FIFTH AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF FEBRUARY 20, 2013 AMONG LINN ENERGY, LLC, AS BORROWER, THE GUARANTORS, WELLS FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT, ROYAL BANK OF CANADA, AS SYNDICATION...
Exhibit 10.35
EXECUTION VERSION
FIFTH AMENDMENT
TO
DATED AS OF FEBRUARY 20, 2013
AMONG
LINN ENERGY, LLC,
AS BORROWER,
AS BORROWER,
THE GUARANTORS,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT,
AS ADMINISTRATIVE AGENT,
ROYAL BANK OF CANADA,
AS SYNDICATION AGENT,
AS SYNDICATION AGENT,
THE ROYAL BANK OF SCOTLAND PLC, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, CITIBANK, NA AND BARCLAYS BANK PLC,
AS CO-DOCUMENTATION AGENTS
AS CO-DOCUMENTATION AGENTS
AND
THE LENDERS PARTY HERETO
______________________________________________________________________________
JOINT BOOK RUNNERS AND JOINT LEAD ARRANGERS
XXXXX FARGO SECURITIES, LLC RBC CAPITAL MARKETS
FIFTH AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Fifth Amendment”) dated as of February 20, 2013, among LINN ENERGY, LLC, a Delaware limited liability company, (the “Borrower”); the Guarantors signatory hereto, each of the Lenders party to the Credit Agreement referred to below; and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the “Administrative Agent”).
R E C I T A L S
A. The Borrower, the Administrative Agent, the Lenders and the other Agents party thereto entered into that certain Fifth Amended and Restated Credit Agreement dated as of May 2, 2011 as amended by that certain First Amendment dated as of February 29, 2012, that certain Second Amendment dated as of May 10, 2012, that certain Third Amendment dated as of July 25, 2012 and that certain Fourth Amendment dated as of September 28, 2012 (the “Credit Agreement”), pursuant to which the Lenders have made certain credit and other financial accommodations available to and on behalf of the Borrower and its Subsidiaries.
B. The Borrower has requested and the Administrative Agent and the Majority Lenders have agreed to amend certain provisions of the Credit Agreement.
C. NOW, THEREFORE, to induce the Administrative Agent and the Lenders to enter into this Fifth Amendment and 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 used herein but not otherwise defined herein has the meaning given such term in the Credit Agreement, as amended by this Fifth Amendment. Unless otherwise indicated, all section or article references in this Fifth Amendment refer to sections or articles of the Credit Agreement.
Section 2. Amendments to Credit Agreement.
2.1 Amendment to Section 1.02. Section 1.02 is hereby amended by deleting the defined term “Agreement” in its entirety and replacing them with the following:
“‘Agreement’ means this Credit Agreement, as amended by that certain First Amendment dated as of February 29, 2012, that certain Second Amendment dated as of May 10, 2012 , that certain Third Amendment dated as of July 25, 2012 that certain Fourth Amendment dated as of September 28, 2012 and that certain Fifth Amendment dated as of February 20, 2013 as the same may from time to time be further amended, modified, supplemented or restated.”
2.2 Amendment to Section 9.04(a)(iii). Section 9.04(a)(iii) is hereby amended by deleting such Section in its entirety and replacing it with the following:
“(iii) so long as no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower may declare and pay cash dividends to its members in an amount not to exceed the amount of Available Cash for the preceding quarter (including amounts borrowed as contemplated under clause (a)(ii) of the definition of Available Cash subsequent to the end of such quarter),”
Section 3. Conditions Precedent. This Fifth Amendment shall become effective on the date (such date, the “Fifth Amendment Effective Date”), when each of the following conditions is satisfied (or waived in accordance with Section 12.02 of the Credit Agreement):
3.1 The Administrative Agent shall have received (a) all fees and other amounts due and payable on or prior to the Fifth Amendment Effective Date and all other fees the Borrower has agreed to pay in connection with this Fifth Amendment and (b) to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Original Agreement.
3.2 The Administrative Agent shall have received from Lenders constituting the Majority Lenders and the Borrower, counterparts (in such number as may be requested by the Administrative Agent) of this Fifth Amendment signed on behalf of such Person.
3.3 No Default shall have occurred and be continuing as of the date hereof, after giving effect to the terms of this Fifth Amendment.
The Administrative Agent is hereby authorized and directed to declare this Fifth Amendment to be effective when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 3 or the waiver of such conditions as permitted in Section 12.02 of the Credit Agreement. Such declaration shall be final, conclusive and binding upon all parties to the Agreement for all purposes.
Section 4. Miscellaneous.
4.1 Confirmation. The provisions of the Credit Agreement, as amended by this Fifth Amendment, shall remain in full force and effect following the effectiveness of this Fifth Amendment.
4.2 Ratification and Affirmation; Representations and Warranties. Each of the Borrower and the Guarantors hereby (a) acknowledges the terms of this Fifth Amendment; (b) ratifies and affirms its obligations under, and acknowledges its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect as expressly amended hereby and (c) represents and warrants to the Lenders that as of the date hereof, after giving effect to the terms of this Fifth Amendment:
(i) all of the representations and warranties contained in each Loan Document to which it is a party are true and correct in all material respects (except those which have a materiality qualifier, which shall be true and correct as so qualified), except to the extent any such representations and warranties are expressly limited to an earlier date, in
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which case, such representations and warranties shall continue to be true and correct as of such specified earlier date,
(iii) no Default or Event of Default has occurred and is continuing, and
(iv) no event or events have occurred which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.
4.3 Loan Document. This Fifth Amendment is a Loan Document.
4.4 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. Delivery of this Fifth Amendment by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
4.5 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.
4.6 GOVERNING LAW. THIS FIFTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
4.7 Payment of Expenses. In accordance with Section 12.03 of the Credit Agreement, the Borrower agrees to pay or reimburse the Administrative Agent for all of its reasonable out-of- pocket costs and reasonable expenses incurred in connection with this Fifth Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent.
4.8 Severability. Any provision of this Fifth Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
4.9 Successors and Assigns. This Fifth Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be duly executed as of the date first written above.
BORROWER: | ||
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | Executive Vice President and Chief Financial Officer | |
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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 & PRODUCTION MICHIGAN LLC | ||
LINN MIDWEST ENERGY LLC | ||
By: | /s/ Xxxxx Xxxxxx | |
Xxxxx Xxxxxx | ||
Executive Vice President and Chief Financial Officer | ||
LINN EXPLORATION MIDCONTINENT, LLC | ||
By: Mid-Continent Holdings II, LLC, its sole member, as Member/Manager | ||
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | Executive Vice President and Chief Financial Officer | |
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LENDERS: | XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and a Lender | |
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | Director | |
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ROYAL BANK OF CANADA | ||
By: | /s/ Xxxxxxx Xxxxxx | |
Name: | Xxxxxxx Xxxxxx | |
Title: | Authorized Signatory | |
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BARCLAYS BANK PLC | ||
By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxxxxx | |
Title: | Vice President | |
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CITIBANK, N.A. | ||
By: | /s/ Xxxxx Xxxxx | |
Name: | Xxxxx Xxxxx | |
Title: | Vice President | |
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CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK | ||
By: | /s/ Xxxxxxx Xxxxx | |
Name: | Xxxxxxx Xxxxx | |
Title: | Managing Director | |
By: | /s/ Xxxxx Xxxxxxx | |
Name: | Xxxxx Xxxxxxx | |
Title: | Managing Director | |
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CREDIT SUISSE AG, CAYMAN ISLAND BRANCH | ||
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | Vice President | |
By: | /s/ Wei-Xxx Xxxx | |
Name: | Wei-Xxx Xxxx | |
Title: | Associate | |
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THE ROYAL BANK OF SCOTLAND PLC | ||
By: | /s/ Xxxxx X. Xxxxx | |
Name: | Xxxxx X. Xxxxx | |
Title: | Managing Director | |
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THE BANK OF NOVA SCOTIA | ||
By: | /s/ Xxxxx Xxxxxxx | |
Name: | Xxxxx Xxxxxxx | |
Title: | Managing Director | |
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BANK OF MONTREAL | ||
By: | /s/ Xxxxx X. Xxxxxx | |
Name: | Xxxxx X. Xxxxxx | |
Title: | Director | |
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CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY | ||
By: | /s/ Xxxxxx X. Xxxxx | |
Name: | Xxxxxx X. Xxxxx | |
Title: | Managing Director | |
By: | /s/ Xxxxxxxx X. Xxx | |
Name: | Xxxxxxxx X. Xxx | |
Title: | Authorized Signatory | |
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UBS AG, STAMFORD BRANCH | ||
By: | /s/ Xxxx Xxxxx | |
Name: | Xxxx Xxxxx | |
Title: | Director | |
By: | /s/ Xxxxxxx Xxxx | |
Name: | Xxxxxxx Xxxx | |
Title: | Director | |
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COMERICA BANK | ||
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: | Xxxxxxx Xxxxxxx | |
Title: | Assistant Vice President | |
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ING CAPITAL LLC | ||
By: | /s/ Xxxxxxx Xxxx | |
Name: | Xxxxxxx Xxxx | |
Title: | Managing Director | |
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SOCIETE GENERALE | ||
By: | /s/ Xxxxx X. Xxxxxxxxx | |
Name: | Xxxxx X. Xxxxxxxxx | |
Title: | Director | |
By: | ||
Name: | ||
Title: | ||
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U.S. BANK NATIONAL ASSOCIATION | ||
By: | /s/ Xxxxxxxx X. Xxx | |
Name: | Xxxxxxxx X. Xxx | |
Title: | Vice President | |
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ABN AMRO CAPITAL USA LLC | ||
By: | /s/ Xxxxx X. Xxxxxxxxxx | |
Name: | Xxxxx X. Xxxxxxxxxx | |
Title: | Director | |
By: | /s/ Xxxxxxx Xxxxxx | |
Name: | Xxxxxxx Xxxxxx | |
Title: | Managing Director | |
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COMPASS BANK | ||
By: | /s/ Xxx Xxx Xxxxxxx | |
Name: | Xxx Xxx Xxxxxxx | |
Title: | Senior Vice President | |
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DNB BANK ASA, GRAND CAYMAN BRANCH (f/k/a DnB NOR Bank ASA) | ||
By: | /s/ Xxxxxxxx Xxxxxxx | |
Name: | Xxxxxxxx Xxxxxxx | |
Title: | Senior Vice President | |
By: | /s/ Kjell Xxxx Xxxx | |
Name: | Kjell Xxxx Xxxx | |
Title: | Senior Vice President | |
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UNION BANK, N.A. | ||
By: | /s/ Xxxxx Xxxxxxx | |
Name: | Xxxxx Xxxxxxx | |
Title: | Vice President | |
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CAPITAL ONE, N.A. | ||
By: | /s/ Xxxxxxx X. Xxxxxx | |
Name: | Xxxxxxx X. Xxxxxx | |
Title: | Vice President | |
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SUNTRUST BANK | ||
By: | /s/ Xxxx Xxxxx | |
Name: | Xxxx Xxxxx | |
Title: | Director | |
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BANK OF AMERICA, N.A. | ||
By: | /s/ Xxxxxx Xxxxx | |
Name: | Xxxxxx Xxxxx | |
Title: | Director | |
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JPMORGAN CHASE BANK, N.A. | ||
By: | /s/ Xxxxxxx X. Xxxxxx | |
Name: | Xxxxxxx X. Xxxxxx | |
Title: | Authorized Officer | |
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DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
By: | /s/ Xxxxx Xxxxxxxxxx | |
Name: | Xxxxx Xxxxxxxxxx | |
Title: | Director | |
By: | /s/ Xxxxx X. Xxxxx | |
Name: | Xxxxx X. Xxxxx | |
Title: | Managing Director | |
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XXXXXXX XXXXX BANK USA | ||
By: | /s/ Xxxxxx Xxxxxx | |
Name: | Xxxxxx Xxxxxx | |
Title: | Authorized Signatory | |
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MACQUARIE BANK LIMITED | ||
By: | ||
Name: | ||
Title: | ||
By: | ||
Name: | ||
Title: | ||
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XXXXXX XXXXXXX BANK, N.A. | ||
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: | Xxxxxxx Xxxxxxx | |
Title: | Authorized Signatory | |
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BP ENERGY COMPANY | ||
By: | ||
Name: | ||
Title: | ||
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BNP PARIBAS | ||
By: | /s/ Xxxxx Xxxx | |
Name: | Xxxxx Xxxx | |
Title: | Managing Director | |
By: | /s/ Xxxxxx Xxxxxxxxxxxxxx | |
Name: | Xxxxxx Xxxxxxxxxxxxxx | |
Title: | Vice President | |
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BRANCH BANKING AND TRUST COMPANY | ||
By: | /s/ Xxxxx Xxxxxxxx | |
Name: | Xxxxx Xxxxxxxx | |
Title: | Vice President | |
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SUMITOMO MITSUI BANKING CORPORATION | ||
By: | /s/ Xxxxx Xxxx | |
Name: | Xxxxx Xxxx | |
Title: | Managing Director | |
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WHITNEY BANK | ||
By: | /s/ Liana Tchernysheva | |
Name: | Liana Tchernysheva | |
Title: | Senior Vice President | |
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AMEGY BANK NATIONAL ASSOCIATION | ||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxxx | |
Title: | Vice President | |
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ASSOCIATED BANK, N.A. | ||
By: | /s/ Xxxxxx Xxxxx | |
Name: | Xxxxxx Xxxxx | |
Title: | Vice President | |
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KEYBANK NATIONAL ASSOCIATION | ||
By: | /s/ Xxxxxxx Xxxxx | |
Name: | Xxxxxxx Xxxxx | |
Title: | Vice President | |
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