RAM Energy, Inc.,
and
Subsidiary Guarantors
and
United States Trust Company of New York,
Trustee
_________________________
SUPPLEMENTAL INDENTURE
Dated as of February 24, 1998
_________________________
11-1/2% Senior Notes Due 2008
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") is dated and
effective as of February 24, 1998, and is by and among RAM Energy, Inc., a
Delaware corporation (the "Company"), United States Trust Company of New York,
as Trustee (the "Trustee"), and Carlton Resources Corporation, a Delaware
corporation, ("Carlton"), Magic Circle Energy Corporation, a Delaware
corporation ("Magic Circle"), Xxxxxx Development Corporation, an Oklahoma
corporation ("CDC"), Magic Circle Acquisition Corporation, an Oklahoma
corporation ("Acquisition"), Onyx Properties Corporation, an Oklahoma
corporation ("Onyx"), MCENA, Inc., an Oklahoma corporation ("MCENA"), and
Xxxxxx Field Limited Partnership, an Oklahoma limited partnership ("Xxxxxx LP",
and together with Carlton, Magic Circle, CDC, Acquisition, Onyx and MCENA,
collectively, the "Additional Guarantors").
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Guarantors originally parties
thereto (the "Original Subsidiary Guarantors") and the Trustee, executed and
delivered that certain Indenture dated as of February 24, 1998 (the
"Indenture"), pursuant to which the Company originally issued $115,000,000 in
principal amount of 11-1/2% Senior Notes due 2008;
WHEREAS, Section 9.1(a)(vi) of the Indenture provides that the Company,
the Subsidiary Guarantors and the Trustee may, among other things, supplement
the Indenture in order to add a Restricted Subsidiary as an additional
Subsidiary Guarantor in compliance with Section 10.2 thereof, without the
consent of the Holders of the Notes;
WHEREAS, each of the Additional Guarantors has become a Restricted
Subsidiary of the Company as of the date hereof;
WHEREAS, this Supplemental Indenture is executed and delivered to the
Trustee pursuant to Sections 4.16 and 10.2(a) of the Indenture;
WHEREAS, the Company, the Original Subsidiary Guarantors, the Additional
Guarantors and the Trustee desire to enter into this Supplemental Indenture to
provide for each Additional Guarantor's guarantee in respect of the Notes on
the same terms and conditions as the Subsidiary Guarantees by the Original
Subsidiary Guarantors; and
WHEREAS, all acts and things prescribed by the Indenture, by law and by
the charter and bylaws of the Company, of each Subsidiary Guarantor, of each
party becoming a Subsidiary Guarantor and of the Trustee necessary to make this
Supplemental Indenture a valid instrument legally binding on the each of them,
in accordance with its terms, have been duly done and performed;
NOW, THEREFORE, to comply with the Indenture and in consideration of the
premises herein contained, and for reasonably equivalent value and other good
and valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the Company, the Additional Guarantors and the Trustee have
joined in the execution and delivery of this Supplemental Indenture.
SECTION 1. INCORPORATION OF INDENTURE; DEFINITIONS
1.01. INCORPORATION OF INDENTURE. This Supplemental Indenture con-
stitutes a supplement to the Indenture, and the Indenture and this
Supplemental Indenture shall be read together and shall have effect so far as
practicable as though all of the provisions thereof and hereof are contained in
one instrument.
1.02. DEFINITIONS. All capitalized terms used herein and not other-
wise defined herein shall have the respective meanings assigned to such
terms in the Indenture.
SECTION 2. AMENDING AND MODIFYING PROVISIONS
2.01. UNCONDITIONAL GUARANTEE. Each Additional Guarantor (hereinafter
referred to as a "Subsidiary Guarantor") hereby, jointly and severally,
agrees as follows:
(a) Each of the Subsidiary Guarantors hereby jointly and severally and
unconditionally guarantees, on a senior basis (each such guarantee being a
"Subsidiary Guarantee"), to each Holder of a Note authenticated and delivered
by the Trustee irrespective of the validity or enforceability of the Indenture,
the Notes or the obligations of the Company under the Indenture or the Notes,
that: (i) the principal of, premium, if any, and interest on the Notes shall be
paid in full when due, whether at the maturity or interest payment or optional
or mandatory redemption date, by acceleration, call for redemption or
otherwise, and interest on the overdue principal and interest, if any, of the
Notes and all other obligations of the Company to the Holders or the Trustee
under the Indenture or the Notes shall be promptly paid in full or performed,
all in accordance with the terms of the Indenture and the Notes and (ii) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, they shall be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed for whatever reason, each Subsidiary Guarantor shall be obligated to
pay the same whether or not such failure to pay has become an Event of Default
that could cause acceleration pursuant to Section 6.2 of the Indenture. Each
Subsidiary Guarantor agrees that this is a guarantee of payment not a guarantee
of collection.
(b) Each Subsidiary Guarantor hereby agrees that its obligations with
regard to its Subsidiary Guarantee shall be unconditional, irrespective of the
validity or enforceability of the Notes or the obligations of the Company under
the Indenture, the absence of any action to enforce the same, the recovery of
any judgment against the Company or any other obligor with respect to the
Indenture, the Notes or the obligations of the Company under the Indenture or
the Notes, any action to enforce the same or any other circumstances (other
than complete performance) that might otherwise constitute a legal or equitable
discharge or defense of a Subsidiary Guarantor. Each Subsidiary Guarantor
further, to the extent permitted by law, waives and relinquishes all claims,
rights and remedies accorded by applicable law to guarantors and agrees not to
assert or take advantage of any such claims, rights or remedies, including but
not limited to: (i) any right to require the Trustee, the Holders or the
Company (each, a "Benefitted Party") to proceed against the Company or any
other Person or to proceed against or exhaust any security held by a Benefitted
Party at any time or to pursue any other remedy in any Benefitted Party's power
before proceeding against such Subsidiary Guarantor; (ii) the defense of the
statute of limitations in any action hereunder or in any action for the
collection of any Indebtedness or the performance of any obligation hereby
guaranteed; (iii) any defense that may arise by reason of the incapacity, lack
of authority, death or disability of any other Person or the failure of a
Benefitted Party to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any other Person;
(iv) demand, protest and notice of any kind, including but not limited to,
notice of the existence, creation or incurring of any new or additional
Indebtedness or obligation or of any action or non-action on the part of such
Subsidiary Guarantor, the Company, any Benefitted Party, any creditor of such
Subsidiary Guarantor, the Company or on the part of any other Person whomsoever
in connection with any Indebtedness or obligations hereby guaranteed; (v) any
defense based upon an election of remedies by a Benefitted Party, including but
not limited to, an election to proceed against such Subsidiary Guarantor for
reimbursement; (vi) any defense based upon any statute or rule of law that
provides that the obligation of a surety must be neither larger in amount nor
in other respects more burdensome than that of the principal; (vii) any defense
arising because of a Benefitted Party's election, in any proceeding instituted
under any Bankruptcy Law, of the application of Section 1111(b)(2) under the
Bankruptcy Law; (viii) any defense based on any borrowing or grant of a
security interest under Section 364 under the Bankruptcy Law or (ix) any right
to require a proceeding first against the Company, protest, notice and all
demands whatsoever. Each Subsidiary Guarantor hereby covenants that its
Subsidiary Guarantee will not be discharged except by complete performance of
all of the obligations contained in its Subsidiary Guarantee, the Notes and the
Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise
to return to either the Company or any Subsidiary Guarantor, or any custodian,
trustee, or similar official acting in relation to either the Company or such
Subsidiary Guarantor, any amount paid by the Company or such Subsidiary
Guarantor to the Trustee or such Holder, the applicable Subsidiary Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and
effect. Each Subsidiary Guarantor agrees that it will not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
(d) Each Subsidiary Guarantor further agrees that, as between such
Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 6.2 of the Indenture for the purposes of
this Subsidiary Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration as to the Company or any other obligor
on the Notes of the obligations guaranteed hereby and (ii) in the event of any
declaration of acceleration of those obligations as provided in Section 6.2 of
the Indenture, those obligations (whether or not due and payable) will
forthwith become due and payable by such Subsidiary Guarantor for the purpose
of this Subsidiary Guarantee.
(e) Each Subsidiary Guarantor and by its acceptance hereof, each
beneficiary hereof, hereby confirm that it is its intention that the Subsidiary
Guarantee by such Subsidiary Guarantor not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to any of the Subsidiary Guarantees. To
effectuate the foregoing intention, each such Person hereby irrevocably agrees
that the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee under Article 10 of the Indenture shall be limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor
under its Subsidiary Guarantee or pursuant to its contribution obligations
under the Indenture, result in the obligations of such Subsidiary Guarantor
under the Subsidiary Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law.
(f) For purposes of the limitations and the applicable fraudulent
conveyance laws referred to in the preceding clause (e), any indebtedness of a
Subsidiary Guarantor incurred from time to time pursuant to a Permitted Bank
Credit Facility and secured by a perfected Lien on the assets of such
Subsidiary Guarantor (assuming, for purposes of such determination, that the
incurrence of any such indebtedness and the granting of any such security
interest did not violate any such fraudulent conveyance laws) shall be deemed,
to the extent of the value of the assets subject to such Lien, to have been
incurred prior to the incurrence by such Subsidiary Guarantor of liability
under its Subsidiary Guarantee.
(g) Each beneficiary under the Subsidiary Guarantees, by accepting the
benefits hereof, confirms its intention that, in the event of a bankruptcy,
reorganization or other similar proceeding of the Company or any Subsidiary
Guarantor in which concurrent claims are made upon such Subsidiary Guarantor
hereunder, to the extent such claims will not be fully satisfied, each claimant
with a valid claim against the Company shall be entitled to a ratable share of
all payments by such Subsidiary Guarantor in respect of such concurrent claims.
(h) In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, INTER SE, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under a Subsidiary Guarantee, such Funding Guarantor shall
be entitled to a contribution from all other Subsidiary Guarantors in a pro
rata amount based on the Adjusted Net Assets (as defined below) of each
Subsidiary Guarantor (including the Funding Guarantor) for all payments,
damages and expenses incurred by that Funding Guarantor in discharging the
Company's obligations with respect to the Notes or any other Subsidiary
Guarantor's obligations with respect to such Subsidiary Guarantee. "Adjusted
Net Assets" of such Subsidiary Guarantor at any date shall mean the lesser of
the amount by which (x) the fair value of the property of such Subsidiary
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities, but excluding liabilities under the
Subsidiary Guarantee of such Subsidiary Guarantor at such date and (y) the
present fair salable value of the assets of such Subsidiary Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Subsidiary Guarantor on its debts (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date and after giving
effect to any collection from any Subsidiary of such Subsidiary Guarantor in
respect of the obligations of such Subsidiary under the Subsidiary Guarantees),
excluding debt in respect of the Subsidiary Guarantees, as they become absolute
and matured.
(i) The obligations of the Subsidiary Guarantors to the Holders and the
Trustee pursuant to the Subsidiary Guarantees and the Indenture are otherwise
expressly set forth in Article 10 of the Indenture, and reference is hereby
made to such Indenture for the precise terms thereof and incorporation herein
for all intents and purposes. The Subsidiary Guarantees are subject to release
as and to the extent provided in Section 10.5 of the Indenture. Each
Subsidiary Guarantee is a continuing guarantee and shall remain in full force
and in effect and shall be binding upon each Subsidiary Guarantor and its
respective successors and assigns to the extent set forth in the Indenture
until full and final payment of all of the Company's obligations under the
Notes and the Indenture and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred in the Indenture upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof. Each Subsidiary Guarantee is a guarantee of payment and not a
guarantee of collection.
SECTION 3: MISCELLANEOUS
3.01 FULL FORCE AND EFFECT. The Indenture, as supplemented by this
Supplemental Indenture, remains in full force and effect and is hereby ratified
and confirmed as the valid and binding obligations of the parties hereto.
3.02 TRUSTEE. 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 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 applicable
to the Trustee with respect hereto. The Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company.
3.03. MULTIPLE COUNTERPARTS. This Supplemental Indenture may be executed
in multiple counterparts, and by each party hereto on separate counterparts,
each of which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
3.04. HEADINGS FOR CONVENIENCE ONLY. The headings of the Sections of
this Supplemental Indenture are used for convenience of reference only and
shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
3.05. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be executed and delivered effective as of the date first mentioned
hereinabove.
RAM Energy, Inc.
By XXXXX X. XXX
Xxxxx X. Xxx,
President
RB Operating Company,
a Delaware corporation
By XXXXX X. XXX
Xxxxx X. Xxx,
President
RLP Gulf States, L.L.C.,
an Oklahoma limited liability company
By: RAM Energy, Inc., Manager
By XXXXX X. XXX
Xxxxx X. Xxx, President
United States Trust Company of New York,
Trustee
By: XXXXXXXX XXXXXXX
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
Carlton Resources Corporation
By: XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
Magic Circle Energy Corporation
By: XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
Xxxxxx Development Corporation
By: XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
Magic Circle Acquisition Corporation
By: XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
Onyx Properties Corporation
By: XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
MCENA, INC.
By: XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
Xxxxxx Field Limited Partnership
By: Xxxxxx Development Corporation,
its General Partner
By: XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
