IRM » Topics » UNDERWRITING AGREEMENT

This excerpt taken from the IRM 8-K filed Jan 12, 2007.

UNDERWRITING AGREEMENT

January 11, 2007

BEAR, STEARNS INTERNATIONAL LIMITED

as Representative of the

several Underwriters named

in Schedule I attached hereto (the “Representative”)

c/o Bear, Stearns International Limited
One Canada Square

London, E14 5AD

Ladies/Gentlemen:

Iron Mountain Incorporated, a corporation organized and existing under the laws of Delaware (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom Bear, Stearns International Limited is acting as representative (the “Representative”), an aggregate of €225,000,000 principal amount of the Company’s 6¾% Euro Senior Subordinated Notes due 2018 (the “Notes”).  The Notes will be irrevocably and unconditionally guaranteed (the “Guarantees”) by the subsidiaries of the Company listed in Schedule II hereto that have signed this Agreement (each, a “Guarantor” and, collectively, the “Guarantors”), and will be issued pursuant to an Indenture dated as of December 30, 2002 (the “Base Indenture”), as supplemented by a Fifth Supplemental Indenture thereto, to be dated as of the Closing Date (as defined below) (the “Fifth Supplemental Indenture”), among the Company, the Guarantors and The Bank of New York Trust Company, N.A., as trustee (in such capacity, the “Trustee”).  The Base Indenture, as supplemented by the Fifth Supplemental Indenture, is hereafter called the “Indenture.”

The Company and the Underwriters, in accordance with the requirements of Conduct Rule 2710(h) and Conduct Rule 2720 (“Rule 2720”) of the National Association of Securities Dealers, Inc. (the “NASD”) and subject to the terms and conditions stated herein, also hereby confirm the engagement of the services of Bear, Stearns & Co. Inc., an affiliate of Bear, Stearns International Limited (the “Independent Underwriter”), as a “qualified independent underwriter” within the meaning of Section (b)(15) of Rule 2720 in connection with the offering and sale of the Notes.




The Underwriters that are not registered as broker dealers in the United States have severally indicated that, within the United States, the Notes and the Guarantees may be sold on their behalf by Bear, Stearns & Co. Inc., an affiliate of Bear, Stearns International Limited, or, if applicable, one of the respective affiliates of such Underwriter that is a registered broker dealer in the United States.

1.             Representations and Warranties of the Company and the Guarantors.  The Company and each of the Guarantors jointly and severally represents and warrants to, and agrees with, each of the Underwriters and the Independent Underwriter that:

(a)           The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (No. 333-126932) filed on July 27, 2005 (the “Shelf Registration Statement”), and a registration statement on Form S-3 pursuant to Rule 462(b) of the Securities Act of 1933, as amended (the “Securities Act”) (No. 333-139916) filed on January 10, 2007 (the “462(b) Registration Statement”), in each case for the registration of the Company’s debt and other securities, as described therein, including the Notes, under the Securities Act, and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the Commission (the “Rules and Regulations”) under the Securities Act.  Each such registration statement, as so amended, has become effective and copies have heretofore been delivered to the Underwriters and the Independent Underwriter.  Such registration statement, as so amended, including all information, if any, deemed to be a part thereof pursuant to Rule 430A, 430B or 430C of the Rules and Regulations, is referred to herein as a “Registration Statement” and, collectively, the “Registration Statements.”  No stop order suspending the effectiveness of either Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering and sale of the Notes (the “Offering”) has been initiated or, to the Company’s knowledge, threatened by the Commission.  The Company will file the Prospectus (as defined below) with the Commission pursuant to Rule 424(b) of the Rules and Regulations.  The base prospectus contained in the Shelf Registration Statement, at the time such registration statement was declared effective, as supplemented by the final prospectus supplement relating to the Offering, in the form in which it is to be filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, is hereinafter referred to as the “Prospectus,” except that if any revised prospectus or prospectus supplement shall be provided to the Underwriters and the Independent Underwriter by the Company for use in connection with the Offering which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term “Prospectus” shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the Underwriters and the Independent Underwriter for such use.  Any preliminary prospectus supplement (and the related base prospectus) relating to the Offering filed with the Commission pursuant to Rule 424 of the Rules and Regulations is hereafter referred to as the “Preliminary Prospectus.”  Any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the Notes is hereafter referred to

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as an “Issuer Free Writing Prospectus”; and the Preliminary Prospectus, as amended or supplemented immediately prior to the Applicable Time (as defined below) and as supplemented by the Issuer Free Writing Prospectuses, if any, attached and listed in Annex IV hereto, taken together, are hereafter referred to collectively as the “Pricing Disclosure Package.”  Any reference herein to either Registration Statement, the Prospectus or the Pricing Disclosure Package shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3, which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the effective date of either Registration Statement, the date of the Prospectus or the Applicable Time, as the case may be, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to either Registration Statement or the Prospectus shall be deemed to refer to and include (i) the filing of any document under the Exchange Act after the effective date of either Registration Statement or the date of the Prospectus, as the case may be, that is incorporated therein by reference and (ii) any such document so filed.  The Company was not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Notes contemplated hereby.  All references in this Agreement to the Prospectus, either Registration Statement or any Preliminary Prospectus or Issuer Free Writing Prospectus, or any amendments or supplements to any of the foregoing, shall be deemed to include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”).

(b)           At the applicable time of the effectiveness of each Registration Statement or any post-effective amendment thereto, as of the date of the Prospectus or any amendment thereto, when any document filed under the Exchange Act is filed and at the Closing Date (as hereinafter defined), the Registration Statements and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with the applicable provisions of the Securities Act and the Rules and Regulations thereunder and the Exchange Act and the Rules and Regulations thereunder and did not and will not contain an untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary in order to make the statements therein (i) in the case of the Registration Statements, not misleading and (ii) in the case of the Prospectus or the Preliminary Prospectus, if any, in light of the circumstances under which they were made, not misleading.  When a related Preliminary Prospectus, if any, was first filed with the Commission (whether filed as part of either Registration Statement or any amendment thereto or pursuant to Rule 424(a) or Rule 429 of the Rules and Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus, if any, and any amendments thereof and supplements thereto complied in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the respective Rules and Regulations thereunder and did not contain an untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.  No representation and warranty is made in this subsection (b), however, with respect to any information

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contained in or omitted from either Registration Statement or the Prospectus or related Preliminary Prospectus, if any, or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter or the Independent Underwriter through you specifically for use therein or in the Pricing Disclosure Package or any Issuer Free Writing Prospectus (“Underwriters’ Information”).  The parties acknowledge and agree that the Underwriters’ Information consists solely of the material included in the fourth and sixth paragraphs under the caption “Underwriting” in the prospectus supplement portion of the Preliminary Prospectus and the Prospectus.

(c)           For purposes of this Agreement, the “Applicable Time” is 3:30 p.m. (New York City time) on the date of this Agreement.  The Pricing Disclosure Package, as of the Applicable Time, did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.  Each Issuer Free Writing Prospectus complies in all material respects with the applicable provisions of the Securities Act and the Rules and Regulations, and does not include information that conflicts with the information contained in the Registration Statements, the Preliminary Prospectus or the Prospectus, and each Issuer Free Writing Prospectus not listed in Annex IV hereto, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.  No representation or warranty is made in this Section 1(c) with respect to any information contained in or omitted from the Pricing Disclosure Package or any Issuer Free Writing Prospectus in reliance upon and in conformity with any Underwriters’ Information.

(d)           Subsequent to the respective dates as of which information is given in the Registration Statements and the Prospectus, except as set forth in or incorporated by reference into the Registration Statements, the Pricing Disclosure Package and the Prospectus, there has been no material adverse change or any development involving a prospective material adverse change in the business, prospects, properties, operations, condition (financial or other) or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, and since the date of the latest balance sheet presented in or incorporated by reference into the Registration Statements and the Prospectus, neither the Company nor any of its subsidiaries has incurred or undertaken any liabilities or obligations, direct or contingent, which are material to the Company and its subsidiaries taken as a whole, except for liabilities or obligations which are reflected in or incorporated by reference into the Registration Statements, the Pricing Disclosure Package and the Prospectus.

This excerpt taken from the IRM 8-K filed Jul 13, 2006.

UNDERWRITING AGREEMENT

July 12, 2006

BEAR, STEARNS & CO. INC.
   as Representative of the
   several Underwriters named
   in Schedule I attached hereto
(the “Representative”)
c/o Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York  10179

Ladies/Gentlemen:

Iron Mountain Incorporated, a corporation organized and existing under the laws of Delaware (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom Bear, Stearns & Co. Inc. is acting as representative (the “Representative”), an aggregate of $200,000,000 principal amount of the Company’s 83¤4% Senior Subordinated Notes due 2018 (the “Notes”). The Notes will be irrevocably and unconditionally guaranteed (the “Guarantees”) by the subsidiaries of the Company listed in Schedule II hereto that have signed this Agreement (each, a “Guarantor” and, collectively, the “Guarantors”), and will be issued pursuant to an Indenture dated as of December 30, 2002 (the “Base Indenture”), as supplemented by a Third Supplemental Indenture thereto, to be dated as of the Closing Date (as defined below) (the “Third Supplemental Indenture”), among the Company, the Guarantors and The Bank of New York Trust Company, N.A., as trustee (in such capacity, the “Trustee”). The Base Indenture, as supplemented by the Third Supplemental Indenture, is hereafter called the “Indenture.”  If you are the only Underwriter, all references herein to the Representative shall be deemed to be to the Underwriter.

The Company and the Underwriters, in accordance with the requirements of Conduct Rule 2710(h) and Conduct Rule 2720 (“Rule 2720”) of the National Association of Securities Dealers, Inc. (the “NASD”) and subject to the terms and conditions stated herein, also hereby confirm the engagement of the services of Bear, Stearns & Co. Inc. (the “Independent Underwriter”) as a “qualified independent




 

underwriter” within the meaning of Section (b)(15) of Rule 2720 in connection with the offering and sale of the Notes.

1.             Representations and Warranties of the Company and the Guarantors. The Company and each of the Guarantors jointly and severally represents and warrants to, and agrees with, each of the Underwriters and the Independent Underwriter that:

(a)           The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (No. 333-105494) filed on May 23, 2003, as amended by Amendment No. 1 thereto, filed on June 5, 2003 (the “2003 Registration Statement”), and a registration statement on Form S-3 (No. 333-126932) filed on July 27, 2005 (the “2005 Registration Statement”), in each case for the registration of the Company’s debt and other securities, as described therein, including the Notes, under the Securities Act of 1933, as amended (the “Securities Act”), and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the Commission (the “Rules and Regulations”) under the Securities Act. Such registration statements, as so amended, have become effective and copies have heretofore been delivered to the Underwriters and the Independent Underwriter. Each such registration statement, as so amended, including all information, if any, deemed to be a part thereof pursuant to Rule 430A, 430B or 430C of the Rules and Regulations, is referred to herein as the “Registration Statement” and, collectively, the “Registration Statements.”  No stop order suspending the effectiveness of either Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering and sale of the Notes (the “Offering”) has been initiated or, to the Company’s knowledge, threatened by the Commission. The Company will file the Prospectus (as defined below) with the Commission pursuant to Rule 424(b) of the Rules and Regulations. The base prospectus contained in the 2005 Registration Statement, at the time such registration statement was declared effective, as supplemented by the final prospectus supplement relating to the Offering, in the form in which it is to be filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, is hereinafter referred to as the “Prospectus,” except that if any revised prospectus or prospectus supplement shall be provided to the Underwriters and the Independent Underwriter by the Company for use in connection with the Offering which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term “Prospectus” shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the Underwriters and the Independent Underwriter for such use. Any preliminary prospectus supplement (and the related base prospectus) relating to the Offering filed with the Commission pursuant to Rule 424 of the Rules and Regulations is hereafter referred to as the “Preliminary Prospectus.”  Any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the Notes is hereafter referred to as an “Issuer Free Writing Prospectus”; and the Preliminary Prospectus, as amended or supplemented immediately prior to the Applicable Time (as defined below) and as supplemented by the Issuer Free Writing Prospectuses, if any,

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attached and listed in Annex IV hereto, taken together, are hereafter referred to collectively as the “Pricing Disclosure Package.”  Any reference herein to either Registration Statement, the Prospectus or the Pricing Disclosure Package shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3, which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the effective date of such Registration Statement, the date of the Prospectus or the Applicable Time, as the case may be, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to either Registration Statement or the Prospectus shall be deemed to refer to and include (i) the filing of any document under the Exchange Act after the effective date of such Registration Statement or the date of the Prospectus, as the case may be, that is incorporated therein by reference and (ii) any such document so filed. The Company was not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Notes contemplated hereby. All references in this Agreement to the Prospectus, either Registration Statement or any Preliminary Prospectus or Issuer Free Writing Prospectus, or any amendments or supplements to any of the foregoing, shall be deemed to include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”).

(b)           At the applicable time of the effectiveness of each Registration Statement or any post-effective amendment thereto, as of the date of the Prospectus or any amendment thereto, when any document filed under the Exchange Act is filed and at the Closing Date (as hereinafter defined), the Registration Statements and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with the applicable provisions of the Securities Act and the Rules and Regulations thereunder and the Exchange Act and the Rules and Regulations thereunder and did not and will not contain an untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary in order to make the statements therein (i) in the case of the Registration Statements, not misleading and (ii) in the case of the Prospectus or the Preliminary Prospectus, if any, in light of the circumstances under which they were made, not misleading. When a related Preliminary Prospectus, if any, was first filed with the Commission (whether filed as part of either Registration Statement or any amendment thereto or pursuant to Rule 424(a) or Rule 429 of the Rules and Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus, if any, and any amendments thereof and supplements thereto complied in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the respective Rules and Regulations thereunder and did not contain an untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. No representation and warranty is made in this subsection (b), however, with respect to any information contained in or omitted from either Registration Statement or the Prospectus or related Preliminary Prospectus, if any, or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by

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or on behalf of any Underwriter or the Independent Underwriter through you specifically for use therein or in the Pricing Disclosure Package or any Issuer Free Writing Prospectus (“Underwriters’ Information”). The parties acknowledge and agree that the Underwriters’ Information consists solely of the material included in the fourth and sixth paragraphs under the caption “Underwriting” in the prospectus supplement portion of the Preliminary Prospectus and the Prospectus.

(c)           For purposes of this Agreement, the “Applicable Time” is 6:00 p.m. (Eastern) on the date of this Agreement. The Pricing Disclosure Package, as of the Applicable Time, did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each Issuer Free Writing Prospectus complies in all material respects with the applicable provisions of the Securities Act and the Rules and Regulations, and does not include information that conflicts with the information contained in the Registration Statements, the Preliminary Prospectus or the Prospectus, and each Issuer Free Writing Prospectus not listed in Annex IV hereto, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. No representation or warranty is made in this Section 1(c) with respect to any information contained in or omitted from the Pricing Disclosure Package or any Issuer Free Writing Prospectus in reliance upon and in conformity with any Underwriters’ Information.

(d)           Subsequent to the respective dates as of which information is given in the Registration Statements and the Prospectus, except as set forth in or incorporated by reference into the Registration Statements, the Pricing Disclosure Package and the Prospectus, there has been no material adverse change or any development involving a prospective material adverse change in the business, prospects, properties, operations, condition (financial or other) or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, and since the date of the latest balance sheet presented in or incorporated by reference into the Registration Statements and the Prospectus, neither the Company nor any of its subsidiaries has incurred or undertaken any liabilities or obligations, direct or contingent, which are material to the Company and its subsidiaries taken as a whole, except for liabilities or obligations which are reflected in or incorporated by reference into the Registration Statements, the Pricing Disclosure Package and the Prospectus.

EXCERPTS ON THIS PAGE:

8-K
Jan 12, 2007
8-K
Jul 13, 2006
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