage on each Property to Agent Bank for the benefit of the Lenders
and assigning its rights under the Lease, this Agreement and the Guaranty to
Agent Bank for the benefit of the Lenders. Owner will provide the remaining 4%
of the required funds in the form of the Equity Investment. Beneficiary will
deliver to the Bank, as Trustee under the Owner Trust Agreement, funds in the
amount of the Equity Investment, to be applied as provided herein and therein.
The obligations of Agent hereunder are unconditionally guaranteed by Guarantor
pursuant to the Guaranty.
ARTICLE 1
DEFINED TERMS
Capitalized terms used in this Agreement and not otherwise defined have
the meanings set forth in Appendix I hereto.
<PAGE>
- 2 -
ARTICLE 2
AGENCY
2.1 Appointment. Solely for the limited purposes hereinafter set forth,
Owner hereby designates Agent as its agent, and Agent hereby accepts such
appointment, to designate and acquire the Properties (and as permitted herein
and in the Lease, construct Additional Improvements thereon) strictly in
accordance with the terms and conditions of this Agreement and the other
Operative Documents, to pay (in accordance with Section 2.2 below) all Costs of
the Property with respect to each Property, and to cause title to the same to
vest in Owner. Agent shall have no authority to act for or on behalf of Owner
except as so provided. The acceptance by Agent on behalf of Owner of any
property or any contractual obligation with respect to which Agent does not have
authority to act on behalf of Owner as described in this Agreement shall be
ineffective, ab initio, to create in or transfer to Owner any legal or
beneficial right or interest in such property or any contractual obligation or
to impose on Owner any liability, obligation or responsibility with respect
thereto. Agent shall cause any agreement, contract, purchase order, or other
writing purporting to be binding upon Owner to refer to Agent as agent for
Owner. The authority of Agent hereunder shall terminate on the earliest to occur
of (i) the Acquisition Outside Date, (ii) the acquisition of Properties in an
amount up to but not exceeding the Total Property Cost and (iii) notice by Owner
to Agent of such termination after the occurrence and during the continuance of
an Event of Default. The termination of Agent's authority hereunder shall not
discharge Agent or limit in any way Agent's liability hereunder with respect to
obligations arising out of this Agreement and Agent's performance hereunder
prior to the date of such termination of Agent's authority including, without
limitation, with respect to Agent's indemnification of the Indemnified Parties
pursuant to Section 2.3, or with respect to Agent's obligations under Article
10.
2.2 Payment for Costs of the Properties. Agent shall pay or cause to be
paid the Cost of the Properties using (a) the proceeds of Advances and (b) its
own funds to the extent required under Section 10(d) of the Lease.
2.3 Other Payments. Notwithstanding the agency created hereby, and in
addition to all other indemnities contained herein or in the Lease, Agent shall
indemnify and defend the Indemnified Parties (with counsel selected by Agent,
reasonably approved by such Indemnified Parties, and paid for by Agent) and hold
the Indemnified Parties harmless from any and all claims arising out of Agent's
actions or omissions on behalf of Owner whether with or without authority
hereunder, except anything resulting from the gross negligence or wilful
misconduct of any such Indemnified Party.
2.4 Suits and Actions. If in the performance of its obligations under this
Agreement, Agent suffers any loss or damage or otherwise has a claim against any
third party
<PAGE>
- 3 -
with respect to any Property, Agent may bring lawsuits or other actions in its
own name or in Owner's name, as appropriate, and in any case at Agent's sole
cost and expense, subject to the following conditions:
(a) Agent may control such action unless at any time Owner
determines in its reasonable judgment that control of such action by Agent could
have a material adverse impact on or material risk to Owner, in which case Owner
shall have the right to control such action.
(b) Agent shall have agreed to pay Owner on demand all reasonable
costs and expenses that Owner actually incurs in connection with such action.
(c) No Event of Default shall have occurred and shall have been
continuing.
Owner shall cooperate with Agent with respect to any such action
controlled by Agent, and Agent shall consult with Owner regarding the conduct of
such action, including keeping Owner reasonably informed of the progress of such
action, allowing Owner to receive and comment on written submissions and
considering in good faith Owner's suggestions regarding such action. Subject to
satisfaction of the foregoing conditions, including payment by Agent of any
indemnity payments to Owner or any other Indemnified Party, the damages or other
proceeds of any such action shall be payable to Agent.
ARTICLE 3
OWNER'S ADVANCES
3.1 Owner's Advances.
(a) Subject to the terms and conditions of the Loan Agreement and of
this Agreement, including satisfaction of the applicable conditions set forth in
Articles 4 and 5 hereof, and so long as no Default or Event of Default has
occurred and is continuing, Owner agrees to pay or cause to be paid the Costs of
the Properties to Agent or to Persons designated by Agent in writing at least 4
days prior to a Closing as follows: (x) on any Property Closing Date (which
shall occur no more frequently than monthly), or (y) on a Closing Date during
the Interim Term with respect to Additional Improvements not funded on a
Property Closing Date, Owner shall make an advance (an Advance) with respect to
the Property or Properties so acquired or with respect to such Additional
Improvements (i) solely out of the proceeds to Owner of the Equity Investment
made with respect to such Property or Properties with respect to such Additional
Improvements and (ii) the proceeds of any Loans made to Owner by the Lenders on
such date in each case upon a Requisition therefor delivered in substantial
accordance with the provisions hereof and of the Loan Agreement. Nothing
contained in this Agreement shall in any
<PAGE>
- 4 -
way obligate Owner to pay any debt or meet any financial obligation under this
Agreement or otherwise with respect to Costs of the Properties, except from
monies actually received by Owner from the sources specified in this Section
3.1. Agent shall submit all Requisitions and related materials directly to Agent
Bank, and any Requisitions under the Loan Agreement shall serve as the
Requisitions contemplated by this Agreement.
(b) Each Advance shall be in an amount not to exceed 100% of the
Costs of the Property being acquired or completed on such Closing Date, but in
any case only out of funds available to Owner from the proceeds of the Loans and
any Equity Investment.
(c) The aggregate of all Advances made under this Agreement shall
not exceed the Total Property Cost. Owner shall make or cause to be made each
Advance by wire transfer to Agent, at Union Bank of California, ABA No.
122000496, account in the name of "Iron Mountain Records Management, Inc.",
account number 1000-132-337, or to such other accounts or persons and in such
manner as Agent may designate in writing no later than four Banking Days before
the date of any Advance. Any Advance that would otherwise be required to be made
on a day that is not a Banking Day shall be made on the next following Banking
Day.
3.2 Owner's Cooperation. Owner agrees to cooperate with Agent in all
reasonable respects, at Agent's sole cost and expense, in satisfying conditions
precedent to Loans under the Loan Agreement.
ARTICLE 4
INITIAL CLOSING, DESIGNATION OF PROPERTIES BY AGENT, AND PROPERTY
CLOSINGS
4.1 Initial Closing. Subject to compliance with the provisions of this
Agreement, the execution and delivery of the Operative Documents set forth in
Section 5.1.1 (A) (the "Initial Closing") shall take place at 10:00 a.m., Boston
time, on August 20,1999 (the "Initial Closing Date"), at the offices of Day,
Berry & Howard LLP, 260 Franklin Street, Boston, Massachusetts 02110. At the
Initial Closing, subject to compliance by Agent with its obligations under
Section 5.1 and Owner of its obligations under Article 6 (in each case as
applicable to the execution, delivery and performance of such Operative
Documents), Agent and Owner shall enter into such Operative Documents all in
accordance with the terms and conditions set forth therein.
If, on the Initial Closing Date, Agent shall not perform its obligations
in accordance with this Agreement or if the conditions specified in Article 5
applicable to the execution, delivery and performance of the Operative Documents
executed on such date have not been satisfied to Owner's reasonable
satisfaction, Owner shall, at its option exercisable on the Initial Closing
Date, be relieved of its obligations hereunder. Similarly, if on the Initial
Closing Date, Owner
<PAGE>
- 5 -
shall not perform its obligations in accordance with this Agreement or if the
conditions specified in Article 6, applicable to the execution, delivery and
performance of such Operative Documents and with respect to parties other than
Agent shall not have been satisfied to Agent's satisfaction, Agent shall, at its
option exercisable on the Initial Closing Date, but subject to Section 10.9
hereof, be relieved of its obligations hereunder, except as otherwise provided
herein or as separately agreed. Furthermore, in either of such events, to the
extent any documents have been delivered with respect to the Initial Closing,
they shall be returned to the appropriate parties and to the extent any
documents have been recorded, they shall be released of record.
4.2 Designation of Proposed Properties. Owner and Agent agree that Agent
will designate warehouse or data storage facilities in various states pursuant
to this Agreement during the Interim Term (Proposed Properties). To the extent
that Agent desires to so designate to Owner any Proposed Property, Agent shall
provide Owner and Agent Bank with at least 15 Business Days advance written
notice (a Property Designation Notice) prior to a Property Closing Date and each
Property Designation Notice shall include the following:
(a) a detailed description of such Proposed Property, including
the type of structure, the square footage, the number of floors, the size of the
Land Parcel and if Additional Improvements are contemplated with respect to such
Proposed Property,
(b) a detailed estimate of the applicable Costs of the Property
with respect to such Proposed Property,
(c) an Appraisal (which Appraisal shall assume that any Additional
Improvements have been timely completed by the Completion Date) reasonably
acceptable to Owner and Agent Bank, and
(d) the anticipated Closing Date with respect to such Proposed
Property and, if different, the anticipated Closing Date for the Additional
Improvements.
No Proposed Property shall become a Property hereunder or under the Lease
without the prior written consent of Owner, Beneficiary, LC Issuer and the
Lenders, which consent shall not be unreasonably withheld or delayed.
4.3 Limits on Acquisition of Proposed Properties. Notwithstanding any
other provision hereof, in no event shall Agent be entitled to cause Owner to
acquire any Proposed Property if (i) the acquisition of such Proposed Property
and the commencement of the Basic Term with respect thereto pursuant to the
Lease would commence after the Acquisition Outside Date, (ii) the Cost of the
Property with respect to such Proposed Property would, when combined with the
actual or projected Costs of the Property attributable to all other current or
Proposed Properties exceed the Total Property Cost.
<PAGE>
- 6 -
4.4 Procedures for Property Closings. Subject to compliance by Agent with
its obligations hereunder, including Section 5.1 hereof and Owner of its
obligations under Article 6, Agent and Owner agree with respect to Proposed
Properties to conduct "Property Closings"; provided, however, that with respect
to any Property Closing, the aggregate Costs of the Properties to be acquired at
such Property Closing shall be more than $1,500,000 and no Cost of a Property
shall exceed $12,000,000. Each Closing shall take place at the offices of Day,
Berry & Howard LLP, Boston, Massachusetts on such dates as may from time to time
be designated by Agent (subject to the reasonable approval of Owner and the
Agent Bank), provided that no Property Closing shall take place with respect to
any Proposed Property after the Acquisition Outside Date.
4.5 Loan Financing. At the Initial Closing, Owner will enter into the Loan
Agreement and the other Operative Documents to which it is a party in order to
obtain Loans to finance Advances made by Owner hereunder to Agent with respect
to the acquisition of Properties such Loans to be in the aggregate principal
amount of 96% of the respective Costs of the Properties. Agent acknowledges that
Owner will assign its rights under this Agreement to Agent Bank pursuant to the
Assignment, and Agent covenants and agrees that it shall perform its obligations
under this Agreement for the benefit of Agent Bank in accordance with the
provisions of such Assignment. Owner agrees with Agent that it will (i) forward
to Agent copies of all notices received or given by Owner under the Loan
Agreement and (ii) not agree to or enter into any consent, waiver, approval,
modification or amendment under the Loan Agreement or any of the Deeds of Trust
without the prior written consent of Agent.
ARTICLE 5
CONDITIONS OF OWNER'S OBLIGATIONS
5.1 Conditions to Closings. The obligations of Owner to enter into the
applicable Operative Documents and amendments with respect to the Initial
Closing and each Property Closing, and to make any Advances in connection
therewith are subject to (a) the accuracy and correctness as of the applicable
Closing Date of the representations and warranties of Agent contained herein,
(b) the accuracy and correctness as of the applicable Closing Date of the
representations of Agent contained in each of the Operative Documents and in any
other document or certificate delivered pursuant hereto or thereto with respect
to it, (c) the performance by Agent of its agreements contained herein and to be
performed by it on or prior to the applicable Closing Date, and (d) the
satisfaction or waiver by Owner of all of the following conditions:
<PAGE>
- 7 -
5.1.1 Operative Documents. (i) On the Initial Closing Date, each of the
following documents in clause (A) below shall have been duly authorized,
executed and delivered by the parties thereto, shall be in full force and effect
and no Default or Event of Default shall exist thereunder, and (ii) on each
Property Closing Date each of the following documents in clause (A) and (B)
below shall have been (or continue to be) duly authorized, executed and
delivered by the parties thereto, shall be in full force and effect and no
Default or Event of Default shall exist thereunder (such documents, or
amendments or supplements thereto, in clause (A) and (B) below, collectively,
the Operative Documents). On the respective Closing Dates each of the executed
Operative Documents, as applicable, shall be delivered to Owner, Agent,
Beneficiary, the Lenders, Agent Bank and LC Issuer or their special counsel as
follows:
(A) On the Initial Closing Date:
(i) this Agreement;
(ii) the Lease;
(iii) the Loan Agreement;
(iv) the Guaranty;
(v) the Assignment
(vi) the Letter of Credit;
(vii) the Reimbursement Agreement;
(viii) the Owner Trust Agreement; and
(ix) the Assignment of Guaranty.
(B) On each Property Closing Date:
(i) Supplement to Agency Agreement;
(ii) Supplement to Lease:
(iii) Memorandum of Lease;
(iv) Notes in the forms contemplated by the Loan
Agreement;
(v) a Deed of Trust to Agent Bank with respect to such
Property;
(vi) Supplement to Assignment;
(vii) Supplement to Letter of Credit:
(viii) LC Deed of Trust with respect to such Property; and
(ix) the Deed with respect to such Property.
On each Property Closing Date, the Operative Documents or memoranda or
short forms thereof shall have been recorded, registered and filed, if necessary
(or delivered to the Title Company for recordation, registration or filing, as
the case may be), in such manner as to impart notice thereof and/or to perfect
the lien thereof and to enable local counsel in each state in which a Property
is located, special counsel to Owner and Beneficiary and special counsel to
Agent to render the opinions referred to in Section 5.1.6.
<PAGE>
- 8 -
5.1.2 Taxes. On each Closing Date, all taxes, fees and other charges in
connection with the execution, delivery, recording, filing and registration of
this Agreement and the other Operative Documents shall have been paid (or, with
respect to recording, filing or registration fees, sufficient funds therefor
shall have been deposited with the Title Company or other appropriate Person).
5.1.3 Status of Title. On each Property Closing Date, Owner shall have a
valid fee simple interest in the Land Parcel and all Existing Improvements
located thereon with respect to such Proposed Property, free and clear of all
liens, encumbrances, charges and other exceptions to title, except for Permitted
Encumbrances.
5.1.4 Title Insurance. On each Property Closing Date, Owner shall have
received a policy of owner's title insurance with respect to such Proposed
Property and Agent Bank and LC Issuer shall have each received a policy of
mortgage title insurance, on American Land Title Association standard policy,
revised coverage, form formerly known as 1970 form (or commitments therefor)
from a title insurance company acceptable to Owner and Agent Bank and dated the
applicable Closing Date, which policies or commitments and all reinsurance
agreements shall insure the applicable Loan as fully disbursed and shall
otherwise be reasonably satisfactory to Owner, Agent Bank and LC Issuer in form,
substance (including affirmative coverages and endorsements) and amount.
5.1.5 Survey; Zoning; Certificate of Occupancy. On each Property Closing
Date, at least fifteen days prior to such Property Closing, Owner, Agent Bank,
Beneficiary and LC Issuer shall have received (a) an instrument survey plan of
the Land Parcel with respect to such Proposed Property, showing all Existing
Improvements located thereon, reasonably satisfactory in form and substance to
Owner, Agent Bank, Beneficiary and LC Issuer and certified to Owner, Agent Bank,
Beneficiary, LC Issuer and the Title Company, by a surveyor licensed in the
State in which such Proposed Property is located, (b) evidence reasonably
satisfactory to Owner, Agent Bank, Beneficiary and LC Issuer that the Land
Parcel with respect to such Proposed Property is properly zoned for the use of
such Proposed Property contemplated hereby, and (c) for Proposed Properties
containing Improvements completed within six months of such Property Closing
Date, a "certificate of occupancy" from the applicable governmental authority.
5.1.6 Opinions of Counsel. On each Closing Date, Owner, Agent Bank,
Beneficiary and LC Issuer shall have received opinions from special counsel to
Owner, from local counsel in each state in which such Proposed Property is
located (only with respect to any Property Closing), and from counsel to Agent
and Guarantor. Each opinion shall be dated the applicable Closing Date and be
addressed to and in form and substance reasonably satisfactory to Owner, Agent
Bank, Beneficiary, LC Issuer and their respective special counsel. On each
Property Closing Date, without limiting the foregoing, Owner, Bank, Beneficiary,
Agent Bank and Lenders shall have received such opinions and assurances as each
shall require that each is either
<PAGE>
- 9 -
qualified to transact business in the state in which the applicable Proposed
Property is located, or has been advised by local counsel that such
qualification is not necessary in such state in order to engage in the
transactions contemplated by this Agreement.
5.1.7 Certificates. On each Closing Date, Owner, Agent Bank, Beneficiary
and LC Issuer shall have received certificates of Agent, Owner and Guarantor,
each dated as of the applicable Closing Date and reasonably satisfactory in form
and substance to Owner, Agent Bank, Beneficiary and LC Issuer.
5.1.8 Legal Restrictions. On each Closing Date, neither Owner, Lenders,
Beneficiary nor LC Issuer shall be prohibited or restricted by law from engaging
in the transactions contemplated hereby on such Closing Date. The transactions
contemplated by this Agreement and the other Operative Documents on the terms
and conditions herein or in the Operative Documents provided, shall not violate
any applicable law or governmental regulation and shall not subject Owner,
Lenders, Beneficiary or LC Issuer to any tax, penalty, liability or other
onerous condition under or pursuant to any applicable law or governmental
regulation on such Closing Date.
5.1.9 No Adverse Change. On each Closing Date, there shall have been no
material adverse change in the condition, financial or otherwise, of Guarantor
and its Subsidiaries since the date of the last audited financial statement of
Guarantor furnished or required to be furnished to the Lenders.
5.1.10 Environmental Reports. On each Property Closing Date, at least 10
days prior to such Closing Date, Owner, Agent Bank, Beneficiary and LC Issuer
shall have received a copy of a "Phase I" and, if requested by Owner, Agent
Bank, Beneficiary or LC Issuer in its reasonable judgment based upon the "Phase
I" with respect thereto, a "Phase II" environmental site assessment report(s)
for such Proposed Property, addressed to Owner, Agent Bank, Beneficiary and LC
Issuer or accompanied by a letter permitting Owner, Agent Bank, Beneficiary and
LC Issuer to rely thereon, performed by an independent environmental engineer
selected or approved by Beneficiary and satisfactory to Agent, Agent Bank,
Beneficiary and LC Issuer. If any such environmental site assessment report
reveals the need for additional review for such Proposed Property, Agent shall
have provided such additional environmental site assessment reports as are
reasonably required by Owner, Agent, Beneficiary or LC Issuer and any
remediation recommended therein to be performed shall have been performed to the
reasonable satisfaction of Owner, Agent Bank, Beneficiary and LC Issuer. Owner,
Agent Bank, Beneficiary or LC Issuer shall notify Agent of any unsatisfactory
conditions, and if such conditions are not cured within a reasonable time period
to the reasonable satisfaction of Owner, Agent Bank, Beneficiary and LC Issuer
(but in no event less than seven days prior to such Closing Date), such Proposed
Property shall not become subject to the Lease and Agent shall
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have no right or authorization to act on behalf of Owner with respect to such
Proposed Property or to receive any reimbursements for Costs of the Property
with respect thereto.
5.1.11 Evidence of Insurance. On each Property Closing Date, Owner and
Agent Bank each shall have received a certificate relating to insurance
substantially in the form of Schedule I to the Lease, together with policies or
certificates of insurance evidencing the compliance by Agent with the provisions
of Article 13 of the Lease.
5.1.12 Closing of Loans and Equity Investment. On each Property Closing
Date, the applicable Loan shall have closed with respect to such Proposed
Property, any Equity Investment with respect to such Proposed Property shall
have been made such that the aggregate Equity Investment with respect to all
Properties shall at no time be less than 4% of the Cost of the Properties. Owner
shall be entitled to and shall have received the advance of the proceeds of the
applicable Loan with respect to each Proposed Property.
5.1.13 Proceedings and Documents. All opinions, certificates and other
instruments required hereunder or by any other Operative Document with respect
to each Closing, and all proceedings in connection with the transactions
contemplated by this Agreement with respect to such Closing shall be reasonably
satisfactory in form and substance to Owner, the Lenders, Agent Bank,
Beneficiary, LC Issuer and their respective special counsel. Owner, the Lenders,
Agent Bank, Beneficiary and LC Issuer shall have received copies of all
instruments and other evidence as Owner, the Lenders, Agent Bank, Beneficiary or
LC Issuer may reasonably request, in form and substance satisfactory to Owner,
Agent Bank, Beneficiary, LC Issuer and their respective special counsel, with
respect to such transactions and the taking of all corporate proceedings in
connection therewith. If any provision of this Agreement requires the
certification of the existence or non-existence of any particular fact or
implies as a condition the existence or non-existence of such fact, then Owner
shall be free after notice to and consultation with Agent to establish to its
reasonable satisfaction the existence or non-existence of any such fact.
5.1.14 Fees and Expenses. On each Closing Date, subject to the provisions
of Section 10 hereof, Agent shall have made adequate provision for payment or
reimbursement to Owner, Agent Bank, the Lenders, Beneficiary and LC Issuer of
all out of pocket expenses and counsel fees reasonably incurred by each of them
in connection with the transactions contemplated by this Agreement and the other
Operative Documents with respect to any Proposed Property. In connection with
out of pocket expenses and counsel fees of the Lenders, it is expressly agreed
that the payment and reimbursement obligations hereof shall apply only to
Lenders' Counsel as counsel to the group of Lenders.
5.1.15 Requisition. On each Property Closing Date, Agent Bank shall have
received a Requisition from Agent with respect to such Proposed Property in the
form required by the Loan
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Agreement. The Requisition shall comply with all requirements hereof and of the
Loan Agreement, shall be subject to review and approval by Agent Bank and shall
set forth the dollar amount of any Equity Investment required in connection
therewith.
5.1.16 Appraisals. On each Property Closing Date, Agent shall have
provided, at least 10 days prior to such Closing Date, at its sole cost and
expense, a complete and detailed appraisal (Appraisal) of the Proposed Property,
prepared by an MAI Appraiser selected by Beneficiary which shall be prepared in
accordance with MAI standards and addressed to Agent, Owner, Lenders,
Beneficiary and LC Issuer or accompanied by a letter permitting Agent, Owner,
Lenders, Beneficiary and LC Issuer to rely thereon, satisfactory in form and
substance to Agent, Lenders, Owner, Beneficiary and LC Issuer. Without limiting
the generality of the foregoing, each such Appraisal shall indicate an estimated
fair market value and useful life of the Proposed Property at the time of such
Property Closing. Further, without limiting the generality of the foregoing, in
order for such Appraisal to be satisfactory to Beneficiary, such Appraisal must
establish to Beneficiary's satisfaction that the Equity Investment does not
exceed the fair market value of the Proposed Property as of the applicable
Property Closing Date.
5.1.17 Other Requirements. On each Closing Date, Owner, Agent Bank,
Beneficiary and LC Issuer shall have received such other documents, reports, and
other materials as any of them may reasonably request evidencing Agent's
compliance with the terms and conditions of this Agreement.
ARTICLE 6
CONDITIONS OF AGENT'S OBLIGATIONS AT CLOSINGS
The obligations of Agent to enter into those Operative Documents to which
Agent is a party (or amendments or supplements thereof, as applicable) with
respect to each Closing are subject to (a) the accuracy and correctness of the
representations and warranties of Owner contained herein, (b) the accuracy and
correctness of the representations of Owner and Beneficiary contained in the
Operative Documents to which each is a party and in any other document or
certificate delivered pursuant hereto or thereto, (c) the performance by (x)
Owner of its agreements contained herein and to be performed by it and (y)
Beneficiary of their respective agreements contained in the Owner Trust
Agreement and to be performed by each thereof, in each case on or prior to the
date of each Closing, and (d) the satisfaction or waiver by Agent of all of the
following conditions:
6.1 Operative Documents. Each of the Operative Documents (including, as
required, amendments and supplements thereto) shall have been duly authorized,
executed and delivered by the parties thereto, shall be in full force and effect
and no Default or Event of
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Default shall exist thereunder, and counsel to Agent shall have received on
Agent's behalf a fully executed copy of each of such documents.
6.2 Opinions of Counsel. Agent shall have received from special counsel to
Owner an opinion dated the applicable Closing Date and addressed to and in form
and substance satisfactory to Agent.
6.3 Certificates. Agent shall have received a certificate of Owner, dated
the applicable Closing Date, satisfactory in form and substance to Agent.
6.4 Legal Restrictions. Agent shall not be prohibited or restricted by law
from engaging in the transactions contemplated by this Agreement on the
applicable Closing Date. The transactions contemplated by this Agreement on the
terms and conditions herein provided shall not violate any applicable law or
governmental regulation and shall not subject Agent, to any tax, penalty,
liability or other onerous condition under or pursuant to any applicable law or
governmental regulation.
6.5 Costs of the Properties. Agent shall have received the Advance due
from Owner for reimbursement of the Cost of the Properties with respect to such
Closing.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF AGENT
Agent warrants and represents to the Lenders, Owner, Bank, Agent Bank,
Beneficiary and LC Issuer as follows as of the each Closing Date and as to each
Property hereafter acquired on such Property Closing Date:
7.1 Organization and Power. Agent (a) is a corporation duly formed,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified as a foreign corporation in all other jurisdictions in
which such qualification is required in order for Agent to carry on its business
as now conducted including without limitation each state in which any Property
once acquired is located, except where the failure to be so qualified will not
have a material adverse effect on Agent; (b) has the full corporate power,
authority and legal right to lease each Property from Owner; and (c) and has the
requisite corporate power and authority to carry on its business as now
conducted and to execute, deliver and perform the Operative Documents to which
it is a party.
7.2 Full Disclosure. No written statement delivered to Owner, the Lenders,
Agent Bank, Beneficiary or LC Issuer by Agent in connection with the
transactions contemplated hereby or contained in this Agreement or any other
Operative Document to which Agent is a
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party contains any untrue statement of a material fact or omits a material fact
necessary to make the statements contained therein or herein not misleading in
any material respect. There is no fact peculiar to Agent which is not disclosed
in writing which materially and adversely affects Agent's ability to perform
under the Lease or any other Operative Document to which Agent is a party.
7.3 Litigation. There is no action, suit or proceeding pending, or to the
best of Agent's knowledge threatened, against or affecting Agent at law or in
equity before any court, or by or before any federal, state, municipal or other
governmental department, commission, board, bureau, agency, or instrumentality
or arbitrator which if adversely determined (i) individually or in the aggregate
would materially and adversely affect the performance by Agent of its
obligations under this Agreement or any other Operative Document to which it is
a party or the business and operations of Agent, taken as a whole, or (ii) would
affect in any material respect the consummation or validity of the Operative
Documents to which it is a party, or the transactions contemplated thereby.
7.4 No Adverse Change. There has been no material adverse change in the
condition of Guarantor and its Subsidiaries, financial or otherwise, since the
date of the last audited financial statement delivered to Lenders.
7.5 No Defaults. No Default or Event of Default has occurred and is
continuing. Agent is not in default in the payment of the principal or interest
on any indebtedness for borrowed money or for its deferred purchase of property
or in default under any instrument or agreement under and subject to which any
such indebtedness has been issued or under any lease, in each case involving the
likelihood of any actions or proceedings against it which will materially and
adversely affect Agent or its ability to perform under this Agreement, under the
Lease or any other Operative Document to which Agent is a party.
7.6 No Violation. Neither the execution, delivery or performance by Agent
of this Agreement or the other Operative Documents to be delivered by Agent nor
compliance herewith with respect to any of the Properties or therewith (a)
conflicts or will conflict with or results or will result in a breach of or
constitutes or will constitute a default under (i) any law in effect as of the
Closing Date for a Property or (ii) any order, writ, injunction or decree of any
court or other governmental authority, or (b) results or will result in the
creation or imposition of any lien, charge or encumbrance upon its property
pursuant to such agreement or instrument except for Permitted Encumbrances.
Neither the execution, delivery or performance by the Agent of this Agreement,
or the Operative Documents to be delivered by Agent nor compliance by Agent
herewith or therewith conflicts or will conflict with or results or will result
in a breach of or constitutes or will constitute a default under (i) the
certificate of incorporation or by-laws of Agent or (ii) any agreement or
instrument to which Agent is a party or by which it is bound.
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7.7 Agreements are Legal and Authorized. This Agreement and the other
Operative Documents to which Agent is a party have been duly authorized by Agent
and as to all of the Properties by all necessary corporate action (including any
necessary action by its shareholders) and have been duly executed and delivered
by it, and, assuming the due authorization, execution and delivery thereof by
the other parties thereto, are legal, valid and binding obligations of Agent
enforceable against it in accordance with their respective terms.
7.8 Insurance. On each Property Closing Date, all insurance required by
Article 13 of the Lease is or will be in effect with respect to each such
Property, and all premiums due and payable in respect of such insurance have or
shall have been paid.
7.9 Consents. No consent, license, approval or authorization of, or
filing, registration or declaration with, or exemption or other action by, any
governmental or public body, authority, bureau or agency (including courts)
under the laws of the United States of America, the States of Delaware,
Massachusetts, Connecticut, or of any other state in which a Property is located
is required in connection with the execution and delivery or performance by
Agent of this Agreement or any other Operative Document to which it is a party,
except for such approvals, consents or permits which may be required as of the
date hereof in connection with the use and occupancy of the Properties (all of
which have been obtained and are in full force except for those that are not yet
obtainable or are not material). All actions, consents and approvals of Agent
required to be performed on or prior to the Property Closing Date for such
Property in connection with the issuance of the related Notes and the making of
the Equity Investment and the transactions contemplated by the Operative
Documents have or will have been performed in accordance with their respective
terms or have been obtained and remain in full force and effect as of each
Closing Date.
7.10 Approvals. Agent holds or, if not required on the date hereof, will
obtain in the ordinary course on or before the date required all licenses,
certificates, consents, approvals, and permits from governmental authorities
materially necessary to use and operate each Property in accordance with the
provisions hereof and of the Lease and to enter into and perform this Agreement,
the Lease and the other Operative Documents.
7.11 Compliance; Taxes. Each Property acquired on a Property Closing Date
will comply in all material respects with all applicable Legal Requirements.
Agent will use and occupy each Property, and each Property is acceptable to
Agent, for its business purposes. There has been no material damage to any
Property nor are any condemnation or eminent domain proceedings pending, or to
Agent's knowledge, threatened with respect thereto. Agent is not in default in
the payment of any taxes levied or assessed against it or its assets,
non-payment of which would materially and adversely affect Agent or its ability
to perform under this Agreement, under the Lease or any other Operative Document
to which Agent is a party.
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7.12 Use of Advances. On each Property Closing Date, Agent has or will use
all Advances provided to it solely for application against the Cost of the
Properties, as agent of Owner, in accordance with the terms and conditions of
this Agreement, the Lease and the Loan Agreement.
7.13 Lease. On each Property Closing Date, Agent will unconditionally
accept each Property under the Lease, no offset will exist with respect to any
Basic Rent or other sums payable under the Lease and no Basic Rent or other sum
payable under the Lease will have been prepaid.
7.14 Use. None of the Permitted Encumbrances applicable to any Property
acquired on any Property Closing Date will interfere in any material respect
with the intended use by Agent of such Property.
7.15 ERISA. Agent is not entering into this Agreement or any other
Operative Document or transaction contemplated hereby or thereby, directly or
indirectly, in connection with any arrangement in any way involving any
"prohibited transaction," within the meaning of ERISA and the Code.
7.16 Property Related Information. On each Property Closing Date, all
information provided by or on behalf of Agent to the engineers in connection
with the environmental site assessment reports contemplated by Section 5.1.10
hereof or to the appraiser in connection with any Appraisal contemplated by
Section 5.1.16 hereof is true, accurate and complete in all material respects.
7.17 Location of Office and Records. Agent's office and principal place of
business in the Commonwealth of Massachusetts is located in the City of Boston
and the office where Agent will keep its corporate records concerning the
Properties and the Operative Documents is in Boston or such other location as
the Agent shall indicate to Owner and Agent Bank in writing. Agent will notify
Owner, Beneficiary, Agent Bank and LC Issuer promptly (but in no event later
than five Business Days after any such change) of any change in any of the
information set forth in this Section 7.17.
7.18 Brokers. Except for Placement Agent, Agent has not retained any
broker, finder or financial advisor in connection with the transactions
contemplated by the Operative Documents. Agent will hold the Indemnified Parties
harmless from any fee due Placement Agent or in connection with any breach of
the representations contained in the first sentence of this Section 7.18.
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ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF OWNER
Owner and, to the extent set forth in the last paragraph of this Article
8, Bank, represent and warrant to Agent as follows as of the each Closing Date:
8.1 Organization and Power. (a) Bank is a national banking association,
duly formed, validly existing and in good standing under the laws of the United
States and duly qualified to transact business in Connecticut; and (b) Owner and
Bank have the full corporate power and authority and all necessary licenses and
permits pertaining to its banking and trust powers under the laws of the United
States of America (i) to execute, deliver and perform the terms and provisions
of this Agreement and the other Operative Documents to which Owner, or Bank, as
the case may be, is a party, and (ii) to acquire and hold a fee estate in each
Property. All of the Beneficial Interest is owned by Beneficiary. Owner is not
engaged and shall not engage in any other business and has and shall have no
other liabilities; in each case except as expressly permitted by this Agreement
and the other Operative Documents.
8.2 Agreements Legal and Authorized. This Agreement and the other
Operative Documents to which Owner, or Bank, as the case may be, is a party have
been duly authorized by Owner and Bank, as the case may be, by all necessary
corporate action and duly executed and delivered by them and, assuming the due
authorization, execution and delivery thereof by the other parties thereto, are
legal, valid and binding obligations of Owner, or Bank, as the case may be,
enforceable against each thereof in accordance with their respective terms.
8.3 Litigation. There is no action, suit or proceeding pending, or to the
best of Owner's or Bank's knowledge threatened, against or affecting Owner or
Bank at law or in equity before any court, or by or before any federal, state,
municipal or other governmental department, commission, bound, bureau, agency,
or instrumentality or arbitration which, if adversely determined, would
materially and adversely affect any Property or would question the right, power
and authority of Owner or Bank to enter into or perform this Agreement or any
other Operative Document to which either thereof is a party.
8.4 No Violation. Neither the execution, delivery or performance by Owner,
or Bank, as the case may be, of this Agreement or the other Operative Documents
to be delivered by Owner, or Bank, as the case may be, nor compliance herewith
or therewith (a) conflicts or will conflict with or results or will result in a
breach of or constitutes or will constitute a default under (i) any law in
effect as of each Closing Date or (ii) any order, writ, injunction or decree of
any court or other governmental authority, or (b) results or will result in the
creation or imposition of any lien, charge or encumbrance upon its property
pursuant to such agreement or instrument, except the liens and security
interests created, and as permitted, by the Operative Documents.
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Neither the execution, delivery or performance by Owner of this Agreement, or
the Operative Documents to be delivered by Owner or Bank, as the case may be,
nor compliance by Owner or Bank, as the case may be, herewith or therewith
conflicts or will conflict with or results or will result in a breach of or
constitutes or will constitute a default under (i) the certificate of
incorporation or by-laws of Owner or Bank or (ii) any agreement or instrument to
which Owner or Bank is a party or by which it is bound.
8.5 Consents. No consent, license, approval or authorization of, or
filing, registration or declaration with, or exemption or other action by, any
governmental or public body, bureau or agency (including courts) under the laws
of the United States of America or the State of Connecticut is required in
connection with the execution and delivery or performance by Owner of this
Agreement or any other Operative Document to which Owner, or Bank, is a party.
The foregoing representations are made by Owner not in its individual
capacity but solely as Trustee under the Owner Trust Agreement, except with
respect to the following representations which are made by Bank in its
individual capacity: the representations in the first sentence of Section 8.1,
Section 8.2, the matters contained in Section 8.3 as they relate to any such
proceedings affecting Bank, the matters set forth in Section 8.4 to the extent
that they relate to agreements to which Bank is a party in its individual
capacity and the matters set forth in Section 8.5 to the extent that they relate
to Bank in its individual capacity pertaining to its banking or trust powers.
ARTICLE 9
DEFAULTS AND REMEDIES
9.1 Events of Default. Any of the following shall constitute an Event of
Default by Agent under this Agreement and under all of the Operative Documents:
(a) If Agent defaults in making payment of any sum payable hereunder
and such default continues for two days after written notice thereof; or
(b) If, as of the time when the same shall have been made or
repeated, any representation or warranty of Agent set forth herein or in any
consent, notice, certificate, demand, request or other instrument delivered by
or on behalf of Agent in connection with or pursuant to this Agreement or any of
the Operative Documents to which Agent is a party or the transactions
contemplated hereby or thereby shall prove to have been incorrect or misleading
in any material respect when made; or
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(c) If Agent defaults in the performance in any covenant, agreement,
or obligation on the part of Agent to be performed under this Agreement, and
such default continues for a period of 30 days after notice thereof from Owner;
or
(d) An Event of Default, as defined in the Lease shall have occurred
and be continuing under the Lease; or
(e) An Event of Default shall occur and be continuing under the
Guaranty, or any default shall occur and be continuing under the Assignment or
the Assignment of Guaranty.
9.2 Remedies. After any Event of Default hereunder, Owner shall have all
rights and remedies available at law and in equity and without limiting the
generality of the foregoing, may elect to exercise any or all of the following
remedies which shall be cumulative and not exclusive:
(a) Terminate Agent's authority and all of Agent's rights and
privileges under this Agreement;
(b) Exercise all rights and remedies under any or all of the
Operative Documents, including, without limitation, demand payment of liquidated
damages under clause (v) of paragraph (c) of Article 21 of the Lease;
(c) Demand immediate payment of all sums due hereunder together with
interest thereon at the Overdue Rate until paid; and
(d) Recover from Agent all other damages and expenses that Owner may
have sustained by reason of the Event of Default, including, without limitation,
reasonable attorneys' fees and expenses, which damages and expenses shall be
paid by Agent as they are incurred by Owner, together with interest thereon at
the Overdue Rate until paid.
9.3 Costs of Enforcement. If an action shall be brought by Owner for the
enforcement of any provision of this Agreement, Agent shall pay to Owner all
reasonable out-of-pocket costs and other expenses that may become payable as a
result thereof, including, without limitation, reasonable attorneys' or
consultants' fees and expenses.
9.4 Cumulative Remedies. No right or remedy herein conferred upon or
reserved to Owner is intended to be exclusive of any other right or remedy and
every right and remedy shall be cumulative and in addition to any other legal or
equitable right or remedy given hereunder, or at any time existing. The failure
of Owner to insist upon the strict performance of any provision or to exercise
any option, right, power or remedy contained in this Agreement shall not be
construed as a waiver or a relinquishment thereof for the future.
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ARTICLE 10
MISCELLANEOUS
10.1 Governing Law; Jurisdiction and Venue. This Agreement shall be
construed and enforced in accordance with, and governed by, the laws of the
Commonwealth of Massachusetts. Agent hereby agrees to non-exclusive personal
jurisdiction and venue in the state courts of the Commonwealth of Massachusetts
and the United States District Courts located in the City of Boston and the
Commonwealth of Massachusetts, the choice of such forum to be at Owner's sole
discretion.
10.2 Notices; Modification; Waiver .
(a) All notifications, notices, demands, requests and other
communications herein provided for or made pursuant hereto shall be in writing
and shall be sent by (i) registered or certified mail, return receipt requested,
and such communication shall be deemed complete on the third Business Day after
the same is deposited in a United States Post Office with postage charges
prepaid, or (ii) reputable overnight delivery service and the giving of such
communication shall be deemed complete on the immediately succeeding Business
Day after the same is deposited with such delivery service: (a) if to Owner,
addressed to such party at 10 State House Square, Hartford, Connecticut 06103,
Attention: Corporate Trust Administration, or (b) if to Agent, addressed to such
party at 745 Atlantic Avenue, Boston, Massachusetts 02110, Attention: Treasurer,
or at such other address as Owner or Agent shall have specified to the other in
writing, and, except as otherwise set forth above, such notifications, notices,
demands, requests or other communications shall be deemed given on the date of
receipt.
(b) This Agreement may not be modified or discharged except by an
instrument in writing executed by Owner and Agent. No requirement hereof may be
waived at any time except by an instrument in writing signed by the party
against whom such waiver is sought, nor shall any waiver be deemed a waiver of
any subsequent breach or default of Agent.
10.3 Illegal Provision. If any provision herein contained shall be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
10.4 Binding Effect; Third Party Beneficiary.
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(a) The covenants, conditions and agreements herein contained shall
bind, and the benefits and advantages shall inure to, the respective
administrators, successors and assigns of the parties hereto. Agent acknowledges
that Owner's rights hereunder, but not Owner's obligations, are being assigned
to Agent and that Agent may exercise all of Owner's rights under this Agreement
in accordance with the provisions hereof and of the Assignment. Whenever used,
the singular shall include the plural, the plural include the singular and the
use of any gender shall include all genders.
(b) Agent Bank, Lenders, Beneficiary and LC Issuer shall be third
party beneficiaries of this Agreement with respect to those provisions that
explicitly or implicitly are for the benefit of Agent Bank, Lenders, Beneficiary
or LC Issuer.
10.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same instrument.
10.6 Headings. The Table of Contents preceding this Agreement and the
headings to the various sections of this Agreement have been inserted for the
convenience of reference only and shall not limit or otherwise affect any of the
terms hereof.
10.7 Reproduction of Documents. This Agreement and all documents relating
thereto, (except any Notes) including, without limitation, (a) consents, waivers
and modifications which may hereafter be executed, (b) documents delivered at
each Closing, and (c) financial statements and other information previously or
hereafter furnished to either party, may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process, and such party may destroy any original document so reproduced. Owner
and Agent each stipulate that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by such party in the regular course of business) and that
any enlargement, facsimile or further reproduction of such reproduction shall
otherwise be admissible in evidence.
10.8 Time of Essence. Time is of the essence of this Agreement.
10.9 Payment of Expenses. Agent shall pay or cause to be paid, regardless
of whether the transactions contemplated hereunder shall occur, and in
connection with any amendment or modification to any Operative Document the
reasonable fees and expenses of Owner, Agent Bank, Lenders, Beneficiary, LC
Issuer, and their respective counsel, including local counsel (it being
understood that such costs shall not include the costs of any special counsel
retained by any individual Lender (other than Lenders' Counsel) to represent
such Lender separately prior to any Event of Default), together with all other
reasonable out-of-pocket
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expenses incurred by such parties for third-party costs, whether or not
capitalized by Agent, including, but not limited to, fees and expenses of
appraisal fees, environmental site assessment costs, title insurance fees,
survey costs, transfer costs and recordation fees, in connection with each
Closing or any amendment or modification of any Operative Document regardless of
whether the transactions contemplated in a connection with such Closing,
amendment or modification of any Operative Document are consummated. Agent shall
pay or cause to be paid from time to time the fees of Bank for its trust
services as Owner and as Trustee under the Owner Trust Agreement. Agent agrees
to indemnify and hold harmless the Indemnified Parties from and against any and
all liability and loss with respect to or resulting from the non-payment or
delayed payment of any of the foregoing fees and expenses including any interest
or penalties thereon, and from and against any and all finders' or brokerage
fees and commissions that may be payable to any party claiming to have dealt
with, or acted on behalf of Agent, in connection with any of the transactions
contemplated hereunder. In connection with any amendment or modification to any
Operative Document, a fee for such amendment or modification may be negotiated
between Agent and Owner, Agent Bank, Lenders, Beneficiary and LC Issuer. The
agreements contained in this Section 10.9 shall survive the payment of the
Notes, and all other amounts due hereunder and the termination of this Agreement
or Agent's authority hereunder.
10.10 Advisory Fee. In connection with the transactions contemplated by
this Agreement, Agent shall pay a fee to Placement Agent as set forth in a
separate fee agreement between the parties.
10.11 Limited Liability of Owner. Anything in this Agreement to the
contrary notwithstanding, except with respect to Lessor Liens, any
representation or warranty made by Owner in its individual capacity in any
Operative Document or clause (v) or (vi) below, it is understood and agreed that
(irrespective of any breach of any representation (except made in its individual
capacity), covenant, agreement or undertaking of any nature whatsoever made by
Owner in this Agreement or in any other Operative Document) no recourse shall be
had under any rule of law, statute or constitution or by the enforcement of any
assessments or penalties or otherwise for the payment of any amounts due
hereunder or for any claim based herein or otherwise in respect hereof against
(i) Owner, in its individual capacity, except as a result of its gross
negligence, fraud or willful misconduct or any holder of the Beneficial Interest
therein, or any past, present or future Affiliate, officer, director, Owner,
shareholder, agent, employee or partner thereof or any of its legal
representatives, successors or assigns, (ii) Subsequent Owner, in its individual
capacity, except as a result of its gross negligence, fraud or willful
misconduct or (iii) any Person on the grounds that in entering into the
transactions evidenced by any of the Operative Documents to which Owner is a
party, Owner or any other holder of the Beneficial Interest therein was acting
as an agent for the account and benefit of such Person and that such Person was
or was alleged to be the principal of Owner (unless Owner is acting or failing
to act in accordance with instructions of such Person). By entering into this
Agreement, each party hereto agrees that (except as specifically provided above)
all such liability (a) of Owner, in its
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individual capacity, or any other holder of the Beneficial Interest therein or
any past, present or future partner, officer, director, shareholder, agent or
employee thereof or director or shareholder of any partner thereof or any of
their respective legal representatives, successors or assigns, (b) of any
Subsequent Owner, in its individual capacity, or (c) of such other Person, is
and is being expressly waived and released as a condition of and as a
consideration for the execution of the Operative Documents, and Agent Bank, the
Lenders and their respective successors and assigns agree to look solely to the
Trust Estate and to the sums due and to become due under the Lease, the Agency
Agreement and the Guaranty for the payment of Owner's Obligations.
Nothing contained herein or in any of the Operative Documents, however,
shall be taken to (i) prevent recourse to and the enforcement against the Trust
Estate of and for all liabilities, obligations and undertakings contained in the
Operative Documents, (ii) limit, restrict, or impair the right of any registered
Owner of any of the Notes to accelerate the maturity thereof upon the occurrence
of an Event of Default, (iii) prevent the bringing of an action or obtaining of
a judgment against Owner or any holder of the Beneficial Interest therein;
provided that, except as set forth in (v) and (vi) below, and as providing in
the preceding paragraph, none of the Owner or any holder of the Beneficial
Interest nor any past, present, or future partner, officer, director or
shareholder thereof or director or shareholder of any partner thereof or any of
their respective legal representatives, successors or assigns, or any
corporation, partnership (or any partner thereof) or Subsequent Owner shall have
any individual or personal liability on such judgment and the satisfaction
thereof shall be limited to the Trust Estate and the sums due and to become due
under the Lease, the Agency Agreement or the Guaranty, (iv) prevent the bringing
of an action or obtaining of a judgment to foreclose the lien of any Deed of
Trust or otherwise realize upon the Trust Estate or the sums due or to become
due under the Lease, the Agency Agreement or the Guaranty, including the right
to proceed against the Agent/Lessee under the Lease or the Agency Agreement, or
the Guarantor under the Guaranty, (v) prevent recourse against the Bank for
payment of net income, franchise, estate, inheritance, succession, transfer or
profits taxes assessed against the Bank that Agent/Lessee is not obligated to
pay or discharge under the Lease, or (vi) prevent recourse to the Bank directly
for damages resulting from its fraud, gross negligence or willful misconduct.
10.12 Waiver of Jury Trial. EACH OF THE OWNER AND THE AGENT HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THIS WAVIER IS
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY EACH PARTY HERETO. EACH PARTY
FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO
BE REPRESENTED) IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED
<PAGE>
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OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER
WITH COUNSEL.
<PAGE>
IN WITNESS WHEREOF, the undersigned set their hands under seal as of
the day and year first above written.
IRON MOUNTAIN STATUTORY TRUST - 1999
BY: FIRST UNION NATIONAL BANK, not in its
individual capacity except as expressly set forth
herein, but solely as Trustee under the Owner Trust
Agreement dated as of July 1, 1999
By: /s/ Diane M. Welsh
---------------------------------
Name: DIANE M. WELSH
Title: Vice President
IRON MOUNTAIN RECORDS MANAGEMENT,
INC.
By: /s/ J.P. Lawrence
---------------------------------
Name: J.P. Lawrence
Title: VP, Treasurer
<PAGE>
APPENDIX I - Definitions
Acquisition Outside Date means the earlier to occur of (i) the date upon
which the aggregate of Loans outstanding equals the Maximum Loan Amount, or (ii)
January 1, 2001.
Actual Knowledge by a Person or Persons with respect to the occurrence or
non-occurrence of an event, means knowledge of such occurrence or non-occurrence
by the officer of such Person or Persons in the best organizational position to
have such knowledge.
Addition has the meaning set forth in Article 10 of the Lease.
Additional Improvements means, with respect to any Property, the
improvements, constructed and installed on such Property under and pursuant to
Section 10(d) of the Lease in accordance with Approved Plans.
Additional Obligations has the meaning set forth in paragraph (b) of
Article 3 of the Lease.
Adjusted LIBOR means, for any LIBOR Period, an interest rate per annum
equal to the rate per annum obtained by dividing (a) LIBOR by (b) a percentage
equal to 1.00 minus the LIBOR Reserve Percentage for such LIBOR Period.
Adjustment Price has the meaning set forth in paragraph (a) of Article
29(a) of the Lease.
Advance has the meaning set forth in Section 3.1(a) of the Agency
Agreement.
Affiliate, means, with respect to any Person, a Person who, directly or
indirectly, through one or more intermediaries, controls, or is controlled by or
is under common control with, such Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
Agency Agreement means the Agency Agreement, dated as of July 1, 1999, by
and between Owner and Agent, as amended or supplemented from time to time.
Agent means Iron Mountain Records Management, Inc., a Delaware
corporation, in its capacity as agent under the Agency Agreement.
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Agent Bank means Wachovia Capital Investments, Inc., as agent for the
Lenders under the Loan Agreement and the other Operative Documents, or any
successor Agent Bank appointed pursuant to Section 8.6 of the Loan Agreement.
Agent/Lessee has the meaning set forth in the Preliminary Statement of the
Loan Agreement.
Alternate Base Rate means that fluctuating interest rate per annum in
effect from time to time equal the greater of (x) the Prime Rate and (y) the
Overnight Federal Funds Rate plus 50 basis points (.50%).
Applicable Leverage Ratio has the meaning set forth in the Credit
Agreement.
Applicable Officer means the Treasurer, any Assistant Treasurer,
Controller, Chief Accounting Officer or Chief Financial Officer of any Person,
or if such Person no longer has an officer with such title, the chief executive
officer or other officer performing the equivalent function.
Appraisal has the meaning set forth in Section 5.1.16 of the Agency
Agreement.
Approved Plans has the meaning set forth in Section 10(d) of the Lease.
Assignment means the Assignment of Lease and Agency Agreement, dated as of
July 1, 1999, from the Owner to Agent Bank and consented to by Lessee/Agent, as
amended, modified or supplemented from time to time, as permitted thereby.
Assignment and Acceptance means an assignment and acceptance entered into
by a Lender and an Eligible Assignee or an Affiliate of a Lender, and accepted
by the Agent Bank and, if required by Section 10.14 of the Loan Agreement, by
the Owner, in substantially the form of Exhibit E of the Loan Agreement.
Assignment of Guaranty means the Assignment of Guaranty dated as of July
1, 1999, as amended or supplemented from time to time, from Owner, as assignor,
to Agent Bank, as assignee and consented to by Guarantor.
Authorized Representative means, when used with respect to any Person, any
officer with the corporate trust office of Owner, including any Vice President,
Assistant Vice President, Secretary, Assistant Secretary or any other officer of
such Person customarily performing functions similar to those performed by any
of the above designated officers and also, with
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respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Bank means First Union National Bank, in its individual capacity, and any
successor thereto as trustee under the Owner Trust Agreement.
Banking Day means any day except a Saturday, Sunday or other day on which
commercial banks in Georgia are authorized by law to close and on which dealings
in U.S. dollar deposits are conducted by and between banks in the London
interbank market.
Bankruptcy Laws means Title 11 of the United States Code or any other
Federal or state bankruptcy, insolvency or similar law, now or hereafter in
effect in the United States relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts of any Person.
Basic Rent has the meaning set forth in paragraph (a) of Article 3 of the
Lease.
Basic Term has the meaning set forth in Article 2 of the Lease.
Basic Term Commencement Date means the earlier to occur of (i) the first
day of the month following the date upon which the aggregate of all Loans
outstanding equals the Maximum Loan Amount, or (ii) January 1, 2001.
Beneficial Interest means the entire right, title and interest of the
Beneficiary in and to the Trust Estate.
Beneficiary means, collectively, the Secured Beneficiary and the Equity
Beneficiary.
Breakage Costs has the meaning set forth in Section 2.5.6(b) of the Loan
Agreement.
Business Day means any day other than a Saturday, Sunday or other day on
which banks are authorized to be closed in Georgia, New York, Connecticut or
Massachusetts.
Closing means the Initial Closing, any Property Closing or any funding
with respect to Additional Improvements.
Closing Date means the date upon which a Closing is to occur.
Code means the Internal Revenue Code of 1986, as amended from time to
time.
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Commitment means, for any Lender, the Remaining Maximum Loan Amount
multiplied by such Lender's Percentage.
Completion Date has the meaning set forth in Section 10(d) of the Lease.
Conveyance Document means a general warranty deed dated on or about any
Closing Date from the seller to Owner and any other bill of sale, assignments or
other instrument conveying a Property or a portion thereof to Owner.
Cost of the Property means as to any Property the sum of (i) the cost of
the acquisition of such Property including, without limitation, (x) the
Additional Improvements and (y) any real estate or other related transfer taxes
and (ii) certain transaction costs relating to the transactions contemplated
hereby, including legal fees and expenses, transactional fees, closing fees,
placement agent fees, appraisal fees, environmental site assessment fees and
title and survey expenses, all as determined in good faith by Agent and set
forth in an Officer's Certificate accompanied by supporting documentation and
materials satisfactory to Owner and Agent Bank.
Credit Agreement means the Second Amended and Restated Credit Agreement,
dated as of September 26, 1997, as amended by Amendment No. 1 dated as of
December 31, 1997, Amendment No. 2 dated as of November 9, 1998, Amendment No. 3
dated as of February 26, 1999 and Amendment No. 4 dated as of April 16, 1999 and
Amendment No. 5 dated as of July 14, 1999, each among Guarantor, as borrower,
and the banks named therein and The Chase Manhattan Bank, as agent, as amended,
amended and restated, modified, extended, refinanced or supplemented from time
to time, except to the extent that the Operative Documents refer to it as in
effect on the date hereof.
Debt Reinvestment Premium means, as of any date of determination, that
portion of the Reinvestment Premium which is equal to the product of (a) the
Reinvestment Premium as of such date multiplied by (b) the fraction obtained by
dividing (i) the aggregate outstanding principal amount of the Notes as of such
date by (ii) the sum of the amount in clause (i) plus the Equity Investment as
of such date.
Deed of Trust Beneficiary means, collectively, the Person named as the
beneficiary under any Deed of Trust.
Deed of Trust Trustee means, collectively, the Person who acts as deed of
trust trustee under any Deed of Trust.
Deeds of Trust means the Mortgages, Deeds of Trust, Deeds to Secure Debt
Security Agreements and Fixture Filings or similar instruments hereafter granted
by Owner to a deed of
<PAGE>
- 5 -
trust trustee and to Agent Bank for the benefit of Agent Bank as agent for the
registered owners of the Notes secured thereby, as the same may be amended,
modified or assigned from time to time, granting a first mortgage or deed of
trust lien (or conveying title to secure a debt as applicable,) on Owner's
interests in each of the Properties.
Default means any act or occurrence which, with notice, lapse of time or
both, would constitute an Event of Default under any Operative Document.
Depositary has the meaning set forth in paragraph (b) of Article 12 of the
Lease.
Dispute Notice has the meaning set forth in Article 12(b)(ii) of the
Lease.
EBITDA has the meaning set forth in the Guaranty.
Eligible Assignee means any of (a) a commercial bank or finance company or
other institutions that typically engage in transactions of this type, organized
under the laws of the United States, or any State thereof or the District of
Columbia, and having total assets in excess of $1,000,000,000; (b) a savings and
loan association or savings bank organized under the laws of the United States,
or any State thereof or the District of Columbia, and having a net worth of at
least $1,000,000,000 calculated in accordance with generally accepted accounting
principles; (c) a commercial bank organized under the laws of any other country
having total assets in excess of $1,000,000,000; (d) the central bank of any
country; and (e) if, but only if, an Event of Default has occurred and is
continuing, any other bank, insurance company, commercial finance company or
other financial institution approved by the Agent Bank, such approval not to be
unreasonably withheld.
Environmental Laws means any and all applicable federal, state and local
laws relating to the environment, land use, protection of national resources,
regulation or control of hazardous substances or environmental health and
safety, including obligations under the common law, ordinances, rules,
regulations, permits, approvals, orders, decrees, consent orders, private
agreements to which Lessee is a party or by which it is bound (such as
covenants, conditions and restrictions) and publications having the force of
law, as any of the foregoing may have been or may be from time to time amended,
supplemented or supplanted, and any other federal, state or local laws,
including obligations under the common law, ordinances, rules, regulations,
private agreements (such as covenants, conditions and restrictions) and
publications, now or hereafter existing relating to the environment, land use,
protection of natural resources, regulation or control of Hazardous Substances
or environmental health and safety and includes but shall not be limited to the
Resource Conservation and Recovery Act (42 U.S.C. ss.6901 et seq.), as amended
by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. ss.9601 et
seq.), as amended by the
<PAGE>
- 6 -
Superfund Amendments and Reauthorization Act of 1986, the Hazardous Materials
Transportation Act (49 U.S.C. ss.1801 et seq.), the Toxic Substances Control Act
(15 U.S.C. ss.2601 et seq.), Clean Air Act (42 U.S.C. ss.7401 et seq.), the
Clean Water Act (33 U.S.C. ss.1251 et seq.), the Federal Insecticide, Fungicide
and Rodenticide Act (7 U.S.C. ss.136 et seq.), the Occupational Safety and
Health Act (29 U.S.C. ss.651 et seq.).
Environmental Permits has the meaning set forth in paragraph (i) of
Article 9 of the Lease.
Equity Beneficiary means JH Equity Realty Investors, Inc., a Delaware
corporation, together with its successors and assigns as a beneficiary under the
Owner Trust Agreement.
Equity Investment means the outstanding amount from time to time of the
equity investment made by the Beneficiary on any Property Closing Date, and
which shall at all times be 4% of the Cost of the Properties as of the date of
determination.
Equity Reinvestment Premium means, as of any date of determination, that
portion of the Reinvestment Premium which is equal to the product of (a) the
Reinvestment Premium as of such date multiplied by (b) the fraction obtained by
dividing (i) the Equity Investment as of such date by (ii) the sum of the amount
in clause (i) plus the aggregate outstanding principal amount of the Notes as of
such date.
Equity Return means a return on the amount of the Equity Investment
outstanding from time to time with respect to the Properties equivalent to
interest thereon calculated in accordance with Schedule B of the Lease.
Equity Return Rate means (i) LIBOR plus 350 basis points, for all
Properties as to which the LIBOR Rate is applicable under the Loans with respect
to such Properties, and (ii) the Alternate Base Rate plus 350 basis points per
annum for all Properties as to which the Alternate Base Rate is applicable.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
ERISA Affiliate means any Person that is under "common control" with
Lessee, Agent or any Subsidiary (within the meaning of Section 414(b) or (c) of
the Code or Section 4001(a)(14) of ERISA).
Event of Default when used in a particular Operative Document has the
meaning set forth therein unless otherwise indicated.
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Exchange Property has the meaning set forth in paragraph (a) of Article 33
of the Lease.
Excluded Payments means (i) indemnity payments payable directly to the
Owner, the Beneficiary, the LC Issuer or Bank by Lessee or Agent pursuant to
Articles 8 or 9 of the Lease or pursuant to Section 2.3, of the Agency
Agreement, as the case may be, (ii) amounts payable directly to the Owner, the
Beneficiary, the LC Issuer or Bank under the Lease in respect of public
liability insurance proceeds, (iii) fees payable to Bank for its services as the
Trustee, (iv) fees and expenses payable to or on behalf of the Owner, the
Beneficiary, the LC Issuer or Bank, pursuant to Section 10.9 of the Agency
Agreement and (v) any right to enforce the payment against Lessee or Agent of
any amount described in clauses (i), (ii), (iii) or (iv).
Excluded Taxes has the meaning set forth in paragraph (a) of Article 6 of
the Lease.
Existing Improvements means the buildings, improvements, fixtures and
other property to be acquired simultaneously with any Land Parcel by
Agent/Lessee on behalf of Owner pursuant to the Agency Agreement on each
Property Closing Date, but excluding any personal property which constitutes
Trade Fixtures or Lessee's property pursuant to Section 10(d) of the Lease and
which is placed on any Land Parcel by Lessee for Lessee's own account and not as
agent for Owner under the Agency Agreement.
Expiration Date has the meaning specified in Section 4.1 of the Deed of
Trust.
Force Majeure means any fire, explosion, accident, flood, storm,
earthquake or other casualty or strike, lockout, act of God, or other
circumstance outside of such Person's control.
Funded Indebtedness has the meaning set forth in the Guaranty.
GAAP or generally accepted accounting principles means, as of the date of
any determination with respect thereto, generally accepted accounting principles
as used by the Financial Accounting Standards Board and/or the American
Institute of Certified Public Accountants.
Grant means mortgage, grant, convey, assign, create a security interest
in, bargain, sell, pledge, warrant, give, transfer and set over.
Guarantor means Iron Mountain Incorporated, a Delaware corporation,
together with its permitted successors and assigns.
Guaranty means the Unconditional Guaranty, dated as of July 1, 1999 from
Guarantor to Owner, as amended and supplemented from time to time.
<PAGE>
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Hazardous Substances means (i) those substances included within the
definitions of or identified as "hazardous substances", "hazardous materials",
or "toxic substances" in or pursuant to, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. ss.9601
et seq.) (CERCLA), as amended by Superfund Amendments and Reauthorization Act of
1986 (Pub. L. 99-499, 100 Stat. 1613) (SARA), the Resource Conservation and
Recovery Act of 1976 (42 U.S.C., ss.6901 et seq.) (RCRA), the Occupational
Safety and Health Act of 1970 (29 U.S.C. ss.651 et seq.) (OSHA), and the
Hazardous Materials Transportation Act, 49 U.S.C. ss.1801 et seq., and in the
regulations promulgated pursuant to said laws, all as amended; (ii) those
substances listed in the United States Department of Transportation Table (40
CFR 172.101 and amendments thereto) or by the Environmental Protection Agency
(or any successor agency) as hazardous substances (40 CFR Part 302 and
amendments thereto); (iii) any material, waste or substance which is or contains
(A) petroleum, including crude oil or any fraction thereof, natural gas, or
synthetic gas usable for fuel or any mixture thereof, (B) asbestos, (C)
polychlorinated biphenyls, (D) designated as "hazardous substance" pursuant to
Section 311 of the Clean Water Act, 33 U.S.C. ss.1251 et seq., (33 U.S.C.
ss.1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C.
ss.1317); (E) flammable explosives; (F) radioactive materials; and (iv) such
other substances, materials and wastes which are or become regulated as
hazardous, toxic or "special wastes" under applicable local, state or federal
law, or the United States government, or which are classified as hazardous,
toxic or as "special wastes" under federal, state or local laws or regulations,
including any Environmental Laws.
Improvements means as to any Property, collectively, the Existing
Improvements and any Additional Improvements with respect to such Property.
Indebtedness has the meaning set forth in the Guaranty.
Indemnified Party means each of Owner, Bank, Deed of Trust Trustee,
Lenders, Agent Bank, Beneficiary, LC Issuer, Placement Agent, and their
respective shareholders, officers, directors, partners, employees, attorneys and
agents, licensees, and any holder of any beneficial interest in any of such
Persons.
Individual Trustee means W. Jeffrey Kramer, not individually but solely in
his capacity as individual trustee under the Owner Trust Agreement, together
with his successors or assigns as individual trustee thereunder.
Initial Closing has the meaning set forth in Section 4.1 of the Agency
Agreement.
Initial Closing Date has the meaning set forth in Section 4.1 of the
Agency Agreement.
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Interest Period shall mean a calendar month or any portion thereof.
Interim Term has the meaning set forth in Article 2 of the Lease.
Interim Term Commencement Date means generally, the date of delivery of
the Lease by Lessor and Lessee, and with respect to each Property, the Property
Closing Date for such Property.
Iron Mountain 1998 Synthetic Lease Transaction means the "Overall
Transaction" as defined in Appendix I to the Lease Agreement dated as October 1,
1998, as amended or supplemented from time to time between Iron Mountain
Statutory Trust - 1998 and Lessee.
Land Parcels means the certain parcels of land on which the warehouse
facilities to be leased to Lessee under the Lease will be located, as more fully
described in Schedule A to each of the Agency Agreement and the Lease, as
amended and supplemented from time to time.
LC Deeds of Trust means the Mortgages, Deeds of Trust, Deeds to Secure
Debt Security Agreements and Fixture Filings, relating to each Property dated on
or about the date of the Closing for each Property, from Owner to Deed of Trust
Trustee and to LC Issuer, for the benefit of LC Issuer, as the same may be
amended, modified or assigned from time to time.
LC Issuer means BTM Capital Corporation, a Delaware corporation, as issuer
of the Letter of Credit.
LC Security Documents means the LC Deeds of Trust and all other documents
executed by the Owner as security for the performance by the Owner of its
obligations under the Reimbursement Agreement.
Lease means the Lease Agreement, dated as of July 1, 1999, between the
Owner, as lessor, and Lessee, as lessee, together with all amendments,
modifications and supplements thereto, including any Lease Supplement, and any
memorandum or short form thereof entered into for the purpose of recording,
registration or filing.
Lease Proposal means the Revised Lease Terms and Conditions from BTM
Capital Corporation to Agent, dated May 26, 1999.
Lease Supplement means the Supplement to Lease entered into on each
Property Closing Date with respect to one or more Properties or in connection
with Additional Improvements and in the form of Schedule G to the Lease.
<PAGE>
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Legal Requirements means all laws, rules, orders, ordinances, regulations
and requirements now existing or hereafter enacted or promulgated, of every
government and municipality having jurisdiction over each Property and of any
agency thereof, relating to each Property, or the improvements thereon, or the
facilities or equipment thereon or therein, or the streets, sidewalks, vaults,
vault spaces, curbs and gutters adjoining each Property, or the appurtenances to
such Property, or the franchises and privileges connected therewith and
including, without limitation, Environmental Laws.
Lender Assignment has the meaning set forth in Section 10.14.1 of the Loan
Agreement.
Lender Assignment Conditions has the meaning set forth in Section 10.14.1
of the Loan Agreement.
Lender(s) means each financial institution listed on Schedule 1 to the
Loan Agreement as such Schedule may be modified from time to time in connection
with a transfer pursuant to Section 10.14 of the Loan Agreement.
Lender's Additional Costs has the meaning set forth in Section 5.9 of the
Loan Agreement.
Lender's Counsel means Day Berry & Howard LLP as counsel to the Agent Bank
and to the Lenders collectively.
Lender's Percentage means the percentage listed next to Lender's name on
Schedule 1 of the Loan Agreement.
Lending Office has the meaning set forth in Section 2.4 of the Loan
Agreement.
Lessee means Iron Mountain Records Management, Inc., a Delaware
corporation, and its permitted successors and assigns.
Lessee's Default has the meaning specified in Section 7.1 of the Deed of
Trust.
Lessee's Loss has the meaning set forth in paragraph (a) of Article 12 of
the Lease.
Lessor means, Iron Mountain Statutory Trust - 1999, a Connecticut
statutory trust, and its permitted successors and assigns.
Lessor Lien means any lien on or with respect to any Property which is not
specifically permitted by the terms of the Lease and which results from (i)
nonpayment by Lessor or any
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member, partner, shareholder or beneficiary of Lessor or any affiliate of any of
the foregoing (the Lessor Parties), of any tax, assessment or like charge
imposed on any Lessor Party, other than any tax, assessment or like charge the
payment of which is Lessee's obligation under the Lease; (ii) claims against or
acts and omissions of any Lessor Party arising out of events or conditions that
are not related to the transactions contemplated by the terms of the Lease or
are in violation of any of the obligations of Lessor under any of the terms of
the Lease; (iii) claims against any Lessor Party arising out of any transfer
(whether voluntary or involuntary) by such Lessor Party of any portion of its
interest in such Property or its rights under the Lease that is neither
permitted hereunder nor consented to in writing by Lessee; or (iv) any other act
of, claim against or lien created by any Lessor Party, or any Person claiming
by, through or under any Lessor Party, that is neither permitted under the terms
of the Lease nor consented to in writing by Lessee.
Lessor Parties has the meaning specified in the definition of Lessor Lien.
Letter of Credit means the irrevocable standby letter of credit, no.
B0162-2006, dated the Closing Date, issued by LC Issuer for the account of Owner
and for the benefit of Agent Bank and the Lenders, and all amendments and
supplements thereto and replacements therefor.
Letter of Credit Lenders means all Lenders except Agent Bank (in its
capacity as a Lender hereunder).
LIBOR means the rate of interest per annum (expressed as an annual rate
rounded to the nearest one-hundredth of a basis point) equal to the London
interbank offered rate for deposits in U.S. dollars for a period equal to the
applicable LIBOR Period as of 1:00 p.m. local London time, on the LIBOR Interest
Setting Date for such LIBOR Period. The applicable LIBOR shall be determined on
the basis of offered rates for deposits in U.S. Dollars by reference to the
Telerate, Inc. display designated as page 3750 (or such other page as may
replace such page on the Telerate, Inc. service for the purpose of displaying
London interbank offered rates); provided, however, that if Telerate, Inc. shall
not publish or shall cease publication of such information, the applicable LIBOR
shall be determined on the basis of offered rates for deposits in U.S. Dollars
by reference to the rate shown on the display designated as page "LIBO" on the
Reuters Monitor Money Rates Service (or such other page as may replace the LIBO
page on that service for the purpose of displaying London interbank offered
rates of major banks); and provided further that if Reuters Monitor Money Rates
Service shall not publish or shall cease publication of such information, the
applicable LIBOR shall be determined by reference to the rate at which deposits
in U.S. dollars are offered by the principal office of the Agent Bank in the
London interbank market for the applicable LIBOR Period. The determination of
LIBOR by the Agent Bank shall be conclusive absent manifest error.
<PAGE>
- 12 -
LIBOR Interest Setting Date means, with respect to any LIBOR Period, the
date which is two Banking Days before the first day of such LIBOR Period.
LIBOR Period means, with respect to each Loan, the period commencing on
and including the first day of the first calendar month occurring after the
funding date of such Loan and ending on the last day of the calendar month
during which such Loan was made, and, thereafter the period commencing on the
last day of the immediately preceding LIBOR Period and ending on the same
numerical day in the calendar month thereafter; provided that:
(1) if any LIBOR Period would otherwise end on a day which
is not a Banking Day, that LIBOR Period should be
extended to the next succeeding Banking Day, unless the
result of such extension would be to carry such LIBOR
Period into another calendar month, in which event such
LIBOR Period shall end on the immediately preceding
Banking Day;
(2) for purposes of calculating interest on the Notes for
any LIBOR Period, such calculation shall include the
first day, but exclude the last day, of any such LIBOR
Period; and
(3) any LIBOR Period that begins on the last Banking Day of
a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at
the end of such LIBOR Period) shall end on the last
Banking Day of the calendar month at the end of such
LIBOR Period.
LIBOR Portion means any portion of the Loans with respect to which
interest shall be calculated at the LIBOR Rate in accordance with Section
2.5.2(a) of the Loan Agreement.
LIBOR Rate means with respect to the applicable LIBOR Period, the Adjusted
LIBOR plus the LIBOR Spread applicable to such LIBOR Period.
LIBOR Reserve Percentage for any LIBOR Period, means the reserve
percentage (expressed as a decimal) on the applicable LIBOR Interest Setting
Date, under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for the Agent Bank, at its principal
office with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, as such term is defined in Regulation D Board of
Governors of the Federal Reserve
<PAGE>
- 13 -
System, as in effect from time to time (or with respect to any other category of
liabilities which includes deposit by reference to which the interest rate on
LIBOR Rate Loans is determined having a term equal to such LIBOR Period).
LIBOR Spread has the meaning set forth in Section 2.5.2(b) of the Loan
Agreement.
Lien of this Deed of Trust and terms of like import mean the security
title or security interest or other interest or charge Granted to the Deed of
Trust Trustee for the benefit of Deed of Trust Beneficiary or to Deed of Trust
Beneficiary under the Deed of Trust or subsequently Granted under the Deed of
Trust or pursuant to the Deed of Trust to the Deed of Trust Trustee for the
benefit of Deed of Trust Beneficiary or to Deed of Trust Beneficiary (whether
made by the Owner or any other Person) or otherwise created, which title,
interest, or charge effectively constitutes any property as a part of the
security held by the Deed of Trust Trustee for the benefit of Deed of Trust
Beneficiary or by Deed of Trust Beneficiary.
Liens has the meaning set forth in Section 10(c) of the Guaranty, and
shall also include, without limitation, any notices of contract, statement of
claim with respect to unpaid costs or mechanics or materialmen's liens, by or on
behalf of any contractor or subcontractor or any agent of agent or any
contractor or subcontractor with respect to any items of work or activities with
respect to any construction or alteration of any Property.
Limited Lessee Risk Conditions means, collectively, the following: (i)
there shall have been no condemnation, damage, destruction or taking of
substantially all of any Property and all Additions, if any, are substantially
complete; (ii) no Default or Event of Default shall have occurred and be
continuing under the Lease, including, without limitation, any Default in
Lessee's obligation to maintain the Properties or comply with Legal
Requirements; (iii) Lessee shall not have exercised its purchase option under
paragraph (a) of Article 27 of the Lease; (iv) either (x) a sale to a third
party of the Properties has been consummated on or prior to the Term Termination
Date and Lessor has received, in immediately available funds, on the Term
Termination Date, the Net Proceeds of sale of such Properties plus payment of
the Maximum Lessee Risk Amount and any Additional Obligations then due and owing
hereunder with respect to such Properties, or (y) a sale to a third party of the
Properties has not been so consummated on the Term Termination Date and the
Lessee has vacated the Properties and surrendered and returned the Properties to
Lessor in the condition required by Article 25 of the Lease, and Lessor has
received, in immediately available funds on or before the Term Termination Date
thereof, payment of the Maximum Lessee Risk Amount and any Additional
Obligations then due and owing under the Lease with respect to the Properties;
(v) the Lease has not been terminated prior to the Term Termination Date; (vi)
no amendment, modification, supplement, consent, waiver, approval, settlement,
extension, compromise or accommodation of the Lease or the Agency Agreement has
been entered into or given without the prior written consent of the LC Issuer;
and
<PAGE>
- 14 -
(vii) the Properties are free and clear of all liens and encumbrances except for
the lien of the LC Deed of Trust, the Deed of Trust, liens for taxes for the
current year which are not due and payable and Permitted Encumbrances described
in (a), (c) and (i) of the definition thereof, and any liens for taxes,
assessments and other governmental charges, which are not then due and payable
and which are not allocable to the period before the date of termination or
expiration of the Lease with respect to the applicable Property.
Liquid Investments has the meaning set forth in the Credit Agreement and
reiterated on Schedule 2.
Loan Agreement means the Loan Agreement, dated as of July 1, 1999, among
the Lenders, the Agent Bank and Owner, as amended and supplemented from time to
time.
Loans has the meaning set forth in Section 2.1(a) of the Loan Agreement.
Maturity Date has the meaning set forth in Section 2.1(a) of the Loan
Agreement.
Maximum Lease Term means, as to each Property, the maximum Term of the
Lease with respect to such Property.
Maximum Lessee Risk Amount means an amount calculated as set forth in
Schedule F of the Lease for each relevant period and Property.
Maximum Lessor Risk Amount means an amount calculated as set forth in
Schedule F of the Lease for each relevant period and Property.
Maximum Loan Amount means Fifty-Four Million, Five Hundred Thousand and
00/100 ($54,500,000), of which up to $2,500,000 may be attributable to
Additional Improvements.
Memorandum of Lease means the memorandum or short form of the Lease
delivered for recording purposes.
Moody's has the meaning set forth in Article 12 of the Lease.
Net Award has the meaning set forth in paragraph (c) of Article 12 of the
Lease.
Net Proceeds means, upon the sale of any Property to a third party, the
net amount of the proceeds of such sale, after deducting from the gross proceeds
of such sale (i) all sales taxes and other taxes (excluding any Excluded Taxes),
(ii) all fees, costs and expenses of such sale incurred by Lessor or by Lessee,
as Lessor's agent, unless separately paid or reimbursed by Lessee, and
<PAGE>
- 15 -
(iii) any other amounts for which, if not paid, Lessor would be liable or which,
if not paid, would constitute a lien on such Property.
Notes means the promissory notes issued to the Lenders pursuant to Article
2 of the Loan Agreement evidencing the Loans.
Officer's Certificate means a certificate executed and delivered by the
Applicable Officer of Lessee or Agent, or such other officer of Lessee or Agent
certified by the Applicable Officer as being in the best position to know the
substance of the matters contained in such certificate.
Operative Documents has the meaning set forth in Section 5.1.1 of the
Agency Agreement.
Other Deeds of Trust means, in connection with any reference to a Deed of
Trust encumbering a Property, all of the other Deeds of Trust encumbering all of
the other Properties.
Other LC Deeds of Trust means, in connection with any reference to an LC
Deed of Trust encumbering a Property, all of the other LC Deeds of Trust
encumbering all of the other Properties.
Overall Transaction means the purchasing, financing, leasing and managing
of the Properties in accordance with the Operative Documents and the Lease
Proposal.
Overdue Rate means (i) when used with reference to the Equity Investment
or any amount payable in respect of the Equity Investment, including the Equity
Return, plus 2% (ii) when used with reference to the Notes or any amount payable
under the Loan Agreement, the Overdue Rate as defined in Section 2.5.3 of the
Loan Agreement.
Overnight Federal Funds Rate means, for any period, a fluctuating interest
rate per annum equal, for each day during such period, to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System, arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Agent Bank from three Federal funds brokers of
recognized standing selected by it in its sole discretion acting in good faith.
Owner has the meaning specified in the Owner Trust Agreement.
<PAGE>
- 16 -
Owner Trust Agreement means the Owner Trust Agreement, dated as of July 1,
1999, among Bank, Individual Trustee, Secured Beneficiary and Equity
Beneficiary, as amended and supplemented from time to time.
Owners Obligations means the Loans outstanding under the Loan Agreement
from time to time and all other obligations of the Owner to the Agent Bank or to
the Lenders of every kind or description, direct or indirect (by participation
or otherwise), absolute or contingent, voluntary or involuntary, liquidated or
unliquidated, determined or undetermined, primary or secondary, due or to become
due, arising under or by virtue of the Loan Agreement, any other Operative
Document or any other instrument, document, certificate or agreement made in
connection herewith or therewith, whether now existing or hereafter arising,
regardless of how they arise or by what agreement or instrument they may be
evidenced or whether evidenced by any agreement or instrument, and whether
recovery thereof may be or hereafter become barred by any statute of limitations
or become otherwise unenforceable, and the same includes obligations to perform
acts or refrain from acting as well as obligations to pay money.
Payment Dates has the meaning set forth in paragraph (a) of Article 3 of
the Lease.
Permitted Encumbrances means with respect to a Property:
(a) rights reserved to or vested in any municipality or public authority
to condemn, appropriate, recapture or designate a purchaser of the
Property;
(b) any liens thereon for taxes, assessments and other governmental
charges and any liens of mechanics, materialmen and laborers for
work or services performed or material furnished in connection with
the Property, which are not due and payable, or the amount or
validity of which are being contested as permitted by Article 6 of
the Lease;
(c) easements, rights-of-way, servitudes, zoning laws, use regulations,
and other similar reservations, rights and restrictions and other
minor defects and irregularities in the title to the Property listed
in the mortgagee's title insurance policy delivered pursuant to the
Loan Agreement or granted in accordance with the provisions of
Article 34 of the Lease;
(d) all other matters affecting title existing on the date of the Lease
as set forth in Schedule G to the Lease;
(e) the Lease;
<PAGE>
- 17 -
(f) the lien of the Deed of Trust and any rights granted by the Deed of
Trust;
(g) the Assignment;
(h) the LC Security Documents, provided the lien of all of the same and
the rights of the beneficiaries thereof shall be subject and
subordinate to the lien of the Deed of Trust and of the Assignment
and the rights of the Deed of Trust Trustee and the Deed of Trust
Beneficiary under the Deed of Trust and under the Assignment (and,
in each case, the lien of and rights under any other instruments
securing the obligations of the Owner secured by the Deed of Trust);
and
(i) such other matters as are set forth on Schedule B to Owner's title
insurance policy (or commitment therefor).
Person means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation, limited
liability company, institution, public benefit corporation, entity or government
(whether federal, state, county, city, municipal or otherwise, including without
limitation, any instrumentality, division, agency, body or department thereof.)
Placement Agent means BTM Financial Services, Inc., a Delaware corporation
and an Affiliate of LC Issuer.
Plan means any "employee benefit plan" (within the meaning of Section 3(3)
of ERISA) that Lessee, Agent, Beneficiary, any Subsidiary or any ERISA Affiliate
maintains, contributes to or is obligated to contribute to for the benefit of
employees or former employees of Lessee, Agent, Beneficiary, any Subsidiary or
any ERISA Affiliate.
Prepayment Date has the meaning specified in Section 6.2 of the Deed of
Trust.
Prime Rate refers to that interest rate so denominated and set by Wachovia
Bank, N.A. from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia Bank, N.A..
Wachovia Bank, N.A. lends at interest rates above and below the Prime Rate.
Property means (i) each Land Parcel, (ii) all Improvements located or to
be located on such Land Parcel, (iii) all other real and personal property
placed on, affixed or appurtenant to, such Land Parcel by Agent pursuant to the
terms of the Agency Agreement or by Lessee pursuant to the terms of the Lease,
including, without limitation, any equipment and other personal property
identified from time to time on Schedule A to each of the Agency Agreement
<PAGE>
- 18 -
and the Lease, as such schedules may be amended, supplemented or modified from
time to time (but excluding Trade Fixtures), (iv) any and all accessions,
additions, improvements, substitutions and replacements with respect to any of
the foregoing, and (v) all easements, rights and appurtenances with respect to
such Land Parcel.
Property Closing means the acquisition of a Proposed Property by Owner
pursuant to the Agency Agreement.
Property Closing Date means the date on which a Property Closing occurs.
Property Closings has the meaning set forth in Section 4.4 of the Agency
Agreement.
Property Designation Notice has the meaning set forth in Section 4.2 of
the Agency Agreement.
Proposed Property has the meaning in Section 4.2 of the Agency Agreement.
Purchase Price has the meaning set forth in Schedule E attached to the
Lease.
Recordable Documents has the meaning specified in Section 3.3 of each Deed
of Trust.
Register has the meaning set forth in Section 10.14.3 of the Loan
Agreement.
Regulation D means Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be amended or supplemented from time to time.
Regulatory Change means any change after the Closing Date in United States
federal, state or foreign laws or regulations (including Regulation D and the
laws or regulations which designate any assessment rate relating to certificates
of deposit or otherwise) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks, including
any Lender, of or under any United States federal, state, or foreign laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
Reimbursement Agreement means the Reimbursement and Remarketing Agreement,
dated as of July 1, 1999, between the Owner and the LC Issuer, as amended,
modified or supplemented from time to time.
Reinvestment Premium means, with respect to the termination of the Lease
and the purchase of all of the Properties by Lessee pursuant to Article 34 of
the Lease, and the
<PAGE>
- 19 -
accompanying prepayment of the Loan and the Equity Investment on any Payment
Date occurring on or prior to July 31, 2002, a premium in one of the following
amounts: (i) if such Payment Date is a date on or prior to July 31, 2000, an
amount equal to two percent (2%) of the Cost of the Properties as of such
Payment Date; (ii) if such Payment Date is a date on or after August 1, 2000 but
on or prior to July 31, 2001, an amount equal to one percent (1%) of the Cost of
the Properties as of such Payment Date; and (iii) if such Payment Date is a date
on or after August 1, 2001 but on or prior to July 31, 2002, an amount equal to
one-half of one percent (0.5%) of the Cost of the Properties as of such Payment
Date.
Remaining Maximum Loan Amount means the Maximum Loan Amount less the
aggregate of all Loans made by the Lenders, in each case as of the date of
determination thereof.
Remarketing Period has the meaning set forth in paragraph (b) of Article
27 of the Lease.
Required Lenders means, as of a particular date, except as hereinafter set
forth, Lenders holding at least 51% of the aggregate principal amount of all
Notes outstanding or, if no Loans are then outstanding, Lenders having at least
60% of the aggregate Lender's Percentages' provided, further, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (i) increase the obligation of any Lender to
make Loans to Owner pursuant to the Loan Agreement or subject the Lenders to any
additional obligations; (ii) reduce the principal of, or interest on, any Loan
or reduce the amount of any fee or other amount payable to or for the benefit of
any Lender pursuant to any Operative Document (including, without limitation,
reduce the amount of any installment of Basic Rent, or any amount of Additional
Obligations, Termination Value, Purchase Price, Maximum Lessee Risk Amount,
Maximum Lessor Risk Amount or Adjustment Price); (iii) postpone any date fixed
for any payment of principal of, or interest on, any Advance or any fee or other
amount payable to or for the benefit of any Lender pursuant to any Operative
Document (including, without limitation, postpone any date fixed for the payment
of any installment of Basic Rent, or any date for the payment of Additional
Obligations, Termination Value, Purchase Price, Maximum Lessee Risk Amount,
Maximum Lessor Risk Amount or Adjustment Amount); (iv) change the percentage of
the Lender Percentage, or of the aggregate unpaid principal amount of any of the
Loans, or the number of Lenders, which shall be required for the Lenders or the
Agent Bank or any of them to take any action under any Operative Document; (v)
change any provision relating to the use of proceeds of the Loans, or of
Sections 2.6, 3, 4.1, 5.9 or 8.9 of the Loan Agreement, or this definition; (vi)
release any of the security for the obligations of Owner or the Lessee under any
Operative Document; (vii) release the Guarantor from its obligations under the
Guaranty. Notwithstanding anything in this definition to the contrary, no
amendment, waiver or consent shall be made with respect to Sections 4.3 or 8 of
the Loan Agreement without the consent of the Agent Bank; or modify, alter or
waive any provision of the Letter of Credit or any comfort letter issued in
connection with the Letter of Credit.
<PAGE>
- 20 -
Requisition has the meaning set forth in Section 3.1.4 of the Loan
Agreement.
Responsible Officer has the meaning set forth in the Owner Trust
Agreement.
Secured Beneficiary means BTM Capital Corporation, a Delaware corporation,
together with its successors and assigns as a beneficiary under the Owner Trust
Agreement.
S&P has the meaning set forth in Article 12 of the Lease.
Spread Determination Date has the meaning set forth in Section 2.5.2(b) of
the Loan Agreement.
Stock means all shares, options, interests, participations or other
equivalents (regardless of how designated) of or in a corporation or equivalent
entity (including, without limitation, a partnership, business trust or limited
liability company), whether voting or nonvoting, and including, without
limitation, common stock, preferred stock, beneficial interests in trusts,
securities convertible into or exchangeable for stock, or warrants or options
for any of the foregoing.
Subsequent Owner or Subsequent Lessor means (i) any and every future
purchaser, assignee or transferee of the Property or any part thereof permitted
under the Operative Documents and (ii) any and every future purchaser, assignee
or transferee of the interest of any owner in the Property permitted under the
Operative Documents, but upon the sale, assignment or transfer of all of such
right, title and interest in and to the Property by a Subsequent Owner or
Subsequent Lessor, as the case may be, such Subsequent Owner or Subsequent
Lessor, as the case may be, shall cease to be a Subsequent Owner or Subsequent
Lessor, as the case may be.
Subsidiary, with respect to any corporation (the parent), means a
corporation or partnership of which the parent, at the time in respect of which
such term is used, owns directly, or controls with power to vote, indirectly
through one or more Subsidiaries, shares of greater than fifty percent (50%) of
its Voting Stock. The term Subsidiary, when used in the Operative Documents
without reference to any particular Person, means a Subsidiary of Guarantor.
Substantially Complete or Substantial Completion means, with respect to
any Additional Improvements, complete in substantial accordance with Approved
Plans.
Taxes has the meaning set forth in Section 5.9 of the Loan Agreement.
Term of this Lease and words of like import means, collectively, the
Interim Term and the Basic Term.
<PAGE>
- 21 -
Term Termination Date means the fifth anniversary of the Basic Term
Commencement Date.
Termination Date means, as to any Property, the date specified by Lessee
for termination of the Lease as to such Property in accordance with paragraph
(c) of Article 12 of the Lease.
Termination Notice has the meaning set forth in paragraph (a) of Article
27 of the Lease.
Termination Value has the meaning specified in Schedule C of the Lease.
Title Company means the title company as specified in the title policy
required by Section 5.1.4 of the Agency Agreement
Total Property Cost means Fifty-Six Million, Seven Hundred Seventy
Thousand, Eight Hundred Thirty-Three Dollars and 33/100 ($56,770,833.33) of
which up to $2,500,000 may be attributable to Additional Improvements.
Trade Fixtures has the meaning set forth in paragraph (a) of Article 11 of
the Lease.
Trust Estate has the meaning specified in the Owner Trust Agreement.
Trustee means First Union National Bank, not individually but solely in
its capacity as trustee under the Owner Trust Agreement, together with its
successors or assigns as trustee thereunder.
Uniform Commercial Code means the Uniform Commercial Code as enacted in
the applicable State in which each Property is located, as amended from time to
time.
Unused Amount Fee has the meaning set forth in Section 4.1 of the Loan
Agreement.
Voting Stock, with respect to a corporation, means the stock of such
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect members of the Board of Directors (or other
governing body) of such corporation, and with respect to any partnership, means
the partnership interests in such partnership the owners of which are entitled
to manage the affairs of the partnership, or vote in connection with the
management of the affairs of the partnership or the designation of another
Person as the Person entitled to manage the affairs of the partnership (it being
understood that, in the case of any partnership, "shares" of Voting Stock shall
refer to such partnership interests).
<PAGE>
SCHEDULE A
Land Parcels
[Intentionally blank as of Initial Closing]
<PAGE>
EXHIBIT 10.2
LEASE AGREEMENT
between
IRON MOUNTAIN STATUTORY TRUST - 1999,
as Lessor
and
IRON MOUNTAIN RECORDS MANAGEMENT, INC.,
as Lessee
Dated as of July 1, 1999
<PAGE>
TABLE OF CONTENTS
Page
----
1. Demise; Title; Condition. .............................................. 1
2. Term. .................................................................. 2
3. Rent. .................................................................. 2
4. Use. ................................................................... 3
5. Net Lease; Nonterminability ............................................ 3
6. Taxes and Other Charges; Law and Agreements. ........................... 5
7. Title; Liens. .......................................................... 8
8. Indemnification; Fees and Expenses. .................................... 9
9. Environmental Matters .................................................. 11
10. Maintenance and Repair; Additions; Additional Improvements ............ 15
11. Trade Fixtures; Inspection. ........................................... 20
12. Condemnation and Casualty. ............................................ 20
13. Insurance. ............................................................ 26
14. Financial Statements; Other Information. .............................. 30
15. Mergers; Acquisitions; Asset Sales. ................................... 31
16. Purchase Procedure. ................................................... 31
17. Quiet Enjoyment. ...................................................... 32
18. Survival. ............................................................. 33
19. Subletting; Assignment. ............................................... 33
<PAGE>
ii
20. Protective Advances by Lessor. ........................................ 34
21. Conditional Limitations --Events of Default and Remedies. ............. 34
22. Notices. .............................................................. 40
23. Estoppel Certificates. ................................................ 41
24. No Merger ............................................................. 41
25. Surrender and Return. ................................................. 42
26. Separability. ......................................................... 44
27. Lessee's End of Term Purchase Options. ................................ 44
28. Signs; Showing. ....................................................... 45
29. End of Term Adjustment. ............................................... 46
30. Nature of Lessor's Obligations; Limitations on Liability. ............. 47
31. Lessee's Representations and Warranties. .............................. 48
32. Granting of Easements, Etc. ........................................... 49
33. Special Purchase Rights of Lessee; Exchange of Properties. ............ 50
34. Additional Purchase Rights of Lessee. ................................. 54
35. Recording. ............................................................ 54
36. Miscellaneous. ........................................................ 55
37. Ownership of the Properties. .......................................... 56
<PAGE>
iii
APPENDIX I Definitions
[The following schedules have been omitted and will be supplementally filed
with the Commission upon request:]
SCHEDULE A Land Parcels
SCHEDULE B Basic Rent
SCHEDULE C Termination Values
SCHEDULE D Environmental Matters
SCHEDULE E Purchase Prices
SCHEDULE F Maximum Lessor and Lessee Risk Amounts
SCHEDULE G Permitted Encumbrances
SCHEDULE H Form of Supplement to Lease
SCHEDULE I Form of Certificate As to Insurance
SCHEDULE J Form of Lessee Estoppel Certificate
<PAGE>
THIS LEASE AGREEMENT, dated as of July 1, 1999 (this Lease), between IRON
MOUNTAIN STATUTORY TRUST - 1999 (together with its successors and assigns,
Lessor), having an address at 10 State House Square, Hartford, Connecticut
06103, Attention: Corporate Trust Administration, as lessor, and IRON MOUNTAIN
RECORDS MANAGEMENT, INC., a Delaware corporation (together with any corporation
succeeding thereto by consolidation, merger or acquisition of its assets
substantially as an entirety, Lessee), having an address at 745 Atlantic Avenue,
Boston, Massachusetts 02111, Attention: Treasurer, as lessee.
Lessor and Lessee hereby agree for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, one to the other, as
follows (capitalized terms not otherwise defined when they first appear are
defined in Appendix I hereto):
1. Demise; Title; Condition. In consideration of the agreements and
provisions of this Lease hereinafter stipulated to be observed and performed by
Lessee, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor,
subject to the terms and conditions hereinafter set forth, for the terms
described in Article 2 hereof, all of Lessor's right, title and interest in and
to each of the Properties. The Land Parcel with respect to each of the
Properties is described on Schedule A attached hereto, as Schedule A may be
supplemented, amended or modified from time to time by any Lease Supplement.
Each Property is demised and let in its present condition without
representation or warranty by Lessor, subject in each case to (a) the rights of
any parties in possession thereof, (b) the state of the title thereto existing
at the time Lessor acquired its interest in such Property, (c) any state of
facts which an accurate survey or physical inspection might show, (d) all
applicable laws, rules, regulations, ordinances and restrictions now in effect
or hereafter adopted by any governmental authority having jurisdiction, (e) any
environmental conditions now or hereafter existing at, on or under such Property
and (f) any violations of such laws, rules, regulations, ordinances and
restrictions which may exist at the commencement of the Term of this Lease.
Lessee has examined each Property, and has, as between Lessor and Lessee, found
the same to be satisfactory for all purposes.
LESSOR HAS NOT MADE AN INSPECTION OF ANY PROPERTY AND MAKES NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPERTY
WHETHER NOW OR HEREAFTER EXISTING OR THE LOCATION, USE, DESCRIPTION, DESIGN,
MERCHANTABILITY, FITNESS FOR USE FOR A PARTICULAR PURPOSE, CONDITION OR
DURABILITY THEREOF, OR AS TO QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN; AND
ALL RISKS INCIDENTAL TO THE PROPERTIES SHALL BE BORNE BY LESSEE. IN THE EVENT OF
ANY DEFECT OR DEFICIENCY OF ANY NATURE IN ANY PROPERTY OR ANY FIXTURE OR OTHER
ITEM CONSTITUTING A PORTION THEREOF, WHETHER PATENT OR LATENT, LESSOR SHALL NOT
HAVE ANY RESPONSIBILITY OR
<PAGE>
2
LIABILITY WITH RESPECT THERETO. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN
NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION BY LESSOR
OF, AND LESSOR DOES HEREBY DISCLAIM ANY AND ALL WARRANTIES BY LESSOR, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PROPERTIES WHETHER NOW OR HEREAFTER EXISTING OR ANY
FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER ARISING PURSUANT
TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR
OTHERWISE.
2. Term. Subject to the provisions hereof, Lessee shall have and hold the
Properties for (i) a term which shall begin as to each Property on the Interim
Term Commencement Date with respect to such Property, and end at midnight on the
day immediately prior to the Basic Term Commencement Date (the Interim Term),
and (ii) a term which shall begin on the Basic Term Commencement Date
immediately after the end of the Interim Term and end on the Term Termination
Date (the Basic Term), unless sooner terminated as hereinafter provided.
3. Rent.
(a) During the Term of this Lease, Lessee shall pay the basic rent
provided for in Schedule B annexed hereto (Basic Rent) to Lessor (or to any
other party as Lessor may from time to time specify in writing), by bank wire
transfer or electronic funds transfer (including automated clearinghouse
transfers) of immediately available federal funds initiated before 10:30 A.M.,
Eastern Time, at Lessor's address set forth above, or at such other place within
the continental United States to which bank wire or electronic funds transfers
can be made, as Lessor may from time to time designate to Lessee in writing.
Basic Rent during the Interim Term and the Basic Term shall be due and payable
by Lessee in installments in the amounts set forth in Schedule B on the first
day of each month during the Term of the Lease (Payment Dates). If any Payment
Date falls on a day that is not a Business Day, Basic Rent shall be due and
payable on the next succeeding Business Day without interest or penalty if paid
on such Business Day.
(b) All amounts that Lessee is required to pay or discharge pursuant to
(i) this Lease in addition to Basic Rent (including, without limitation, amounts
payable as the Purchase Price, Termination Value or other amounts for any
Property pursuant to any provision hereof, any Adjustment Price or Maximum
Lessee Risk Amount payable pursuant to Article 29, the Reinvestment Premium, any
amounts payable by Lessee on behalf of Lessor pursuant to Sections 2.5.2, 2.5.3,
2.5.4, 2.5.6(b), 2.6, 2.7, 3.5, 5.9 and Article 4 of the Loan Agreement, any
amounts payable pursuant to Article 20 hereof or as liquidated damages pursuant
to paragraph (c) of Article 20 hereof and any indemnity payments payable
pursuant to Articles 8 and 9 hereof), and (ii) the Assignment, together with
every fine, penalty, overdue interest and cost
<PAGE>
3
which may be added for nonpayment or late payment thereof, shall constitute
additional obligations hereunder (all of the foregoing, Additional Obligations).
In the event of any failure by Lessee to pay or discharge any such Additional
Obligations when due, Lessor, except as may be otherwise provided herein, shall
have all rights, powers and remedies provided for herein or by law or otherwise
in the case of nonpayment of Basic Rent. Lessee may pay Additional Obligations
directly to the Persons entitled thereto. Lessee also covenants to pay to Lessor
on demand as Additional Obligations, interest at the Overdue Rate, but in no
event greater than the maximum rate permitted by applicable law, on (i) all
overdue installments of Basic Rent from the due date thereof until paid in full,
(ii) all overdue amounts of Additional Obligations arising out of obligations
which Lessor shall have paid on behalf of Lessee pursuant to Article 20 hereof
or otherwise from the date of such payment by Lessor until paid in full and
(iii) each other sum required to be paid by Lessee hereunder or under the
Assignment which is overdue, including without limitation, any Maximum Lessee
Risk Amount or portion thereof, Purchase Price, Termination Value or other
amounts for any Property, Adjustment Price, any amounts payable by Lessor
pursuant to Sections 2.5.2, 2.5.3, 2.5.4, 2.5.6(b), 2.6, 2.7, 3.5, 5.9 and
Article 4 of the Loan Agreement, and any amounts payable pursuant to Article 21
hereof or as liquidated damages pursuant to paragraph (c) of Article 21 hereof,
from the date such sum was due until the date received by the Person entitled
thereto.
(c) With respect to each Property, each of (i) the Termination Value, (ii)
the Purchase Price, and (iii) the sum of (x) the Adjustment Price, plus (y) the
Maximum Lessor Risk Amount and (z) the Maximum Lessee Risk Amount shall be at
least sufficient at all times during the Maximum Lease Term to pay all
outstanding principal under the Notes related to such Property, and to pay to
the Lessor the amount of the outstanding Equity Investment in accordance with
the Operative Documents; and in each case, together with all other amounts
required to be paid by Lessee under the Operative Documents such amount shall
also be sufficient to pay accrued interest under the Notes and the Equity
Return.
4. Use. Lessee may use each Property as a warehouse or data storage
facility and for accessory office, parking and other ancillary uses. With the
prior written consent of Lessor, Agent Bank and LC Issuer of such other use,
which consent will not be unreasonably withheld, Lessee may use a Property for
any other lawful use which Lessee certifies (i) is not generally hazardous, (ii)
does not, in Lessee's good faith determination, adversely affect the fair market
value, utility or useful life of such Property and (iii) does not violate any
applicable law, rule, regulation or restriction.
5. Net Lease; Nonterminability
(a) This Lease is a "triple net lease" and Lessee shall pay all Basic Rent
and Additional Obligations without notice, demand, counterclaim, set-off,
deduction, or defense, and without
<PAGE>
4
abatement, suspension, deferment, recoupment, diminution or reduction, free from
any charges, assessments, impositions, expenses or deductions of any and every
kind or nature whatsoever including, without limitation (1) any right Lessee may
have against Lessor, any contractor or any other Person for any reason (whether
in connection with this transaction or any other transaction), (2) any breach,
default or misrepresentation by Lessor or any other Person under this Lease, the
Loan Agreement, Guaranty, Assignment of Guaranty or Assignment, or (3) any
invalidity or unenforceability in whole or in part of this Lease, the Loan
Agreement, Guaranty, Assignment of Guaranty or Assignment, or any other
infirmity herein or therein, or any lack of power or authority of any party to
this Lease, the Loan Agreement, Guaranty, Assignment of Guaranty or Assignment.
All costs, expenses and obligations of every kind and nature whatsoever relating
to each Property and the appurtenances thereto and the use and occupancy thereof
by Lessee or anyone claiming by, through or under Lessee as Lessee hereunder
which may arise or become due during or with respect to the period constituting
the Term hereof shall be paid by Lessee, and Lessee shall indemnify Lessor
against any of the foregoing as provided in Article 8. Lessee assumes, during
the Term of this Lease, the sole responsibility for the condition (physical or
environmental), use, operation, maintenance, subletting and management of each
Property, and Lessee shall indemnify Lessor with respect to the foregoing as
provided in Article 8, and Lessor shall have no responsibility in respect
thereof and shall have no liability for damage to the property of Lessee or any
sublessee of Lessee on any account or for any reason whatsoever. Without
limiting the generality of the foregoing, during the Term of this Lease, Lessee
shall perform all of the obligations of the sublessor under any subleases
affecting all or any part of any Property which Lessee may hereafter enter into
as sublessor to the extent that sublessee's failure to perform such obligations
would result in the occurrence of a Default or Event of Default under this
Lease.
(b) Except as otherwise expressly provided in Article 9, paragraph (c) of
Article 12, clause (ii) of paragraph (b) of Article 21, paragraph (a) of Article
33 hereof and paragraph (a) of Article 34 hereof, this Lease shall not terminate
as to any Property, nor shall Lessee have any right to terminate this Lease as
to any Property, nor shall Lessee be entitled to any abatement or reduction of
rent hereunder, nor shall Lessee have the right to be released or discharged
from any obligations or liabilities hereunder for any reason, including without
limitation, any damage to or destruction of all or part of any Property; any
restriction, deprivation (including eviction) or prevention of, or any
interference with, any use or the occupancy of any Property (whether due to any
defect in or failure of Lessor's title to such Property, any Lessor Lien or
otherwise); any condemnation, requisition or other taking or sale of the use,
occupancy or title to any Property; any action, omission or breach on the part
of Lessor under this Lease or under any other agreement between Lessor and
Lessee; the inadequacy or failure of the description of any Property to demise
and let to Lessee any property intended to be leased hereby; Lessee's
acquisition of ownership of any Property or any sale or other disposition of any
Property; the impossibility or illegality of performance by Lessor or Lessee or
both; the failure of Lessor to
<PAGE>
5
deliver possession of any Property on the Interim Term Commencement Date with
respect to such Property; any action of any court, administrative agency or
other governmental authority; any environmental condition affecting any
Property; or any other cause, whether similar or dissimilar to the foregoing,
any present or future law notwithstanding.
(c) Lessee will remain obligated under this Lease in accordance with its
terms, and will not take any action to terminate, rescind or avoid this Lease
for any reason, notwithstanding any bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding affecting Lessor, or any assignee
of Lessor, or any action with respect to this Lease which may be taken by any
receiver, trustee or liquidator, or any assignee of Lessor or by any court in
any such proceeding. Lessee waives all rights at any time conferred by statute
or otherwise to quit, terminate or surrender this Lease or any Property (except
as otherwise expressly provided hereinabove), or to any abatement or deferment
of any Basic Rent, Additional Obligations or other sum payable by Lessee
hereunder, on account of any cause referred to in this Article 5 or otherwise.
6. Taxes and Other Charges; Law and Agreements.
(a) Lessee shall pay and discharge, on or before the last day upon which
the same may be paid without interest or penalty, and shall indemnify each
Indemnified Party on an after tax basis, from and against, all taxes, including
any tax based upon or measured by gross rentals or receipts from any Property,
assessments, levies, fees, water and sewer rents and other governmental and
similar charges, general and special, ordinary or extraordinary, and whether or
not the same shall have been within the express contemplation of the parties
hereto, and any interest and penalties thereon, which are levied, assessed or
due against (i) such Indemnified Party and which relate to such Indemnified
Party's interest in any Property, the use, occupancy, operation or possession of
any Property or any part thereof or the transactions contemplated by the
Operative Documents, (ii) any Property or the interest of Lessee or Lessor
therein, (iii) Basic Rent or Additional Obligations or other sums payable by
Lessee hereunder, (iv) this Lease or the interest of Lessee or the Indemnified
Parties hereunder, (v) the use, occupancy, construction, repair or rebuilding of
any Property or any portion thereof, (vi) gross receipts from any Property or
(vii) Taxes and "Taxes" or terms of like import as defined in the Loan
Agreement. If any tax or assessment levied or assessed against any Property may
legally be paid in installments, Lessee shall have the option to pay such tax or
assessment in installments; provided, however, that upon the termination or
expiration of the Term of this Lease with respect to such Property, Lessee shall
pay any such tax or assessment which it has been paying in installments in full,
on or prior to such termination or expiration date, unless such Property is
being purchased by Lessee hereunder, and no liability could result to any
Indemnified Party due to Lessee's failure to pay such tax or assessment in full.
Nothing in this Lease shall require payment by Lessee of any franchise, estate,
inheritance, succession, transfer, net income or profits taxes of any
<PAGE>
6
Indemnified Party (including any minimum taxes and withholding taxes), except
for (x) withholding taxes for which Lessor is liable under Section 5.9 of the
Loan Agreement or Section 3.8 of the Deed of Trust to Agent Bank and for which
Lessee shall be liable hereunder, (y) transfer taxes, recording fees, or similar
charges payable in connection with a conveyance hereunder to Lessee or in
connection with Lessor's or Agent Bank's exercise of remedies after an Event of
Default hereunder and (z) any gross receipts or similar taxes imposed or levied
upon, assessed against or measured by the Basic Rent, Additional Obligations or
any other sums payable by Lessee hereunder or levied upon or assessed against
any Property (but excluding from this clause (z), any such taxes which are in
substitution for an income, profit or revenue tax of any Indemnified Party, but
then only to the extent of such substitution and only to the extent that such
tax, assessment or other charge would be payable if such Property were the only
property of such Indemnified Party subject thereto) (the foregoing,
collectively, Excluded Taxes). Lessee shall prepare and file or cause to be
filed on a timely basis all returns and other materials required in connection
with any taxes, assessments or other charges that Lessee is required to pay
pursuant to this Article 6; provided, however, where legally required, Lessor
will sign such return or related power of attorney. Lessee shall furnish to
Lessor promptly, and in any event within 30 days after the later of the date the
same becomes due and payable and the date of written demand by Lessor, as the
case may be, proof of the payment of any such tax, assessment, fee, rent or
charge which is payable by Lessee and, upon written demand of Lessor, proof of
the filing of all returns and other materials required in connection therewith.
(b) Lessee shall pay all charges for utility, communication and other
services to the extent rendered or used during the Term of this Lease on or
about any Property, whether or not payment therefor shall become due after the
Term of this Lease.
(c) Lessee shall at all times during the Term of this Lease, at Lessee's
own cost and expense, perform and comply in all material respects with all laws,
rules, orders, ordinances, regulations and requirements now existing or (except
to the extent any exemption or so called "grandfathering" provision is available
to Lessee) hereafter enacted or promulgated, of every government and
municipality having jurisdiction over each Property and of any agency thereof,
relating to such Property, or the improvements thereon, or the facilities or
equipment thereon or therein, or the appurtenances to such Property, or the
franchises and privileges connected therewith, or, to the extent that Lessor or
Lessee has any obligation or responsibility therefor, the streets, sidewalks,
vaults, vault spaces, curbs and gutters adjoining such Property (collectively,
Legal Requirements), whether or not such Legal Requirements so involved shall
necessitate structural changes, improvements, interference with use and
enjoyment of such Property, replacements or repairs, extraordinary as well as
ordinary, and Lessee shall so perform and comply, whether or not such Legal
Requirements shall now exist or shall hereafter be enacted or promulgated, and
whether or not such Legal Requirements can be said to be within the present
contemplation of the parties hereto. Lessee shall at all times during the Term
of this
<PAGE>
7
Lease, at Lessee's own cost and expense, perform and comply with the terms of
all Permitted Encumbrances and any easement granted or released pursuant to
Article 32 hereof and shall perform all of the obligations of Lessor under such
Permitted Encumbrances and of the grantor or releasor under the related
instrument of grant or release. Lessee shall, at its expense, comply with all
provisions of insurance policies required pursuant to Article 13 hereof, and
shall, at its expense comply with the provisions of all contracts, agreements,
instruments and restrictions existing at the commencement of this Lease or
thereafter suffered or permitted by Lessee (the noncompliance with which would
adversely affect any Property or any part thereof or the ownership, occupancy,
use, operation or possession thereof). Lessee shall at all times during the Term
of this Lease comply with the terms of and perform its obligations under the
Assignment and any consent of Lessee to the Assignment.
(d) Notwithstanding the provisions of paragraphs (a) through (c) of this
Article 6 and those of Article 7, Lessee shall have the right to contest, by
appropriate legal proceedings, any tax, charge, levy, assessment, lien or other
encumbrance, and/or any Legal Requirement affecting any Property, and to
postpone payment of or compliance with the same during the pendency of such
contest, provided that (i) the commencement and continuation of such proceedings
shall suspend the collection thereof from, and suspend the enforcement thereof
against, Lessor and any Property, (ii) no part of any Property nor any Basic
Rent or Additional Obligations or other sums payable by Lessee hereunder shall
be in imminent danger of being sold, forfeited, attached or lost, (iii) there
shall not exist (x) any interference with the use and occupancy of any Property
or any part thereof that has or would have a material adverse effect on the fair
market value, utility or useful life of any Property, or (y) any interference
with the payment of Basic Rent or any Additional Obligations (other than the
portion subject to the contest), (iv) Lessee shall promptly prosecute such
contest to a final settlement or conclusion, or if Lessee deems it advisable to
abandon such contest, Lessee shall promptly pay or perform the obligation which
was the subject of such contest and (v) at no time during the permitted contest
shall there be a risk of the imposition of criminal liability or civil liability
on Lessor arising from non-payment of the contested item or non-compliance with
the contested Legal Requirement. If any Default or Event of Default hereunder
shall have occurred and be continuing, and any such contest or contests,
individually or in the aggregate, at any one time pending with respect to any
Property shall involve an amount of money or potential loss (including fines and
similar charges) in excess of $1,000,000, plus any security theretofore provided
pursuant to this provision, then Lessee shall either (i) deposit with the
Depositary (as defined in subparagraph (i) of paragraph (b) of Article 12 of
this Lease) an amount equal to 100% of the tax, charge, levy, assessment, lien
or other encumbrance affecting such Property, which amount may be invested in
accordance with the terms and provisions set forth in subparagraph (iv) of
paragraph (b) of Article 12 of this Lease or (ii) post an equivalent bond, or
letter of credit from an institution (other than Lessee or its Affiliates)
meeting the requirements to be a Depositary under this Lease, for security.
Lessee shall not postpone the payment of any
<PAGE>
8
such tax, charge, levy, assessment, lien or other encumbrance for such length of
time as shall permit any Property, or any lien thereon created by such item
being contested, to be sold by federal, state, county or municipal authority for
the non-payment thereof; Lessee shall not postpone compliance with any such law,
rule, order, ordinance, regulation or other governmental requirement if Lessor
will thereby be subject to criminal prosecution or civil liability, or if any
municipal or other governmental authority shall be in a position according to
applicable law to commence to foreclose or sell any lien affecting all or part
of any Property which shall have arisen by reason of such postponement or
failure of compliance.
(e) Without limiting the generality of any of the other provisions of this
Article 6, Lessee shall at all times during the Term of this Lease promptly
comply with the terms of and fully and faithfully pay and perform its
obligations, as agent, incurred under the Agency Agreement. In the event of the
termination of this Lease as herein provided or Lessee's abandonment of any
Property, the obligations and liabilities of Lessee with respect to each
Indemnified Party, actual or contingent, under this Article 6 shall survive such
termination or abandonment.
7. Title; Liens. Lessee represents and warrants to, and covenants with,
Lessor that Lessor has and shall have good fee simple title to each and every
Property, subject only to Permitted Encumbrances, and that Lessee shall warrant
and defend the same to Lessor against the lawful claims and demands of all
persons. Subject to the provisions of paragraph (d) of Article 6, Lessee will
promptly, but in any event no later than the earlier of 30 days after its Actual
Knowledge of the filing thereof or the enforcement of the same, at its own
expense, remove, satisfy or discharge of record, by bond or otherwise, any
charge, lien, security interest or encumbrance upon any Property, upon any Basic
Rent, or upon any Additional Obligations or other sums payable by Lessee under
this Lease which arises for any reason (except for Lessor Liens and any other
acts or omissions of Lessor or anyone claiming by, through or under Lessor,
without the consent of Lessee), including all liens which arise out of Lessee's
possession, use, operation and occupancy of any Property, but not including any
Permitted Encumbrances. Nothing contained in this Lease shall be construed as
constituting the consent or request of Lessor, express or implied, to or for the
performance by any contractor, laborer, materialman, or vendor of any labor or
services or for the furnishing of any materials for any construction,
alteration, addition, repair or demolition of or to any Property or any part
thereof. Notice is hereby given that Lessor will not be liable for any labor,
services or materials furnished or to be furnished to Lessee, or to anyone
holding an interest in any Property or any part thereof through or under Lessee,
and that no mechanic's or other liens for any such labor, services or materials
shall attach to or affect the interest of Lessor in and to any Property. In the
event of the failure of Lessee to discharge any charge, lien, security interest
or encumbrance within the time period set forth above and otherwise as
aforesaid, except during the pendency of any contest permitted and conducted
pursuant to paragraph (d) of Article 6, after 10 days prior notice to Lessee (or
<PAGE>
9
after shorter notice or without notice if prudent under the circumstances to
prevent enforcement or other action against Lessor or any Property), Lessor or
Agent Bank may discharge such items by payment or bond or both, and Lessee will
repay to Lessor, upon demand, any and all amounts paid therefor, or by reason of
any liability on such bond, and also any and all reasonable incidental expenses,
including reasonable attorneys' fees, incurred by Lessor in connection
therewith.
8. Indemnification; Fees and Expenses. Lessee shall pay, and shall
protect, defend and indemnify each Indemnified Party against and hold each
Indemnified Party harmless from all liabilities, losses, damages, costs (but
excluding general administrative costs of such Indemnified Party unrelated to
the claim of indemnity hereunder), expenses (including reasonable attorneys'
fees and expenses), claims, demands or judgments of any nature actually imposed
upon or incurred by such Indemnified Party to the extent (a) arising or alleged
to arise from or in connection with or relating to the Overall Transaction or
during the Term of this Lease, the condition, use, operation, maintenance,
subletting and management of any Property, (b) arising from or in connection
with or relating to the use and occupancy of any Property by Lessee or anyone
claiming by, through or under Lessee as Lessee hereunder or (c) arising from or
in connection with any of the following which occurred during the Term of this
Lease: (i) any injury to, or the death of, any person or any damage to or loss
of property on or adjacent to any Property or growing out of or connected with,
the ownership, use, nonuse, occupancy, operation, possession, condition,
construction, repair or rebuilding of any Property or adjoining property,
sidewalks, streets or ways or resulting from the condition of any thereof, (ii)
any liability actually incurred by the Indemnified Party seeking indemnification
hereunder arising from claims by third parties resulting from any violation by
Lessee of (A) any provision of this Lease, or (B) any Legal Requirement
affecting any Property, or (C) any provision of any lease (other than this
Lease) or other agreement relating to any Property as of the date hereof or
hereafter in effect to which Lessee is a party or by which Lessee is bound, or
(D) any contract or agreement to which Lessee is a party, or any restriction,
law, ordinance or regulation, affecting any Property or the ownership, use,
nonuse, occupancy, condition, operation, possession, construction, repair or
rebuilding thereof or of adjoining property, sidewalks, streets or ways; (iii)
any contest permitted by paragraph (d) of Article 6; and (iv) any violation or
alleged violation by Lessee of any of the terms and provisions hereof; provided,
however, that any such indemnity and hold harmless provided for in this Article
8 shall not, as to any Indemnified Party, be available (A) to the extent but
only to the extent that any such losses, claims, damages, liabilities, costs,
demands or judgments or related expenses resulted from (x) the gross negligence
or willful misconduct of, (y) a material breach of a covenant by, or (z) a
material misrepresentation by, in each case, such Indemnified Party; (B) with
respect to Lessor Liens; or (C) for Excluded Taxes. The foregoing shall not give
rise to any third party beneficiary rights with respect to any Person who is not
an Indemnified Party.
<PAGE>
10
With respect to any amount that the Lessee is requested by an Indemnified
Party to pay by reason of this Article 8, such Indemnified Party shall, if so
requested by the Lessee, submit such additional information to the Lessee as the
Lessee may reasonably request and which is in the possession of such Indemnified
Party to describe the requested payment; but failure by such Indemnified Party
to provide such information shall in no way reduce Lessee's indemnified
obligations hereunder or in any way delay its payment or performance of its
obligations hereunder.
In case any action, suit or proceeding shall be brought against any
Indemnified Party, such Indemnified Party shall notify the Lessee of the
commencement thereof, and the Lessee shall be entitled, at its expense, to
participate in, and, to the extent that the Lessee desires to, assume and
control the defense thereof; provided, however, that the Lessee shall have
acknowledged in writing its obligation to fully indemnify such Indemnified Party
in respect of such action, suit or proceedings, and, the Lessee shall keep such
Indemnified Party fully apprised of the status of such action, suit or
proceeding and shall provide such Indemnified Party with all information with
respect to such action, suit or proceeding as such Indemnified Party shall
reasonably request, and provided, further, that the Lessee shall not be entitled
to assume and control the defense of any such action, suit or proceeding (and
shall pay all costs and reasonable attorneys' fees incurred by such Indemnified
Party in assuming such control) if, (A) in the reasonable opinion of such
Indemnified Party, (x) such action, suit or proceeding involves any risk of
imposition of criminal liability on such Indemnified Party or any risk of
imposition of material civil liability on such Indemnified Party not covered by
insurance required hereunder (such insurance coverage to be satisfactory in such
Indemnified Party's reasonable judgment) or will involve a material risk of the
sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted
Encumbrance) on any Property or any part thereof unless, in the case of
uninsured civil liability, the Lessee shall have posted a bond or other security
satisfactory to the relevant Indemnified Parties in respect to such risk or (y)
the control of such action, suit or proceeding would, in the reasonable opinion
of the Indemnified Party, involve a likely potential conflict of interest, (B)
such proceeding involves any claim not fully indemnified by the Lessee which the
Lessee and the Indemnified Party have been unable to sever from such indemnified
claim, or (C) an Event of Default has occurred and is continuing. Subject to the
previous sentence, if Lessee is permitted to so control such defense, the
Indemnified Party may participate at its own expense and with its own counsel in
any proceeding conducted by the Lessee in accordance with the foregoing. The
Lessee shall not enter into any settlement or other compromise with respect to
any claim subject to indemnification under this Article 8 without the prior
written consent of the Indemnified Party, which consent shall not be
unreasonably withheld in the case of a money settlement not involving an
admission of liability of such Indemnified Party; provided, however, that in the
event that such Indemnified Party withholds consent to any settlement or other
compromise, the Lessee shall not be required to indemnify such Indemnified Party
under this Article 8 to the
<PAGE>
11
extent that the applicable claim (x) is for legal fees and expenses incurred
after the date of the proposed settlement or (y) results in a judgment in excess
of such offered money settlement.
If such Indemnified Party shall control such defense, unless an Event of
Default shall have occurred and be continuing no Indemnified Party shall enter
into any settlement or other compromise with respect to any claim for which it
is entitled to be indemnified under this Article 8 without the prior written
consent of the Lessee, which consent shall not be unreasonably withheld, unless
such Indemnified Party waives its right to be indemnified under this Article 8
with respect to such claim.
Upon payment in full of any claim by the Lessee pursuant to this Article 8
to or on behalf of an Indemnified Party, the Lessee, without any further action,
shall be subrogated to any and all claims that such Indemnified Party may have
relating thereto and such Indemnified Party shall execute such instruments of
assignment and conveyance, evidence of claims and payment and such other
documents, instruments and agreements as may be reasonably necessary to preserve
any such subrogation rights.
In the event of the termination of this Lease as herein provided or
Lessee's abandonment of any Property, the obligations and liabilities of Lessee
with respect to each Indemnified Party, actual or contingent, under this Article
8 shall survive such termination or abandonment.
9. Environmental Matters. Lessee represents and warrants (with respect to
statements made as of a particular date) and covenants (with respect to future
or ongoing obligations) to the Indemnified Parties that:
(i) at all times during the Term of this Lease, each and every Property,
Lessee, all sublessees and any assignee of Lessee shall comply in
all material respects with all applicable Environmental Laws,
including the effecting of cures in compliance with Environmental
Laws, if applicable; Lessee has, and has ensured that all sublessees
of each Property have, obtained all permits, licenses, and any other
authorizations to conduct operations at such Property that are
required under applicable Environmental Laws (collectively,
Environmental Permits) as of the applicable Property Closing Date
with respect to each Property and shall obtain and shall ensure that
all sublessees of each Property shall obtain and maintain in full
force and effect, at all times during the Term of this Lease, all
Environmental Permits that are now or hereafter required; Lessee is,
and has ensured that all sublessees of each Property are in
compliance in all material respects with all terms and conditions of
all Environmental Permits as of the applicable Property Closing
Date, and Lessee shall, and shall ensure that all sublessees of each
Property shall, comply in all material respects with all terms
<PAGE>
12
and conditions of all Environmental Permits now or hereafter
required; Lessee shall cause any alterations of, or construction on,
each Property to be done in compliance with applicable Environmental
Laws, and in connection with any such alterations or construction,
shall remove and dispose of, in compliance with applicable
Environmental Laws, any Hazardous Substances present upon any
Property to the extent required or authorized (as to such disposal)
by applicable Environmental Laws;
(ii) as of the applicable Property Closing Date with respect to each
Property, (a) no notices, complaints or orders of violation or
non-compliance regarding alleged violations of, or strict liability
under, Environmental Laws have been received by Lessee or, to the
best of its knowledge, by any Person regarding such Property; (b) no
federal, state or local governmental environmental investigation or
legal action by a private party is pending or, to the best of
Lessee's knowledge, overtly threatened, arising under or pursuant to
Environmental Laws with regard to such Property; and (c) no liens
have been placed upon such Property in connection with any actual or
alleged liability under any Environmental Laws;
(iii) no Property (a) as of the applicable Property Closing Date with
respect thereto has been used by Lessee or, to the best of Lessee's
knowledge, by any other Person to generate, manufacture, refine,
produce or process any Hazardous Substance or to store, handle,
treat, dispose, transfer or transport any Hazardous Substance other
than as set forth in Schedule D, as the same may be supplemented
from time to time by Lease Supplements as contemplated by Article 1,
solely with respect to the Property which is the subject thereof,
other than normal and lawful uses of such Hazardous Substances in
lawful quantities and in compliance with Environmental Laws and
where such uses have had no material adverse effect upon such
Property, and (b) will be used by Lessee or any sublessee or
assignee of Lessee at any time during the Term of this Lease to
generate, manufacture, refine, produce or process any Hazardous
Substance or to store, handle, treat, dispose, transfer or transport
any Hazardous Substance, other than normal and lawful uses of such
Hazardous Substances in lawful quantities and in compliance with
Environmental Laws in connection with Lessee's intended use of such
Property in accordance with the provisions of Article 4, where such
uses will have no material adverse effect upon such Property;
(iv) other than as set forth in Schedule D hereto, as the same may be
supplemented from time to time by Lease Supplements, as of the
applicable Property Closing Date with respect to each Property, no
surface impoundments are (and during the Term of this Lease, none
will be) constructed, operated or maintained in or on
<PAGE>
13
such Property and no above ground tanks or other containment
structures will be constructed, operated or maintained on any
Property in violation of applicable Environmental Laws and no
underground storage tanks are (and during the Term of this Lease,
none will be) constructed, operated or maintained in or on any
Property; as of the applicable Property Closing Date with respect to
each Property, there is no asbestos nor asbestos-containing material
(except commercially produced product in non-friable bonded form,
the presence of which complies with all Environmental Laws) located
in, on, at or under such Property nor is there any PCB-containing
equipment, including PCB-containing transformers located in, on, at
or under such Property nor will any of the foregoing be located in,
on, at or under any Property at any time during the Term of this
Lease;
(v) as of the applicable Property Closing Date with respect to each
Property, other than as set forth in Schedule D, as the same may be
supplemented from time to time by Lease Supplement as contemplated
by Article 1, solely with respect to the Property which is the
subject thereof, each Property is free of Hazardous Substances at,
in, on, over or under such Property, regardless of the source of any
such Hazardous Substances, except in concentrations that do not
exceed those allowed under or pursuant to applicable Environmental
Laws in connection with Lessee's development and intended use of
such Property in accordance with the provisions of Article 4 and
none of which will have a material adverse effect upon such
Property; and
(vi) at all times during the Term of this Lease, other than normal and
lawful uses of such Hazardous Substances in lawful quantities and in
compliance with Environmental Laws in connection with Lessee's
intended use of any Property in accordance with the provisions of
Article 4, where such uses will have no material adverse effect upon
such Property, neither Lessee nor any sublessee or assignee of
Lessee shall, directly or indirectly, place Hazardous Substances at,
in, on, over or under such Property.
Promptly upon obtaining Actual Knowledge thereof, Lessee shall give to
Lessor notice of the occurrence of any of the following events: (i) the failure
of any Property, Lessee, any sublessee or assignee of Lessee to comply, in all
material respects, with any Environmental Law; (ii) the issuance to Lessee or
any sublessee of space in any Property or any assignee of Lessee, of any written
notice, complaint or order of violation or non-compliance in any material
respect with regard to any Property or the use thereof with respect to
Environmental Laws; (iii) any written notice of a pending or threatened
investigation to determine whether Lessee's (or any sublessee's or assignee's)
operations on any Property are in violation, in any material
<PAGE>
14
respect, of any Environmental Law; (iv) any written notice from any governmental
agency requiring any corrective action with respect to any Property or any
portion thereof under any Environmental Law; (v) any written notice or other
written communication with respect to a pending or threatened private party
judicial or administrative action relating to violation, of any Environmental
Law in connection with the use, occupancy or operation of any Property; (vi) the
existence or threat of a release of a Hazardous Substance at or to or under any
Property or any condition regulated by any Environmental Law which is or must be
reported to a governmental agency or that could have a material adverse effect
upon any Property; or (vii) any other occurrence or discovery of any condition
at, adjacent to or under any Property related to Environmental Laws and which
would constitute a material adverse effect on such Property.
At any time if Lessor receives notice that an adverse change in the
environmental condition of any Property has occurred or that an adverse
environmental condition with respect to any Property has been discovered, Lessor
shall give notice thereof to Lessee, and Lessee shall (i) diligently commence
(or cause another Person to commence) to cure such condition, to the extent
required by applicable Environmental Laws (including any evaluations or
assessment of such conditions and to develop an appropriate plan with respect
thereto (or cause another Person to do so) within 30 days after receipt of such
notice (or such shorter period as may be required by law or in the event of an
emergency) and (ii) thereafter diligently prosecute (or cause another Person to
diligently prosecute) to completion such cure. If Lessee (or such other Person)
defaults in its obligations hereunder in respect of such condition, then Lessor
may, after reasonable prior notice to Lessee, take such actions as it may deem
necessary to cure such condition. Notwithstanding the foregoing, Lessor shall
not be obligated to take any actions in response to any such condition. All
costs and expenses reasonably incurred by Lessor in connection with curing any
such condition shall be paid by Lessee upon demand. Notwithstanding anything to
the contrary contained in this paragraph, if, in the reasonable professional
opinion of Lessor's environmental engineer, such cure would cost in excess of
$500,000 at the option of Lessor (with the consent of Agent Bank) Lessor may
require that Lessee purchase such Property. The purchase price for such Property
payable in cash or immediately available federal funds shall be equal to (i) the
Termination Value payable as of the date of purchase, together with accrued and
unpaid Basic Rent, Additional Obligations and other sums payable by Lessee under
this Lease, to the date of purchase, in each case as allocable to such Property,
plus (ii) an amount equal to the costs and expenses of Lessor (including
reasonable attorneys' fees) reasonably incurred in connection with such sale.
The sale of such Property shall be in accordance with the terms of Article 16
hereof.
Lessee agrees to indemnify, defend and hold harmless each Indemnified
Party from and against any and all losses, liabilities (including third party
liabilities), injuries, damages, judgments, decrees, orders, penalties, claims,
charges, costs and expenses (including, without limitation, reasonable fees and
disbursements of counsel, consultants and expert witnesses for
<PAGE>
15
such Indemnified Party), which may be suffered or incurred by, or asserted
against such Indemnified Party to the extent arising directly or indirectly out
of any breach or violation of this Article 9 or out of the presence, use,
storage, transportation, disposal, treatment, release, threatened release,
discharge, emission, generation or presence of any Hazardous Substances at,
from, on, over, under or in any Property, regardless of whether occurring
before, during or, except as otherwise provided herein, after the Term of this
Lease and regardless of the source of any such Hazardous Substances, provided
that no Indemnified Party will be indemnified by Lessee hereunder for
environmental contamination caused solely by the grossly negligent acts of such
Indemnified Party, its employees, agents or assigns, other than at the direction
of Lessee and with respect to Lessor, other than any such liability which is
imputed to Lessor (and not due solely to Lessor's own gross negligence or
willful misconduct), by reason of its interest in any Property.
The warranties and obligations of Lessee, and the rights and remedies of
each Indemnified Party under this Article 9 are in addition to and not in
limitation of any other warranties, obligations, rights and remedies provided in
this Lease or otherwise at law or in equity.
In the event of the termination of this Lease as to any Property as herein
provided or Lessee's abandonment of any Property, the obligations and
liabilities of Lessee with respect to each Indemnified Party, actual or
contingent, under this Article 9 and relating to the period through the end of
the Term of this Lease, whether arising before or after the end of the Term of
this Lease, shall survive such termination or abandonment.
10. Maintenance and Repair; Additions; Additional Improvements.
(a) Lessee acknowledges that it has received each Property in good
condition, repair and appearance on and as of the Property Closing Date
applicable thereto. Lessee will, at its cost and expense, keep and maintain each
Property, including any altered, rebuilt, additional or substituted buildings,
structures and other improvements thereto, in good condition and repair,
ordinary wear and tear (including, without limitation, from the elements)
excepted, and (except as otherwise provided in paragraph (c) of Article 12) will
make all structural and non-structural, and ordinary and extraordinary changes,
repairs and replacements, foreseen or unforeseen, which may be required, whether
or not caused by its act or omission, to be made upon or in connection with the
improvements to any Property in order to keep the same in such condition,
ordinary wear and tear (including, without limitation, from the elements) and
the circumstances described in paragraph (c) of Article 12 excepted, including
taking, or causing to be taken, action necessary to maintain each Property in
compliance in all material respects with any applicable Legal Requirements,
including all applicable Environmental Laws. Lessee covenants to perform or
observe all terms, covenants or conditions of any reciprocal easement or
<PAGE>
16
maintenance agreement to which it may at any time be a party or to which any
Property is subject as of the Property Closing Date with respect to such
Property. Lessee shall, at its expense, use its reasonable efforts to enforce
compliance in all material respects with any reciprocal easement, maintenance or
other agreement benefitting any Property by any other Person subject to such
agreement without the imposition of any Lien. Lessor shall not be required to
maintain, alter, repair, rebuild or replace any improvements on any Property or
to maintain any Property, and Lessee expressly waives the right to make repairs
at the expense of Lessor pursuant to any law at any time in effect. Lessee shall
not abandon any Property.
(b) If it is determined that any Improvements situated on any Property at
any time during the term of this Lease shall encroach upon any property, street
or right-of-way adjoining or adjacent to such Property, or shall violate the
agreements or conditions contained in any restrictive covenant affecting such
Property or any part thereof, or shall impair the rights of others under or
obstruct any easement or right-of-way to which such Property is subject, then,
Lessee shall promptly notify Lessor of such development, and at the written
request of Lessor, Lessee shall, at its expense, either (i) obtain effective
waivers or settlements of all claims, liabilities and damages resulting from
each such encroachment, violation, impairment or obstruction whether the same
shall affect Lessor, Lessee or both, or (ii) make such changes in the
improvements on such Property and take such other action as shall be necessary
to remove such encroachments or obstructions and to end such violations or
impairments, including, if necessary, the alteration or removal of any
improvement on such Property. Any such alteration or removal shall be made in
conformity with the following requirements of this Article 10 to the same extent
as if such alteration or removal were an alteration under the provisions of
paragraph (c) of this Article 10 and there shall be no abatement of rent by
reason of such alteration or removal.
(c) During the Term of this Lease, so long as no Default or Event of
Default hereunder has occurred and is continuing, after notice to Lessor, Lessee
may make any alterations, additions, modifications or improvements to any
Property whether or not structurally integrated with the existing Improvements
on such Property (each an Addition), provided that: (A) no such Addition (i)
reduces the fair market value of such Property, taking into account any increase
in the fair market value of such Property caused by prior improvements to such
Property made by Lessee as permitted by this Lease at any time during the
Maximum Lease Term, (ii) adversely affects the structural integrity of such
Improvements, or impairs the utility or operation of such Property (other than
during the construction period with respect to such Addition), (iii) reduces the
remaining useful life of such Improvements, or (iv) violates (in any material
respect) any agreement or restriction (x) to which such Property is subject or
(y) which benefits such Property; (B) Lessee shall finance construction of any
Addition at its sole cost and expense (i) using its own funds, or (ii) through a
borrowing unsecured by any interest in any Property; (C) in addition to
satisfying the requirements of clause (A) above, any Addition to any Property
the
<PAGE>
17
cost of which exceeds $500,000 shall be consented to by Lessor and Agent Bank in
writing prior to commencement thereof; (D) any Addition shall be made in a good
and workmanlike manner using a quality of material and workmanship at least as
good as the original work or installation of such Improvements and otherwise in
conformance with the character and quality of such existing Improvements and in
compliance with all applicable Legal Requirements; (E) prior to undertaking any
Addition, Lessee shall deliver to Lessor an Officer's Certificate with respect
to satisfaction of the conditions set forth in the foregoing clauses (A)(i),
(A)(ii) and (A)(iii); (F) upon the reasonable request by Lessor, the fair market
value and the remaining useful life of such Improvements shall be determined by
an Appraisal of the applicable Property, performed at Lessee's sole cost and
expense; (G) any Addition may not be encumbered by any Lien (other than a
Permitted Encumbrance) and shall become the property of Lessor and subject to
this Lease, the Assignment and the Deed of Trust related thereto; (H) at
Lessor's request, Lessee shall within 10 Business Days thereafter execute and
deliver to Lessor a Lease Supplement with respect to any such Additions; and (I)
Lessee's execution of a Lease Supplement for any such Addition shall constitute
(i) Lessee's acknowledgment and certification that any work associated therewith
complies with the requirements of this Article 10 and (ii) as between Lessor and
Lessee and for purposes of the Operative Documents but for no other purpose,
Lessee's unconditional and irrevocable acceptance of such Addition for lease
hereunder, which acceptance shall not constitute a waiver of any rights against
third parties.
(d) During the Term of this Lease, so long as no Default or Event of
Default hereunder has occurred and is continuing, in addition to Lessee's right
to construct Additions as set forth in subparagraph (c) above, Lessee may
request that Lessor obtain a Loan from the Lenders under and in accordance with
the Loan Agreement, so that Lessee may construct or cause to be constructed on
such Property, Additional Improvements upon compliance with the following
provisions:
(i) Lessee shall provide Lessor and Agent Bank in connection with a Loan
for Additional Improvements the following:
A. a description in reasonable detail of such Additional
Improvements including the type of structure, the square
footage, the number of floors and any other relevant
information;
B. an estimate in reasonable detail of the applicable Costs
of the Property with respect to such Additional
Improvements and including calculations indicating that
Lessee is in compliance with Section 3.2.1 of the Loan
Agreement;
<PAGE>
18
C. the anticipated completion date with respect to such
Additional Improvements (the Completion Date);
D. a complete set of plans and specifications describing
the proposed Additional Improvements; and
E. if the Loan for such Additional Improvements is to be
made on a day other than a Property Closing Date, the
anticipated date for such Closing.
(ii) the Completion Date for such Additional Improvements shall be no
more than 180 days after commencement of the construction thereof;
(iii) Lessee shall comply with the provisions of clauses (A), (D), (G),
(H), and (I) of subparagraph (c);
(iv) Lessee shall cause the Additional Improvements to be substantially
completed in accordance with plans and specifications reasonably
satisfactory to Lessor and Agent Bank (as the same may be modified
from time to time with the approval of Agent Bank, the Approved
Plans);
(v) Lessee shall employ or cause to be employed a competent work force
at all times during construction of the Additional Improvements
and all indemnities set forth in this Lease shall apply with
respect to such Additional Improvements;
(vi) Lessee shall at all times during the construction of the
Additional Improvements keep or cause to be maintained and kept
with respect to the construction of the Additional Improvements,
accurate books, records and accounts showing all materials ordered
and received and all disbursements and accounts payable in
connection with the construction of the Additional Improvements;
(vii) Lessee shall allow Lessor, Agent Bank, the Lenders, Beneficiary,
LC Issuer and their agents and representatives to enter the
Additional Improvements upon reasonable prior written notice and
during normal business hours for purposes of inspecting the
progress of construction of the Additional Improvements and to
examine all books, accounts, plans, drawings, and records with
respect thereto;
(viii) the Additional Improvements shall be Substantially Complete by no
later than the applicable Completion Date; and
<PAGE>
19
(ix) upon Substantial Completion of such Additional Improvements, Lessee
shall deliver to Lessor and Agent Bank the following:
(A) a new "as-built" survey plan of such Property (including the
Additional Improvements) to the extent that the building
"footprint" is altered by such Additional Improvements;
(B) an updated "Phase I", and if requested by Lessor, Agent Bank
or LC Issuer in its reasonable judgment based upon the "Phase
I" with respect thereto, an updated "Phase II" environmental
site assessment report of such Property performed by an
independent environmental engineer selected or approved by
Lessor and approved by Agent Bank, the Lenders and LC Issuer,
in each case prepared at the sole cost and expense of Lessee,
and which report shall (x) confirm that the performance of the
Additional Improvements did not disclose or cause any adverse
environmental conditions not previously disclosed, and (y)
reveal no actual or potential environmental liabilities. If
any updated environmental site assessment report required by
this clause (B) reveals a need for additional review in the
reasonable judgment of Lessor, Agent Bank or LC Issuer,
Lessee, at its sole cost and expense, shall provide such
additional environmental site assessment reports as are
required by Lessor, Agent Bank or the Lenders. The results of
all such environmental site assessment reports must be
reasonably satisfactory to Lessor, Agent Bank, the Lenders,
Beneficiary and LC Issuer; and
(C) such other documents reasonably required by the Lessor or
Agent Bank.
Within 60 days of Substantial Completion of the Additional Improvements,
Lessee shall deliver to Lessor and Agent Bank a final certificate of occupancy.
If for any reason, the amount of the Advance made to construct any
Additional Improvements is insufficient to pay all costs of Lessee with respect
to such Additional Improvements, Lessee shall, nonetheless, be bound and
required to fulfill its obligations hereunder and to pay all costs of the
Additional Improvements and, under no circumstances, shall the insufficiency of
the funds available to Lessee reduce or release Lessee from any of its
obligations hereunder.
(e) All work done in accordance with this Article 10 shall comply with the
requirements of all insurance policies required to be maintained by Lessee under
Article 13 hereof. Lessee shall promptly pay all costs and expenses of each such
Addition and Additional
<PAGE>
20
Improvements, discharge all Liens arising therefrom and procure and pay for all
permits and licenses required in connection therewith.
11. Trade Fixtures; Inspection.
(a) Lessor acknowledges and agrees that the racking systems, shelving
systems, security systems and items of racking, shelving trade fixtures, cabling
and networks running from the utility closets to work stations, machinery and
equipment for each Property (but specifically excluding Improvements) that are
not financed by Advances are and shall remain the property of Lessee (Trade
Fixtures) and be treated as "trade fixtures" for the purposes of this Lease and
Lessee may remove the same from such Property at any time prior to the
termination of this Lease, provided that such removal does not impair the fair
market value, utility or useful life of such Property and that Lessee shall
repair any damage to such Property resulting from such removal. Lessee may, at
its own cost and expense, install or place or reinstall or replace upon or
remove from any Property any such Trade Fixtures. Any such Trade Fixtures shall
not become the property of Lessor (other than replacements of fixtures,
machinery and equipment which are the property of Lessor, which replacement
shall also be the property of Lessor). Replacements of fixtures, machinery and
equipment which are property of the Lessor shall be of at least equal quality to
the replaced fixtures, machinery and equipment at the time of such replacement.
Lessee will be responsible for the repair and maintenance of Trade Fixtures.
Lessor, at Lessee's request and expense, will waive or subordinate its lien on
Lessee's personal property and Trade Fixtures for the benefit of any equipment
lessor or other person providing financing.
(b) Upon the request of Lessor, Agent Bank or Lenders, Lessee shall make
Lessee's records pertaining to the maintenance of each Property available to
Lessor, Agent Bank and Lenders for inspection as hereinafter provided. Lessee
shall permit Lessor, Beneficiary, Agent Bank, Lenders, LC Issuer and their
agents and representatives, at any such party's risk and expense and after
reasonable notice to visit and inspect (in the company of a representative of
Lessee) any Property, in a manner that does not unreasonably interfere with
Lessee's use and operation of such Property at such reasonable times during
normal business hours and as often as may be reasonably requested, including,
without limitation, to make such inspections as any such party deems necessary
or desirable to insure compliance with the provisions of Article 9, Article 10,
this Article 11 and Article 25.
12. Condemnation and Casualty.
(a) Lessee hereby assigns to Lessor any award, compensation, insurance
proceeds or other payment to which Lessee may become entitled by reason of its
interest in any Property (i) if any Property, or any portion thereof, is damaged
or destroyed by fire or other casualty or cause, or (ii) by reason of any
condemnation, requisition or other taking or sale of the use,
<PAGE>
21
occupancy or title to any Property or any portion thereof in, by or on account
of any actual or threatened eminent domain proceeding or other action by any
governmental authority, civil or military, or other Person having the power of
eminent domain. So long as there is no Event of Default continuing hereunder,
Lessee is hereby authorized and empowered to, at its cost and expense, in the
name and behalf of Lessor, Lessee, Agent Bank or otherwise, to appear in any
such proceeding or other action, to negotiate, accept and prosecute any claim
for any award, compensation, insurance proceeds or other payment on account of
any such loss, damage or destruction, condemnation, requisition or other taking
or sale and to cause any such award, compensation, insurance proceeds or other
payment to be paid to Lessor. In addition, so long as there is no Event of
Default continuing hereunder, Lessee, at its sole cost and expense, shall be
entitled to submit, negotiate, accept and prosecute a claim for any award,
compensation or insurance proceeds or other payment payable to Lessee to the
extent payable for interruption of business, moving expenses or any property
owned by Lessee that is not part of any Property (any such insurance proceeds or
other payment payable to Lessee to the extent made for interruption of business,
moving expenses or any property owned by Lessee that is not part of any Property
hereinafter referred to as Lessee's Loss), and Lessee shall retain any award
applicable thereto. Furthermore, Lessee shall use reasonable efforts to achieve
the maximum award obtainable under the circumstances. Lessor, Agent Bank,
Beneficiary and LC Issuer may, at their respective cost and expense (unless (x)
an Event of Default shall have occurred and be continuing or (y) any such Person
shall reasonably determine that such appearance is necessary to protect its
respective rights under the Operative Documents, in which event such appearance
shall be at Lessee's sole cost and expense), appear in any such proceeding or
other action, in a manner consistent with the foregoing. All amounts so paid or
payable to Lessor or Lessee shall be retained by, or paid over to, the party
entitled thereto in accordance with the provisions of any Deed of Trust and this
Article 12. To the extent that Lessor, Agent Bank, Beneficiary or LC Issuer do
not appear and act at such proceeding, Lessee shall take all reasonable
appropriate action in connection with each such claim, proceeding or other
action, and shall pay its costs and expenses in connection therewith.
(b) If any Property or any part thereof shall be condemned or taken in the
exercise of the power of eminent domain by any sovereign, municipality or other
public or private authority or shall be damaged or destroyed by fire or other
casualty, and Lessee may not, or does not, elect to terminate the Lease with
respect to such Property pursuant to paragraph (c) of this Article 12, then
Lessee shall give prompt written notice of such condemnation or casualty to
Lessor and shall, at Lessee's own cost and expense (subject to reimbursement as
provided below), proceed with diligence and promptness to carry out any
necessary demolition and to restore, repair, replace, and/or rebuild such
Property in order to restore such Property, as nearly as practicable, to a
condition and fair market value not less than the condition required to be
maintained and fair market value thereof immediately prior to such taking,
damage or destruction. No repair work done by Lessee pursuant to this paragraph
shall violate the terms of any restriction,
<PAGE>
22
easement, condition or covenant or other matter affecting title to any Property,
and shall be undertaken and completed in a good and workmanlike manner and in
compliance in all material respects with the requirements of Article 10 and with
all Legal Requirements then in effect with respect to the affected Property. All
work done in accordance with this paragraph (b) of Article 12 shall comply with
the requirements of all insurance policies required to be maintained pursuant to
this Lease.
Basic Rent and Additional Obligations shall not abate hereunder at any
time during the Term of this Lease by reason of any taking of, damage to or
destruction of any Property, and this Lease shall continue in full force and
effect and Lessee shall continue to perform and fulfill all of Lessee's
obligations, covenants and agreements hereunder notwithstanding such taking,
damage or destruction.
If an Event of Default is continuing hereunder, Lessor or Agent Bank shall
retain the Net Award (as defined in paragraph (c) of this Article 12) to be
applied to effect compliance with Lessee's obligations then due under Article 21
and the Net Award will be applied on account of and credited against Lessee's
obligations then due under Article 21. If the Net Award is less than the
estimated cost of restoring or rebuilding the Improvements on the affected
Property to the condition and fair market value required above in this paragraph
(b), and Lessee shall not be qualified to be the Depositary, as provided below,
then Lessee shall deposit the amount by which such estimated cost exceeds the
Net Award with the Depositary as described below or shall post an equivalent
bond, whereupon such deposit or bonded amount shall be part of the Net Award for
purposes of this paragraph (c) of this Article 12. If the Net Award does not
exceed $1,000,000, provided that there is no Default or Event of Default
continuing hereunder, then the Net Award shall be promptly paid to Lessee to be
applied to the repair and rebuilding work required by this paragraph (b). If the
Net Award exceeds $1,000,000, provided that there is no Default or Event of
Default continuing hereunder, then:
(i) the full amount thereof shall be paid to a depositary (the
Depositary) to be selected as hereinafter provided. The
Depositary shall be either (x) Lessee, so long as no Default
or Event of Default shall have occurred and be continuing, or
(y) a bank or trust company located in the state in which the
affected Property is located, New York or Massachusetts,
selected by Lessee and reasonably satisfactory to Lessor which
is authorized to do business in the state in which the
affected Property is located, New York or Massachusetts, as
the case may be, and which has a net worth of $500,000,000 or
more and has a senior unsecured debt credit rating from
Standard & Poor's Ratings Group (S&P) or Moody's Investor
Service, Inc. (Moody's), or any successor to either entity, of
"A" or better. The Depositary (if other than Lessee) shall
have no affirmative obligation to
<PAGE>
23
prosecute a determination of the amount of, or to effect the
collection of, any insurance proceeds or condemnation award or
awards, unless the Depositary shall have given an express
written undertaking to do so. Moneys received by the
Depositary pursuant to the provisions of this Lease shall not
be commingled with the Depositary's own funds and shall be
held by the Depositary in trust separately for the uses and
purposes provided in this Lease. The Depositary shall place
any moneys held by it into an interest bearing account; any
interest paid or received by the Depositary on the moneys so
held in trust shall be added to the moneys so held in trust by
the Depositary. In disbursing monies pursuant to clause (ii)
of this paragraph (b), the Depositary may rely conclusively on
the information contained in any notice given to the
Depositary by Lessee in accordance with the provisions of said
clause (ii), unless Lessor shall notify the Depositary in
writing as provided in said clause (ii) that Lessor intends to
dispute such information, in which case the disputed amount
shall not be disbursed but shall continue to be held by the
Depositary until such dispute shall have been resolved.
(ii) Lessee may request payment out of the Net Award for the actual
costs and expenses incurred by Lessee in connection with such
repair and rebuilding. Such requests shall be made by written
notice to the Depositary, with a copy to Lessor, setting forth
in reasonable detail all of such costs and expenses then
incurred by Lessee. The Depositary shall promptly disburse
(but not prior to the expiration of the five Business Day
period set forth in the last sentence of this clause (ii) and
not at any time during which a dispute shall exist between
Lessor and Lessee as to such amount) to Lessee out of the Net
Award the amount of such costs and expenses. If Lessor shall
in good faith desire to dispute the information contained in
any notice given by Lessee pursuant to this clause (ii),
Lessor shall so notify Lessee and the Depositary in writing
within five business days after the giving of such notice (the
Dispute Notice), specifying the amount intended to be disputed
and the nature of the dispute, and Lessor and Lessee shall
negotiate in good faith to promptly settle any such dispute.
Within five days after delivery of the Dispute Notice, a duly
authorized representative of Lessee and Lessor shall meet to
discuss and to attempt to resolve such dispute. If no such
resolution has been reached within 15 days after delivery of
the Dispute Notice, the dispute shall be referred to the
Applicable Officer of Lessee and to the most senior authorized
representative of Lessor charged with the administration of
this Lease for resolution. Such officers shall meet to discuss
and attempt to
<PAGE>
24
resolve such dispute within 10 days after the expiration of
such 15 day period. If such parties are unable to agree on an
appropriate resolution within 15 days after the end of such 15
day period, both parties may pursue any rights and remedies
they may have hereunder, at law or in equity, and the
Depositary shall hold such amounts in trust pending the
outcome thereof. The failure or refusal of either Lessor or
Lessee to meet and discuss any dispute as provided above shall
entitle the Depositary to immediately disburse the moneys held
by it at the direction of the party not so failing or
refusing. Any portion which is not in dispute will be paid
promptly.
(iii) After reimbursement pursuant to clause (ii) above, any remaining Net
Award shall be paid pursuant to paragraph (b) of Article 13.
(iv) Lessee may direct the investment of the amounts deposited with the
Depositary pursuant to clause (i) above in the following:
(A) repurchase obligations of one or more financial
institutions reasonably acceptable to Lessor and Agent Bank at
all times fully secured by direct and general obligations of
the United States of America or obligations guaranteed as to
principal and interest by the United States of America;
(B) direct and general obligations of the United States of
America or obligations guaranteed as to principal and interest
by the United States of America purchased at a price of not
more than par;
(C) certificates of deposit of one or more financial
institutions reasonably acceptable to Lessor and Agent Bank at
all times insured by the Federal Deposit Insurance Corporation
or collateralized by obligations of the types described in the
foregoing clauses (A) and (B); or
(D) commercial paper which is rated "A-1" or better (or
comparable ratings) by S&P or "P-1" or better (or comparable
ratings) by Moody's, or the successors to such rating
organizations.
Such investments of such funds shall mature in such amounts
and on such dates as to provide that amounts sufficient to pay
the amounts requested, and due to, Lessee shall be available
on the due dates. The Depositary shall not be liable for any
loss resulting from the liquidation of any such
<PAGE>
25
investment in order to pay such amounts. The Lessee shall be
responsible for any loss of principal as a result of any
investments Lessee has directed the Depositary to make or has
made itself in its capacity as the Depositary.
(c) If, at any time during the Term of this Lease all or "substantially
all" (as defined below) of any Property shall be condemned or taken in the
exercise of the power of eminent domain by any sovereign, municipality or other
public or private authority or shall be damaged or destroyed by fire or other
casualty or if, after any condemnation, taking or casualty of any Property,
Lessee shall have, in good faith, determined that such condemnation, taking or
casualty has rendered such Property permanently unsuitable for continued use in
Lessee's business for operations similar to those utilized by Lessee prior to
the casualty or condemnation in question, and shall have provided to Lessor an
Officer's Certificate to that effect, then so long as there is no Default or
Event of Default continuing hereunder, Lessee may give notice to Lessor of
Lessee's intention to terminate this Lease with respect to such Property.
"Substantially all" of a Property shall be deemed to have been condemned,
damaged, destroyed or taken, as the case may be, if Lessee shall have, in good
faith, determined that the remaining portion of such Property shall not be of
sufficient size or character to permit the continued operation by Lessee of its
business operations on an economically feasible basis, assuming that such
remaining portion had been repaired and restored to the fullest extent
reasonably practicable.
If, pursuant to the foregoing provisions of this paragraph (c) of this
Article 12, Lessee shall have determined not to restore an affected Property,
then Lessee shall give notice to Lessor of Lessee's intention to terminate this
Lease with respect to such Property. Lessee's notice to Lessor shall (i) contain
a description of the relevant condemnation, taking or casualty, (ii) specify the
date on which this Lease shall terminate with respect to such Property which
shall be the Payment Date first occurring upon or after the earlier to occur of
(A) receipt by the party entitled thereto of the applicable Net Award, and (B)
180 days after the occurrence of such condemnation or taking or 180 days after
the occurrence of such casualty (subject to reasonable extension in the event
the insurer has not notified Lessee within 30 days after the occurrence of any
such casualty regarding the amount of proceeds to be awarded under the
applicable insurance policy), whichever is applicable (the Termination Date),
and (iii) contain the irrevocable commitment of Lessee to purchase Lessor's
interest in such Property (and, if applicable, the Net Award hereinafter
referred to), on such Termination Date for the applicable Termination Value with
respect to such Property together with any accrued and unpaid Basic Rent and
Additional Obligations then due. On such Termination Date Lessor shall transfer,
and Lessee shall purchase, Lessor's interest in the affected Property (and the
Net Award, if applicable) in accordance with the provisions of Article 16
hereof. Upon completion of such
<PAGE>
26
purchase, and payment by Lessee of the Termination Value with respect to such
Property, the accrued and unpaid Basic Rent due on such Termination Date, any
accrued and unpaid Additional Obligations then due, and any other sums owed by
Lessee pursuant to Article 16 hereof, the entire award, compensation, insurance
proceeds or other payment, if any, on account of any such condemnation, taking
or casualty, less any expenses reasonably incurred by Lessor in collecting such
award, compensation, insurance proceeds or other payment and not already paid
(or reimbursed to Lessor) by Lessee pursuant to the third to the last sentence
of paragraph (a) of Article 12, shall be paid and belong to Lessee (such award,
compensation, insurance proceeds or other payment, less such expenses, plus, in
the case of any award with respect to a condemnation or taking, any investment
income earned with respect to the foregoing amounts, being herein called the Net
Award).
(d) Notwithstanding any other provision to the contrary contained in this
Article 12, in the event of a temporary condemnation with respect to any
Property, this Lease shall remain in full force and effect and Lessee shall be
entitled to the Net Award allowable to such temporary condemnation; except that
any portion of the Net Award allocable to the time period after the expiration
or termination of the Term of this Lease with respect to such Property shall be
paid to Lessor.
13. Insurance.
(a) Lessee shall, during the Term hereof, at its cost and expense,
maintain or cause to be maintained valid and enforceable insurance of the
following character and shall cause to be delivered to Lessor and Agent Bank
annual certificates of the insurers as to such coverage:
(i) "all risks" property insurance (including flood insurance with
respect to any Property located in a flood hazard zone)
covering each Property and all replacements and additions
thereto, and all building materials and other property which
constitute part of any Property in a manner consistent with
insurance maintained by Lessee on properties similar to the
Properties and in any event in amounts not less than the
actual replacement cost of each Property (without
depreciation) less land and other uninsurable items.
(ii) public liability insurance covering legal liability against
claims for bodily injury, death or property damage, occurring
on, in or about any Property and the adjoining land, streets,
sidewalks or ways or occurring as a result of construction and
use and occupancy of facilities located on any Property or as
a result of the construction thereof or the use of products or
materials manufactured, processed, constructed or sold, or
services
<PAGE>
27
rendered, on any Property, in the minimum amount of
$10,000,000 with respect to any one occurrence, accident or
disaster or incidence of negligence and with aggregate
liability coverage in the amount of $25,000,000. Coverage
should include "premises/operations", "independent
contractors", and "blanket contractual" liabilities.
(iii) insurance during the course of any construction or repair of
any Improvements (including Additional Improvements) against
"all risks", including collapse and transit coverage, during
construction or repair of such Improvements, covering the
total value of work performed and equipment, supplies and
materials furnished, in an amount equal to the actual
replacement cost of such Improvements (without depreciation)
less uninsurable items.
(iv) worker's compensation insurance (or other similar insurance or
self insurance program permitted and in compliance with the
laws of the state where each Property is located) covering all
Persons employed by Lessee in connection with any work done on
or about each Property with respect to which claims for death
or bodily injury could be asserted against Lessor, Agent Bank,
Lessee or any Property, complying with the laws of the state
where each Property is located.
(v) such other insurance, in such amounts, against such risks, and
with such other provisions as is customarily and generally
maintained by Lessee and its Affiliates with respect to its
other warehouse facilities (which shall be substantially
similar to operators of similar properties of a financial
standing similar to Lessee).
Such insurance shall be effected under standard or manuscript form
policies, issued by stock or mutual company insurers of recognized
responsibility authorized to do business in the state in which the respective
Property is located which are rated with a General Policy Rating of A- or better
in Best's Key Rating Guide or similar rating by a national or international
rating organizations and shall name Lessee as insured and Lessor, Bank,
Beneficiary, LC Issuer Agent Bank and the Lenders as additional insureds with
respect to insurance described in clause (ii) and, to the extent applicable,
clause (v), above, and shall name Agent Bank as loss payee, for distribution to
itself (for the benefit of the Lenders), Lessor, Beneficiary, LC Issuer and
Lessee, as their interests may appear, with respect to insurance described in
clauses (i), (iii) or, to the extent applicable, clause (v) above. Such
insurance may provide for such deductible amounts of up to $250,000 per
occurrence and may be obtained by Lessee by endorsement on its blanket insurance
policies provided that each Property shall be separately scheduled so that no
loss at
<PAGE>
28
any other property shall reduce the amount payable with respect to such Property
except for the perils of flood and earthquake, where aggregate limits are usual
and customary.
(b) Any portion of the Net Award remaining after Lessee has repaired any
affected Property pursuant to paragraph (b) of Article 12 and has been
reimbursed for all of its expenses incurred in connection with obtaining the Net
Award and effecting such repairs, shall be delivered to Lessee, provided that
either the fair market value of such Property after such repair is no less than
the fair market value of such Property immediately prior to the event of loss
with respect to which such Net Award was paid, or that the aggregate amount of
(i) such portion of the Net Award so remaining and (ii) all amounts thereto paid
to Lessee pursuant to this sentence, does not exceed $250,000. If the fair
market value of any affected Property has been diminished, taking into account
any increase in the fair market value of such Property caused by prior
improvements to such Property made by Lessee as permitted by this Lease or such
aggregate amounts exceed $250,000, the excess shall be retained by Lessor and
shall be applied pari passu in reduction of the principal amount of the Notes
and the Equity Investment with respect to the affected Property, together with
accrued and unpaid interest on such Notes and the accrued and unpaid Equity
Return on such Equity Investment, and any amounts payable pursuant to the terms
thereof or in respect thereof from such excess amount and not from any
additional funds of Lessee or Lessor. After the retention of any such amount by
Lessor, (i) each installment of Basic Rent payable on and after the second
Payment Date occurring after such retention shall be reduced by an amount equal
to the amount of the reduction, if any, in payments of interest on the Notes and
the Equity Return resulting from the application of such retained amount to
prepayment of principal of the Notes and the Equity Investment with respect to
such Property and (ii) the Purchase Price, Termination Values, Maximum Lessor
Risk Amount and Maximum Lessee Risk Amount for such Property shall be reduced by
amounts that reflect the reductions, if any, in principal outstanding on the
Notes and the Equity Investment with respect to such Property as a result of the
application of such retained amount to prepayment of principal on the Notes and
the Equity Investment with respect to such Property; provided however, that
Basic Rent as so reduced shall be at least sufficient to pay each installment of
interest on the Notes and the Equity Return when due and the Purchase Price and
Termination Values (together with all Additional Obligations and Basic Rent)
shall be at least sufficient at all times during the Maximum Lease Term to pay
all outstanding principal and accrued interest under the Notes, the Equity
Investment and the accrued and unpaid Equity Return. Any reductions in
Termination Values, Purchase Prices, Maximum Lessor Risk Amounts and Maximum
Lessee Risk Amounts made in accordance with this paragraph (b) of Article 13
shall be set forth with specificity on supplements to Schedules C, E and F
hereto, respectively, prepared by Lessor or Agent Bank.
(c) In addition to the foregoing, every insurance policy maintained in
accordance with clauses (i) or (iii) of paragraph (a) of this Article 13 shall:
(i) name Agent Bank and LC
<PAGE>
29
Issuer as loss payee, in accordance with paragraph (a); (ii) contain a standard
mortgagee endorsement naming Agent Bank and LC Issuer, as its interests may
appear, provided that any recovery under any such policy shall be applied by
Agent Bank and LC Issuer in the manner provided in paragraphs (b) or (c) of
Article 12 or paragraph (b) of this Article 13, as applicable; and (iii) provide
that the issuer waives all rights of subrogation against Lessor, any successor
to Lessor's interests in the related Property and Agent Bank and LC Issuer; and
every insurance policy maintained in accordance with clauses (i), (ii), (iii) or
(v) of paragraph (a) of this Article 13 shall: (i) provide that 30 days advance
written notice (10 days with respect to nonpayment of premiums) of cancellation,
modification, termination or lapse of coverage shall be given to Lessor, Agent
Bank and LC Issuer and that such insurance, as to the interest of Lessor, Agent
Bank and LC Issuer, shall not be invalidated by any act or neglect of Lessor,
Lessee or any party, nor by any foreclosure or any other proceedings relating to
any Property, nor by use or occupation of any Property for purposes more
hazardous than are permitted by such policy; (ii) be primary and without right
or provision of contribution as to any other insurance carried by Lessor or any
other interested party; and (iii) in the event any insuring company is not
domiciled within the United States of America, include a United States Service
of Suit clause (providing any actions against the insurer by the named insured
or Lessor are conducted within the jurisdiction of the United States of
America).
(d) Nothing in this Article 13 shall prevent Lessee from taking out
insurance of the kind and in the amount provided for under the preceding
paragraphs of this Article under a blanket insurance policy (which policy or
certificates thereof acceptable to Lessor shall be delivered to Lessor) which
may cover other properties owned, operated, leased or occupied by Lessee as well
as the Properties; provided, however, that any such blanket insurance of the
kind provided for shall not contain any clause which would result in the insured
thereunder being required to create a reserve or carry any insurance with
respect to the property covered thereby in an amount not less than any specific
percentage of the actual replacement cost of such property in order to prevent
the named insureds from becoming a co-insurer of any loss with the insurer under
such policy. Further, such policies of blanket insurance shall, as respects the
Properties, contain the various provisions required of such an insurance policy
by the foregoing provisions of this Article 13.
(e) Lessee shall not obtain or carry separate insurance concurrent in form
or contributing in the event of loss with that required in this Article 13 to be
furnished by Lessee, unless Lessor, Agent Bank and LC Issuer are included
therein as an additional insured, with loss payable as in this Lease provided
and otherwise complying with the requirements of paragraph (c) of this Article
13. Lessee shall immediately notify Lessor whenever any such separate insurance
is obtained and shall deliver to Lessor, Agent Bank and LC Issuer certificates
of insurers evidencing such insurance.
<PAGE>
30
(f) Prior to the Property Closing Date for each Property, Lessee shall
deliver to Lessor and Agent Bank certificates of insurance, satisfactory to
Agent Bank, evidencing all of the insurance required under paragraph (a) of
Article 13 hereof with respect to such Property. Lessee shall, in connection
with the expiration of any required insurance policy, deliver to Lessor, Agent
Bank and LC Issuer certificates (and upon written request, actual policies) of
insurers evidencing the renewal of any such policy. If Lessee fails to maintain
or renew any insurance required by this Lease, or to pay the premium therefor,
or to so deliver any such certificate, then Lessor, at its option, but without
obligation to do so, may, upon ten Business Days' notice to Lessee, procure such
insurance, pay such premium or deliver such certificate. Any sums so expended by
Lessor shall be Additional Obligations hereunder and shall be repaid by Lessee
within five Business Days after notice to Lessee of such expenditure and the
amount thereof. With respect to any insurance policy required to be maintained
pursuant to this Lease, upon request of Lessor, Agent Bank, or LC Issuer, Lessee
shall deliver to such requesting party a copy of such insurance policy.
(g) Lessee shall comply with all of the terms and conditions of each
insurance policy maintained pursuant to the terms of this Lease, to the extent
necessary to avoid invalidating such insurance policy or impairing the coverage
available thereunder. In the event of the termination of this Lease as herein
provided or Lessee's abandonment of any Property, the obligations and
liabilities of Lessee with respect to each Indemnified Party, actual or
contingent, under this Article 13, shall survive such termination or
abandonment.
14. Financial Statements; Other Information.
(a) Lessee will deliver to Lessor, Agent Bank, the Lenders, the
Beneficiary and LC Issuer the financial statements and other documents of
Guarantor and its Subsidiaries described in paragraph 9 of the Guaranty.
Concurrently with the delivery of annual financial statements pursuant thereto,
Lessee will deliver to Lessor, Agent Bank, the Lenders, the Beneficiary and LC
Issuer an Officer's Certificate that there exists no Default or Event of Default
under this Lease or if any such Default or Event of Default exists, specifying
the nature thereof, the period of existence thereof and what action Lessee
proposes to take with respect thereto and a certificate substantially in the
form of Schedule J hereto. Lessee will keep adequate records and books of
account reflecting all its financial transactions with respect to this Lease and
the transactions contemplated hereby. In addition, Lessee agrees upon prior
written request to meet with Lessor, LC Issuer, Agent Bank, Lenders and any
registered owners of indebtedness secured by the Deeds of Trust during normal
business hours at mutually convenient times, from time to time, to discuss this
transaction and Lessee's business and financial condition generally.
(b) Lessee shall deliver or cause to be delivered to Lessor, LC Issuer,
Agent Bank and Lenders such additional information with respect to Lessee, the
Properties, this Lease and
<PAGE>
31
the transactions contemplated hereby, as Lessor, LC Issuer, Agent Bank and
Lenders may reasonably request from time to time.
15. Mergers; Acquisitions; Asset Sales.
Provided no Event of Default has occurred and is continuing, Lessee
shall have the right to (i) merge or consolidate with, acquire or be acquired by
another corporation, or (ii) sell, transfer, lease or otherwise convey all or
substantially all its assets as an entirety, provided that in the case of any
such merger, consolidation, acquisition, sale, transfer, lease or other
transaction (x) such successor entity assumes all of the obligations of Lessee
under the Operative Documents, and (y) such successor entity remains (or
becomes) a Subsidiary of Guarantor.
16. Purchase Procedure.
(a) In the event of the purchase of Lessor's interest in any Property by
Lessee pursuant to any provision of this Lease, the terms and conditions of this
Article 16 shall apply.
(b) On the closing date fixed for the purchase of Lessor's interest in any
or all of the Properties:
(i) Lessee shall pay to Lessor, in lawful money of the United
States in immediately available funds, at Lessor's address
hereinabove stated or at any other place in the United States
which Lessor may designate, the Purchase Price pursuant to
Article 27, 33 or 34 or the Termination Value for such
Property or Properties and related amounts required to be paid
pursuant to Article 9, paragraph (c) of Article 12 or
paragraph (h) of Article 21, paragraph (c) of Article 33, or
paragraph (c) of Article 34, whichever is applicable;
(ii) Lessor shall execute and deliver to Lessee good and sufficient
special warranty deeds, assignments or such other instrument
or instruments as may be appropriate, which shall transfer all
of Lessor's interest in certain or all of the Properties, as
appropriate, including any rights of Lessor against any party
through whom Lessor derived its title to such Properties,
subject to (A) any encumbrances existing on the Property
Closing Date with respect thereto, (B) Permitted Encumbrances
as defined in clauses (a) through (c), and (i) of the
definition thereof, (C) all liens, encumbrances, charges,
exceptions and restrictions attaching to such Properties after
the Property Closing Date with respect thereto (other than the
Deed of Trust, the Assignment, the LC Security Documents and
this
<PAGE>
32
Lease, or memorandum thereof, or those created or caused by or
through Lessor without the written consent of Lessee), and (D)
all Legal Requirements. In the case of a purchase of Lessor's
interest in a Property by Lessee pursuant to paragraph (c) of
Article 12 hereof, Lessor shall also pay to Lessee the Net
Award, if any, and assign to Lessee all rights to any award
not yet received; and
(iii) Lessee shall pay all charges incident to such transfer,
including but not limited to all transfer taxes, recording
fees, title insurance premiums and federal, state and local
taxes, except for any net income or profit taxes of Lessor,
Beneficiary, Agent Bank and the holders from time to time of
indebtedness secured by the Deed of Trust, and reasonable
attorneys' fees and expenses of Lessor's counsel and counsel
to the holders from time to time of the indebtedness secured
by the Deed of Trust; and
(iv) Lessee shall pay to Lessor all Basic Rent, Additional
Obligations and other sums payable by Lessee under this Lease
relating to such Properties, due and payable through the date
Lessee purchases Lessor's interest in such Properties; and
(v) Except as otherwise provided herein, this Lease shall
terminate and be of no further force and effect with respect
to each Property purchased by Lessee pursuant to this Article
16.
17. Quiet Enjoyment. So long as no Event of Default under this Lease shall
have occurred and be continuing, Lessor covenants (subject to the first sentence
of Section 7) that Lessee shall and may at all times peaceably and quietly have,
hold and enjoy the Properties during the Term of this Lease. Notwithstanding the
preceding sentence upon the occurrence and during the continuance of an Event of
Default, Lessor may exercise its rights and remedies under paragraph (b) of
Article 21 and Lessor, Agent Bank and LC Issuer or their agents may enter upon
and inspect the Properties in accordance with the provisions of Article 11
hereof. Lessor shall keep the Properties free of Lessor Liens. Any failure by
Lessor to comply with the foregoing warranty shall not give Lessee any right to
cancel or terminate the Lease, or to abate, reduce or make deduction from or
offset against any Basic Rent or Additional Obligations or other sum payable
under this Lease, or to fail to perform or observe any other covenant, agreement
or obligation hereunder. Subject to the foregoing sentence, Lessee shall have
the right to obtain injunctive or other relief against Lessor for breach of the
aforesaid covenant of peaceful and quiet possession and enjoyment of each
Property.
<PAGE>
33
18. Survival. In the event of the termination of this Lease with respect
to one or more Property, or all of the Properties, as herein provided, the
obligations and liabilities of Lessor and Lessee, actual or contingent, under
this Lease which arose at or prior to such termination shall survive such
termination except as otherwise expressly provided herein.
19. Subletting; Assignment.
(a) Subject to paragraphs (c) and (d) of this Article 19, Lessee may
sublet the Property or any portion or portions thereof, provided that (i) no
Default or Event of Default under this Lease has occurred and is continuing on
the date such sublease is entered into, (ii) each sublease shall expressly be
made subject and subordinate to the provisions of this Lease and any Deed of
Trust and shall be expressly subject to termination in the event this Lease is
terminated pursuant to Article 27(b), Article 29(b) Article 33, Article 34 or as
a result of an Event of Default hereunder, (iii) each such sublease shall
contain standards with regard to maintenance, repair, use, condition upon
surrender and other matters relevant to the fair market value of Lessor's
interest in the affected Property, or the utility and useful life of such
Property which are no less strict than those hereunder, and shall prohibit
further subleasing and (iv) Lessee shall give Lessor, Agent Bank and LC Issuer
the 30 days prior written notice of any such sublease in accordance with
subsection (d) below.
(b) Lessee may not assign its interest under this Lease except with the
prior written consent of Lessor, which consent may be withheld in Lessor's sole
and absolute discretion, and subject to paragraphs (c) and (d) of this Article
19 and provided that such assignment shall expressly be made subject and
subordinate to the terms of this Lease.
(c) No such sublease or assignment shall affect or reduce any obligations
of Lessee or rights of Lessor hereunder, and all obligations of Lessee hereunder
shall continue in full effect as the obligations of a principal and not of a
guarantor or surety, as though no subletting or assignment had been made.
(d) Lessee shall, (i) at least 30 days prior to the execution of any such
sublease, deliver to Lessor an Officer's Certificate providing notice of
Lessee's intention to sublet in each case, which shall include the identity of
the proposed sublessee and stating that such sublease complies with the
provisions of paragraph (a) of this Article 19 and contains the express
subordination required thereby and that Lessee has made a good faith
determination that such sublease does not adversely affect the fair market value
of Lessor's interest in the affected Property, or the utility or useful life of
such Property and (ii) within 30 days after such execution, shall so deliver a
conformed copy of such sublease (with acknowledgments) and a conformed copy of
any short form lease or memorandum of lease which has been prepared for
recording purposes.
<PAGE>
34
(e) Neither this Lease nor the Term of this Lease shall be mortgaged by
Lessee, nor shall Lessee mortgage or pledge the interest of Lessee in and to any
sublease of any Property or any portion thereof or the rental payable thereunder
except as permitted hereunder. Any such prohibited mortgage or pledge, and any
sublease or assignment not permitted by this Article 19, shall be void.
(f) Lessor may assign, convey or otherwise transfer its estate, right,
title and interest hereunder or in the Properties, or any portion thereof in the
manner provided by the Operative Documents (i) to Agent Bank, or (ii) to LC
Issuer or any Person controlled by or controlling or under common control of LC
Issuer (subject to any restrictions on such right of Lessor set forth in the
Deed of Trust); provided, however, that the execution and delivery of any such
assignment, conveyance or other transfer shall not impair or diminish any
obligations of Lessor hereunder. Any such assignment, conveyance or other
transfer shall be subject to this Lease. In connection with any such assignment,
conveyance or other transfer, Lessee hereby agrees to make any payments due to
Lessor hereunder to any assignee or other successor in interest at the written
direction of Lessor. In the absence of any such written direction, Lessee is
authorized to continue to make all payments to Lessor or in accordance with the
most recent Lessor direction.
20. Protective Advances by Lessor. If Lessee shall fail to make or perform
any payment or act required by this Lease, then, upon 30 days' notice to Lessee
(or upon shorter notice, or with no notice at all, to the extent necessary to
meet an emergency or a governmental or municipal time limitation or to prevent
an event of default (after applicable notice and cure periods) under any
mortgage affecting any Property), Lessor or Agent Bank may at its option make
such payment or perform such act for the account of Lessee, and Lessor shall not
thereby be deemed to have waived any default or released Lessee from any
obligation hereunder. Lessor shall give Lessee prompt notice of any such payment
or act including the amount and payee, but failure to give such notice shall not
impair Lessor's rights to reimbursement for amounts so paid or otherwise limit
Lessee's obligations hereunder in any way whatsoever. Amounts so paid by Lessor
and all incidental costs and expenses (including reasonable attorneys' fees and
expenses) incurred in connection with such payment or performance, together with
interest thereon at the Overdue Rate with respect to Additional Obligations
provided in Article 3, from the date advanced through the date repaid by Lessee,
shall constitute Additional Obligations and shall be paid by Lessee to Lessor on
demand.
21. Conditional Limitations -- Events of Default and Remedies.
(a) Any of the following occurrences or acts shall constitute an Event of
Default under this Lease and Lessee shall promptly notify Lessor of the
occurrence thereof:
<PAGE>
35
(i) if Lessee shall (A) default in making payment of any
installment of Basic Rent or Additional Obligations (other
than as provided in (viii) below) which default shall continue
for two days after the same shall be due, or (B) fail to
observe or perform any of the covenants, agreements or
obligations of Lessee set forth in Articles 13, 15, 19, 25,
27, 29, 33 or 34 hereof; or
(ii) if Lessee shall default in the performance of any covenant,
agreement or obligation on the part of Lessee to be performed
under this Lease, other than such covenants, agreements or
obligations that are specifically referred to in other clauses
of this paragraph (a) of Article 21, or in any agreement or
certificate furnished to Lessor, Beneficiary or any Lender, in
connection with this Lease, and such default shall continue
for any specific period expressly provided with respect to
such covenant, agreement or obligation, or if no such specific
period is provided, for a period of 30 days after written
notice thereof from Lessor or Agent Bank; provided, however,
that with respect to any contest by Lessee pursuant to
paragraph (d) of Article 6 hereof, any failure to comply with
the conditions precedent to the right to so contest shall
constitute an immediate Event of Default hereunder; or
(iii) (A) if Lessee or Guarantor or any successor thereto shall be
in default (after the passage of any applicable grace period)
(i) under any lease, loan agreement or similar agreement,
instrument or document heretofore, now or hereafter entered
into between Lessee or Guarantor or any successor thereto and
Beneficiary or any parent, subsidiary or affiliate of
Beneficiary and such default shall have been declared by the
party entitled to declare the same, or (ii) under any
promissory note heretofore, now or hereafter executed by
Lessee or Guarantor or any successor thereto and delivered to
Beneficiary or any parent, subsidiary or affiliate of
Beneficiary evidencing a loan made by any such party to Lessee
or Guarantor or any successor thereto, as applicable, or (B)
an attachment or other lien shall be filed or levied against a
substantial part of the property of Lessee or Guarantor or any
successor thereto, and such attachment or lien shall continue
unstayed, undischarged or bonded (to Agent Bank's reasonable
satisfaction) for a period of 30 days thereafter; or (C) (i)
non-payment of any indebtedness owed to any Lender by
Guarantor or any Subsidiary; or (ii) the occurrence of any
other default by Guarantor or any Subsidiary under any credit
agreement, promissory note or similar agreement with or in
favor of any Lender, where such default entitles
<PAGE>
36
such Lender (or the agent or representative of such Lender)
to accelerate such indebtedness; or
(iv) if Lessee, Guarantor, or any entity succeeding to Lessee or
Guarantor by merger, consolidation or acquisition of all or
substantially all of its assets, shall file a petition in
bankruptcy or for reorganization or for an arrangement
pursuant to any Bankruptcy Law, or shall be adjudicated a
bankrupt or become insolvent or shall make an assignment
for the benefit of its creditors, or shall admit in writing
its inability to pay its debts generally as they become
due, or shall be dissolved, or shall suspend payment of its
obligations, or shall take any corporate action in
furtherance of any of the foregoing; or
(v) if a petition or answer shall be filed proposing the
adjudication of Lessee, Guarantor or any entity succeeding
to Lessee or Guarantor by merger, consolidation or
acquisition of all or substantially all of its assets as a
bankrupt or its reorganization pursuant to any Bankruptcy
Law, and (A) Lessee, Guarantor or any successor entity
shall consent to the filing thereof, or (B) such petition
or answer shall not be discharged or denied within 60 days
after the filing thereof; or
(vi) if a receiver, trustee or liquidator (or other similar
official) shall be appointed for or take possession or
charge of Lessee, Guarantor or any entity succeeding to
Lessee or Guarantor by merger, consolidation or acquisition
of all or substantially all of its assets, or of all or
substantially all of the business or assets of Lessee,
Guarantor or any successor entity or of Lessee's,
Guarantor's or any successor entity's estate or interest in
any Property, and shall not be discharged within 60 days
thereafter, or if Lessee, Guarantor or any successor entity
shall consent to or acquiesce in such appointment; or
(vii) if Lessee or Guarantor or any successor thereto fails to
maintain its legal existence in good standing, other than
in accordance with the provisions of this Lease; or
(viii) if Lessee shall fail to pay any Adjustment Price,
Termination Value, Purchase Price, Reinvestment Premium, or
Maximum Lessee Risk Amount payable to Lessor as required by
this Lease; or
<PAGE>
37
(ix) if any Property shall have been left unattended, unsecured
and without maintenance in violation of Article 10 hereof
for a period of 30 days; or
(x) if, as of the time when the same shall have been made, any
representation or warranty of Lessee or Guarantor set forth
herein or in the Guaranty or in any consent, notice,
certificate, demand, request or other instrument delivered
by or on behalf of Lessee or Guarantor, as applicable, in
connection with or pursuant to this Lease or the Guaranty
shall prove to have been incorrect or misleading in any
material respect when made; or
(xi) if a final judgment for the payment of money in excess of
$5,000,000 (net of insurance proceeds or escrows received
and held under escrow arrangements satisfactory to Lessor
and to Agent Bank) shall be rendered against Lessee or
Guarantor and Lessee or Guarantor, as applicable, shall not
comply with such judgment, or discharge the same or cause
it to be discharged within 30 days from the entry thereof
(or until the expiration of the period in which an appeal
may be filed if such period should be longer), or shall not
appeal therefrom or from the order, decree or process upon
which or pursuant to which said judgment was granted, based
or entered, and secure a stay of execution pending such
appeal; or
(xii) without limiting clause (iii)(C) above, if Lessee or
Guarantor has failed to make one or more payments due or
has otherwise defaulted on any indebtedness for borrowed
money or under any capital leases which failure or default
has resulted in $10,000,000 or more in the aggregate
becoming due before its stated maturity or becoming subject
to a mandatory prepayment, redemption or purchase
obligation before its regularly scheduled dates of payment;
or
(xiii) if any Event of Default (as defined therein) shall have
occurred and be continuing under the Agency Agreement or
the Guaranty; or
(xiv) if Lessee shall fail to surrender any Property as and when
required and in the condition required in accordance with
Article 25; or
(xv) if any default (subject to any applicable grace periods)
shall have occurred and be continuing under the Assignment
or the Assignment of Guaranty; or
<PAGE>
38
(xvi) if Agent Bank fails to draw under the Letter of Credit
or if the LC Issuer refuses to honor a draft presented
under the Letter of Credit in either case by reason of a
Default or an alleged Default under this Lease specified
by the LC Issuer by notice to Lessee, Lessor,
Beneficiary or Agent Bank, or the existence or alleged
existence of a lien or encumbrance affecting any
Property (except a Permitted Encumbrance or a lien or
encumbrance granted or placed thereon by Lessor,
Beneficiary or any Lender); or
(xvii) Lessee shall fail to deliver to Agent Bank the consent
of LC Issuer as provided in the second paragraph of
Section 27(b) hereof; or
(xviii) the occurrence of an "Event of Default" under and as
defined in the Iron Mountain 1998 Synthetic Lease
Transaction.
(b) This Lease and the term and estate hereby granted are subject to the
limitation that whenever an Event of Default shall have occurred and be
continuing, Lessor may, at Lessor's option, elect to (i) lawfully re-enter the
Properties, without notice except as otherwise provided by applicable law, and
remove all Persons and property therefrom, either by summary proceedings or by
any other suitable action or proceeding at law, or by other lawful means,
without being liable to indictment, prosecution or damages therefor, and may
have, hold and enjoy the Properties, together with the appurtenances thereto and
the improvements thereon; and/or (ii) terminate this Lease at any time by giving
notice in writing to Lessee, electing to terminate this Lease and specifying the
date of termination, and the Term of this Lease shall expire by limitation at
midnight on the date specified in such notice as fully and completely as if said
date were the date herein originally fixed for the expiration of the Term hereby
granted, and Lessee shall thereupon quit and peacefully surrender the Properties
to Lessor in accordance with the provisions of Article 25 hereof, without any
payment therefor by Lessor, and upon the date following the date specified in
such notice, or at any time thereafter, Lessor may re-enter the Properties as
provided in the preceding clause (i).
(c) In case of any such re-entry, termination and/or dispossession by
summary proceedings or otherwise as provided in the immediately preceding
paragraph, (i) the Basic Rent and Additional Obligations shall become due
thereupon and be paid up to the time of such re-entry, dispossession and/or
expiration, together with such expenses, including reasonable attorneys' fees,
as Lessor shall incur in connection with such re-entry, termination and/or
dispossession by summary proceedings or otherwise; and (ii) Lessor may in good
faith relet any Property or any part or parts thereof (but shall be under no
obligation to do so), either in the name of Lessor or otherwise, for a term or
terms which may, at Lessor's option, be equal to or less than or exceed the
period which would otherwise have constituted the balance of the Term of this
Lease; and (iii) Lessee shall also pay to Lessor the amount by which the Basic
Rent
<PAGE>
39
provided for in this Lease exceeds the net amount, if any, of the rents
collected on account of the leases of the Properties for each monthly portion of
the period which would otherwise have constituted the Term of this Lease, which
amounts shall be paid in monthly installments by Lessee on the respective
Payment Dates specified therefor, and any suit brought to collect said amounts
for any monthly period shall not prejudice in any way the rights of Lessor to
collect the deficiency in any subsequent monthly period by a similar action or
proceeding; and (iv) Lessee shall also pay to Lessor all other damages and
expenses which Lessor shall reasonably have sustained by reason of the breach of
any provision of this Lease, including without limitation reasonable attorneys'
fees and expenses, brokerage commissions and expenses incurred in altering,
repairing and putting the Properties and any buildings and improvements thereon
in good order and condition and in preparing the same for reletting, which
expenses shall be paid by Lessee as they are incurred by Lessor; or (v) at the
option of Lessor exercised at any time, Lessor forthwith shall be entitled to
recover upon demand from Lessee as liquidated damages, in addition to any other
proper claims but in lieu of and not in addition to any amount which would
thereafter have become payable under the preceding clause (iii) the Termination
Value for the date on which Lessor demands such payment, together with any
accrued and unpaid Basic Rent, Additional Obligations (including Reinvestment
Premium) and other sums due and payable as of the date of such demand by Lessee
under this Lease and any Assignment, whereupon Lessor shall transfer and convey
to Lessee all of Lessor's right, title and interest in and to the Properties
pursuant to the terms of Article 16. In the event of Lessor's acting under the
foregoing clauses (i), (ii), (iii) or (iv), Lessor, at Lessor's option, may make
such alterations, repairs or decorations to the existing Improvements on any
Property for uses similar to those originally intended, as Lessor, in Lessor's
sole judgment, considers advisable and necessary for the purpose of reletting
such Property; and the making of such alterations or decorations shall not
operate or be construed to release Lessee from liability hereunder as aforesaid.
Any amounts received by Lessor pursuant to the exercise of Lessor's remedies
shall be applied to Lessee's obligations hereunder and credited against any
amounts payable by Lessee under this Lease.
(d) No receipt of moneys by Lessor from Lessee after a termination of this
Lease by Lessor shall reinstate, continue or extend the Term of this Lease or
affect any notice theretofore given to Lessee, or operate as a waiver of the
right of Lessor to enforce the payment of Basic Rent and Additional Obligations,
and any Purchase Price, Termination Value or related amounts to be paid by
Lessee to Lessor for the purchase of the Properties then due or thereafter
falling due, it being agreed that after the commencement of suit for possession
of the Properties, or after final order or judgment for the possession of the
Properties, Lessor may demand, receive and collect any moneys due or thereafter
falling due without in any manner affecting such suit, order or judgment, all
such moneys collected being deemed payments on account of the use and occupation
of the Properties or, at the election of Lessor, on account of Lessee's
liability hereunder. Lessee hereby waives any and all rights of redemption
provided by any law, statute or ordinance now in effect or which may hereafter
be enacted. Lessor shall have, receive and
<PAGE>
40
enjoy as Lessor's sole and absolute property, without right or duty to account
therefor to Lessee, any and all sums collected by Lessor as rent or otherwise
upon reletting any Property after Lessor shall resume possession thereof as
hereinbefore provided, including, without limitation upon the generality of the
foregoing, any amounts by which the sum or sums so collected shall exceed the
continuing liability of Lessee hereunder.
(e) The word "re-enter", as used in this Lease, is not and shall not be
restricted to its technical legal meaning, but is used in the broadest sense
under applicable law. No such taking of possession of any Property by Lessor
shall constitute an election to terminate the Term of this Lease unless notice
of such intention be given to Lessee or unless such termination be decreed by a
court having jurisdiction.
(f) If an action shall be brought for the enforcement of any provision of
this Lease, Lessee shall pay to Lessor all reasonable out-of-pocket costs and
expenses which may become payable as a result thereof, including reasonable
attorneys' fees and expenses.
(g) No right or remedy herein conferred upon or reserved to Lessor is
intended to be exclusive of any other right or remedy, and every right and
remedy shall be cumulative and in addition to any other legal or equitable right
or remedy given hereunder, or at any time existing. The failure of Lessor to
insist upon the strict performance of any provision or to exercise any option,
right, power or remedy contained in this Lease shall not be construed as a
waiver or a relinquishment thereof for the future. Receipt by Lessor of any
Basic Rent or Additional Obligations or any other sum payable hereunder with
knowledge of the breach of any provision contained in this Lease shall not
constitute a waiver of such breach, and no waiver by Lessor of any provision of
this Lease shall be deemed to have been made unless made under signature of an
authorized representative of Lessor.
(h) Notwithstanding anything to the contrary contained in this Lease, not
later than 30 days after the occurrence and during the continuance of an Event
of Default (other than an Event of Default pursuant to clauses (i)(A), (iv), (v)
or (vi) of Article 21(a)), Lessee shall have the right to pay to Lessor in cash
or immediately available federal funds all amounts then owed to Lessor,
Beneficiary and Lenders pursuant to this Lease (including, without limitation,
all accrued and unpaid amounts of Basic Rent and any Additional Obligations) and
an amount equal to Termination Value and upon such payment the Properties shall
be reconveyed to Lessee or its designee in accordance with the provisions of
Article 16 hereof.
22. Notices. All notifications, notices, demands, requests and other
communications herein provided for or made pursuant hereto shall be in writing
and shall sent by (i) registered or certified mail, return receipt requested,
and the giving of such communication shall be deemed complete on the third
Business Day after the same is deposited in a United States Post Office
<PAGE>
41
with postage charges prepaid, or (ii) reputable overnight delivery service, and
the giving of such communication shall be deemed complete on the immediately
succeeding Business Day after the same is deposited with such delivery service:
(a) if to Lessor, addressed to such party at 10 State House Square,
Hartford, Connecticut 06103, Attention: Corporate Trust
Administration, or at such other address in the continental United
States as Lessor may furnish to Lessee in writing, or
(b) if to Lessee, addressed to such party at 745 Atlantic Avenue,
Boston, Massachusetts 02111 Attention: Treasurer, or at such other
addresses in the continental United States as Lessee may furnish to
Lessor in writing.
23. Estoppel Certificates. Each party hereto agrees that at any time and
from time to time during the term of this Lease, it will promptly, but in no
event later than 21 days after request by the other party hereto (which in the
case of Lessor may include Agent Bank or the Lenders), execute, acknowledge and
deliver to such other party or to any prospective purchaser, assignee or
mortgagee designated by such other party, a certificate stating, to the best of
such party's knowledge, (a) that this Lease is unmodified and in full force and
effect (or if there have been modifications, that this Lease is in full force
and effect as modified, and setting forth any modifications); (b) the date to
which Basic Rent, Additional Obligations and other sums payable hereunder have
been paid; (c) whether or not there is an existing Default by Lessee in the
payment of Basic Rent or any other sum of money due or required to be paid
hereunder, and whether or not there is any other existing Default by Lessee with
respect to which a notice of Default has been served or of which the signer has
Actual Knowledge, and, if there is any such Default, specifying the nature and
extent thereof; (d) whether or not there are any setoffs, defenses or
counterclaims against enforcement of the obligations to be performed hereunder
existing in favor of the party executing such certificate; and (e) stating that
Lessee is in possession of the Properties or setting forth the parties in
possession and identifying the instruments pursuant to which they took
possession. Any such estoppel certificates delivered by the Lessee shall be
directed to Lessor, Agent Bank and the Lenders,
24. No Merger. As an inducement to the purchasers of any Notes to purchase
such Notes, and to consummate the transactions contemplated thereby and by the
Loan Agreement, and acknowledging that such purchasers would not advance funds
without this Lease, and that Lessor would not enter into this Lease without the
prospect of obtaining such borrowed funds, Lessee agrees that there shall be no
merger of this Lease or of any sublease under this Lease or of any leasehold or
subleasehold estate hereby or thereby created with the fee or any other estate
or ownership interest in any Property or any part thereof by reason of the fact
that the same person, firm, corporation or other entity may acquire or own or
hold, directly or indirectly, (a)
<PAGE>
42
this Lease or any sublease or any leasehold or subleasehold estate created
hereby or thereby or any interest in this Lease or any such sublease or in any
such leasehold or subleasehold estate and (b) (i) the fee estate or other estate
or ownership interest in any Property or any part thereof or (ii) the Beneficial
Interest, and this Lease shall not be terminated for any cause except as
expressly provided herein and any instrument of transfer shall so provide.
25. Surrender and Return.
(a) Upon the expiration or earlier termination of the Term of this Lease
with respect to each Property, and provided that Lessee, if so entitled, has not
exercised its option to purchase the Properties pursuant to Article 27, 33, 34
or otherwise hereunder, Lessee shall peaceably leave and surrender and return
each Property to Lessor in the condition in which such Property existed on the
applicable Property Closing Date with respect thereto, except as repaired,
rebuilt, restored, altered or added to as required by or permitted by any
provision of this Lease (ordinary wear and tear excepted). Lessee shall remove
from each Property on or prior to such expiration or earlier termination all
property situated thereon which is not the property of Lessor, and each Property
shall be broom clean and Lessee shall repair any damage caused by such removal.
Property not so removed shall become the property of Lessor, and Lessor may
cause such property to be removed from the Properties and disposed of, and
Lessee shall pay the reasonable cost of any such removal and disposition and of
repairing any damage caused by such removal.
(b) Except for surrender upon the expiration or earlier termination of the
Term in accordance with the express terms hereof, no surrender to Lessor of this
Lease or of any Property shall be valid or effective unless agreed to and
accepted in writing by Lessor.
(c) Without limiting the generality of the foregoing, upon the surrender
and return of any Property to Lessor pursuant to this Article 25, (i) an
Appraisal shall be delivered to LC Issuer and be prepared in accordance with
requirements of the first two sentences of Section 5.1.16 of the Agency
Agreement, (ii) each Property shall (A) be capable of being immediately utilized
by a third-party purchaser or third-party lessee without further inspection,
repair, replacement, alterations or improvements, licenses, permits, or
approvals, except for any of the foregoing required solely by virtue of the
change in ownership (other than to Lessor or Agent Bank), use or occupancy of
such Property, and shall be free of any conditions that would interfere with
such a purchaser's or lessee's use and enjoyment of such Property in accordance
with Legal Requirements and Environmental Laws, (B) be in accordance and
compliance with all Legal Requirements and Environmental Laws including, without
limitation, any of the foregoing required by virtue of a change in ownership,
use or occupancy of such Property, (C) be free and clear of any charge, lien,
security interest or encumbrance except for Permitted Encumbrances described in
clauses (a), (c) through (i) of the definition thereof, any liens for taxes,
assessments and other governmental charges, which are not then due and payable
and
<PAGE>
43
which are not allocable to the period before the date of termination or
expiration of this Lease, and Lessor Liens and any other liens or encumbrances
arising solely from any acts or omissions of Lessor or anyone claiming by,
through or under Lessor, without the consent of Lessee and (iii) the Lessee
shall represent and warrant as to the accuracy in all respects of each of the
preceding matters to each of, and for the benefit of, Lessor, Agent Bank, and
Beneficiary and any prospective purchaser, lessee or other user, which
representation and warranty shall be in form and substance acceptable to Lessor,
Agent Bank, and any prospective purchaser, lessee or other user, including,
without limitation, a provision that the warranty shall extend for a period from
the closing of the sale or other transfer that is commercially reasonable or
"market" for the specific representation or warranty involved.
(d) In addition to and not in limitation of any other provision of this
Lease, on or prior to the date of such surrender and return of any Property,
Lessor shall have received from Lessee, at Lessee's expense, evidence
satisfactory to Lessor and LC Issuer of compliance with the provisions of this
Article 25, including without limitation, a "Phase I" or then comparable
environmental assessment for such Property addressed and in form and substance
satisfactory to Lessor and LC Issuer or, in lieu of addressing such assessment
to such parties, accompanied by a letter permitting Lessor and LC Issuer to rely
thereon, performed by an independent, licensed professional engineer reasonably
satisfactory to Lessor and LC Issuer, and which assessment (y) shall be
sufficient in scope to determine compliance with the then applicable
Environmental Laws, and (z) shall reveal no actual or potential environmental
liabilities which have not been remediated by the Lessee in compliance with all
Environmental Laws and to the satisfaction of Lessor, Agent Bank and LC Issuer,
and, if such environmental assessment reveals the need for additional review,
Lessee shall have provided such additional information or environmental
assessments as are required by Lessor, Agent Bank and LC Issuer and any
remediation recommended therein to be performed shall have been performed in
compliance with all Environmental Laws and to the satisfaction of Lessor, Agent
Bank and LC Issuer, and evidence of compliance with Article 25(c)(ii) shall have
been provided.
(e) Lessee acknowledges and agrees that a breach of any of the provisions
of this Article 25 may result in damages to Lessor that are difficult or
impossible to ascertain and that may not be compensable at law. Accordingly,
upon application to any court of equity having jurisdiction over a Property,
Lessor shall be entitled to a decree against Lessee requiring specific
performance of the covenants of Lessee set forth in this Article 25 with respect
to such Property.
(f) Upon the request of the Lessor, Lessee shall, at Lessor's expense,
continue to maintain its insurance policies for the Properties for a reasonable
period of time, to the extent permitted by such policies.
<PAGE>
44
26. Separability. Each covenant of Lessee contained in this Lease shall be
separate and independent and the breach of any provision of this Lease by Lessor
shall not discharge or relieve Lessee from its obligation to perform each
obligation of this Lease to be performed by Lessee. If any provision of this
Lease or the application thereof to any Person or circumstance shall to any
extent be invalid and unenforceable, the remainder of this Lease, or the
application of such provision to persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall be valid and shall be enforceable to the extent
permitted by law.
27. Lessee's End of Term Purchase Options.
(a) If (i) no Event of Default hereunder shall have occurred and be
continuing and (ii) this Lease shall not have been earlier terminated, Lessee
shall be entitled, upon written notice to Lessor as hereinafter provided, to (x)
purchase all, but not less than all, of the Properties, effective as of the last
day of the Basic Term, for an amount, payable in immediately available funds,
equal to the sum of the Purchase Prices for all of the Properties or (y) to
return possession of all of the Properties to Lessor as set forth in
subparagraph (b) below. Lessee shall exercise either such option granted
hereunder, by written notice to Lessor to such effect not later than December
31, 2004, which shall be effective as to all Properties (a Termination Notice);
provided, however, if Lessee fails to give Lessor such notice by December 31,
2004 Lessee shall be deemed on such date to have elected to purchase all of the
Properties pursuant to this paragraph (a) of this Article 27. Such actual or
deemed exercise of the purchase option shall constitute a binding obligation of
Lessee to purchase each and every Property and to pay Lessor the sum of the
Purchase Prices for all of the Properties on the Term Termination Date. Any
purchase by Lessee pursuant to this Article 27(a) shall be consummated in
accordance with the terms of Article 16 hereof.
(b) If Lessee has exercised its option in clause (a) (y) above to return
possession of all of the Properties, Lessor shall have the right, and Lessee
shall have the obligation, as agent for Lessor, during the last 360 days of the
Basic Term (the Remarketing Period), to use best efforts to obtain bona fide
cash bids for each Property from one or more prospective purchasers who are
financially capable of purchasing each such Property for cash in accordance with
the terms of this Lease. Upon the request of Lessor and at Lessee's sole cost
and expense, Lessee shall provide Lessor with a written report describing in
reasonable detail Lessee's efforts during the Remarketing Period to obtain bona
fide bids for the purchase of each Property, including, without limitation, a
list of all brokers retained and Persons approached for the purpose of
soliciting bids to purchase such Property. All bids received by Lessor or Lessee
prior to the end of the Basic Term shall be certified by Lessor or Lessee, as
the case may be, in writing, stating the name and address of the bidder and the
amount of such bid. Notwithstanding the foregoing,
<PAGE>
45
LC Issuer shall have the right, but not the obligation, to seek bids for any or
all of the Properties during the Remarketing Period.
Not later than the Term Termination Date, Lessor agrees to sell as many of
the Properties as possible, each such sale of one or more of such Properties to
the cash bidder submitting the highest bid therefor, in accordance with the
terms of Article 16 of this Lease, with such changes as are necessary to reflect
that the sale was to a third party and not Lessee; provided, however, that (x)
any such sale to a third party shall be consummated, and the sales price for
each Property shall be paid to Lessor in immediately available funds, at
Lessor's address hereinabove stated or at any other place in the United States
which Lessor may designate, on or before the Term Termination Date; and (y)
Lessor shall not be obligated to consummate any proposed sale of any Property if
(I) the Net Proceeds from all sales would be less than the Maximum Lessor Risk
Amount with respect to all Properties as of the Term Termination Date and Lessor
has not received the prior written consent of LC Issuer to sell such Property,
or (II) Lessor has not received the amounts, if any, payable by Lessee pursuant
to paragraph (a) of Article 29 with respect to all Properties. After a sale of
any Properties under this clause (b) the provisions of paragraph (a) of Article
29 shall apply with respect thereto and if such a sale has not occurred with
respect to any Properties, the provisions of paragraph (b) of Section 29 shall
apply with respect thereto. At the time of any sale of a Property to a third
party as contemplated by this paragraph(b), Lessee shall deliver an Officer's
Certificate setting forth the Net Proceeds from such sale and a detailed
calculation thereof. In the event that Lessor is permitted to sell less than all
of the Properties and the Net Proceeds from the sale of less than all the
Properties equals at least the sum of all the Termination Values for all of the
Properties and such Net Proceeds have been applied pursuant hereto and Lessee
has paid all accrued and unpaid Basic Rent and Additional Obligations, Lessor
shall transfer such remaining unsold Properties to Lessee in accordance with
Section 16 hereof.
28. Signs; Showing. If Lessee has not given timely notice pursuant to
paragraph (a) of Article 27 of its intention to purchase the Properties on the
Term Termination Date, during the Remarketing Period, Lessor may, subject to all
applicable governmental laws, restrictive covenants, rules and regulations and
without unreasonably interfering with Lessee's business operations, (a) place
signs in, on and around the Properties advertising that the same will be
available for rent or purchase, and (b) upon not less than 48 hours notice to
Lessee, show the Properties to prospective lessees or purchasers at such
reasonable times during normal business hours as Lessor may elect. Lessee will
be responsible for hiring one or more brokers, whose services shall be
compensated on a commission basis, and making the Properties available for
inspection by prospective purchasers. Lessee shall promptly upon notice permit
inspection of the Properties and any maintenance records relating to the
Properties by the Lessor, Agent Bank, LC Issuer and any potential purchasers,
during normal business hours, and shall otherwise do all things necessary to
sell and deliver possession of the Properties to any purchaser. All such
<PAGE>
46
marketing fees, commissions, costs and expenses of the Properties shall be
included among the deductions set forth in clause (ii) of the definition of Net
Proceeds, equitably apportioned among the Properties.
29. End of Term Adjustment. (a) The provisions of this paragraph (a) shall
apply only if a sale of the Properties to a third party pursuant to paragraph
(b) of Article 27 has been consummated on or before the Term Termination Date.
If the Net Proceeds following a sale of Properties, sold in accordance with
paragraph (b) of Article 27 hereof are less than the sum of the Termination
Values for all of the Properties on the Term Termination Date as set forth in
paragraph (a) of Article 27 hereof, Lessee shall, on the Term Termination Date,
pay to Lessor, as an adjustment to the Basic Rent payable under this Lease and
allocable to the Properties, by wire transfer of immediately available federal
funds, an amount equal to such deficiency (the Adjustment Price) plus accrued
and unpaid Basic Rent, if any, due and payable on the Term Termination Date,
plus any Additional Obligations then due and owing to Lessor hereunder;
provided, however, that if all of the Limited Lessee Risk Conditions have been
satisfied as to all of the Properties on the Term Termination Date, the amount
of the Adjustment Price payable by Lessee shall not exceed the then applicable
Maximum Lessee Risk Amount for all Properties; otherwise, if any Limited Lessee
Risk Condition is not satisfied as to any Property, Lessee shall make the
payments specified under Article 29(b)(ii). If the aggregate Net Proceeds
following a sale pursuant to paragraph (b) of Article 27 on or before the Term
Termination Date exceed the sum of the Termination Values for the Properties,
and Lessee shall have paid to Lessor all amounts due and payable on or before
the Term Termination Date, including all Basic Rent, Additional Obligations and
all other amounts then due and payable hereunder, then Lessor shall, on the Term
Termination Date, pay to Lessee by wire transfer of immediately available
federal funds, an amount equal to such excess, as an adjustment to the Basic
Rent payable under this Lease; provided, however, that Lessor shall have the
right to offset against such adjustment payable by Lessor any amounts then due
and payable from Lessee to Lessor hereunder.
(b) If this Lease expires or terminates on the Term Termination Date and a
sale of Properties to Lessee pursuant to paragraph (a) of Article 27 or to a
third party pursuant to paragraph (b) of Article 27 has not been consummated on
or before the Term Termination Date for any reason, then Lessee shall, on the
Term Termination Date, pay to Lessor by wire transfer of immediately available
funds, an amount equal to (i) the Maximum Lessee Risk Amount for all of the
Properties, if all of the Limited Lessee Risk Conditions have been satisfied, or
(ii) the Termination Value for all of the Properties, if any of the Limited
Lessee Risk Conditions for any Property have not been satisfied as of such Term
Termination Date, plus, in either case, the Basic Rent due and payable on the
Term Termination Date, plus all Additional Obligations then due and owing for
all of the Properties. Lessee shall promptly vacate the Properties and surrender
them to Lessor on the Term Termination Date in accordance with the provisions of
this Lease, including Article 25. Notwithstanding the termination of this Lease
with respect to
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47
the Properties, Lessee shall remain liable for the payment of all applicable
sales, excise and other taxes imposed as a result of the sale of the Properties,
other than Excluded Taxes. This obligation shall survive the termination of this
Lease with respect to the Properties and, upon the consummation of the sale of
any Property at any time after the Term Termination Date, Lessee shall pay on
demand, or reimburse Lessor on demand for the payment of, all such sales, excise
and other taxes applicable to such Property. In the event of any such sale of
any Property at any time after the Term Termination Date, Lessor shall retain
the full proceeds of such sale.
(c) The provisions of Articles 27 and 29 are of the essence of this Lease,
and time is of the essence for payment and performance of the obligations of
Lessee set forth therein.
30. Nature of Lessor's Obligations; Limitations on Liability. Anything in
this Lease to the contrary notwithstanding, except with respect to Lessor Liens,
any representation or warranty made by Lessor in its individual capacity in any
Operative Document or clause (v) or (vi) below, it is understood and agreed that
(irrespective of any breach of any representation, covenant, agreement or
undertaking of any nature whatsoever made by Lessor in this Lease or in any
other Operative Document) no recourse shall be had under any rule of law,
statute or constitution or by the enforcement of any assessments or penalties or
otherwise for the payment of any amounts due hereunder or for any claim based
herein or otherwise in respect hereof against (i) Lessor, in its individual
capacity, except as a result of its gross negligence, fraud or willful
misconduct or any holder of the Beneficial Interest therein, or any past,
present or future Affiliate, officer, director, owner, shareholder, agent,
employee or partner thereof or any of its legal representatives, successors or
assigns, (ii) Subsequent Lessor, in its individual capacity, except as a result
of its gross negligence, fraud or willful misconduct or (iii) any Person on the
grounds that in entering into the transactions evidenced by any of the Operative
Documents to which Lessor is a party, Lessor or any other holder of the
Beneficial Interest therein was acting as an agent for the account and benefit
of such Person and that such Person was or was alleged to be the principal of
Lessor (unless Lessor is acting or failing to act in accordance with
instructions of such Person). By entering into this Lease, each party hereto
agrees that (except as specifically provided above) all such liability (a) of
Lessor, in its individual capacity, or any other holder of the Beneficial
Interest therein or any past, present or future partner, officer, director,
shareholder, agent or employee thereof or director or shareholder of any partner
thereof or any of their respective legal representatives, successors or assigns,
(b) of any Subsequent Lessor (unless Lessor is acting or failing to act in
accordance with instructions of such Person) or (c) of such other Person, is and
is being expressly waived and released as a condition of and as a consideration
for the execution of the Operative Documents, and Agent Bank, the Lenders and
their respective successors and assigns agree to look solely to the Trust Estate
and to the sums due and to become due under this Lease, the Agency Agreement and
the Guaranty for the payment of Owner's Obligations.
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48
Nothing contained herein or in any of the Operative Documents, however,
shall be taken to (i) prevent recourse to and the enforcement against the Trust
Estate of and for all liabilities, obligations and undertakings contained in the
Operative Documents, (ii) limit, restrict, or impair the right of any registered
owner of any of the Notes to accelerate the maturity thereof upon the occurrence
of an Event of Default, (iii) prevent the bringing of an action or obtaining of
a judgment against Lessor or any holder of the Beneficial Interest therein;
provided that, except as set forth in (v) and (vi) below and as provided in the
preceding paragraph, none of the Bank or any holder of the Beneficial Interest
nor any past, present, or future partner, officer, director or shareholder
thereof or director or shareholder of any partner thereof or any of their
respective legal representatives, successors or assigns, or any corporation,
partnership (or any partner thereof) or Subsequent Lessor shall have any
individual or personal liability on such judgment and the satisfaction thereof
shall be limited to the Trust Estate and the sums due and to become due under
this Lease, the Agency Agreement or the Guaranty, (iv) prevent the bringing of
an action or obtaining of a judgment to foreclose the lien of any Deed of Trust
or otherwise realize upon the Trust Estate or the sums due or to become due
under this Lease, the Agency Agreement or the Guaranty, including the right to
proceed against Lessee under this Lease or the Agency Agreement, or the
Guarantor under the Guaranty, (v) prevent recourse against the Bank for payment
of net income, franchise, estate, inheritance, succession, transfer or profits
taxes assessed against the Bank that Lessee is not obligated to pay or discharge
under the Lease, or (vi) prevent recourse to the Bank directly for damages
resulting from its fraud, gross negligence or willful misconduct.
The provisions of this Article 30 shall survive the termination of this
Lease and the other Operative Documents.
31. Lessee's Representations and Warranties. Lessee hereby represents and
warrants that (a) Lessee is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation set forth above,
and is qualified to do business in, and is in good standing in, each state or
other jurisdiction in which the nature of its business makes such qualification
necessary (including, without limitation, each state in which a Property is
located); (b) Lessee has the corporate power and authority to execute and
perform this Lease and to lease the Properties hereunder, and has duly
authorized the execution, delivery and performance of this Lease; (c) the
leasing of the Properties from Lessor by Lessee, the execution and delivery of
this Lease and any documents or instruments related hereto, and the compliance
by Lessee with the terms hereof and thereof, and the payments and performance by
Lessee of all of its obligations hereunder and thereunder (i) have been duly and
legally authorized by appropriate corporate action taken by Lessee, (ii) are not
in contravention of, and will not result in a violation or breach of, any of the
terms of Lessee's Certificate of Incorporation (or equivalent document), its
By-Laws, or of any provisions relating to shares of the capital stock of Lessee,
and (iii) will not violate or constitute a breach of any provision of law, any
order of any court or
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49
other agency of government, or any indenture, agreement or other instrument to
which Lessee is a party, or by or under which Lessee or any of Lessee's property
is bound, or be in conflict with, result in a breach of, or constitute (with due
notice and/or lapse of time) a default under any such indenture, agreement or
instrument, or result in the creation or imposition of any lien upon any of
Lessee's property or assets (other than pursuant to the Operative Documents);
(d) this Lease and all other Operative Documents to which Lessee is a party have
been executed by the duly authorized officer or officers of Lessee and delivered
to Lessor and are the legal, valid and binding obligations of Lessee,
enforceable in accordance with their terms; (e) neither the execution and
delivery of this Lease and such other Operative Documents, nor the payment and
performance by Lessee of all of its obligations hereunder and thereunder,
requires the consent or approval of, the giving of notice to, or the
registration, filing or recording with, or the taking of any other action in
respect of, any federal, state, local or foreign government or governmental
authority or agency or any other Person that has not been obtained or made; (f)
other than the Operative Documents, no mortgage, deed of trust, or other lien
which now covers or affects, or which may hereafter cover or affect, any
property or interest therein of Lessee, now attaches or hereafter will attach to
any Property or any portion thereof, the proceeds thereof or this Lease, or in
any manner affects or will affect adversely Lessor's rights and security
interest therein; (g) on the Property Closing Date with respect to each
Property, Lessee will hold all licenses, certificates and permits from
governmental authorities necessary to use and operate such Property in
accordance with the provisions of this Lease (except for those that are not yet
obtainable or not material); and (h) there is no litigation or other proceeding
now pending or, to the best of Lessee's knowledge, threatened, against or
affecting Lessee, in any court or before any regulatory commission, board or
other administrative governmental agency which would directly or indirectly
adversely affect or impair the title of Lessor to the Properties, or which, if
decided adversely to Lessee, would materially adversely affect the business
operations or financial condition of Lessee.
32. Granting of Easements, Etc. If no Event of Default hereunder has
occurred and is continuing, Lessor shall from time to time upon the written
request of Lessee join with Lessee (and at Lessee's sole cost and expense), with
respect to their interests in the Properties to (i) grant easements, licenses,
rights of way and other rights and privileges in the nature of easements for the
purposes of providing utilities and the like to the Properties or for purposes
of operating the Properties and adjacent properties (such as office park
reciprocal easement agreements and the like), (ii) release existing easements
and appurtenances relating to the provision of utilities and the like to the
Properties or for purposes of operating the Properties and adjacent properties
(such as office park reciprocal easement agreements and the like) and (iii)
execute and deliver any instrument, in form and substance reasonably acceptable
to Lessor, necessary or appropriate to make or confirm such grants or releases
to any Person, with or without consideration, but only if such grant or release
is in compliance with the terms of the Deed of Trust and Lessee shall obtain the
consent of Agent Bank to any such release or grant (at
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50
Lessee's cost, including the legal fees and expenses of Agent Bank), which
consent shall not unreasonably be withheld; provided that such grant or release
does not (x) interfere with and is not detrimental to the conduct of business on
the affected Property, (y) impair the usefulness or useful life of such Property
or (z) impair the fair market value of such Property or cause a default under
any other agreement to which Lessee is a party or benefitting such Property
which default would be reasonably likely to have an adverse effect on the
usefulness or useful life of such Property or impair the fair market value of
such Property and shall have delivered such other instruments, certificates,
surveys, title insurance policy endorsements and opinions of counsel as Lessor
or Agent Bank may reasonably request; and provided further that Lessor, Agent
Bank and LC Issuer shall have the right, but not the obligation, to obtain an
independent Appraisal, at the expense of the Person requesting such appraisal,
to verify the certification of Lessee as to the effect of the proposed action on
fair market value and if such appraisal concludes that the proposed action will
impair the fair market value of such Property by 1% or more, Lessee shall
reimburse Lessor, Agent Bank or LC Issuer, as applicable, for the costs of such
appraisal and Lessor, Agent Bank and LC Issuer shall either withhold their
consents or condition their consents upon payment by Lessee of an amount equal
to the diminution of fair market value. Any such request by Lessee shall be
accompanied by an Officer's Certificate as to compliance with the conditions set
forth in the foregoing clauses (x), (y) and (z).
33. Special Purchase Rights of Lessee; Exchange of Properties.
(a) Lessee may, upon compliance with the provisions of this Article 33,
(i) in the event that Lessee shall determine that any change in generally
accepted accounting principles or the implementation thereof subsequent to the
date of execution and delivery hereof would (x) preclude Lessee from treating
this Lease or the Properties as "off-balance sheet" for accounting purposes or
(y) require that Lessor's financial statements be consolidated with those of
Guarantor or Lessee for accounting purposes, terminate this Lease with respect
to all, but not less than all, of the Properties, on any Payment Date during the
Term of this Lease, by purchasing all of the Properties for the purchase price
set forth in paragraph (c) of this Article 33, payable in immediately available
Federal funds; (ii) on any Payment Date during the Basic Term, terminate this
Lease with respect to less than all of the Properties, by causing a property or
properties (each such property an Exchange Property and, collectively, Exchange
Properties) to be conveyed to Lessor and subjected to this Lease as a Property
in exchange for each Property with respect to which Lessee has elected to
terminate this Lease pursuant to this clause (ii) provided that the aggregate
Cost of the Property allocable to all Properties with respect to which this
Lease is terminated pursuant to this clause (ii) does not at any time exceed 15%
of the aggregate Cost of the Properties as to all Properties; and (iii) on any
Payment Date occurring after July 31, 2002, terminate this Lease with respect to
all, but not less than all, Properties, by purchasing all of the Properties for
the purchase price set forth in paragraph (c) of this Article 33, payable in
immediately available Federal funds. Termination of this Lease with respect to
all
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51
of the Properties pursuant to clauses (i) or (iii) of this paragraph (a) of this
Article 33 shall be effected in accordance with the provisions of Article 16.
(b) Lessee shall give Lessor, Agent Bank and LC Issuer at least 30 days'
prior written notice of its election to effect a termination of this Lease or an
exchange of an Exchange Property pursuant to this Article 33, which notice shall
specify the Payment Date on which such termination or exchange shall be
effected.
(c) The purchase price for the Properties payable by Lessee pursuant to
clauses (i) and (iii) of paragraph (a) of this Article 33 shall be equal to the
sum of (i) the sum of the Termination Values for all of the Properties as of the
Payment Date on which the purchase is to occur, plus (ii) all accrued and unpaid
Basic Rent and Additional Obligations payable hereunder, plus (iii) all
applicable sales, excise and other taxes imposed as a result of the sale of such
Properties, other than Excluded Taxes, plus (iv) all other amounts then due and
payable by Lessee under the Operative Documents, plus (v) an amount equal to the
costs and expenses of Lessor (including reasonable attorneys' fees) reasonably
incurred in connection with such sale.
(d) Upon payment of all amounts payable by Lessee pursuant to paragraph
(c) of this Article 33, this Lease shall terminate and the Properties shall be
conveyed to Lessee pursuant to Article 16 hereof. If Lessee fails to purchase
all of the Properties on the Payment Date specified in the notice delivered
pursuant to paragraph (b) of this Article 33, such failure shall immediately
constitute an Event of Default hereunder.
(e) In the event that Lessee shall elect to cause an Exchange Property to
be conveyed to Lessor in exchange for any Property pursuant to clause (ii) of
paragraph (a) of this Article 33, the following conditions shall be satisfied:
(A) The Exchange Property shall (i) be a warehouse storage facility of
the same general type and use as the Property with respect to which
such exchange is being made, and (ii) if construction of the
Exchange Property was completed within one year prior to such
substitution, have a cost equal to or greater than the Cost of the
Property related to the replaced Property.
(B) Lessor and Agent Bank shall have received an Appraisal and a "Phase
I" Environmental Report of the Exchange Property made by an
independent appraiser and environmental engineer, respectively,
selected by Lessee, subject to the approval of Lessor, Agent Bank
and LC Issuer, which approval shall not be unreasonably withheld,
which Appraisal and Environmental Report shall have been made at the
expense of Lessee. Such Appraisal shall be delivered at least 30
days prior to the date of such proposed substitution and shall
indicate that the fair
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52
market value and useful life of the Exchange Property is equal to or
greater than the fair market value and useful life of the affected
Property at the time of the substitution and at the end of each
remaining year of the Maximum Lease Term (assuming in each case that
the affected Property had been maintained and operated in accordance
with the terms of this Lease). Fair market value shall be determined
by the same methodology as was employed by the original appraiser in
the original appraisal of the replaced Property. Such Environmental
Report shall be delivered at least 15 days prior to the date of such
proposed substitution, shall speak as of a date not more than six
months prior to the date of such proposed substitution and shall not
disclose any conditions which are not satisfactory to Lessor, Agent
Bank or LC Issuer. Lessee shall certify to the best of its knowledge
that as of the substitution date there has been no change in the
status of the Exchange Property from that described in the
Environmental Report with regard to environmental matters. If such
Environmental Report recommends further review, Lessee, at its own
expense, will provide such additional environmental assessments as
are required by Lessor, Agent Bank or LC Issuer. The results of such
reports shall be satisfactory to Lessor, Agent Bank and LC Issuer.
Lessor, LC Issuer and Agent Bank and each holder of indebtedness
secured by the Deed of Trust shall receive a letter from the
environmental engineer, permitting such addressee to rely on such
Environmental Reports.
(C) Lessor and Agent Bank shall have received a Lease Supplement in the
form of Schedule H annexed hereto and, if appropriate, a memorandum
or short form of lease with respect thereto, duly authorized,
executed and delivered by Lessee, as lessee, adding and subjecting
the Exchange Property to, and releasing the affected Property from,
the terms of this Lease, and containing such other terms as Lessor,
Agent Bank or LC Issuer or their respective counsel may reasonably
deem necessary or appropriate by reason of the transactions
contemplated by this paragraph (d).
(D) On the date of substitution, Lessor shall have received a deed
conveying to Lessor good and marketable fee simple title to the
Exchange Property, subject only to Permitted Encumbrances. Lessee
shall have caused to be executed and delivered to Lessor, Agent Bank
and LC Issuer (x) a supplement to the Assignment, including the
legal description of the Exchange Property, and (y) a new Deed of
Trust and LC Deed of Trust with respect to such Exchange Property,
each in form sufficient for recording and enforceability in the
applicable jurisdiction. Lessor, Agent Bank and LC Issuer shall have
received (i) an owner's and a mortgagee's policy of title insurance,
as applicable, on the
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53
standard ALTA form formerly known as 1970 form (or if the 1970 form
is not available in a particular jurisdiction, a more recent form
which has been endorsed or had exclusions removed to achieve the
equivalent) with respect to the Exchange Property (or a commitment
therefor) with mechanics' lien coverage and containing no survey
exception, insuring Lessor or Agent Bank or LC Issuer, respectively,
against loss with respect to the Exchange Property and otherwise
reasonably satisfactory to Lessor, Agent Bank and LC Issuer and (ii)
a survey of the Exchange Property, satisfactory in form and
substance to Lessor, Agent Bank and LC Issuer, certified within 90
days prior to the date of substitution, by a surveyor licensed in
the state in which the Exchange Property is located.
(E) All necessary approvals, authorizations and consents of all
governmental bodies (including courts) having jurisdiction with
respect to the transactions contemplated by this paragraph (d) shall
have been obtained and all taxes (which, if permitted by law, may be
paid in installments), fees and other charges payable in connection
therewith shall have been paid.
(F) Lessor, Agent Bank and LC Issuer shall have received such other
instruments and such certificates, including without limitation, an
estoppel certificate from Lessee, evidence of the insurance required
by this Lease, certificates as to representations and warranties,
and opinions of counsel, each in form and substance satisfactory to
Lessor, Agent Bank and LC Issuer, in connection with the
transactions contemplated by this paragraph (d) as Lessor, Agent
Bank and LC Issuer may reasonably request. Where required, such
instruments shall have been duly recorded by Lessee. Lessee shall
pay all fees and expenses in connection with the transaction
contemplated by this paragraph (d), including reasonable attorney's
fees of Lessor, Agent Bank and LC Issuer.
If such conditions are satisfied, Lessor shall convey the affected
Property to Lessee in accordance with the provisions of Article 16, terminate
this Lease with respect to the affected Property and enter into a Lease
Supplement subjecting the Exchange Property to this Lease and releasing the
affected Property from this Lease, and such Exchange Property shall thereafter
constitute a Property and for purposes of the Schedules attached hereto and any
calculations in this Lease, shall be treated as if it were the affected
Property.
34. Additional Purchase Rights of Lessee.
(a) Lessee may, upon compliance with the provisions of this Article 34,
terminate this Lease with respect to all, but not less than all, of the
Properties, on any Payment Date occurring on or prior to July 31, 2002 during
the Basic Term, by purchasing all of the Properties
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54
for the purchase price set forth in paragraph (c) of this Article 34, payable in
immediately available Federal funds. Such transaction shall be effected in
accordance with the provisions of Article 16.
(b) Lessee shall give Lessor, Agent Bank and LC Issuer at least 30 days'
prior written notice of its election to effect a termination of this Lease and
purchase of the Properties pursuant to this Article 34, which notice shall
specify the Payment Date on which such termination and purchase shall be
effected.
(c) The purchase price for the Properties payable by Lessee pursuant to
this Article 34 shall be equal to the sum of (i) the sum of the Termination
Values for all of the Properties as of the Payment Date on which the purchase is
to occur, plus (ii) all accrued and unpaid Basic Rent and Additional Obligations
payable hereunder, plus (iii) all applicable sales, excise and other taxes
imposed as a result of the sale of such Properties, other than Excluded Taxes,
plus (iv) all other amounts then due and payable by Lessee under the Operative
Documents, plus (v) an amount equal to the costs and expenses of Lessor
(including reasonable attorneys' fees) reasonably incurred in connection with
such sale, including but not limited to Breakage Costs, plus (vi) the applicable
Reinvestment Premium.
(d) Upon payment of all amounts payable by Lessee pursuant to paragraph
(c) of this Article 34, this Lease shall terminate and the Properties shall be
conveyed to Lessee pursuant to Article 16 hereof. If Lessee fails to purchase
all of the Properties on the Payment Date specified in the notice delivered
pursuant to paragraph (b) of this Article 34, such failure shall immediately
constitute an Event of Default hereunder.
35. Recording. Lessor and Lessee will execute, acknowledge, deliver and
cause to be recorded or filed in the manner and place required by any present or
future law, this Lease or a memorandum thereof, and all other instruments,
including, without limitation, financing statements, continuation statements,
releases and instruments of similar character, which shall be reasonably
requested by Lessor, Agent Bank, Lessee or LC Issuer as being necessary or
appropriate in order to protect their respective interests in the Properties or
to publish notice of or to create, maintain and protect or terminate or release
the lien and security interest intended to be created by any Deed of Trust upon,
and the interest of Agent Bank in, the Properties. Lessee shall pay all
recording and filing fees and taxes, stamp taxes, mortgage or lease taxes, and
other costs of such recordation and filing. If Lessee shall fail to comply with
this Article 34 within five days after notice from Lessor, Lessor shall be and
is hereby irrevocably appointed the agent and attorney-in-fact of Lessee to
comply therewith, but this sentence shall not prevent any default in the
observance of this Article 35 by the Lessee from constituting an Event of
Default in accordance with the provisions of paragraph (a)(ii) of Article 21
hereof.
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55
36. Miscellaneous. This Lease and the other Operative Documents embody the
entire agreement between Lessor and Lessee relating to the subject matter hereof
and supersedes all prior agreements and understandings relating to such subject
matter. This Lease shall be binding upon and shall inure to the benefit of and
be enforceable by the parties hereto and their respective successors and assigns
permitted hereunder. No term or provision hereof may be amended, changed,
waived, discharged or terminated orally, but only by an instrument specifically
evidencing an intent to amend signed by the party against whom enforcement
thereof is sought and with the prior written consent of Agent Bank and LC
Issuer. No failure, delay, forbearance or indulgence on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, or as an acquiescence in any breach, nor shall any single or partial
exercise of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. Any
provision of this Lease which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
This Lease and the rights and obligations in respect hereof shall be governed
by, and construed and interpreted in accordance with, the laws of the
Commonwealth of Massachusetts, except to the extent that in seeking to enforce
this Lease with respect to a Property, the laws of the state in which such
Property is located require that its laws govern, notwithstanding the express
intent of the parties hereto. Lessee hereby agrees to non-exclusive personal
jurisdiction and venue in the state courts of the Commonwealth of Massachusetts
(City of Boston) and the United States District Courts located in the
Commonwealth of Massachusetts, the choice of such forum to be at Lessor's sole
discretion. All headings are for reference only and shall not be considered as
part of this Lease. This Lease may be executed in any number of counterparts,
each of which shall be an original, and such counterparts together shall
constitute but one and the same instrument. Lessee may cause to be performed any
obligation of Lessee under this Lease in lieu of performing such obligation
itself.
Agent Bank, the Lenders, Beneficiary and LC Issuer shall be third party
beneficiaries of this Lease with respect to those provisions that explicitly or
implicitly are for the benefit of Agent Bank, the Lenders, Beneficiary or LC
Issuer.
The dating of this Lease "as of July 1, 1999" is for convenience of
reference only, and this Lease shall become effective only upon its execution
and delivery by Lessor and Lessee.
To the extent that (not withstanding Article 37 hereof) this Lease is
characterized under applicable law as being a financing transaction, Lessor and
Lessee hereby acknowledge and agree as follows: (1) the amount of interest shall
be equal to the difference between (a) the aggregate amount of payments due
under this Lease (the Payments) and (b) the aggregate cost of
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56
the Properties to Lessor (the Cost); (2) Lessee has been informed of the Cost
or, in the alternative, acknowledges that it has been given an opportunity to
determine the Cost; (3) the rate of interest agreed to and specified by Lessor
and Lessee in such event shall be that rate per annum that may be calculated
based upon the Cost (i.e. the principal amount) and the Payments (i.e., the
principal and interest payments); and (4) if the rate of interest so calculated
is ever deemed to exceed the maximum rate permitted by applicable law, then the
Payments shall be automatically reduced to ensure that such rate of interest
does not exceed the maximum rate permitted by applicable law.
EACH OF THE LESSOR AND THE LESSEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS LEASE OR THE TRANSACTIONS
CONTEMPLATED HEREBY. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY
MADE BY EACH PARTY HERETO. EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF
THIS LEASE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS
THIS WAIVER WITH COUNSEL.
37. Ownership of the Properties.
(a) Lessor and Lessee intend that (i) for financial accounting purposes
with respect to Lessee, this Lease will be treated as an "operating lease"
pursuant to Statement of Financial Accounting Standards No. 13, as amended, but
(ii) for federal and all state and local income tax purposes, (A) this Lease
will be treated as a financing arrangement, (B) Agent Bank, the Lenders and any
subsequent registered owners of the Notes will be deemed lenders making loans
for the benefit of the Lessee, which loans are secured by all of the Properties,
and (C) Lessee will be treated as the owner of all of the Properties and will be
entitled to all tax benefits ordinarily available to an owner of a property
similar to the Properties for such tax purposes. Lessor and Beneficiary shall
take no action inconsistent with such intent for tax purposes, provided, that
nothing in this Article 37 shall be deemed to restrict Lessor's right to
exercise any remedies after the occurrence of an Event of Default.
(b) Lessee hereby grants and conveys, with power of sale, to Lessor a lien
on and security interest in all of the Lessee's right, title and interest in and
to the Properties, together with any substitutions, replacements and additions
thereto, all of Lessee's rights in and to the Approved Plans and all general
intangibles related to the Properties and all of Lessee's rights, claims and
damages arising from warranties (whether express or implied) of architects,
contractors and subcontractors and any other vendors with respect to the
development and
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57
construction of the Improvements and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, securities or other property,
whether in the form of cash, investments, securities or other property. Lessor
(upon request) and Lessee shall, to the extent consistent with this Lease, take
such actions and execute, deliver, file and record such other documents,
financing statements, mortgages and deeds of trust as may be necessary to ensure
that, if this Lease were deemed to create a lien on and security interest in the
Properties in accordance with this Article 37, such security interest would be
deemed to be a perfected lien on and security interest of first priority under
applicable federal, state and local law, subject only to Permitted Encumbrances
and Lessor Liens, and will be maintained as such throughout the Term of this
Lease.
(c) Lessor and Lessee intend and agree that with respect to the nature of
the transaction evidenced by this Lease for all commercial law purposes and in
the context of the exercise of remedies under the Operative Documents,
including, without limitation, in the case of any insolvency or receivership
proceedings or a petition under the United States bankruptcy laws or any other
applicable insolvency laws or statute of the United States of America or any
State or Commonwealth thereof affecting Lessee, Lessor, Agent Bank or the
Lenders or any enforcement or collection actions and for all other purposes
(except as provided in paragraph (a) of this Article 37), the transactions
evidenced by this Lease shall be regarded as loans made by Agent Bank and the
Lenders as unrelated third party lenders to Lessee secured by all of the
Properties (it being understood that Lessee hereby mortgages and warrants and
grants a lien on and security interest in all of the Properties to Lessor and
Agent Bank to secure such loans).
(d) Lessor and Lessee further intend and agree that, for the purpose of
securing Lessee's obligations for the repayment of the above-described loans
from Agent Bank and the Lenders to Lessee, (i) this Lease shall also be deemed
to be a security agreement and financing statement within the meaning of Article
9 of the Uniform Commercial Code and a real property mortgage; (ii) the
conveyance provided for in paragraph (b) of this Article 37 shall be deemed to
be a grant by Lessee to Lessor and Agent Bank of a mortgage lien and security
interest in all of the Lessee's right, title and interest in and to the
Properties, together with any substitutions, replacements and additions thereto,
all of the Lessee's rights in and to the Approved Plans and all general
intangibles related to the Properties and all of Lessee's rights, claims and
damages arising from warranties (whether express or implied) of architects,
contractors and subcontractors with respect to the development and construction
of the Improvements, and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, investments, securities or other
property, whether in the form of cash, investments, securities or other property
(it being understood that Lessee hereby mortgages and warrants and grants a lien
on and security interest in all of the Properties to Lessor and Agent Bank to
secure the loans described in paragraph (a) above); (iii) the possession by
Lessor or any of its agents of notes and such other items of property as
constitute instruments, money, negotiable documents or chattel
<PAGE>
58
paper shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-305 of the Uniform
Commercial Code; and (iv) notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from financial intermediaries,
bankers or agents (as applicable) of Lessee shall be deemed to have been given
for the purpose of perfecting such security interest under applicable federal,
state and local law. Lessor (upon request) and Lessee shall, to the extent
consistent with this Lease, take such actions and execute, deliver, file and
record such other documents, financing statements, mortgages and deeds of trust
as may be necessary to ensure that, if this Lease were deemed to create a lien
on and security interest in the Properties in accordance with this Article 36,
such lien and security interest would be deemed to be a perfected lien on and
security interest of first priority under applicable federal, state and local
law, subject only to Permitted Encumbrances, and will be maintained as such
throughout the Term of this Lease.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Lease Agreement as
of the day and year first above written.
LESSOR:
IRON MOUNTAIN STATUTORY TRUST -
1999
By: FIRST UNION NATIONAL BANK, not in its
individual capacity except as
expressly set forth herein, but solely
as Trustee under the Owner Trust
Agreement dated as of July 1, 1999.
By: /s/ Diane M. Welsh
----------------------------------
Name: DIANE M. WELSH
Title: Vice President
LESSEE:
IRON MOUNTAIN RECORDS
MANAGEMENT, INC.
By: /s/ J.P. Lawrence
----------------------------------
Name: J.P. Lawrence
Title: VP, Treasurer
[LEASE AGREEMENT]
<PAGE>
APPENDIX I - Definitions
Acquisition Outside Date means the earlier to occur of (i) the date upon
which the aggregate of Loans outstanding equals the Maximum Loan Amount, or (ii)
January 1, 2001.
Actual Knowledge by a Person or Persons with respect to the occurrence or
non-occurrence of an event, means knowledge of such occurrence or non-occurrence
by the officer of such Person or Persons in the best organizational position to
have such knowledge.
Addition has the meaning set forth in Article 10 of the Lease.
Additional Improvements means, with respect to any Property, the
improvements, constructed and installed on such Property under and pursuant to
Section 10(d) of the Lease in accordance with Approved Plans.
Additional Obligations has the meaning set forth in paragraph (b) of
Article 3 of the Lease.
Adjusted LIBOR means, for any LIBOR Period, an interest rate per annum
equal to the rate per annum obtained by dividing (a) LIBOR by (b) a percentage
equal to 1.00 minus the LIBOR Reserve Percentage for such LIBOR Period.
Adjustment Price has the meaning set forth in paragraph (a) of Article
29(a) of the Lease.
Advance has the meaning set forth in Section 3.1(a) of the Agency
Agreement.
Affiliate, means, with respect to any Person, a Person who, directly or
indirectly, through one or more intermediaries, controls, or is controlled by or
is under common control with, such Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
Agency Agreement means the Agency Agreement, dated as of July 1, 1999, by
and between Owner and Agent, as amended or supplemented from time to time.
Agent means Iron Mountain Records Management, Inc., a Delaware
corporation, in its capacity as agent under the Agency Agreement.
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- 2 -
Agent Bank means Wachovia Capital Investments, Inc., as agent for the
Lenders under the Loan Agreement and the other Operative Documents, or any
successor Agent Bank appointed pursuant to Section 8.6 of the Loan Agreement.
Agent/Lessee has the meaning set forth in the Preliminary Statement of the
Loan Agreement.
Alternate Base Rate means that fluctuating interest rate per annum in
effect from time to time equal the greater of (x) the Prime Rate and (y) the
Overnight Federal Funds Rate plus 50 basis points (.50%).
Applicable Leverage Ratio has the meaning set forth in the Credit
Agreement.
Applicable Officer means the Treasurer, any Assistant Treasurer,
Controller, Chief Accounting Officer or Chief Financial Officer of any Person,
or if such Person no longer has an officer with such title, the chief executive
officer or other officer performing the equivalent function.
Appraisal has the meaning set forth in Section 5.1.16 of the Agency
Agreement.
Approved Plans has the meaning set forth in Section 10(d) of the Lease.
Assignment means the Assignment of Lease and Agency Agreement, dated as of
July 1, 1999, from the Owner to Agent Bank and consented to by Lessee/Agent, as
amended, modified or supplemented from time to time, as permitted thereby.
Assignment and Acceptance means an assignment and acceptance entered into
by a Lender and an Eligible Assignee or an Affiliate of a Lender, and accepted
by the Agent Bank and, if required by Section 10.14 of the Loan Agreement, by
the Owner, in substantially the form of Exhibit E of the Loan Agreement.
Assignment of Guaranty means the Assignment of Guaranty dated as of July
1, 1999, as amended or supplemented from time to time, from Owner, as assignor,
to Agent Bank, as assignee and consented to by Guarantor.
Authorized Representative means, when used with respect to any Person, any
officer with the corporate trust office of Owner, including any Vice President,
Assistant Vice President, Secretary, Assistant Secretary or any other officer of
such Person customarily performing functions similar to those performed by any
of the above designated officers and also, with
<PAGE>
- 3 -
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Bank means First Union National Bank, in its individual capacity, and any
successor thereto as trustee under the Owner Trust Agreement.
Banking Day means any day except a Saturday, Sunday or other day on which
commercial banks in Georgia are authorized by law to close and on which dealings
in U.S. dollar deposits are conducted by and between banks in the London
interbank market.
Bankruptcy Laws means Title 11 of the United States Code or any other
Federal or state bankruptcy, insolvency or similar law, now or hereafter in
effect in the United States relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts of any Person.
Basic Rent has the meaning set forth in paragraph (a) of Article 3 of the
Lease.
Basic Term has the meaning set forth in Article 2 of the Lease.
Basic Term Commencement Date means the earlier to occur of (i) the first
day of the month following the date upon which the aggregate of all Loans
outstanding equals the Maximum Loan Amount, or (ii) January 1, 2001.
Beneficial Interest means the entire right, title and interest of the
Beneficiary in and to the Trust Estate.
Beneficiary means, collectively, the Secured Beneficiary and the Equity
Beneficiary.
Breakage Costs has the meaning set forth in Section 2.5.6(b) of the Loan
Agreement.
Business Day means any day other than a Saturday, Sunday or other day on
which banks are authorized to be closed in Georgia, New York, Connecticut or
Massachusetts.
Closing means the Initial Closing, any Property Closing or any funding
with respect to Additional Improvements.
Closing Date means the date upon which a Closing is to occur.
Code means the Internal Revenue Code of 1986, as amended from time to
time.
<PAGE>
- 4 -
Commitment means, for any Lender, the Remaining Maximum Loan Amount
multiplied by such Lender's Percentage.
Completion Date has the meaning set forth in Section 10(d) of the Lease.
Conveyance Document means a general warranty deed dated on or about any
Closing Date from the seller to Owner and any other bill of sale, assignments or
other instrument conveying a Property or a portion thereof to Owner.
Cost of the Property means as to any Property the sum of (i) the cost of
the acquisition of such Property including, without limitation, (x) the
Additional Improvements and (y) any real estate or other related transfer taxes
and (ii) certain transaction costs relating to the transactions contemplated
hereby, including legal fees and expenses, transactional fees, closing fees,
placement agent fees, appraisal fees, environmental site assessment fees and
title and survey expenses, all as determined in good faith by Agent and set
forth in an Officer's Certificate accompanied by supporting documentation and
materials satisfactory to Owner and Agent Bank.
Credit Agreement means the Second Amended and Restated Credit Agreement,
dated as of September 26, 1997, as amended by Amendment No. 1 dated as of
December 31, 1997, Amendment No. 2 dated as of November 9, 1998, Amendment No. 3
dated as of February 26, 1999 and Amendment No. 4 dated as of April 16, 1999 and
Amendment No. 5 dated as of July 14, 1999, each among Guarantor, as borrower,
and the banks named therein and The Chase Manhattan Bank, as agent, as amended,
amended and restated, modified, extended, refinanced or supplemented from time
to time, except to the extent that the Operative Documents refer to it as in
effect on the date hereof.
Debt Reinvestment Premium means, as of any date of determination, that
portion of the Reinvestment Premium which is equal to the product of (a) the
Reinvestment Premium as of such date multiplied by (b) the fraction obtained by
dividing (i) the aggregate outstanding principal amount of the Notes as of such
date by (ii) the sum of the amount in clause (i) plus the Equity Investment as
of such date.
Deed of Trust Beneficiary means, collectively, the Person named as the
beneficiary under any Deed of Trust.
Deed of Trust Trustee means, collectively, the Person who acts as deed of
trust trustee under any Deed of Trust.
Deeds of Trust means the Mortgages, Deeds of Trust, Deeds to Secure Debt
Security Agreements and Fixture Filings or similar instruments hereafter granted
by Owner to a deed of
<PAGE>
- 5 -
trust trustee and to Agent Bank for the benefit of Agent Bank as agent for the
registered owners of the Notes secured thereby, as the same may be amended,
modified or assigned from time to time, granting a first mortgage or deed of
trust lien (or conveying title to secure a debt as applicable,) on Owner's
interests in each of the Properties.
Default means any act or occurrence which, with notice, lapse of time or
both, would constitute an Event of Default under any Operative Document.
Depositary has the meaning set forth in paragraph (b) of Article 12 of the
Lease.
Dispute Notice has the meaning set forth in Article 12(b)(ii) of the
Lease.
EBITDA has the meaning set forth in the Guaranty.
Eligible Assignee means any of (a) a commercial bank or finance company or
other institutions that typically engage in transactions of this type, organized
under the laws of the United States, or any State thereof or the District of
Columbia, and having total assets in excess of $1,000,000,000; (b) a savings and
loan association or savings bank organized under the laws of the United States,
or any State thereof or the District of Columbia, and having a net worth of at
least $1,000,000,000 calculated in accordance with generally accepted accounting
principles; (c) a commercial bank organized under the laws of any other country
having total assets in excess of $1,000,000,000; (d) the central bank of any
country; and (e) if, but only if, an Event of Default has occurred and is
continuing, any other bank, insurance company, commercial finance company or
other financial institution approved by the Agent Bank, such approval not to be
unreasonably withheld.
Environmental Laws means any and all applicable federal, state and local
laws relating to the environment, land use, protection of national resources,
regulation or control of hazardous substances or environmental health and
safety, including obligations under the common law, ordinances, rules,
regulations, permits, approvals, orders, decrees, consent orders, private
agreements to which Lessee is a party or by which it is bound (such as
covenants, conditions and restrictions) and publications having the force of
law, as any of the foregoing may have been or may be from time to time amended,
supplemented or supplanted, and any other federal, state or local laws,
including obligations under the common law, ordinances, rules, regulations,
private agreements (such as covenants, conditions and restrictions) and
publications, now or hereafter existing relating to the environment, land use,
protection of natural resources, regulation or control of Hazardous Substances
or environmental health and safety and includes but shall not be limited to the
Resource Conservation and Recovery Act (42 U.S.C. ss.6901 et seq.), as amended
by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. ss.9601 et
seq.), as amended by the
<PAGE>
- 6 -
Superfund Amendments and Reauthorization Act of 1986, the Hazardous Materials
Transportation Act (49 U.S.C. ss.1801 et seq.), the Toxic Substances Control Act
(15 U.S.C. ss.2601 et seq.), Clean Air Act (42 U.S.C. ss.7401 et seq.), the
Clean Water Act (33 U.S.C. ss.1251 et seq.), the Federal Insecticide, Fungicide
and Rodenticide Act (7 U.S.C. ss.136 et seq.), the Occupational Safety and
Health Act (29 U.S.C. ss.651 et seq.).
Environmental Permits has the meaning set forth in paragraph (i) of
Article 9 of the Lease.
Equity Beneficiary means JH Equity Realty Investors, Inc., a Delaware
corporation, together with its successors and assigns as a beneficiary under the
Owner Trust Agreement.
Equity Investment means the outstanding amount from time to time of the
equity investment made by the Beneficiary on any Property Closing Date, and
which shall at all times be 4% of the Cost of the Properties as of the date of
determination.
Equity Reinvestment Premium means, as of any date of determination, that
portion of the Reinvestment Premium which is equal to the product of (a) the
Reinvestment Premium as of such date multiplied by (b) the fraction obtained by
dividing (i) the Equity Investment as of such date by (ii) the sum of the amount
in clause (i) plus the aggregate outstanding principal amount of the Notes as of
such date.
Equity Return means a return on the amount of the Equity Investment
outstanding from time to time with respect to the Properties equivalent to
interest thereon calculated in accordance with Schedule B of the Lease.
Equity Return Rate means (i) LIBOR plus 350 basis points, for all
Properties as to which the LIBOR Rate is applicable under the Loans with respect
to such Properties, and (ii) the Alternate Base Rate plus 350 basis points per
annum for all Properties as to which the Alternate Base Rate is applicable.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
ERISA Affiliate means any Person that is under "common control" with
Lessee, Agent or any Subsidiary (within the meaning of Section 414(b) or (c) of
the Code or Section 4001(a)(14) of ERISA).
Event of Default when used in a particular Operative Document has the
meaning set forth therein unless otherwise indicated.
<PAGE>
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Exchange Property has the meaning set forth in paragraph (a) of Article 33
of the Lease.
Excluded Payments means (i) indemnity payments payable directly to the
Owner, the Beneficiary, the LC Issuer or Bank by Lessee or Agent pursuant to
Articles 8 or 9 of the Lease or pursuant to Section 2.3, of the Agency
Agreement, as the case may be, (ii) amounts payable directly to the Owner, the
Beneficiary, the LC Issuer or Bank under the Lease in respect of public
liability insurance proceeds, (iii) fees payable to Bank for its services as the
Trustee, (iv) fees and expenses payable to or on behalf of the Owner, the
Beneficiary, the LC Issuer or Bank, pursuant to Section 10.9 of the Agency
Agreement and (v) any right to enforce the payment against Lessee or Agent of
any amount described in clauses (i), (ii), (iii) or (iv).
Excluded Taxes has the meaning set forth in paragraph (a) of Article 6 of
the Lease.
Existing Improvements means the buildings, improvements, fixtures and
other property to be acquired simultaneously with any Land Parcel by
Agent/Lessee on behalf of Owner pursuant to the Agency Agreement on each
Property Closing Date, but excluding any personal property which constitutes
Trade Fixtures or Lessee's property pursuant to Section 10(d) of the Lease and
which is placed on any Land Parcel by Lessee for Lessee's own account and not as
agent for Owner under the Agency Agreement.
Expiration Date has the meaning specified in Section 4.1 of the Deed of
Trust.
Force Majeure means any fire, explosion, accident, flood, storm,
earthquake or other casualty or strike, lockout, act of God, or other
circumstance outside of such Person's control.
Funded Indebtedness has the meaning set forth in the Guaranty.
GAAP or generally accepted accounting principles means, as of the date of
any determination with respect thereto, generally accepted accounting principles
as used by the Financial Accounting Standards Board and/or the American
Institute of Certified Public Accountants.
Grant means mortgage, grant, convey, assign, create a security interest
in, bargain, sell, pledge, warrant, give, transfer and set over.
Guarantor means Iron Mountain Incorporated, a Delaware corporation,
together with its permitted successors and assigns.
Guaranty means the Unconditional Guaranty, dated as of July 1, 1999 from
Guarantor to Owner, as amended and supplemented from time to time.
<PAGE>
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Hazardous Substances means (i) those substances included within the
definitions of or identified as "hazardous substances", "hazardous materials",
or "toxic substances" in or pursuant to, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. ss.9601
et seq.) (CERCLA), as amended by Superfund Amendments and Reauthorization Act of
1986 (Pub. L. 99-499, 100 Stat. 1613) (SARA), the Resource Conservation and
Recovery Act of 1976 (42 U.S.C., ss.6901 et seq.) (RCRA), the Occupational
Safety and Health Act of 1970 (29 U.S.C. ss.651 et seq.) (OSHA), and the
Hazardous Materials Transportation Act, 49 U.S.C. ss.1801 et seq., and in the
regulations promulgated pursuant to said laws, all as amended; (ii) those
substances listed in the United States Department of Transportation Table (40
CFR 172.101 and amendments thereto) or by the Environmental Protection Agency
(or any successor agency) as hazardous substances (40 CFR Part 302 and
amendments thereto); (iii) any material, waste or substance which is or contains
(A) petroleum, including crude oil or any fraction thereof, natural gas, or
synthetic gas usable for fuel or any mixture thereof, (B) asbestos, (C)
polychlorinated biphenyls, (D) designated as "hazardous substance" pursuant to
Section 311 of the Clean Water Act, 33 U.S.C. ss.1251 et seq., (33 U.S.C.
ss.1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C.
ss.1317); (E) flammable explosives; (F) radioactive materials; and (iv) such
other substances, materials and wastes which are or become regulated as
hazardous, toxic or "special wastes" under applicable local, state or federal
law, or the United States government, or which are classified as hazardous,
toxic or as "special wastes" under federal, state or local laws or regulations,
including any Environmental Laws.
Improvements means as to any Property, collectively, the Existing
Improvements and any Additional Improvements with respect to such Property.
Indebtedness has the meaning set forth in the Guaranty.
Indemnified Party means each of Owner, Bank, Deed of Trust Trustee,
Lenders, Agent Bank, Beneficiary, LC Issuer, Placement Agent, and their
respective shareholders, officers, directors, partners, employees, attorneys and
agents, licensees, and any holder of any beneficial interest in any of such
Persons.
Individual Trustee means W. Jeffrey Kramer, not individually but solely in
his capacity as individual trustee under the Owner Trust Agreement, together
with his successors or assigns as individual trustee thereunder.
Initial Closing has the meaning set forth in Section 4.1 of the Agency
Agreement.
Initial Closing Date has the meaning set forth in Section 4.1 of the
Agency Agreement.
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Interest Period shall mean a calendar month or any portion thereof.
Interim Term has the meaning set forth in Article 2 of the Lease.
Interim Term Commencement Date means generally, the date of delivery of
the Lease by Lessor and Lessee, and with respect to each Property, the Property
Closing Date for such Property.
Iron Mountain 1998 Synthetic Lease Transaction means the "Overall
Transaction" as defined in Appendix I to the Lease Agreement dated as October 1,
1998, as amended or supplemented from time to time between Iron Mountain
Statutory Trust - 1998 and Lessee.
Land Parcels means the certain parcels of land on which the warehouse
facilities to be leased to Lessee under the Lease will be located, as more fully
described in Schedule A to each of the Agency Agreement and the Lease, as
amended and supplemented from time to time.
LC Deeds of Trust means the Mortgages, Deeds of Trust, Deeds to Secure
Debt Security Agreements and Fixture Filings, relating to each Property dated on
or about the date of the Closing for each Property, from Owner to Deed of Trust
Trustee and to LC Issuer, for the benefit of LC Issuer, as the same may be
amended, modified or assigned from time to time.
LC Issuer means BTM Capital Corporation, a Delaware corporation, as issuer
of the Letter of Credit.
LC Security Documents means the LC Deeds of Trust and all other documents
executed by the Owner as security for the performance by the Owner of its
obligations under the Reimbursement Agreement.
Lease means the Lease Agreement, dated as of July 1, 1999, between the
Owner, as lessor, and Lessee, as lessee, together with all amendments,
modifications and supplements thereto, including any Lease Supplement, and any
memorandum or short form thereof entered into for the purpose of recording,
registration or filing.
Lease Proposal means the Revised Lease Terms and Conditions from BTM
Capital Corporation to Agent, dated May 26, 1999.
Lease Supplement means the Supplement to Lease entered into on each
Property Closing Date with respect to one or more Properties or in connection
with Additional Improvements and in the form of Schedule G to the Lease.
<PAGE>
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Legal Requirements means all laws, rules, orders, ordinances, regulations
and requirements now existing or hereafter enacted or promulgated, of every
government and municipality having jurisdiction over each Property and of any
agency thereof, relating to each Property, or the improvements thereon, or the
facilities or equipment thereon or therein, or the streets, sidewalks, vaults,
vault spaces, curbs and gutters adjoining each Property, or the appurtenances to
such Property, or the franchises and privileges connected therewith and
including, without limitation, Environmental Laws.
Lender Assignment has the meaning set forth in Section 10.14.1 of the Loan
Agreement.
Lender Assignment Conditions has the meaning set forth in Section 10.14.1
of the Loan Agreement.
Lender(s) means each financial institution listed on Schedule 1 to the
Loan Agreement as such Schedule may be modified from time to time in connection
with a transfer pursuant to Section 10.14 of the Loan Agreement.
Lender's Additional Costs has the meaning set forth in Section 5.9 of the
Loan Agreement.
Lender's Counsel means Day Berry & Howard LLP as counsel to the Agent Bank
and to the Lenders collectively.
Lender's Percentage means the percentage listed next to Lender's name on
Schedule 1 of the Loan Agreement.
Lending Office has the meaning set forth in Section 2.4 of the Loan
Agreement.
Lessee means Iron Mountain Records Management, Inc., a Delaware
corporation, and its permitted successors and assigns.
Lessee's Default has the meaning specified in Section 7.1 of the Deed of
Trust.
Lessee's Loss has the meaning set forth in paragraph (a) of Article 12 of
the Lease.
Lessor means, Iron Mountain Statutory Trust - 1999, a Connecticut
statutory trust, and its permitted successors and assigns.
Lessor Lien means any lien on or with respect to any Property which is not
specifically permitted by the terms of the Lease and which results from (i)
nonpayment by Lessor or any
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member, partner, shareholder or beneficiary of Lessor or any affiliate of any of
the foregoing (the Lessor Parties), of any tax, assessment or like charge
imposed on any Lessor Party, other than any tax, assessment or like charge the
payment of which is Lessee's obligation under the Lease; (ii) claims against or
acts and omissions of any Lessor Party arising out of events or conditions that
are not related to the transactions contemplated by the terms of the Lease or
are in violation of any of the obligations of Lessor under any of the terms of
the Lease; (iii) claims against any Lessor Party arising out of any transfer
(whether voluntary or involuntary) by such Lessor Party of any portion of its
interest in such Property or its rights under the Lease that is neither
permitted hereunder nor consented to in writing by Lessee; or (iv) any other act
of, claim against or lien created by any Lessor Party, or any Person claiming
by, through or under any Lessor Party, that is neither permitted under the terms
of the Lease nor consented to in writing by Lessee.
Lessor Parties has the meaning specified in the definition of Lessor Lien.
Letter of Credit means the irrevocable standby letter of credit, no.
B0162-2006, dated the Closing Date, issued by LC Issuer for the account of Owner
and for the benefit of Agent Bank and the Lenders, and all amendments and
supplements thereto and replacements therefor.
Letter of Credit Lenders means all Lenders except Agent Bank (in its
capacity as a Lender hereunder).
LIBOR means the rate of interest per annum (expressed as an annual rate
rounded to the nearest one-hundredth of a basis point) equal to the London
interbank offered rate for deposits in U.S. dollars for a period equal to the
applicable LIBOR Period as of 1:00 p.m. local London time, on the LIBOR Interest
Setting Date for such LIBOR Period. The applicable LIBOR shall be determined on
the basis of offered rates for deposits in U.S. Dollars by reference to the
Telerate, Inc. display designated as page 3750 (or such other page as may
replace such page on the Telerate, Inc. service for the purpose of displaying
London interbank offered rates); provided, however, that if Telerate, Inc. shall
not publish or shall cease publication of such information, the applicable LIBOR
shall be determined on the basis of offered rates for deposits in U.S. Dollars
by reference to the rate shown on the display designated as page "LIBO" on the
Reuters Monitor Money Rates Service (or such other page as may replace the LIBO
page on that service for the purpose of displaying London interbank offered
rates of major banks); and provided further that if Reuters Monitor Money Rates
Service shall not publish or shall cease publication of such information, the
applicable LIBOR shall be determined by reference to the rate at which deposits
in U.S. dollars are offered by the principal office of the Agent Bank in the
London interbank market for the applicable LIBOR Period. The determination of
LIBOR by the Agent Bank shall be conclusive absent manifest error.
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LIBOR Interest Setting Date means, with respect to any LIBOR Period, the
date which is two Banking Days before the first day of such LIBOR Period.
LIBOR Period means, with respect to each Loan, the period commencing on
and including the first day of the first calendar month occurring after the
funding date of such Loan and ending on the last day of the calendar month
during which such Loan was made, and, thereafter the period commencing on the
last day of the immediately preceding LIBOR Period and ending on the same
numerical day in the calendar month thereafter; provided that:
(1) if any LIBOR Period would otherwise end on a day which
is not a Banking Day, that LIBOR Period should be
extended to the next succeeding Banking Day, unless the
result of such extension would be to carry such LIBOR
Period into another calendar month, in which event such
LIBOR Period shall end on the immediately preceding
Banking Day;
(2) for purposes of calculating interest on the Notes for
any LIBOR Period, such calculation shall include the
first day, but exclude the last day, of any such LIBOR
Period; and
(3) any LIBOR Period that begins on the last Banking Day of
a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at
the end of such LIBOR Period) shall end on the last
Banking Day of the calendar month at the end of such
LIBOR Period.
LIBOR Portion means any portion of the Loans with respect to which
interest shall be calculated at the LIBOR Rate in accordance with Section
2.5.2(a) of the Loan Agreement.
LIBOR Rate means with respect to the applicable LIBOR Period, the Adjusted
LIBOR plus the LIBOR Spread applicable to such LIBOR Period.
LIBOR Reserve Percentage for any LIBOR Period, means the reserve
percentage (expressed as a decimal) on the applicable LIBOR Interest Setting
Date, under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for the Agent Bank, at its principal
office with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, as such term is defined in Regulation D Board of
Governors of the Federal Reserve
<PAGE>
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System, as in effect from time to time (or with respect to any other category of
liabilities which includes deposit by reference to which the interest rate on
LIBOR Rate Loans is determined having a term equal to such LIBOR Period).
LIBOR Spread has the meaning set forth in Section 2.5.2(b) of the Loan
Agreement.
Lien of this Deed of Trust and terms of like import mean the security
title or security interest or other interest or charge Granted to the Deed of
Trust Trustee for the benefit of Deed of Trust Beneficiary or to Deed of Trust
Beneficiary under the Deed of Trust or subsequently Granted under the Deed of
Trust or pursuant to the Deed of Trust to the Deed of Trust Trustee for the
benefit of Deed of Trust Beneficiary or to Deed of Trust Beneficiary (whether
made by the Owner or any other Person) or otherwise created, which title,
interest, or charge effectively constitutes any property as a part of the
security held by the Deed of Trust Trustee for the benefit of Deed of Trust
Beneficiary or by Deed of Trust Beneficiary.
Liens has the meaning set forth in Section 10(c) of the Guaranty, and
shall also include, without limitation, any notices of contract, statement of
claim with respect to unpaid costs or mechanics or materialmen's liens, by or on
behalf of any contractor or subcontractor or any agent of agent or any
contractor or subcontractor with respect to any items of work or activities with
respect to any construction or alteration of any Property.
Limited Lessee Risk Conditions means, collectively, the following: (i)
there shall have been no condemnation, damage, destruction or taking of
substantially all of any Property and all Additions, if any, are substantially
complete; (ii) no Default or Event of Default shall have occurred and be
continuing under the Lease, including, without limitation, any Default in
Lessee's obligation to maintain the Properties or comply with Legal
Requirements; (iii) Lessee shall not have exercised its purchase option under
paragraph (a) of Article 27 of the Lease; (iv) either (x) a sale to a third
party of the Properties has been consummated on or prior to the Term Termination
Date and Lessor has received, in immediately available funds, on the Term
Termination Date, the Net Proceeds of sale of such Properties plus payment of
the Maximum Lessee Risk Amount and any Additional Obligations then due and owing
hereunder with respect to such Properties, or (y) a sale to a third party of the
Properties has not been so consummated on the Term Termination Date and the
Lessee has vacated the Properties and surrendered and returned the Properties to
Lessor in the condition required by Article 25 of the Lease, and Lessor has
received, in immediately available funds on or before the Term Termination Date
thereof, payment of the Maximum Lessee Risk Amount and any Additional
Obligations then due and owing under the Lease with respect to the Properties;
(v) the Lease has not been terminated prior to the Term Termination Date; (vi)
no amendment, modification, supplement, consent, waiver, approval, settlement,
extension, compromise or accommodation of the Lease or the Agency Agreement has
been entered into or given without the prior written consent of the LC Issuer;
and
<PAGE>
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(vii) the Properties are free and clear of all liens and encumbrances except for
the lien of the LC Deed of Trust, the Deed of Trust, liens for taxes for the
current year which are not due and payable and Permitted Encumbrances described
in (a), (c) and (i) of the definition thereof, and any liens for taxes,
assessments and other governmental charges, which are not then due and payable
and which are not allocable to the period before the date of termination or
expiration of the Lease with respect to the applicable Property.
Liquid Investments has the meaning set forth in the Credit Agreement and
reiterated on Schedule 2.
Loan Agreement means the Loan Agreement, dated as of July 1, 1999, among
the Lenders, the Agent Bank and Owner, as amended and supplemented from time to
time.
Loans has the meaning set forth in Section 2.1(a) of the Loan Agreement.
Maturity Date has the meaning set forth in Section 2.1(a) of the Loan
Agreement.
Maximum Lease Term means, as to each Property, the maximum Term of the
Lease with respect to such Property.
Maximum Lessee Risk Amount means an amount calculated as set forth in
Schedule F of the Lease for each relevant period and Property.
Maximum Lessor Risk Amount means an amount calculated as set forth in
Schedule F of the Lease for each relevant period and Property.
Maximum Loan Amount means Fifty-Four Million, Five Hundred Thousand and
00/100 ($54,500,000), of which up to $2,500,000 may be attributable to
Additional Improvements.
Memorandum of Lease means the memorandum or short form of the Lease
delivered for recording purposes.
Moody's has the meaning set forth in Article 12 of the Lease.
Net Award has the meaning set forth in paragraph (c) of Article 12 of the
Lease.
Net Proceeds means, upon the sale of any Property to a third party, the
net amount of the proceeds of such sale, after deducting from the gross proceeds
of such sale (i) all sales taxes and other taxes (excluding any Excluded Taxes),
(ii) all fees, costs and expenses of such sale incurred by Lessor or by Lessee,
as Lessor's agent, unless separately paid or reimbursed by Lessee, and
<PAGE>
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(iii) any other amounts for which, if not paid, Lessor would be liable or which,
if not paid, would constitute a lien on such Property.
Notes means the promissory notes issued to the Lenders pursuant to Article
2 of the Loan Agreement evidencing the Loans.
Officer's Certificate means a certificate executed and delivered by the
Applicable Officer of Lessee or Agent, or such other officer of Lessee or Agent
certified by the Applicable Officer as being in the best position to know the
substance of the matters contained in such certificate.
Operative Documents has the meaning set forth in Section 5.1.1 of the
Agency Agreement.
Other Deeds of Trust means, in connection with any reference to a Deed of
Trust encumbering a Property, all of the other Deeds of Trust encumbering all of
the other Properties.
Other LC Deeds of Trust means, in connection with any reference to an LC
Deed of Trust encumbering a Property, all of the other LC Deeds of Trust
encumbering all of the other Properties.
Overall Transaction means the purchasing, financing, leasing and managing
of the Properties in accordance with the Operative Documents and the Lease
Proposal.
Overdue Rate means (i) when used with reference to the Equity Investment
or any amount payable in respect of the Equity Investment, including the Equity
Return, plus 2% (ii) when used with reference to the Notes or any amount payable
under the Loan Agreement, the Overdue Rate as defined in Section 2.5.3 of the
Loan Agreement.
Overnight Federal Funds Rate means, for any period, a fluctuating interest
rate per annum equal, for each day during such period, to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System, arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Agent Bank from three Federal funds brokers of
recognized standing selected by it in its sole discretion acting in good faith.
Owner has the meaning specified in the Owner Trust Agreement.
<PAGE>
- 16 -
Owner Trust Agreement means the Owner Trust Agreement, dated as of July 1,
1999, among Bank, Individual Trustee, Secured Beneficiary and Equity
Beneficiary, as amended and supplemented from time to time.
Owners Obligations means the Loans outstanding under the Loan Agreement
from time to time and all other obligations of the Owner to the Agent Bank or to
the Lenders of every kind or description, direct or indirect (by participation
or otherwise), absolute or contingent, voluntary or involuntary, liquidated or
unliquidated, determined or undetermined, primary or secondary, due or to become
due, arising under or by virtue of the Loan Agreement, any other Operative
Document or any other instrument, document, certificate or agreement made in
connection herewith or therewith, whether now existing or hereafter arising,
regardless of how they arise or by what agreement or instrument they may be
evidenced or whether evidenced by any agreement or instrument, and whether
recovery thereof may be or hereafter become barred by any statute of limitations
or become otherwise unenforceable, and the same includes obligations to perform
acts or refrain from acting as well as obligations to pay money.
Payment Dates has the meaning set forth in paragraph (a) of Article 3 of
the Lease.
Permitted Encumbrances means with respect to a Property:
(a) rights reserved to or vested in any municipality or public authority
to condemn, appropriate, recapture or designate a purchaser of the
Property;
(b) any liens thereon for taxes, assessments and other governmental
charges and any liens of mechanics, materialmen and laborers for
work or services performed or material furnished in connection with
the Property, which are not due and payable, or the amount or
validity of which are being contested as permitted by Article 6 of
the Lease;
(c) easements, rights-of-way, servitudes, zoning laws, use regulations,
and other similar reservations, rights and restrictions and other
minor defects and irregularities in the title to the Property listed
in the mortgagee's title insurance policy delivered pursuant to the
Loan Agreement or granted in accordance with the provisions of
Article 34 of the Lease;
(d) all other matters affecting title existing on the date of the Lease
as set forth in Schedule G to the Lease;
(e) the Lease;
<PAGE>
- 17 -
(f) the lien of the Deed of Trust and any rights granted by the Deed of
Trust;
(g) the Assignment;
(h) the LC Security Documents, provided the lien of all of the same and
the rights of the beneficiaries thereof shall be subject and
subordinate to the lien of the Deed of Trust and of the Assignment
and the rights of the Deed of Trust Trustee and the Deed of Trust
Beneficiary under the Deed of Trust and under the Assignment (and,
in each case, the lien of and rights under any other instruments
securing the obligations of the Owner secured by the Deed of Trust);
and
(i) such other matters as are set forth on Schedule B to Owner's title
insurance policy (or commitment therefor).
Person means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation, limited
liability company, institution, public benefit corporation, entity or government
(whether federal, state, county, city, municipal or otherwise, including without
limitation, any instrumentality, division, agency, body or department thereof.)
Placement Agent means BTM Financial Services, Inc., a Delaware corporation
and an Affiliate of LC Issuer.
Plan means any "employee benefit plan" (within the meaning of Section 3(3)
of ERISA) that Lessee, Agent, Beneficiary, any Subsidiary or any ERISA Affiliate
maintains, contributes to or is obligated to contribute to for the benefit of
employees or former employees of Lessee, Agent, Beneficiary, any Subsidiary or
any ERISA Affiliate.
Prepayment Date has the meaning specified in Section 6.2 of the Deed of
Trust.
Prime Rate refers to that interest rate so denominated and set by Wachovia
Bank, N.A. from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia Bank, N.A..
Wachovia Bank, N.A. lends at interest rates above and below the Prime Rate.
Property means (i) each Land Parcel, (ii) all Improvements located or to
be located on such Land Parcel, (iii) all other real and personal property
placed on, affixed or appurtenant to, such Land Parcel by Agent pursuant to the
terms of the Agency Agreement or by Lessee pursuant to the terms of the Lease,
including, without limitation, any equipment and other personal property
identified from time to time on Schedule A to each of the Agency Agreement
<PAGE>
- 18 -
and the Lease, as such schedules may be amended, supplemented or modified from
time to time (but excluding Trade Fixtures), (iv) any and all accessions,
additions, improvements, substitutions and replacements with respect to any of
the foregoing, and (v) all easements, rights and appurtenances with respect to
such Land Parcel.
Property Closing means the acquisition of a Proposed Property by Owner
pursuant to the Agency Agreement.
Property Closing Date means the date on which a Property Closing occurs.
Property Closings has the meaning set forth in Section 4.4 of the Agency
Agreement.
Property Designation Notice has the meaning set forth in Section 4.2 of
the Agency Agreement.
Proposed Property has the meaning in Section 4.2 of the Agency Agreement.
Purchase Price has the meaning set forth in Schedule E attached to the
Lease.
Recordable Documents has the meaning specified in Section 3.3 of each Deed
of Trust.
Register has the meaning set forth in Section 10.14.3 of the Loan
Agreement.
Regulation D means Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be amended or supplemented from time to time.
Regulatory Change means any change after the Closing Date in United States
federal, state or foreign laws or regulations (including Regulation D and the
laws or regulations which designate any assessment rate relating to certificates
of deposit or otherwise) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks, including
any Lender, of or under any United States federal, state, or foreign laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
Reimbursement Agreement means the Reimbursement and Remarketing Agreement,
dated as of July 1, 1999, between the Owner and the LC Issuer, as amended,
modified or supplemented from time to time.
Reinvestment Premium means, with respect to the termination of the Lease
and the purchase of all of the Properties by Lessee pursuant to Article 34 of
the Lease, and the
<PAGE>
- 19 -
accompanying prepayment of the Loan and the Equity Investment on any Payment
Date occurring on or prior to July 31, 2002, a premium in one of the following
amounts: (i) if such Payment Date is a date on or prior to July 31, 2000, an
amount equal to two percent (2%) of the Cost of the Properties as of such
Payment Date; (ii) if such Payment Date is a date on or after August 1, 2000 but
on or prior to July 31, 2001, an amount equal to one percent (1%) of the Cost of
the Properties as of such Payment Date; and (iii) if such Payment Date is a date
on or after August 1, 2001 but on or prior to July 31, 2002, an amount equal to
one-half of one percent (0.5%) of the Cost of the Properties as of such Payment
Date.
Remaining Maximum Loan Amount means the Maximum Loan Amount less the
aggregate of all Loans made by the Lenders, in each case as of the date of
determination thereof.
Remarketing Period has the meaning set forth in paragraph (b) of Article
27 of the Lease.
Required Lenders means, as of a particular date, except as hereinafter set
forth, Lenders holding at least 51% of the aggregate principal amount of all
Notes outstanding or, if no Loans are then outstanding, Lenders having at least
60% of the aggregate Lender's Percentages' provided, further, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (i) increase the obligation of any Lender to
make Loans to Owner pursuant to the Loan Agreement or subject the Lenders to any
additional obligations; (ii) reduce the principal of, or interest on, any Loan
or reduce the amount of any fee or other amount payable to or for the benefit of
any Lender pursuant to any Operative Document (including, without limitation,
reduce the amount of any installment of Basic Rent, or any amount of Additional
Obligations, Termination Value, Purchase Price, Maximum Lessee Risk Amount,
Maximum Lessor Risk Amount or Adjustment Price); (iii) postpone any date fixed
for any payment of principal of, or interest on, any Advance or any fee or other
amount payable to or for the benefit of any Lender pursuant to any Operative
Document (including, without limitation, postpone any date fixed for the payment
of any installment of Basic Rent, or any date for the payment of Additional
Obligations, Termination Value, Purchase Price, Maximum Lessee Risk Amount,
Maximum Lessor Risk Amount or Adjustment Amount); (iv) change the percentage of
the Lender Percentage, or of the aggregate unpaid principal amount of any of the
Loans, or the number of Lenders, which shall be required for the Lenders or the
Agent Bank or any of them to take any action under any Operative Document; (v)
change any provision relating to the use of proceeds of the Loans, or of
Sections 2.6, 3, 4.1, 5.9 or 8.9 of the Loan Agreement, or this definition; (vi)
release any of the security for the obligations of Owner or the Lessee under any
Operative Document; (vii) release the Guarantor from its obligations under the
Guaranty. Notwithstanding anything in this definition to the contrary, no
amendment, waiver or consent shall be made with respect to Sections 4.3 or 8 of
the Loan Agreement without the consent of the Agent Bank; or modify, alter or
waive any provision of the Letter of Credit or any comfort letter issued in
connection with the Letter of Credit.
<PAGE>
- 20 -
Requisition has the meaning set forth in Section 3.1.4 of the Loan
Agreement.
Responsible Officer has the meaning set forth in the Owner Trust
Agreement.
Secured Beneficiary means BTM Capital Corporation, a Delaware corporation,
together with its successors and assigns as a beneficiary under the Owner Trust
Agreement.
S&P has the meaning set forth in Article 12 of the Lease.
Spread Determination Date has the meaning set forth in Section 2.5.2(b) of
the Loan Agreement.
Stock means all shares, options, interests, participations or other
equivalents (regardless of how designated) of or in a corporation or equivalent
entity (including, without limitation, a partnership, business trust or limited
liability company), whether voting or nonvoting, and including, without
limitation, common stock, preferred stock, beneficial interests in trusts,
securities convertible into or exchangeable for stock, or warrants or options
for any of the foregoing.
Subsequent Owner or Subsequent Lessor means (i) any and every future
purchaser, assignee or transferee of the Property or any part thereof permitted
under the Operative Documents and (ii) any and every future purchaser, assignee
or transferee of the interest of any owner in the Property permitted under the
Operative Documents, but upon the sale, assignment or transfer of all of such
right, title and interest in and to the Property by a Subsequent Owner or
Subsequent Lessor, as the case may be, such Subsequent Owner or Subsequent
Lessor, as the case may be, shall cease to be a Subsequent Owner or Subsequent
Lessor, as the case may be.
Subsidiary, with respect to any corporation (the parent), means a
corporation or partnership of which the parent, at the time in respect of which
such term is used, owns directly, or controls with power to vote, indirectly
through one or more Subsidiaries, shares of greater than fifty percent (50%) of
its Voting Stock. The term Subsidiary, when used in the Operative Documents
without reference to any particular Person, means a Subsidiary of Guarantor.
Substantially Complete or Substantial Completion means, with respect to
any Additional Improvements, complete in substantial accordance with Approved
Plans.
Taxes has the meaning set forth in Section 5.9 of the Loan Agreement.
Term of this Lease and words of like import means, collectively, the
Interim Term and the Basic Term.
<PAGE>
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Term Termination Date means the fifth anniversary of the Basic Term
Commencement Date.
Termination Date means, as to any Property, the date specified by Lessee
for termination of the Lease as to such Property in accordance with paragraph
(c) of Article 12 of the Lease.
Termination Notice has the meaning set forth in paragraph (a) of Article
27 of the Lease.
Termination Value has the meaning specified in Schedule C of the Lease.
Title Company means the title company as specified in the title policy
required by Section 5.1.4 of the Agency Agreement
Total Property Cost means Fifty-Six Million, Seven Hundred Seventy
Thousand, Eight Hundred Thirty-Three Dollars and 33/100 ($56,770,833.33) of
which up to $2,500,000 may be attributable to Additional Improvements.
Trade Fixtures has the meaning set forth in paragraph (a) of Article 11 of
the Lease.
Trust Estate has the meaning specified in the Owner Trust Agreement.
Trustee means First Union National Bank, not individually but solely in
its capacity as trustee under the Owner Trust Agreement, together with its
successors or assigns as trustee thereunder.
Uniform Commercial Code means the Uniform Commercial Code as enacted in
the applicable State in which each Property is located, as amended from time to
time.
Unused Amount Fee has the meaning set forth in Section 4.1 of the Loan
Agreement.
Voting Stock, with respect to a corporation, means the stock of such
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect members of the Board of Directors (or other
governing body) of such corporation, and with respect to any partnership, means
the partnership interests in such partnership the owners of which are entitled
to manage the affairs of the partnership, or vote in connection with the
management of the affairs of the partnership or the designation of another
Person as the Person entitled to manage the affairs of the partnership (it being
understood that, in the case of any partnership, "shares" of Voting Stock shall
refer to such partnership interests).
<PAGE>
EXHIBIT 10.3
UNCONDITIONAL GUARANTY
from
IRON MOUNTAIN INCORPORATED
as Guarantor
to
IRON MOUNTAIN STATUTORY TRUST - 1999
as Owner
Dated as of July 1, 1999
<PAGE>
THIS UNCONDITIONAL GUARANTY, dated as of July 1, 1999 (herein, together
with all amendments and supplements hereto, called this Guaranty), is from Iron
Mountain Incorporated, a Delaware corporation (herein, together with its
successors and assigns, called Guarantor), having an address at 745 Atlantic
Avenue, Boston, Massachusetts 02111, Attention: Treasurer, to Iron Mountain
Statutory Trust - 1999, a Connecticut statutory trust (herein together with its
successors and assigns, called Owner), having an address at c/o First Union
National Bank, 10 State House Square, Hartford, Connecticut 06103, Attention:
Corporate Trust Administration. Terms not otherwise defined herein shall have
the meanings set forth in Appendix I to the Lease (as hereinafter defined).
Preliminary Statement
Owner has entered into a Lease Agreement dated as of the date hereof with
Iron Mountain Records Management, Inc. (herein called Lessee) (said Lease
Agreement, as supplemented or amended from time to time, including without
limitation by a Lease Supplement, herein called the Lease) relating to the
Properties. Pursuant to the terms of the Lease, Lessee shall lease the
Properties from Owner for a term of years, as more particularly set forth in the
Lease. Owner has also entered into an Agency Agreement dated as of the date
hereof (herein called the Agency Agreement) with Lessee, as agent. Pursuant to
the terms of the Agency Agreement, Lessee shall, as agent for Owner, acquire
Properties and otherwise perform certain obligations relating thereto, all as
more particularly set forth in the Agency Agreement. Guarantor is the owner of
all of the issued and outstanding stock of Lessee. In order to induce Owner to
enter into the Lease and the Agency Agreement and to enter into the leasing and
agency arrangements with Lessee, as more particularly described therein,
Guarantor has entered into this Guaranty with respect to the obligations of
Lessee under the Lease and the Agency Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Guarantor agrees as follows:
<PAGE>
2
1. Guarantor unconditionally and irrevocably guaranties to (a) Owner, and
(b) to the extent of Lessee's obligations to the Indemnified Parties, the
Indemnified Parties, the prompt payment and performance of all obligations of
Lessee under the Lease and the Agency Agreement (all of the foregoing
collectively, the Guaranteed Obligations). This Guaranty is an irrevocable,
absolute, present, primary, continuing, unlimited and unconditional promise with
respect to the full and punctual payment and performance by Lessee of each of
the Guaranteed Obligations, and is not a promise of collectibility only, and is
in no way conditional upon the requirement that Owner first attempt to collect
payment or demand performance from Lessee or that Owner resort to any security
or other means of obtaining such payment or performance or upon any other
contingency. If for any reason (i) any such sums shall not be paid promptly by
Lessee when due, or (ii) any such covenant, agreement, term or condition is not
performed or observed by Lessee in accordance with the Lease or the Agency
Agreement, Guarantor, shall, without notice or demand of any nature, pay the
same by wire transfer of immediately available federal funds to the Person or
Persons entitled thereto pursuant to the provisions of said instruments and
shall perform and observe or cause to be promptly performed and observed every
such covenant, agreement, term and condition, in each case regardless of (i) any
defenses or rights of set-off or counterclaims which Guarantor or Lessee may
have or assert, (ii) whether Owner shall have taken any steps to enforce any
rights against Lessee or any other remedy thereunder as a result of the default
of Lessee thereunder and (iii) any other event, condition, contingency or
circumstance whatsoever. Guarantor also agrees to pay to such Persons such
further amounts as shall be sufficient to cover the costs and expenses of
collecting such sums or any part thereof, or of otherwise enforcing or
protecting the rights of such Persons under the Lease, the Agency Agreement and
this Guaranty, including reasonable fees and expenses of its attorneys and to
Owner and its attorneys for all services rendered in that connection and in any
related proceeding.
2. The obligations, covenants, agreements and duties of Guarantor under
this Guaranty shall be absolute and unconditional, shall not be subject to any
counterclaim, setoff,
<PAGE>
3
deduction, diminution, abatement, recoupment, suspension, deferment, reduction
or defense based upon any claim that Guarantor or any other Person may have
against Lessee, Owner or any other Person, and, until the payment or performance
in full of the Guaranteed Obligations, shall remain in full force and effect
without regard to, and shall not be released, discharged or in any way affected
by, any circumstance or condition whatsoever (whether or not Owner, Guarantor or
Lessee shall have any knowledge or notice thereof), including, without
limitation, the happening from time to time of any of the following, although
without notice to, or the consent of, Guarantor:
(a) the waiver by Owner of the performance or observance by Lessee,
Guarantor or any other party of any of the agreements, covenants,
terms or conditions contained in the Lease, the Agency Agreement,
this Guaranty or any other instrument or Operative Document;
(b) the extension, in whole or in part, of the time for payment by
Lessee or Guarantor of any sums owing or payable under the Lease,
the Agency Agreement or this Guaranty, as applicable, or of any
other sums of obligations under or arising out of or on account of
the Lease, the Agency Agreement, this Guaranty or the renewal or
extension of either thereof;
(c) any assignment or subsequent reassignment of the Lease, the Agency
Agreement or this Guaranty, in whole or in part, or the leasing or
subletting of any Property or any part thereof;
(d) the modification or amendment (whether material or otherwise) of any
of the obligations of Lessee or Guarantor under the Lease, the
Agency Agreement, this Guaranty or any other Operative Document, as
applicable;
(e) the taking or the omission of any of the acts referred to in the
Lease, the Agency Agreement, this Guaranty or any other Operative
Document (including, without limitation, the giving of any consent
referred to herein or therein, but excepting therefrom those acts
and omissions permitted in compliance with and pursuant to the terms
of the Lease or the Agency Agreement, as the case may be, and any
assignment or reassignment thereof or this Guaranty and any
assignment or reassignment hereof, as appropriate);
<PAGE>
4
(f) any failure, omission or delay on the part of Owner to enforce,
assert or exercise any right, power or remedy conferred on or
available to Owner in or by the Lease, the Agency Agreement, this
Guaranty or any other instrument, or any action on the part of Owner
granting indulgence or extension in any form whatsoever;
(g) the voluntary or involuntary liquidation, dissolution, sale of all
or substantially all of the assets, marshaling of assets and
liabilities, receivership, conservatorship, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar
proceeding affecting, Owner, Lessee or Guarantor or any of their
respective assets;
(h) the release of Lessee or Guarantor from the performance or
observance of any of the agreements, covenants, terms or conditions
contained in the Lease, the Agency Agreement, this Guaranty or any
other Operative Document, as applicable, by operation of law or
otherwise, except for those releases given or made in compliance
with and pursuant to the terms of the Lease, the Agency Agreement,
as applicable, and any assignment or reassignment thereof, or this
Guaranty and any assignment or reassignment hereof, as applicable,
or any invalidity or unenforceability of the Lease, the Agency
Agreement or this Guaranty or any other Operative Document;
(i) any defect in the title, or any damage to or loss or destruction of,
or any interruption or cessation in the use of any Property or any
portion thereof by Lessee for any reason whatsoever (including,
without limitation, any governmental prohibition or restriction,
condemnation, requisition, or any other act on the part of any
governmental authority, or any act of Force Majeure) regardless of
the duration thereof (even though such duration would otherwise
constitute a frustration of the Lease or the Agency Agreement, as
the case may be), whether or not resulting from accident and whether
or not without fault on the part of Lessee or any other Person;
(j) the inability of Owner or Lessee to enforce any provision of the
Lease or the Agency Agreement for any reason;
(k) any merger or consolidation of Lessee or Guarantor into or with any
other corporation or any sale, lease or transfer of any of the
assets of Lessee or Guarantor to any other Person;
(l) any change in the corporate relationship between Guarantor and
Lessee;
<PAGE>
5
(m) the acceptance and release by Owner of any other security or
guarantor for any obligation hereunder;
(n) any value, estimation, termination, rejection, discharge or
disaffirmance by any Person (including trustees, trustees in
bankruptcy, liquidators or representatives) of the Guaranteed
Obligations in connection with any insolvency, bankruptcy,
reorganization or liquidation of Lessee or any proceeding relating
thereto;
(o) any determination or claim that Owner's claims against Lessee are or
may be limited by Section 502(b) (6) of the Bankruptcy Code, as
amended, or to any similar or successor provision of law upon any
rejection of the Lease or the Agency Agreement in a bankruptcy
proceeding filed by or against Lessee;
(p) any failure or recharacterization of title with respect to Owner's,
Lessee's or any other Person's interest in any Property; or
(q) any other occurrence or circumstance whatsoever, whether similar or
dissimilar to the foregoing and any other circumstance that might
otherwise constitute a legal or equitable defense or discharge of
the liabilities of a guarantor or surety or that might otherwise
limit recourse against Guarantor.
The obligations of Guarantor set forth herein constitute the full recourse
obligations of Guarantor enforceable against Guarantor to the full extent of all
its assets and properties. In no event shall the obligations of Guarantor
hereunder be subordinated in any manner to any other full recourse obligations
of Guarantor.
3. Guarantor unconditionally waives (i) notice of any of the matters
referred to in Section 2, (ii) all notices that may be required by statute, rule
of law or otherwise, now or hereafter in effect, to preserve intact any rights
against Guarantor, including, without limitation, any demand, presentment and
protest, proof of notice of non-payment under the Lease or the Agency Agreement
and notice of Default or Event of Default under the Lease or the Agency
Agreement or this Guaranty, or any failure on the part of Lessee to perform and
comply with any covenant, agreement, term or condition of the Lease or the
Agency Agreement, (iii) any right to the enforcement, assertion or exercise
against Lessee of any right, power, privilege or remedy conferred in the Lease
or the Agency Agreement or otherwise, (iv) any requirement of diligence
<PAGE>
6
on the part of Owner or any other Person, (v) any requirement that Owner take
any steps to enforce any rights against Lessee under the Lease or the Agency
Agreement or any other remedy thereunder or any other requirement to exhaust any
remedies or to mitigate the damages resulting from any Default or Event of
Default under the Lease or the Agency Agreement or this Guaranty, (vi) any
notice of any sale, transfer or other disposition of any right, title to or
interest in the Lease or the Agency Agreement or any Property covered thereby by
Owner, (vii) all rights of Guarantor under the laws of the states in which the
Properties are located, as the same may be amended, and (viii) any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge, release or defense of a guarantor or surety, or that might otherwise
limit recourse against Guarantor hereunder.
4. Notwithstanding any payment or payments made or obligation performed by
Guarantor by reason of this Guaranty, Guarantor hereby waives (i) any claim,
right or remedy that Guarantor may now or hereafter acquire against Lessee that
arises hereunder and/or by reason of any one or more payments or acts of
performance by Guarantor hereunder, including without limitation, any claim,
remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification or participation in any claim, right or remedy of the Owner
against Lessee or any security that Owner now has or hereafter acquires, whether
or not such claim, right or remedy arises in equity, under contract, by statute,
under common law or otherwise, (ii) any right to enforce any remedy which Lessee
or any other guarantor of Lessee's obligations now has or may hereafter have
against Owner or its assigns, and (iii) any right to enforce or exercise the
benefit of and any right to participate in, any security now or hereafter held
by Owner, in each case until all of the obligations guarantied hereby are
performed in full. If any amount shall nevertheless be paid to Guarantor by any
such Person in violation of this Guaranty, such amount shall be held by
Guarantor in trust for the benefit of Owner and shall forthwith be paid to
Owner. Guarantor further waives any defense to the recovery by Owner from
Guarantor of any deficiency or otherwise to the enforcement of this Guaranty
after a judicial or nonjudicial sale or other disposition of any security for or
any of the obligations of Lessee under the Lease or the
<PAGE>
7
Agency Agreement, even though such a sale may prevent Guarantor from exercising
rights of subrogation, if any, contribution or reimbursement against Lessee or
any other party. No payment hereunder by Guarantor shall give rise to any claim
by Guarantor against Owner, except for payments made in error by Guarantor to
the extent such payments are in excess of amounts due hereunder. Unless and
until all obligations of Lessee under and pursuant to the Lease and the Agency
Agreement, and of Guarantor hereunder, shall have been discharged by payment or
performance in full, Guarantor shall not assign or otherwise transfer any such
claim against Lessee to any other Person.
5. The following events shall constitute Events of Default under this
Guaranty: (i) Guarantor shall fail to make any payment due hereunder upon
demand, or (ii) (a) there shall occur a breach of any of the covenants contained
in paragraph 10 hereof (other than those covenants incorporated by reference
from the Credit Agreement pursuant to paragraph 10(a)(vi) hereof, except to the
extent that a violation of any such covenant gives rise to an event of default
under the Credit Agreement); or (b) Guarantor shall fail to perform or observe
any other provision hereof and such failure shall continue for 25 days after
written notice thereof to Guarantor from Owner, or (iii) if any representation
or warranty made by Guarantor herein or in any document, certificate or notice
furnished by Guarantor to Owner in connection herewith or pursuant hereto shall
prove to be false or misleading as of the time when made in any material respect
as of the time made, or (iv) (a) if Guarantor shall commence a voluntary case
under any Bankruptcy Law or file a petition in bankruptcy or for reorganization
or for an arrangement pursuant to any Bankruptcy Law; (b) if Guarantor shall
file for an order of relief or be adjudicated a debtor or a bankrupt under any
Bankruptcy Law or become insolvent; (c) if Guarantor shall generally not pay its
debts as such debts become due or shall make an assignment for the benefit of
creditors or shall admit in writing its inability to pay its debts generally as
they become due; or (d) if an involuntary case against Guarantor as debtor is
commenced by a petition for reorganization or liquidation under any Bankruptcy
Law, or if a petition or answer proposing the adjudication of Guarantor as a
bankrupt or its reorganization
<PAGE>
8
pursuant to any Bankruptcy Law shall be filed in any court and Guarantor shall
consent to or acquiesce in the filing thereof or such case, petition or answer
shall not be dismissed, discharged or denied within 60 days after filing
thereof; or (v) if a custodian for purposes of any Bankruptcy Law of
substantially all Guarantor's assets is appointed or otherwise takes possession
thereof and such appointment remains in effect for more than 60 days; or (vi) if
a receiver, U.S. Trustee, trustee or liquidator of Guarantor or all or
substantially all of the assets of Guarantor shall be appointed in any
proceeding brought by Guarantor, or if any such receiver, U.S. Trustee, trustee
or liquidator shall be appointed in any proceeding brought against Guarantor and
shall not be discharged within 60 days after such appointment, or if Guarantor
shall consent to or acquiesce in such appointment; or (vii) if there is an Event
of Default under the Lease or the Agency Agreement; then, in each such case, so
long as the same shall be continuing, Owner may, at its option, declare this
Guaranty in default, and at any time thereafter, so long as Guarantor shall not
have remedied all outstanding Events of Default hereunder, Owner shall be
entitled to exercise any remedy available to it at law or in equity. No express
or implied waiver by Owner of an Event of Default hereunder shall in any way be,
or be construed to be a waiver of any further or subsequent Event of Default.
Guarantor hereby waives any right now or hereinafter conferred upon it by
statute or otherwise which may limit or modify any of Owner's rights and
remedies contained herein. Guarantor agrees to give written notice to Owner (a)
of any Event of Default hereunder promptly after the occurrence thereof and (b)
of any Event of Default hereunder or under the Lease or the Agency Agreement,
immediately after the President or Chief Financial Officer of Guarantor obtains
Actual Knowledge of the occurrence thereof.
6. (a) In the event of a Default or Event of Default under the Agency
Agreement, Guarantor may, and in the event of the rejection or disaffirmation of
the Agency Agreement by Lessee as debtor in possession or Lessee's trustee in
bankruptcy pursuant to any Bankruptcy Law, Guarantor shall and does hereby
(without the necessity of any further agreement or act), assume all obligations
and liabilities of Lessee under the Agency Agreement to the same extent as if it
had been originally named instead of such Lessee as a party to such documents
and there
<PAGE>
9
had been no such rejection or disaffirmance; and Guarantor shall confirm such
assumption in writing at the request of Owner upon or after such rejection or
disaffirmance. Guarantor, upon such assumption, will have all rights of Lessee
under the Agency Agreement. From and after the date of such assumption, as
provided in this Section 6(a), all provisions of this Guaranty shall continue in
full force and effect as separate and independent undertakings of Guarantor,
binding upon and enforceable against Guarantor without regard to the validity or
enforceability of such assumption, and all provisions of this Guaranty
applicable to the Agency Agreement and to Owner and Lessee in respect of the
Agency Agreement shall also apply to such assumption and to Owner and Guarantor
in respect of such assumption to the same extent and in the same manner as such
provisions are applicable to the Agency Agreement and to Owner and Lessee in
respect of the Agency Agreement.
(b) In the event of a Default or Event of Default under the Lease,
Guarantor may, and in the event of the rejection or disaffirmation of the Lease
by Lessee as debtor in possession or Lessee's trustee in bankruptcy pursuant to
any Bankruptcy Law, Guarantor shall and does hereby (without the necessity of
any further agreement or act), assume all obligations and liabilities of Lessee
under the Lease to the same extent as if it had been originally named instead of
such Lessee as a party to such documents and there had been no such rejection or
disaffirmance; and Guarantor shall confirm such assumption in writing at the
request of Owner upon or after such rejection or disaffirmance. Guarantor, upon
such assumption, will have all rights of Lessee under the Lease. From and after
the date of such assumption, as provided in this Section 6(b), all provisions of
this Guaranty shall continue in full force and effect as separate and
independent undertakings of Guarantor, binding upon and enforceable against
Guarantor without regard to the validity or enforceability of such assumption,
and all provisions of this Guaranty applicable to the Lease and to Owner and
Lessee in respect of the Lease shall also apply to such assumption and to Owner
and Guarantor in respect of such assumption to the same extent and in the same
manner as such provisions are applicable to the Lease and to Owner and Lessee in
respect of the Lease.
<PAGE>
10
7. It is agreed that the liabilities and obligations of Guarantor
hereunder are primary and those of a principal, and are enforceable either
before, simultaneously with or after proceeding against Lessee or against any
property or security available to Owner.
8. This Guaranty may not be modified or amended except by a written
agreement duly executed by Guarantor with the consent in writing of Owner, the
Agent Bank and the Lenders. Neither this Guaranty, nor any of the obligations of
Guarantor hereunder may be assigned to any Person or entity by Guarantor.
9. Guarantor shall furnish the following financial statements to Owner:
(a) as soon as practicable, copies of all such financial
statements, proxy statements, notices, other communications
and reports as Guarantor shall send on a regular basis to its
shareholders and other information, if any, generally made
available to banks and other lenders (exclusive of proprietary
information);
(b) for any period that Guarantor is a public company, copies of
all reports on Form 10-K and Form 10-Q (and any successor
form) in each case together with a list describing all reports
filed with the Securities and Exchange Commission during the
reporting period, and any such listed reports shall be
delivered to Agent Bank and any Lender upon such Lender's
request which Guarantor is or may be required to file with the
Securities and Exchange Commission or any governmental body or
agency succeeding to the functions of the Securities and
Exchange Commission; and
(c) for any period that Guarantor is not a public company required
to file such reports with the Securities and Exchange
Commission, then within 105 days after the end of each fiscal
year, and within 60 days after the end of any other fiscal
quarter, financial statements containing substantially the
same information as the information that would be included in
such reports on Form 10-K or Form 10-Q, as the case may be,
and in any event, all in reasonable detail and satisfactory in
scope to Owner and Owner's mortgagee, all prepared in
accordance with GAAP and, with respect to the annual
statements, audited, by independent certified public
accountants of recognized national standing selected by
Guarantor.
Concurrently with the delivery of quarterly financial statements pursuant
hereto, Guarantor shall cause to be delivered to Owner an Officer's Certificate
(i) stating that to the best of the
<PAGE>
11
knowledge of the Applicable Officer executing such Officer's Certificate based
on reasonable inquiry, there exists no Default or Event of Default under the
Lease, the Agency Agreement or this Guaranty or if any such Default or Event of
Default exists, specifying the nature thereof, the period of existence thereof
and what action Guarantor proposes to take with respect thereto and (ii) setting
forth such information as shall be necessary for Owner and the Agent Bank to
confirm compliance by Guarantor with the covenants contained in Paragraph 10
hereof.
10. (a) Guarantor hereby covenants and agrees as follows:
(i) Leverage Ratio. (A) The Guarantor will not, as at the end
of any fiscal quarter, permit the ratio, calculated as at the end of such fiscal
quarter for the period of four fiscal quarters then ended, of (i) the excess of
(x) the aggregate outstanding principal amount of Funded Indebtedness (on a
consolidated basis) of the Guarantor and its Subsidiaries at such date over (y)
the aggregate amount of cash and Liquid Investments of the Guarantor and its
Subsidiaries at such date to (ii) EBITDA for such period (the Leverage Ratio) to
exceed the ratio of 5.75 to 1.
(B) The Guarantor will not, as at the end of any fiscal quarter, permit
the ratio, calculated as at the end of such fiscal quarter for the period of
four fiscal quarters then ended, of (i) the excess of (x) the aggregate
outstanding principal amount of Indebtedness (on a consolidated basis) of the
Pond Joint Venture and each Excluded Subsidiary at such date over (y) the
aggregate amount of cash and Liquid Investments of the Pond Joint Venture and
each Excluded Subsidiary at such date to (ii) EBITDA for such period (the
Foreign Leverage Ratio) to exceed 3.50 to 1. Solely for purposes of this
paragraph (B), in determining the Foreign Leverage Ratio, EBITDA shall be
determined by including only the Pond Joint Venture and each Excluded
Subsidiary.
(ii) Interest Coverage Ratio. Guarantor will not, as at the
end of any fiscal quarter, permit the ratio, calculated as at the end of such
fiscal quarter for the period of four fiscal quarters then ended, of (i) EBITDA
for such period to (ii) Interest Expense for such period to be less than the
ratio of 1.85 to 1.
<PAGE>
12
For purposes of calculating any ratio set forth in this clause (ii),
if Guarantor elects pursuant to the penultimate sentence of the definition of
EBITDA set forth in paragraph (c) below to include in EBITDA for the period to
which such ratio relates the pro forma amounts referred to in such sentence,
there shall be included in Interest Expense for such period, on a pro forma
basis, interest accruing during such period on Indebtedness (and the interest
portion of payments under Capitalized Lease Obligations) assumed or incurred by
Guarantor and its Subsidiaries (on a consolidated basis) in connection with any
Permitted Acquisition having Acquisition Consideration of more than $500,000
during such period.
(iii) Fixed Charges Coverage Ratio. Guarantor will not, as at
the end of any fiscal quarter, permit the ratio, calculated as at the end of
such fiscal quarter for the period of four fiscal quarters then ended, of (i)
Adjusted EBITDA for such period to (ii) Fixed Charges for such period to be less
than the ratio of 1.4 to 1.
For purposes of calculating any ratio set forth in this clause
(iii), if Guarantor elects pursuant to the penultimate sentence of the
definition of EBITDA to include in EBITDA for the period to which such ratio
relates the pro forma amounts referred to in such sentence, there shall be
included in Fixed Charges for such period, on a pro forma basis, principal
payable and interest accruing during such period on Indebtedness (and the
interest portion of payments under Capitalized Lease Obligations) assumed or
incurred by Guarantor and its Subsidiaries (on a consolidated basis) in
connection with any Permitted Acquisition having Acquisition Consideration of
more than $500,000 during such period.
(iv) Subordinated Indebtedness. Guarantor will maintain at all
times an aggregate principal amount of not less than $275,000,000 of
Subordinated Indebtedness. As used herein, "Subordinated Indebtedness" shall
mean Indebtedness that by its terms is equivalent or similar to Guarantor's
existing 10-1/8% Senior Subordinated Notes due 2006, the 8-3/4% Senior
Subordinated Notes due 2009, and the 8-1/4% Senior Subordinated Notes due 2011
which by its terms is subordinated to such Indebtedness.
<PAGE>
13
(v) Liens. Guarantor will not, and will not permit any of its
Subsidiaries to, create or suffer to exist any Lien upon any property or assets,
now owned or hereafter acquired, securing any Indebtedness or other obligation,
except: (i) Liens in favor of the agent bank and lenders under the Credit
Agreement on the capital stock and related proceeds of all Subsidiaries of the
Guarantor from time to time; (ii) the Liens existing on September 26, 1997 and
set forth on Schedule III to the Credit Agreement and Liens arising out of the
refinancing, extension, renewal or refunding of any Indebtedness secured by any
Lien set forth on such schedule, provided that the principal amount of such
Indebtedness is not increased and is not secured by any additional assets;
(iii)(A) Liens not otherwise prohibited by the Operative Documents contemplated
by or securing Indebtedness described in clauses (ii), (iv), (v) and (vii) of
the definition of Permitted Indebtedness set forth in the Credit Agreement; or
(B) Liens securing Acquired Debt, provided that such Liens cover only those
assets that were covered by such Liens prior to the relevant acquisition; (iv)
attachment, judgment or other similar Liens arising in connection with
litigation or other legal proceedings, provided that either (A) the claims in
respect of such Liens are fully covered by insurance or (B) the execution or
other enforcement of such Liens is effectively stayed and the claims secured
thereby are in an amount not to exceed $1,000,000 in the aggregate and are being
contested in good faith by appropriate proceedings diligently prosecuted; (v)
Liens on properties or assets of an Excluded Subsidiary securing Indebtedness of
such Excluded Subsidiary permitted under the Credit Agreement; (vi) other Liens
arising in the ordinary course of the business of the Guarantor or such
Subsidiary which are not incurred in connection with the borrowing of money or
the obtaining of advances or credit and which do not materially detract from the
value of its property or assets or materially impair the use thereof in the
operation of its business; (vii) Liens securing Indebtedness created or incurred
by the Pond Joint Venture or any Excluded Subsidiary, provided that such Liens
extend only to the assets of the Pond Joint Venture or any Excluded Subsidiary
incurring such Indebtedness as a primary obligor (and not as a guarantor) or
Capital Stock of the Pond Joint Venture or such Excluded Subsidiary; and (viii)
Liens arising under or created pursuant to the
<PAGE>
14
Lease or the Lease Agreement between Lessee and Iron Mountain Statutory Trust -
1998 dated as of October 1, 1998, as amended or supplemented from time to time.
(vi) Other Covenants. Guarantor will throughout the Term of
the Lease comply with all covenants of Guarantor contained in Section 9 of the
Credit Agreement, all of which are incorporated herein by reference; provided,
however, to the extent that any such covenant is inconsistent with any covenant
in the Operative Documents, including, without limitation contained in this
subparagraph (a), such covenant in the Operative Documents shall control and
shall not be subject to (b) below.
(b) The covenants incorporated by reference in (a)(vi) above, and
the related definitions shall, without further action hereunder, be amended to
conform to any amendment, written waiver, or modification to such covenants (or
related definitions) contained in the Credit Agreement; provided however, that
if the Credit Agreement shall be terminated for any reason, the form of the
covenants and the related definitions incorporated by reference in (a)(vi) above
at the time of such termination shall continue hereunder and Guarantor shall
execute such amendments or supplements hereto evidencing such survival as the
Agent Bank may reasonably request.
(c) As used in this paragraph 10, the following terms shall have the
following meanings:
"Acquired Debt" shall mean, with respect to the Guarantor or any
Subsidiary, Indebtedness of any other Person, existing at the time such other
Person merged with or into or became a Subsidiary of the Guarantor or any
Subsidiary thereof in connection with a Permitted Acquisition, provided that (i)
such Indebtedness was not created by such other Person in contemplation of such
acquisition and (ii) the aggregate outstanding principal amount of such
Indebtedness shall not at any time exceed $7,500,000.
<PAGE>
15
"Acquisition" shall mean an acquisition of assets of, or all or
substantially all of the Capital Stock of, another business by Guarantor and/or
one or more of its Subsidiaries.
"Acquisition Consideration" shall mean, with respect to any
Acquisition, the aggregate amount of consideration paid by Guarantor and its
Subsidiaries in connection therewith, inclusive of (a) Stock Consideration and
(b) other consideration on account of (i) any expenses incurred in connection
with such Acquisition, (ii) liabilities under agreements not to compete incurred
in connection with such Acquisition, (iii) the principal amount of Indebtedness
assumed in connection with such Acquisition and (iv) Additional Expenditures
related to such Acquisition.
"Additional Expenditures" shall mean, with respect to any
Acquisition, amounts expended or to be expended by Guarantor and its
Subsidiaries within twelve months after the date of such Acquisition to acquire
or construct facilities and equipment that are not part of the assets acquired
pursuant to such Acquisition but which are deemed by Guarantor to be essential
for the integration or restructuring of the assets so acquired.
"Adjusted EBITDA" shall mean, for any period, EBITDA for such
period, minus the tax provision for such period currently payable.
"Arcus UK" shall mean Arcus Data Security Limited, an English
company that, prior to the formation of the Pond Joint Venture, was wholly owned
by Arcus Data Security, Inc., a Delaware corporation and Wholly Owned Subsidiary
of the Guarantor.
"Capital Expenditures" shall mean expenditures in respect of fixed
assets by Guarantor or any of its Subsidiaries, including the capitalized amount
of Capital Lease Obligations incurred during the relevant period, other than (i)
expenditures for the restoration or
<PAGE>
16
replacement of fixed assets to the extent financed by the proceeds of an
insurance policy described in clause (i) of Section 9.03 of the Credit Agreement
or through a condemnation award, (ii) Permitted Acquisitions, (iii) Qualifying
Sale-Leaseback Transactions (except to the extent any lease of property or
assets by Guarantor or any of its Subsidiaries in connection therewith would
constitute a capital lease), (iv) Additional Expenditures related to Permitted
Acquisitions and (v) Large Volume Account Capitalized Expenditures.
"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property which
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board) and,
for purpose of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"Dollars" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean for any period, the sum (without duplication),
determined on a consolidated basis for Guarantor and its Subsidiaries, of (a)
net income for such period plus (b) to the extent deducted in determining net
income for such period, the sum of (i) depreciation and amortization (including
deferred financing costs, organization costs, goodwill and non-compete
amortization) for such period, (ii) other non-cash expenses for such period,
(iii)Interest Expense for such period, (iv) provision for income taxes for such
period, (v) extraordinary losses (including without limitation losses arising
from any natural disasters) for such period, (vi) non-compete expenses for such
period to the extent not capitalized in accordance with GAAP and (vii) losses on
sales of fixed assets not in the ordinary course of business for such period
after giving effect to any related charges for, reductions of or provisions for
taxes thereon minus (c) to
<PAGE>
17
the extent included in the calculation of net income for such period, the sum of
(i) other income (including interest income) for such period, (ii) extraordinary
gains for such period and (iii) gains on sales of fixed assets not in the
ordinary course of business for such period after giving effect to any related
charges for, reduction of or provisions for taxes thereon.
For the purposes of calculating the ratios set forth in clauses
(i)(A), (ii) and (iii) of paragraph 10(a) there may, at the Guarantor's option,
and for purposes of calculating the ratio set forth in clause (i)(B) of
paragraph 10(a) there will be included in EBITDA for any relevant period, on a
pro forma basis (adjusted to give effect to expenses that will not be ongoing),
the net income (and the additions and subtractions thereto referred to above)
for such period of any Person (or assets) acquired after the commencement of
such period in connection with any acquisition not prohibited hereunder or under
the Credit Agreement where the aggregate amount of consideration paid is more
than $500,000. The net income (and the related additions and subtractions) of
the Person or assets acquired pursuant to such acquisition for such period shall
be calculated by reference to the most recent available quarterly financial
statement of the acquired business, annualized.
"Excluded Subsidiary" shall mean any Subsidiary of the Guarantor
principally engaged in the records management business organized outside the
United States.
"Fixed Charges" shall mean for any period the sum of (i) Scheduled
Amortization for such period plus (ii) Interest Expense for such period plus
(iii) the aggregate amount of Maintenance Capital Expenditures for such period
plus (iv) the aggregate amount of non-compete expenses for such period to the
extent not capitalized in accordance with GAAP.
"Foreign Leverage Ratio" has the meaning set forth in Section
10(a)(i)(B)(ii) hereof.
<PAGE>
18
"Funded Indebtedness" shall mean, without duplication, (a)
Indebtedness (other than in respect of Synthetic Lease Obligations) that matures
or otherwise becomes due more than one year after the incurrence thereof or is
extendible, renewable or refundable, at the option of the obligor, to a date
more than one year after the incurrence thereof (including the current portion
thereof), (b) Indebtedness outstanding under the Credit Agreement and (c)
Synthetic Lease Obligations of Lessee and any Guarantees by the Guarantor
thereof.
"GAAP" shall mean generally accepted accounting principles as in
effect from time to time consistently applied.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise, other
than agreements to purchase goods at an arm's length price in the ordinary
course of business) or (ii) entered into for the purpose of assuring in any
other manner the holder of such Indebtedness of the payment thereof or to
protect such holder against loss in respect thereof (in whole or in part),
provided that the term Guaranty shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee" used as a verb
has a corresponding meaning.
"Indebtedness" shall mean, as to any Person (determined without
duplication):
(i) indebtedness of such Person for borrowed money (whether by loan
or the issuance and sale of debt securities) or for the deferred purchase
or acquisition price of
<PAGE>
19
property or services (including amounts payable under agreements not to
compete and other similar arrangements), other than accounts payable
(other than for borrowed money) incurred in the ordinary course of
business and accrued expenses incurred in the ordinary course of business;
(ii) obligations of such Person in respect of letters of credit or
similar instruments issued or accepted by banks and other financial
institutions for the account of such Person;
(iii) Capital Lease Obligations and Synthetic Lease Obligations of
such Person;
(iv) obligations of such Person to redeem or otherwise retire shares
of Capital Stock of such Person;
(v) indebtedness of others of the type described in clauses (i)
through (iv) above secured by a Lien on the property of such Person,
whether or not the respective obligation so secured has been assumed by
such Person; and
(vi) indebtedness of others of the type described in clause (i)
through (v) above Guaranteed by such Person.
Notwithstanding anything to the contrary contained in clause (i) of the
preceding sentence, indebtedness of any Person in respect of amounts payable
under an agreement not to compete shall be the amount carried on the balance
sheet of such Person in respect of such agreement in accordance with GAAP.
<PAGE>
20
"Interest Expense" shall mean, for any period, the sum (determined
without duplication) of the aggregate amount of interest accruing during such
period on Indebtedness of the Guarantor and its Subsidiaries (on a consolidated
basis), including the interest portion of rental or similar payments under
Capital Lease Obligations and Synthetic Leases and any capitalized interest, and
excluding amortization of debt discount and expense and interest paid in kind.
"Large Volume Account Capitalized Expenditures" shall mean any
expenditures incurred by Guarantor or its Subsidiaries in connection with new
customers initially storing with Guarantor or its Subsidiaries in excess of
10,000 boxes, to the extent that such expenditures are capitalized in accordance
with GAAP.
"Lender" shall have the meaning assigned to such term in the Credit
Agreement.
"Leverage Ratio" has the meaning set forth in Section
10(a)(i)(A)(ii) hereof.
"Lien" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this paragraph 10, Guarantor and each of its
Subsidiaries shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Liquid Investments" shall mean:
(i) certificates of deposit maturing within 90 days of the
acquisition thereof denominated in Dollars and issued by (X) a Lender or
(Y) a bank or trust company having combined capital and surplus of at
least $500,000,000 and which has (or which is
<PAGE>
21
a Subsidiary of a bank holding company which has) publicly traded debt
securities rated A or higher by Standard & Poor's Ratings Services or A-2
or higher by Moody's Investors Service, Inc.;
(ii) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause (i) above
entered into with (x) any Lender or (y) any bank or trust company meeting
the qualifications specified in clause (i)(Y) above;
(iii) obligations issued or guaranteed by the United States of
America, with maturities not more than one year after the date of issue;
(iv) commercial paper with maturities of not more than 90 days and a
publishing rating of not less than A-2 and P-2 (or the equivalent rating);
and
(v) investments in money market funds substantially all of whose
assets are comprised of securities and other obligations of the types
described in clauses (i) through (iv) above.
"Maintenance Capital Expenditures" shall mean Capital Expenditures
required to maintain, reconfigure, or replace existing assets (as distinguished
from Capital Expenditures relating to growth and as distinguished from
Additional Expenditures), as certified consistent with the provisions of Section
9.01(i) of the Credit Agreement.
"Permitted Acquisition" has the meaning set forth in Section 9.12 of
the Credit Agreement.
<PAGE>
22
"Permitted Indebtedness" shall have the meaning assigned to such
term in the Credit Agreement.
"Permitted Investment" shall have the meaning assigned to such term
in the Credit Agreement.
"Person" shall mean an individual, a corporation, a company, a
voluntary association, a partnership, a limited liability company, a trust, an
unincorporated organization or a government agency or any agency,
instrumentality or political subdivision thereof.
"Pond Joint Venture" shall mean Britannia Data Management Limited,
an English company, a majority of the shares of Capital Stock of which
(immediately after giving effect to the Pond Transaction) will be owned by the
Guarantor or a Subsidiary of the Guarantor.
"Pond Transaction" shall mean (i) the contribution by the Guarantor
or a Subsidiary of the Guarantor to the Pond Joint Venture of Capital Stock of
Arcus UK having a fair market value of up to but not exceeding (pound)2,000,000
and (ii) the purchase by the Guarantor or a Subsidiary of the Guarantor of
Capital Stock of the Pond Joint Venture for an aggregate consideration of up to
but not exceeding (pound)37,250,000.
"Qualifying Sale-Leaseback Transaction" shall mean any arrangement
by which Guarantor or any of its Subsidiaries enters into an arrangement with
any bank, insurance company or other lender or investor providing for the
leasing to Guarantor or a Subsidiary thereof of any real property which has been
or is to be sold or transferred by Guarantor or such Subsidiary to such lender
or investor or to any Person to whom funds have been or are to be advanced by
such lender or investor and where the real property in question has been
constructed after September 26, 1997.
<PAGE>
23
"Scheduled Amortization" shall mean, for any period, the sum
(calculated without duplication) of all payments of principal of Indebtedness of
Guarantor (other than Indebtedness under the Credit Agreement) scheduled to be
made during such period.
"Security Documents" shall have the meaning assigned to such term in
the Credit Agreement.
"Stock Consideration" shall mean, with respect to any Acquisition,
the aggregate amount of consideration paid by Guarantor and its Subsidiaries in
connection therewith consisting of Guarantor's common stock or with proceeds of
the issuance of Guarantor's common stock within twelve months prior to the date
of such Acquisition. For purposes hereof, the amount of Stock Consideration paid
by Guarantor in respect of any Acquisition where the Stock Consideration
consists of Guarantor's common stock shall be deemed to be equal to the fair
market value of Guarantor's common stock so paid, determined in good faith by
Guarantor at the time of such Acquisition.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership, limited liability company or other entity of which at
least a majority of the securities or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions of such corporation,
partnership, limited liability company or other entity (irrespective of whether
or not at the time securities or other ownership interests of any other class or
classes of such corporation, partnership, limited liability company or other
entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person or by such Person and one or
more Subsidiaries of such Person.
<PAGE>
24
"Synthetic Lease" shall mean a lease of property or assets designed
to permit the lessee (i) to claim depreciation on such property or assets under
U.S. tax law and (ii) to treat such lease as an operating lease or not to
reflect the leased property or assets on the lessee's balance sheet under GAAP.
"Synthetic Lease Obligations" shall mean, with respect to any
Synthetic Lease, at any time, an amount equal to the higher of (x) the aggregate
termination value or purchase price or similar payments in the nature of
principal payable thereunder and (y) the then aggregate outstanding principal
amount of the notes or other instruments issued by, and the amount of the equity
investment, if any, in the lessor under such Synthetic Lease.
(d)(x) Guarantor shall not merge into or consolidate with any other
Person or sell, transfer, lease or otherwise convey all or substantially all its
assets as an entirety; provided that, so long as no Default or Event of Default
shall have occurred and be continuing or would result therefrom, the Guarantor
may merge with another Person so long as (i) the Guarantor is the surviving
entity, and (ii) after giving effect to such merger, the Guarantor, as the
surviving entity, would have a tangible net worth (as hereinafter defined) equal
to or greater than Guarantor's tangible net worth immediately prior to such
merger.
(y) Guarantor shall not permit any of its Subsidiaries to merge into
or consolidate with any other Person or sell, transfer, lease or otherwise
convey all or substantially all their assets as an entirety; provided that (a)
Lessee may merge into or consolidate with any other Person or sell, transfer,
lease or otherwise convey all or substantially all its assets as an entirety in
accordance with Article 15 of the Lease and (b) so long as no Default or Event
of Default shall have occurred and be continuing or would result therefrom, that
(A) any Subsidiary may sell, transfer, lease or otherwise convey all or
substantially all of its assets to the Guarantor or any Person that is, or
becomes, a Subsidiary of the Guarantor or (B) any Subsidiary may merge into
<PAGE>
25
the Guarantor or any of its Subsidiaries, and (C) any Subsidiary (other than
Lessee) may merge into another Person if, contemporaneously therewith, such
Person becomes a Subsidiary of the Guarantor.
(z) The Guarantor shall not, and shall not permit any of its
Subsidiaries to, issue or sell any stock of any Subsidiary that is not an
Excluded Subsidiary to any Person or Persons, other than to the Guarantor or its
Subsidiaries, to the extent not prohibited by clause (x) of this subparagraph
(d) above.
"tangible net worth" of the Guarantor means, at any date, the excess of
the consolidated total assets of Guarantor and its Subsidiaries at such date
over the consolidated total liabilities of Guarantor and its Subsidiaries at
such date, and less (without duplication of amounts) the sum at such date of :
(i) all goodwill, organizational expenses, research and development expenses,
trademarks, trade names, copyrights, patents, patent applications, licenses and
rights in any thereof, and other similar intangibles, (ii) all reserves carried
and not deducted from assets or included in consolidated total liabilities,
(iii) securities which are not readily marketable, (iv) any subscriptions
receivable and (v) any items not included in clauses (i) through (iii) above,
which are treated as intangibles in conformity with GAAP, all of the foregoing
as determined for any such date as of the end of the immediately preceding
fiscal quarter in accordance with GAAP.
(e) Guarantor shall at all times during the Term of the Lease carry a
footnote on its financial statements required by paragraph 9 hereof referring to
the transactions contemplated by the Operative Documents, in the form currently
appearing in Guarantor's financial statements.
(f) Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all determinations with respect to accounting matters
hereunder shall be made, and all financial statements and certificates and
reports as to financial matters required to be
<PAGE>
26
delivered hereunder shall be prepared, in accordance with GAAP; provided that if
any change in GAAP proposed after the date hereof in itself materially affects
the calculation of any financial covenant in this paragraph 10 (or incorporated
by reference herein), the Guarantor may by notice to the Owner and Agent Bank,
or the Owner or Agent Bank may by notice to the Guarantor, require that such
covenant thereafter be calculated in accordance with GAAP as in effect, and
applied by the Guarantor, immediately before such change in GAAP occurs.
11. Guarantor will permit Owner and the Indemnified Parties to visit the
offices of Guarantor at its address set forth herein and to examine its records
and books of account and to discuss its affairs, finances and accounts with its
officers upon reasonable notice at such reasonable times as may be requested by
Owner or such Indemnified Party or any assignee of Owner's rights hereunder.
12. Guarantor understands and acknowledges that Owner may enter into one
or more financings to finance the Costs of the Properties pursuant to which
Owner will encumber its interest in the Properties. In connection with any such
financing, Guarantor understands and acknowledges that Owner may assign its
rights in and to this Guaranty and Guarantor hereby agrees that: (i) Owner may
assign its rights hereunder in connection therewith; (ii) in connection with any
such assignment by Owner, Guarantor will consent in writing thereto; and (iii)
from and after such assignment, the rights and benefits of Owner hereunder shall
inure to the benefit of, and be exercisable by any assignee, pursuant to and in
accordance with the terms of such assignment.
13. Guarantor agrees that at any time and from time to time so long as
this Guaranty is in effect, it will promptly, but in no event later than 15 days
after request by Owner, execute, acknowledge and deliver to Owner a certificate
stating: (i) that this Guaranty is unmodified and in full force and effect (or
if there have been modifications, that this Guaranty is in full force and effect
as modified, and identifying such modification agreements); (ii) whether or not
there is an
<PAGE>
27
existing Default or Event of Default hereunder and, if there is any such Default
or Event of Default, specifying the nature and extent thereof; and (iii) whether
or not there are any setoffs, defenses or counterclaims against enforcement of
the obligations to be performed hereunder existing in favor of Guarantor.
Guarantor further agrees that it will upon five day's prior notice from Owner
execute and deliver to Owner's mortgagee a certificate stating the above.
14. Guarantor represents and warrants that:
(a) Guarantor (i) is a corporation duly organized and validly
existing under the laws of the State of Delaware, and (ii) has
all requisite legal power and authority to enter into this
Guaranty, to perform and observe the terms and conditions
hereof, and has all requisite legal power and authority to own
its properties and conduct its business as currently conducted
except for such licenses, permits and approvals which would
not, individually or in the aggregate, have a material adverse
effect on Guarantor's ability to perform the Guaranteed
Obligations. Guarantor is qualified to do business as a
foreign corporation in all jurisdictions where its ownership
of property or the nature of its business required such
qualification. This Guaranty has been duly authorized,
executed and delivered by Guarantor and constitutes the legal,
valid and binding obligation by Guarantor enforceable against
Guarantor in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, reorganization and
other laws of general application relating to or affecting the
enforcement of creditors' rights and general principles of
equity.
(b) There are no actions, suits or proceedings pending or, to its
actual knowledge, threatened against or affecting Guarantor at
law or in equity before any court or administrative office or
agency an adverse determination in which could, individually
or in the aggregate, have a material adverse effect on
Guarantor's ability to perform the Guaranteed Obligations.
Guarantor is not in default (i) in the payment of any taxes
levied or assessed against it or its assets or (ii) under or
in violation of any statute, rule, order, decree, writ,
injunction or regulation of any governmental body (including
any court) except where the failure to pay such taxes or the
existence of such defaults or violations would, individually
or in the aggregate, not have a material adverse effect on
Guarantor's ability to perform the Guaranteed Obligations.
<PAGE>
28
(c) Guarantor is not a party to any contract or agreement or
subject to any restriction or to any order, rule, regulation,
writ, injunction or decree of any court or governmental
authority or to any statue which materially and adversely
affects its ability to perform the Guaranteed Obligations.
Neither the execution, delivery or performance by Guarantor of
this Guaranty nor its compliance herewith or therewith (i)
conflicts or will conflict with or results or will result in a
breach of or constitutes or will constitute a default under
(A) any law in effect as of the date of delivery of this
Guaranty, (B) the articles of incorporation or by-laws of
Guarantor, (C) any agreement or instrument to which Guarantor
is a party or by which it is bound, or (D) any order, writ,
injunction or decree of any court or other governmental
authority, or (ii) results or will result in the creation or
imposition of any lien, charge or encumbrance upon Guarantor's
property pursuant to such agreement or instrument.
(d) The execution, delivery and performance by Guarantor of this
Guaranty do not require (i) any stockholder approval or the
consent or approval of any of Guarantor's creditors (except as
have already been obtained in writing), or (ii) any
authorization, consents, or approvals, of or filings with any
governmental authority, except for such authorization,
consents, approvals or filings which have been obtained and
are in full force and effect.
(e) No event has occurred and is continuing with respect to
Guarantor which would constitute a Default or an Event of
Default hereunder. No Default or Event of Default by Lessee
exists under the Agency Agreement or the Lease. Guarantor is
not in default in the payment of the principal or interest on
any indebtedness for borrowed money or for its deferred
purchase of property or in default under any instrument or
agreement under and subject to which any such indebtedness has
been issued or under any lease, in any case involving the
likelihood of any actions or proceedings against it which
would materially and adversely affect Guarantor or its ability
to perform under this Guaranty.
(f) Guarantor is in compliance in all material respects with all
applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended (ERISA), and the regulations
and published interpretations thereunder. No "reportable
event", as such term is defined in Section 4043 of ERISA, has
occurred with respect to any employee pension benefit plan (as
defined in ERISA), and Guarantor has not incurred, nor does it
reasonably expect to incur, any liability to the Pension
Benefit Guaranty
<PAGE>
29
Corporation under Section 44062 of ERISA or to any
multiemployer plan (as defined in ERISA) under Section 4201 of
ERISA. Guarantor has not incurred any accumulated funding
deficiency within the meaning of Section 302 of ERISA nor is
it subject to any lien arising under Section 307 of ERISA or
Section 401(a)(29) or 412(n) of the Internal Revenue Code of
1986, as amended.
(g) Guarantor's assets are not less than its liabilities, both
determined in accordance with GAAP, and Guarantor is solvent.
The transactions contemplated by this Guaranty are in
furtherance of Guarantor's ordinary business purposes and in
furtherance of its corporate purposes with no contemplation of
insolvency and with no intent to hinder, delay or defraud any
of its present or future creditors. Neither before nor as a
result of the transactions contemplated by this Guaranty will
Guarantor be or be rendered insolvent or have an unreasonably
small capital for the conduct of its business and the payment
of its anticipated obligations. Guarantor's assets and cash
flow enable it to meet its present obligations in the ordinary
course of business as they become due, and Guarantor does not
believe that it will incur debts beyond its ability to pay
such debts.
(h) Neither (i) the consolidated financial statements for
Guarantor's fiscal year ending in December 31, 1998, (ii) this
Guaranty, nor (iii) any written statement furnished by
Guarantor in connection with the transactions contemplated by
the Operative Documents, contains any untrue statement of a
material fact or omits a material fact necessary to make the
statements contained therein not misleading. There is no fact
applicable to Guarantor which Guarantor has not disclosed in
writing which materially affects adversely nor so far as
Guarantor can now reasonably foresee will materially affect
adversely the properties, business, prospects, profits or
condition (financial or otherwise) of Guarantor. Guarantor
represents that the consolidated financial statements
specified above (i) are complete and correct in all material
respects, (ii) present fairly in all material respects the
financial condition of Guarantor on the dates for which, and
the results of its operations for the periods for which, the
same have been furnished, and (iii) have been prepared in
accordance with GAAP consistently applied, except as otherwise
disclosed therein. Guarantor represents that as of the Initial
Closing Date there shall have been no material adverse change
in the condition of Lessee, financial or otherwise, since the
date of the most recent financial statements of Guarantor
delivered to Owner.
<PAGE>
30
(i) There has been no material adverse change in Guarantor's
business or financial condition since December 31, 1998 that
individually or the aggregate would adversely affect
Guarantor's ability to perform the Guaranteed Obligations.
15. All agreements, representations and warranties contained herein or
made in writing by Guarantor shall survive the execution and delivery of this
Guaranty.
16. This Guaranty shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and assigns.
17. This Guaranty shall be construed and enforced in accordance with, and
governed by, the laws of the Commonwealth of Massachusetts. In connection with
this Guaranty and the transactions contemplated by the Operative Documents,
Guarantor hereby agrees to the non-exclusive personal jurisdiction of and venue
in the state courts of the Commonwealth of Massachusetts, and the United States
District Courts located in the Commonwealth of Massachusetts.
18. Any provision of this Guaranty which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
19. Any notice to be given under this Guaranty shall be given in the
manner provided in the Lease, addressed to Guarantor or Owner at its address set
forth at the beginning of this Guaranty, or as either such party may otherwise
provide by notice to the other party.
20. GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY
GUARANTOR; AND GUARANTOR FURTHER ACKNOWLEDGES THAT IT HAS
<PAGE>
31
BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING
OF THIS GUARANTY AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS
THIS WAIVER WITH COUNSEL.
***
<PAGE>
IN WITNESS WHEREOF, Guarantor has caused this Unconditional Guaranty to be
executed under seal and delivered as of the day and year first above written.
IRON MOUNTAIN INCORPORATED
By: /s/ J. P. Lawrence
----------------------------
Name: J.P. Lawrence
Title: VP, Treasurer
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEET AT SEPTEMBER 30, 1999, AND THE
UNAUDITED CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS FOR THE NINE MONTH
PERIOD THEN ENDED AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0001004317
<NAME> IRON MOUNTAIN INCORPORATED
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLAR
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-1-1999
<PERIOD-END> JUN-30-1999
<EXCHANGE-RATE> 1.000
<CASH> 3,472
<SECURITIES> 0
<RECEIVABLES> 110,590
<ALLOWANCES> (4,475)
<INVENTORY> 0
<CURRENT-ASSETS> 144,988
<PP&E> 477,889
<DEPRECIATION> (98,640)
<TOTAL-ASSETS> 1,287,924
<CURRENT-LIABILITIES> 116,469
<BONDS> 603,063
0
0
<COMMON> 368
<OTHER-SE> 483,787
<TOTAL-LIABILITY-AND-EQUITY> 1,287,924
<SALES> 378,043
<TOTAL-REVENUES> 378,043
<CGS> 189,828
<TOTAL-COSTS> 330,236
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 40,246
<INCOME-PRETAX> 7,676
<INCOME-TAX> 7,805
<INCOME-CONTINUING> (644)
<DISCONTINUED> (13,159)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (13,803)
<EPS-BASIC> (0.42)
<EPS-DILUTED> (0.42)
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEET AT SEPTEMBER 30, 1998, AND THE
UNAUDITED CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS FOR THE NINE MONTH
PERIOD THEN ENDED AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0001004317
<NAME> IRON MOUNTAIN INCORPORATED
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLAR
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-1-1998
<PERIOD-END> SEP-30-1998
<EXCHANGE-RATE> 1.000
<CASH> 522
<SECURITIES> 0
<RECEIVABLES> 75,145
<ALLOWANCES> (2,971)
<INVENTORY> 0
<CURRENT-ASSETS> 92,456
<PP&E> 331,140
<DEPRECIATION> (80,897)
<TOTAL-ASSETS> 894,706
<CURRENT-LIABILITIES> 80,383
<BONDS> 443,189
0
0
<COMMON> 293
<OTHER-SE> 340,167
<TOTAL-LIABILITY-AND-EQUITY> 894,706
<SALES> 281,064
<TOTAL-REVENUES> 281,064
<CGS> 141,179
<TOTAL-COSTS> 246,837
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 34,166
<INCOME-PRETAX> 1,761
<INCOME-TAX> 3,720
<INCOME-CONTINUING> (1,959)
<DISCONTINUED> 315
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,644)
<EPS-BASIC> (0.06)
<EPS-DILUTED> (0.06)
</TABLE>
