exhibit10-32.htm


Exhibit 10.32







Execution Version




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


 





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Fifth Amendment to Fourth Amended and Restated Credit Agreement


 


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”).


 


R E C I T A L S


 


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




  






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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.




  






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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 Material 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




  






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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]




  






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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

















Fifth Amendment to Fourth Amended and Restated Credit Agreement


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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












Fifth Amendment to Fourth Amended and Restated Credit Agreement


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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












Fifth Amendment to Fourth Amended and Restated Credit Agreement


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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












Fifth Amendment to Fourth Amended and Restated Credit Agreement


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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












Fifth Amendment to Fourth Amended and Restated Credit Agreement


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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

















Fifth Amendment to Fourth Amended and Restated Credit Agreement


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