Fifth Amendment to Fourth Amended and Restated Credit Agreement Among Linn Energy, LLC, As Borrower, BNP Paribas, As Administrative Agent, and The Lenders Party Hereto Dated as of February 23, 2011

 

 

 

 

 

 

 

 

 

 

 

 

This Fifth Amendment to Fourth Amended and Restated Credit Agreement (this “Fifth Amendment”) dated as of February 23, 2011 (the “Fifth Amendment Effective Date”) is among Linn Energy, LLC, a limited liability company formed under the laws of the State of Delaware (the “Borrower”); each of the undersigned guarantors (the “Guarantors”, and together with the Borrower, the “Obligors”); each of the Lenders that is a signatory hereto; and BNP Paribas, as administrative agent for the Lenders (in such capacity, together with its successors, the “Administrative Agent”).

 

 

A.          The Borrower, the Administrative Agent and the Lenders are parties to that certain Fourth Amended and Restated Credit Agreement dated as of April 28, 2009 (as the same has been amended, modified, supplemented or restated from time to time, the “Credit Agreement”), pursuant to which the Lenders have made certain credit available to and on behalf of the Borrower.

 

B.           The Borrower has requested and the Administrative Agent and the Majority Lenders have agreed to amend certain provisions of the Credit Agreement as more particularly set forth herein.

 

C.           NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

Section 1.         Defined Terms.  Each capitalized term which is defined in the Credit Agreement, but which is not defined in this Fifth Amendment, shall have the meaning ascribed such term in the Credit Agreement.  Unless otherwise indicated, all section references in this Fifth Amendment refer to the Credit Agreement.

 

Section 2.          Amendments to Credit Agreement.

 

2.1           Amendments to Section 1.02.

 

(a)         The definition of “Agreement” is hereby amended and restated in its entirety to read as follows:

 

“‘Agreement’ means this Fourth Amended and Restated Credit Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment and as the same may from time to time be further amended, modified, supplemented or restated.”

 

(b)         The following new definitions are hereby added to Section 1.02 where alphabetically appropriate as follows:

 

“‘Fifth Amendment’ means that certain Fifth Amendment to Fourth Amended and Restated Credit Agreement dated as of the Fifth Amendment

Effective Date among the Borrower, the Lenders signatory thereto, the Guarantors signatory thereto and the Administrative Agent.”

 

“‘Fifth Amendment Effective Date’ has the meaning assigned to such term in the Fifth Amendment.”

 

2.2           Amendment to Section 8.01(i).  Section 8.01(i) is hereby amended and restated in its entirety as set forth below:

 

“           (i)      Lists of Purchasers.  Concurrently with the delivery of each December 31 Reserve Report to the Administrative Agent pursuant to Section 8.12(a), a list of Persons purchasing Hydrocarbons from the Borrower and its Subsidiaries reasonably expected to account for at least 80% of the revenues resulting from the sale of Hydrocarbons produced from the Mortgaged Properties in the quarter following the “as of” date of such Reserve Report.”

 

2.3           Amendment to Section 9.04(b).  Clause (i) of Section 9.04(b) is hereby amended to add the following to the end of such clause:

 

“provided, however, that this clause (i) shall not apply to the Redemption of Senior Notes maturing in 2017 and 2018;”

 

Section 3.          Conditions Precedent.  The effectiveness of this Fifth Amendment is subject to the receipt by the Administrative Agent of the following documents and satisfaction or waiver by the Lenders of the other conditions provided in this Section 3, each of which shall be reasonably satisfactory to the Administrative Agent in form and substance:

 

3.1           Payment by the Borrower to the Administrative Agent of all fees and other amounts due and payable on or prior to the Fifth Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower pursuant to the Credit Agreement.

 

3.2           The Administrative Agent shall have received multiple counterparts as requested of this Fifth Amendment from the Borrower, the Guarantors and the Majority Lenders.

 

3.3           No Default or Event of Default shall have occurred and be continuing as of the Fifth Amendment Effective Date.

 

Section 4.          Representations and Warranties; Etc.

 

4.1           Representations and Warranties in Loan Documents.  Each Obligor hereby affirms (a) that as of the date of execution and delivery of this Fifth Amendment, all of the representations and warranties contained in each Loan Document to which such Obligor is a party are true and correct in all material respects as though made on and as of the Fifth Amendment Effective Date (unless made as of a specific earlier date, in which case, such representations and warranties remain true and correct in all material respects as of such earlier date); and (b) that after giving effect to this Fifth Amendment and to the transactions contemplated hereby, no Defaults exist under the Loan Documents.

4.2           Organization; Powers.  Each of the Borrower and its Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority, and has all material governmental licenses, authorizations, consents and approvals necessary, to own its assets and to carry on its business as now conducted, and is qualified to do business in, and is in good standing in or has applied to qualify to do business in, every jurisdiction where such qualification is required, except where failure to have such power, authority, licenses, authorizations, consents, approvals and qualifications could not reasonably be expected to have a M aterial Adverse Effect.

 

4.3           Authority; Enforceability.  The Transactions are within the Borrower’s and each Guarantor’s corporate powers and have been duly authorized by all necessary corporate and, if required, member action (including, without limitation, any action required to be taken by any class of directors of the Borrower or any other Person, whether interested or disinterested, in order to ensure the due authorization of the Transactions).  When executed and delivered, each Loan Document to which the Borrower and any Guarantor is a party will have been duly executed and delivered by the Borrower and such Guarantor and will constitute a legal, valid and binding obligation of the Borrower and such Guarantor, as applicable, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

 

Section 5.          Miscellaneous.

 

5.1           Confirmation.  The provisions of the Credit Agreement (as amended by this Fifth Amendment) shall remain in full force and effect in accordance with its terms following the effectiveness of this Fifth Amendment.

 

5.2           Ratification and Affirmation of Obligors.  Each Obligor hereby expressly (i) acknowledges the terms of this Fifth Amendment, (ii) ratifies and affirms its obligations under each Loan Document to which it is a party, (iii) acknowledges, renews and extends its continued liability under each Loan Document to which it is a party and agrees that its grant of security interest and/or guarantee, as applicable, under the Security Instruments to which it is a party remains in full force and effect with respect to the Indebtedness after giving effect to this Fifth Amendment.

 

5.3           Loan Document.  This Fifth Amendment is a “Loan Document” as defined and described in the Credit Agreement and all of the terms and provisions of the Credit Agreement relating to Loan Documents shall apply hereto.

 

5.4           Counterparts.  This Fifth Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

 

5.5           No Waiver.  Neither the execution by the Administrative Agent or the Lenders of this Fifth Amendment, nor any other act or omission by the Administrative Agent or the Lenders or their officers in connection herewith, shall be deemed a waiver by the Administrative Agent or the Lenders of any defaults which may exist or which may occur in the future under any Loan

Document.  Similarly, nothing contained in this Fifth Amendment shall directly or indirectly in any way whatsoever impair, prejudice or otherwise adversely affect the Administrative Agent's or the Lenders' right at any time to exercise any right, privilege or remedy in connection with the Loan Documents with respect to any defaults which may exist or which may occur in the future under any Loan Document.  Nothing in this Fifth Amendment shall be construed to be a consent by the Administrative Agent or the Lenders to any default which may exist or which may occur in the future under any Loan Document.

 

5.6           No Oral Agreement.  This Fifth Amendment, the Credit Agreement and the other Loan Documents executed in connection herewith and therewith represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or unwritten oral agreements of the parties.  There are no subsequent oral agreements between the parties.

 

5.7           Governing Law.  This Fifth Amendment (including, but not limited to, the validity and enforceability hereof) shall be governed by, and construed in accordance with, the laws of the State of Texas.

 

 

[Signature pages follow]

IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be duly executed effective as of the date first written above.

 

BORROWER:	LINN ENERGY, LLC
	By:	/s/ Kolja Rockov
		Kolja Rockov,
		Executive Vice President and Chief Financial Officer
GUARANTORS:	LINN ENERGY HOLDINGS, LLC
	LINN OPERATING, INC.
	MID-CONTINENT HOLDINGS I, LLC
	MID-CONTINENT HOLDINGS II, LLC
	MID-CONTINENT I, LLC
	MID-CONTINENT II, LLC
	LINN GAS MARKETING, LLC
	LINN EXPLORATION MIDCONTINENT, LLC
	LINN EXPLORATION & PRODUCTION MICHIGAN LLC
	LINN EXPLORATION & PRODUCTION MICHIGAN MIDSTREAM LLC
	LINN GAS PROCESSING MI LLC
	LINN MIDWEST ENERGY LLC
	By:	/s/ Kolja Rockov
		Kolja Rockov,
		Executive Vice President and Chief Financial Officer

 

	BNP PARIBAS, as Administrative Agent and a Lender
	By:	/s/ Betsy Jocher
	Name:	Betsy Jocher
	Title:	Director
	By:	/s/ Edward Pak
	Name:	Edward Pak
	Title:	Vice President
	ROYAL BANK OF CANADA, as a Lender
	By:	/s/ Jim Allred
	Name:	Jim Allred
	Title:	Authorized Signatory
	CITIBANK, NA, as a Lender
	By:	/s/ John Miller
	Name:	John Miller
	Title:	Attorney-in-Fact
	BARCLAYS BANK PLC, as a Lender
	By:	/s/ Vanessa A. Kurbatskiy
	Name:	Vanessa A. Kurbatskiy
	Title:	Vice President

 

	CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender
	By:	/s/ Tom Byargeon
	Name:	Tom Byargeon
	Title:	Managing Director
	By:	/s/ Sharada Manne
	Name:	Sharada Manne
	Title:	Director
	THE ROYAL BANK OF SCOTLAND plc, as a Lender
	By:	/s/ David Slye
	Name:	David Slye
	Title:	Director
	WELLS FARGO BANK, N.A., as a Lender
	By:	/s/ Brett Steele
	Name:	Brett Steele
	Title:	Assistant Vice President
	SOCIETE GENERALE, as a Lender
	By:	/s/ Stephen W. Warfel
	Name:	Stephen W. Warfel
	Title:	Managing Director

 

	BANK OF MONTREAL, as a Lender
	By:	/s/ James V. Ducote
	Name:	James V. Ducote
	Title:	Director
	COMERICA BANK, as a Lender
	By:	/s/ Justin Crawford
	Name:	Justin Crawford
	Title:	Vice President
	ING CAPITAL LLC, as a Lender
	By:	/s/ Charles Hall
	Name:	Charles Hall
	Title:	Managing Director
	CREDIT SUISSE, AG Cayman Islands Branch as a Lender
	By:	/s/ Nupur Kumar
	Name:	Nupur Kumar
	Title:	Vice President
	By:	/s/ Rahul Parmar
	Name:	Rahul Parmar
	Title:	Associate

 

	COMPASS BANK, as a Lender
	By:	/s/ Dorothy Marchand
	Name:	Dorothy Marchand
	Title:	Senior Vice President
	DnB NOR BANK ASA, as a Lender
	By:	/s/ Giacomo Landi
	Name:	Giacomo Landi
	Title:	Senior Vice President
	By:	/s/ Henrik Asland
	Name:	Henrik Asland
	Title:	Senior Vice President
	UNION BANK, N.A., as a Lender
	By:	/s/ Scott Gildea
	Name:	Scott Gildea
	Title:	Vice President
	U.S. BANK NATIONAL ASSOCIATION, as a Lender
	By:	/s/ Heather W. Kiely
	Name:	Heather W. Kiely
	Title:	Vice President

 

	THE BANK OF NOVA SCOTIA, as a Lender
	By:	/s/ John Frazell
	Name:	John Frazell
	Title:	Director
	ALLIED IRISH BANKS P.L.C., as a Lender
	By:	/s/ Mark Connelly
	Name:	Mark Connelly
	Title:	SVP
	By:	/s/ Vaughn Buck
	Name:	Vaughn Buck
	Title:	EVP
	CAPITAL ONE, N.A., as a Lender
	By:	/s/ Matthew L. Molero
	Name:	Matthew L. Molero
	Title:	Vice President
	UBS AG, STAMFORD BRANCH, as a Lender
	By:	/s/ Irja R. Otsa
	Name:	Irja R. Otsa
	Title:	Associate Director
	By:	/s/ Mary E. Evans
	Name:	Mary E. Evans
	Title:	Associate Director
	MACQUARIE BANK LIMITED, as a Lender
	By:	/s/ Katie Choi	/s/ Margot Branson
	Name:	Katie Choi	Margot Branson
	Title:	Macquarie Bank Limited	Associate Director Legal Risk Management