exv4w1






Exhibit 4.1




 





FIRST AMENDMENT TO




FOURTH AMENDED AND RESTATED CREDIT AGREEMENT




dated as of




June 15, 2009




among




WHITING PETROLEUM CORPORATION,

as Parent Guarantor,




WHITING OIL AND GAS CORPORATION,

as Borrower,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,




and




The Lenders Party Hereto




 






BANK OF AMERICA, N.A. and

WELLS FARGO BANK, N.A.,

as Syndication Agents




CALYON NEW YORK BRANCH and

COMPASS BANK,

as Documentation Agents




 






J.P. MORGAN SECURITIES INC.,

as Sole Lead Arranger and Sole Bookrunner




 





 









 





FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT




     THIS FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “First
Amendment”) dated as of June 15, 2009, is among WHITING PETROLEUM CORPORATION, a
Delaware corporation, as the Parent Guarantor, WHITING OIL AND GAS CORPORATION, a Delaware
corporation, as the Borrower, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the
other Agents the Lenders party hereto.



R E C I T A L S




     A. The Parent Guarantor, the Borrower, the Administrative Agent, other parties as agents and
the Lenders are parties to that certain Fourth Amended and Restated Credit Agreement dated as of
April 28, 2009 (the “Credit Agreement”), pursuant to which the Lenders have made certain
loans to and extensions of credit for the account of the Borrower.



     B. The Borrower has requested and the Majority Lenders have agreed to amend certain provisions
of the Credit Agreement.



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


Section 1. Defined Terms. Each capitalized term used herein but not otherwise defined
herein has the meaning given such term in the Credit Agreement. Unless otherwise indicated, all
article and section references in this First Amendment refer to articles and sections of the Credit
Agreement.




Section 2.  Amendments to Credit Agreement.




     2.1  Amendments to Section 1.02.



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





     “Agreement” means this Credit Agreement, as amended by the First
Amendment and as the same may from time to time be amended, modified, supplemented
or restated.



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





     “First Amendment” means the First Amendment to Fourth Amended and
Restated Credit Agreement dated as of June 15, 2009 among the Parent Guarantor, the
Borrower, the Administrative Agent and the other Agents and the Lenders party
thereto.



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     “Designated Preferred Convertible Stock” means any series of the Parent
Guarantor’s cumulative perpetual convertible preferred Equity Interests which (a)
have liquidation preference to common Equity Interests of the Parent Guarantor, (b)
are convertible at the option of the holder or the Parent Guarantor into shares of
common Equity Interests of the Parent Guarantor, (c) are not Disqualified Capital
Stock, (d) have a stated dividend rate not to exceed 7% per annum and (e) have terms
reasonably acceptable to the Administrative Agent; provided that the aggregate
liquidation preference of all Designated Preferred Convertible Stock outstanding
shall not exceed $345,000,000.00 at any time.



     2.2 Restricted Payments. Section 9.04(a) is hereby deleted and replaced in its
entirety to read as follows:




     (a) Restricted Payments. The Parent Guarantor will not, and will not
permit any Credit Party to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, return any capital to its stockholders on
account of such Equity Interests or make any distribution of its Property to its
Equity Interest holders on account of such Equity Interests, except




     (i) the Parent Guarantor may declare and pay dividends with respect to its
Equity Interests payable solely in additional shares of its Equity Interests (other
than Disqualified Capital Stock),




     (ii) Subsidiaries may declare and pay dividends ratably with respect to their
Equity Interests,




     (iii) the Parent Guarantor may make Restricted Payments pursuant to and in
accordance with equity incentive plans, stock option plans or arrangements or other
benefit plans or arrangements for management, employees or directors of the Parent
Guarantor and the Credit Parties in an amount not to exceed $5,000,000 during any
fiscal year and $10,000,000 during the term of this Agreement,




     (iv) if no Default, Event of Default or Borrowing Base Deficiency exists at the
time of payment, then the Parent Guarantor may pay cash dividends on its Designated
Preferred Convertible Stock during the term hereof in an aggregate amount not to
exceed, as of the date of payment, the product of (A) the lesser of (1) $6,250,000
and (2) the aggregate liquidation preference of each outstanding series of
Designated Preferred Convertible Stock issued prior to July 31, 2009 times one
fourth of the corresponding stated dividend rate of each series, and (B)(1) the
number of calendar quarters occurring between June 15, 2009 and the date of such
payment for which the Parent Guarantor has not paid dividends in full with respect
to the Designated Preferred Convertible Stock (2) plus one, or




     (v) if no Default, Event of Default or Borrowing Base Deficiency exists at the
time of declaration, other Restricted Payments in an aggregate



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amount not to exceed $10,000,000 during any fiscal year and $20,000,000 during
the term of this Agreement.


Section 3. Conditions Precedent. This First Amendment shall not become effective until the
date on which each of the following conditions is satisfied (or waived in accordance with Section
12.02 of the Credit Agreement) (the “First Amendment Effective Date”):




     3.1 The Administrative Agent shall have received from the Majority Lenders, the Borrower and
each Guarantor, counterparts (in such number as may be requested by the Administrative Agent) of
this First Amendment signed on behalf of such Persons.



     3.2 The Administrative Agent shall have received such other documents as the Administrative
Agent or special counsel to the Administrative Agent may reasonably request.



     3.3 No Default or Event of Default shall have occurred and be continuing, both prior and after
giving effect to the terms of this First Amendment.



The Administrative Agent is hereby authorized and directed to declare this First Amendment to be
effective when it has received documents confirming or certifying, to the satisfaction of the
Administrative Agent, compliance with the conditions set forth in this Section 3 or the waiver of
such conditions as permitted hereby. Such declaration shall be final, conclusive and binding upon
all parties to the Credit Agreement for all purposes.



Section 4. Miscellaneous.



     4.1 Confirmation. The provisions of the Credit Agreement, as amended by this First
Amendment, shall remain in full force and effect following the effectiveness of this First
Amendment.



     4.2 Ratification and Affirmation; Representations and Warranties. Each of the
Borrower and each Guarantor hereby (a) ratifies and affirms its respective obligations under, and
acknowledges, renews and extends its respective continued liability under, each Loan Document to
which it is a party and agrees that each Loan Document to which it is a party remains in full force
and effect, except as expressly amended hereby, notwithstanding the amendments contained herein and
(b) represents and warrants to the Lenders that, as of the date hereof, after giving effect to the
terms of this First Amendment: (i) all of the representations and warranties contained in each
Loan Document to which it is a party are true and correct, except to the extent any such
representations and warranties are expressly limited to an earlier date, in which case, such
representations and warranties shall continue to be true and correct as of such specified earlier
date and (ii) no Default has occurred and is continuing.  



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



     4.4 Counterparts. This First Amendment may be executed by one or more of the parties
hereto in any number of separate counterparts, and all of such counterparts taken together



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shall be deemed to constitute one and the same instrument. Delivery of this First Amendment
by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.



     4.5 GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 



     4.6 Severability. Any provision of this First Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     4.7 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and its respective successors and assigns.



[SIGNATURES BEGIN NEXT PAGE]




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



	 	 	 	 	 	 	 
	PARENT GUARANTOR:	 	WHITING PETROLEUM CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ James J. Volker
 

James J. Volker
	 	 
	 

	 	Title:
	 	Chairman, President and Chief Executive
Officer	 	 
	 
	 	 	 	 	 	 
	BORROWER:	 	WHITING OIL AND GAS CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James J. Volker	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	James J. Volker	 	 
	 

	 	Title:
	 	Chairman, President and Chief Executive
Officer	 	 
	 
	 	 	 	 	 	 
	ADMINISTRATIVE AGENT:	 	JPMORGAN CHASE BANK, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brian Orlando	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Brian Orlando	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	SYNDICATION AGENTS:	 	BANK OF AMERICA, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Sandra M. Serie	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Sandra M. Serie	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A.
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William Champion	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	William Champion	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 






[Signature Page to First Amendment]





 












 





	 	 	 	 	 
	DOCUMENTATION AGENTS:	CALYON NEW YORK BRANCH

 	 
	 	By:  	/s/ Tom Beyargeon
 	 
	 	Name:  Tom Beyargeon 	 
	 	Title:     Managing Director 	 
	 
	 	By:  	                      /s/ Michael D. Willis
 	 
	 	Name:  Michael D. Willis 	 
	 	Title:    Managing Director 	 
	 
	 	COMPASS BANK

 	 
	 	By:  	/s/ Greg Determann
 	 
	 	Name:  Greg Determann 	 
	 	Title:    Vice President 	 
	 
	LENDERS:	JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	/s/ Brian Orlando
 	 
	 	Name:  Brian Orlando 	 
	 	Title:    Vice President 	 
	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ Sandra M. Serie
 	 
	 	Name:  Sandra M. Serie 	 
	 	Title:    Vice President 	 
	 
	 	WELL FARGO BANK, N.A.

 	 
	 	By:  	/s/ William Champion
 	 
	 	Name:  William Champion 	 
	 	Title:    Assistant Vice President 	 
	 



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	 	CALYON NEW YORK BRANCH

 	 
	 	By:  	/s/ Tom Beyargeon
 	 
	 	Name:  Tom Beyargeon 	 
	 	Title:    Managing Director



	 	 
 	 
	 	By:  	/s/ Michael D. Willis
 	 
	 	Name:  Michael D. Willis	 
	 	Title:    Managing Director 	 
	 
	 	COMPASS BANK

 	 
	 	By:  	/s/ Greg Determann
 	 
	 	Name:  Greg Determann 	 
	 	Title:    Vice President 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Bruce E. Hernandez
 	 
	 	Name:  Bruce E. Hernandez 	 
	 	Title:    Vice President 	 
	 
	 	UNION BANK, N.A.

(formerly known as Union Bank of California, N.A.)

 	 
	 	By:  	/s/ Whitney Randolph
 	 
	 	Name:  Whitney Randolph 	 
	 	Title:    Vice President 	 
	 
	 	BANK OF SCOTLAND plc

 	 
	 	By:  	 	 
	 	Name:   	 
	 	Title:     	 
	 



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	 	SUNTRUST BANK

 	 
	 	By:  	/s/ Yann Pirio
 	 
	 	Name:  Yann Pirio 	 
	 	Title:    Director 	 
	 
	 	THE BANK OF NOVA SCOTIA

 	 
	 	By:  	/s/ David G. Mills
 	 
	 	Name:  David G. Mills 	 
	 	Title:    Managing Director 	 
	 
	 	KEYBANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Todd Coker
 	 
	 	Name:  Todd Coker 	 
	 	Title:    Assistant Vice President 	 
	 
	 	COMERICA BANK

 	 
	 	By:  	/s/ Caroline M. McClurg
 	 
	 	Name:  Caroline M. McClurg 	 
	 	Title:    Vice President 	 
	 
	 	FORTIS CAPITAL CORPORATION

 	 
	 	By:  	/s/ Ilene Fowler
 	 
	 	Name:  Ilene Fowler 	 
	 	Title:    Director
	 	 	 
	 	By:  	/s/ David Montgomery
 	 
	 	Name:  David Montgomery	 
	 	Title:    Director 	 
	 



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	 	BARCLAYS BANK PLC

 	 
	 	By:  	/s/ Maria Lund
 	 
	 	Name:  Maria Lund 	 
	 	Title:    Vice President 	 
	 
	 	MORGAN STANLEY BANK

 	 
	 	By:  	 	 
	 	Name:   	 
	 	Title:     	 
	 
	 	RAYMOND JAMES BANK

 	 
	 	By:  	/s/ Garrett McKinnon
 	 
	 	Name:  Garrett McKinnon 	 
	 	Title:    Senior Vice President 	 
	 
	 	ROYAL BANK OF CANADA

 	 
	 	By:  	/s/ Jay T. Sartain
 	 
	 	Name:  Jay T. Sartain 	 
	 	Title:    Authorized Signatory 	 
	 
	 	BANK OF OKLAHOMA, N.A.

 	 
	 	By:  	/s/ Michael M. Logan
 	 
	 	Name:  Michael M. Logan 	 
	 	Title:    Senior Vice President 	 
	 



[Signature Page to First Amendment]




 









 








	 	 	 	 	 
	 	RZB FINANCE LLC

 	 
	 	By:  	/s/ Shirley Ritch
 	 
	 	Name:  Shirley Ritch 	 
	 	Title:    Vice President 	 
	 
	 	 	 
	 	By:  	                     /s/ John A. Valiska
 	 
	 	Name:  John A. Valiska 	 
	 	Title:    First Vice President 	 
	 



[Signature Page to First Amendment]