ESCROW AND PLEDGE AGREEMENT
ESCROW AND PLEDGE AGREEMENT, dated as of November 10, 1995 (the
"Agreement"), between ATLAS CORPORATION, a Delaware corporation (the
"Company"), Chemical Bank, as escrow agent (the "Escrow Agent"), and
Chemical Bank, as trustee (the "Trustee") under the below-referenced
Indenture.
WHEREAS the Company has executed an Indenture (as amended from time to
time, the "Indenture") dated as of November 10, 1995, to the Trustee
(together with its successors and assigns in such capacity, the "Trustee");
WHEREAS under and pursuant to the Indenture the Company may issue up
to $11,000,000 principal amount, of 7% Exchangeable Debentures due October
25, 2000 (the "Securities");
WHEREAS pursuant and subject to the terms of the Securities and the
Indenture, the Securities are exchangeable at any time prior to their
maturity at the option of the holder thereof for shares of common stock, no
par value per share ("Granges Common Stock"), of Granges, Inc. a British
Columbian corporation;
WHEREAS pursuant to the Indenture the Company has agreed to grant a
security interest in certain collateral for the benefit of the Trustee and
the holders of Securities;
WHEREAS the parties want to provide for the custody of such
collateral; and
WHEREAS it is the intention of the Company that so long as any
Securities shall be outstanding the holders thereof shall be afforded a
free and unfettered opportunity to exchange such Securities for Exchange
Property in accordance with Article Twelve of the Indenture and otherwise
to give effect to the terms thereof.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the Company and the Escrow Agent hereby agree
as follows:
Definitions. Capitalized terms used in this Agreement but not defined
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herein shall have the meanings specified in the Indenture. The following terms
shall for purposes of this Agreement have the meanings specified in this Section
unless expressly provided otherwise or unless the context otherwise requires:
"Escrowed Property" means Exchange Property as defined in the Indenture;
provided, however, that any cash, securities or other assets properly released
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by the Escrow Agent in accordance with the terms hereof and the Indenture shall
thereupon cease to be Escrowed Property.
"Lien" means the lien, pledge and security interest created by the
Indenture in the Escrowed Property for the benefit of the Trustee and the
Holders as collateral for the Securities.
"Obligations" means all the obligations of the Company under the Indenture,
the Securities and this Agreement, including without limitation the full and
punctual payment of all amounts payable thereunder and the full and punctual
performance of the Company's obligations thereunder.
"Temporary Cash Investments" means any of the following: (i) any investment
in direct obligations of the United States of America or any agency thereof or
obligations guaranteed by the United States of America or any agency thereof, in
each case maturing within 360 days of the date of acquisition thereof, (ii)
investments in time deposit accounts, certificates of deposit and money market
deposits maturing within 180 days of the date of acquisition thereof issued by a
bank or trust company which is organized under the laws of the United States of
America, any state thereof or any foreign country recognized by the United
States of America having capital surplus and undivided profits aggregating in
excess of $250,000,000 and whose long-term unsecured debt is rated "A" (or such
similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the 1933 Act),
(iii) repurchase obligations with a term of not more than 30 days for underlying
securities of the
type described in clause (i) above entered into with a bank meeting the
qualifications described in clause (ii) above, (iv) investments in commercial
paper, maturing not more than 90 days after the date of acquisition, issued by a
corporation (other than an affiliate of the Company) organized and existing
under the laws of the United States of America or any foreign country recognized
by the United States of America with a rating at the time at which any
investment therein is made of "P-2" (or higher) according to Moody's Investors
Service, Inc. or "A-2" (or higher) according to Standard & Poor's Rating
Services, (v) securities with maturities of six months or less from the date of
acquisition backed by standby or direct pay letters of credit issued by any bank
satisfying the requirements of clause (ii) above and (vi) securities with
maturities of six months or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, with a
rating at the time at which any investment therein is made of at least "A" by
Standard & Poor's Corporation or "A" by Moody's Investors Service, Inc.
Delivery of Escrowed Property. The Company confirms that it has today
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delivered to the Escrow Agent, and the Escrow Agent confirms that it has today
received and possesses, share certificate No. AC35293 evidencing 8,474,576
shares of Granges Common Stock, together with duly executed instruments of
transfer in blank. The Company shall deliver to the Escrow Agent any and all
certificates or instruments representing or evidencing Escrowed Property on
behalf of the Trustee and the Holders, which shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form satisfactory to the Trustee. The
Escrow Agent shall have the right at any time to exchange certificates or
instruments representing or evidencing Escrowed Property for certificates or
instruments of different denominations.
Escrow Agent as Agent for Trustee and Holders. The Escrow Agent, the
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Trustee and the Company acknowledge and agree that (i) the Company has granted a
security interest pursuant to the Indenture in all Escrowed Property (including,
without limitation, all Granges Common Stock) in favor of the Trustee for the
benefit of the Trustee and all the Holders, (ii) the Trustee hereby designates
the Escrow Agent to take possession of the Escrowed Property (iii) all Escrowed
Property delivered to the Escrow Agent shall be accepted and held by the Escrow
Agent as agent for and on behalf of the Trustee and all the Holders, and (iv)
that the Escrow Agent will perform the functions of the Escrow Agent under the
Indenture.
Covenants of the Escrow Agent. The Escrow Agent hereby agrees that
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the Escrowed Property received by it pursuant to this Agreement shall be
accepted and held for and applied only in conformity with the purposes and upon
the terms and conditions set forth in the
Indenture and this Agreement. The Escrow Agent shall be entitled to all the
rights and privileges of the Trustee contained in the Indenture in respect of
the Escrowed Property, including, where applicable, the protection and
immunities of the Trustee relating thereto. Except as permitted by the Indenture
or this Agreement, no action may be taken by the Escrow Agent with respect to
the Escrowed Property without the prior written consent of the Company.
Representations and Warranties. The Company hereby represents and
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warrants as follows:
(a) It is, and at the time of delivery of the Escrowed Property to the
Escrow Agent pursuant to this Agreement will be, the record and beneficial owner
of the Escrowed Property, free and clear of any lien, except for the Lien
created by the Indenture and this Agreement.
(b) It has full corporate power, authority and legal right to pledge and
grant a security interest in all the Escrowed Property.
(c) The pledge in accordance with the terms of the Indenture and this
Agreement creates a valid and perfected first priority lien on the Escrowed
Property and all proceeds from the sale thereof, securing payment and
performance of the Obligations.
The Escrow Agent represents and warrants that (i) it has full corporate
power and authority to enter into and perform this Agreement and to comply with
such terms of the Indenture as apply to its performance of this Agreement and
(ii) this Agreement has been duly and validly executed by the Escrow Agent and
constitutes the valid and binding obligation of the Escrow Agent enforceable
against the Escrow Agent in accordance with the respective terms, except as the
enforceability thereof may be subject to (A) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or other similar
laws now or hereafter in effect affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity).
Record Owner; Further Assurances. The Company agrees that at any time
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and from time to time, at the expense of the Company, the Company will promptly
execute and deliver all further instruments and documents and take all further
action that may be necessary or that the Escrow Agent or the Trustee may
reasonably request in order to perfect and protect any lien granted or purported
to be granted hereby or under the Indenture or to enable the Escrow Agent or
the Trustee to exercise and enforce its rights and remedies hereunder or under
the Indenture with respect to any Escrowed Property.
Dividends; Voting Rights: Withdrawal Rights; Rights Upon Default.
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(a) So long as no Event of Default has occurred and is continuing,
and except to the extent received pursuant to a plan of liquidation or partial
liquidation, the Company may retain and dispose of, free and clear of the Lien
of the Indenture, any interest, dividends paid and distributions made on the
Escrowed Property received by it not giving rise to an adjustment to the
Exchange Rate pursuant to Section 1204(a) of the Indenture, provided, that if
the Escrow Agent shall receive any such interest, dividends paid and
distributions made to which the Company is entitled pursuant hereto, the Escrow
Agent shall not be required to transfer to the Company any such dividends paid,
distributions made or interest to which the Company is entitled pursuant hereto
until receipt of an Officers' Certificate to the effect that the Company is
entitled to such dividends paid, distributions made or interest pursuant hereto.
The Company shall also be entitled to any interest or gain on investments made
by the Escrow Agent pursuant to Section 8, which shall be paid to the Company on
demand.
Dividends and distributions giving rise to an adjustment to the
Exchange Rate pursuant to Section 1204(a) of the Indenture shall become Escrowed
Property subject to the Lien of the Indenture.
(b) So long as an Event of Default has occurred and is continuing,
and at all times in the case of distributions on the Escrowed Property received
pursuant to a plan of liquidation or partial liquidation, the Trustee (or the
Escrow Agent, as the case may be) shall be entitled to receive and retain as
collateral all interest, dividends paid and distributions made in respect of the
Escrowed Property. Any such interest, dividends and distributions shall, if
received by the Company, be received in trust for the benefit of the Trustee, be
segregated from the other property or funds of the Company, and be forthwith
delivered to the Escrow Agent as Escrowed Property in the same form as so
received (with any necessary endorsement). In addition, the Trustee may during
such continuance of an Event of Default by instrument in writing direct the
Escrow Agent not to make any payments to the Company pursuant to Section 11 and
either (i) to make all payments to which
the Company would have been entitled pursuant to such Section 11 directly to the
Trustee or (ii) to add such payments to the Escrowed Property.
(c) The Company shall be entitled to retain, free of the Lien of the
Indenture, any Escrowed Property released to the Company in accordance with
Section 11.
(d) Any Escrowed Property delivered to the Escrow Agent, as provided
in this Agreement, for the satisfaction of the Company's obligations under the
Indenture (including, without limitation, redemption of Securities pursuant to
Article Eleven of the Indenture and Exchange of Securities pursuant to Article
Twelve of the Indenture) shall, upon such delivery, be released from the Lien of
the Indenture.
(e) Until an Event of Default has occurred and is continuing and
thereafter until written notice from the Trustee to the Company that the Trustee
intends to exercise its right to vote the Escrowed Property, the Company shall
be entitled to exercise any and all voting and other consensual rights relating
to the Escrowed Property or any securities forming part of the Escrowed Property
or any part thereof for any purpose; provided, however, that no vote shall be
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cast, and no consent, waiver or ratification given or action taken, which would
be inconsistent with or violate any provision of the Indenture or the
Securities.
(f) Upon the occurrence and during the continuance of an Event of
Default, all rights of the Company to exercise the voting and other consensual
rights that it would otherwise be entitled to exercise pursuant to Section 7(e)
hereof shall cease upon notice from the Trustee to the Company pursuant thereto
and upon the giving of such notice all such rights shall thereupon be vested in
the Trustee who shall thereupon have the sole right (which it may delegate to
the Escrow Agent without notice to the Company) to exercise such voting and
other consensual rights.
(g) In order to permit the Escrow Agent to exercise the voting and
other consensual rights which it may be entitled to exercise pursuant to Section
7(f) of the Indenture, and to receive all interest, dividends and distributions
which it may be entitled to receive under Sections 7(a) and 7(b) hereof, the
Company shall, if necessary, upon written notice of the Trustee, from time to
time
execute and deliver to the Trustee or the Escrow Agent such instruments as the
Trustee or the Escrow Agent, as the case may be, may reasonably request.
(h) The Company shall be entitled to retain, free of the Lien, any
Escrowed Property released to the Company in accordance with Section 11 hereof
and Article Twelve of the Indenture.
(i) It is specifically agreed that, until the Indenture has been
discharged, any release or transfer of Escrowed Property other than as
contemplated by this Section 7 or by Section 11 shall not terminate the Lien on
such Escrowed Property.
(j) If any Event of Default shall have occurred and be continuing,
the Trustee, or the Escrow Agent acting on behalf of the Trustee, shall have and
may exercise all the rights and remedies with respect to Escrowed Property
provided for in the Indenture, including without limitation Section 1309
thereof.
Investment of Cash. At the written direction of the Company, the
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Escrow Agent shall invest any cash forming part of the Escrowed Property in
specified Temporary Cash Investments. Any such written direction shall certify
that the investment constitutes a Temporary Cash Investment. The Company shall
be entitled to any net income or gain resulting from such investments and shall
reimburse the Escrow Agent for any losses realized in respect of such
investments.
Taxes. Subject to the provisions of Section 10, any taxes imposed on
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or with respect to the Escrowed Property shall be for the account of the
Company, and the Company shall promptly reimburse the Escrow Agent for any and
all such taxes.
Tax Adjustments in Exchange Rate. If an event shall occur which
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causes the Exchange Rate to be subject to adjustment pursuant to Section 1204 of
the Indenture, or a merger, consolidation or sale or transfer of assets shall
occur requiring a supplemental indenture, and if, within ten days after the
effective date of such transaction the Company shall furnish the Escrow Agent
with an Opinion of Counsel to the effect that such transaction is taxable to the
Company or the Escrow Agent and an Officers' Certificate as to the amount of
federal, state and local tax payable by the Company and the Escrow Agent as a
result of such transaction (computed at the marginal tax rate applicable to such
transaction), the Escrow Agent shall pay to, or to the order of, the Company, in
the case of taxes payable by the Company, or itself, in the case of taxes
payable by it, the cash held by it and apportioned or to be apportioned to the
Escrowed Property for which outstanding Securities are exchangeable, up to the
amount of such taxes. In the event that the cash held by the Escrow Agent and
so apportioned or to be apportioned is insufficient to pay to the
Company or the Escrow Agent the amount of such taxes, the Escrow Agent shall, as
soon as reasonably practicable and to the extent legally permissible, sell in
accordance with written instructions received from the Company, or if no such
instructions are received it may at its option sell, as determined by the Escrow
Agent, such Escrowed Property (including any securities or other property
included therein as shall be specified in such written instructions) as may be
necessary to pay, from the proceeds thereof after payment of any taxes by the
Company and the Escrow Agent on such sale (which shall be similarly evidenced by
an Opinion of Counsel and Officers' Certificate), the amount of any such
insufficiency. The Escrow Agent shall notify the Company and the Trustee of any
such sale and the Escrowed Property sold. In the event that proceeds from the
sale of all Escrowed Property is insufficient to pay to the Escrow Agent the
amount of such taxes, the Company shall pay such insufficiency from its own
assets. Following payment of all necessary amounts to the Company and to the
Escrow Agent, the Escrowed Property held by the Escrow Agent and any cash
apportioned thereto shall be proportionately adjusted (based on an Officers'
Certificate) so as to be apportioned equally to the Securities Outstanding as of
immediately after the close of business on the record date or the effective date
for the transaction to which this Section 10 applies (as shall be specified in
Section 1204 of the Indenture). Any Holder surrendering any Securities after
such record date, or such effective date, as the case may be, shall be entitled
to receive the Escrowed Property and any cash apportioned thereto as so adjusted
pursuant to this paragraph. If this Section 10 shall apply to a transaction and
the sale by the Escrow Agent of the consideration receivable therein shall not
be legally permissible and the amount of cash apportioned to the Escrowed
Property shall not be sufficient to pay all taxes payable by the Company and the
Escrow Agent which arise from such transaction, the Company may direct the
Escrow Agent to segregate for the benefit of the Company or the Escrow Agent (as
the case may be) or deliver to the Company or to the Escrow Agent (as the case
may be) an amount of Escrowed Property theretofore held by the Escrow Agent for
exchange of Securities having an Average Market Price equal to the unsatisfied
portion of the tax payable by the Company or the Escrow Agent (as the case may
be) with respect to such transaction including any tax payable upon the delivery
or sale thereof in order to satisfy the aforementioned tax, and such Escrowed
Property shall thereafter be solely for the account of the Company or the Escrow
Agent (as the case may be) and Holders of Securities shall have no rights
thereto.
As used in this Section 10, the term "Average Market Price" means the
weighted average closing trading price of Granges Common Stock on the American
Stock Exchange (or, if Granges Common Stock is not then listed on the American
Stock Exchange, the stock exchange or over-the-counter market upon which the
Granges Common Stock is listed which, in aggregate, has the highest dollar
trading volume) during a 20 consecutive trading day period ending three days
prior to the record date fixed for segregation of Escrowed Property. Should
Granges Common Stock not be traded on any stock exchange or over-the-counter
market, then "Average Market Price" shall mean the fair value of Granges Common
Stock over such twenty-day period as determined in good faith by an investment
banking
firm retained in good faith by the Company and which is a member of the New York
Stock Exchange or the Toronto Stock Exchange.
In the event that an Opinion of Counsel given pursuant to the
Indenture concludes that whether taxes are payable by the Company or the Escrow
Agent is uncertain under the then state of the law or facts or both, the Company
shall have the option of requiring the Escrow Agent to segregate the amount of
funds that would be payable (or securities or other property in lieu thereof),
pursuant to an Officers' Certificate, if such taxes were deemed payable,
together with the amount estimated in good faith to be the reasonable costs and
expenses (including attorneys' fees) of obtaining a determination as set forth
below. The Holders shall have no rights to such funds or securities or other
property, which shall be held by the Escrow Agent for the Company (or for the
Escrow Agent, as the case may be), the Escrowed Property and any cash
apportioned thereto deliverable upon exchange of Securities pursuant to Article
Twelve of the Indenture shall be reapportioned (based on an Officers'
Certificate from the Company) as though such segregated amounts had been paid to
the Company or the Escrow Agent for such taxes, and any Holder surrendering any
Security after the record or effective date of the applicable transaction giving
rise to an adjustment pursuant to Section 1204 of the Indenture shall be
entitled to receive only such Escrowed Property and any cash apportioned thereto
upon exchange of Securities pursuant to Article Twelve of the Indenture as so
reapportioned. The Company shall thereupon in good faith seek an appropriate
determination from the appropriate agencies and, if judged necessary by the
Company in good faith, from appropriate courts, as to whether taxes are so
payable. If an appropriate determination is made that such taxes are so payable
then the Escrow Agent shall immediately pay the funds or deliver the securities
or other property so segregated to the Company (or, if taxes are payable by the
Escrow Agent, shall retain such funds or securities or other property for
itself), and if an appropriate determination is made that such taxes are not
payable or an amount of tax is payable which is less than the amount of funds or
property so segregated, then the Escrow Agent, after paying to the Company (or
itself, as the case may be) out of such funds or securities or other property
the reasonable expenses and costs (including attorneys' fees) of obtaining such
determination (and any taxes so payable), shall apportion such remaining funds
or securities or other property which had been so segregated among the Escrowed
Property and cash apportioned thereto
as of immediately after the close of business on the record date or the
effective date of such transaction giving rise to an adjustment pursuant to
Section 1204 of the Indenture, whichever is applicable. If any Security has been
exchanged on or after such record date or such effective date, as the case may
be, and before a determination is made that no taxes are payable or an amount of
tax is payable which is less than the amount of funds or securities or other
property so segregated, the Escrow Agent, to the extent not previously
delivered, shall deliver such Escrowed Property and any cash apportioned thereto
as reapportioned following such determination, to the person to which and in the
manner in which the other proceeds of the exchange of such Security were
delivered.
Release of Assets from Escrow. (a) In the event of any reduction of
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the principal amount of Securities Outstanding under the Indenture as evidenced
by the delivery to the Trustee by the Company of Securities for cancellation,
the Escrow Property held by the Escrow Agent shall be reduced in the same
proportion as the principal amount of the Securities was so reduced, provided,
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that the Escrow Agent shall retain a sufficient amount of Escrow Property to
exchange all Securities then Outstanding on the basis of the then applicable
Exchange Rate and the other terms and provisions of Article Twelve of the
Indenture and of this Agreement, and the Company shall upon Company Request, be
entitled to any excess Escrow Property created by such reduction, net of any
Escrow Property delivered in connection with any reduction caused by an exchange
pursuant to this section; provided, however, that the Escrow Agent shall not
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make any distribution of Escrowed Property to the Company prior to the receipt
from the Company of an Officers' Certificate to the effect that no Event of
Default exists under the Indenture and no event or condition exists under the
Indenture which with notice or lapse of time or both would become such an Event
of Default and which states in detail the basis asserted by the Company for such
distribution. Upon expiration of the right to surrender Securities for exchange
pursuant to Article Twelve of the Indenture and when all other obligations of
the Company shall have been satisfied under the Indenture, the Escrow Agent
shall, upon Company Request, release and deliver all Granges Common Stock and
cash and investments and other property held by the Escrow Agent under this
Agreement which are not required with respect to Securities previously
surrendered for exchange.
(b) The Escrow Agent shall release Escrowed Property to Holders of
Securities surrendered for exchange pursuant to Article Twelve of the Indenture.
(c) The Escrow Agent shall release Escrowed Property promptly upon written
request from the Trustee therefor to permit the delivery of such Escrowed
Property to Holders as part of a Redemption pursuant to Article Eleven of the
Indenture.
(d) The Escrow Agent shall release Escrowed Property promptly upon written
request from the Trustee therefor to permit the delivery of such Escrowed
Property to Holders as part of a payment upon Stated Maturity pursuant to
Article Three of the Indenture.
(e) Upon the termination of this Agreement in accordance with Section 18
of this Agreement, the Escrow Agent shall release Escrowed Property to the
Company promptly upon written request from the Company therefor.
Reliance on Information Supplied. The Escrow Agent may rely on the
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contents of any Officers' Certificate furnished hereunder and, in delivering any
such Officers' Certificate, the Company may rely on information furnished to the
Company by the Escrow Agent or the Trustee as to the quantity and identity of
Escrowed Property, or any other property held by it and the quantity and
identity of Escrowed Property delivered to the Holders upon exchange of the
Securities. The Escrow Agent shall furnish such information to the Company upon
request.
Expenses of the Escrow Agent. The Company shall pay the Escrow Agent
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reasonable compensation for all services rendered by the Escrow Agent in the
performance of its duties under this Agreement and reimburse the Escrow Agent
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Escrow Agent in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or willful misconduct.
Indemnification. (a) The Company shall indemnify and hold harmless
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the Escrow Agent, each of the Escrow Agent's directors, officers, employees,
agents and each person, if any, who controls the Escrow Agent within the meaning
of the 1933 Act, from and against any loss, claim, damage or liability (other
than consequential damages), joint or several, arising out of or in connection
with this Agreement, under the 1933 Act or otherwise, and shall reimburse the
Escrow Agent and such directors, officers, employees, agents, and controlling
persons for any legal and other expenses (other than compensation and expenses
of persons regularly in the employ of the Escrow Agent) reasonably incurred in
investigating, defending or preparing to defend against any such loss, claim,
damage, liability or action, threatened or commenced, insofar as such loss,
claim, damage, liability or action arises out of, is based upon, or relates to
this Agreement, including, without limitation, any of the following: (i) any
untrue statement or alleged untrue statement of a material fact contained in any
documents or filings in connection with the offer and/or sale of the Securities
by the Company or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (ii) any violation or alleged violation of the federal
securities laws (including, without limitation, Section 5 of the 1933 Act) in
connection with the offer and/or sale of the Securities by the Company, the
exchange of Securities for Escrowed Property or the purchase or redemption of
the Securities by
the Company when Escrowed Property (or the proceeds of the sale thereof) are
used to pay, in whole or in part, the principal or the Redemption Price, and
(iii) any violation or alleged violation by the Escrow Agent of this Agreement
and/or any duty or law not described above unless such violation resulted from
the negligence or willful misconduct on the part of the Escrow Agent.
The obligations of the Company under Sections 13 and 14 to
compensate and indemnify the Escrow Agent and to pay or reimburse the Escrow
Agent for expenses, disbursements and advances shall survive the satisfaction
and discharge of this Agreement. To secure the Company's obligations under
Sections 13 and 14, the Escrow Agent shall have a lien prior to the Securities
on (i) all money or property held or collected by the Escrow Agent, as such,
except money or property held in trust to pay the principal of or interest on
particular Securities and (ii) all Escrowed Property held under this Agreement
and such lien shall survive the satisfaction and discharge of this Agreement and
any other termination of this Agreement including any termination under any
bankruptcy law. Without limiting any other rights available to the Escrow Agent
under applicable law, when the Escrow Agent incurs expenses or renders services
in connection with an Event of Default, the Holders by their acceptance of the
Securities agree pursuant to Section 607 of the Indenture that such expenses and
the compensation for such services are intended to constitute expenses of
administration under any bankruptcy law. "Escrow Agent" for purposes of this
Section 14(b) shall include any predecessor Escrow Agent, but the negligence or
bad faith of any Escrow Agent shall not (except to the extent otherwise required
by law) affect the indemnification of any other Escrow Agent.
The Escrow Agent shall give the Company prompt notice of the
existence of any claim for which indemnity may be sought pursuant to this
Section, and the Company shall have the right to assume the defense of such
claim with counsel of its choice. The Escrow Agent shall have the right to
employ separate counsel and to participate in the defense of such claim,
provided that the fees and expenses of such separate counsel shall be at the
expense of the Company only if (i) the Company shall have failed, within 30 days
after receipt of notice of such claim, to notify the Escrow Agent that the
Company will assume the defense thereof, or (ii) the Escrow Agent shall have
been advised by counsel that, in the opinion of such counsel, there exists an
actual or potential conflict of interest which would prevent counsel for the
Company from representing the Escrow Agent. No settlement or compromise of any
claim for which indemnity may be sought pursuant to this Section 14 may be made
by the Escrow Agent without the written consent of the Company.
The Escrow Agent, its directors, officers, employees, agents, and
controlling persons, if any, shall not be liable to the Company or any record or
beneficial owner of Securities for (i) any matter described in this Section 14
pursuant to which the Escrow Agent is to be indemnified hereunder, (ii) any
error of judgment made in good faith or (iii) any misconduct of any agent
appointed by it with due care hereunder.
Change of Escrow Agent. Any change in the Escrow Agent shall be
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effected as set forth in Article Six of the Indenture with respect to the
Trustee.
Succession of Escrow Agent. After appointment, any successor Escrow
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Agent shall be vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Escrow Agent without further act or deed
and upon the receipt of all amounts owed to it by the Company under this
Agreement, the former Escrow Agent shall deliver and transfer to the successor
Escrow Agent any property at the time held by it hereunder, and shall execute
and deliver any further assurances, conveyance, act or deed necessary for the
purpose, including, without limitation, to perfect the security interest granted
by the Indenture.
Supplements and Amendments. (a) This Agreement may be supplemented
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or amended from time to time either (i) with the consent of the Holders of a
majority in principal amount of Outstanding Securities obtained in the manner
provided for in the Indenture with regard to amendments to the Indenture; or
(ii) by the adoption of a resolution, at a meeting of Holders of the Outstanding
Securities at which a quorum is present convened and held in accordance with the
applicable provisions of the Indenture, by the Holders of two-thirds in
principal amount of the Outstanding Securities represented at such meeting. The
Company, the Trustee and the Escrow Agent may from time to time supplement or
amend this Agreement, without the approval of any Holder, (i) in order to cure
any ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to conform
this Agreement to the Indenture as the Indenture may be amended from time to
time, (ii) to make any other provision in regard to matters or questions arising
hereunder which the Company, the Trustee and the Escrow Agent may deem necessary
or desirable and which shall not be inconsistent with the provisions of the
Indenture and which shall not adversely affect the right to exchange any
Security for Escrowed Property upon the terms set forth in the Indenture or
(iii) subject to Section 508 of the Indenture, to comply with the requirements
or suggestions of any official or semi-official regulatory or self-regulatory
body having jurisdiction over the Company or the Securities, provided, however,
-------- -------
that nothing in this clause (iii) shall permit any modification disadvantageous
in any material respect to the Holders without the consent of the Holders
pursuant to Section 802 of the Indenture.
(b) In executing, or accepting the additional duties created by, any
supplements and amendments permitted by this Section or the modifications
thereby of the duties created by this Agreement, the Escrow Agent shall be
entitled to receive, and (subject to Section 19) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplements and amendments is authorized or permitted by this Agreement and that
such supplement or amendment has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms. The
Escrow Agent may, but shall not be obligated to, enter into any such supplements
or amendments which affect the Escrow Agent's own rights, duties or immunities
under this Agreement or otherwise.
Termination of Agreement. This Agreement shall terminate when the
------------------------
Indenture is discharged pursuant to Section 401 thereof, which termination shall
be evidenced by a certificate of the Trustee to that effect. Upon termination
of this Agreement, any Escrowed Property remaining in the hands of the Escrow
Agent shall be delivered to the Company, free and clear of any and all interests
of the Escrow Agent, the Trustee and the Holders, or any of them. Sections 13
and 14 of this Agreement shall survive any termination hereof.
Duties of the Escrow Agent. (a) The Escrow Agent shall not be
--------------------------
accountable with respect to the validity or value or any Escrowed Property and
the Escrow Agent makes no representation or warranty with respect thereto. The
Escrow Agent shall not be responsible for any failure of the Company to comply
with any of the covenants of the Company contained in this Agreement.
The Escrow Agent shall be obligated to perform only such duties
as are specifically set forth in the Indenture and this Agreement. The Escrow
Agent shall not be liable for any action taken, omitted or suffered by it in
good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement, and may
conclusively rely and shall be protected in acting or refraining from acting in
reliance upon an opinion of counsel or upon any certificate, request or other
document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties. Without limiting the generality of the
foregoing, it is expressly agreed that the Escrow Agent shall not be responsible
for any governmental approvals which may be required in connection with the
issuance or delivery of Escrowed Property. The Escrow Agent shall not be
required to take any action hereunder which, in the opinion of its counsel,
would be contrary to law.
The Escrow Agent shall not be under any duty hereunder to pay out
or distribute any cash or other property to any person unless such cash or other
property has been received by the Escrow Agent pursuant to this Agreement.
The Escrow Agent is exclusively the agent, custodian and bailee
of the Trustee as secured party for the benefit of the Trustee and the Holders,
such that the Trustee shall be deemed in possession of the Escrowed Property and
of the proceeds and investments of such Escrowed Property as required by
Sections 9-305, 8-313 and 8-321, of the Uniform Commercial Code of the State of
New York, as in effect on the date hereof, unless otherwise released or
disbursed in accordance with the provisions of this Agreement. The Escrow Agent
agrees to accept, hold and keep the Escrowed Property as agent, custodian and
bailee solely for the Trustee as secured party for the benefit of the Trustee
and the holders of the Securities separate and apart on the books and records of
the Escrow Agent from any other property of the Company or the Trustee which the
Escrow Agent may hold and to identify the Escrowed Property as being subject to
the Lien in favor of the Trustee and the holders of the Securities, all in
accordance with the terms and conditions of this Agreement.
Notices. Any request, demand, authorization, notice, waiver, consent
-------
or communication pursuant to this Agreement shall be in writing and delivered in
person or mailed by first-class mail, postage prepaid, addressed as follows or
transmitted by facsimile transmission to the following facsimile numbers:
If to the Company:
Atlas Corporation
370 Seventeenth Street, suite 3150
Denver, Colorado 80202
Attention: Secretary
Facsimile No.: (303) 892-8808
If to the Escrow Agent or the Trustee:
Chemical Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Corporate Trust Department
Facsimile No.: (212) 946-3918
The Company or the Escrow Agent by notice given to the other in the manner
provided above may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Holder shall be mailed to the
Holder, by first-class mail, postage prepaid, at the Holder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed to a Holder in the manner provided above, it is duly
given, whether or not received by the addressee.
If the Company mails a notice or communication to the Holders, it shall
mail a copy to the Trustee and the Escrow Agent and each Registrar, Paying Agent
or co-registrar pursuant to the Indenture.
Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL BE
-----------------------------------------
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
THE UNITED STATES OF AMERICA.
Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be construed as an original for all purposes,
but all of which taken together shall constitute one and the same agreement.
Headings. The headings contained in this Agreement are for
--------
convenience of reference only and shall have no effect on the interpretation or
operation of this Agreement.
Benefits of Agreement. Nothing in this Agreement or the Securities,
---------------------
expressed or implied, shall give or be construed to give any person, other than
the parties hereto and the Holders of Securities as such, any legal or equitable
right, remedy or claim under any covenant, condition or provision herein
contained, all the covenants, conditions and provisions contained in this
Agreement being for the sole benefit of the parties hereto and the Holders of
the Securities as such.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
ATLAS CORPORATION,
By: /s/ Gerald E. Davis
------------------------
Name: Gerald E. Davis
Title: President
[SEAL]
Attest:
/s/ Gregg B. Shafter
- ---------------------------
Name: Gregg B. Shafter
Title: Vice President
CHEMICAL BANK
as Escrow Agent,
By: /s/ Peter Morse
--------------------
Name: Peter Morse
Title: Vice President
[SEAL]
Attest:
/s/ L. O'Brien
- ----------------------------------
Name: L. O'Brien
Title: Senior Trust Officer
CHEMICAL BANK
as Trustee,
By: /s/ Peter Morse
---------------------
Name: Peter Morse
Title: Vice President
[SEAL]
Attest:
/s/ L. O'Brien
- ----------------------------------
Name: L. O'Brien
Title: Senior Trust Officer