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HomeMy WebLinkAboutEscrow AgreementExhibit B ESCROW AGREEMENT Escrow Agreement dated as of the effective date (the "Effective Date") set forth on schedule I attached hereto ("Schedule I ") by and among Purchaser identified on Schedule I (the "Purchaser"), the parties identified on Schedule 1 and listed on the signature pages hereto as sellers (collectively, "Seller"), Housatonic Management Company, Inc. ("Sellers' Representative") and JPMorgan Chase Bank, N.A. as escrow agent hereunder (the "Escrow Agent"). Terms used and not otherwise defined herein shall have the meaning prescribed in the Securities Purchase and Sale Agreement dated as of March 30, 2007, by and among Purchaser, Seller and Sellers' Representative (the "Purchase Agreement"). WHEREAS, Purchaser, and Seller have agreed to deposit in escrow certain funds and wish such deposit to be subject to the terms and conditions set forth herein. NOW THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. Appointment. Purchaser, Sellers' Representative and Seller hereby appoint the Escrow Agent as their escrow agent for the purposes set forth herein, and the Escrow Agent hereby accepts such appointment under the terms and conditions set forth herein. 2. Escrow Fund. Simultaneous with the execution and delivery of this Escrow Agreement, Purchaser is depositing with the Escrow Agent the sum indicated as the escrow deposit on Schedule 1 (the "Escrow Deposit"). The Escrow Agent shall hold the Escrow Deposit and, subject to the terms and conditions hereof, shall invest and reinvest the Escrow Deposit and the proceeds thereof (the "Escrow Fund") as directed in Section 3. 3. Investment of Escrow Fund. During the term of this Escrow Agreement, the Escrow Fund shall be invested and reinvested by the Escrow Agent in the investment indicated on Schedule 1 or such other investments as shall be directed in writing by Purchaser and Sellers' Representative and as shall be acceptable to the Escrow Agent. The parties to this Escrow Agreement recognize and agree that the Escrow Agent will not provide supervision, recommendations, or advice relating to either the investment of moneys held in the Escrow account or the purchase, sale, retention, or other disposition of any investment described herein. The Escrow Agent or any of its affiliates may receive compensation with respect to any investment directed hereunder. Receipt, investment and reinvestment of the Escrow Amount shall be confirmed by the Escrow Agent as soon as practicable by account statement, and any discrepancies in any such account statement shall be noted by the parties to the Escrow Agent within thirty(30) calendar days after receipt thereof. Periodic statements will be provided to Purchaser and Sellers' Representative reflecting transactions executed on behalf of the Escrow Fund. Purchaser and Sellers' Representative, upon written request, will receive a statement of transaction details upon completion of any securities transaction in the Escrow Fund without any additional cost. The Escrow Agent shall have the right to liquidate any investments held in order to provide funds necessary to make required payments under this Escrow Agreement. The Escrow Agent shall have no liability for any loss sustained as a result of any investment in an investment indicated on Schedule 1 or any investment made pursuant to the instructions of the parties hereto or as a result of any liquidation of any investment prior to its maturity or for the failure of the parties to give the Escrow Agent instructions to invest or reinvest the Escrow Fund. 4. Disposition and Termination. The Escrow Agent shall deliver the Escrow Fund as follows: (a) If the Escrow Agent receives joint written instructions signed by Purchaser and Sellers' Representative (or a certified copy of a final, nonappealable order of a court of competent jurisdiction presented by any party hereto) directing delivery of all or part of the Escrow Fund, the Escrow Agent shall deliver the Escrow Fund as so directed. (b) If the Escrow Agent receives a written notice signed by Purchaser who shall also simultaneously send a copy to the Sellers' Representative stating that it is entitled to all or a portion of the Escrow Fund (which notice shall set forth in reasonable detail the nature of the claim or request being made pursuant to the Purchase Agreement and the dollar amount of the Escrow Fund (or Purchaser's reasonable estimate thereof) that Purchaser believes it is entitled to), unless the Escrow Agent has received a written objection from Sellers' Representative by 5 p.m. New York Time on the tenth (10th) business days thereafter (the "Dispute Period"), the Escrow Agent shall deliver to Purchaser all or such portion of (80624330; 2} 8087/12001-002 Current/9458911v4 (c) the Escrow Fund in accordance with such notice. If the Escrow Agent receives a written objection from the Sellers' Representative who shall simultaneously send a copy of the objection to the Purchaser during the Dispute Period, the Escrow Agent shall not deliver the disputed portion of the Escrow Fund until it shall have received written instructions signed by Purchaser and the Sellers' Representative, or a certified copy of a final, nonappealable order of a court of competent jurisdiction directing delivery of all or a portion of the Escrow Fund, and the Escrow Agent shall then deliver all or a portion of the Escrow Fund as so directed. Promptly after the one (1) year anniversary of the date hereof, the Escrow Agent shall deliver to Seller pursuant to the instructions and proportions set forth on Schedule 2 hereto the remaining Escrow Fund unless it shall have received a written notice from Purchaser by 5.p.m New York time on the business day prior to the one (1) year anniversary objecting tothe delivery of all or a portion of the remaining Escrow Fund (which notice shall set forth in reasonable detail the nature of the claim being made pursuant to the Purchase Agreement and the dollar amount of the Escrow Fund (or Purchaser's reasonable estimate thereof) that Purchaser believes it is entitled to) pursuant to this Section 3(c). Purchaser shall also simultaneously send a copy of the objection to the Sellers' Representative. If the Escrow Agent receives such a written objection from Purchaser, shall not deliver to Seller the disputed portion of the Escrow Fund identified in Purchaser's objection until it shall have received written instructions signed by Purchaser and the Sellers' Representative, or a certified copy of a final, nonappealable order of a court of competent jurisdiction directing delivery of such disputed Escrow Fund, and the Escrow Agent shall then deliver the disputed Escrow Fund as so directed. The Escrow Agent shall timely deliver to Seller any portion of the Escrow Fund (in the proportions set forth on Schedule 2 hereto) not subject to any Purchaser objection. (d) If the Escrow Agent receives conflicting instructions from Purchaser or Sellers' Representative regarding delivery of all or a portion of the Escrow Fund, it shall send a copy of the instructions from each of them to the other and shall not deliver such portion of the Escrow Fund until it shall have received written instructions signed by Purchaser and Sellers' Representative, or a certified copy of a final, nonappealable order of a court of competent jurisdiction directing delivery of the disputed portion of the Escrow Fund, and the Escrow Agent shall then deliver the disputed portion of the Escrow Fund as so directed. (e) Upon delivery of the total of the Escrow Fund by the Escrow Agent, this Escrow Agreement shall terminate, subject to the provisions of Section 8. 5. Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties shall be implied. The Escrow Agent shall have no liability under and no duty to inquire as to the provisions of any agreement other than this Escrow Agreement. The Escrow Agent may rely upon and shall not be liable, for acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties: The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Fund. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to Purchaser or Seller. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the other parties hereto or by a final order or judgment of a court of competent jurisdiction. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind .whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. 6. Succession. • The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving 10 days advance notice in writing of such resignation to the other parties hereto specifying a date when such resignation shall take effect. The Escrow Agent shall have the right to withhold an amount equal to any amount due and owing to the Escrow Agent, plus any costs and expenses the Escrow Agent shall reasonably believe may be incurred by the Escrow Agent in {30524330;2) connection with the termination of the Escrow Agreement. Any corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any corporation or association to which all or substantially all the escrow business of the Escrow Agent's corporate trust line of business may be transferred, shall be the Escrow Agent under this Escrow Agreement without further act. 7. Fees. Purchaser and .Seller agree jointly and severally to (i) pay the Escrow Agent upon execution of this Escrow Agreement and from time to time thereafter reasonable compensation for the services to be rendered hereunder, which unlesi otherwise agreed in writing shall be as described in Schedule 1 attached hereto, and (ii) pay or reimburse the Escrow Agent upon request for all expenses, disbursements and advances, including reasonable attorney's fees and expenses, incurred or made by it in connection with the preparation, execution, performance, delivery, modification and termination of this Escrow Agreement. 8. Indemnity. Purchaser and Seller shall jointly and severally indemnify, defend and save harmless the Escrow Agent and its directors, officers, agents and employees (the "indemnitees") from all loss, liability or expense (including the fees and expenses of in house or outside counsel) arising out of or in connection with (i) the Escrow Agent's execution and performance of this Escrow Agreement, except in the case of any indemnitee to the extent that such loss, liability or expense is due to the gross negligence or willful misconduct of such indemriitee, or (ii) its following any instructions or other directions from Purchaser or Seller, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent or the termination of this Escrow Agreement. The parties hereby grant the Escrow Agent a lien on, right of set-off against and security interest in the Escrow Fund for the payment of any claim for indemnification, compensation, expenses and amounts due hereunder. 9. Account Opening Xnformation/TINs. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT For accounts opened in the US: To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. When an account is opened, we will ask for information that will allow us to identify relevant parties. For non -US accounts: To help in the fight against the funding of terrorism and money laundering activities we are required along with all financial institutions to obtain, verify, and record information that identifies each person who opens an account. When you open an account, we will ask for information that will allow us to identify you. TINs Purchaser and Seller each represent that its correct Taxpayer Identification Number ("TIN") assigned by the Internal Revenue Service ("IRS")or any other taxing authority is set forth in Schedule 1. Upon execution of this Agreement, Purchaser and Seller shall provide the Escrow Agent with a fully executed W-8 or W-9 IRS form, which shall include Purchaser's and Seller's TIN. In addition, all interest or other income earned under the Escrow Agreement shall be allocated and/or paid as directed in a joint written direction of Purchaser and Seller and reported by the recipient to the Internal Revenue Service or any other taxing authority. Notwithstanding such written directions, Escrow Agent shall report and, as required withhold any taxes as it determines may be required by any law or regulation in effect at the time of the distribution. In the absence of timely direction, all proceeds of the Escrow Fund shall be retained in the Escrow Fund and reinvested from time to time by the Escrow Agent as provided in Section 3. In the event that any earnings remain undistributed at the end of any calendar year, Escrow Agent shall report to the Internal Revenue Service or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation or, to the extent consistent therewith, as directed in writing by Purchaser and Seller. In addition, Escrow Agent shall withhold any taxes it deems appropriate and shall remit such taxes to the appropriate authorities. 10. Notices. All communications hereunder shall be in writing and shall be deemed to be duly given and received: (i) upon delivery if delivered personally or upon confirmed transmittal if by facsimile; (ii) on the next Business Day (as hereinafter defined) if sent by overnight courier, or (50624330; 2} (iii) four (4) Business Days after mailing if mailed by prepaid registered mail, return receipt requested, to the appropriate notice address set forth on Schedule 1 or at such other address as any party hereto may have furnished to the other parties in writing by registered mail, return receipt requested. Notwithstanding the above, in the case of communications delivered to the Escrow Agent pursuant to (ii) and (iii) of this Section 10, such communications shall be deemed to have been given on the date received by the Escrow Agent. In the event that the Escrow Agent, in its sole discretion, shall determine that an emergency exists, the Escrow Agent may use such other means of coma unication as the Escrow Agent deems appropriate. "Business Day" shall mean any day other than a Saturday, Sunday or any other day on which the Escrow Agent located at the notice address set forth on Schedule 1 is authorized or required by law or executive order to remain closed. 11. Security Procedures. In the event finds transfer instructions are given (other than in writing at the time of execution of this Escrow Agreement, as indicated in Schedule 1 attached hereto), whether in writing, by telecopier or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on schedule 3 hereto ("Schedule 3"), and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for individuals authorized to give or confirm, payment instructions may be changed only in a writing actually received and acknowledged by the Escrow Agent. If the Escrow Agent is unable to contact any of the authorized representatives identified in Schedule 3, the Escrow Agent is hereby authorized to seek confirmation of such instructions by telephone call-back to any one or more of your executive officers, ("Executive Officers"), which shall include the titles of , as the Escrow Agent may select. Such "Executive Officer" shall deliver to the Escrow Agent a fully executed Incumbency Certificate, and the Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. The Escrow Agent and the beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Purchaser or Seller to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary's bank or an intermediary bank designated. The parties to this Escrow Agreement acknowledge that these security procedures are commercially reasonable. All funds transfer instructions must include the signature of the person(s) authorizing said fiords transfer. 12. Miscellaneous. The provisions of this Escrow Agreement may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by all of the parties hereto. Neither this Escrow Agreement nor any right or interest hereunder may be assigned in whole or in part by any party, except as provided in Section 6, without the prior consent of the other parties. This Escrow Agreement shall be governed by and constmed under the laws of the State of New York. Each party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law.and consents to the jurisdiction of the courts located in the State of New York. The parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Escrow Agreement. No party to this Escrow Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Escrow Agreement because of, acts of God, fire, floods, strikes, equipment or transmission failure, or other causes reasonably beyond its control. This Escrow Agreement may be executed in one or more .counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (B0624330; 2} Exhibit B Execution Copy IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of the date set forth in Schedule 1. JPMORGAN CHASE BANK, N.A. as Escrow Agent By: PURCHASER IRON MOUNTAIN INFORMATION MANAGEMENT, INC. B y: Name: Title: SELLERS' REPRESENTATIVE Ito comej SELLERS HOUSATONIC EQUITY INVESTORS, L.P. By: Housatonic Equity Partners I, L.L.C. Its General Partner By: Name: Title: HOUSATONIC EQUITY INVESTORS, SBIC, L.P. By: Housatonic Equity Partners SBIC, L.L.C. Its General Partner By: Name: Title: A.J. Wasserstein Signature Page to Escrow Agreement (B0624330; 2) James W. Ratliff John S. PavIovich David Koval H. James Trickett Scott D. Brabant Charles Saponaro Gary Schoenberger Jonathan D'Elia Andy Needleman Pam Malec Kathy Gangel Premchan Lutchman Signature Page to Escrow Agreement (B0624330;2) MERRIL LYNCH PIERCE FENNER & SMITH, CUSTODIAN F.B.O. JONATHAN W. D'ELIA IRA By: Name: Title: I. KENNETH SAXON AND JOSEPHINE BRICKNER SAXON, TRUSTEES OF THE SAXON 1998 TRUST U/A/D 7/31/98 By: I. Kenneth Saxon, Trustee By: Josephine Brickner Saxon, Trustee THOMAS W. AND TRACEY S. BIRD, TRUSTEES OF THE BIRD REVOCABLE TRUST DA 1'ED JUNE 6, 1991 By: Thomas W. Bird, Trustee By: Tracey S. Bird, Trustee HV CAPITAL LLC By. Name: Title: AMY S. RICH CUSTODIAL IRA ACCOUNT By: Name: Title: Signature Page to Escrow Agreement (80624330; 2) ADAM J. WASSERSTEIN IRA ACCOUNT (PT) By Name: Title: ADAM J. WASSERSTEIN IRA ACCOUNT (AT) By: Name: Title: JODI WASSERSTEIN IRA ACCOUNT (PT) By: Name: Title: JODI WASSERSTEIN IRA ACCOUNT (AT) By: Name: Title: JOYCE HEALY-ABRAMS, TRUSTEE UNDER THE JOYCE R. HEALY-ABRAMS REVOCABLE TRUST AGREEMENT By. Joyce Healy -Abrams, Trustee Connecticut Community Foundation, Inc. By: Name: Ingrid Manning Title: CEO Signature Page to Escrow Agreement (B0624330; 2} ABRY MEZZANINE PARTNERS, L.P. By: ABRY MEZZANINE INVESTORS, L.P., Its General Partner By: Name: Title: ABRY INVESTMENT PARTNERSHIP, L.P. By. ABRY INVESTMENT GP, LLC Its General Partner By Name: Title: Signature Page to Escrow Agreement (B0624330; 2}