exv4w2






Exhibit 4.2




FINAL




 





WHITING PETROLEUM CORPORATION,




THE GUARANTOR NAMED ON THE SIGNATURE PAGE HEREOF

and



THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,



As Trustee



SECOND SUPPLEMENTAL INDENTURE




dated as of September 24, 2010




to



SUBORDINATED INDENTURE



dated as of April 19, 2005



Providing for Issuance of



61/2% SENIOR SUBORDINATED NOTES DUE 2018



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	 	 
	Section 1.01. Definitions
	 	 	2	 
	Section 1.02. Other Definitions
	 	 	26	 
	Section 1.03. Rules of Construction
	 	 	27	 
	 
	 	 	 	 
	ARTICLE 2 THE NOTES
	 	 	 	 
	Section 2.01. Creation and Form
	 	 	27	 
	Section 2.02. Execution and Authentication
	 	 	28	 
	Section 2.03. Outstanding Notes
	 	 	28	 
	Section 2.04. CUSIP Numbers
	 	 	28	 
	Section 2.05. Issuance of Additional Notes
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 3 REDEMPTION AND PURCHASE
	 	 	 	 
	Section 3.01. Redemption and Purchase
	 	 	29	 
	Section 3.02. Optional Redemption
	 	 	29	 
	Section 3.03. Mandatory Redemption
	 	 	30	 
	Section 3.04. Offer to Purchase by Application of Excess Proceeds
	 	 	30	 
	 
	 	 	 	 
	ARTICLE 4 COVENANTS
	 	 	 	 
	Section 4.01. Payment of Notes
	 	 	32	 
	Section 4.02. Maintenance of Office or Agency
	 	 	32	 
	Section 4.03. Reports
	 	 	33	 
	Section 4.04. Compliance Certificate
	 	 	33	 
	Section 4.05. Taxes
	 	 	34	 
	Section 4.06. Stay, Extension and Usury Laws
	 	 	34	 
	Section 4.07. Limitation on Restricted Payments
	 	 	34	 
	Section 4.08. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries
	 	 	37	 
	Section 4.09. Limitation on Incurrence of Indebtedness and Issuance of Preferred
Stock
	 	 	39	 
	Section 4.10. Limitation on Asset Sales
	 	 	42	 
	Section 4.11. Limitation on Transactions with Affiliates
	 	 	44	 
	Section 4.12. Limitation on Liens
	 	 	45	 
	Section 4.13. Additional Subsidiary Guarantees
	 	 	46	 
	Section 4.14. Corporate Existence
	 	 	46	 
	Section 4.15. Offer to Repurchase Upon Change of Control
	 	 	46	 
	Section 4.16. No Inducements
	 	 	49	 
	Section 4.17. Permitted Business Activities
	 	 	49	 
	Section 4.18. Anti-Layering
	 	 	49	 
	Section 4.19. Designation of Restricted and Unrestricted Subsidiaries
	 	 	49	 
	Section 4.20. Covenant Termination
	 	 	50	 
	 
	 	 	 	 
	ARTICLE 5 SUCCESSORS
	 	 	 	 
	Section 5.01. Merger, Consolidation, or Sale of Assets
	 	 	50	 
	Section 5.02. Successor Corporation Substituted
	 	 	51	 






i









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 6 DEFAULTS AND REMEDIES
	 	 	 	 
	Section 6.01. Events of Default
	 	 	51	 
	Section 6.02. Acceleration
	 	 	54	 
	Section 6.03. Priorities
	 	 	54	 
	Section 6.04. Waiver of Usury, Stay or Extension of Laws
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 7 TRUSTEE; REPORTS
	 	 	 	 
	Section 7.01. Notice of Defaults
	 	 	54	 
	Section 7.02. Certain Rights of Trustee
	 	 	54	 
	Section 7.03. Compensation and Reimbursement
	 	 	55	 
	Section 7.04. Reports by Company and Subsidiary Guarantors
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	 	 
	Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	56	 
	Section 8.02. Legal Defeasance and Discharge
	 	 	56	 
	Section 8.03. Covenant Defeasance
	 	 	56	 
	Section 8.04. Conditions to Legal or Covenant Defeasance
	 	 	57	 
	Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions
	 	 	58	 
	Section 8.06. Repayment to Company
	 	 	59	 
	Section 8.07. Reinstatement
	 	 	59	 
	Section 8.08. Discharge
	 	 	59	 
	 
	 	 	 	 
	ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
	 	 	 	 
	Section 9.01. Without Consent of Holders of Notes
	 	 	60	 
	Section 9.02. With Consent of Holders of Notes
	 	 	61	 
	Section 9.03. Revocation and Effect of Consents
	 	 	62	 
	 
	 	 	 	 
	ARTICLE 10 GUARANTEES OF NOTES
	 	 	 	 
	Section 10.01. Subsidiary Guarantees
	 	 	63	 
	Section 10.02. Notation of Subsidiary Guarantees
	 	 	64	 
	Section 10.03. Guarantors May Consolidate, Etc., on Certain Terms
	 	 	65	 
	Section 10.04. Releases of Subsidiary Guarantees
	 	 	65	 
	Section 10.05. Limitation on Guarantor Liability
	 	 	65	 
	Section 10.06. “Trustee” to Include Paying Agent
	 	 	66	 
	 
	 	 	 	 
	ARTICLE 11 MISCELLANEOUS
	 	 	 	 
	Section 11.01. Second Supplemental Indenture Controls
	 	 	66	 
	Section 11.02. No Personal Liability of Directors, Officers, Employees and
Stockholders
	 	 	66	 
	Section 11.03. Governing Law; Waiver of Jury Trial; Submission to Jurisdiction
	 	 	66	 
	Section 11.04. Force Majeure
	 	 	67	 
	Section 11.05. No Adverse Interpretation of Other Agreements
	 	 	67	 
	Section 11.06. Table of Contents and Headings
	 	 	67	 
	Section 11.07. Counterparts
	 	 	67	 
	 
	 	 	 	 
	ARTICLE 12 SUBORDINATION
	 	 	 	 
	Section 12.01. Agreement to Subordinate
	 	 	67	 
	Section 12.02. Liquidation, Dissolution, Bankruptcy
	 	 	68	 
	Section 12.03. Default on Senior Debt
	 	 	68	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 12.04. Acceleration of Payment of Notes
	 	 	69	 
	Section 12.05. When Distribution Must Be Paid Over; Reinstatement of Senior
Debt
	 	 	69	 
	Section 12.06. Subrogation
	 	 	69	 
	Section 12.07. Relative Rights
	 	 	70	 
	Section 12.08. Subordination May Not Be Impaired by Company
	 	 	70	 
	Section 12.09. Rights of Trustee and Paying Agent; Rights of Holders of Senior
Debt
	 	 	70	 
	Section 12.10. Distribution or Notice to Representative
	 	 	71	 
	Section 12.11. Not to Prevent Events of Default or Limit Right to Accelerate
	 	 	71	 
	Section 12.12. Trust Moneys Not Subordinated
	 	 	71	 
	Section 12.13. Trustee Entitled to Rely
	 	 	71	 
	Section 12.14. Trustee to Effectuate Subordination
	 	 	72	 
	Section 12.15. Trustee Not Fiduciary for Holders of Senior Debt
	 	 	72	 
	Section 12.16. Reliance by Holders of Senior Debt on Subordination Provisions
	 	 	72	 
	 
	 	 	 	 
	ARTICLE 13 SUBORDINATION OF SUBSIDIARY GUARANTEES
	 	 	 	 
	Section 13.01. Agreement to Subordinate
	 	 	72	 
	Section 13.02. Liquidation, Dissolution, Bankruptcy
	 	 	73	 
	Section 13.03. Default on Senior Debt
	 	 	73	 
	Section 13.04. Demand for Payment
	 	 	74	 
	Section 13.05. When Distribution Must Be Paid Over; Reinstatement of Senior
Debt
	 	 	74	 
	Section 13.06. Subrogation
	 	 	75	 
	Section 13.07. Relative Rights
	 	 	75	 
	Section 13.08. Subordination May Not Be Impaired by Guarantors
	 	 	75	 
	Section 13.09. Rights of Trustee and Paying Agent; Rights of Holders of Senior
Debt
	 	 	75	 
	Section 13.10. Distribution or Notice to Representative
	 	 	76	 
	Section 13.11. Article 13 Not to Prevent Events of Default or Limit Right to Demand
Payment
	 	 	76	 
	Section 13.12. Trust Moneys Not Subordinated
	 	 	76	 
	Section 13.13. Trustee Entitled to Rely
	 	 	76	 
	Section 13.14. Trustee to Effectuate Subordination
	 	 	77	 
	Section 13.15. Trustee Not Fiduciary for Holders of Senior Debt of Guarantors
	 	 	77	 
	Section 13.16. Reliance by Holders of Senior Debt of Guarantors on Subordination
Provisions
	 	 	77	 






iii









 






EXHIBITS




	 	 	 	 	 

	EXHIBIT A

	 	Form of Note
	 	A — 1
	 
	EXHIBIT B

	 	Form of Supplemental Indenture
	 	B — 1






iv









 






     This Second Supplemental Indenture, dated as of September 24, 2010 (this “Second Supplemental
Indenture”), supplements and amends the Subordinated Indenture, dated as of April 19, 2005 (the
“Original Indenture”), among Whiting Petroleum Corporation, a Delaware corporation (the “Company”),
the Guarantor listed on the signature page hereof and The Bank of New York Mellon Trust Company,
N.A., a national banking association, as successor trustee (the “Trustee”).



RECITATIONS OF THE COMPANY




     WHEREAS, the Company, the Guarantors and the Trustee have heretofore executed and delivered
the Original Indenture to provide for the issuance of the Company’s subordinated debt securities to
be issued in one or more series;



     WHEREAS, Section 901 of the Original Indenture provides, among other things, that the Company,
the Guarantors and the Trustee may without the consent of Holders enter into indentures
supplemental to the Original Indenture to, among other things, (a) add to, change or eliminate any
of the provisions of the Original Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (i) shall neither (A) apply to any Security
of any series created prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect
to such provision or (ii) shall become effective only when there is no such Security Outstanding
and (b) establish the form or terms of Securities of any series as permitted by Sections 201 and
301;



     WHEREAS, on April 19, 2005 the Company issued pursuant to the Original Indenture, as
supplemented and amended by the First Supplemental Indenture dated as of April 19, 2005 among the
Company, the guarantors named therein and J.P. Morgan Trust Company, National Association, as
trustee, an initial series of Securities designated the “71/4% Senior Subordinated Notes due 2013,”
which have been redeemed by the Company prior to the date here of;



     WHEREAS, pursuant to an Amended and Restated Purchase and Assumption Agreement for the sale of
the Corporate Trust Business dated as of October 1, 2006 by and between The Bank of New York
Company, Inc., a New York corporation (“BNY”) and JPMorgan Chase & Co., a Delaware corporation
(“JPM”), JPM sold, assigned, transferred and conveyed or caused one or more of its subsidiaries,
including, but not limited to the J.P. Morgan Trust Company, N.A., to sell, assign, transfer and
convey its Corporate Trust Business to BNY or one or more of its subsidiaries, including, but not
limited to, the Trustee, effective October 1, 2006 whereupon Trustee became successor trustee under
the Indenture;



     WHEREAS, the Company desires to provide for the issuance of a second series of Securities to
be designated as the “61/2% Senior Subordinated Notes due 2018” (the “Notes”), and to set forth the
form and terms thereof;



     WHEREAS, the Company proposes in and by this Second Supplemental Indenture to supplement and
amend the Original Indenture, but only insofar as it will apply to the Notes; and



     WHEREAS, all action on the part of the Company necessary to authorize the creation and
issuance of the Notes, and all action on the part of Whiting necessary to authorize its



[Signature Page to Second Supplemental Indenture]



 









 




guarantee of the Notes under the Original Indenture and this Second Supplemental Indenture
(the Original Indenture, as supplemented and amended by this Second Supplemental Indenture, being
hereinafter called the “Indenture”), have been duly taken.




     NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:



     That, in order to establish the designation, form and terms of, and to authorize the
authentication and delivery of the Notes, and in consideration of the acceptance of the Notes by
the Holders thereof and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE




Section 1.01. Definitions.




     (a) Capitalized terms used herein and not otherwise defined shall have the respective meanings
assigned thereto in the Original Indenture.



     (b) Section 101 of the Original Indenture is amended and supplemented, with respect to the
Notes, by inserting or restating, as the case may be, in their appropriate alphabetical position,
the following definitions:



     “ACNTA” means (without duplication), as of the date of determination:




     (1) the sum of:




     (a) discounted future net revenue from proved crude oil and natural gas
reserves of the Company and its Restricted Subsidiaries calculated in accordance
with SEC guidelines before any state or federal income taxes, as estimated in a
reserve report prepared as of the end of the Company’s most recently completed
fiscal year, which reserve report is prepared or reviewed by independent petroleum
engineers as to reserves accounting for at least 80% of all such discounted future
net revenue and by the Company’s petroleum engineers with respect to any other
reserves covered by such report, as increased by, as of the date of determination,
the discounted future net revenue from:




     (i) estimated proved crude oil and natural gas reserves of the Company
and its Restricted Subsidiaries attributable to acquisitions consummated
since the date of such year-end reserve report, and




     (ii) estimated crude oil and natural gas reserves of the Company and
its Restricted Subsidiaries attributable to extensions, discoveries and
other additions and upward determinations of estimates of



2









 






proved crude oil and natural gas reserves (including previously
estimated development costs incurred during the period and the accretion of
discount since the prior year end) due to exploration, development or
exploitation, production or other activities which reserves were not
reflected in such year-end reserve report,




in each case calculated in accordance with SEC guidelines (utilizing the prices
utilized in such year-end reserve report), and decreased by, as of the date of
determination, the discounted future net revenue attributable to




     (iii) estimated proved crude oil and natural gas reserves of the
Company and its Restricted Subsidiaries reflected in such year-end reserve
report produced or disposed of since the date of such year-end reserve
report and




     (iv) reductions in the estimated proved crude oil and natural gas
reserves of the Company and its Restricted Subsidiaries reflected in such
year-end reserve report since the date of such year-end reserve report
attributable to downward determinations of estimates of proved crude oil and
natural gas reserves due to exploration, development or exploitation,
production or other activities conducted or otherwise occurring since the
date of such year-end reserve report,




in each case calculated in accordance with SEC guidelines (utilizing the prices
utilized in such year-end reserve report); provided, however, that, in the case of
each of the determinations made pursuant to clauses (i) through (iv), such increases
and decreases shall be as estimated by the Company’s engineers, except that if as a
result of such acquisitions, dispositions, discoveries, extensions or revisions,
there is a Material Change, then such increases and decreases in the discounted
future net revenue shall be confirmed in writing by an independent petroleum
engineer;




     (b) the capitalized costs that are attributable to crude oil and natural gas
properties of the Company and its Restricted Subsidiaries to which no proved crude
oil and natural gas reserves are attributed, based on the Company’s books and
records as of a date no earlier than the date of the Company’s latest annual or
quarterly financial statements;




     (c) the Net Working Capital on a date no earlier than the date of the Company’s
latest annual or quarterly financial statements; and




     (d) the greater of (I) the net book value on a date no earlier than the date of
the Company’s latest annual or quarterly financial statements and (II) the appraised
value, as estimated by independent appraisers, of other tangible assets of the
Company and its Restricted Subsidiaries as of a date no earlier than the date of the
Company’s latest audited financial statements;



3









 






     (2) minus, to the extent not otherwise taken into account in the immediately preceding
clause (1), the sum of:




     (a) minority interests;




     (b) any net gas balancing liabilities of the Company and its Restricted
Subsidiaries reflected in the Company’s latest audited financial statements;




     (c) the discounted future net revenue, calculated in accordance with SEC
guidelines (utilizing the same prices utilized in the Company’s year-end reserve
report), attributable to reserves subject to participation interests, overriding
royalty interests or other interests of third parties, pursuant to participation,
partnership, vendor financing or other agreements then in effect, or which otherwise
are required to be delivered to third parties;




     (d) the discounted future net revenue, calculated in accordance with SEC
guidelines (utilizing the same prices utilized in the Company’s year-end reserve
report), attributable to reserves that are required to be delivered to third parties
to fully satisfy the obligations of the Company and its Restricted Subsidiaries with
respect to Volumetric Production Payments on the schedules specified with respect
thereto; and




     (e) the discounted future net revenue, calculated in accordance with SEC
guidelines, attributable to reserves subject to Dollar-Denominated Production
Payments that, based on the estimates of production included in determining the
discounted future net revenue specified in the immediately preceding clause (1)(a)
(utilizing the same prices utilized in the Company’s year-end reserve report), would
be necessary to satisfy fully the obligations of the Company and its Restricted
Subsidiaries with respect to Dollar-Denominated Production Payments on the schedules
specified with respect thereto.


If the Company changes its method of accounting for its oil and gas properties from the successful
efforts method to the full cost method or a similar method of accounting, ACNTA will continue to be
calculated as if the Company were still using the successful efforts method of accounting.




     “Acquired Debt” means, with respect to any specified Person:




     (1) Indebtedness of any other Person existing at the time such other Person was merged
with or into or became a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Subsidiary of, such specified Person; provided, however,
that Indebtedness of such acquired Person which is redeemed, defeased, retired or otherwise
repaid at the time of or substantially contemporaneously with the consummation of the
transactions by which such Person merges with or into or becomes a Subsidiary of such Person
shall not be Acquired Debt; and



4









 






     (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.



     “Additional Assets” means:




     (1) any assets used or useful in the Oil and Gas Business;




     (2) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of
the acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or




     (3) Capital Stock constituting a minority in any Person that at such time is a
Restricted Subsidiary;


provided, however, that any such Restricted Subsidiary described in clause (2) or (3) is primarily
engaged in the Oil and Gas Business.




     “Additional Notes” means, subject to the Company’s compliance with Section 4.09 of the Second
Supplemental Indenture, 61/2% Senior Subordinated Notes due 2018 of the Company as may be originally
issued from time to time after the Issue Date under the terms of this Indenture, together with all
other Notes issued upon registration of transfer of, or in exchange for, such Notes.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise. For
purposes of this definition, the terms “controlling,” “controlled by” and “under common control
with” have correlative meanings.



     “Applicable Law,” except as the context may otherwise require, means all applicable laws,
rules, regulations, ordinances, judgments, decrees, injunctions, writs and orders of any court or
governmental or congressional agency or authority and rules, regulations, orders, licenses and
permits of any United States federal, state, municipal, regional, or other governmental body,
instrumentality, agency or authority.



     “Applicable Premium” means, with respect to a Note at any Redemption Date, the greater of (x)
1.0% of the principal amount of such Note and (y) the excess of (A) the present value at such
Redemption Date of (1) the Redemption Price of such Note as of October 1, 2014 (as set forth in the
table in Section 3.02(a) hereof) plus (2) all required interest payments due on such Note through
October 1, 2014 (without regard to accrued and unpaid interest), computed using a discount rate
equal to the Treasury Rate plus 50 basis points, over (B) the principal amount of such Note.



     “Asset Sale” means:




5











 






     (1) the sale, lease, conveyance or other disposition of any properties or assets
(including by way of a Production Payment or sale and leaseback transaction); provided that
the sale, lease, conveyance or other disposition of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries taken as a whole will be
governed by the provisions of Section 4.15 of the Second Supplemental Indenture and/or the
provisions of Section 5.01 of the Second Supplemental Indenture and not by the provisions of
Section 4.10 of the Second Supplemental Indenture; and




     (2) the issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or
the sale by the Company or any of the Company’s Restricted Subsidiaries of Equity Interests
in any of the Company’s Restricted Subsidiaries (other than directors’ qualifying shares or
shares required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary).




Notwithstanding the preceding, the following items will not be deemed to be Asset Sales:




     (1) any single transaction or series of related transactions that involves properties
or assets having a fair market value of less than $15.0 million;




     (2) a transfer of assets between or among any of the Company and its Restricted
Subsidiaries,




     (3) an issuance or sale of Equity Interests by a Restricted Subsidiary to the Company
or to another Restricted Subsidiary;




     (4) the sale, lease or other disposition of equipment, inventory, accounts receivable
or other properties or assets in the ordinary course of business, including, without
limitation, any abandonment, farm-in, farm-out, lease or sublease of any oil and gas
properties or the forfeiture or other disposition of such properties pursuant to standard
form operating agreements, in each case in the ordinary course of business in a manner
customary in the Oil and Gas Business;




     (5) the sale or other disposition of cash or Cash Equivalents;




     (6) a Restricted Payment that is permitted by Section 4.07 of the Second Supplemental
Indenture or a Permitted Investment;




     (7) any trade or exchange by the Company or any Restricted Subsidiary of oil and gas
properties or other properties or assets for oil and gas properties or other properties or
assets owned or held by another Person, provided that the fair market value of the
properties or assets traded or exchanged by the Company or such Restricted Subsidiary
(together with any cash) is reasonably equivalent to the fair market value of the properties
or assets (together with any cash) to be received by the Company or such Restricted
Subsidiary, and provided further that any net cash received must be applied in accordance
with the provisions of Section 4.10 of the Second Supplemental Indenture;




     (8) the creation or perfection of a Lien (but not the sale or other disposition of the
properties or assets subject to such Lien);



6









 






     (9) surrender or waiver of contract rights or the settlement, release or surrender of
contract, tort or other claims of any kind; and




     (10) any sale or other disposition of damaged, worn-out or obsolete assets in the
ordinary course of business (including the assignment, cancellation or abandonment or other
disposition of intellectual property that is, in the reasonable judgment of the Company, no
longer economically practicable to maintain or useful in any material respect in the conduct
of the business of the Company and its Restricted Subsidiaries taken as whole).



     “Attributable Debt” in respect of a sale and leaseback transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of interest implicit in
such transaction, determined in accordance with GAAP.



     “Bankruptcy Law” means Title 11, United States Code, as may be amended from time to time, or
any similar federal or state law for the relief of debtors.



     “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to
have beneficial ownership of all securities that such “person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” have correlative meanings.



     “Board of Directors” means:




     (1) with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;




     (2) with respect to a partnership, the Board of Directors of the general partner of the
partnership;




     (3) with respect to a limited liability company, the Board of Directors of the managing
member, if the managing member is an entity, or the managing member or members or any
controlling committee of managing members thereof, if the managing members are individuals;
and




     (4) with respect to any other Person, the board or committee of such Person serving a
similar function.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the applicable Person to have been duly adopted by the Board of Directors of such
Person and to be in full force and effect on the date of such certification, and delivered to the
Trustee.



7









 





     “Business Day” means each day that is not a Saturday, Sunday or other day on which banking
institutions in Chicago, Illinois, Denver, Colorado or New York, New York or another place of
payment are authorized or required by law to close.



     “Capital Lease Obligation” means, at the time any determination is to be made, the amount of
the liability in respect of a capital lease that would at that time be required to be capitalized
on a balance sheet in accordance with GAAP.



     “Capital Stock” means:




     (1) in the case of a corporation, corporate stock;




     (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;




     (3) in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and




     (4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person.




     “Cash Equivalents” means:




     (1) United States dollars;




     (2) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that
the full faith and credit of the United States is pledged in support of those securities)
having maturities of not more than one year from the date of acquisition;




     (3) certificates of deposit and eurodollar time deposits with maturities of one year or
less from the date of acquisition, bankers’ acceptances with maturities not exceeding one
year and overnight bank deposits, in each case, with any lender party to the Credit
Agreement or with any domestic commercial bank;




     (4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;




     (5) commercial paper having one of the two highest ratings obtainable from Moody’s or
S&P and in each case maturing within one year after the date of acquisition;




     (6) money market funds the assets of which primarily constitute Cash Equivalents of the
kinds described in clauses (1) through (5) of this definition; and



8









 






     (7) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (1) above entered into with any financial
institution meeting the qualifications specified in clause (3) above.



     “Change of Control” means the occurrence of any of the following:




     (1) the direct or indirect sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets (including Capital Stock of the
Restricted Subsidiaries) of the Company and its Restricted Subsidiaries taken as a whole, to
any “person” (as that term is used in Section 13(d)(3) of the Exchange Act);




     (2) the adoption of a plan relating to the liquidation or dissolution of the Company;




     (3) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any “person” (as that term is used in Section
13(d)(3) of the Exchange Act) becomes the Beneficial Owner, directly or indirectly, of more
than 50% of the Voting Stock of the Company, measured by voting power rather than number of
shares; or




     (4) the first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Commission” or “SEC” means the Securities and Exchange Commission.



     “Consolidated Cash Flow” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus:




     (1) an amount equal to any extraordinary loss plus any net loss realized by such Person
or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent such
losses were deducted in computing such Consolidated Net Income; plus




     (2) provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus




     (3) consolidated interest expense of such Person and its Restricted Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (excluding any interest
attributable to Dollar-Denominated Production Payments but including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred in respect of
letter of credit or bankers’ acceptance financings), and net of the effect of all payments
made or received pursuant to Hedging



9









 






Obligations, to the extent that any such expense was
deducted in computing such Consolidated Net Income; plus




     (4) depreciation, depletion and amortization (including amortization of intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior period),
impairment and other non-cash expenses (excluding any such non-cash expense to the extent
that it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such Person and
its Restricted Subsidiaries for such period to the extent that such depreciation, depletion
and amortization, impairment and other non-cash expenses were deducted in computing such
Consolidated Net Income; plus




     (5) unrealized non-cash losses resulting from foreign currency balance sheet
adjustments required by GAAP to the extent such losses were deducted in computing such
Consolidated Net Income; minus




     (6) non-cash items increasing such Consolidated Net Income for such period, other than
items that were accrued in the ordinary course of business; minus (to the extent included in
determining Consolidated Net Income); and




     (7) the sum of (x) the amount of deferred revenues that are amortized during such
period and are attributable to reserves that are subject to Volumetric Production Payments
and (y) amounts recorded in accordance with GAAP as repayments of principal and interest
pursuant to Dollar-Denominated Production Payments,


in each case, on a consolidated basis and determined in accordance with GAAP.




     “Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided that:




     (1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting will be included, but only to the
extent of the amount of dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary of the Person;




     (2) the Net Income of any Restricted Subsidiary will be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted Subsidiary
of that Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, partners or members;




     (3) the cumulative effect of a change in accounting principles will be excluded;



10









 






     (4) income resulting from transfers of assets (other than cash) between the Company or
any of its Restricted Subsidiaries, on the one hand, and an Unrestricted Subsidiary, on the
other hand, will be excluded;




     (5) any write-downs of non-current assets will be excluded; provided that any ceiling
limitation write-downs under Commission guidelines shall be treated as capitalized costs, as
if such write-downs had not occurred; and




     (6) any unrealized non-cash gains or losses or charges in respect of hedge or non-hedge
derivatives (including those resulting from the application of FAS 133 (now codified as FASB
Accounting Standards Codification Topic 815)) will be excluded.


In addition, notwithstanding the preceding, for the purposes of Section 4.07 of the Second
Supplemental Indenture only, there shall be excluded from Consolidated Net Income any nonrecurring
charges relating to any premium or penalty paid, write off of deferred finance costs or other
charges in connection with redeeming or retiring any Indebtedness prior to its Stated Maturity.




     “Continuing Directors” means, as of any date of determination, any member of the Board of
Directors of the Company who:




     (1) was a member of such Board of Directors on the Issue Date; or




     (2) was nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board at the time of such
nomination or election.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business in Chicago, Illinois shall be principally administered, which office as of
the date of this instrument is located at 2 North LaSalle Street, Suite 1020, Chicago, IL 60602,
except that with respect to presentation of Notes for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which at any particular time
its corporate agency business shall be conducted, which office at the date of this instrument is
located at 101 Barclay Street, New York, New York 10286; Attention: Corporate Trust Division -
Corporate Finance Unit, or, in the case of any of such offices or agency, such other address as the
Trustee may designate from time to time by notice to the Holders and the Company.



     “Credit Agreement” means that certain Fourth Amended and Restated Credit Agreement, dated as
of April 28, 2009, among Whiting, the Company, the financial institutions parties thereto, and
JPMorgan Chase Bank, N.A., as Administrative Agent, providing for revolving credit borrowings,
including any related notes, guarantees, collateral documents, instruments and agreements executed
in connection therewith, and in each case as amended, restated, modified, renewed, refunded,
replaced or refinanced from time to time.



     “Credit Facilities” means one or more debt facilities (including, without limitation, the
Credit Agreement), commercial paper facilities or secured capital markets financings, in each case
with banks or other institutional lenders or institutional investors providing for revolving



11









 




credit
loans, term loans, receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from (or sell receivables to) such lenders against
such receivables), letters of credit or secured capital markets financings, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced (including refinancing with
any capital markets transaction) in whole or in part from time to time.




     “Custodian” means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.



     “Default” means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.



     “Designated Senior Debt” means:




     (1) any Indebtedness outstanding from time to time under the Credit Facilities; and




     (2) any other Senior Debt permitted under this Indenture the principal amount of which
is $50.0 million or more and that is from time to time designated by the Company as
“Designated Senior Debt.”



     “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that
would constitute Disqualified Stock solely because the holders of the Capital Stock have the right
to require the Company to repurchase or redeem such Capital Stock upon the occurrence of a change
of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.07 of the Second
Supplemental Indenture.



     “Dollar-Denominated Production Payments” means production payment obligations recorded as
liabilities in accordance with GAAP, together with all undertakings and obligations in connection
therewith.



     “Domestic Subsidiary” means any Restricted Subsidiary of the Company other than a Foreign
Subsidiary.



     “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).



     “Equity Offering” means any public or private sale of Capital Stock (other than Disqualified
Stock) made for cash on a primary basis by the Company after the Issue Date.



12









 






     “Existing Indebtedness” means the aggregate principal amount of Indebtedness of the Company
and its Restricted Subsidiaries (other than Indebtedness under the Credit Agreement which is
considered incurred under the first paragraph of Section 4.09 of the Second Supplemental Indenture)
in existence on the Issue Date, until such amounts are repaid.




     “Fixed Charge Coverage Ratio” means with respect to any specified Person for any four-quarter
reference period, the ratio of the Consolidated Cash Flow of such Person for such period to the
Fixed Charges of such Person for such period. In the event that the specified Person or any of its
Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases or redeems any
Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems
preferred stock subsequent to the commencement of the applicable four-quarter reference period and
on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage
Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated
giving pro forma effect to such incurrence, assumption, guarantee, repayment, repurchase or
redemption of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the
use of the proceeds therefrom as if the same had occurred at the beginning of such period.




     In addition, for purposes of calculating the Fixed Charge Coverage Ratio:




     (1) acquisitions that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any related
financing transactions, subsequent to the commencement of the applicable four-quarter
reference period and on or prior to the Calculation Date will be given pro forma effect as
if they had occurred on the first day of such period, including any Consolidated Cash Flow
and any pro forma expense and cost reductions that have occurred or are reasonably expected
to occur, in the reasonable judgment of the chief financial or accounting officer of the
Company (regardless of whether those cost savings or operating improvements could then be
reflected in pro forma financial statements in accordance with Regulation S-X promulgated
under the Securities Act or any other regulation or policy of the Commission related
thereto);




     (2) the Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the Calculation
Date, will be excluded; and




     (3) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the Calculation
Date, will be excluded, but only to the extent that the obligations giving rise to such
Fixed Charges will not be obligations of the specified Person or any of its Restricted
Subsidiaries following the Calculation Date.



     “Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication, of:




     (1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued (excluding any interest attributable



13









 






to
Dollar-Denominated Production Payments but including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to Attributable
Debt, commissions, discounts and other fees and charges incurred in respect of letter of
credit or bankers’ acceptance financings), and net of the effect of all payments made or
received pursuant to Hedging Obligations; plus




     (2) the consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period; plus




     (3) any interest expense on Indebtedness of another Person that is guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries, whether or not such guarantee or Lien is called upon;
plus




     (4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries,
other than dividends on Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company,
times (b) a fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal,


in each case, on a consolidated basis and in accordance with GAAP.




     “Foreign Subsidiary” means any Restricted Subsidiary of the Company that was not formed under
the laws of the United States or any state of the United States or the District of Columbia and
that conducts substantially all of its operations outside the United States.



     “GAAP” means generally accepted accounting principles in the United States, which are in
effect on the Issue Date.



     “Government Securities” means direct obligations of, or obligations guaranteed by, the United
States of America for the payment of which guarantee or obligations the full faith and credit of
the United States is pledged.



     The term “guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any Indebtedness. When used as a verb, “guarantee” has a
correlative meaning.



     “Guarantor” or “Subsidiary Guarantor” means (a) Whiting, (b) any other Restricted Subsidiary
of the Company that becomes a Guarantor of the Notes by executing a supplement to this Indenture in
accordance with Section 4.13 or 10.03 of the Second Supplemental Indenture and (c) the respective
successors and assigns of such Restricted Subsidiaries, as required under Article 10 of the Second
Supplemental Indenture, in each case until such time as any such



14









 




Restricted Subsidiary shall be
released and relieved of its obligations pursuant to Section 8.02, 8.03 or 10.04 of the Second
Supplemental Indenture.




     “Hedging Obligations” means, with respect to any specified Person, the obligations of such
Person incurred in the normal course of business and consistent with past practices and not for
speculative purposes under:




     (1) interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements entered into with one of more financial institutions and designed to
protect the Person or any of its Restricted Subsidiaries entering into the agreement against
fluctuations in interest rates with respect to Indebtedness incurred and not for purposes of
speculation;




     (2) foreign exchange contracts and currency protection agreements entered into with one
of more financial institutions and designed to protect the Person or any of its Restricted
Subsidiaries entering into the agreement against fluctuations in currency exchanges rates
with respect to Indebtedness incurred and not for purposes of speculation;




     (3) any commodity futures contract, commodity option or other similar agreement or
arrangement designed to protect against fluctuations in the price of oil, natural gas or
other commodities used, produced, processed or sold by that Person or any of its Restricted
Subsidiaries at the time; and




     (4) other agreements or arrangements designed to protect such Person or any of its
Restricted Subsidiaries against fluctuations in interest rates, commodity prices or currency
exchange rates.



     “Holder” or “Noteholder” means a Person in whose name a Note is registered.



     “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:




     (1) in respect of borrowed money;




     (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit
(or reimbursement agreements in respect thereof);




     (3) in respect of bankers’ acceptances;




     (4) representing Capital Lease Obligations;




     (5) representing the balance deferred and unpaid of the purchase price of any property,
except any such balance that constitutes an accrued expense or trade payable; or




     (6) representing any Hedging Obligations,



15









 




if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person) and, to the extent not otherwise included, the guarantee by the specified
Person of any Indebtedness of any other Person (including, with respect to any Production Payment,
any warranties or guarantees of production or payment by such Person with respect to such
Production Payment, but excluding other contractual obligations of such Person with respect to such
Production Payment). Subject to the preceding sentence, neither Dollar-Denominated Production
Payments nor Volumetric Production Payments shall be deemed to be Indebtedness.




     The amount of any Indebtedness outstanding as of any date will be:




     (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount;




     (2) in the case of any Hedging Obligation, the termination value of the agreement or
arrangement giving rise to such Hedging Obligation that would be payable by such Person at
such date; and




     (3) the principal amount of the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due, in the case of any other Indebtedness.



     “Investment Grade Rating” means a rating equal to or higher than “Baa3” or the equivalent) by
Moody’s and “BBB-” (or the equivalent) by S&P.



     “Initial Notes” means the Notes issued on the Issue Date, together with all other Notes issued
upon registration of transfer of, or in exchange for, such Notes.



     “Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including guarantees or other
obligations), advances or capital contributions (excluding commission, travel and similar advances
to officers and employees made in the ordinary course of business), purchases or other acquisitions
for consideration of Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of
the Company, the Company will be deemed to have made an Investment on the date of any such sale or
disposition in an amount equal to the fair market value of the Equity Interests of such Restricted
Subsidiary not sold or disposed of in an amount determined as provided in the final paragraph of
Section 4.07 of the Second Supplemental Indenture. The acquisition by the Company or any
Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed to
be an Investment made by the Company or such Subsidiary in such third Person in an amount equal to
the fair market value of the Investment held by the acquired Person in such third Person on the
date of any such acquisition in an amount



16









 





determined as provided in the final paragraph of Section
4.07 of the Second Supplemental Indenture.



     “Issue Date” means September 24, 2010.



     “Legal Holiday” means any calendar day other than a Business Day. If a payment date is a
Legal Holiday, payment may be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under Applicable Law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction other than a precautionary financing statement not
intended as a security agreement.



     “Material Change” means an increase or decrease (excluding changes that result solely from
changes in prices and changes resulting from the incurrence of previously estimated future
development costs) of more than 25% during a fiscal quarter in the discounted future net revenues
from proved crude oil and natural gas reserves of the Company and its Restricted Subsidiaries,
calculated in accordance with clause (1)(a) of the definition of ACNTA; provided, however, that the
following will be excluded from the calculation of Material Change:




     (1) any acquisitions during the fiscal quarter of oil and gas reserves that have been
estimated by independent petroleum engineers and with respect to which a report or reports
of such engineers exist; and




     (2) any disposition of properties existing at the beginning of such fiscal quarter that
have been disposed of in compliance with Section 4.10 of the Second Supplemental Indenture.



     “Material Domestic Subsidiary” means any one Domestic Subsidiary, or any group of two or more
Domestic Subsidiaries, that is not a Guarantor at the time of determination and that at such time
has either assets or quarterly revenues in excess of 3.0% of the consolidated assets or quarterly
revenues of the Company and its Restricted Subsidiaries, in each case based upon the most recent
quarterly financial statements available to the Company.



     “Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business
thereof.



     “Net Income” means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends, excluding, however:




     (1) any gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with: (a) any Asset Sale; or (b) the



17









 






disposition of
any securities by such Person or any of its Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Subsidiaries; and




     (2) any extraordinary gain (but not loss), together with any related provision for
taxes on such extraordinary gain (but not loss).



     “Net Proceeds” means the aggregate cash proceeds and Cash Equivalents received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation,
any cash or Cash Equivalents received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of:




     (1) the direct costs relating to such Asset Sale, including, without limitation, legal,
accounting and investment banking fees, and sales commissions, and any relocation expenses
incurred as a result of the Asset Sale,




     (2) taxes paid or payable as a result of the Asset Sale, in each case, after taking
into account any available tax credits or deductions and any tax sharing arrangements,




     (3) amounts required to be applied to the repayment of Indebtedness, other than under
the Credit Facilities, secured by a Lien on the properties or assets that were the subject
of such Asset Sale, and




     (4) any reserve for adjustment in respect of the sale price of such properties or
assets established in accordance with GAAP.



     “Net Working Capital” means:




     (1) all current assets of the Company and its Restricted Subsidiaries, minus




     (2) all current liabilities of the Company and its Restricted Subsidiaries, except
current liabilities included in Indebtedness;


in each case, on a consolidated basis and determined in accordance with GAAP.




     “Non-Recourse Debt” means Indebtedness:




     (1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise,
or (c) is the lender;




     (2) no default with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would
permit upon notice, lapse of time or both any holder of any other Indebtedness (other than
the Notes) of the Company or any of its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable
prior to its Stated Maturity; and



18









 






     (3) as to which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted Subsidiaries.



     “Notes” means the Initial Notes and the Additional Notes, treated as a single class.



     “Obligations” means any principal, premium, if any, interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization, whether or not a claim for
post-filing interest is allowed in such proceeding), penalties, fees, charges, expenses,
indemnifications, reimbursement obligations, damages, guarantees, and other liabilities or amounts
payable under the documentation governing any Indebtedness or in respect thereto.



     “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or any Vice
President of such Person.



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Company, that meets the requirements of
Section 102 hereof.



     “Oil and Gas Business” means:




     (1) the acquisition, exploration, development, operation and disposition of interests
in oil, natural gas and other hydrocarbon properties;




     (2) the gathering, marketing, treating, processing (but not refining), storage, selling
and transporting of any production from those interests; and




     (3) any activity necessary, appropriate or incidental to the activities described
above.



     “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 102 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.



     The term “outstanding,” when used with respect to the Notes, has the meaning provided in
Section 2.03 of the Second Supplemental Indenture.



     “Pari Passu Indebtedness” means, with respect to any Excess Proceeds from Asset Sales,
Indebtedness of the Company or any Guarantor that ranks equally in right of payment with the Notes
or the Subsidiary Guarantees, as the case may be, and the terms of which require the Company or
such Restricted Subsidiary to apply such Excess Proceeds to offer to repurchase such Indebtedness.



     “Permitted Business Investments” means Investments made in the ordinary course of, and of a
nature that is or shall have become customary in, the Oil and Gas Business, including



19









 




through
agreements, transactions, interests or arrangements that permit one to share risk or costs, comply
with regulatory requirements regarding local ownership or satisfy other objectives customarily
achieved through the conduct of the Oil and Gas Business jointly with third parties, including
without limitation:





     (1) direct or indirect ownership of crude oil, natural gas, other related hydrocarbon
and mineral properties or any interest therein or gathering, transportation, processing,
storage or related systems; and




     (2) the entry into operating agreements, joint ventures, processing agreements, working
interests, royalty interests, mineral leases, farm-in agreements, farm-out agreements,
development agreements, production sharing agreements, area of mutual interest agreements,
contracts for the sale, transportation or exchange of crude oil and natural gas and related
hydrocarbons and minerals, unitization agreements, pooling arrangements, joint bidding
agreements, service contracts, partnership agreements (whether general or limited), or other
similar or customary agreements, transactions, properties, interests or arrangements and
Investments and expenditures in connection therewith or pursuant thereto, in each case made
or entered into in the ordinary course of the Oil and Gas Business, excluding, however,
Investments in corporations and publicly-traded limited partnerships.



     “Permitted Investments” means:




     (1) any Investment in the Company or in a Restricted Subsidiary of the Company;




     (2) any Investment in Cash Equivalents;




     (3) any Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:




     (a) such Person becomes a Restricted Subsidiary of the Company; or




     (b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its properties or assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company;




     (4) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10 of the Second
Supplemental Indenture;




     (5) any Investment in any Person solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company;




     (6) any Investments received in compromise of obligations of trade creditors or
customers that were incurred in the ordinary course of business, including pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency of



20









 




any trade
creditor or customer, or as a result of foreclosure by the Company or any of its Restricted
Subsidiaries with respect to any secured Investment in default;





     (7) Hedging Obligations permitted to be incurred under Section 4.09 of the Second
Supplemental Indenture;




     (8) Permitted Business Investments;




     (9) Investments of a Restricted Subsidiary of the Company acquired after the Issue Date
or of a entity merged or consolidated with or into the Company or such Restricted Subsidiary
in a transaction that is not prohibited by the covenant described in Section 5.01 of the
Second Supplemental Indenture after the Issue Date to the extent that such Investments were
not made in contemplation of such acquisition, merger or consolidation and were in existence
on the date of such acquisition, merger or consolidation; and




     (10) other Investments in any Person having an aggregate fair market value (measured on
the date each such Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to this clause (10)
that are at the time outstanding, not to exceed the greater of (a) $50.0 million and (b)
2.5% of ACNTA.



     “Permitted Junior Securities” means:




     (1) Equity Interests in the Company or any Guarantor; or




     (2) debt securities that are subordinated to all Senior Debt and any debt securities
issued in exchange for Senior Debt to substantially the same extent as, or to a greater
extent than, the Notes and the Subsidiary Guarantees are subordinated to Senior Debt
pursuant to this Indenture.



     “Permitted Liens” means:




     (1) Liens securing any Indebtedness under any of the Credit Facilities or any other
Senior Debt;




     (2) Liens in favor of the Company or the Guarantors;




     (3) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Company or any Restricted Subsidiary of the Company, provided
that such Liens were in existence prior to the contemplation of such merger or consolidation
and do not extend to any assets other than those of the Person merged into or consolidated
with the Company or the Restricted Subsidiary;




     (4) Liens on property (including Capital Stock) existing at the time of acquisition of
the property by the Company or any Restricted Subsidiary of the Company, provided that such
Liens were in existence prior to the contemplation of such acquisition;



21









 






     (5) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
clause (4) of the second paragraph of Section 4.09 of the Second Supplemental Indenture
covering only the assets acquired with such Indebtedness and proceeds and products thereof;




     (6) Liens existing on the Issue Date; and




     (7) Liens incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations that do not exceed, at the time of
incurrence of such Lien, the greater of (a) $50.0 million and (b) 2.5% of ACNTA at any one
time outstanding.



     “Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:




     (1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded (plus all accrued interest on the Indebtedness and the amount of all expenses and
premiums incurred in connection therewith);




     (2) such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;




     (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes or the Subsidiary Guarantees, such
Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes or the
Subsidiary Guarantees on terms at least as favorable to the Noteholders as those contained
in the documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and




     (4) such Indebtedness is not incurred by a Restricted Subsidiary of the Company if the
Company is the obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; provided, however, that a Restricted Subsidiary that is also a
Guarantor may guarantee Permitted Refinancing Indebtedness incurred by the Company, whether
or not such Restricted Subsidiary was an obligor or guarantor of the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.


Notwithstanding the preceding, any Indebtedness incurred under Credit Facilities pursuant to
Section 4.09 of the Second Supplemental Indenture shall be subject only to the refinancing
provision in the definition of Credit Facilities and not pursuant to the requirements set forth in
the definition of Permitted Refinancing Indebtedness.





22









 








     “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.



     “Production Payments” means, collectively, Dollar-Denominated Production Payments and
Volumetric Production Payments.



     “Representative” means the trustee, agent or other representative expressly authorized to act
in such capacity with respect to any issue of Senior Debt.



     “Responsible Officer” means, with respect to the Trustee, any officer assigned to the
Corporate Trust Division — Corporate Finance Unit (or any successor division or unit) of the
Trustee located at the Corporate Trust Office of the Trustee having direct responsibility for the
administration of this Indenture or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject.



     “Restricted Investment” means an Investment other than a Permitted Investment.



     “Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an
Unrestricted Subsidiary.



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.,
or any successor to the rating agency business thereof.



     “sale and leaseback transaction” means an arrangement relating to property owned by the
Company or a Restricted Subsidiary on the Issue Date or thereafter acquired by the Company or a
Restricted Subsidiary whereby the Company or a Restricted Subsidiary transfers such property to a
Person and the Company or a Restricted Subsidiary leases it from such Person.



     “Second Supplemental Indenture” means this Second Supplemental Indenture, dated as of the
Issue Date, among the Company, the Guarantor named on the signature page thereof and the Trustee
relating to the Notes, as it may be amended from time to time in accordance with the Indenture.



     “SEC” or “Commission” means the Securities and Exchange Commission.



     “Senior Debt” means




     (1) all Indebtedness of the Company or any of its Restricted Subsidiaries outstanding
under Credit Facilities and all Hedging Obligations with respect thereto;




     (2) any other Indebtedness of the Company or any of its Restricted Subsidiaries
permitted to be incurred under the terms of this Indenture, unless the instrument under
which such Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Notes or any Subsidiary Guarantee; and



23









 






     (3) all Obligations with respect to the items listed in the preceding clauses (1) and
(2).



     Notwithstanding anything to the contrary in the preceding sentence, Senior Debt will not
include:




	 	(a)	 	any intercompany Indebtedness of the Company or any of its Subsidiaries to the
Company or any of its Affiliates;
	 
	 	(b)	 	the 2014 Notes; or
	 
	 	(c)	 	any Indebtedness that is incurred in violation of this Indenture.




For the avoidance of doubt, “Senior Debt” will not include any trade payables or taxes owed or
owing by the Company or any Restricted Subsidiary.




     “Senior Subordinated Debt” of the Company means the Notes, the 2014 Notes and any other
subordinated Indebtedness of the Company that specifically provides that such Indebtedness is to
rank equally in right of payment with the Notes and is not subordinated by its terms to any other
Indebtedness of the Company that is not Senior Debt. Senior Subordinated Debt of a Guarantor has a
correlative meaning and includes its guarantee of the 2014 Notes.



     “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the Issue Date.



     “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.



     “Subsidiary” means, with respect to any specified Person:




     (1) any corporation, association or other business entity (other than a partnership) of
which more than 50% of the total voting power of Voting Stock is at the time owned or
controlled, directly or through another Subsidiary, by that Person or one or more of the
other Subsidiaries of that Person (or a combination thereof); and




     (2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any combination
thereof), but only if such Person and its Subsidiaries are entitled to receive more than 20%
of the assets of such partnership upon its dissolution.



     “Subsidiary Guarantees” means the joint and several guarantees issued by all of the Guarantors
pursuant to Article 10 of the Second Supplemental Indenture.



24









 





     “TIA” means the Trust Indenture Act.



     “Treasury Rate” means the yield to maturity at the time of computation of the United States
Treasury securities with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) that has become publicly available at least two business
days prior to the Redemption Date (or, if such Statistical Release is no longer published, any
publicly available source or similar market data)) most nearly equal to the period from the
Redemption Date to October 1, 2014; provided, however, that if the period from the Redemption Date
to October 1, 2014 is not equal to the constant maturity of a United States Treasury security for
which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the period from the Redemption
Date to October 1, 2014 is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall be used.



     “Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to
time.



     “Unrestricted Subsidiary” means any Subsidiary of the Company (other than Whiting) that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution,
but only to the extent that such Subsidiary:




     (1) has no Indebtedness other than Non-Recourse Debt;




     (2) is not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons who are not
Affiliates of the Company;




     (3) is a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such Person’s financial condition or to cause such
Person to achieve any specified levels of operating results; and




     (4) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries.



     Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee the Board Resolution giving effect to such designation
and an Officers’ Certificate certifying that such designation complied with the preceding
conditions and was permitted by Section 4.07 of the Second Supplemental Indenture. If, at any
time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date and, if such Indebtedness is not permitted




25











 




to be incurred as of such date under Section 4.09 of the Second Supplemental Indenture, the
Company will be in default of such covenant.




     “Volumetric Production Payments” means production payment obligations recorded as deferred
revenue in accordance with GAAP, together with all related undertakings and obligations.



     “Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at
the time entitled (without regard to the occurrence of any contingency) to vote in the election of
the Board of Directors of such Person.



     “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:




     (1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by




     (2) the then outstanding principal amount of such Indebtedness.



     “Whiting” means Whiting Oil and Gas Corporation, a Delaware corporation, and its successors.



     “2014 Notes” means the Company’s 7% Senior Subordinated Notes due 2014 or any guarantees
thereof that are outstanding on the Issue Date.


Section 1.02. Other Definitions.




	 	 	 
	Term	 	Defined in Section
	“Affiliate Transaction”
	 	4.11
	“Asset Sale Offer”
	 	3.04
	“Change of Control Offer”
	 	4.15
	“Change of Control Payment”
	 	4.15
	“Change of Control Purchase Date”
	 	4.15
	“Change of Control Settlement Date”
	 	4.15
	“Covenant Defeasance”
	 	8.03
	“Discharge”
	 	8.08
	“Event of Default”
	 	6.01
	“Excess Proceeds”
	 	4.10
	“incur”
	 	4.09
	“Legal Defeasance”
	 	8.02
	“Offer Amount”
	 	3.04
	“Offer Period”
	 	3.04
	“Payment Blockage Notice”
	 	12.03
	“Payment Default”
	 	6.01
	“Permitted Debt”
	 	4.09
	“Restricted Payments”
	 	4.07
	“Settlement Date”
	 	3.04
	“Subsidiary Guarantee Payment Blockage Notice”
	 	13.03
	“Termination Date”
	 	3.04






26









 





Section 1.03. Rules of Construction.




     Unless the context otherwise requires, in construing this Second Supplemental Indenture:




     (1) a term has the meaning assigned to it herein or, if not assigned herein, then in
the Original Indenture;




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (3) “or” is not exclusive;




     (4) words in the singular include the plural, and in the plural include the singular;




     (5) provisions apply to successive events and transactions;




     (6) references to sections of or rules under the Securities Act or the Exchange Act
shall be deemed to include substitute, replacement or successor sections or rules adopted by
the SEC from time to time; and




     (7) “herein,” “hereof” and other words of similar import refer to this Second
Supplemental Indenture as a whole (as amended or supplemented from time to time) and not to
any particular Article, Section or other subdivision, and references to specific Sections,
Articles or other subdivisions without contrary reference shall refer to Sections, Articles
or subdivisions of the Second Supplemental Indenture, as applicable.



ARTICLE 2

THE NOTES




Section 2.01. Creation and Form.




     Pursuant to Sections 201 and 301 of the Original Indenture, there is hereby created a new
series of Securities designated as the “61/2% Senior Subordinated Notes due 2018” (which are herein
referred to as the “Notes” for purposes of this Second Supplemental Indenture). The Notes shall be
substantially in the form specified in Exhibit A to this Second Supplemental Indenture, shall have
the terms set forth therein and shall be entitled to the benefits of the other provisions of the
Original Indenture as modified by this Second Supplemental Indenture and specified herein.



27









 




Section 2.02. Execution and Authentication.




     On the Issue Date, the Trustee shall authenticate and deliver $350,000,000 of Initial Notes
and, at any time and from time to time thereafter, the Trustee shall authenticate and deliver
Additional Notes for original issue, in each case upon the Trustee’s receipt of a Company Order in
accordance with Section 303 of the Original Indenture. Such order shall specify the aggregate
principal amount of the Notes to be authenticated and the date on which the original issue of Notes
is to be authenticated and, in the case of an issuance of Additional Notes pursuant to Section 2.05
of this Second Supplemental Indenture after the Issue Date, shall certify that such issuance is in
compliance with such Section 2.05 and Section 4.09 hereof. The Notes shall be issued initially in
the form of Global Securities, for which The Depository Trust Company shall act as Depositary.
Notes in the form of Global Securities shall bear the legends set forth on the form of Note
attached hereto.


Section 2.03. Outstanding Notes.




     Notes outstanding at any time are all Notes authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in this Section as not
outstanding. Except as otherwise provided in TIA §316(a), a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.



     If a Note is replaced pursuant to Section 306 of the Original Indenture, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced
Note is held by a bona fide purchaser.



     If the Paying Agent segregates and holds in trust, in accordance with the Indenture, by 11:00
a.m. New York time, on a Redemption Date or other maturity date money sufficient to pay all
principal, premium, if any, and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or otherwise maturing, as the case may be, then on and after that
date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to
accrue.


Section 2.04. CUSIP Numbers.




     The Company in issuing the Notes may use “CUSIP” numbers and corresponding “ISINs” (if then
generally in use) and, if so, the Trustee shall use “CUSIP” numbers and corresponding “ISINs” in
notices of redemption as a convenience to Holders; provided, however, that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the
Notes or as contained in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers.


Section 2.05. Issuance of Additional Notes.




     The Company shall be entitled, subject to its compliance with Section 4.09 of this Second
Supplemental Indenture, to issue Additional Notes under the Indenture which shall have identical
terms as the Initial Notes issued on the Issue Date, other than with respect to the date of
issuance and issue price; provided, however, that no Additional Notes may be issued at a price that
would



28









 




cause such Additional Notes to have “original issue discount” within the meaning of Section
1273 of the Code. The Initial Notes issued on the Issue Date and any Additional Notes shall be
treated as a single class for all purposes under the Indenture.




ARTICLE 3

REDEMPTION AND PURCHASE



Section 3.01. Redemption and Purchase.




     The Notes shall be subject to redemption and purchase by the Company pursuant to the
provisions of Article Eleven of the Original Indenture and this Article 3.


Section 3.02. Optional Redemption.




     (a) Except as set forth in clauses (b) and (c) of this Section 3.02 or in Section 4.15 of the
Second Supplemental Indenture, the Company shall not have the option to redeem the Notes prior to
October 1, 2014. On and after October 1, 2014, the Company may on any one or more occasions redeem
the Notes, in whole or in part, at the Redemption Prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest, if any, to the applicable Redemption
Date (subject to the right of Holders of record on the relevant record date to receive interest due
on an Interest Payment Date that is on or prior to the Redemption Date), if redeemed during the
twelve-month period beginning on October 1 of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage	 
	2014
	 	 	103.250	%
	2015
	 	 	101.625	%
	2016 and thereafter
	 	 	100.000	%






     (b) Notwithstanding the provisions of clause (a) of this Section 3.02, at any time prior to
October 1, 2013, the Company may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes (including any Additional Notes) issued under the Indenture at a
Redemption Price of 106.500% of the principal amount thereof, plus accrued and unpaid interest, if
any, to the Redemption Date (subject to the right of Holders of record on the relevant record date
to receive interest due on an Interest Payment Date that is on or prior to the Redemption Date),
with the net cash proceeds of one or more Equity Offerings, provided that:




     (1) at least 65% of the aggregate principal amount of Notes (including any Additional
Notes) issued under the Indenture remains outstanding immediately after the occurrence of
each such redemption; and




     (2) each such redemption occurs within 120 days of the date of the closing of each such
Equity Offering.



     (c) Notwithstanding the provisions of clause (a) of this Section 3.02, at any time prior to
October 1, 2014, the Company may on any one or more occasions redeem the Notes, in whole or in
part, at the Redemption Price of 100% of the principal amount thereof plus the Applicable Premium
as of, plus accrued and unpaid interest, if any, to, the Redemption Date (subject to the



29









 




right of Holders of record on the relevant record date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date).




          The Company shall determine any Applicable Premium and shall notify the Trustee thereof in
writing at least two Business Days in advance of the payment date thereof. The Trustee shall have
no responsibility for any calculation of any such amounts and may rely conclusively on the
Company’s determinations thereof.



Section 3.03. Mandatory Redemption.




     Except as set forth under Sections 4.10 and 4.15 hereof, the Company shall not be required to
make mandatory redemption or sinking fund payments with respect to the Notes or to repurchase the
Notes at the option of the Holders.


Section 3.04. Offer to Purchase by Application of Excess Proceeds.




     In the event that, pursuant to Section 4.10 hereof, the Company shall be required to commence
an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it shall follow the procedures
specified below.



     The Asset Sale Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is required by Applicable Law
(the “Offer Period”). No later than five Business Days after the termination of the Offer Period
(the “Settlement Date”), the Company shall purchase and pay for the principal amount of Notes
required to be purchased pursuant to Section 4.10 hereof (the “Offer Amount”) or, if less than the
Offer Amount has been tendered, all Notes validly tendered in response to the Asset Sale Offer.
Payment for any Notes so purchased shall be made in the manner prescribed in the Notes.



     Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a
notice to each of the Holders, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset
Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the
terms of the Asset Sale Offer, shall state:




     (a) that the Asset Sale Offer is being made pursuant to this Section 3.04 and Section
4.10 hereof and the length of time the Asset Sale Offer shall remain open, including the
time and date the Asset Sale Offer will terminate (the “Termination Date”);




     (b) the Offer Amount and the purchase price;




     (c) that any Note not tendered or accepted for payment shall continue to accrue
interest;




     (d) that, unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Settlement
Date;



30









 






     (e) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
only elect to have all of such Note purchased and may not elect to have only a portion of
such Note purchased;




     (f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer
shall be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed, to the Company or a Paying Agent at the
address specified in the notice, before the Termination Date;




     (g) that Holders shall be entitled to withdraw their election if the Company or the
Paying Agent, as the case may be, receives, prior to the Termination Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;




     (h) that, if the aggregate principal amount of Notes surrendered by Holders, and Pari
Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount the
Company is required to repurchase, the Trustee shall select the Notes and Pari Passu
Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal
amount of tendered Notes and Pari Passu Indebtedness (with such adjustments as may be deemed
appropriate by the Trustee so that only Notes in denominations of equal to $2,000 or any
integral $1,000 multiple in excess thereof, shall be purchased); and




     (i) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).



     If any of the Notes subject to an Asset Sale Offer is in the form of a Global Note, then the
Company shall modify such notice to the extent necessary to accord with the procedures of the
Depository applicable to repurchases.



     Promptly after the Termination Date, the Company shall, to the extent lawful, accept for
payment Notes or portions thereof tendered pursuant to the Asset Sale Offer in the aggregate
principal amount required by Section 4.10 hereof, and prior to the Settlement Date it shall deliver
to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of this Section 3.04 and Section 4.10
hereof. On the Settlement Date, the Company or the Paying Agent, as the case may be, shall mail or
deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall issue a new Note, and
the Trustee shall authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Asset Sale Offer on or before the Settlement Date.



31









 





ARTICLE 4

COVENANTS




     Except for Section 1003, the provisions of Article Ten of the Original Indenture shall not
apply to the Notes, and in lieu thereof the following provisions of this Article 4 shall apply to
the Notes.


Section 4.01. Payment of Notes.




     The Company shall pay or cause to be paid the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other than the Company or
a Guarantor, holds as of 11:00 a.m. New York time on the due date money deposited by the Company
or a Guarantor in immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.



     The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to the interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace
period), at the same rate to the extent lawful.


Section 4.02. Maintenance of Office or Agency.




     The Company shall maintain an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee) where Notes may be presented or surrendered for payment and where notices
and demands to or upon the Company in respect of the Notes and the Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee.



     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations. Further, if at any time there shall be no such office or agency in the
City of New York where the Notes may be presented or surrendered for payment, the Company shall
forthwith designate and maintain such an office or agency in the City of New York, in order that
the Notes shall at all times be payable in the City of New York. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.



     The Company hereby appoints the Trustee as Paying Agent and designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company in accordance with Section 301 of
the Original Indenture.



32









 




Section 4.03. Reports.




     (a) Notwithstanding that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, so long as any Notes are outstanding, the Company will
file with the SEC (unless the SEC will not accept such a filing) for public availability within the
time periods specified in the SEC’s rules and regulations under the Exchange Act and, within 10
Business Days of filing, or attempting to file, the same with the SEC, furnish to the Trustee and,
upon its request, to any of the Holders of the Notes:




     (1) all quarterly and annual financial and other information with respect to the
Company and its Subsidiaries that would be required to be contained in a filing with the SEC
on Forms 10-Q and 10-K if the Company were required to file such forms, including a
“Management’s Discussion and Analysis of Financial Condition and Results of Operations” and,
with respect to the annual information only, a report thereon by the Company’s certified
independent accountants; and




     (2) all current reports that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports.



The Company shall at all times comply with TIA § 314(a).



     (b) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then
the quarterly and annual financial information required by paragraph (a) of this Section 4.03 shall
include a reasonably detailed presentation, either on the face of the financial statements or in
the footnotes to the financial statements and in Management’s Discussion and Analysis of Financial
Condition and Results of Operations, of the financial condition and results of operations of the
Company and its Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries.


Section 4.04. Compliance Certificate.




     (a) The Company shall deliver to the Trustee, within 90 days after the end of each fiscal
year, an Officers’ Certificate stating that a review of the activities of the Company and its
Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under the Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his or her knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in the Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions of the Indenture (or,
if a Default or Event of Default with respect to the Notes shall have occurred,
describing all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and that to the best of
his or her knowledge no event has occurred and remains in existence by reason of which payments of
interest on the Notes are prohibited or if such event has occurred, a description of the event and
what action the Company is taking or proposes to take with respect thereto.



     (b) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default with



33









 




respect to the
Notes, an Officers’ Certificate specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect thereto.



Section 4.05. Taxes.




     The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.


Section 4.06. Stay, Extension and Usury Laws.




     Each of the Company and each of the Guarantors covenants (to the extent that it may lawfully
do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of the Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.


Section 4.07. Limitation on Restricted Payments.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly:




     (1) declare or pay any dividend or make any other payment or distribution on account of
the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving the Company
or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s
or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other than Disqualified Stock)
of the Company or payable to the Company or a Restricted Subsidiary of the Company);




     (2) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company;




     (3) make any principal payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or
the Subsidiary Guarantees prior to any scheduled repayment or scheduled maturity, except a
payment, purchase, redemption, defeasance or other acquisition of any such Indebtedness in
anticipation of satisfying a sinking fund obligation, principal installment or the Stated
Maturity thereof, in each case, due within one year of the date of such payment, purchase,
redemption, defeasance or other acquisition; or



34









 






     (4) make any Restricted Investment (all such payments and other actions set forth in
these clauses (1) through (4) above being collectively referred to as “Restricted
Payments”),




unless, at the time of and after giving effect to such Restricted Payment:




     (1) no Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment;




     (2) the Company would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09; and




     (3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after May 11, 2004 (excluding
Restricted Payments permitted by clauses (2), (3), (4), (6) and (7) of the next succeeding
paragraph), is less than the sum, without duplication, of:




     (a) 50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from April 1, 2004 to the end of the Company’s most recently
ended fiscal quarter for which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit), plus




     (b) 100% of the aggregate net cash proceeds received by the Company (including
the fair market value of any Additional Assets to the extent acquired in
consideration of Equity Interests of the Company (other than Disqualified Stock))
since May 11, 2004 as a contribution to its common equity capital or from the issue
or sale of Equity Interests of the Company (other than Disqualified Stock) or from
the issue or sale of convertible or exchangeable Disqualified Stock or convertible
or exchangeable debt securities of the Company that have been converted into or
exchanged for such Equity Interests (other than Equity Interests
(or Disqualified Stock or debt securities) sold to a Subsidiary of the Company),
plus




     (c) to the extent that any Restricted Investment that was made after May 11,
2004 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i)
the cash return of capital with respect to such Restricted Investment (less the cost
of disposition, if any) and (ii) the initial amount of such Restricted Investment,
plus




     (d) to the extent that any Unrestricted Subsidiary of the Company is
redesignated as a Restricted Subsidiary after May 11, 2004, the lesser of (i) the
fair market value of the Company’s Investment in such Subsidiary as of the date



35









 







of
such redesignation or (ii) such fair market value as of the date on which such
Subsidiary was originally designated as an Unrestricted Subsidiary.



     The preceding provisions will not prohibit:




     (1) the payment of any dividend or distribution or the consummation of any irrevocable
redemption of debt that is subordinate to the Notes, within 60 days after the date of
declaration of such dividend or the delivery of any irrevocable notice of redemption, as the
case may be, if the dividend, distribution or redemption payment on the date of declaration
or the date of the notice or redemption, as the case may be, would have complied with the
provisions of the Indenture;




     (2) the redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the
Company in exchange for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other
than Disqualified Stock), with a sale being deemed substantially concurrent if such
redemption, repurchase, retirement, defeasance or acquisition occurs not more than 120 days
after such sale; provided that the amount of any such net cash proceeds that are utilized
for any such redemption, repurchase, retirement, defeasance or other acquisition will be
excluded from clause (3)(b) of the preceding paragraph;




     (3) the defeasance, redemption, repurchase, retirement or other acquisition of
subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an
incurrence of, or in exchange for, Permitted Refinancing Indebtedness;




     (4) the payment of any dividend or distribution by a Restricted Subsidiary of the
Company to the holders of its Equity Interests on a pro rata basis;




     (5) the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company held by any
current or former director, officer, employee or consultant of the Company or any of its
Restricted Subsidiaries pursuant to any equity subscription agreement or plan, stock option
agreement or similar agreement or plan; provided that the aggregate price paid for
all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $2.0
million in any twelve-month period;




     (6) the acquisition of Equity Interests by the Company in connection with the exercise
of stock options or stock appreciation rights by way of cashless exercise;




     (7) the payment of cash in lieu of fractional shares of Capital Stock in connection
with any transaction otherwise permitted under this Section 4.07; or




     (8) other Restricted Payments in an aggregate amount since May 11, 2004 not to exceed
$25.0 million;



36









 




provided, however, that at the time of, and after giving effect to, any Restricted Payment
permitted under the preceding clause (8), no Default or Event of Default shall have occurred and be
continuing or would be caused thereby.




     The amount of all Restricted Payments (other than cash) will be the fair market value on the
date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued
by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any assets or securities that are required to be valued by this
covenant will be determined, in the case of amounts under $25.0 million, by an officer of the
Company and, in the case of amounts over $50.0 million, by the Board of Directors of the Company,
whose determination shall be evidenced by a Board Resolution. Not later than the date of making
any Restricted Payment (excluding any Restricted Payment described in the preceding clause (2),
(3), (4), (6) or (7)) the Company will deliver to the Trustee an Officers’ Certificate stating that
such Restricted Payment is permitted and setting forth the basis upon which the calculations
required by this Section 4.07 were computed. For purposes of determining compliance with this
Section 4.07, in the event that a Restricted Payment meets the criteria of more than one of the
categories of Restricted Payments described in the preceding clauses (1) through (8), or is
entitled to be made pursuant to the first paragraph of this Section 4.07, the Company will be
permitted to divide or classify (or later divided or classify or reclassify in whole or in part in
its sole discretion) such Restricted Payment in any manner that complies with this Section 4.07.


Section 4.08. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to:




     (1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or pay any Indebtedness or other obligations owed to
the Company or any of its Restricted Subsidiaries;




     (2) make loans or advances to the Company or any of its Restricted Subsidiaries; or




     (3) transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.



     However, the preceding restrictions of this Section 4.08 will not apply to encumbrances or
restrictions existing under or by reason of:




     (1) agreements governing Existing Indebtedness and Credit Facilities as in effect on
the Issue Date and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of those agreements, provided that the
amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are not materially more restrictive, taken as a whole, with
respect to such dividend, distribution and other payment



37









 







restrictions than those contained
in those agreements on the Issue Date as determined in good faith by the Company;




     (2) the Indenture, the Notes and the Subsidiary Guarantees;




     (3) Applicable Law;




     (4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition,
which encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the Person, so
acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by the
terms of the Indenture to be incurred, and any amendments, restatements, modifications,
renewals, supplements, refundings, replacements or refinancings of those agreements;
provided that the amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings are not materially more restricted, taken as a
whole, with respect to such dividend and other payment restrictions than those contained in
those agreements on the date of such acquisition as determined in good faith by the Company;




     (5) customary non-assignment provisions in leases entered into in the ordinary course
of business and consistent with past practices;




     (6) Capital Lease Obligations or purchase money obligations, in each case for property
acquired in the ordinary course of business that impose restrictions on that property of the
nature described in clause (3) of the preceding paragraph;




     (7) any agreement for the sale or other disposition of a Restricted Subsidiary of the
Company that restricts distributions by that Restricted Subsidiary pending its sale or other
disposition;




     (8) Permitted Refinancing Indebtedness, provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are not materially more
restrictive, taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced as determined in good faith by the Company;




     (9) Liens securing Indebtedness otherwise permitted to be incurred under the provisions
of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject
to such Liens;




     (10) provisions with respect to the disposition or distribution of assets or property
in joint venture agreements, asset sale agreements, stock sale agreements, agreements
respecting Permitted Business Investments and other similar agreements entered into (a) in
the ordinary course of business or (b) with the Company’s approval by its Board of
Directors, which limitation is applicable only to property or capital stock that are subject
to such agreements;



38









 






     (11) restrictions on cash, Cash Equivalents or other deposits or net worth imposed by
customers or suppliers under contracts entered into in the ordinary course of business; and




     (12) restrictions on the sale, lease or transfer of property or assets arising or
agreed to in the ordinary course of business, not relating to any Indebtedness, and that do
not, individually or in the aggregate, detract from the value of property or assets of the
Company or any Restricted Subsidiary in any manner material to the Company and the
Restricted Subsidiaries taken as a whole; and




     (13) Hedging Obligations permitted to be incurred under the covenants set forth in
Section 4.09 hereof.


Section 4.09. Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness
(including Acquired Debt), neither the Company nor any Guarantor will issue any Disqualified Stock,
and the Company will not permit any of its other Restricted Subsidiaries to issue any shares of
preferred stock; provided, however, that the Company and any Guarantor may incur Indebtedness
(including Acquired Debt) or issue Disqualified Stock, if the Fixed Charge Coverage Ratio for the
Company’s most recently ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been at least 2.0 to 1.0, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred or Disqualified Stock had been issued, as the case may be, at the
beginning of such four-quarter period.



     The first paragraph of this Section 4.09 will not prohibit the incurrence of any of the
following items of Indebtedness (collectively, “Permitted Debt”):




     (1) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness (including letters of credit) under one or more Credit Facilities in an
aggregate principal amount at any one time outstanding under this clause (1) (with
letters of credit being deemed to have a principal amount equal to the maximum potential
liability of the Company and its Subsidiaries thereunder) not to exceed an amount equal to
the greater of (a) $1.1 billion and (b) 30% of ACNTA as of the date of such incurrence;




     (2) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing
Indebtedness;




     (3) the incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes issued and sold on the Issue Date and the related Subsidiary Guarantees issued on the
Issue Date;



39









 






     (4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any part of the purchase price or
cost of design, construction, installation or improvement of property, plant or equipment
used in the business of the Company or such Restricted Subsidiary, in an aggregate principal
amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to
renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant
to this clause (4), not to exceed $the greater of (a) $25.0 million and (b) 1.0% of ACNTA as
of the date of such incurrence at any time outstanding;




     (5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted
by the Indenture to be incurred under the first paragraph of this Section 4.09 or clause (2)
or (3) of this paragraph or this clause (5);




     (6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided,
however, that:




     (a) if the Company is the obligor on such Indebtedness and a Guarantor is not
the obligee, such Indebtedness must be expressly subordinated to the prior payment
in full in cash of all Obligations with respect to the Notes, or if a Guarantor is
the obligor on such Indebtedness and neither the Company nor another Guarantor is
the obligee, such Indebtedness must be expressly subordinated to the prior payment
in full in cash of all Obligations with respect to the Subsidiary Guarantee of such
Guarantor; and




     (b) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of
the Company will be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the
case may be, that was not permitted by this clause (6);




     (7) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations;




     (8) the guarantee by the Company or any of the Guarantors of Indebtedness of the
Company or any Guarantor that was permitted to be incurred by another provision of this
Section 4.09;




     (9) the incurrence by the Company or any of its Restricted Subsidiaries of obligations
relating to net gas balancing positions arising in the ordinary course of business and
consistent with past practice;



40









 






     (10) the incurrence by the Company’s Unrestricted Subsidiaries of Non-Recourse Debt,
provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an
Unrestricted Subsidiary, such event will be deemed to constitute an incurrence of
Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause
(10);




     (11) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of bid, performance, surety and similar bonds issued for the account
of the Company and any of its Restricted Subsidiaries in the ordinary course of business,
including guarantees and obligations of the Company and any of its Restricted Subsidiaries
with respect to letters of credit supporting such obligations (in each case other than an
obligation for money borrowed);




     (12) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries
providing for indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition of any business, assets or
Capital Stock of a Subsidiary, provided that the maximum aggregate liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds actually received by the
Company and its Restricted Subsidiaries in connection with such disposition;




     (13) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is promptly extinguished;




     (14) Indebtedness arising in connection with endorsement of instruments for deposit in
the ordinary course of business;




     (15) Indebtedness owed on a short-term basis to banks and other financial institutions
incurred in the ordinary course of business of the Company and any Restricted Subsidiary
with such banks or financial institutions that arises in connection
with ordinary banking arrangements to manage cash balances of the Company and any Restricted
Subsidiary;




     (16) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired
Debt in connection with a transaction meeting either of the financial tests set forth in
clause (4) under Section 5.01 hereof; and




     (17) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time
outstanding, not to exceed $75.0 million.



     For purposes of determining compliance with this Section 4.09, in the event that an item of
Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of
Permitted Debt described in clauses (1) through (17) above, or is entitled to be incurred pursuant
to the first paragraph of this Section 4.09, the Company will be permitted to divide and



41









 







classify (or later divide, classify, re-divide or reclassify in whole or in part in its sole discretion)
such item of Indebtedness in any manner that complies with this covenant, except that any
indebtedness under Credit Facilities on the Issue Date (after giving effect to the offering of
Initial Notes and the application of the proceeds thereof contemplated by the prospectus relating
to such offering) shall be considered incurred under the first paragraph of this Section 4.09.



     The accrual of interest, the accretion or amortization of original issue discount, the payment
of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount
thereof is included in Fixed Charges of the Company as accrued. Notwithstanding any other
provision of this covenant, the maximum amount of Indebtedness that the Company or any Restricted
Subsidiary may incur pursuant to this covenant shall not be deemed exceeded solely as a result of
fluctuations in exchange rates or currency values.


Section 4.10. Limitation on Asset Sales.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an
Asset Sale unless:




     (1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the fair market value of the
assets or Equity Interests issued or sold or otherwise disposed of;




     (2) the fair market value is determined by the Company’s Board of Directors and
evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate
delivered to the Trustee; and




     (3) at least 75% of the consideration received in the Asset Sale by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this
provision, each of the following will be deemed to be cash or Cash Equivalents:




     (a) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s
most recent balance sheet, of the Company or any Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes or any
Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant
to a novation agreement that releases the Company or such Subsidiary from further
liability; and




     (b) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are converted by the Company or
such Subsidiary into cash within 180 days of the receipt thereof, to the extent of
the cash received in that conversion.



42









 





     Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any
such Restricted Subsidiary may apply those Net Proceeds at its option to any combination of the
following:



     (I) to prepay, repay, redeem or repurchase Senior Debt or the Notes or other Indebtedness
ranking on parity with the Notes;



     (II) to acquire all or substantially all of the properties or assets of one or more other
Persons primarily engaged in the Oil and Gas Business, and, for this purpose, a division or line of
business of a Person shall be treated as a separate Person;



     (III) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged
in the Oil and Gas Business;



     (IV) to make one or more capital expenditures; or



     (V) to acquire other long-term assets that are used or useful in the Oil and Gas Business.



     Pending the final application of any Net Proceeds, the Company or any such Restricted
Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds
in any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are
not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.”



     On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the
aggregate amount of Excess Proceeds then exceeds $50.0 million, the Company will make an Asset Sale
Offer to all Holders of Notes, and to all holders of Pari Passu Indebtedness then outstanding, to
purchase the maximum principal amount of Notes and such Pari Passu Indebtedness that may be
purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to
100% of the principal amount plus accrued and unpaid interest, if any, to the Settlement Date,
subject to the right of Holders of record on the relevant record date to receive interest due on an
Interest Payment Date that is on or prior to the Settlement Date, and will be payable in cash. If
any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those
Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes and Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the
Notes and such Pari Passu Indebtedness to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 or any
integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds will be reset at zero.



     The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
this Section 4.10, the Company will comply with the applicable securities laws and regulations



43









 







and will not be deemed to have breached its obligations under such provisions by virtue of such
conflict.


Section 4.11. Limitation on Transactions with Affiliates.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate
(each, an “Affiliate Transaction”) involving aggregate consideration in excess of $1.0 million,
unless:




     (1) the Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in
the good faith judgment of the Company’s Board of Directors, no comparable transaction is
available with which to compare such Affiliate Transaction, such Affiliate Transaction is
otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point
of view; and




     (2) the Company delivers to the Trustee:




     (a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $30.0 million, a
resolution of the Board of Directors set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with this Section 4.11 and that
such Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors; and




     (b) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $50.0 million, a written
opinion as to the fairness to the Holders of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment banking
firm of national standing.



     The following items will not be deemed to be Affiliate Transactions and, therefore, will not
be subject to the provisions of the prior paragraph of this Section 4.11:




     (1) any employment, severance or consulting agreement or other compensation agreement,
arrangement or plan, or any amendment thereto, entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business;




     (2) transactions between or among any of the Company and its Restricted Subsidiaries;




     (3) transactions with a Person that is an Affiliate of the Company solely because the
Company owns an Equity Interest in such Person;



44









 






     (4) payment of reasonable directors’ fees, consulting fees and other benefits to
persons who are not otherwise Affiliates of the Company;




     (5) provision of officers’ and directors’ indemnification and insurance in the ordinary
course of business to the extent permitted by law;




     (6) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the
Company;




     (7) Permitted Investments and Restricted Payments that are permitted by Section 4.07
hereof;




     (8) any transaction in which the Company or its Restricted Subsidiaries, as the case
may be, deliver to the Trustee a letter from an accounting, appraisal or investment banking
firm of national standing stating that such transaction is fair to the Company or its
Restricted Subsidiary from a financial point of view or that such transaction meets the
requirements of clause (1) of the initial paragraph above;




     (9) transactions with Unrestricted Subsidiaries, Affiliates, customers, clients,
suppliers or purchasers or sellers of goods or services, or lessors or lessees of property,
in each case in the ordinary course of business and otherwise in compliance with the terms
of the indenture which are, in the aggregate (taking into account all the costs and benefits
associated with such transactions) materially no less favorable to the Company or its
Restricted Subsidiaries than those that would have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with an unrelated person, in the good faith
determination of the Company’s Board of Directors, or are on terms at least as favorable as
might reasonably have been obtained at such time from an unaffiliated party; and




     (10) transactions between the Company or any of its Restricted Subsidiaries and any
Person, a director of which is also a director of the Company or any direct or indirect
parent of the Company; provided, however, that such director abstains from voting as a
director of the Company or such direct or indirect parent, as the case may be, on any matter
involving such other Person.


Section 4.12. Limitation on Liens.




     The Company will not and will not permit any of its Restricted Subsidiaries to, create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than
Permitted Liens) securing Indebtedness or Attributable Debt upon any of their property or assets,
now owned or hereafter acquired, unless the Notes or any Subsidiary Guarantee of such Restricted
Subsidiary, as applicable, is secured on an equal and ratable basis (or on a senior basis to, in
the case of obligations subordinated in right of payment to the Notes or such Subsidiary Guarantee,
as the case may be) with the obligations so secured until such time as such obligations are no
longer secured by a Lien.




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Section 4.13. Additional Subsidiary Guarantees.




     If the Company or any of its Restricted Subsidiaries acquires or creates another Material
Domestic Subsidiary after the Issue Date, or if any Restricted Subsidiary that is not already a
Guarantor guarantees any other Indebtedness of the Company after such date, then in either case
that Subsidiary will become a Guarantor by executing a supplemental indenture substantially in the
form of Exhibit B hereto and delivering it to the Trustee within 20 Business Days of the date on
which it was acquired or created or guaranteed Indebtedness of the Company, as the case may be,
together with any Opinion of Counsel described in Section 903 of the Original Indenture; provided,
however, that (a) the foregoing shall not apply to Subsidiaries of the Company that have properly
been designated as Unrestricted Subsidiaries in accordance with the Indenture for so long as they
continue to constitute Unrestricted Subsidiaries, and (b) Whiting Programs, Inc. shall not be
required to become a Guarantor unless it guarantees Indebtedness of the Company other than the 2014
Notes.


Section 4.14. Corporate Existence.




     Except as otherwise permitted pursuant to the terms hereof (including consolidation and merger
permitted by Section 5.01 hereof), the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, and the corporate, partnership
or other existence of each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the Company or any such
Restricted Subsidiary; provided, however, that the Company shall not be required to preserve the
existence of any of its Restricted Subsidiaries if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries taken as a whole and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.


Section 4.15.
Offer to Repurchase Upon Change of Control.





     (1) Within 30 days following the occurrence of a Change of Control, the Company shall
make an offer (a “Change of Control Offer”) to repurchase all or any part (equal to $2,000
or any integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase
price (the “Change of Control Payment”) in cash equal to 101% of the aggregate principal
amount of Notes repurchased, plus accrued and unpaid interest, if any, thereon to the date
of settlement (the “Change of Control Settlement Date”), subject to the right of Holders of
record on the relevant record date to receive interest due on an Interest Payment Date that
is on or prior to the Change of Control Settlement Date. Within 30 days following a Change
of Control, the Company shall mail a notice of the Change of Control Offer to each Holder
and the Trustee describing the transaction that constitutes the Change of Control and
stating:




     (a) that the Change of Control Offer is being made pursuant to this Section
4.15 and that all Notes validly tendered and not withdrawn will be accepted for
payment;



46









 






     (b) the purchase price and the purchase date, which shall be no earlier than 30
days but no later than 60 days from the date such notice is mailed (the “Change of
Control Purchase Date”);




     (c) that the Change of Control Offer will expire as of the time specified in
such notice on the Change of Control Purchase Date and that the Company shall pay
the Change of Control Purchase Price for all Notes purchased as of the Change of
Control Purchase Date promptly thereafter on the Change of Control Settlement Date;




     (d) that any Note not tendered will continue to accrue interest;




     (e) that, unless the Company defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Settlement Date;




     (f) that Holders electing to have any Notes purchased pursuant to a Change of
Control Offer will be required to surrender the Notes, properly endorsed for
transfer, together with the form entitled “Option of Holder to Elect Purchase” on
the reverse of the Notes completed and such customary documents as the Company may
reasonably request, to the Paying Agent at the address specified in the notice prior
to the termination of the Change of Control Offer on the Change of Control Purchase
Date;




     (g) that Holders will be entitled to withdraw their election if the Paying
Agent receives, prior to the termination of the Change of Control Offer, a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such Holder
is withdrawing its election to have the Notes purchased; and




     (h) that Holders whose Notes are being purchased only in part will be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $2,000 in principal amount
or any integral multiple of $1,000 in excess thereof.




If any of the Notes subject to a Change of Control Offer is in the form of a Global Note,
then the Company shall modify such notice to the extent necessary to accord with the
procedures of the Depository applicable to repurchases. Further, the Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Notes as a result of a Change of Control. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of this
Section 4.15, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations under such
provisions by virtue of such conflict.



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     (2) On the Change of Control Settlement Date, the Company shall, to the extent lawful,
accept for payment all Notes or portions thereof ($2,000 or any integral $1,000 multiple in
excess thereof) properly tendered pursuant to the Change of Control Offer. Promptly
thereafter on the Change of Control Settlement Date the Company shall:




     (a) deposit with the Paying Agent by 11:00 a.m., New York City time, an amount
equal to the Change of Control Payment in respect of all Notes or portions thereof
so tendered; and




     (b) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers’ Certificate stating the aggregate principal amount of
Notes or portions of Notes being purchased by the Company.




On the Change of Control Settlement Date, the Paying Agent shall mail to each Holder of
Notes properly tendered the Change of Control Payment for such Notes (or, if all the Notes
are then in global form, make such payment through the facilities of the Depository) and the
Trustee shall authenticate and mail (or cause to be transferred by book entry) to each
Holder a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided, however, that each such new Note will be in a principal
amount of $2,000 or any integral multiple of $1,000 in excess thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Purchase Date.




     (c) The Change of Control provisions described above shall be applicable whether or nor
any other provisions of the Indenture are applicable.




     (d) Prior to complying with any of the provisions of this Section 4.15, but in any
event no later than the Change of Control Settlement Date, the Company shall either repay
all outstanding Senior Debt or obtain the requisite consents, if any, under all agreements
governing outstanding Senior Debt to permit the repurchase of Notes required by this Section
4.15.




     (e) The Company shall not be required to make a Change of Control Offer following a
Change of Control (1) if a third party makes the Change of Control Offer in the manner, at
the time and otherwise in compliance with the requirements set forth in the Indenture
applicable to a Change of Control Offer made by the Company and purchases all Notes properly
tendered and not withdrawn under such Change of Control Offer or (2) notice of redemption
has been given pursuant to Section 3.02 hereof, unless and until there is a default in
payment of the applicable Redemption Price. Notwithstanding anything to the contrary
contained herein, a Change of Control Offer by the Company or a third party may be made in
advance of a Change of Control, and conditioned upon the occurrence of a Change in Control,
if a definitive agreement is in place for the Change of Control at the time the Change of
Control Offer is made.




(3) In the event that Holders of Notes of not less than 95% of the aggregate principal
amount of the outstanding Notes accept a Change of Control Offer and the Company purchases
all of the Notes held by such holders, the Company will have the right, upon



48









 






not less than 30 nor more than 60 days, prior notice given not more than 30 days following the purchase
pursuant to the Chang of Control Offer, to redeem all of the Notes that remain outstanding
following such purchase at a purchase price equal to the Change of Control Payment plus, to
the extent not included in the Change of Control Payment, accrued and unpaid interest on the
Notes that remain outstanding, if any, to the Change of Control Settlement Date, subject to
the right of Holders of record on the relevant record date to receive interest due on an
interest payment date that is on or prior to the Change of Control Settlement Date. Any
such redemption shall be effected in accordance with Article Eleven of the Original
Indenture.


Section 4.16. No Inducements.




     The Company shall not, and the Company shall not permit any of its Subsidiaries, either
directly or indirectly, to pay (or cause to be paid) any consideration, whether by way of interest,
fee or otherwise, to any Beneficial Owner or Holder of the Notes for or as an inducement to any
consent to any waiver, amendment or supplement of any terms or provisions of the Indenture or the
Notes, unless such consideration is offered to be paid (or agreed to be paid) to all Beneficial
Owners and Holders of the Notes which so consent in the time frame set forth in the solicitation
documents relating to such consent.


Section 4.17. Permitted Business Activities.




     The Company will not, and will not permit any Restricted Subsidiary to, engage in any business
other than the Oil and Gas Business, except to such extent as would not be material to the Company
and its Restricted Subsidiaries taken as a whole.


Section 4.18. Anti-Layering.




     The Company will not incur, create, issue, assume, guarantee or otherwise become liable for
any Indebtedness that is subordinate or junior in right of payment to any Senior Debt of the
Company and senior in any respect in right of payment to the Notes. No Guarantor will incur,
create, issue, assume, guarantee or otherwise become liable for any Indebtedness that is
subordinate or junior in right of payment to the Senior Debt of such Guarantor and senior in any
respect in right of payment to such Guarantor’s Subsidiary Guarantee.


Section 4.19. Designation of Restricted and Unrestricted Subsidiaries.




     The Board of Directors of the Company may designate any Restricted Subsidiary of the Company
to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted
Subsidiary of the Company is designated as an Unrestricted Subsidiary, the aggregate fair market
value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the
Subsidiary properly designated will be deemed to be an Investment made as of the time of the
designation and will reduce the amount available for Restricted Payments
under the first paragraph of Section 4.07 hereof or represent Permitted Investments, as
determined by the Company. That designation shall only be permitted if the Investment would be
permitted at that time and if the Subsidiary so designated otherwise meets the definition of an
Unrestricted Subsidiary.



49









 





     The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to
be a Restricted Subsidiary of the Company; provided that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (1)
such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if
such designation had occurred at the beginning of the four-quarter reference period, and (2) no
Default or Event of Default would be in existence following such designation.


Section 4.20. Covenant Termination.




     If at any time (a) the rating assigned to the Notes by both S&P and Moody’s is an Investment
Grade Rating and (b) no Default has occurred and is continuing under this Indenture, then upon
delivery by the Company to the Trustee of an Officers’ Certificate to the foregoing effect, the
Company and its Restricted Subsidiaries will no longer be subject to the following provisions of
this Indenture: Sections 4.07, 4.08, 4.09, 4.10, 4.11 or 4.17 or clause (d) of Section 5.01. The
Company and its Restricted Subsidiaries will remain subject to all other provisions of the
Indenture.



ARTICLE 5

SUCCESSORS



     The provisions of Article Eight of the Original Indenture shall not apply to the Notes, and in
lieu thereof the following provisions of this Article 5 shall apply to the Notes.


Section 5.01. Merger, Consolidation, or Sale of Assets.




     The Company shall not, directly or indirectly, (1) consolidate or merge with or into another
Person (whether or not the Company is the surviving corporation), or (2) sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of the properties or assets of the
Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions to,
another Person, unless:




     (a) either (1) the Company is the surviving corporation or (2) the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a
corporation organized or existing under the laws of the United States, any state of the
United States or the District of Columbia;




     (b) the Person formed by or surviving any such consolidation or merger (if other than
the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made assumes all the obligations of the
Company under the Notes and the Indenture pursuant to a supplemental indenture or other
agreement in a form reasonably satisfactory to the Trustee;




     (c) immediately after such transaction no Default or Event of Default exists;




     (d) the Company or the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer, lease,



50









 







conveyance or other disposition shall have been made will, at the time of such transaction and after
giving pro forma effect thereto and any related financing transaction as if the same had
occurred at the beginning of the applicable four-quarter period, either (a) be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in the first paragraph of Section 4.09 hereof or (b) have a Fixed Charge
Coverage Ratio that is equal to or greater than the Fixed Charge Coverage Ratio of the
Company immediately prior to such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition; and




     (e) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or disposition and such
supplemental indenture (if any) comply with the Indenture;


provided, however, that (i) this Section 5.01 shall not apply to any sale, assignment, transfer,
lease, conveyance or other disposition of assets between or among the Company and its Restricted
Subsidiaries and (ii) clauses (c) and (d) hereof shall not apply to any merger or consolidation of
the Company (a) with or into one of its Restricted Subsidiaries for any purpose or (b) with or into
an Affiliate solely for the purpose of reincorporation of the Company in another jurisdiction.



Section 5.02. Successor Corporation Substituted.




     Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to,
and may exercise every right and power of, the Company under the Indenture with the same effect as
if such successor corporation had been named as the Company herein and shall be substituted for the
Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer,
lease, conveyance or other disposition, the provisions of the Indenture referring to the “Company”
shall refer instead to the successor corporation and not to the Company); and thereafter, if the
Company is dissolved following a transfer of all or substantially all of the properties or assets
of the Company and its Restricted Subsidiaries take as a whole in accordance with the Indenture,
the Company shall be discharged and released from all obligations and covenants under the Indenture
and the Notes. The Trustee shall enter into a supplemental indenture to evidence the succession
and substitution of such successor Person and such discharge and release of the Company.



ARTICLE 6

DEFAULTS AND REMEDIES


Section 6.01. Events of Default.




     In accordance with Section 301(19) of the Original Indenture, Section 501 of the Original
Indenture is hereby amended to read in its entirety as follows with respect to the Notes:




51












 





     “An ‘Event of Default’ occurs if one of the following shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall be occasioned by the
provisions of Article 12 or 13 of the Second Supplemental Indenture or be involuntary or be
effected by operation of law):




     (1) the Company defaults in the payment when due of interest with respect to the Notes,
and such default continues for a period of 30 days;




     (2) the Company defaults in the payment of the principal of or premium, if any, on the
Notes when due at its Stated Maturity, upon optional redemption, upon required repurchase,
upon declaration or otherwise;




     (3) the Company fails to comply with the provisions of Section 4.07, 4.09, 4.10, 4.15
or 5.01 of the Second Supplemental Indenture;




     (4) the Company fails to comply with any other covenant or other agreement in the
Indenture or the Notes for 60 days after notice to the Company by the Trustee or the Holders
of at least 25% in principal amount of the Notes then outstanding of such failure;




     (5) a default occurs under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed
by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or
guarantee now exists or is created after the Issue Date, if such default:




     (a) is caused by a failure to pay principal of, or interest or premium, if any,
on such Indebtedness prior to the expiration of any grace period provided in such
Indebtedness (a “Payment Default”); or




     (b) results in the acceleration of such Indebtedness prior to its Stated
Maturity




and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $50.0 million
or more; provided, that if any such default is cured or waived or any such
acceleration is rescinded, or such Indebtedness is repaid, within a period of 10
days from the continuation of such default beyond the applicable grace period or the
occurrence of such acceleration, as the case may be, such Event of Default under the
indenture and any consequential acceleration of the notes shall be automatically
rescinded;




     (6) the Company or any of its Significant Subsidiaries fails to pay final judgments
aggregating in excess of $50.0 million, which judgments are not paid, discharged or stayed
(including a stay pending appeal) for a period of 60 days after the date of such final
judgment (or, if later, the date when payment is due pursuant to such judgment);



52









 






     (7) except as permitted by this Indenture, any Subsidiary Guarantee is held in any
judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full
force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, denies
or disaffirms its obligations under its Subsidiary Guarantee (other than by reason of
release of a Guarantor from its Subsidiary Guarantee in accordance with the terms of the
indenture); and




     (8) the Company, any Significant Subsidiary of the Company or any group of Subsidiaries
of the Company that, taken together, would constitute a Significant Subsidiary pursuant to
or within the meaning of Bankruptcy Law:




     (a) commences a voluntary case,




     (b) consents in writing to the entry of an order for relief against it in an
involuntary case,




     (c) consents in writing to the appointment of a Custodian of it or for all or
substantially all of its property,




     (d) makes a general assignment for the benefit of its creditors, or




     (e) admits in writing it generally is not paying its debts as they become due;
or




     (9) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:




     (a) is for relief against the Company, any Significant Subsidiary of the
Company or any group of Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary in an involuntary case;




     (b) appoints a Custodian of the Company, any Significant Subsidiary of the
Company or any group of Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary or for all or substantially all of the property
of the Company, any Significant Subsidiary of the Company or any group of
Subsidiaries of the Company, that, taken together, would constitute a Significant
Subsidiary; or




     (c) orders the liquidation of the Company, any Significant Subsidiary of the
Company or any group of Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary;




and the order or decree remains unstayed and in effect for 60 consecutive days.”



53









 




Section 6.02. Acceleration.




     Also as permitted by Section 301(19) of the Original Indenture, the first paragraph of
Section 502 of the Original Indenture is hereby amended to read in its entirety as follows with
respect to the Notes:



     “If any Event of Default occurs and is continuing, the Trustee, by notice to the Company, or
the Holders of at least 25% in aggregate principal amount of the then outstanding Notes, by notice
to the Company and the Trustee, may declare all the Notes to be due and payable immediately. Upon
any such declaration, the Notes shall become due and payable immediately, together with all accrued
and unpaid interest and premium, if any, thereon. Notwithstanding the preceding, if an Event of
Default specified in clause (8) or (9) of Section 501 hereof occurs with respect to the Company,
any Significant Subsidiary of the Company or any group of Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary, all outstanding Notes shall become due and
payable without further action or notice, together with all accrued and unpaid interest and
premium, if any, thereon.”


Section 6.03. Priorities.




     With respect to the Notes only, the reference in clause second of Section 506 of the Original
Indenture to “Article Twelve and Article Fourteen” is hereby amended to read: “Article 12 and
Article 13 of the Second Supplemental Indenture.”


Section 6.04. Waiver of Usury, Stay or Extension of Laws.




     Section 515 of the Original Indenture shall not apply to the Notes inasmuch as it is
duplicative of Section 4.06 of this Second Supplemental Indenture.



ARTICLE 7

TRUSTEE; REPORTS



Section 7.01. Notice of Defaults.




     With respect to the Notes only, the reference in Section 602 of the Original Indenture to
“Section 501(5)” is hereby amended to read: “Section 501(4).”


Section 7.02. Certain Rights of Trustee.




          With respect to the Notes only, Section 603 of the Original Indenture is hereby amended to
include the following:



          (8) the Trustee shall not be liable for any action taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of the Notes relating to the
time, method and place of conducting any proceeding or any remedy available to the Trustee or
exercising any trust power conferred upon the Trustee under the Indenture with respect to the
Notes;





54









 








          (9) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder;




          (10) anything in this Indenture notwithstanding, in no event shall the Trustee be responsible
or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of action; and




          (11) notwithstanding any provision of this Agreement, the Trustee shall not be deemed to have
notice or be charged with knowledge of any default or Event of Default unless a Responsible Officer
of the Trustee shall have received at the Corporate Trust Office of the Trustee written notice, and
such notice references the Notes and this Indenture.



Section 7.03. Compensation and Reimbursement.




          With respect to the Notes only, Section 607 of the Original Indenture is hereby amended to
include the following:




     As security for the performance of the obligations of the Company under this Section the
Trustee shall have a lien prior to the Notes upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of (and premium, if any)
or interest on particular Notes.



     In addition to, but without prejudice to its other rights under this Indenture, when the
Trustee incurs expenses or renders services in connection with an Event of Default specified in
Sections 5.01(8) or 5.01(9) hereof, the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or other similar law.



     “Trustee” for purposes of this Section shall include any predecessor Trustee.



     The provisions of this Section shall survive the satisfaction and discharge of the Notes, the
termination for any reason of this Indenture, and the resignation or removal of the Trustee.


Section 7.04. Reports by Company and Subsidiary Guarantors.




     Section 704 of the Original Indenture shall not apply to the Notes inasmuch as its
requirements are duplicative of those set forth in Section 4.03(a) of this Second Supplemental
Indenture.



ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




     The provisions of Article Fifteen of the Original Indenture shall not apply to the Notes, and
in lieu thereof the following provisions of this Article 8 shall apply to the Notes.



55









 




Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.




     The Company may, at the option of its Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, at any time, exercise its rights under either Section 8.02 or 8.03
hereof with respect to all outstanding Notes upon compliance with the conditions set forth below in
this Article 8.


Section 8.02. Legal Defeasance and Discharge.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have discharged its obligations with respect to all outstanding Notes, and
each Guarantor shall be deemed to have discharged its obligations with respect to its Subsidiary
Guarantee, on the date the conditions set forth in Section 8.04 below are satisfied (hereinafter,
“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding Notes, and each
Guarantor shall be deemed to have paid and discharged its Subsidiary Guarantee (which in each case
shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the
other Sections of this Second Supplemental Indenture and the Sections of the Original Indenture
referred to in (a) and (b) below) and to have satisfied all its other obligations under such Notes
or Subsidiary Guarantee and the Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.04
hereof, and as more fully set forth in such Section, payments in respect of the principal of and
premium, if any, and interest on such Notes when such payments are due, (b) the Company’s
obligations with respect to such Notes under Sections 304, 305, 306 and 1003 of the Original
Indenture and Section 4.02 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith and (d) the Legal Defeasance provisions of this
Article 8. Subject to compliance with this Article 8, the Company may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.



     If the Company exercises its Legal Defeasance option, each Guarantor will be released and
relieved of any obligations under its Subsidiary Guarantee and any security for the Notes (other
than the trust) will be released.


Section 8.03. Covenant Defeasance.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in Article 4 hereof (other
than those in Sections 4.01, 4.02, 4.06 and 4.14 hereof) and in clause (d) of Section 5.01 hereof
on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed “outstanding”



56









 




for all other
purposes hereunder (it being understood that such Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company and any Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by
reason of any reference in any such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an Event of Default with respect to
the Notes under Section 501 of the Original Indenture, but, except as specified above, the
remainder of the Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 501(5)
through 501(7) of the Original Indenture shall not constitute Events of Default with respect to the
Notes.




     If the Company exercises its Covenant Defeasance option, each Guarantor will be released and
relieved of any obligations under its Subsidiary Guarantee and any security for the Notes (other
than the trust) will be released.


Section 8.04. Conditions to Legal or Covenant Defeasance.




     In order to exercise either Legal Defeasance or Covenant Defeasance:




     (i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized investment bank, appraisal firm or firm of independent public accountants,
to pay the principal of, premium, if any, and interest on the outstanding Notes on the date
of fixed maturity or on the applicable redemption date, as the case may be, and the Company
must specify whether the Notes are being defeased to the date of fixed maturity or to a
particular redemption date;




     (ii) in the case of an election under Section 8.02 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that:




     (1) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling; or




     (2) since the Issue Date, there has been a change in the applicable federal
income tax law,




in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;



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     (iii) in the case of an election under Section 8.03 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;




     (iv) no Default or Event of Default shall have occurred and be continuing on the date
of such deposit (other than a Default or Event of Default resulting from the incurrence of
Indebtedness or the grant of Liens securing such Indebtedness, all or a portion of the
proceeds of which will be used to defease the Notes pursuant to this Article 8 concurrently
with such incurrence or within 30 days thereof and any similar concurrent deposit relating
to other Indebtedness, and the granting of Liens to secure such borrowing) or insofar as
Events of Default described in clause (8) or (9) of Section 501 of the Original Indenture
are concerned, at any time in the period ending on the 91st day after the day of deposit;




     (v) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than the Indenture and the agreements governing any other Indebtedness being defeased,
discharged or replaced) to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;




     (vi) the Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of preferring the
Holders over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others; and




     (vii) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance have been complied with.


Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.




     Subject to Section 8.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee pursuant to Section 8.04 or 8.08 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and the Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such money need not be segregated from other funds except to the extent required
by law.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.04 or 8.08 hereof or the principal and interest received in respect thereof



58









 




other than any such
tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.




     Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.04 or 8.08 hereof which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance, Covenant Defeasance or Discharge, as the case
may be.


Section 8.06. Repayment to Company.




     Subject to applicable escheat and abandoned property laws, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal
of or premium or interest on any Note and remaining unclaimed for two years after such principal,
premium or interest has become due and payable shall be paid to the Company on its request or (if
then held by the Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as a secured creditor, look only to the Company for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid to the Company.


Section 8.07. Reinstatement.




     If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.05 hereof, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under the Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such
time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section
8.05 hereof; provided, however, that, if the Company makes any payment of principal of, premium, if
any, or interest on any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.


Section 8.08. Discharge.




     The Indenture shall be satisfied and discharged (a “Discharge”) and shall cease to be of
further effect as to all Notes issued hereunder, upon the terms and conditions, and subject to the
exceptions, set forth in Article Four of the Original Indenture.



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ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER



Section 9.01. Without Consent of Holders of Notes.




     Section 901 of the Original Indenture is hereby amended to read in its entirety as follows
with respect to the Notes:



     “Notwithstanding Section 902 of this Indenture, the Company, the Guarantors and the Trustee
may amend or supplement this Indenture, the Notes or the Subsidiary Guarantees without the consent
of any Holder of a Note:




     (i) to cure any ambiguity, defect or inconsistency;




     (ii) to provide for uncertificated Notes in addition to or in place of certificated
Notes;




     (iii) to provide for the assumption of the Company’s or a Guarantor’s obligations to
the Holders of Notes pursuant to Article 5 or Section 10.03 of the Second Supplemental
Indenture;




     (iv) to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights hereunder of any
Holder, provided that any change to conform this Indenture to the prospectus of the Company
relating to the offering of the Notes shall not be deemed to adversely affect the legal
rights hereunder of any Holder;




     (v) to secure the Notes or the Subsidiary Guarantees pursuant to the requirements of
Section 4.12 of the Second Supplemental Indenture or otherwise;




     (vi) to provide for the issuance of Additional Notes in accordance with the limitations
set forth in this Indenture;




     (vii) to add any additional Guarantor with respect to the Notes or to evidence the
release of any Guarantor from its Subsidiary Guarantee in accordance with Article 10 of the
Second Supplemental Indenture;




     (viii) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;




     (ix) to evidence or provide for the acceptance of appointment under this Indenture of a
successor Trustee;




     (x) to add to, change or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities, provided that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision nor



60









 






(ii) modify
the rights of the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or




     (xi) to establish the form or terms of Securities of any series as permitted by
Sections 201 and 301.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the Opinion of Counsel described in Section 903 hereof, the Trustee shall join with the
Company and the Guarantors in the execution of such amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.”


Section 9.02. With Consent of Holders of Notes.




     Section 902 of the Original Indenture is hereby amended to read in its entirety as follows
with respect to the Notes:



     “Except as provided above in Section 901 and below in this Section 902, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Subsidiary
Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding (including consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Notes), and, subject to Sections 508 and
513 hereof, any existing Default or Event of Default with respect to the Notes or compliance with
any provision of this Indenture, the Notes or the Subsidiary Guarantees may be waived with the
consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes
(including consents obtained in connection with a purchase of, tender offer or exchange offer for
Notes).



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the Opinion of Counsel described in Section 903
hereof, the Trustee shall join with the Company and the Guarantors in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.



     It shall not be necessary for the consent of the Holders of Notes under this Section 902 to
approve the particular form of any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.



     After an amendment, supplement or waiver under this Section becomes effective, the Company
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any



61









 




defect therein, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 508 and 513 hereof and to the last paragraph of this
Section 902, the Holders of a majority in principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company with any provision of this Indenture or the
Notes. However, without the consent of each Holder affected, an amendment, supplement or waiver
may not (with respect to any Notes held by a non-consenting Holder):




     (a) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;



     (b) reduce the principal of or change the fixed maturity of any Note or alter any of the
provisions with respect to the redemption or repurchase of the Notes (except as provided in
Sections 3.04, 4.10 and 4.15 of the Second Supplemental Indenture);



     (c) reduce the rate of or change the time for payment of interest on any Note;



     (d) waive a Default or Event of Default in the payment of principal of or premium, if any, or
interest on the Notes (except a rescission of acceleration of the Notes by the Holders of at least
a majority in principal amount of the Notes and a waiver of the payment default that resulted from
such acceleration);



     (e) make any Note payable in money other than that stated in the Notes;



     (f) make any change in the provisions of this Indenture relating to waivers of past Defaults
or Events of Default or the rights of Holders of Notes to receive payments of principal of or
premium, if any, or interest on the Notes (except as permitted in clause (g) below);



     (g) waive a redemption or repurchase payment with respect to any Note (other than a payment
required by Sections 3.04, 4.10 and 4.15 of the Second Supplemental Indenture);



     (h) release any Guarantor from any of its obligations under its Subsidiary Guarantee or this
Indenture, except in accordance with the terms of this Indenture; or



     (i) make any change in the preceding amendment, supplement and waiver provisions.



     In addition, any amendment or supplement to, or waiver of, the provisions of this Indenture
relating to subordination of the Notes or the Subsidiary Guarantees to Senior Debt that adversely
affects the rights of the Holders of the Notes shall require the consent of the Holders of at least
75% in principal amount of Notes then outstanding.”


Section 9.03. Revocation and Effect of Consents.




     A consent to any amendment, supplement or waiver under the Indenture by any Holder given in
connection with a purchase, tender or exchange of such Holder’s Notes shall not be rendered invalid
by such purchase, tender or exchange.



62









 





     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.



     The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to consent to such amendment or waiver or revoke any consent previously
given, whether or not such Persons continue to be Holders after such record date. No consent shall
be valid or effective for more than 90 days after such record
date except to the extent that the requisite number of consents to the amendment, supplement
or waiver have been obtained within such 90-day period or as set forth in the next paragraph of
this Section 9.03.



     After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it makes a change described in any of clauses (a) through (i) of Section 902 of the Indenture, in
which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has
consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same
indebtedness as the consenting Holder’s Note.



ARTICLE 10

GUARANTEES OF NOTES




     The Notes shall have the benefit of Subsidiary Guarantees. The provisions of Article Thirteen
of the Original Indenture shall not apply to the Notes, and in lieu thereof the following
provisions of this Article 10 shall apply to the Notes.


Section 10.01. Subsidiary Guarantees.




     Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees, on a senior subordinated basis in accordance with Article 13 of this
Second Supplemental Indenture, to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity and enforceability
of this Second Supplemental Indenture or the Indenture, the Notes held thereby and the Obligations
of the Company hereunder and thereunder, that: (a) the principal of and premium, if any, and
interest on the Notes will be promptly paid in full when due, subject to any applicable grace
period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise,
and interest on the overdue principal of and premium, if any, and (to the extent permitted by law)
interest on the Notes, and all other payment Obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension



63









 




of time of payment or renewal of any
Notes or any of such other Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to any applicable grace
period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise.
Failing payment when so due of any amount so guaranteed for whatever reason, the Guarantors will be
jointly and severally obligated to pay the same immediately, subject to the provisions of Article
13 hereof. An Event of Default with respect to the Notes under the Indenture shall constitute an
event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the
obligations of the Guarantors hereunder in the same manner and to the same extent as the
Obligations of the Company.




     The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Second Supplemental
Indenture or the Indenture, the absence of any action to enforce the same, any waiver or consent by
any Holder with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance (other than
complete performance) which might otherwise constitute a legal or equitable discharge or defense of
a Guarantor. Each Guarantor further, to the extent permitted by law, hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that its Subsidiary Guarantee will not be
discharged except by complete performance of the Obligations contained in the Notes and the
Indenture.



     If any Holder or the Trustee is required by any court or otherwise to return to the Company,
the Guarantors, or any Custodian, Trustee or other similar official acting in relation to either
the Company or the Guarantors, any amount paid by the Company or any Guarantor to the Trustee or
such Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby
waives, any right of subrogation in relation to the Holders in respect of any Obligations
guaranteed hereby.



     Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (a) the maturity of the Obligations guaranteed hereby
may be accelerated as provided in Article Five of the Original Indenture for the purposes of its
Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed thereby, and (b) in the event of any
declaration of acceleration of such Obligations as provided in Article Five of the Original
Indenture, such Obligations (whether or not due and payable) shall forthwith become due and payable
by the Guarantor for the purpose of its Subsidiary Guarantee. The Guarantors shall have the right
to seek contribution from any non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Subsidiary Guarantees.


Section 10.02. Notation of Subsidiary Guarantees.




     No notation of any Subsidiary Guarantee need be endorsed on any Note, notwithstanding any
contrary provision of the Original Indenture.



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Section 10.03. Guarantors May Consolidate, Etc., on Certain Terms.




     (a) No Guarantor shall sell or otherwise dispose of all or substantially all of its properties
or assets to, or consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person), another Person (other than the Company or another Guarantor), unless, (i) either
(1) the Person acquiring the properties or assets in any such sale or other disposition or the
Person formed by or surviving any such consolidation or merger (if other than such Guarantor)
unconditionally assumes all the obligations of such Guarantor, pursuant to a supplemental
indenture, substantially in the form of Exhibit B hereto, under the Notes, the Indenture and its
Subsidiary Guarantee on terms set forth therein, or (2) the Net Proceeds of such
sale or other disposition are applied in accordance with the provisions of Section 4.10
hereof, and (ii) immediately after giving effect to such transaction, no Default or Event of
Default exists.



     (b) In the case of any such consolidation or merger and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the Trustee and substantially in the
form of Exhibit B hereto, of the Subsidiary Guarantee and the due and punctual performance of all
of the covenants of the Indenture to be performed by the Guarantor, such successor Person shall
succeed to and be substituted for the Guarantor with the same effect as if it had been named herein
as a Guarantor.


Section 10.04. Releases of Subsidiary Guarantees.




     The Subsidiary Guarantee of a Guarantor shall be released: (1) in connection with any sale or
other disposition of all or substantially all of the properties or assets of such Guarantor
(including by way of merger or consolidation) to a Person that is not (either before or after
giving effect to such transaction) a Subsidiary of the Company, if the sale or other disposition
complies with Section 4.10 hereof; or (2) in connection with any sale or other disposition of all
of the Capital Stock of such Guarantor to a Person that is not (either before or after giving
effect to such transaction) a Subsidiary of the Company, if the sale or other disposition complies
with Section 4.10 hereof; or (3) if the Company designates any Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary in accordance with the applicable provisions of the
Indenture; or (4) upon Legal Defeasance or Covenant Defeasance or Discharge in accordance with
Article 8 hereof.



     Upon delivery by the Company to the Trustee of an Officers’ Certificate to the effect that any
of the foregoing clauses (1) – (4) has occurred, the Trustee shall execute any documents reasonably
requested by the Company in order to evidence the release of any Guarantor from its obligations
under its Subsidiary Guarantee. Any Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of, premium, if any, and
interest on the Notes and for the other obligations of such Guarantor under the Indenture as
provided in this Article 10.


Section 10.05. Limitation on Guarantor Liability.




     The obligations of each Guarantor under its Subsidiary Guarantee will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or on behalf of



65









 




any
other Guarantor in respect of the obligations of such other Guarantor under its Subsidiary
Guarantee or pursuant to its contribution obligations under the Indenture, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law and not otherwise being void or
voidable under any similar laws affecting the rights of creditors generally.



Section 10.06. “Trustee” to Include Paying Agent.




     In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article 10 shall in each
case (unless the context shall otherwise require) be construed as extending to and including such
Paying Agent within its meaning as fully and for all intents and purposes as if such Paying Agent
were named in this Article 10 in place of the Trustee.



ARTICLE 11

MISCELLANEOUS



Section 11.01. Second Supplemental Indenture Controls.




     To the extent that there is any conflict or inconsistency between the Original Indenture and
this Second Supplemental Indenture, the provisions of this Second Supplemental Indenture shall
control.


Section 11.02. No Personal Liability of Directors, Officers, Employees and Stockholders.




     No past, present or future director, officer, employee, incorporator or stockholder or other
owner of Capital Stock of the Company or any Guarantor, as such, shall have any liability for any
obligations of the Company or any Guarantor under the Notes, the Subsidiary Guarantees or the
Indenture or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.


Section 11.03. Governing Law; Waiver of Jury Trial; Submission to Jurisdiction.




     THIS SECOND SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO, BY ITS ACCEPTANCE
THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH OF THE COMPANY
AND THE TRUSTEE SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE
COUNTY OF NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK, IN ANY ACTION OR
PROCEEDING TO ENFORCE ANY OF ITS OBLIGATIONS UNDER THIS INDENTURE OR WITH REGARD TO THE NOTES
(BUT THE COMPANY AND THE TRUSTEE WILL




66












 




NOT BE PREVENTED FROM REMOVING ANY SUCH ACTION OR PROCEEDING FROM A STATE COURT TO THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN THE BOROUGH OF
MANHATTAN, THE CITY OF NEW YORK).



Section 11.04. Force Majeure.




          In no event shall the Trustee be responsible or liable, nor shall the Company be responsible
or liable to the Trustee, for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, and nuclear or natural catastrophes or acts of God; it being understood that the
Trustee or the Company, as the case may be, shall use reasonable efforts which are consistent with
accepted practices to resume performance as soon as practicable under the circumstances; provided
that the foregoing limitations shall not apply to any obligations of Company or the Guarantors
under the Notes.



Section 11.05. No Adverse Interpretation of Other Agreements.




     The Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret the Indenture.


Section 11.06. Table of Contents and Headings.




     The Table of Contents and headings of the Articles and Sections of this Second Supplemental
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Second Supplemental Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.


Section 11.07. Counterparts.




     This Second Supplemental Indenture may be signed in counterparts and by the different parties
hereto in separate counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.



ARTICLE 12

SUBORDINATION




     In accordance with Section 301(3) of the Original Indenture, the following provisions of this
Article 12 shall apply to the Notes in lieu of the provisions of Article Twelve of the Original
Indenture.


Section 12.01. Agreement to Subordinate.




     The Company agrees, and each Noteholder by accepting a Note agrees, that the payment of the
principal of, premium, if any, and interest on the Notes and any other Obligation of the Company in
respect of the Notes (including any obligation to purchase Notes) is subordinated in



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right of
payment, to the extent and in the manner provided in this Article 12, to the prior payment in full
in cash of all Obligations in respect of Senior Debt of the Company, including the Obligations of
the Company under the Credit Agreement, whether outstanding on the date of this Second Supplemental
Indenture or thereafter incurred, and that the subordination is for the benefit of and shall be
enforceable directly by the holders of such Senior Debt. The Notes shall rank equally in right of
payment with the all other Senior Subordinated Debt of the Company, and only Indebtedness of the
Company that is Senior Debt of the Company shall rank senior in right of payment to the Notes in
accordance with the provisions set forth herein. All provisions of this Article 12 shall be subject
to Section 12.12 hereof. All references to “Senior Debt” in this Article 12 are to Senior Debt of
the Company.



Section 12.02. Liquidation, Dissolution, Bankruptcy.




     Upon any payment or other distribution of the assets of the Company to creditors upon a
liquidation or dissolution of the Company, or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, or in an assignment for
the benefit of creditors or in any marshaling of the Company’s assets and liabilities:



     (1) holders of Senior Debt of the Company shall be entitled to receive payment in full in cash
of all Obligations due in respect of such Senior Debt (including interest after the commencement of
any bankruptcy proceeding at the rate specified in the applicable Senior Debt, whether or not an
allowable claim in such proceeding) before Noteholders shall be entitled to receive any payment
with respect to the Notes; and



     (2) until all Obligations with respect to such Senior Debt are paid in full in cash, any
payment or other distribution to which Noteholders would be entitled but for this Article 12 shall
be made to holders of such Senior Debt as their interests may appear, except that Noteholders may
receive and retain Permitted Junior Securities and payments made from a trust already
established pursuant to Article 8 of this Second Supplemental Indenture or Article Four of the
Original Indenture.


Section 12.03. Default on Senior Debt.




     The Company shall not pay the principal of, premium, if any, or interest on the Notes or make
any deposit pursuant to Article 8 of this Second Supplemental Indenture or Article Four of the
Original Indenture and shall not purchase, redeem or otherwise retire any Notes or make any other
payment with respect to the Notes (collectively, “pay the Notes”), except that Noteholders may
receive and retain Permitted Junior Securities and payments made from a trust already established
pursuant to Article 8 hereof or Article Four of the Original Indenture, if either:



     (1) a default (a “payment default”) in the payment of the principal of, premium, if any, or
interest on, or any other Obligation in respect of, any Designated Senior Debt occurs and is
continuing beyond any applicable grace period; or



     (2) any other default (a “nonpayment default”) occurs and is continuing with respect to any
Designated Senior Debt that permits holders of such Designated Senior Debt to accelerate its
maturity (or that would permit such holders to accelerate with the giving of notice or the



68









 




passage
of time or both) and the Trustee receives a notice of such default (a “Payment Blockage Notice”)
from the Company or the holders of such Designated Senior Debt.




     Except as provided in Section 12.02 hereof, payments on the Notes may and shall be resumed:



     (1) in the case of a payment default, upon the date on which such default is cured or waived;
and



     (2) in the case of a nonpayment default, upon the earlier of the date on which such nonpayment
default is cured or waived or 179 days after the date on which the applicable Payment Blockage
Notice is received, unless the maturity of any Designated Senior Debt has been accelerated.



     No new Payment Blockage Notice may be delivered unless and until 360 days have elapsed since
the delivery of the immediately prior Payment Blockage Notice. No nonpayment default that existed
or was continuing with respect to any Designated Senior Debt on the date of delivery of any Payment
Blockage Notice to the Trustee with respect to such Designated Senior Debt shall be, or be made,
the basis for a subsequent Payment Blockage Notice unless such default has been cured or waived for
a period of not less than 90 days.


Section 12.04. Acceleration of Payment of Notes.




     If payment of the Notes is accelerated because of an Event of Default, the Company shall
promptly notify the holders of Designated Senior Debt (or their Representatives) of the
acceleration.


Section 12.05. When Distribution Must Be Paid Over; Reinstatement of Senior Debt.




     If a payment or other distribution is made to the Trustee or any of the Noteholders that
because of this Article 12 should not have been made to them, the Trustee or any of the Noteholders
who receive the distribution shall hold it in trust for holders of Senior Debt of the Company and
(in the case of the Trustee, if still in its possession) pay it over and deliver it to them (or
their Representatives) as their interests may appear.



     To the extent any payment of or distribution in respect of Senior Debt (whether by or on
behalf of the Company as proceeds of security or enforcement of any right of setoff or otherwise)
is declared to be fraudulent or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then if such payment or
distribution is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.


Section 12.06. Subrogation.




     After all Senior Debt of the Company is paid in full (and all commitments with respect to such
Senior Debt have terminated) and until the Notes are paid in full, Noteholders shall be



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subrogated
to the rights of holders of such Senior Debt to receive distributions applicable to such Senior
Debt. A distribution made under this Article 12 to holders of such Senior Debt which otherwise
would have been made to Noteholders is not, as between the Company and Noteholders, a payment by
the Company on such Senior Debt.



Section 12.07. Relative Rights.




     This Article 12 defines the relative rights of Noteholders and holders of Senior Debt of the
Company. Nothing in the Indenture shall:



     (1) impair, as between the Company and Noteholders, the obligation of the Company, which is
absolute and unconditional, to pay principal of, premium, if any, and interest on the Notes in
accordance with their terms; or



     (2) prevent the Trustee or any Noteholder from exercising its available remedies upon an Event
of Default, subject to the rights of holders of Senior Debt to receive payments and distributions
otherwise payable to Noteholders and to block payments on the Notes as provided in this Article 12.


Section 12.08. Subordination May Not Be Impaired by Company.




     No right of any present or future holders of any Senior Debt to enforce subordination as
provided in this Article 12 will at any time in any way be prejudiced or impaired by noncompliance
by the Company with the terms of the Indenture, regardless of any knowledge thereof that any such
holder of Senior Debt may have or otherwise be charged with.


Section 12.09. Rights of Trustee and Paying Agent; Rights of Holders of Senior Debt.




     Notwithstanding Section 12.03 hereof, the Trustee or Paying Agent shall continue to make
payments on the Notes and shall not be charged with knowledge of the existence of facts that under
this Article 12 would prohibit the making of any such payments unless, not less than one Business
Day prior to the date of such payment, a Responsible Officer of the Trustee receives written notice
that such payments are prohibited by this Article 12. The Company, the Registrar, the Paying Agent,
a Representative or a holder of Senior Debt shall be entitled to give the notice; provided,
however, that, if an issue of Senior Debt has a Representative, only the Representative shall be
entitled to give the notice.



     The Trustee in its individual or any other capacity shall be entitled to hold Senior Debt with
the same rights it would have if it were not Trustee. The Registrar and the Paying Agent shall be
entitled to do the same with like rights. The Trustee shall be entitled to all the rights set forth
in this Article 12 with respect to any Senior Debt which may at any time be held by it, to the same
extent as any other holder of such Senior Debt; and nothing in Article Six of the Original
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article 12
shall apply to claims of, or payments to, the Trustee under or pursuant to Section 607 of the
Original Indenture.



     The holders of Senior Debt may, at any time and from time to time subject to the terms of such
Senior Debt, without the consent of or notice to the Trustee or the Noteholders, without



70









 




incurring
responsibility to the Noteholders and without impairing or releasing the subordination provided in
the Indenture or the obligations hereunder of the Noteholders to the holders of Senior Debt, do any
one or more of the following:




     (1) change the manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Debt or any instrument evidencing the same or any agreement under which Senior Debt
is outstanding or secured;



     (2) sell, exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt;



     (3) release any Person liable in any manner for the collection of Senior Debt; and



     (4) exercise or refrain from exercising any rights against the Company and any other Person.


Section 12.10. Distribution or Notice to Representative.




     Whenever any Person is to make a distribution or give a notice to holders of Senior Debt of
the Company, such Person shall be entitled to make such distribution or give such notice to their
Representative (if any).


Section 12.11. Not to Prevent Events of Default or Limit Right to Accelerate.




     The failure to make a payment pursuant to the Notes by reason of any provision in this Article
12 shall not be construed as preventing the occurrence of a Default. Nothing in this Article 12
shall have any effect on the right of the Noteholders or the Trustee to accelerate the maturity of
the Notes.


Section 12.12. Trust Moneys Not Subordinated.




     Notwithstanding anything contained herein to the contrary, payments from money or the proceeds
of Government Securities held in trust under Article 8 hereof or Article Four of the Original
Indenture by the Trustee for the payment of principal of, premium, if any, and interest on the
Notes shall not be subordinated to the prior payment of any Senior Debt or subject to the
restrictions set forth in this Article 12, and none of the Noteholders shall be obligated to pay
over any such amount to the Company or any holder of Senior Debt or any other creditor of the
Company.


Section 12.13. Trustee Entitled to Rely.




     Upon any payment or distribution pursuant to this Article 12, the Trustee and the Noteholders
shall be entitled to rely (1) upon any order or decree of a court of competent jurisdiction in
which any proceedings of the nature referred to in Section 12.02 hereof are pending, (2) upon a
certificate of the liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Noteholders or (3) upon the Representatives of Senior Debt for the purpose
of ascertaining the Persons entitled to participate in such payment or distribution, the holders of
such Senior Debt and other Debt of the Company, the amount thereof



71









 




or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 12.
In the event that the Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article 12, the Trustee shall be entitled to request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this Article 12, and, if
such evidence is not furnished, the Trustee shall be entitled to defer any payment to such Person
pending judicial determination as to the right of such Person to receive such payment. The
provisions of Sections 601 and 603 of the Original Indenture shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article 12.



Section 12.14. Trustee to Effectuate Subordination.




     Each Noteholder by accepting a Note authorizes and directs the Trustee on its behalf to take
such action as may be necessary or appropriate to effectuate the subordination provided in this
Article 12 and appoints the Trustee as attorney-in-fact for any and all such purposes.


Section 12.15. Trustee Not Fiduciary for Holders of Senior Debt.




     The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and,
subject to Section 601 of the Original Indenture, shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Noteholders or the Company or any other Person, money or
assets to which any holders of Senior Debt shall be entitled by virtue of this Article 12 or
otherwise.


Section 12.16. Reliance by Holders of Senior Debt on Subordination Provisions.




     Each Noteholder by accepting a Note acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to each holder of any
Senior Debt, whether such Senior Debt was created or acquired before or after the issuance of the
Notes, to acquire and continue to hold, or to continue to hold, such Senior Debt, and such holder
of such Senior Debt shall be deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior Debt.



ARTICLE 13

SUBORDINATION OF SUBSIDIARY GUARANTEES




     In accordance with Section 301(3) of the Original Indenture, the following provisions of this
Article 13 shall apply to the Notes in lieu of the provisions of Article Fourteen of the Original
Indenture.


Section 13.01. Agreement to Subordinate.




     Each Guarantor agrees, and each Noteholder by accepting a Note agrees, that the payment of
such Guarantor’s Subsidiary Guarantee (including any amounts in respect of the principal of,
premium, if any, or interest on the Notes and any other Obligation in respect of the



72









 




Notes,
including any obligation of the Company to purchase Notes) is subordinated in right of payment, to
the extent and in the manner provided in this Article 13, to the prior payment in full in cash of
all Obligations in respect of Senior Debt of such Guarantor, including such Guarantor’s Obligations
under the Credit Agreement, whether outstanding on the date of this Second Supplemental Indenture
or thereafter incurred, and that the subordination is for the benefit of and shall be enforceable
directly by the holders of such Senior Debt. The Subsidiary Guarantee of a Guarantor shall rank
equally in right of payment with its guarantee of all other Senior Subordinated Debt of such
Guarantor, and only Indebtedness of such Guarantor that is Senior Debt of such Guarantor shall rank
senior in right of payment to the Subsidiary Guarantee of such Guarantor in accordance with the
provisions set forth herein. All provisions of this Article 13 shall be subject to Section 13.12
hereof. All references to “Senior Debt” in this Article 13 are to Senior Debt of the Guarantors.



Section 13.02. Liquidation, Dissolution, Bankruptcy.




     Upon any payment or other distribution of the assets of any Guarantor to creditors upon a
liquidation or dissolution of such Guarantor, or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Guarantor or its property, or in an assignment
for the benefit of creditors or in any marshaling of such Guarantor’s assets and liabilities:



     (1) holders of Senior Debt of such Guarantor shall be entitled to receive payment in full in
cash of all Obligations due in respect of such Senior Debt (including interest after the
commencement of any bankruptcy proceeding at the rate specified in the applicable Senior Debt,
whether or not an allowable claim in such proceeding) before Noteholders shall be entitled to
receive any payment pursuant to the Subsidiary Guarantee of such Guarantor; and



     (2) until all Obligations with respect to the Senior Debt of such Guarantor are paid in full
in cash, any payment or other distribution to which Noteholders would be entitled but for this
Article 13 shall be made to holders of such Senior Debt as their interests may appear, except that
Noteholders may receive and retain Permitted Junior Securities and payments made from a trust
already established pursuant to Article 8 of this Second Supplemental Indenture or Article Four of
the Original Indenture.


Section 13.03. Default on Senior Debt.




     No Guarantor shall make any payment under its Subsidiary Guarantee, whether in respect of the
principal of, premium, if any, or interest on the Notes or make any deposit pursuant to Article 8
of this Second Supplemental Indenture or Article Four of the Original Indenture and shall not
purchase, redeem or otherwise retire any Notes or make any other payment with respect to the Notes
(collectively, “pay its Subsidiary Guarantee”), except that Noteholders may receive and retain
Permitted Junior Securities and payments made from a trust already established pursuant to Article
8 of this Second Supplemental Indenture or Article Four of the Original Indenture, if either:



     (1) a default (a “payment default”) in the payment of the principal of, premium, if any, or
interest on, or any other Obligation in respect of, any Designated Senior Debt of such Guarantor
occurs and is continuing beyond any applicable grace period; or



73









 





     (2) any other default (a “nonpayment default”) occurs and is continuing with respect to any
Designated Senior Debt of such Guarantor that permits holders of such Designated Senior Debt to
accelerate its maturity (or that would permit such holders to accelerate with the giving of notice
or the passage of time or both) and the Trustee receives a notice of such default (a “Subsidiary
Guarantee Payment Blockage Notice”) from such Guarantor or the holders of such Designated Senior
Debt.



     Except as provided in Section 13.02 hereof, payments on the Subsidiary Guarantees may and
shall be resumed:



     (1) in the case of a payment default, upon the date on which such default is cured or waived;
and



     (2) in the case of a nonpayment default, upon the earlier of the date on which such nonpayment
default is cured or waived or 179 days after the date on which the applicable Subsidiary Guarantee
Payment Blockage Notice is received, unless the maturity of any Designated Senior Debt has been
accelerated.



     No new Subsidiary Guarantee Payment Blockage Notice may be delivered unless and until 360 days
have elapsed since the delivery of the immediately prior Subsidiary Guarantee Payment Blockage
Notice. No nonpayment default that existed or was continuing with respect to any Designated Senior
Debt on the date of delivery of any Subsidiary Guarantee Payment Blockage Notice to the Trustee
with respect to such Designated Senior Debt shall be, or be made, the basis for a subsequent
Subsidiary Guarantee Payment Blockage Notice unless such default has been cured or waived for a
period of not less than 90 days.


Section 13.04. Demand for Payment.




     If a demand for payment is made by the Trustee on a Guarantor pursuant to Article 10, such
Guarantor shall promptly notify the holders of Designated Senior Debt of such Guarantor (or their
Representatives) of such demand.


Section 13.05. When Distribution Must Be Paid Over; Reinstatement of Senior Debt.




     If a distribution is made to the Trustee or any of the Noteholders that because of this
Article 13 should not have been made to them, the Trustee or any of the Noteholders who receive the
distribution shall hold it in trust for holders of Senior Debt of the applicable Guarantor and (in
the case of the Trustee, to the extent still in its possession) pay it over and deliver it to them
(or their Representatives) as their interests may appear.



     To the extent any payment of or distribution in respect of Senior Debt (whether by or on
behalf of any Guarantor as proceeds of security or enforcement of any right of setoff or otherwise)
is declared to be fraudulent or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then if such payment or
distribution is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.



74









 




Section 13.06. Subrogation.




     After all Senior Debt of a Guarantor is paid in full (and all commitments with respect to such
Senior Debt have terminated) and until the Notes are paid in full, Noteholders shall be subrogated
to the rights of holders of such Senior Debt to receive distributions applicable to Senior Debt of
such Guarantor. A distribution made under this Article 13 to holders of such Senior Debt which
otherwise would have been made to Noteholders is not, as between the relevant Guarantor and
Noteholders, a payment by such Guarantor on such Senior Debt.


Section 13.07. Relative Rights.




     This Article 13 defines the relative rights of Noteholders and holders of Senior Debt of a
Guarantor. Nothing in the Indenture shall:



     (1) impair, as between a Guarantor and Noteholders, the obligation of such Guarantor, which is
absolute and unconditional, to pay its Subsidiary Guarantee to the extent set forth in Article 10;
or



     (2) prevent the Trustee or any Noteholder from exercising its available remedies upon a
default by such Guarantor under its Subsidiary Guarantee, subject to the rights of holders of
Senior Debt of such Guarantor to receive payments and distributions otherwise payable to
Noteholders and to block payments on the Notes as provided in this Article 13.


Section 13.08. Subordination May Not Be Impaired by Guarantors.




     No right of any present or future holders of any Senior Debt of any Guarantor to enforce
subordination as provided in this Article 13 will at any time in any way be prejudiced or impaired
by noncompliance by such Guarantor with the terms of the Indenture, regardless of any knowledge
thereof that any such Holder of Senior Debt may have or otherwise be charged with.


Section 13.09. Rights of Trustee and Paying Agent; Rights of Holders of Senior Debt.




     Notwithstanding Section 13.03 hereof, the Trustee or Paying Agent shall continue to make
payments on any Subsidiary Guarantee and shall not be charged with knowledge of the existence of
facts that under this Article 13 would prohibit the making of any such payments unless, not less
than one Business Day prior to the date of such payment, a Responsible Officer of the Trustee
receives written notice that such payments are prohibited by this Article 13. The Company, the
relevant Guarantor, the Registrar, the Paying Agent, a Representative or a holder of Senior Debt of
such Guarantor shall be entitled to give the notice; provided, however, that, if an issue of Senior
Debt of any Guarantor has a Representative, only the Representative shall be entitled to give the
notice.



     The Trustee in its individual or any other capacity shall be entitled to hold Senior Debt of
any Guarantor with the same rights it would have if it were not the Trustee. The Registrar and the
Paying Agent may do the same with like rights. The Trustee shall be entitled to all the rights set
forth in this Article 13 with respect to any Senior Debt of any Guarantor which may at any time be
held by it, to the same extent as any other holder of such Senior Debt; and nothing in Article Six
of the Original Indenture shall deprive the Trustee of any of its rights as such holder.



75









 




Nothing in
this Article 13 shall apply to claims of, or payments to, the Trustee under or pursuant to Section
607 of the Original Indenture.




     The holders of Senior Debt may, at any time and from time to time subject to the terms of such
Senior Debt, without the consent of or notice to the Trustee or the Noteholders, without incurring
responsibility to the Noteholders and without impairing or releasing the subordination provided in
the Indenture or the obligations hereunder of the Noteholders to the holders of Senior Debt, do any
one or more of the following:



     (1) change the manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Debt or any instrument evidencing the same or any agreement under which Senior Debt
is outstanding or secured;



     (2) sell, exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt;



     (3) release any Person liable in any manner for the collection of Senior Debt; and



     (4) exercise or refrain from exercising any rights against any Guarantor and any other Person.


Section 13.10. Distribution or Notice to Representative.




     Whenever any Person is to make a distribution or give a notice to holders of Senior Debt of
any Guarantor, such Person shall be entitled to make such distribution or give such notice to their
Representative (if any).


Section 13.11. Article 13 Not to Prevent Events of Default or Limit Right to Demand
Payment.




     The failure to make a payment pursuant to a Subsidiary Guarantee by reason of any provision in
this Article 13 shall not be construed as preventing the occurrence of a Default. Nothing in this
Article 13 shall have any effect on the right of the Noteholders or the Trustee to make a demand
for payment on any Guarantor pursuant to its Subsidiary Guarantee.


Section 13.12. Trust Moneys Not Subordinated.




     Notwithstanding anything contained herein to the contrary, payments from money or the proceeds
of Government Securities held in trust under Article 8 hereof or Article Four of the Original
Indenture by the Trustee for the payment of principal of, premium, if any, and interest on the
Notes shall not be subordinated to the prior payment of any Senior Debt of any Guarantor or subject
to the restrictions set forth in this Article 13, and none of the Noteholders shall be obligated to
pay over any such amount to any Guarantor or any holder of Senior Debt of any Guarantor or any
other creditor of any Guarantor.


Section 13.13. Trustee Entitled to Rely.




     Upon any payment or distribution pursuant to this Article 13, the Trustee and the Noteholders
shall be entitled to rely (1) upon any order or decree of a court of competent



76









 




jurisdiction in
which any proceedings of the nature referred to in Section 13.02 hereof are pending, (2) upon a
certificate of the liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Noteholders or (3) upon the Representatives for the holders of Senior Debt
of any Guarantor for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of such Senior Debt and other Debt of such Guarantor, the
amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 13. In the event that the Trustee determines, in good
faith, that evidence is required with respect to the right of any Person as a holder of Senior Debt
of any Guarantor to participate in any payment or distribution
pursuant to this Article 13, the Trustee shall be entitled to request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt of such
Guarantor held by such Person, the extent to which such Person is entitled to participate in such
payment or distribution and other facts pertinent to the rights of such Person under this Article
13, and, if such evidence is not furnished, the Trustee shall be entitled to defer any payment to
such Person pending judicial determination as to the right of such Person to receive such payment.
The provisions of Sections 601 and 603 of the Original Indenture shall be applicable to all actions
or omissions of actions by the Trustee pursuant to this Article 13.



Section 13.14. Trustee to Effectuate Subordination.




     Each Noteholder by accepting a Note authorizes and directs the Trustee on its behalf to take
such action as may be necessary or appropriate to effectuate the subordination provided in this
Article 13 and appoints the Trustee as attorney-in-fact for any and all such purposes.


Section 13.15. Trustee Not Fiduciary for Holders of Senior Debt of Guarantors.




     The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt of any
Guarantor and, subject to Section 601 of the Original Indenture, shall not be liable to any such
holders if it shall mistakenly pay over or distribute to Noteholders or the Company or any other
Person, money or assets to which any holders of such Senior Debt shall be entitled by virtue of
this Article 13 or otherwise.


Section 13.16. Reliance by Holders of Senior Debt of Guarantors on Subordination
Provisions.




     Each Noteholder by accepting a Note acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to each holder of any
Senior Debt of any Guarantor, whether such Senior Debt was created or acquired before or after the
issuance of the Notes, to acquire and continue to hold, or to continue to hold, such Senior Debt
and such holder of Senior Debt shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Debt.



[Signatures on following page]



77









 





SIGNATURES




	 	 	 	 	 
	 	Whiting Petroleum Corporation

 	 
	 	By:  	/s/ James J. Volker
 	 
	 	 	James J. Volker 	 
	 	 	Chairman, President and

Chief Executive Officer 	 



	 	 	 	 	 
	 	Whiting Oil and Gas Corporation

 	 
	 	By:  	/s/ James J. Volker
 	 
	 	 	James J. Volker 	 
	 	 	Chairman, President and

Chief Executive Officer 	 



[Signature Page to Second Supplemental Indenture]




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	The Bank of New York Mellon 

Trust Company, N.A.,

as Trustee

 	 
	 	By:  	/s/ Sharon K. McGrath
 	 
	 	 	Name:  	Sharon K. McGrath 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Second Supplemental Indenture]






 











 





EXHIBIT A




[FORM OF FACE OF NOTE]




Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (“DTC”), to the issuer or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such
other name as is requested by an authorized representative of DTC (and any payment is made to Cede
& Co. or to such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.




     THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE HEREINAFTER REFERENCED.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED
HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.



WHITING PETROLEUM CORPORATION




	 	 	 	 	 

	No. __

	 	 	$	 






CUSIP No. 966387 AF9

ISIN No. US966387AF99




61/2% Senior Subordinated Note due 2018




     Whiting Petroleum Corporation, a Delaware corporation, promises to pay to                     , or
registered assigns, the principal sum of                      Dollars on October 1, 2018 [or such greater or
lesser amount as may be indicated on Schedule A hereto].1



     Interest Payment Dates: April 1 and October 1.



     Record Dates: March 15 and September 15.



     Additional provisions of this Note are set forth on the other side of this Note.



	 	 	 	 	 
	 	WHITING PETROLEUM CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	1	 	If this Note is a Global Security, add this provision.




A - 1









 









ATTEST:




					
	 
	 
	Name: 	 
	Title: 	 
	
TRUSTEE’S CERTIFICATE OF AUTHENTICATION



	 	 
	
This is one of the Securities of the
series designated therein referred to in the
within-mentioned Indenture.




	THE BANK OF NEW YORK MELLON
 TRUST COMPANY, N.A., As Trustee



	 	
 	 
	By  	 	 
	 	Authorized Officer 	 
	 	 	 	 


Dated:







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[FORM OF REVERSE SIDE OF NOTE]




61/2% Senior Subordinated Note due 2018




     Capitalized terms used herein but not defined shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.



     1. Interest. Whiting Petroleum Corporation, a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 6.50% per annum from September 24,
2010 until maturity. The Company will pay interest semi-annually in arrears on April 1 and October
1 of each year, commencing April 1, 2011, or if any such day is not a Business Day, on the next
succeeding Business Day (each an “Interest Payment Date”). Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no interest has been paid, from the
date of original issuance; provided that if there is no existing Default or Event of Default in the
payment of interest, and if this Note is authenticated between a record date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date, except in the case of the original issuance of Notes, in which
case interest shall accrue from the date of authentication. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal
and premium, if any, from time to time on demand at a rate that is the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace periods) from time to time
on demand at the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.



     2. Method of Payment. The Company will pay interest on the Notes to the Persons who
are registered Holders of Notes at the close of business on the March 15 or September 15 next
preceding the Interest Payment Date, even if such Notes are cancelled after such record date and on
or before such Interest Payment Date, except as provided in Section 307 of the Indenture with
respect to Defaulted Interest. Holders must surrender Notes to the Paying Agent to collect
payments of principal and premium, if any, together with accrued and unpaid interest due at
maturity. The Notes will be payable as to principal, premium, if any, and interest at the office
or agency of the Company maintained for such purpose within the City and State of New York, or, at
the option of the Company, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the Security Register of Holders, and provided that payment by wire transfer
of immediately available funds will be required with respect to any amounts due on all Global
Securities and all other Notes the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private
debts.



     3. Paying Agent and Registrar. Initially, The Bank of New York Mellon Trust Company,
N.A., the Trustee under the Indenture, will act as Paying Agent and Security Registrar. The
Company may change any Paying Agent or Security Registrar without notice to any Holder. The
Company or any of its Domestic Subsidiaries may act in any such capacity.



     4. Indenture. This Note is one of a duly authorized issue of the series of Securities
of the Company designated as its 61/2% Senior Subordinated Notes due 2018 (the “Notes”), issued under
a Subordinated Indenture, dated as of April 19, 2005 (“Original Indenture”), among the Company, the
Guarantors and the Trustee, as supplemented and amended by the Second



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Supplemental Indenture (herein so called), dated as of September 24, 2010 (the Original
Indenture, as so supplemented and amended, being called herein the “Indenture”). Capitalized terms
herein are used as defined in the Indenture unless otherwise indicated. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a statement of such
terms. The Notes are unsecured senior subordinated obligations of the Company limited to
$350,000,000 aggregate principal amount in the case of Notes issued on the Issue Date. The Company
may, subject to Sections 2.05 and 4.09 of the Second Supplemental Indenture, issue Additional Notes
under the Indenture after the Issue Date in either a limited or an unlimited aggregate principal
amount. Any Additional Notes so issued and the Initial Notes shall be treated as a single class
under the Indenture.




     5. Optional Redemption.



     (a) Except as set forth in subparagraphs (b) and (c) of this Paragraph 5 or in Section 4.15 of
the Second Supplemental Indenture, the Company shall not have the option to redeem the Notes prior
to October 1, 2014. On and after October 1, 2014, the Company may on any one or more occasions
redeem the Notes, in whole or in part, upon prior notice as set forth in Paragraph 8, at the
Redemption Prices (expressed as percentages of principal amount) set forth below, plus accrued and
unpaid interest, if any, to the applicable Redemption Date (subject to the right of Holders of
record on the relevant record date to receive interest due on an Interest Payment Date that is on
or prior to the Redemption Date), if redeemed during the twelve-month period beginning on October 1
of the years indicated below:



	 	 	 	 	 
	YEAR	 	PERCENTAGE	 
	2014
	 	 	103.250	%
	2015
	 	 	101.625	%
	2016 and thereafter
	 	 	100.000	%






     (b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior
to October 1, 2013, the Company may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes (including any Additional Notes) issued under the Indenture at a
Redemption Price of 106.500% of the principal amount thereof, plus accrued and unpaid interest, if
any, thereon to the Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date), with the net cash proceeds of one or more Equity Offerings by the Company,
provided that (i) at least 65% of the aggregate principal amount of Notes (including any Additional
Notes) issued under the Indenture remains outstanding immediately after the occurrence of each such
redemption and (ii) each such redemption occurs within 120 days of the date of the closing of each
such Equity Offering.



     (c) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior
to October 1, 2014, the Company may on any one or more occasions redeem the Notes, in whole or in
part, at the Redemption Price of 100% of the principal amount thereof plus the Applicable Premium
as of, plus accrued and unpaid interest, if any, to, the Redemption Date (subject to the right of
Holders of record on the relevant record date to receive interest due on an Interest Payment Date
that is on or prior to the Redemption Date).



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     6. Mandatory Redemption.



     Except as set forth in paragraph 7 below, the Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes or to repurchase the Notes at the
option of the Holders.



     7. Repurchase at Option of Holder.



     (a) Within 30 days following the occurrence of a Change of Control, the Company shall make an
offer (a “Change of Control Offer”) to repurchase all or any part (equal to $2,000 or any integral
$1,000 multiple in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the
aggregate principal amount of Notes repurchased, plus accrued and unpaid interest, if any, to the
date of settlement (the “Change of Control Settlement Date”), subject to the right of Holders of
record on the relevant record date to receive interest due on an Interest Payment Date that is on
or prior to the Change of Control Settlement Date. Within 30 days following a Change of Control,
the Company shall mail a notice of the Change of Control Offer to each Holder and the Trustee
describing the transaction that constitutes the Change of Control and setting forth the procedures
governing the Change of Control Offer as required by Section 4.15 of the Second Supplemental
Indenture.



     (b) On the 361st day after an Asset Sale, if the aggregate amount of Excess Proceeds then
exceeds $50.0 million, the Company shall commence an offer to all Holders of Notes (an “Asset Sale
Offer”) pursuant to Section 3.04 of the Second Supplemental Indenture, and to all holders of any
Pari Passu Indebtedness then outstanding, to purchase the maximum principal amount of Notes and
such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in
cash in an amount equal to 100% of the principal amount of the Notes plus accrued and unpaid
interest, if any, thereon to the date of settlement, subject to the right of Holders of record on
the relevant record date to receive interest due on an Interest Payment Date that is on or prior to
the Change of Control Settlement Date, in accordance with the procedures set forth in the
Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company
may use such remaining Excess Proceeds for any purpose not otherwise prohibited by the Indenture.
If the aggregate principal amount of Notes surrendered by Holders thereof and Pari Passu
Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and Pari Passu Indebtedness to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in
denominations of $2,000, or integral $1,000 multiples in excess thereof, shall be purchased) on the
basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. Holders of
Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes purchased by completing
the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes.



     8. Notice of Redemption. Notice of redemption will be mailed at least 30 days but not
more than 60 days (except as otherwise provided in the Indenture if the notice is issued in
connection with a Covenant Defeasance, Legal Defeasance or Discharge) before the Redemption Date to
each Holder whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the Redemption Date interest ceases to
accrue on Notes or portions thereof called for redemption.



A - 5









 





     9. Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. The
transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The
Company or the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents, and may require a Holder to pay any taxes due on transfer or
exchange. The Company need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being redeemed in part.
Also, it need not exchange or register the transfer of any Notes for a period of 15 days before the
day of the mailing of a notice of redemption of Notes selected for redemption.



     10. Persons Deemed Owners. The registered Holder of a Note may be treated as its
owner for all purposes.



     11. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture,
the Notes or the Subsidiary Guarantees may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the then outstanding Notes, and any
existing default or compliance with any provision of the Indenture, the Notes or the Subsidiary
Guarantees may be waived with the consent of the Holders of a majority in aggregate principal
amount of the then outstanding Notes. Without the consent of any Holder of a Note, the Indenture,
the Notes or the Subsidiary Guarantees may be amended or supplemented to cure any ambiguity, defect
or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company’s or a Guarantor’s obligations to Holders of
the Notes pursuant to Article 5 of the Second Supplemental Indenture, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that does not adversely
affect the legal rights under the Indenture of any such Holder, provided that any change to conform
the Indenture to the Company’s prospectus relating to the offering of the notes shall not be deemed
to adversely affect the legal rights under the Indenture of any Holder, to secure the Notes or the
Subsidiary Guarantees pursuant to Section 4.12 of the Second Supplemental Indenture or otherwise,
to provide for the issuance of Additional Notes in accordance with the limitations set forth in the
Indenture, to add any additional Guarantor with respect to the Notes or to evidence the release of
any Guarantor from its Subsidiary Guarantee, in each case as provided in the Indenture, to comply
with the requirements of the SEC in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act, to evidence or provide for the acceptance of appointment under the
Indenture of a successor Trustee, to add to, change or eliminate any provisions of the Indenture in
respect of one or more other series of Securities or to establish the forms or terms of Securities
of any other series as permitted by the Indenture.



     12. Defaults and Remedies. Events of Default with respect to the Notes include: (i)
default for 30 days in the payment when due of interest on the Notes; (ii) default in payment when
due of the principal of or premium, if any, on the Notes when due at Stated Maturity, upon optional
redemption, upon required repurchase, upon declaration or otherwise; (iii) failure by the Company
to comply with Section 4.07, 4.09, 4.10, 4.15 or 5.01 of the Second Supplemental Indenture; (iv)
failure by the Company for 60 days after notice to comply with any of its other agreements in the
Indenture or the Notes; (v) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by
the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether



A - 6









 




such Indebtedness or guarantee now exists or is created after the Issue Date, if such default
(a) is caused by a failure to pay principal of, or premium or interest, if any, on such
Indebtedness prior to the expiration of any grace period provided in such Indebtedness (a “Payment
Default”) or (b) results in the acceleration of such Indebtedness prior to its Stated Maturity and,
in each case, the principal amount of any such Indebtedness, together with the principal amount of
any other such Indebtedness under which there has been a Payment Default or the maturity of which
has been so accelerated, aggregates in excess of 50.0 million or more; provided, that if any such
default is cured or waived or any such acceleration is rescinded, or such Indebtedness is repaid,
within a period of 10 days from the continuation of such default beyond the applicable grace period
or the occurrence of such acceleration, as the case may be, such Event of Default under the
indenture and any consequential acceleration of the notes shall be automatically rescinded; (vi)
failure by the Company or any of its Significant Subsidiaries to pay final judgments aggregating in
excess of $50.0 million, which judgments are not paid, discharged or stayed (including a stay
pending appeal) for a period of 60 days after the date of such final judgment (or, if later, the
date when payment is due pursuant to such judgment); (vii) except as permitted by the Indenture,
any Subsidiary Guarantee is held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect or any Guarantor, or any Person acting on
behalf of any Guarantor, denies or disaffirms its obligations under its Subsidiary Guarantee (other
than by reason of release of a Guarantor from its Subsidiary Guarantee in accordance with the terms
of the indenture); and (viii) certain events of bankruptcy, insolvency or reorganization with
respect to the Company, any Significant Subsidiary or any group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary as specified in Section 501(8) or 501(9) of the
Original Indenture. If any Event of Default occurs and is continuing, the Trustee, by notice to
the Company, or the Holders of at least 25% in aggregate principal amount of the then outstanding
Notes, by notice to the Company and the Trustee, may declare all the Notes to be due and payable
immediately. Notwithstanding the preceding, in the case of an Event of Default arising from
certain events of bankruptcy, insolvency or reorganization with respect to the Company, any
Significant Subsidiary or any group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary described in Section 501(8) or 501(9) of the Original Indenture, all
outstanding Notes will become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power conferred on it. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default with respect to the Notes
(except a Default or Event of Default relating to the payment of principal, premium, if any, or
interest) if it determines that withholding notice is in their interest. The Holders of a majority
in principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any past Default or Event of Default with respect to the Notes
and its consequences under the Indenture except a continuing Default or Event of Default in the
payment of the principal of or premium, if any, or interest on the Notes. The Company is required
to deliver to the Trustee annually a statement regarding compliance with the Indenture, and, so
long as any Notes are outstanding, the Company is required upon becoming aware of any Default or
Event of Default with respect to the Notes, to deliver to the Trustee a statement specifying such
Default or Event of Default.




     13. Defeasance and Discharge. The Notes are subject to defeasance and discharge upon
the terms and conditions specified in the Indenture.



A - 7









 





     14. Subordination. The indebtedness evidenced by this Note is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior payment in full of all
Senior Debt of the Company, and this Note is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Note, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes.



     15. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, member, partner or stockholder or other owner of Capital Stock of the
Company or any Guarantor, as such, shall have any liability for any obligations of the Company or
any Guarantor under the Notes, the Subsidiary Guarantees or the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of the consideration
for the issuance of the Notes.



     16. Authentication. This Note shall not be valid until authenticated by the manual
signature of an authorized signatory of the Trustee or an authenticating agent.



     17. Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).



     18. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on
the Notes and the Trustee may use CUSIP numbers and corresponding ISIN numbers in notices of
redemption as a convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.



     19. Governing Law. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     20. Successor Corporation. In the event a successor assumes all the obligations of
the Company under the Notes and the Indenture, pursuant to the terms thereof, the Company will be
released from all such obligations.



     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:


Whiting Petroleum Corporation

1700 Broadway, Suite 2300

Denver, Colorado 80290-2300

Attention: Chief Financial Officer





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ASSIGNMENT FORM




     To assign this Note, fill in the form below:



     I or we assign and transfer this Note to



 



Print or type assignee’s name, address and zip code)




 




(Insert assignee’s soc. sec. or tax I.D. No.)


and irrevocably appoint                      agent to transfer this Note on the books of the Company.
The agent may substitute another to act for him.




	 	 	 	 	 	 	 

	Date:

	 	 	 	Your Signature: 	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	Sign exactly as your name appears on the other side of this Note.






A - 9









 






OPTION OF HOLDER TO ELECT PURCHASE




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.15 of the Second Supplemental Indenture, check the box below:



o



     If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Second Supplemental Indenture, state the amount (in minimum
denomination of equal to $2,000 or any integral $1,000 multiple in excess thereof) you elected to
have purchased: $                    




	 	 	 	 	 	 	 

	Date:

	 	 	 	Your Signature: 	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	(Sign exactly as your
name appears on the other side of this Note)






Soc. Sec. or Tax Identification No.:                      




	 	 	 	 	 

	Signature Guarantee:
	 	 	 	 
	 

	 	 

(Signature must be guaranteed)
	 	 






     Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.



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[TO BE ATTACHED TO GLOBAL SECURITY]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY


The following increases or decreases in this Global Security have been made:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal	 	 
	 	 	Amount of	 	Amount of	 	Amount of this	 	 
	 	 	decrease in	 	increase in	 	Global Security	 	Signature of
	 	 	Principal	 	Principal	 	following such	 	authorized
	 	 	Amount of this	 	Amount of this	 	decrease or	 	officer
	Date	 	Global Security	 	Global Security	 	increase	 	of Trustee







A - 11











 





EXHIBIT B




 





WHITING PETROLEUM CORPORATION




And



the Guarantors named herein



 





61/2% SENIOR SUBORDINATED NOTES

DUE 2018



 





FORM OF SUPPLEMENTAL INDENTURE

AND AMENDMENT — SUBSIDIARY GUARANTEE



DATED AS OF                      ,      



 





THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,



Trustee



 





 






B - 1









 








     This SUPPLEMENTAL INDENTURE, dated as of                      ,       is among Whiting Petroleum
Corporation, a Delaware corporation (the “Company”), each of the parties identified under the
caption “Guarantors” on the signature page hereto (the “Guarantors”) and The Bank of New York
Mellon Trust Company, N.A., a national banking association, as Trustee.



RECITALS



     WHEREAS, the Company, the initial Guarantors and the Trustee entered into a Subordinated
Indenture, dated as of April 19, 2005 (the “Original Indenture”), as supplemented and amended by
the Second Supplemental Indenture (herein so called) thereto, dated as of September 24, 2010 (the
Original Indenture as so supplemented and amended being called herein the “Indenture”), pursuant to
which the Company has issued $350,000,000 in principal amount of 61/2% Senior Subordinated Notes due
2018 (the “Notes”); and



     WHEREAS, Section 901(vii) of the Original Indenture provides that the Company, the Guarantors
and the Trustee may amend or supplement the Indenture in order to add Guarantors with respect to
the Notes, without the consent of the Holders of the Notes; and



     WHEREAS, all acts and things prescribed by the Indenture, by law and by the Certificate of
Incorporation and the Bylaws (or comparable constituent documents) of the Company, of the
Guarantors and of the Trustee necessary to make this Supplemental Indenture a valid instrument
legally binding on the Company, the Guarantors and the Trustee, in accordance with its terms, have
been duly done and performed;



     NOW, THEREFORE, to comply with the provisions of the Indenture and in consideration of the
above premises, the Company, the Guarantors and the Trustee covenant and agree for the equal and
proportionate benefit of the respective Holders of the Notes as follows:



ARTICLE 1



     Section 1.01. This Supplemental Indenture is supplemental to the Indenture and does and shall
be deemed to form a part of, and shall be construed in connection with and as part of, the
Indenture for any and all purposes.



     Section 1.02. This Supplemental Indenture shall become effective immediately upon its
execution and delivery by each of the Company, the Guarantors and the Trustee.



ARTICLE 2



     From this date, by executing this Supplemental Indenture, the Guarantors whose signatures
appear below shall be Guarantors with respect to the Notes on terms contemplated by and subject to
the provisions of Article 10 of the Indenture.



ARTICLE 3



     Section 3.01. Except as specifically modified herein, the Indenture and the Notes are in all
respects ratified and confirmed (mutatis mutandis) and shall remain in full force and effect in



B - 2









 




accordance with their terms with all capitalized terms used herein without definition having
the same respective meanings ascribed to them as in the Indenture.




     Section 3.02. Except as otherwise expressly provided herein, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this
Supplemental Indenture. This Supplemental Indenture is executed and accepted by the Trustee
subject to all the terms and conditions set forth in the Indenture with the same force and effect
as if those terms and conditions were repeated at length herein and made applicable to the Trustee
with respect hereto.



     Section 3.03. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.



     Section 3.04. The parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of such executed copies together shall represent the same
agreement.



[NEXT PAGE IS SIGNATURE PAGE]



B - 3









 





     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first written above.



	 	 	 	 	 
	 	WHITING PETROLEUM CORPORATION

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GUARANTORS

[                                        ]

 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE BANK OF NEW YORK MELLON

TRUST COMPANY, N.A., as Trustee

 	 
	 	By  	 	 




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