EXHIBIT 10.4(d)
CONSENT AGREEMENT
This CONSENT AGREEMENT (this "Agreement"), dated as of November
28, 2000, is entered into by and among EOG Resources, Inc., a Delaware
corporation ("EOG"), Enron Corp., an Oregon corporation ("Enron"),
Enron Finance Partners, LLC, a Delaware limited liability company
("EFP"), Enron Intermediate Holdings, LLC, a Delaware limited
liability company ("EIH"), Enron Asset Holdings, LLC, a Delaware
limited liability company ("EAH"), and Aeneas, LLC, a Delaware limited
liability company ("Aeneas").
PRELIMINARY STATEMENTS
A) EFP, EIH and EAH were recently formed by Enron for the purpose of
owning assets theretofore held by Enron and its affiliates and to
provide a vehicle to raise capital through the sale of minority common
and/or preferred interests to institutional investors. Enron, EFP,
EIH and/or EAH may also utilize the EOG Stock (as defined below) or a
portion thereof in one or more subsequent transactions that are
structured finance transactions (the "Financial Transactions").
B) Enron and certain wholly-owned affiliates of Enron have been
admitted to EFP as members. Enron Finance Management, LLC, a Delaware
limited liability company ("EFM") and a wholly-owned affiliate of
Enron, is the managing member of EFP.
C) EFP is the sole member of EIH. EFM is the Class A managing
member and EIH is the Class B member of EAH. EAH is currently the
sole member of Aeneas, which entity is being utilized in connection
with a Financial Transaction.
D) Enron has transferred Eleven Million Five Hundred
Thousand (11,500,000) shares of common stock, $0.01 par value per
share, of EOG (the "EOG Stock"), which it previously held, to EFP as a
capital contribution. Immediately following such transfer, Enron
caused the transfer and contribution of the EOG Stock from EFP to EIH,
from EIH to EAH, and from EAH to Aeneas.
E) Section 6.2 of the Share Exchange Agreement, entered into as of
July 19, 1999, by and between Enron and EOG (formerly known as Enron
Oil & Gas Company) (the "Share Exchange Agreement") requires, under
certain circumstances, that Enron obtain the prior written consent of
EOG to transfer any shares of EOG Stock retained by Enron pursuant to
the Share Exchange Agreement.
F) EOG is willing to consent to Enron's transfer of all or a portion
of the EOG Stock (I) from Enron to EFP, (ii) from EFP to EIH, (iii)
from EIH to EAH, and (iv) from EAH to Aeneas. EOG is also willing to
consent to any subsequent transfers of the EOG Stock occurring in
connection with the Financial Transactions, subject to the terms and
conditions of this Agreement. The parties make no admission or
assertion, whether express or implied, as to whether any of the
foregoing transfers required or would require consent or approval of
EOG under the Share Exchange Agreement.
G) This Agreement and the transactions contemplated hereby have been
approved by the Board of Directors of EOG.
In consideration of the premises and intending to be legally
bound by this Agreement, the parties hereby agree as follows:
SECTION 1
AGREEMENTS
1.1 Definitions. Capitalized terms used but not defined in
this Agreement shall have the meanings given them in
the Share Exchange Agreement.
1.2 EOG Consent.
a) EOG hereby consents, confirms and approves, pursuant to
Section 6.2 of the Share Exchange Agreement and
notwithstanding any other provision of the Share
Exchange Agreement, to (I) Enron's transfer of the EOG
Stock (or any portion thereof) to EFP, (ii) EFP's
transfer of the EOG Stock (or any portion thereof) to
EIH, (iii) EIH's transfer of the EOG Stock (or any
portion thereof) to EAH, (iv) EAH's transfer of the EOG
Stock (or any portion thereof) to Aeneas, (v) any
subsequent transfers of the EOG Stock (or any portion
thereof) to EAH, EIH, EFP or Enron upon the dissolution
of Aeneas, EAH, EIH, or EFP, or otherwise, and (vi) any
other transfers occurring upon the consummation of, or
in connection with, the Financial Transactions
(including, without limitation, any transfer occurring
upon the termination or restructuring of such Financial
Transactions), provided such transfers are effected in
a manner permitted by Section 6.2(c) of the Share
Exchange Agreement. EOG acknowledges and agrees that
the consent granted by EOG herein is applicable whether
or not EFP, EIH, EAH or Aeneas remains as a wholly-
owned affiliate of Enron.
b) Enron, EFP, EIH, EAH and Aeneas have advised EOG that they may
make or cause to be made one or more Schedule 13D filings with the
Securities and Exchange Commission (or any amendment to a previously
filed or hereafter filed Schedule 13D) to reflect the transfers of the
EOG Stock and any transfer occurring upon the consummation of, or in
connection with, the Financial Transactions.
1.3 Certain Covenants. Enron hereby agrees as follows:
(a) Enron will maintain, directly or indirectly, sole management
control of EFP, EIH, EAH and Aeneas, respectively, during the periods
of time when each such entity holds any of the EOG Stock.
(b) In addition to Enron's obligations under the last sentence of
Section 6.3 of the Share Exchange Agreement, during the period from
the date hereof through the maturity date of Enron's 7% Exchangeable
Notes due July 31, 2002, at any meeting of EOG stockholders with
respect to which Enron, EFP, EIH, EAH or Aeneas owns any EOG Stock
entitled to vote, Enron will attend (or cause such entity to attend)
such meeting in person or by proxy and will vote, or
will cause to be voted, all of such EOG Stock in the manner,
if any, recommended by the board of directors of EOG.
(c) Subject to the terms and conditions of
Section 10.4 of the Share Exchange Agreement, which
shall apply to the obligations of Enron under this
Section 1.3(c) Enron shall be liable for and shall
indemnify and hold harmless EOG and its Subsidiaries
from and against any Taxes imposed on EOG or EOG
International with respect to the Share Exchange
resulting from the transfers of the EOG Stock pursuant
to the transactions consented to by EOG in this
Agreement.
(d) Notwithstanding the provisions of Section
10.3(b)(iv) of the Share Exchange Agreement, Enron
agrees that EOG shall not be liable for and shall not
indemnify and hold harmless Enron from any Taxes
referred to in Section 10.3(b)(iv) of the Share
Exchange Agreement if EOG shall prove by clear and
convincing evidence that any of the transactions
consented to by EOG in this Agreement that were or are
effected by Enron were a contributing cause of the
failure to maintain continuity of interest within the
meaning of Treas. Reg. 1.355-2(c).
1.4 Additional Consideration. As additional consideration to
EOG for entering into and performing this Agreement, Enron
hereby agrees, as of the date hereof, to forgive
indebtedness owing from EOG and/or its affiliates to Enron
with respect to telecommunication services, treasury
services and banking services provided by Enron and its
affiliates to EOG and its affiliates prior to the date
hereof, such amount in the aggregate not to exceed One
Million Dollars (US$1,000,000).
1.5 Expenses. All costs and expenses incurred in connection
with the transactions contemplated by this Agreement shall
be paid by the party incurring such cost or expense,
provided that Enron shall, within sixty (60) days following
the receipt from EOG of an invoice therefor, reimburse EOG
for all reasonable out-of-pocket legal expenses incurred by
EOG with Wachtell, Lipton, Xxxxx & Xxxx, special counsel to
EOG, or Steptoe & Xxxxxxx LLP, special tax counsel to EOG,
in connection with the negotiation and execution of this
Agreement. EOG shall submit any invoices to Enron for
reimbursement of the foregoing expenses within ninety (90)
days following the date of this Agreement.
1.6 Representations. Each party signatory hereto hereby
represents and warrants to each other party that the
following statements are true and correct as of the date
hereof:
(a) it is a corporation, limited liability company or other
entity duly incorporated or formed, validly existing,
and in good standing under the laws of the United
States or a political subdivision thereof, with all
requisite power to enter into and to perform its
obligations under this Agreement, and is duly qualified
or registered and in good standing in each other
jurisdiction in which the character of the business
conducted by it or permitted to be conducted by it
requires such qualification or registration, except
where the failure to be so qualified would not
adversely affect the transactions contemplated by this
Agreement;
(b) its execution, delivery, and performance of this
Agreement have been duly authorized by all appropriate
action by it and (if required) its stockholders,
members or other owners, and this Agreement has been
duly executed and delivered;
(c) its authorization, execution, delivery and performance
of this Agreement do not (I) violate its
organizational, charter or other constituent documents,
(ii) conflict with, result in a breach of any of the
terms, conditions or provisions of, or constitute a
default under, any other material agreement or
arrangement to which it is a party or by which it is
bound or with any provision of law, regulation,
judgment or decree to which it is subject or with any
permit or license which it has been granted, or (iii)
require the filing or registration with, or the
approval, authorization or consent of any governmental
agency or tribunal other than filings with the
Securities and Exchange Commission as contemplated by
Section 1.2(b) hereof and any other filings which may
be required or permitted under applicable securities
laws or regulations;
(d) this Agreement constitutes its valid, binding and
enforceable agreement, except to the extent such
enforceability may be limited by the effect of
bankruptcy, insolvency, reorganization, moratorium and
similar laws from time to time in effect relating to
the rights and remedies of creditors, as well as
general principles of equity (regardless of whether
considered in a proceeding in equity or in law); and
(e) there is no action, suit or proceeding pending, or, to
its knowledge is any of such threatened, against it,
seeking any injunction, award or other relief that
would impair its ability to perform its obligations
under this Agreement.
1.7 Covenants.
(a) Each of EFP, EIH, EAH and Aeneas hereby severally
agrees to be bound by Sections 6.2 and 6.3 of the Share
Exchange Agreement, as if each were an original
signatory to such agreement, with the effect that all
references to Enron under Sections 6.2 and 6.3 of the
Share Exchange Agreement shall be deemed to be
references to EFP, EIH, EAH or Aeneas, respectively,
during any time such person or persons hold any shares
of the EOG Stock.
(b) Each of Enron, EFP, EIH and EAH hereby agrees, in
connection with any transfer of shares of EOG Stock
pursuant to the Financial Transactions, to cause any
transferee (including Aeneas, but excluding Enron, EFP,
EIH or EAH) of shares of EOG Stock in such Financial
Transactions to agree that if any further transfers of
such EOG Stock would result in Enron, EFP, EIH or EAH
failing to retain beneficial ownership of such EOG
Stock, such transfers would only be effected in a
manner permitted by Section 6.2(c) of the Share
Exchange Agreement.
1.8 Effect of this Agreement. For purposes of the definition of
"Standstill Expiration Date" as defined in the Share
Exchange Agreement, and giving effect to the transactions
contemplated by this Agreement, Enron shall be deemed to
beneficially own the EOG Stock held by any of Enron, EFP,
EIH, EAH or Aeneas.
SECTION 2
MISCELLANEOUS
2.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware, excluding any choice of law rules that may direct
the application of the laws of another jurisdiction.
2.2 Further Assurances. After the date hereof, each party
hereto at the reasonable request of any other party hereto
and without additional consideration, shall execute and
deliver, or shall cause to be executed and delivered, from
time to time, such further certificates, agreements or
instruments and shall take such other action as the other
party or parties hereto may reasonably request, to
consummate, implement or confirm the transactions
contemplated by this Agreement.
2.3 Entire Agreement; Amendment. This Agreement, the Share
Exchange Agreement, and any agreements, instruments or
documents executed and delivered by the parties or their
affiliates pursuant to this Agreement, constitute the entire
agreement and understanding among the parties, and it is
understood and agreed that all other previous undertakings,
negotiations and agreements among the parties regarding the
subject matter hereof (other than the Share Exchange
Agreement) are merged herein. This Agreement may not be
modified orally, but only by an agreement in writing signed
by each of the parties.
2.4 Waivers. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any
party of any such right, power or privilege, nor any single
or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any
other such right, power or privilege.
2.5 Binding Effect; No Third Party Beneficiaries. This
Agreement and all of its provisions, rights and obligations
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
Nothing herein express or implied is intended or shall be
construed to confer upon or to give anyone other than the
parties hereto and their respective successors and assigns
any rights or benefits under or by reason of this Agreement,
and no other party shall have any right to enforce any of
the provisions of this Agreement.
2.6 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties
hereto in separate counterparts, each of which when executed
shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery
of a manually executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
EOG RESOURCES, INC.
By: /s/ XXXXXX X. XXXXXX, III
---------------------------------
Name: XXXXXX X. XXXXXX, III
Title: President and Chief of Staff
ENRON CORP.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President &
Chief Accounting Officer
ENRON FINANCE PARTNERS, LLC
By: Enron Finance Management, LLC,
its Class A Member
By:Enron Corp., its Sole Member
By: /s/ XXXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
& Chief Accounting Officer
ENRON INTERMEDIATE HOLDINGS, LLC
By: Enron Finance Partners, LLC,
its Sole Member
By: Enron Finance Management, LLC,
its Class A Member
By: Enron Corp.,
its Sole Member
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice
President & Chief
Accounting Officer
ENRON ASSET HOLDINGS, LLC
By: Enron Finance Management, LLC,
its Class A Member
By: Enron Corp., its Sole Member
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President &
Chief Accounting Officer
AENEAS, LLC
By: Enron Asset Holdings, LLC,
its Sole Member
By: Enron Finance Management, LLC,
its Class A Member
By: Enron Corp., its Sole Member
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Exec. Vice Pres. & Chief
Account. Officer
