CLASS D UNITS AND THE PURCHASED UNITS, THE RELEASE OF THE FUNDS
ESCROWED UNDER THE ESCROW AGREEMENT BY EACH PURCHASER PURSUANT TO THE TERMS OF
THE ESCROW AGREEMENT, AND THE EXECUTION AND DELIVERY OF ALL OTHER INSTRUMENTS,
AGREEMENTS AND OTHER DOCUMENTS REQUIRED BY THIS AGREEMENT (THE "CLOSING") SHALL
TAKE PLACE ON A DATE (THE "CLOSING DATE") CONCURRENT WITH THE DOMINION CLOSING
DATE, BUT ON OR PRIOR TO NOVEMBER 1, 2007, PROVIDED THAT LINN ENERGY SHALL HAVE
GIVEN EACH PURCHASER FIVE (5) BUSINESS DAYS (OR SUCH SHORTER PERIOD AS SHALL BE
AGREEABLE TO THE PARTIES) PRIOR NOTICE OF SUCH DESIGNATED CLOSING DATE, AT THE
OFFICES OF VINSON & ELKINS L.L.P., 1001 FANNIN STREET, SUITE 2500, HOUSTON,
TEXAS 77002.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF LINN ENERGY
Linn Energy represents and warrants to the Purchasers, on and as of the date of
this Agreement and on and as of the Closing Date, as follows:
7
SECTION 3.01.
CORPORATE EXISTENCE.
LINN ENERGY: (I) IS A LIMITED
LIABILITY COMPANY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER
THE LAWS OF THE STATE OF DELAWARE; (II) HAS ALL REQUISITE LIMITED LIABILITY
COMPANY POWER, AND HAS ALL MATERIAL GOVERNMENTAL LICENSES, AUTHORIZATIONS,
CONSENTS AND APPROVALS, NECESSARY TO OWN ITS PROPERTIES AND CARRY ON ITS
BUSINESS AS ITS BUSINESS IS NOW BEING CONDUCTED AS DESCRIBED IN THE LINN ENERGY
SEC DOCUMENTS, EXCEPT WHERE THE FAILURE TO OBTAIN SUCH LICENSES, AUTHORIZATIONS,
CONSENTS AND APPROVALS WOULD NOT REASONABLY BE EXPECTED TO HAVE A LINN ENERGY
MATERIAL ADVERSE EFFECT; AND (III) IS QUALIFIED TO DO BUSINESS IN ALL
JURISDICTIONS IN WHICH THE NATURE OF THE BUSINESS CONDUCTED BY IT MAKES SUCH
QUALIFICATIONS NECESSARY, EXCEPT WHERE FAILURE SO TO QUALIFY WOULD NOT
REASONABLY BE EXPECTED TO HAVE A LINN ENERGY MATERIAL ADVERSE EFFECT.
SECTION 3.02.
CAPITALIZATION AND VALID ISSUANCE OF PURCHASED CLASS D
UNITS AND PURCHASED UNITS.
(A)
AS OF THE DATE OF THIS AGREEMENT, AND PRIOR TO THE ISSUANCE AND
SALE OF THE PURCHASED CLASS D UNITS AND THE PURCHASED UNITS, THE ISSUED AND
OUTSTANDING MEMBERSHIP INTERESTS OF LINN ENERGY CONSIST OF 65,605,765 UNITS.
ALL OF THE OUTSTANDING UNITS HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED IN
ACCORDANCE WITH APPLICABLE LAW AND THE LIMITED LIABILITY COMPANY AGREEMENT AND
ARE FULLY PAID (TO THE EXTENT REQUIRED UNDER THE LIMITED LIABILITY COMPANY
AGREEMENT) AND NON-ASSESSABLE (EXCEPT AS SUCH NON-ASSESSABILITY MAY BE AFFECTED
BY SECTION 18-607 OF THE DELAWARE LIMITED LIABILITY COMPANY ACT (THE "DELAWARE
LLC ACT").
(B)
OTHER THAN LINN ENERGY'S EXISTING (I) LONG-TERM INCENTIVE PLAN AND
(II) MEMORANDUM OF UNDERSTANDING REGARDING COMPENSATION ARRANGEMENTS FOR MEMBERS
OF ITS BOARD OF DIRECTORS, LINN ENERGY HAS NO EQUITY COMPENSATION PLANS THAT
CONTEMPLATE THE ISSUANCE OF UNITS (OR SECURITIES CONVERTIBLE INTO OR
EXCHANGEABLE FOR UNITS).
LINN ENERGY HAS NO OUTSTANDING INDEBTEDNESS HAVING THE
RIGHT TO VOTE (OR CONVERTIBLE INTO OR EXCHANGEABLE FOR SECURITIES HAVING THE
RIGHT TO VOTE) ON ANY MATTERS ON WHICH THE UNITHOLDERS MAY VOTE.
EXCEPT AS SET
FORTH IN THE FIRST SENTENCE OF THIS SECTION 3.02(B), AS CONTEMPLATED BY THIS
AGREEMENT