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EXHIBIT 4.25
, dated as of , 1999 (the "Agreement")
by and between The Coastal Corporation, a Delaware corporation (the "Company"),
The Bank of New York, a national banking association, not individually but
solely as Purchase Contract Agent (the "Purchase Contract Agent") and as
attorney-in-fact of the holders of Purchase Contracts (as defined in the
Purchase Contract Agreement (as defined herein)), and Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue $ aggregate Stated Amount of
its FELINE PRIDES (the "FELINE PRIDES") under the Purchase Contract Agreement,
dated as of , 1999, by and between the Purchase Contract Agent and the Company
(the "Purchase Contract Agreement"); and
WHEREAS, the FELINE PRIDES will initially consist of o units
referred to as "Income PRIDES" and units referred to as "Growth PRIDES."
WHEREAS, the Company will issue concurrently in connection
with the issuance of the FELINE PRIDES, $ aggregate principal amount of %
Debentures due 16, 2004 (the "Debentures") of the Company; and
WHEREAS, the Debentures forming a part of the Income PRIDES
will be pledged pursuant to the Pledge Agreement (the "Pledge Agreement"),
dated as of , 1999, by and among the Company, The Chase Manhattan Bank, as
collateral agent (the "Collateral Agent") and the Purchase Contract Agent, to
secure an Income PRIDES holder's obligations under the related Purchase
Contract on the Purchase Contract Settlement Date; and
WHEREAS, the Debentures, of such Debenture holders electing
to have their Debentures remarketed, or of such Income PRIDES holders who have
elected not to settle the Purchase Contracts related to their Income PRIDES
from the proceeds of a Cash Settlement and who have not early settled their
Purchase Contracts, will be remarketed by the Remarketing Agent on the third
Business Day immediately preceding the Purchase Contract Settlement Date; and
WHEREAS, the applicable interest rate on the Debentures that
remain out standing on and after the Purchase Contract Settlement Date will be
reset on the third Business Day immediately preceding the Purchase Contract
Settlement Date, to the Reset Rate to be determined by the Reset Agent as the
rate that such Debentures should bear in order to have an approximate market
value of % of the aggregate principal amount of the Debentures on the third
Business Day immediately preceding the Purchase Contract Settlement Date,
provided that in the determination of such Reset Rate, the Company may limit
the Reset Spread (a component
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of the Reset Rate) to be no higher than o basis points (o%) and the Company
shall, if applicable, limit the Reset Rate to the maximum rate permitted by
applicable law; and
WHEREAS, the Company has requested Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") to act as
the Reset Agent and as the Remarketing Agent, and as such to perform the
services described herein; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Reset Agent and
Remarketing Agent and as such to perform such duties on the terms and
conditions expressly set forth herein;
NOW, THEREFORE, for and in consideration of the covenants
herein made, and subject to the conditions herein set forth, the parties hereto
agree as follows:
Section 1. Definitions. Capitalized terms used and not
defined in this Agreement, in the recitals hereto or in the paragraph
preceding such recitals shall have the meanings assigned to them in the
Purchase Contract Agreement or, if not therein defined, the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent.
(a) The Company hereby appoints Xxxxxxx Xxxxx and Xxxxxxx Xxxxx hereby accepts
such appointment, (i) as the Reset Agent to determine in consultation with the
Company, in the manner provided for herein and in the Indenture (as in effect
on the date of this ) with respect to the Debentures, the
Reset Rate that, in the opinion of the Reset Agent, will, when applied to the
Debentures, will enable a Debenture to have an approximate market value, as of
the third Business Day preceding the Purchase Contract Settlement Date, of o%
of the principal amount in the case of such Debenture (provided that the
Company, by notice to the Reset Agent prior to the tenth Business Day preceding
the Purchase Contract Settlement Date, (x) may limit such Reset Rate to be no
higher than the rate on the Two-Year Benchmark Treasury plus o basis points
(o%) and (y) shall, if applicable, limit the Reset Rate so that it does not
exceed the maximum rate permitted by applicable law), and (ii) as the exclusive
Remarketing Agent (subject to the right of Xxxxxxx Xxxxx to appoint additional
remarketing agents hereunder as described below) to remarket the Debentures, of
such Debenture holders electing to have their Debentures remarketed, or of such
Income PRIDES holders who have not early settled the related Purchase Contracts
and have failed to notify the Purchase Contract Agent, on or prior to the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, of
their intention to settle the related Purchase Contracts through Cash
Settlement, for settlement on the Purchase Contract Settlement Date. In
connection with the remarketing contemplated hereby, the Remarketing Agent will
enter into a Supplemental (the "Supple mental ") with the Company and the Purchase Contract Agent, which shall
either be (i) substantially in the form attached hereto as Exhibit A (with such
changes as the Company and the Remarketing Agent may agree upon, it being
understood that changes may be necessary in the representations, warranties,
covenants and other provisions of the Supplemental due to
changes in law or facts and circumstances or in the event that Xxxxxxx Xxxxx is
not the sole remarketing agent, and with such further changes
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therein as the Remarketing Agent may reasonably request, or (ii) in such other
form as the Remarketing Agent may reasonably request, subject to the approval
of the Company (such approval not to be unreasonably withheld). Anything herein
to the contrary notwithstanding, Xxxxxxx Xxxxx shall not be obligated to act as
Remarketing Agent or Reset Agent hereunder unless the Supplemental is in form and substance reasonably satisfactory to Xxxxxxx Xxxxx.
The Company agrees that Xxxxxxx Xxxxx shall have the right, on 15 Business Days
notice to the Company, to appoint one or more additional remarketing agents so
long as any such additional remarketing agents shall be reasonably acceptable
to the Company. Upon any such appointment, the parties shall enter into an
appropriate amendment to this Agreement to reflect the addition of any such
remarketing agent.
(b) Pursuant to the Supplemental , the
Remarketing Agent, either as sole remarketing agent or as representative of a
group of remarketing agents appointed as aforesaid, will agree, subject to the
terms and conditions set forth herein and therein, to use its reasonable
efforts to remarket, on the third Business Day immediately preceding the
Purchase Contract Settlement Date, the Debentures that the Trustee (as such
terms are defined in the Indenture) shall have notified the Remarketing Agent
have been tendered for, or otherwise are to be included in, the Remarketing
(such remarketing being hereinafter referred to as the "Remarketing"), at a
price of approximately 100.75% of the aggregate principal amount of such
Debentures, plus any accrued and unpaid interest (including any deferred
interest). Notwithstanding the preceding sentence, the Remarketing Agent shall
not remarket any Debentures for a price less than 100% of the aggregate
principal amount of such Debentures, respectively, plus accrued and unpaid
interest. After deducting the fee specified in Section 3 below, the proceeds of
such remarketing shall be paid to the Collateral Agent in accordance with
Section 4.6 of the Pledge Agreement and Section 5.4 of the Purchase Contract
Agreement (each of which Sections are incorporated herein by reference). The
right of each holder of Debentures, as the case may be, or Income PRIDES to
have Debentures, as the case may be, tendered for remarketing shall be limited
to the extent that (i) the Remarketing Agent conducts a remarketing pursuant to
the terms of this Agreement, (ii) Debentures tendered have not been called for
redemption, (iii) the Remarketing Agent is able to find a purchaser or
purchasers for tendered Debentures at a price of not less than 100% of the
stated liquidation or principal amount thereof, as the case may be, plus
accrued and unpaid distributions or interest, as applicable, thereon, and (iv)
such purchaser or purchasers deliver the purchase price therefor to the
Remarketing Agent as and when required.
(c) It is understood and agreed that neither the Remarketing
Agent nor the Reset Agent shall have any obligation whatsoever to purchase any
Debentures, whether in the Remarketing or otherwise, and shall in no way be
obligated to provide funds to make payment upon tender of Debentures for
remarketing or to otherwise expend or risk their own funds or incur or be
exposed to financial liability in the performance of their respective duties
under this Agreement or the Supplemental , and, without
limitation to the foregoing, the Remarketing Agent shall not be deemed an
underwriter of the remarketed Debentures. The Company shall be obligated in any
case to provide funds to make payment upon tender of Debentures for
remarketing.
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Section 3. Fees. With respect to the Remarketing, the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee") an
amount not exceeding o basis points (o%), of the principal amount of the
remarketed Debentures from any amount received in connection with such
Remarketing in excess of the aggregate principal amount of such re marketed
Debentures plus any accrued and unpaid interest (including any deferred
interest). In addition, the Reset Agent shall receive from the Company a
reasonable and customary fee (the "Reset Agent Fee"); provided, however, that
if the Remarketing Agent shall also act as the Reset Agent, then the Reset
Agent shall not be entitled to receive any such Reset Agent Fee. Payment of
such Reset Agent Fee shall be made by the Company on the third Business Day
immediately preceding the Purchase Contract Settlement Date in immediately
available funds or, upon the instructions of the Reset Agent, by certified or
official bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent.
(a) The Company may in its absolute discretion replace Xxxxxxx Xxxxx as the
Remarketing Agent and as the Reset Agent hereunder by giving notice prior to
3:00 p.m., New York City time, on the eleventh Business Day immediately prior
to the Purchase Contract Settlement Date, provided that the Company must
replace Xxxxxxx Xxxxx both as Remarketing Agent and as Reset Agent unless
Xxxxxxx Xxxxx shall otherwise agree. Any such replacement shall become
effective upon the Company's appointment of a successor to perform the services
that would otherwise be per formed hereunder by the Remarketing Agent and the
Reset Agent. Upon providing such notice, the Company shall use all reasonable
efforts to appoint such a successor and to enter into a
with such successor as soon as reasonably practicable.
(b) Xxxxxxx Xxxxx may resign at any time and be discharged
from its duties and obligations hereunder as the Remarketing Agent and/or as
the Reset Agent by giving notice prior to 3:00 p.m., New York City time, on the
eleventh Business Day immediately prior to the Purchase Contract Settlement
Date. Any such resignation shall become effective upon the Company's
appointment of a successor to perform the services that would otherwise be per
formed hereunder by the Remarketing Agent and/or the Reset Agent. Upon
receiving notice from the Remarketing Agent and/or the Reset Agent that it
wishes to resign hereunder, the Company shall appoint such a successor and
enter into a remarketing agreement with it as soon as reasonably practicable.
Section 5. Dealing in the Securities. Each of the Remarketing
Agent and the Reset Agent, when acting hereunder or, in the case of the
Remarketing Agent, under the Supplemental Remarketing Agreement, or when acting
in its individual or any other capacity, may, to the extent permitted by law,
buy, sell, hold or deal in any of the Debentures, Growth PRIDES, Income PRIDES
or any other securities of the Company. With respect to any Debentures, Growth
PRIDES, Income PRIDES or any other securities of the Company owned by it, each
of the Remarketing Agent and the Reset Agent may exercise any vote or join in
any action with like effect as if it did not act in any capacity hereunder.
Each of the Remarketing Agent and the Reset Agent, in its individual capacity,
either as principal or agent, may also engage in or have an interest in any
financial or other transaction with the Company as freely as if it did not act
in any capacity hereunder.
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Section 6. Registration Statement and Prospectus. In
connection with the Remarketing, if and to the extent required in the view of
counsel (which need not be an opinion) for either the Remarketing Agent or the
Company) by applicable law, regulations or interpretations in effect at the
time of such Remarketing, the Company shall use its reasonable efforts to have
a registration statement relating to the Debentures effective under the
Securities Act of 1933 prior to the third Business Day immediately preceding
the Purchase Contract Settlement Date, if requested by the Remarketing Agent,
shall furnish a current preliminary prospectus and, if applicable, a current
preliminary prospectus supplement to be used in such Remarketing by the
Remarketing Agent not later than seven Business Days prior to the Purchase
Contract Settlement Date (or such earlier date as the Remarketing Agent may
reasonably request) and in such quantities as the Remarketing Agent may
reasonably request, and shall furnish a current final prospectus and, if
applicable, a final prospectus supplement to be used in such Remarketing by the
Remarketing Agent not later than the third Business Day immediately preceding
the Purchase Contract Settlement Date in such quantities as the Remarketing
Agent may reasonably request, and shall pay all expenses relating thereto. The
Company shall also take all such actions as may (upon advice of counsel to the
Company or the Remarketing Agent) be necessary or desirable under state
securities or blue sky laws in connection with the Remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations.
(a) The obligations of the Remarketing Agent and the Reset Agent under this
Agreement and, in the case of the Remarketing Agent, the Supplemental
Remarketing Agreement shall be subject to the terms and conditions of this
Agreement and the Supplemental Remarketing Agreement, including, without
limitation, the following conditions: (i) the Debentures tendered for, or
otherwise to be included in such, Remarketing have not been called for
redemption, (ii) the Remarketing Agent is able to find a purchaser or
purchasers for tendered Debentures at a price not less than 100% of the stated
liquidation amount or principal amount thereof, as the case may be, plus
accrued and unpaid distributions or interest, as applicable, thereon, (iii) the
Purchase Contract Agent, the Collateral Agent, the Custodial Agent, the Company
and the Trustee shall have performed their respective obligations in connection
with the Remarketing pursuant to the Purchase Contract Agreement, the Pledge
Agreement, the Indenture, this Agreement and the Supplemental Remarketing
Agreement (including, without limitation, giving the Remarketing Agent notice
of the aggregate liquidation amount or principal amount, as the case may be, of
Debentures, as the case may be, to be remarketed no later than 10:00 a.m., New
York City time, on the fourth Business Day prior to the Purchase Contract
Settlement Date and concurrently delivering the Debentures to be remarketed to
the Remarketing Agent), (iv) no Event of Default (as defined in the Indenture)
shall have occurred and be continuing, (v) the accuracy of the representations
and warranties of the Company included and incorporated by reference in this
Agreement and the Supplemental Remarketing Agreement or in certificates of any
officer of the Company or any of its subsidiaries delivered pursuant to the
provisions included or incorporated by reference in this Agreement or the
Supplemental Remarketing Agreement, (vi) the performance by the Company of its
covenants and other obligations included and incorporated by reference in this
Agreement and the Supplemental Remarketing Agreement, and (vii) the
satisfaction of the other conditions set forth and incorporated by reference in
this Agreement and the Supplemental Remarketing Agreement.
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(b) If at any time during the term of this Agreement, any
Indenture Event of Default or event that with the passage of time or the giving
of notice or both would become an Indenture Event of Default has occurred and
is continuing under the Indenture, then the obligations and duties of the
Remarketing Agent and the Reset Agent under this Agreement and the Supplemental
Remarketing Agreement shall be suspended until such default or event has been
cured. The Company will promptly give the Remarketing Agent notice of all such
defaults and events of which the Company is aware.
Section 8. Termination of Remarketing Agreement. This
Agreement shall terminate as to any Remarketing Agent or Reset Agent which is
replaced on the effective date of its replacement pursuant to Section 4(a)
hereof or pursuant to Section 4(b) hereof. Notwithstanding any such
termination, the obligations set forth in Section 3 hereof shall survive and
remain in full force and effect until all amounts payable under said Section 3
shall have been paid in full. In addition, each former Remarketing Agent and
Reset Agent shall be entitled to the rights and benefits under Section 10 of
this Agreement notwithstanding the replacement or resignation of such
Remarketing Agent or Reset Agent
Section 9. Remarketing Agent's Performance; Duty of Care. The
duties and obligations of the Remarketing Agent and the Reset Agent shall be
determined solely by the express provisions of this Agreement and, in the case
of the Remarketing Agent, the Supple mental Remarketing Agreement. No implied
covenants or obligations of or against the Remarketing Agent or the Reset Agent
shall be read into this Agreement or the Supplemental Remarketing Agreement. In
the absence of bad faith on the part of the Remarketing Agent or the Reset
Agent, as the case may be, the Remarketing Agent and the Reset Agent each may
conclusively rely upon any document furnished to it which purports to conform
to the requirements of this Agreement or the Supplemental Remarketing
Agreement, as the case may be, as to the truth of the statements expressed
therein. Each of the Remarketing Agent and the Reset Agent shall be protected
in acting upon any document or communication reasonably believed by it to be
signed, presented or made by the proper party or parties. Neither the
Remarketing Agent nor the Reset Agent shall have any obligation to determine
whether there is any limitation under applicable law on the Reset Rate on the
Debentures or, if there is any such limitation, the maximum permissible Reset
Rate on the Debentures, and they shall rely solely upon written notice from the
Company (which the Company agrees to provide prior to the tenth Business Day
before the Purchase Contract Settlement Date) as to whether or not there is any
such limitation and, if so, the maximum permissible Reset Rate. Neither the
Remarketing Agent nor the Reset Agent shall incur any liability under this
Agreement or the Supplemental Remarketing Agreement to any beneficial owner or
holder of Debentures, or other securities, either in its individual capacity or
as Remarketing Agent or Reset Agent, as the case may be, for any action or
failure to act in connection with the Remarketing or otherwise in connection
with the transactions contemplated by this Agreement or the Supplemental
Remarketing Agreement. The provisions of this Section 9 shall survive any
termination of this Agreement and shall also continue to apply to every
Remarketing Agent and Reset Agent notwithstanding their resignation or removal.
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Section 10. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless the Remarketing Agent, the Reset Agent
and their respective directors, officers, employees, agents, affiliates and
each person, if any, who controls the Remarketing Agent or the Reset Agent
within the meaning of either Section 15 of the Securities Act of 1933, as
amended (the "1933 Act"), or Section 20 of the Securities Exchange Act of 1934,
as amended (the "1934 Act") (the Remarketing Agent, the Reset Agent and each
such person or entity being an "Indemnified Party"), as follows:
(i) from and against any and all losses, claims, damages,
liabilities and expenses whatsoever, joint or several, as incurred, to which
such Indemnified Party may be come subject under any applicable federal or
state law, or otherwise, and related to, arising out of, or based on (A) the
failure to have an effective Registration Statement (as defined in the
Supplemental Remarketing Agreement) under the 1933 Act relating to the
Debentures, as the case may be, if required, or the failure to satisfy the
prospectus delivery requirements of the 1933 Act because the Company failed to
provide the Remarketing Agent with a Prospectus (as defined in the Supplemental
Remarketing Agreement) for delivery, or (B) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any amendment thereto (including any information deemed to be a part of the
Registration Statement at the time it became effective pursuant to paragraph
(b) of Rule 430A under the 1933 Act, if applicable), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (C) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus, or any amendment or supplement
thereto, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (D) any untrue
statement or alleged untrue statement of a material fact contained in any other
information (whether oral or written) or documents (including, without
limitation, any documents incorporated or deemed to be incorporated by
reference in any such information or documents) provided by the Company for
use in connection with the remarketing of the Debentures or any of the
transactions related thereto, or (E) any breach by the Company of any of the
representations, warranties or agreements included or incorporated by reference
in this Agreement or the Supplemental Remarketing Agreement, or (F) any failure
by the Company to make or consummate the re marketing of the Debentures
(including, without limitation, any Failed Remarketing) or the withdrawal,
recission, termination, amendment or extension of the terms of such
remarketing, or (G) any failure on the part of the Company to comply, or any
breach by the Company of, any of the provisions included or incorporated by
reference in this Agreement, the Supplemental Remarketing Agreement, the
Purchase Contract Agreement, the Income PRIDES, the Growth PRIDES, the Pledge
Agreement, the Indenture or the Debenture (collectively, the "Operative
Documents") or (H) the remarketing of the Debentures, as the case may be, or
any other transaction contemplated by any of the Operative Documents, or the
engagement of the Remarketing Agent or the Reset Agent pursuant to, or the
performance by the Remarketing Agent or the Reset Agent of the respective
services contemplated by, this Agreement or the Supplemental Remarketing
Agreement;
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(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any claim
whatsoever related to, arising out of or based on any matter described in (i)
above; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever related to, arising out
or based on any matter described in (i) above, whether or not such Indemnified
Party is a party and whether or not such claim, action or proceeding is
initiated or brought by or on behalf of the Company to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that the Company shall not be liable under clause (i)(B),
(i)(C) or (i)(D) to the extent any such loss, claim, damage, liability or
expense arises out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and conformity with written
information furnished to the Company by the Remarketing Agent or the Reset
Agent expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or any other documents used in connection with remarketing
of the Debentures, as the case may be.
The Company agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company or its respective security holders or creditors relating to or arising
out of the engagement of the Remarketing Agent or the Reset Agent pursuant to,
or the performance by the Remarketing Agent or the Reset Agent of their
respective services contemplated by, this Agreement or the Supplemental
Remarketing Agreement except to the extent that any loss, claim, damage,
liability or expense is found in a final judgment by a court of competent
jurisdiction to have resulted from the willful misconduct, gross negligence or
bad faith of the Remarketing Agent or the Reset Agent, as the case may be.
The Company agrees that, without Xxxxxxx Xxxxx'x prior
written consent, it will not settle, compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any action or
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 10 (whether or not Xxxxxxx Xxxxx or any other
Indemnified Party is an actual or potential party to such claim, action or
proceeding), unless such settlement, compromise or consent (i) includes an
unconditional release of each Indemnified Party from all liability arising out
of such litigation, investigation, proceeding, action or claim and (ii) does
not include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an Indemnified Party.
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(b) If the indemnification provided for in Section 10(a)
hereof is for any reason unavailable to or insufficient to hold harmless an
Indemnified Party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then the Company shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such Indemnified Party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Remarketing Agent and the Reset Agent on the other hand from
the remarketing of the Debentures contemplated hereby or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one hand and
of the Remarketing Agent and the Reset Agent on the other hand in connection
with the statements, omissions or other matters which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Remarketing Agent and the Reset Agent on the other hand in
connection with the remarketing of the Debentures contemplated hereby shall be
deemed to be in the same respective proportions as the aggregate principal
amount of the Debentures which are or are to be remarketed bears to the
aggregate fees actually received by the Remarketing Agent and the Reset Agent
under Section 3 hereof. The relative fault of the Company on the one hand and
the Remarketing Agent and the Reset Agent on the other hand (i) in the case of
an untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, shall be determined by reference to, among
other things, whether such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by the Remarketing Agent
or the Reset Agent on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission and (ii) in the case of any other action or omission
shall be determined by reference to, among other things, whether such action or
omission was taken or omitted to be taken by the Company on the one hand, or by
the Remarketing Agent or the Reset Agent, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to prevent or
correct such action or omission. The Company, the Remarketing Agent and the
Reset Agent agree that it would not be just and equitable if contribution
pursuant to this Section 10(b) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 10(b). The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an Indemnified
Party and referred to above in this Section 10(b) shall be deemed to include
any legal or other expenses incurred by such Indemnified Party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or any such omission or alleged omission or any other such
action or omission; provided, however, that to the extent permitted by
applicable law, in no event shall the Remarketing Agent or the Reset Agent be
required to contribute any amount which, in the aggregate, exceeds the
aggregate fees received by them under Section 3 of this Agreement. No
investigation or failure to investigate by any Indemnified Party shall impair
the foregoing indemnification and contribution agreement or any rights an
Indemnified Party may have. No person guilty of fraudulent misrepresentation
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(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(c) In the event an Indemnified Party is requested or
required to appear as a witness in any action brought by or on behalf of or
against the Company, the Company agrees to reimburse the Remarketing Agent or
the Reset Agent, as the case may be, for all reasonable expenses, as incurred,
which are incurred by the Remarketing Agent or the Reset Agent, as the case may
be, in connection with such Indemnified Party's appearing and preparing to
appear as such a witness, including, without limitation, the reasonable fees
and disbursements of its legal counsel, and to compensate the Remarketing Agent
or the Reset Agent, as the case may be, in an amount to be mutually agreed
upon. In addition, the Company agrees to compensate the Remarketing Agent or
the Reset Agent, as the case may be, in an amount to be mutually agreed upon
per person per day for each day that an officer, director or employee of the
Remarketing Agent or the Reset Agent, as the case may be, or any of their
respective affiliates is involved in preparation, discovery or testimony
pertaining to any litigation, discovery or investigation in connection with
this Agreement or the Supplemental Remarketing Agreement.
(d) Promptly after receipt by an Indemnification Party of
written notice of any claim or commencement of an action or proceeding with
respect to which indemnification may be sought hereunder, such Indemnified
Party will notify the Company in writing of such claim or of the commencement
of such action or proceeding, but failure so to notify the Company will not
relieve the Company from any liability which it may have to such Indemnified
Party under this indemnification and contribution agreement, and in any event
will not relieve the Company from any other liability that it may have to such
Indemnified Party. Xxxxxxx Xxxxx shall have the right to select counsel in
connection with any transaction for which any Indemnified Party may be entitled
to indemnification or contribution hereunder, provided that in no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all Indemnified Parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
(e) Anything herein or in the Supplemental Remarketing
Agreement to the contrary notwithstanding, the provisions of this Section 10,
and the rights of the Remarketing Agent, the Reset Agent and the other
Indemnified Parties hereunder, shall be in addition to, and not in limitation
of, any rights or benefits (including, without limitation, rights to
indemnification or contribution) which the Remarketing Agent, the Reset Agent
or any other Indemnified Party may have under any other instrument or
agreement.
Section 11. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
Section 12. Term of Agreement. (a) Unless otherwise
terminated in accordance with the provisions hereof and except as otherwise
provided herein, this Agreement shall remain in full force and effect from the
date hereof until the first day thereafter on which no Debentures are
outstanding, or, if earlier, the Business Day immediately following the
Purchase
10
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Contract Settlement Date. Anything herein to the contrary notwithstanding, the
provisions of the last section of Section 8 hereof and the provisions of
Sections 3, 9, 10 and 12(b) hereof shall survive any termination of this
Agreement and remain in full force and effect.
(b) All representations and warranties included or
incorporated by reference in this Agreement, or the Supplemental Remarketing
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Remarketing
Agent, the Reset Agent or any of their controlling persons, or by or on behalf
of the Company or the Purchase Contract Agent, and shall survive the
remarketing of the Debentures.
Section 13. Successors and Assigns. The rights and
obligations of the Company and the Purchase Contract Agent (both in its
capacity as Purchase Contract Agent and as attorney-in-fact) hereunder may not
be assigned or delegated to any other person without the prior written consent
of the Remarketing Agent and the Reset Agent. The rights and obligations of the
Remarketing Agent and the Reset Agent hereunder may not be assigned or
delegated to any other person without the prior written consent of the Company,
except that the Remarketing Agent shall have the right to appoint additional
remarketing agents as provided herein. This Agreement shall inure to the
benefit of and be binding upon the Company, the Purchase Contract Agent, the
Remarketing Agent and the Reset Agent and their respective successors and
assigns and the other Indemnified Parties (as defined in Section 10 hereof) and
the successors, assigns, heirs and legal representatives of the Indemnified
Parties. The terms "successors" and "assigns" shall not include any purchaser
of Securities, Debentures merely because of such purchase.
Section 14. Headings. Section headings have been inserted in
this Agreement and the Supplemental Remarketing Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are
not a part of this Agreement or the Supplemental Remarketing Agreement and will
not be used in the interpretation of any provision of this Agreement or the
Supplemental Remarketing Agreement.
Section 15. Severability. If any provision of this Agreement
or the Supplemental Remarketing Agreement shall be held or deemed to be or
shall, in fact, be invalid, inoperative or unenforceable as applied in any
particular case in any or all jurisdictions because it conflicts with any
provisions of any constitution, statute, rule or public policy or for any other
reason, then, to the extent permitted by law, such circumstances shall not have
the effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case, circumstances or jurisdiction, or of rendering
any other provision or provisions of this Agreement or the Supplemental
Remarketing Agreement, as the case may be, invalid, inoperative or
unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement and the Supplemental
Remarketing Agreement may be executed in counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
document.
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Section 17. Amendments. This Agreement and the Supplemental
Remarketing Agreement may be amended by any instrument in writing signed by the
parties hereto. The Company and the Purchase Contract Agent agree that they
will not enter into, cause or permit any amendment or modification of the
Purchase Contract Agreement, the Indenture, the Pledge Agreement, the
Debentures, the FELINE PRIDES or any other instruments or agreements relating
to the Debentures or the FELINE PRIDES which would in any way affect the
rights, duties or obligations of the Remarketing Agent or the Reset Agent
without the prior written consent of the Remarketing Agent or the Reset Agent,
as the case may be.
Section 18. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in writing.
All written notices and confirmations of notices by telecommunication shall be
deemed to have been validly given or made when delivered or mailed, registered
or certified mail, return receipt requested and postage prepaid. All such
notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to The Coastal Corporation, Coastal Tower, Nine
Greenway Plaza, Houston, TX 77046-0995, Attention: Chief Financial Officer; if
to the Remarketing Agent or Reset Agent, to Xxxxxxx Xxxxx & Co. at Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, World Financial Center, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: __________, with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx X. Xxxxxx; and if to the Purchase Contract Agent, to The
Bank of New York, Corporate Trust Administration, 000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxx, Xxx Xxxx, XX 00000, or to such other address as any of the above shall
specify to the other in writing.
Section 19. Information. The Company agrees to furnish the
Remarketing Agent and the Reset Agent with such information and documents as
the Remarketing Agent or the Reset Agent may reasonably request in connection
with the transactions contemplated by this Remarketing Agreement and the
Supplemental Remarketing Agreement, and make reason ably available to the
Remarketing Agent, the Reset Agent and any accountant, attorney or other
advisor retained by the Remarketing Agent or the Reset Agent such information
that parties would customarily require in connection with a due diligence
investigation conducted in accordance with applicable securities laws and
cause the Company's officers, directors, employees and accountants to
participate in all such discussions and to supply all such information reason
ably requested by any such person in connection with such investigation.
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IN WITNESS WHEREOF, each of the Company, the Purchase
Contract Agent and the Remarketing Agent has caused this Agreement to be
executed in its name and on its behalf by one of its duly authorized
signatories as of the date first above written.
THE COASTAL CORPORATION
By:
------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
------------------------------------
Authorized Signatory
THE BANK OF NEW YORK
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders of
the Purchase Contracts
By:
------------------------------------
Name:
Title:
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Exhibit A to
Remarketing Agreement
Form of Supplemental Remarketing Agreement
Supplemental Remarketing Agreement dated August o, 2002 among The
Coastal Corporation, a Delaware corporation (the "Company"), Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing
Agent"), and The Bank of New York, as Purchase Contract Agent and
attorney-in-fact for the Holders of the Purchase Contracts (as such terms are
defined in the Purchase Contract Agreement referred to in Schedule I hereto)
NOW, THEREFORE, for and in consideration of the covenants herein made,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Remarketing Agreement
dated as of o, 1999 (the "Remarketing Agreement") among the Company, the
Purchase Contract Agent and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated or, if not defined in the Remarketing Agreement, the
meanings assigned to them in the Purchase Contract Agreement (as defined in
Schedule I hereto).
2. Registration Statement and Prospectus. The Company has filed with
the Securities and Exchange Commission, and there has become effective, a
registration statement on Form S-3 (No. 333-81095; 000-00000-00 and
333-81095-02), including a prospectus, relating to the Securities (as such term
is defined on Schedule I hereto). Such Registration Statement, as amended, and
including the information deemed to be a part thereof pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "1933 Act"), and the
documents incorporated or deemed to be incorporated by reference therein, are
hereinafter called, collectively, the "Registration Statement"; [the related
preliminary prospectus dated o , including the documents incorporated or deemed
to be incorporated by reference therein, [and preliminary prospectus
supplemented dated o ] are hereinafter called, [collectively] the "preliminary
prospectus";] and the related prospectus dated ______________, including the
documents incorporated or deemed to be incorporated by reference therein, [and
prospectus supplement dated ________________] are hereinafter called,
[collectively,] the "Prospectus." The Company has provided copies of the
Registration Statement [, the preliminary prospectus] and the Prospectus to the
Remarketing Agent, and hereby consents to the use of the [preliminary
prospectus] and the Prospectus in connection with the remarketing of the
Securities. [IN THE EVENT THAT A REGISTRATION STATEMENT IS NOT REQUIRED, INSERT
THE FOLLOWING: The Company has provided to the Remarketing Agent, for use in
connection with remarketing of the Securities (as such term is defined on
Schedule I hereto), a [preliminary remarketing memorandum and] remarketing
memorandum and [describe other materials, if any]. Such remarketing memorandum
(including the documents incorporated or deemed to be incorporated
15
by reference therein, [and] [describe other materials] are hereinafter called,
collectively, the "Prospectus," [and such preliminary marketing memorandum
(including the documents incorporated or deemed to be incorporated by reference
therein) is hereinafter called a "preliminary prospectus")]. The Company hereby
consents to the use of the Prospectus [and the preliminary prospectus] in
connection with the remarketing of the Securities]. All references in this
Agreement to amendments or supplements to the Registration Statement [, the
preliminary prospectus] or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), which is incorporated or deemed to be incorporated by
reference in the Registration Statement [, the preliminary prospectus] or the
Prospectus, as the case may be.
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the
Underwriting Agreement (other than Section 2, Section 6, Section 7 and Section
10 thereof) are incorporated herein by reference, mutatis mutandis, and the
Company hereby makes the representations and warranties, and agrees to comply
with the covenants and obligations, set forth in the provisions of the
Underwriting Agreement incorporated by reference herein, as modified by the
provisions of Section 3(b) hereof.
(b) With respect to the provisions of the Underwriting
Agreement incorporated herein, for the purposes hereof, (i) all references
therein to the "Underwriter" or "Underwriters" shall be deemed to refer to the
Remarketing Agent and all references to the "Representative" or the
"Representatives" shall be deemed to refer to Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, ("Xxxxxxx Xxxxx"); (ii) all references therein to the
"Securities" shall be deemed to refer to the Securities as defined herein;
(iii) all references therein to the "Closing Time" shall be deemed to refer to
the Remarketing Closing Date specified in Schedule I hereto; (iv) all
references therein to the "Registration Statement" [, any "preliminary
prospectus"] or the "Prospectus" shall be deemed to refer to [the Registration
Statement, the preliminary prospectus and] the Prospectus, respectively, as
defined herein; (v) all references therein to this "Agreement," the
"Underwriting Agreement," "hereof," "herein" and all references of similar
import, shall be deemed to mean and refer to this Supplemental Remarketing
Agreement; (vi) all references therein to "the date hereof," "the date of this
Agreement" and all similar references shall be deemed to refer to the date of
this Supplemental Remarketing Agreement; (vii) all references therein to the
Date of Delivery shall be disregarded; (viii) Section 5(e) of the Underwriting
Agreement shall be amended to refer solely to the Securities (as defined
herein) and the ratings set forth therein shall be o from Xxxxx'x and o from
S&P; (ix) the references in Section 1(a)(iv) of the Underwriting Agreement to
the "Registration Statement" and the "Prospectus" shall be deemed to refer to
[the Registration Statement (as defined herein and] the Prospectus (as defined
herein) in the form first provided to the Remarketing Agent for use in
connection with the remarketing of the Securities, [respectively], (x) the
reference in Section 9(a)(i) of the Underwriting Agreement to the "Registration
Statement" shall be deemed to refer to the Prospectus in the form first
provided to the Remarketing Agent for use in connection with the remarketing of
the Securities; (xi) Section 9(a)(iv) of the Underwriting Agreement
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shall be deemed to also include a reference to the Securities (as defined
herein); and (xii) [other changes].
4. Remarketing. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth or incorporated by
reference herein and in the Remarketing Agreement, the Remarketing Agent agrees
to use its reasonable efforts to re market, in the manner set forth in Section
2(b) of the Remarketing Agreement, the aggregate stated liquidation or
principal amount, as the case may be, of Securities set forth in Schedule I
hereto at a purchase price not less than 100% of the aggregate stated
liquidation amount or aggregate principal amount of the Securities plus any
accrued and unpaid distributions or interest, as applicable, thereon. In
connection therewith, the registered holder or holders thereof agree, in the
manner specified in Section 5 hereof, to pay to the Remarketing Agent a
Remarketing Fee equal to an amount not exceeding o basis points (o%) of
such aggregate stated liquidation or principal amount, as the may be, payable
by deduction from any amount received in connection from such Remarketing in
excess of the aggregate principal amount of the Securities plus accrued and
unpaid interest. The right of each holder of Securities to have Securities
tendered for purchase shall be limited to the extent set forth in the last
sentence of Section 2(b) of the Remarketing Agreement (which is incorporated by
reference herein). As more fully provided in Section 2(c) of the Remarketing
Agreement (which is incorporated by reference herein), the Remarketing Agent is
not obligated to purchase any Securities in the remarketing or otherwise, and
neither the Sponsor nor the Remarketing Agent shall be obligated in any case
to provide funds to make payment upon tender of Securities for remarketing.
5. Delivery and Payment. Delivery of payment for the remarketed
Securities by the purchasers thereof identified by the Remarketing Agent and
payment of the Remarketing Fee shall be made on the Remarketing Closing Date at
the location and time specified in Schedule I hereto (or such later date not
later than five Business Days after such date as the Remarketing Agent shall
designate), which date and time may be postponed by agreement between the
Remarketing Agent and the Company. Delivery of the remarketed Securities and
payment of the Remarketing Fee shall be made to the Remarketing Agent against
payment by the respective purchasers of the remarketed Securities of the
consideration therefor as specified herein, which consideration shall be paid
to the Collateral Agent for the account of the persons entitled thereto by
certified or official bank check or checks drawn on or by a New York Clearing
House bank and payable in immediately available funds or in immediately
available funds by wire transfer to an account or accounts designated by the
Collateral Agent.
If the Securities are not represented by a Global Security held by or
on behalf of The Depositary Trust Company, certificates for the Securities
shall be registered in such names and denominations as the Remarketing Agent
may request not less than one full Business Day in advance of the Remarketing
Closing Date, and the Company, the Collateral Agent and the registered holder
or holders thereof agree to have such certificates available for inspection,
packaging and checking by the Remarketing Agent in New York, New York not later
than 1:00 p.m. on the Business Day prior to the Remarketing Closing Date.
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6. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in writing.
All written notices and confirmations of notices by telecommunication shall be
deemed to have been validly given or made when delivered or mailed, registered
or certified mail, return receipt requested and postage prepaid. All such
notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to The Coastal Corporation, Coastal Tower, Nine
Greenway Plaza, Houston, TX 77046-0995, Attention: Chief Financial Officer; if
to the Remarketing Agent, to Xxxxxxx Xxxxx & Co. at Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, at World Financial Center, North Tower, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: o ; with a copy to Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx X.
Xxxxxx; and if to the Purchase Contract Agent, to The Bank of New York,
Corporate Trust Administration, 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, XX
00000, or to such other address as any of the above shall specify to the other
in writing.
7. Conditions to Obligations of Remarketing Agent. Anything herein to
the contrary notwithstanding, the parties hereto agree (and the holders and
beneficial owners of the Securities will be deemed to agree) that the
obligations of the Remarketing Agent under this Agreement and the Remarketing
Agreement are subject to the satisfaction of the conditions set forth in
Section 7 of the Remarketing Agreement (which are incorporated herein by
reference), and to the satisfaction, on the Remarketing Closing Date, of the
conditions incorporated by reference herein from Section 5 of the Underwriting
Agreement as modified by Section 3(b) hereof (including, without limitation,
the delivery of opinions of counsel, officers' certificates and accountants'
comfort letters in form and substance satisfactory to the Remarketing Agent,
the accuracy as of the Remarketing Closing Date of the representations and
warranties of the Company included and incorporated by reference herein and the
performance by the Company of its obligations under the Remarketing Agreement
and this Agreement as and when required hereby and thereby). In addition,
anything herein or in the Remarketing Agreement to the contrary
notwithstanding, the Remarketing Agreement and this Agreement may be terminated
by the Remarketing Agent, by notice to the Company at any time prior to the
time of settlement on the Remarketing Closing Date, if any of the events or
conditions set forth in Section 9 of the Underwriting Agreement, as modified by
Section 3(b) hereof, shall have occurred or shall exist.
8. Indemnity and Contribution. Anything herein to the contrary
notwithstanding, the Remarketing Agent shall be entitled to indemnity and
contribution on the terms and conditions set forth in the Remarketing
Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the Remarketing Agent.
Very truly yours,
THE COASTAL CORPORATION
By:
------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
------------------------------------
Authorized Signatory
[Add other Remarketing Agents, if any]
THE BANK OF NEW YORK
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders of
the Purchase Contracts
By:
------------------------------------
Name:
Title:
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SCHEDULE I
Securities subject to the remarketing: o% Debentures
due o 16, 2004 of the Company (the "Securities").
Purchase Contract Agreement, dated as of o, 1999
(the "Purchase Contract Agreement") by and between The Coastal
Corporation, a Delaware corporation, and The Bank of New York, a
national banking association.
Pledge Agreement dated as of o, 1999 (the "Pledge Agreement")
by and between The Coastal Corporation, a Delaware corporation, The
Bank of New York a national banking association, and The Chase
Manhattan Bank.
Indenture dated as of February 24, 1997 (the "Base Indenture")
by and between The Coastal Corporation, a Delaware corporation, and
Xxxxxx Trust & Bank.
Seventh Supplemental Indenture, dated as of o, 1999
(the "Supplemental Indenture" and, together with the Base Indenture,
the "Indenture") by and between The Coastal Corporation, a Delaware
corporation, and Xxxxxx Trust & Savings Bank.
Aggregate [Liquidation Amount/Principal Amount] of Securities: $____________
Underwriting Agreement, dated o, 1999 (the "Underwriting Agreement")
among The Coastal Corporation and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Brothers and Bank of
America Securities LLC.
Remarketing Closing Date, Time and Location:
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