THIRD SUPPLEMENTAL INDENTURE
Exhibit 4.5
Execution Version
THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of March 9,
2010, among EAP PROPERTIES, INC., a Delaware corporation, EAP OPERATING, LLC, a Delaware limited
liability company, ENCORE OPERATING, L.P., a Texas limited partnership, ENCORE OPERATING LOUISIANA,
LLC, a Delaware limited liability company, GREENCORE PIPELINE COMPANY LLC, a Delaware limited
liability company, DENBURY ENCORE HOLDINGS INC., a Delaware corporation (collectively, the “New
Subsidiary Guarantors”), subsidiaries of Denbury Resources Inc. (the “Company”),
DENBURY RESOURCES INC., a Delaware corporation, on behalf of itself and the Subsidiary Guarantors
(the “Existing Subsidiary Guarantors”) under the Indenture referred to below, and THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee under the indenture referred to below (the
“Trustee”).
WITNESSETH:
WHEREAS, on March 9, 2010, Encore Acquisition Company (“Encore”) was merged with and into the
Company pursuant to the Merger Agreement;
WHEREAS the Company has heretofore executed and delivered to the Trustee an Indenture dated as
of December 7, 2005, (the “Indenture”), the First Supplemental Indenture dated as of April
3, 2007, and the Second Supplemental Indenture dated as of July 24, 2009, providing for the
issuance of 71/2% Senior Subordinated Notes Due 2015 (the “Securities”);
WHEREAS, there is currently outstanding under the Indenture $300,000,000 in aggregate
principal amount of Securities;
WHEREAS the Company desires to cause the New Subsidiary Guarantors to execute and deliver to
the Trustee a supplemental indenture pursuant to which the New Subsidiary Guarantors shall fully
and unconditionally guarantee all of the Company’s obligations under the Securities pursuant to a
Subsidiary Guarantee on the terms and conditions set forth herein;
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the Company and Existing
Subsidiary Guarantors are authorized to execute and deliver this Supplemental Indenture;
WHEREAS, the Company, the Existing Subsidiary Guarantors and the New Subsidiary Guarantors
have been authorized by resolutions of their respective Board of Representatives and Board of
Directors, as the case may be, to enter into this Supplemental Indenture; and
WHEREAS, the Company has delivered to the Trustee an Officers’ Certificate (as defined in the
Indenture) to the effect that the all conditions precedent provided for in the
Indenture to the execution and delivery of this Supplemental Indenture to be complied with by
the Company and the New Subsidiary Guarantors have been complied with.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the New Subsidiary Guarantors, the
Company, the Existing Subsidiary Guarantors and the Trustee mutually covenant and agree for the
equal and ratable benefit of the holders of the Securities as follows:
1. Definitions. (a) Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as otherwise herein expressly
provided or unless the context otherwise requires: (i) the terms and expressions used herein shall
have the same meanings as corresponding terms and expressions used in the Indenture; and (ii) the
words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
2. Agreement to Guarantee. The New Subsidiary Guarantors hereby agree, jointly and
severally with all other Existing Subsidiary Guarantors, to guarantee the Company’s obligations
under the Securities on the terms and subject to the conditions set forth in Article 11 of the
Indenture and to be bound by all other applicable provisions of the Indenture.
3. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as
expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5. Effectiveness. This Supplemental Indenture shall be effective upon its execution
and delivery by the parties hereto.
6. Trustee Makes No Representation. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.
7. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
8. Trust Indenture Act Controls. If any provision of this Supplemental Indenture
limits, qualifies or conflicts with another provision of this Supplemental Indenture or the
Indenture that is required to be included by the Trust Indenture Act of 1939, as amended, as
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in force at the date this Supplemental Indenture is executed, the provision required by said
Act shall control.
9. Severability. In case any provision in this Supplemental Indenture or the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
10. Effect of Headings. The Section headings herein are for convenience only and
shall not effect the construction thereof.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.
| EAP PROPERTIES, INC., |
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| by | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| EAP OPERATING, LLC, |
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| by | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| ENCORE OPERATING, L.P., |
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| by | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| ENCORE OPERATING LOUISIANA, LLC, |
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| by | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| GREENCORE PIPELINE COMPANY LLC, |
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| by | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
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| DENBURY ENCORE HOLDINGS INC., |
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| by | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| DENBURY RESOURCES INC., on behalf of itself and the Existing Subsidiary Guarantors, |
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| by | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
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| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee, |
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| By: | /s/ Xxxxx Xxxxxxx-Xxxxx | |||
| Name: | Xxxxx Xxxxxxx-Xxxxx | |||
| Title: | Senior Associate | |||
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