Exhibit 10.22
AMENDED AND RESTATED
AGENCY AGREEMENT
by and between
IRON MOUNTAIN STATUTORY TRUST - 1998
and
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
Dated as of October 1, 1998
TABLE OF CONTENTS
PAGE
PRELIMINARY STATEMENT.............................................................................................1
ARTICLE 1 DEFINED TERMS.................................................................................2
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 AND REIMBURSEMENTS...........................................................3
3.1 Owner's Obligations...........................................................................3
3.2 Advances......................................................................................4
3.3 Owner's Cooperation...........................................................................5
ARTICLE 4 INITIAL CLOSING, DESIGNATION OF ADDITIONAL PROPERTIES
BY AGENT, AND ADDITIONAL CLOSINGS.............................................................5
4.1 Initial Closing...............................................................................5
4.2 Designation of Additional Properties..........................................................5
4.3 Limits on Acquisition of Existing Facilities and New Facilities. ............................6
4.4 Additional Closings...........................................................................7
4.5 Loan Financing................................................................................7
ARTICLE 5 CONDITIONS OF OWNER'S OBLIGATIONS.............................................................8
5.1 Conditions to the Closings....................................................................8
5.1.1 Operative Documents...........................................................................8
5.1.2 Taxes.........................................................................................9
5.1.3 Status of Title...............................................................................9
5.1.4 Title Insurance...............................................................................9
5.1.5 Survey; Zoning................................................................................9
5.1.6 Opinions of Counsel..........................................................................10
5.1.7 Certificates.................................................................................10
5.1.8 Legal Restrictions...........................................................................10
5.1.9 No Adverse Change............................................................................10
5.1.10 Environmental Reports........................................................................10
5.1.11 Evidence of Insurance........................................................................11
5.1.12 Closing of Loans and Equity Investment.......................................................11
5.1.13 Proceedings and Documents....................................................................11
5.1.14 Fees and Expenses............................................................................11
5.1.15 Requisition..................................................................................12
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5.1.16 Appraisals...................................................................................12
5.1.17 Other Requirements...........................................................................12
ARTICLE 6 CONDITIONS OF AGENT'S OBLIGATIONS AT CLOSINGS................................................12
6.1 Operative Documents..........................................................................12
6.2 Opinions of Counsel..........................................................................13
6.3 Certificates.................................................................................13
6.4 Legal Restrictions...........................................................................13
6.5 Equity Investment............................................................................13
ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF AGENT......................................................13
7.1 Organization and Power.......................................................................13
7.2 Full Disclosure..............................................................................14
7.3 Litigation...................................................................................14
7.4 No Adverse Change............................................................................14
7.5 No Defaults..................................................................................14
7.6 No Violation.................................................................................14
7.7 Agreements are Legal and Authorized..........................................................15
7.8 Insurance....................................................................................15
7.9 Consents.....................................................................................15
7.10 Approvals....................................................................................15
7.11 Compliance; Taxes............................................................................15
7.12 Use of Advances..............................................................................16
7.13 Lease........................................................................................16
7.14 Use..........................................................................................16
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......................................................17
8.1 Organization and Power.......................................................................17
8.2 Agreements Legal and Authorized. ............................................................17
8.3 Litigation...................................................................................17
8.4 No Violation.................................................................................17
8.5 Consents.....................................................................................18
ARTICLE 9 DEFAULTS AND REMEDIES........................................................................18
9.1 Events of Default............................................................................18
9.2 Remedies.....................................................................................19
9.3 Costs of Enforcement.........................................................................19
9.4 Cumulative Remedies..........................................................................20
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ARTICLE 10 MISCELLANEOUS................................................................................20
10.1 Governing Law; Jurisdiction and Venue........................................................20
10.2 Notices; Modification; Waiver................................................................20
10.3 Illegal Provision............................................................................20
10.4 Binding Effect; Third Party Beneficiary......................................................21
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 Limitations on Liability.....................................................................22
10.12 Conveyance of Houston Parcel.................................................................23
10.13 Louisiana Provisions.........................................................................23
Appendix I Definitions
Schedule A Land Parcels
Schedule 4.1 Existing Facilities
This AMENDED AND RESTATED AGENCY AGREEMENT, is dated as of October 1,
1998 (this Agreement), by and between IRON MOUNTAIN STATUTORY TRUST - 1998, 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). This Agreement amends, restates and
supersedes in its entirety that certain Agency Agreement between Owner and Agent
dated as of August 6, 1998, as amended by the Supplement and Amendment No. 1 to
Agency Agreement dated as of October 1, 1998.
PRELIMINARY STATEMENT
Agent has accepted the Lease Proposal made by Placement Agent for the
lease financing of Properties consisting of approximately seventeen new or
existing warehouse storage facilities to be located in several states. As of
August 6, 1998, Agent arranged for the Owner to acquire two Land Parcels, one in
San Antonio, Texas and one in Houston, Texas ("Houston Parcel") and the Existing
Improvements on the San Antonio Land Parcel ('San Antonio Facility") and to
maintain and/or operate the Land Parcels as agent for Owner. On such date, Agent
caused the Land Parcels and the Existing Improvements to be conveyed to Owner
pursuant to the Conveyance Documents. On October 1, 1998, Agent arranged for
Owner to acquire the Land Parcel and the Existing Improvements thereon located
in Harahan, Louisiana. Prior to the date hereof, Owner conveyed the San Antonio
Facility to Agent. Agent, as agent for Owner, desires from time to time to
acquire the Existing Facilities and the New Facilities in each case, as set
forth in Article 4 below. Upon acquisition by Owner of the Existing Facilities,
and any New Facilities, Owner will lease each Land Parcel and the Existing
Improvements thereon to Agent pursuant to the Lease. Owner will appoint Agent as
its agent to undertake the acquisition of the Existing Facilities and the New
Facilities and will own the Improvements for all Properties. For each Existing
Facility and New Facility, Agent will pay for or cause to be paid, the Costs of
the Property with the payments made and to be made by Owner pursuant to Article
III hereof and, to the extent required in this Agreement, with its own funds.
Pursuant to the Loan Agreement, Owner will borrow up to 97% 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 3%
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.
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ARTICLE 1
DEFINED TERMS
Capitalized terms used in this Agreement and not otherwise defined have
the meanings set forth in Appendix I.
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 acquire the Properties strictly in accordance with the terms and
conditions of this Agreement and the other Operative Documents, to pay (with
funds borrowed or provided by Owner) 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 with respect to the
acquisition of the Properties. 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 New Facility Acquisition Outside Date, (ii) the acquisition of all
New Facilities and (iii) notice by Owner to Agent of such termination after the
occurrence and 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 the Initial Advance,
(b) the proceeds of Additional Advances and (c) its own funds to the extent
required under Article 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
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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 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 AND REIMBURSEMENTS
3.1 Owner's Obligations. 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, Owner agrees to pay or cause to
be paid the Costs of the Properties to Agent or to Persons designated by Agent
in writing. Owner shall make (i) the Initial Advance solely out of the proceeds
to Owner of the initial Equity Investment and the proceeds of any Loans at the
Initial Closing and (ii) any Additional Advances on account of the Costs of the
Properties from time to time solely out of advances available to Owner from the
proceeds of the Loans and any Additional Equity Investment, in each case subject
to the terms and conditions of this Agreement and the Loan Agreement. Nothing
contained in this Agreement shall in any 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.
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3.2 Advances. (a) Subject to the terms and conditions hereof, on the
Initial Closing Date, Owner shall make an advance to Agent or designated Persons
on account of the Costs of the Properties with respect to the Existing
Facilities acquired on such Date (the "Initial Advance") from Loans and the
Equity Investment upon a Requisition therefor delivered in substantial
accordance with the provisions hereof and of the Loan Agreement.
(b) Subject to the terms and conditions of the Loan Agreement and of
this Agreement, and so long as no Event of Default has occurred and is
continuing hereunder, Owner shall make an Additional Equity Investment and shall
cause Agent Bank to make additional payments to Agent or designated Persons upon
Agent's written request from time to time no more frequently than monthly, on
account of the Costs of the Properties incurred by Agent with respect to the
acquisition of New Facilities or Existing Facilities after the Initial Closing
Date (each such payment referred to herein as an "Additional Advance," and such
payments together with the Initial Advance, collectively, "Owner Advances").
Additional Advances shall be made upon Agent's delivery of Requisitions in
accordance with the provisions of Article 5 hereof and Article 3 of the Loan
Agreement, subject to the satisfaction of all conditions to each Additional
Advance. 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.
(c) Each Additional Advance shall be in an amount not to exceed 100% of
the Costs of the Property or Properties being acquired on such Closing Date, but
in any case only out of funds available to Owner from the proceeds of the Loans
and any Additional Equity Investment.
(d) The aggregate of all Owner Advances made under this Agreement shall
not exceed (i) the Existing Facility Maximum Amount with respect to Existing
Facilities, (ii) the New Facility Maximum Amount with respect to any New
Facilities, or (iii) the Total Property Cost in the aggregate. Owner shall make
or cause to be made each Additional Advance by wire transfer to Agent, at Union
Bank of California, ABA No. ▇▇▇▇▇▇▇▇▇, account in the name of "Iron Mountain
Records Management, Inc.", account number ▇▇▇▇-▇▇▇-▇▇▇, 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 Additional Advance. Any
Additional 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.
3.3 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 Advances under the Loan Agreement.
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ARTICLE 4
INITIAL CLOSING, DESIGNATION OF ADDITIONAL PROPERTIES
BY AGENT, AND ADDITIONAL CLOSINGS
4.1 Initial Closing
Subject to compliance with the provisions of this Agreement, the
initial closing of the Loans and the execution and delivery of the Lease as to
the initial group of Existing Facilities (the "Initial Closing") shall take
place at 10:00 a.m., Boston time, on October 6, 1998 (the "Initial Closing
Date"), at the offices of Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. At the Initial Closing, subject to compliance by Agent with
its obligations under Article 5 and Owner of its obligations under Article 6,
Agent and Owner shall enter into the Lease with respect to those Existing
Facilities designated on Schedule 4.1 attached hereto which are ready to be
acquired at the Initial Closing, all in accordance with the terms and conditions
set forth herein.
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 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 shall
not perform its obligations in accordance with this Agreement or if the
conditions specified in Article 6 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 Additional Properties. In addition to Existing
Facilities, Owner and Agent anticipate that Agent will designate additional
warehouse storage facilities as New Facilities hereunder. To the extent that
Agent desires to so designate any such additional New Facility ("Additional
Property"), Agent shall provide Owner and Agent Bank with 15 Business Days
advance written notice ("Additional Property Designation Notice") thereof, which
notice shall be attached to the Requisition and shall include the following:
(a) each Additional Property Designation Notice shall include the
following:
(i) a detailed description of any Existing Improvements,
including the type of structure, the square footage, the number of floors and
the size of the Land Parcel,
(ii) a detailed estimate of the applicable Costs of the
Property with respect to such New Facility, and
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(iii) an Appraisal (which Appraisal shall assume that any
Completion Improvements have been timely completed by the Completion Date)
reasonably acceptable to Owner and Agent Bank.
(b) to the extent that such proposed Additional Property includes
Completion Improvements, such Additional Property Designation Notice shall also
include the following:
(i) a complete set of plans and specifications describing any
proposed Completion Improvements,
(ii) a detailed budget estimating the applicable Costs of the
Property with respect to such Completion Improvements, and
(iii) a firm date for achievement of Substantial Completion as
to all Completion Improvements for such Property, not to exceed 180 days from
commencement of construction thereof ("Completion Date").
(c) No proposed Additional Property shall become a Property hereunder
or under the Lease without the prior written consent of Owner, LC Issuer and the
Lenders, which consent shall not be unreasonably withheld or delayed.
4.3 Limits on Acquisition of Existing Facilities and New Facilities.
(a) Existing Facilities. Notwithstanding any other provision hereof, in
no event shall Agent be entitled to acquire any Existing Facility if (i) the
acquisition of such Existing Facility and the commencement of the Basic Lease
Term with respect thereto pursuant to the Lease would commence after the
Existing Facility Acquisition Outside Date, (ii) the Cost of the Property with
respect to such proposed Existing Facility would, when combined with the actual
or projected Costs of the Property attributable to all other current or proposed
Existing Facilities exceed the Existing Facility Maximum Amount, or (iii) the
Costs of the Property with respect to such proposed Existing Facility would,
when combined with the actual or projected Costs of the Property attributable to
all other actual or pending Existing Facilities and New Facilities exceed the
Total Property Cost.
(b) New Facilities. Notwithstanding any other provision hereof in no
event shall Agent be entitled to designate any New Facility hereunder if (i)
such proposed New Facility would not be acquired by the earlier of the New
Facility Acquisition Outside Date or the New Facility Acquisition Date likely
(in the reasonable judgment of Owner) to be applicable to such proposed New
Facility, (ii) the Costs of the Property attributable to such proposed New
Facility would, if combined with the actual or projected Costs of the Property
for all other existing or proposed New Facilities exceed the New Facility
Maximum Amount, or (iii) the Costs of the Property attributable to such proposed
New Facility would, in combination with the actual or projected Costs of the
Property attributable to all other existing or proposed New Facilities and
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Existing Facilities cause the total Costs of the Properties attributable thereto
to exceed to the Total Property Cost.
4.4. Additional Closings. Subject to compliance by Agent with its
obligations under Article 5 and Owner of its obligations under Article 6, each
Closing hereunder for any Additional Property designated pursuant to Section 4.2
above or with respect to an Existing Facility shall be an "Additional Closing"
for the purposes of this Agreement; provided, however, that with respect to any
New Facilities, the aggregate Costs of the Properties to be acquired at such
Additional Closing shall exceed $4,000,000. Each Additional Closing shall take
place at the offices of Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ 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 Additional Closing shall
take place with respect to any Existing Facility after the Existing Facility
Acquisition Outside Date or with respect to any New Facility after the New
Facility 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 financing for Owner Advances with respect to the New Facilities and
the Existing Facilities. 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 and Agent also contemplate that Loans for Existing Facilities and
New Facilities will be obtained by Owner at Additional Closings pursuant to the
Loan Agreement, each in the aggregate principal amount of 96.98% of the
respective Costs of the Properties. 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 the Closings. The obligations of Owner to enter into
the applicable Operative Documents and amendments with respect to a Closing for
any Properties, and to make any Owner 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 with respect to
such Property, (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 such Property, (c) the performance by Agent of its
agreements contained herein and to be performed by it on or prior to
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the applicable Closing Date, and (d) the satisfaction or waiver by Owner of all
of the following conditions:
5.1.1 Operative Documents. Each of the following documents
with respect to each Property (herein, collectively, the "Operative Documents")
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 special counsel to Owner, Agent, Beneficiary, Agent Bank and LC
Issuer shall each have received on Lessor's, Agent's, Beneficiary's or LC
Issuer's behalf, as the case may be, a fully executed copy of each of such
documents (or, for Additional Properties, an amendment thereto):
(a) this Agreement;
(b) the Lease (and at each Additional Closing, a
Supplement to the Lease with respect to each Property
shall be entered into as contemplated by the Lease);
(c) the Memorandum of Lease or such Supplement;
(d) the Loan Agreement;
(e) the Notes in the form contemplated by the Loan Agreement;
(f) a Deed of Trust to Agent Bank with respect to such Property;
(g) the Assignment;
(h) the Letter of Credit;
(i) the Reimbursement Agreement;
(j) the LC Security Documents;
(k) the Owner Trust Agreement;
(l) the Deed with respect to such Property;
(m) the Assignment of Guaranty; and
(n) the Guaranty.
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.
5.1.2 Taxes. 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).
5.1.3 Status of Title. Owner shall have a valid fee simple
interest in the Land Parcel and all Existing Improvements located thereon with
respect to such Property, free and
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clear of all liens, encumbrances, charges and other exceptions to title, except
for Permitted Encumbrances.
5.1.4 Title Insurance. Owner shall have received a policy of
owner's title insurance with respect to such 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 satisfactory to Owner,
Agent Bank and LC Issuer in form, substance (including affirmative coverages and
endorsements) and amount.
5.1.5 Survey; Zoning. At least fifteen days prior to such
Closing, Owner, Agent Bank, Beneficiary and LC Issuer have received an
instrument survey plan of the Land Parcel with respect to such Property, showing
all Existing Improvements located thereon, 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 Property is located. Owner shall have received evidence
reasonably satisfactory to Owner, Agent Bank, Beneficiary and LC Issuer that the
Land Parcel with respect to such Property is properly zoned for the construction
and use of such Property contemplated hereby.
5.1.6 Opinions of Counsel. 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 Property is located, 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 satisfactory to Owner, Agent Bank,
Beneficiary, LC Issuer and their respective special counsel. Without limiting
the foregoing, Owner, Bank and Agent Bank shall have received such opinions and
assurances as each shall require that each is either qualified to transact
business as a foreign corporation in the state in which the applicable 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. 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. Neither Owner, Agent Bank,
Beneficiary nor LC Issuer shall be prohibited or restricted by law from engaging
in the transactions contemplated hereby on the 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
Owner, Agent Bank, Beneficiary or LC Issuer to any tax, penalty, liability or
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other onerous condition under or pursuant to any applicable law or governmental
regulation on the applicable Closing Date.
5.1.9 No Adverse Change. There shall have been no material
adverse change in the condition, financial or otherwise, of Guarantor and its
Subsidiaries since December 31, 1997.
5.1.10 Environmental Reports. At least 15 days prior to the
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 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 Owner
and satisfactory to Agent Bank, Beneficiary and LC Issuer. If any such
environmental site assessment report reveals the need for additional review for
such Property, Agent shall have provided such additional environmental site
assessment reports as are required by Owner, Agent, Beneficiary or LC Issuer and
any remediation recommended therein to be performed shall have been performed to
the 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 satisfaction of Owner, Agent Bank, Beneficiary and LC Issuer (but in no
event less than seven days prior to such Closing Date), such Property shall not
become an Existing Facility or a New Facility hereunder and Agent shall have no
right or authorization to act on behalf of Owner with respect to such Property
or to receive any reimbursements for Costs of the Property with respect thereto.
5.1.11 Evidence of Insurance. Owner and Agent Bank each shall
have received a certificate relating to insurance substantially in the form of
Schedule J 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. The applicable
Loan shall have closed with respect to such Property, any Equity Investment with
respect to such Property shall have been made such that the aggregate Equity
Investment with respect to all Properties shall at no time be less than 3.02% of
the Cost of the Properties, the Letter of Credit shall have been issued or
amended with respect to such Property and delivered to Agent Bank and Owner
shall be entitled to and shall have received the advance of the proceeds of the
applicable Loan with respect to each Property.
5.1.13 Proceedings and Documents. All opinions, certificates
and other instruments required hereunder with respect to such Property or by any
other Operative Document with respect to such Property, 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,
Agent Bank, Beneficiary, LC Issuer and their respective special
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counsel. Owner, Agent Bank, Beneficiary and LC Issuer shall have received copies
of all instruments and other evidence as Owner, 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. 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 such 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. Agent Bank shall have received a
Requisition from Agent with respect to such Property in the form required by the
Loan 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 Additional Equity Investment required
in connection therewith.
5.1.16 Appraisals. Agent shall have provided, at its sole cost
and expense, an Appraisal of the Property, addressed to Owner, Beneficiary and
LC Issuer or accompanied by a letter permitting Owner, Beneficiary and LC Issuer
to rely thereon, satisfactory in form and substance to Agent Bank, 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 subject Property at the time of such 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 Property as of the applicable Closing Date.
5.1.17 Other Requirements. Owner, Agent Bank, Beneficiary and
LC Issuer shall have received such other documents, reports, and other materials
as any of them may reasonably request with respect to such Property evidencing
Agent's compliance with the terms and conditions of this Agreement.
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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) 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 each of the Operative
Documents 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 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 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 Equity Investment. Agent shall have received the Equity Investment
or Additional Equity Investment from Owner for application against the Cost of
the Properties.
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF AGENT
Agent warrants and represents to Lender, Owner, Bank, Agent Bank,
Beneficiary and LC Issuer as follows as of the each Closing Date and as to each
Property now or hereafter acquired:
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
is located, except where the failure to be so qualified will not have a material
adverse effect on Agent; and (b) has the full corporate power, authority and
legal right to lease each Existing Facility from Owner and to construct the
Completion Improvements 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, Agent
Bank, Beneficiary or LC Issuer by Agent in connection with the negotiation of
the transactions contemplated hereby or contained in this Agreement or any other
Operative Document to which Agent is a 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
December 31, 1997.
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,
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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 such 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.
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
as to all of the Properties by all necessary corporate action (including any
necessary action by its shareholders) and 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. All insurance required by Article 13 of the Lease is in
effect with respect to each Property, and all premiums now due and payable in
respect of such insurance 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 construction, 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 Closing Date
for such Property in connection with the issuance of the related Note and the
making of the Equity Investment and the transactions contemplated by the
Operative Documents 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.
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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 perform any Completion Improvements in accordance with
the Lease, 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 Existing Facility and each New Facility,
will comply in all material respects with all applicable Legal Requirements.
Agent will use and occupy each Property, and each Property is acceptable (or
will be upon completion of the Completion Improvements) 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.
7.12 Use of Advances. Agent has used or will use all Owner 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. Agent has unconditionally accepted and will unconditionally
accept each Leased Property under the Lease, no offset exists with respect to
any Basic Rent or other sums payable under the Lease and no Basic Rent or other
sum payable under the Lease has been prepaid.
7.14 Use. None of the Permitted Encumbrances applicable to any Property
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. 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.
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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.
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 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 is a party have been duly authorized by Owner
and Bank by all necessary corporate action and 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 Owner, enforceable
against it 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 it is a party.
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8.4 No Violation. Neither the execution, delivery or performance by
Owner of this Agreement or the other Operative Documents to be delivered by
Owner 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 the date of delivery of this Agreement
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. Neither the execution, delivery or performance by
the Owner of this Agreement, or the Operative Documents to be delivered by Owner
nor compliance by Owner 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 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,
the first clause of Section 8.2 (i.e., as to Bank's corporate authority to
execute and deliver the Operative Documents), the matters contained in Section
8.3 as they relate to any such proceedings affecting Bank in its individual
capacity, 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 laws of the United
States of America applicable 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; 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
- 18 -
pursuant to this Agreement or any of the Operative Documents or the transactions
contemplated hereby or thereby shall prove to have been incorrect or misleading
in any material respect when made; or
(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 22 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
out-of-pocket costs and other expenses that may become payable as a result
thereof, including, without limitation, reasonable attorneys' 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
- 19 -
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.
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
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 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration,
or (b) if to Agent, addressed to such party at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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. (a) The covenants,
conditions and agreements herein contained shall bind, and the benefits and
advantages shall inure to, the respective heirs, executors, 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
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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 any 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, 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 expenses incurred by such parties for third-party
costs, whether or not capitalized by Agent, including but not limited to fees
and expenses of consultants, appraisal fees, environmental site assessment
costs, title insurance fees, survey costs, transfer costs and recordation fees,
in connection with each Closing regardless of whether the transactions
contemplated hereby 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 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
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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.
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 Limitations on Liability. Anything in this Agreement to the
contrary notwithstanding, except for the representations made (w) by Owner in
its individual capacity as set forth in Article 8 hereof, (x) set forth in
Article 6 of the Loan Agreement, (y) set forth in Section 3.5 of the Owner Trust
Agreement with respect to Beneficiary, and (z) with respect to Lessor Liens, it
is understood and agreed that (irrespective of any breach of any representation,
covenant, agreement or undertaking of any nature whatsoever made in this
Agreement), 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 sum hereunder or for any other claim hereunder against
(i) Owner, Bank, except for their gross negligence, fraud or willful misconduct,
Deed of Trust Trustee, Beneficiary or any other holder of the Beneficial
Interest, or any past, present or future Affiliate, partner, officer, director,
any owner, shareholder, agent or employee of or in any thereof or of any partner
thereof or their legal representatives, successors or assigns, (ii) any
Subsequent Owner except as a result of its gross negligence, fraud or willful
misconduct or (iii) any Person for whom Owner, Bank, Deed of Trust Trustee,
Beneficiary or any other holder of the Beneficial Interest was or was purporting
to be acting as an agent for the account and benefit of such Person in entering
into the transactions evidenced by this Agreement. Subject to the exceptions set
forth above, it is expressly understood that by the execution of this Agreement
all such liability (a) of Owner, Bank, Deed of Trust Trustee, Beneficiary or any
other holder of the Beneficial Interest or any past, present or future
Affiliate, partner, officer, director, any 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 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 this Agreement by
Owner, that Agent and its successors and assigns as agent hereunder agree to
look solely to the Properties for the payment of any such sums or satisfaction
of any such other claims.
In addition to and not in limitation of the foregoing, it is understood
and agreed that (i) this Agreement is executed and delivered by Bank, not in its
individual capacity but solely as trustee under the Owner Trust Agreement in the
exercise of the power and authority conferred and vested in it as such trustee,
(ii) (except as pertaining to Owner Liens attributable to Owner and except as
expressly set forth in Article 8 hereof with respect to certain representations
made by Bank in its individual capacity) each of the representations,
undertakings and agreements made herein by Owner are not personal
representations, undertakings and agreements of Bank, but are binding only on
Owner, as trustee and (iii) actions to be taken by Owner pursuant to its
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obligations hereunder may, in certain instances, be taken by Owner only upon
specific authority of Beneficiary as provided in the Owner Trust Agreement.
10.12 Conveyance of Houston Parcel. Notwithstanding any other provision
of this Agency Agreement or any other Operative Document, in no event shall any
Advance or Loan be made in connection with the Houston Parcel. The Agent hereby
covenants and agrees to cause the Houston Parcel to be conveyed from the Owner
to a third party by not later than November 15, 1998, upon terms and conditions
acceptable to Owner and the Agent Bank. Upon such conveyance, the Houston Parcel
shall cease to be a Property or Leased Property under the Operative Documents.
10.13 Louisiana Provisions. As to any Property located in Louisiana,
Owner shall mean and include both Iron Mountain Statutory Trust - 1998, a
Connecticut statutory trust having an address at c/o First Union National Bank,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and First Union National Bank
as trustee of the Iron Mountain Statutory Trust - 1998 Louisiana Subtrust, such
subtrust being referred herein as the "Louisiana Subtrust". All references
hereunder to the Owner shall be deemed to include the Louisiana Subtrust as
applicable.
IN WITNESS WHEREOF, the undersigned set their hands under seal
as of the day and year first above written.
IRON MOUNTAIN STATUTORY TRUST - 1998
BY: FIRST UNION NATIONAL BANK, not in its
individual capacity except as expressly set forth
herein, but solely as Trustee under the Amended
and Restated Owner Trust Agreement dated as of
October 1, 1998
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THUS DONE, READ AND SIGNED, as of the day, month and year first written
above in the City of Boston, County/Parish of Suffolk, Commonwealth of
Massachusetts, in the presence of the undersigned competent witnesses, who
hereunto sign their names with the undersigned and with me, notary, after due
reading of the whole.
WITNESS: FIRST UNION NATIONAL BANK, a national
banking institution, not in its individual
capacity, but solely as Trustee of the IRON
MOUNTAIN STATUTORY TRUST - 1998 LOUISIANA
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ SUBTRUST
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. Handler By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. Handler Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
NOTARY PUBLIC
My Commission Expires: 11/22/02
[SEAL]