EXHIBIT 10.3
$61,112,000
ENERGY PARTNERS,
LTD.
20% Senior Subordinated Secured
PIK Notes due 2014
PURCHASE
AGREEMENT
September 21, 2009
This Purchase Agreement (this
“ Agreement ”) will confirm the arrangement
between Energy Partners, Ltd., a Delaware corporation (the “
Company ”), Delaware EPL of Texas, L.L.C., a Delaware
limited liability company, EPL of Louisiana, L.L.C., a Louisiana
limited liability company, EPL Pioneer Houston, Inc. a Texas
corporation and EPL Pipeline, L.L.C., a Delaware limited liability
company (each, a “ Guarantor ” and collectively,
the “ Guarantors ”), and the purchasers whose
names and addresses are set forth on the signature pages hereof
(collectively, the “ Purchasers ”), relating to
the issuance and sale by the Company to the Purchasers of
$61,112,000 aggregate principal amount of its 20% Senior
Subordinated Secured PIK Notes due 2014 (the “ Notes
”) as described, and on the terms, conditions and other
provisions contained, in this Agreement.
The Notes will be offered and sold
to the Purchasers in a private placement (the “
Placement ”) without being registered under the
Securities Act of 1933, as amended, and the rules and regulations
of the Securities and Exchange Commission (the “
Commission ”) thereunder (collectively, the “
Securities Act ”), in reliance upon Section 4(2)
(“ Section 4(2) ”) thereof and/or Regulation D
(“ Regulation D ”) thereunder in connection with
and subject to the Second Amended Joint Plan of Reorganization of
the Company and certain of its subsidiaries, as modified as of
September 16, 2009, as may have been further modified or
supplemented prior to the date hereof (the “ Plan
”) and as confirmed by the United States Bankruptcy Court for
the Southern District of Texas, Houston Division (the “
Bankruptcy Court ”).
The Notes are to be sold to the
Purchasers pursuant to this Agreement to be entered into by the
Company and the Purchasers and are to be issued pursuant to an
Indenture (the “ Indenture ”) to be entered into
among the Company, the Guarantors and The Bank of New York Mellon
Trust Company, N.A., as trustee (the “ Trustee
”) and the Collateral Agent (as defined below). The
obligations of the Company under this Agreement and the Notes will
be secured on a second priority basis by (a) substantially all
of the personal property assets of the Company and the Guarantors
except for specified excluded assets and (b) certain real
property assets of the Company and the Guarantors (collectively,
the “ Collateral ”) pursuant to a security
agreement (the “ Security Agreement ”), certain
mortgages and deeds of trust (collectively, the “ Deeds of
Trust ”) and certain related security documents
(collectively, the “ Collateral Agreements ”) to
be entered into by the Company and/or the applicable Guarantors in
favor of The Bank of New York Mellon Trust Company, N.A., as
collateral agent (the “ Collateral Agent ”) for
the ratable benefit of itself, the Trustee and the Purchasers
(collectively, the “ Secured Parties
”).
Pursuant to the Indenture, certain
existing and future domestic subsidiaries of the Company shall
fully and unconditionally guarantee, on a joint and several senior
subordinated secured basis, to each holder of the Notes and the
Trustee, the payment and performance of the Company’s
obligations under the Indenture and the Notes (each such guarantee
being referred to herein as a “ Guarantee
”).
This Agreement, the Indenture and
the Collateral Agreements are referred to herein collectively as
the “ Transaction Documents ”, and the
transactions contemplated hereby and thereby are referred to herein
collectively as the “ Transactions ”.
The Company has prepared a
Disclosure Statement dated as of June 11, 2009 (the “
Disclosure Statement ”) that has been filed with the
Bankruptcy Court in connection with the Plan. The Disclosure
Statement, the Plan, the related Ballot and the documents attached
thereto are referred to herein collectively as the “ Plan
Documents ”. All references in this Agreement to the Plan
Documents include all documents and information contained in the
Plan Documents, as amended or supplemented; all references in this
Agreement to documents, financial statements and schedules and
other information which are “ contained ,”
“ included ” or “ stated ” in
the Plan Documents (and all other references of like import) shall
be deemed to mean and include all such documents, financial
statements and schedules and other information which is or is
deemed to be incorporated by reference in the Plan Documents, as
the case may be; and all references in this Agreement to amendments
or supplements to the Plan Documents shall be deemed to mean and
include the filing of any document under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “ Exchange
Act ”), which is or is deemed to be incorporated by
reference in the Plan Documents.
On the date hereof, the Company and
certain of its subsidiaries have entered into (a) a Credit
Agreement with General Electric Capital Corporation, as
Administrative Agent (the “ Administrative Agent
”), GE Capital Markets, Inc., as Sole Lead Arranger and
Bookrunner, and certain financial institutions as Lenders (the
“ GE Credit Agreement ”) and (b) several
collateral documents related to the GE Credit Agreement (the
“ GE Collateral Documents ”).
Section 1. Representations,
Warranties and Agreements of the Company and the
Purchasers.
(a) Representations,
Warranties and Agreements of the Company
. The Company and the Guarantors
hereby represent, warrant and agree with the Purchasers as
follows:
(i) No Material Misstatement or
Omission . No certificate, statement or other information
delivered herewith or heretofore by the Company or any Guarantor to
any Purchaser in connection with the negotiation of this Agreement
or in connection with any of the Transactions contains any untrue
statement of a material fact or omits to state any material fact
known to the Company or any Guarantor (other than industry-wide
risks normally associated with the types of businesses conducted by
the Company and the Subsidiaries) necessary to make the statements
contained herein or therein not misleading as of the date made or
deemed made. There is no fact known to the Company or any Guarantor
(other than industry-wide risks normally associated with the types
of businesses conducted by the Company and the Guarantors) that has
not been disclosed to each Purchaser in writing which could cause a
Material Adverse Change.
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(ii) Exchange Act Compliance.
The documents of the Company filed with the Commission (the “
Exchange Act Filings ”) as of their date and as of the
date hereof, complied and comply in all material respects with the
requirements of the Exchange Act. There are no contracts or other
documents required to be described in the Exchange Act Filings or
to be filed as exhibits to the Exchange Act Filings which have not
been described or filed as required.
(iii) The Transaction
Documents. The Company has all necessary power and authority to
execute and deliver the Transaction Documents and to perform its
obligations thereunder; each of the Transaction Documents has been
duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except that enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of several applicability from time to time, relating
to or affecting creditors’ rights and general principles of
equity (regardless of whether such enforcement is considered in
proceedings at law or in equity).
(iv) The Notes. The Company
has all necessary power and authority to execute, issue and deliver
the Notes; the Notes have been duly authorized for issuance and
sale by the Company, will be in the form contemplated by the
Indenture and, when executed, authenticated and issued in
accordance with the terms of the Indenture and delivered to and
paid for by the Purchasers pursuant to this Agreement, will
constitute valid and binding obligations of the Company, entitled
to the benefits of the Indenture and the Collateral Agreements,
enforceable against the Company in accordance with their terms,
except that enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of several applicability from time to time, relating
to or affecting creditors’ rights and general principles of
equity (regardless of whether such enforcement is considered in
proceedings at law or in equity).
(v) The Guarantees. Each of
the Guarantors has all necessary power and authority to execute,
issue and deliver its respective Guarantee; the Guarantees have
been duly authorized for issuance and sale by each of the
Guarantors, will be in the form contemplated by the Indenture and,
when executed and the Guarantees issued in accordance with the
terms of the Indenture, will constitute valid and binding
obligations of each of the Guarantors, entitled to the benefits of
the Indenture, enforceable against each of the Guarantors in
accordance with their terms, except that enforceability thereof may
be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of several
applicability from time to time, relating to or affecting
creditors’ rights and general principles of equity
(regardless of whether such enforcement is considered in
proceedings at law or in equity).
(vi) Incorporation and Good
Standing of the Company and the Guarantors. Each of the Company
and the Guarantors is duly organized, validly existing and,
as
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applicable, in good standing under
the laws of its jurisdiction of organization, having all powers
required to carry on its business and enter into and carry out the
transactions contemplated hereby. Each of the Company and the
Guarantors is duly qualified, in good standing, and authorized to
do business in all other jurisdictions within the United States
wherein the character of the properties owned or held by it or the
nature of the business transacted by it makes such qualification
necessary, except where the failure to so qualify could not
reasonably be expected to cause a Material Adverse Change. Except
where the failure to take such actions and procedures could not
reasonably be expected to cause a Material Adverse Change, each of
the Company and the Guarantors has taken all actions and procedures
customarily taken in order to enter, for the purpose of conducting
business or owning property, each jurisdiction outside the United
States wherein the character of the properties owned or held by it
or the nature of the business transacted by it makes such actions
and procedures desirable. All of the issued and outstanding capital
stock or other equity or ownership interest of each Subsidiary has
been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company, directly or through its
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, charge, encumbrance or adverse claim (“
Lien ”). As of the date hereof, the Company does not
own or control, and as of the Closing Date, the Company will not
own or control, directly or indirectly, any corporation,
association or other entity other than (i) the subsidiaries
listed in Exhibit 21.1 to the Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2008 (the “
Subsidiaries ”) and (ii) such other entities
omitted from Exhibit 21.1 which, when such omitted entities are
considered in the aggregate as a single subsidiary, would not
constitute a “significant subsidiary” within the
meaning of Rule 1-02(w) of Regulation S-X.
(vii) No Material Adverse
Change. Except as otherwise disclosed in the Exchange Act
Filings, since June 30, 2009 (A) there has been no
material adverse change, or any development that could reasonably
be expected to result in a material adverse change, in the
condition, financial or otherwise, stockholders’ equity or in
the earnings, business, operations or prospects, whether or not
arising from transactions in the ordinary course of business, of
the Company and the Subsidiaries, considered as one entity (any
such change is called a “ Material Adverse Change
”); (B) the Company and the Subsidiaries, considered as
one entity, have not incurred any material liability or obligation
(including any off-balance sheet obligation), indirect, direct or
contingent, not in the ordinary course of business nor entered into
any material transaction or agreement not in the ordinary course of
business; and (C) there has been no dividend or distribution
of any kind declared, paid or made by the Company or, except for
dividends paid to the Company or other subsidiaries, any of the
Subsidiaries on any class of capital stock or repurchase or
redemption by the Company or any of the Subsidiaries of any class
of capital stock.
(viii) Independent
Accountants. KPMG LLP, who have expressed their opinion with
respect to the financial statements (which term as used in this
Agreement includes the related notes thereto) included or
incorporated by reference in the Company’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2008, were as
of such date (A) independent public or certified public
accountants as required by the Exchange Act, (B) in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X and (C) a
registered public accounting firm as defined by the Public Company
Accounting Oversight Board.
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(ix) Preparation of the Financial
Statements. As of the date hereof, the financial statements
included or incorporated by reference in the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31,
2008 present fairly in all material respects the consolidated
financial position of the Company and its subsidiaries as of and at
the dates indicated and the results of their operations and cash
flows for the periods specified. Such financial statements have
been prepared in conformity in all material respects with generally
accepted accounting principles as applied in the United States
applied on a consistent basis throughout the periods involved
(“ GAAP ”), except as may be expressly stated in
the related notes thereto. As of the date hereof, the financial
data set forth in the Plan Documents fairly present the information
set forth therein on a basis consistent with that of the audited
financial statements contained in the Plan Documents.
(x) Company’s Accounting
System. Subject to the material weaknesses and significant
deficiencies described in subsection (xi) below, the Company
makes and keeps accurate books and records and maintains a system
of internal accounting controls and procedures sufficient to
provide reasonable assurance that (A) material transactions
are executed in accordance with management’s general or
specific authorization, (B) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with GAAP, and to maintain asset accountability,
(C) access to assets is permitted only in accordance with
management’s general or specific authorization and
(D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action
is taken with respect to any material differences.
(xi) Disclosure Controls and
Procedures; Deficiencies in or Changes to Internal Control Over
Financial Reporting. Except as described in the Company’s
Annual Report on Form 10-K for the fiscal year ended
December 31, 2008 and the Company’s Quarterly Reports on
Form 10-Q for the quarters ended March 31, 2009 and
June 30, 2009, each of the Company and the Subsidiaries has
established and maintains and evaluates “disclosure controls
and procedures” (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act) and “internal control over
financial reporting” (as such term is defined in Rule 13a-15
and 15d-15 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries,
is made known to each of the Company’s principal executive
officer and principal financial officer by others within the
Company, and, except as described in this subsection (xi), such
disclosure controls and procedures are effective to perform the
functions for which they were established. The Company’s
independent auditors and board of directors have been advised of:
(A) all significant deficiencies, if any, in the design or
operation of internal controls which could adversely affect the
Company’s ability to record, process, summarize and report
financial data, (B) all fraud, if any, whether or not
material, that involves management or other employees who have a
role in the Company’s internal controls and (C) all
material weaknesses, if any, in internal controls that have
been
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identified by the Company to date;
since the date of the most recent evaluation of such disclosure
controls and procedures and internal controls, there have been no
significant changes in internal controls or in other factors that
could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and
material weaknesses.
(xii) No Default;
Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Except as disclosed in
the Plan Documents, neither the Company nor any of the Subsidiaries
is (A) in violation of its charter or by laws, (B) in
default (or, with the giving of notice or lapse of time, would be
in default or constitute a default) (“ Default
”) under any indenture, mortgage, loan or credit agreement,
note, contract, franchise, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of
the Company are subject (each, an “ Existing
Instrument ”), or (C) in violation of any law,
administrative regulation or administrative or court decree
applicable to the Company except with respect to clauses
(B) and (C) of this sentence, for such Defaults or
violations as would not, individually or in the aggregate, result
in a Material Adverse Change. The execution and delivery by the
Company and the Guarantors of the Transaction Documents to which
each is a party, the performance by each of its obligations under
such Transaction Documents, and the consummation of the
Transactions, including the issuance and sale of the Notes
(1) will not result in any violation of the provisions of the
charter or bylaws of the Company or any of the Subsidiaries,
(2) will not conflict with or constitute a breach of, or
Default or a Debt Repayment Triggering Event (as defined below)
under, or result in the creation or imposition of any Lien upon any
property or assets of the Company or any of the Subsidiaries
pursuant to, or require the consent of any other party to any
Existing Instrument or other third party and (3) will not
result in any violation of any law, administrative regulation or
administrative or court decree applicable to the Company or any of
the Subsidiaries except with respect to clauses (2) and
(3) of this sentence, for such conflicts, breaches, Defaults,
Debt Repayment Triggering Events or violations as would not,
individually or in the aggregate, result in a Material Adverse
Change. No consent, approval, authorization or other order of, or
registration or filing with, any federal, state, local or other
governmental authority, governmental or regulatory agency or body,
court, arbitrator or self-regulatory organization, domestic or
foreign (each, a “ Governmental Authority ”), is
required for the Company’s execution, delivery and
performance of the Transaction Documents and consummation of the
Transactions, except (w) with respect to the filing of a
Current Report on Form 8-K with the Commission as may be required
under the Securities Act and the Exchange Act , as the case may be,
(x) as required by any state securities or “blue
sky” laws, (y) for such consents, approvals,
authorizations, orders, filings or registrations that have been
obtained or made and are in full force and effect and (z) the
filing of UCC financing statements as contemplated by the
Collateral Agreements. As used herein, a “ Debt Repayment
Triggering Event ” means any event or condition that
gives, or with the giving of notice or lapse of time would give,
the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any of the
Subsidiaries.
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(xiii) No Material Actions or
Proceedings. Except as disclosed in the Initial Financial
Statements (defined below): (A) there are no actions, suits or
legal, equitable, arbitrative or administrative proceedings pending
before any Governmental Authority, or to the knowledge of the
Company, threatened against the Company or any of the Guarantors or
affecting any Collateral (including any which challenge or
otherwise pertain to the Company’s or any Guarantor’s
title to any Collateral) before any Governmental Authority which
could reasonably be expected to cause a Material Adverse Change or
materially impair any Collateral, and (B) there are no
outstanding judgments, injunctions, writs, rulings or orders by any
such Governmental Authority against the Company, any Guarantor or
their respective stockholders, partners, members, directors or
officers or affecting any Collateral or any of the Company’s
or Guarantor’s material assets or property which could
reasonably be expected to cause a Material Adverse Change. For
purposes of this Agreement (1) the term “ Initial
Financial Statements ” means (a) the audited annual
Consolidated financial statements of the Company dated as of
December 31, 2008 and (b) the unaudited quarterly
Consolidated financial statements of the Company dated as of
June 30, 2009 and (2) the term “
Consolidated ” refers to the consolidation of any
person, in accordance with GAAP, with its properly consolidated
subsidiaries. References herein to a person’s Consolidated
financial statements, financial position, financial condition,
liabilities, etc. refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such
person and its properly consolidated subsidiaries
(xiv) All Necessary Permits.
Each of the Company and the Subsidiaries possess all licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings
with, all Governmental Authorities, presently required or necessary
to own or lease, as the case may be, and to operate their
respective properties and to carry on their respective businesses
as now conducted (“ Permits ”), except where the
failure to obtain such Permits would not, individually or in the
aggregate, cause a Material Adverse Change; each of the Company and
the respective Subsidiaries has fulfilled and performed all of its
obligations with respect to such Permits and to the Company’s
knowledge no event has occurred that allows, or after notice or
lapse of time would allow, revocation or termination thereof or
results, or after notice or lapse of time would result in any other
material impairment of the rights of the holder of any such Permit;
and none of the Company or the Subsidiaries has received, or has
any reason to believe that it has received or will receive, any
notice of any proceeding relating to revocation or modification of
any such Permit, except where such revocation or modification would
not, individually or in the aggregate, cause a Material Adverse
Change.
(xv) Title to Properties.
Each of the Company and the Subsidiaries has good and marketable
title to all real property owned by it and good title to all
personal property owned by it and good and marketable and
indefeasible title to all leasehold estates in real and personal
property being leased by it and, as of the Closing Date, will be
free and clear of all Liens (other than the security interests,
liens or encumbrances permitted under the Indenture) with only such
exceptions as would not, individually or in the aggregate, cause a
Material Adverse Change. All Existing Instruments to which the
Company or any of its respective Subsidiaries is a party or by
which any of them is bound are valid
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and enforceable against each of the
Company or such Subsidiary, as applicable, and are valid and
enforceable against the other party or parties thereto and are in
full force and effect with only such exceptions as would not,
individually or in the aggregate, cause a Material Adverse
Change.
(xvi) Tax Law Compliance.
Each of the Company and the Subsidiaries has filed all United
States Federal income Tax returns and all other material Tax
returns that are required to be filed by it and have paid all Taxes
due pursuant to such returns or pursuant to any assessment received
by any of the Company or the Subsidiaries and all other penalties
or charges, except Taxes which are not yet delinquent or which are
being contested in good faith by appropriate action and for which
adequate reserves have been maintained in accordance with GAAP. The
charges, accruals and revenues on the books of each of the Company
and the Subsidiaries in respect of Taxes and other governmental
charges are, in the opinion of the Company, adequate. Neither the
Company nor any of the Subsidiaries has given or been requested to
give a waiver of the statute of limitations relating to the payment
of any Federal or other Taxes. For purposes of this Agreement, the
term “ Tax ” and “ Taxes ”
shall mean all Federal, state, local and foreign taxes, and other
assessments of a similar nature (whether imposed directly or
through withholding), including any interest, additions to tax, or
penalties applicable thereto.
(xvii) Compliance with
Environmental and Other Laws . Except where the failure of any
of the following to be true could not reasonably be expected to
result in Environmental Liabilities, individually or in the
aggregate, in excess of $5,000,000: (A) the Company and the
Subsidiaries are and have been during the applicable statute of
limitations conducting their businesses and owning and operating
their properties in compliance with all applicable laws, rules and
regulations, including Environmental Laws, and have, are in
compliance with all Permits necessary under applicable laws for the
operation of their business and all such Permits are in full force
and effect; (B) none of the operations or properties of the
Company or any Subsidiary is the subject of federal, state or local
investigation evaluating whether any remedial action is needed to
respond to a Release or to the improper storage or disposal
(including storage or disposal at offsite locations) of any
Hazardous Materials; (C) there are no facts, circumstances or
conditions at any of the Oil and Gas Properties that are likely to
give rise to any costs or liability under Environmental Laws;
(D) none of the Company and the Subsidiaries has transported
or arranged for the transportation of any Hazardous Material to any
location which is (1) listed on the National Priorities List
under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, listed for possible inclusion on
such National Priorities List by the Environmental Protection
Agency in its Comprehensive Environmental Response, Compensation
and Liability Information System List, or listed on any similar
state list or (2) the subject of federal, state or local
enforcement actions or other investigations which may lead to
claims against the Company or any Subsidiary for clean-up costs,
remedial work, damages to natural resources or for personal injury
claims (whether under Environmental Laws or otherwise);
(E) none of the Company and the Subsidiaries has received
written notice or has knowledge of (1) any notice of
violation, claim, investigation, or inquiry under Environmental
Laws or regarding any violation of, or any liability under,
Environmental Laws at any of the Oil and Gas Properties or
(2) the revocation or potential revocation of
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any Permit required under applicable
Laws or that any application for any new Permit or renew of any
existing Permit will be protested or denied; (F) there has
been no Release or, to the Company’s knowledge, threatened
Release of Hazardous Materials at, on, under or from any property
owned or operated by the Company or any of the Subsidiaries and
(G) the Company and the Subsidiaries have provided to the
Purchasers complete and correct copies of all environmental site
assessment reports, investigation, studies, analyses, and
correspondence on environmental matters (including matters relating
to any alleged non-compliance with or liability under Environmental
Laws) related to the operations and property of the Company and the
Subsidiaries. For purposes of this Agreement, (a) the term
“ Environmental Laws ” means any and all laws
and Permits pertaining to the prevention of pollution, remediation
of contamination or restoration of environmental quality,
protection of human health or the environment (including natural
resources), or workplace health and safety, including without
limitation the federal Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; the
Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et
seq.; the Federal Water Pollution Control Act, 33 U.S.C. §
1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the
Hazardous Material Transportation Act, 49 U.S.C. § 5101 et
seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601
through 2629; the Oil Pollution Act, 33 U.S.C. § 2701 et seq.;
the Emergency Planning and Community Right-to-Know Act, 42 U.S.C.
§ 11001 et seq.; the Safe Drinking Water Act, 42 U.S.C.
§§ 300f through 300j; the Occupational Safety and Health
Act, 29 U.S.C. § 651 et seq.; the Oil Pollution Act of 1990;
the Outer Continental Shelf Liability Act; and all similar
requirements of law of any Governmental Authority and all
amendments to such requirements of law and all regulations
implementing any of the foregoing in effect in any and all
jurisdictions in which the Company or any Subsidiary is conducting,
or at any time has conducted, business, or where any property of
the Company or any Subsidiary is or has been located, (b) the
term “ Environmental Liabilities ” means all
liabilities (including costs of Remedial Actions, natural resource
damages and costs and expenses of investigation and feasibility
studies) that may be imposed on, incurred by or asserted against
the Company or any Subsidiary as a result of, or related to, any
claim, suit, action, investigation, proceeding or demand by any
person, whether based in contract, tort, implied or express
warranty, strict liability, criminal or civil statute or common law
or otherwise, arising under any Environmental Law or in connection
with any environmental, health or safety condition or with any
Release and resulting from the ownership, lease, sublease or other
operation or occupation of property by the Company or any
Subsidiary, whether on, prior or after the date hereof,
(c) the term “ Hazardous Materials ” means
and includes each substance defined, designated or classified as a
hazardous substance, hazardous material, pollutant, contaminant or
toxic substance under any Environmental Law, radioactive materials,
explosives, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon, infectious or medical wastes and
any petroleum, petroleum products, petroleum substances, crude oil
or oil or gas exploration or production wastes, (d) the term
“ Oil and Gas Properties ” means (i) all
oil, gas and/or mineral leases, oil, gas or mineral properties,
mineral servitudes and/or mineral rights of any kind (including,
without limitation, mineral fee interests, lease interests, farmout
interests, overriding royalty and royalty interests, net profits
interests, oil payment interests, production payment interests and
other types of mineral interests),
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