EXHIBIT 4.12
EXECUTION COPY
FIFTH AMENDMENT TO CREDIT AGREEMENT
This Fifth Amendment to Credit Agreement (this "Fifth Amendment") is
made as of this 27th day of February, 2004 by and among SEMCO ENERGY, INC., a
Michigan corporation (the "Company"), STANDARD FEDERAL BANK N.A. ("Standard
Federal") and the other banks signatory hereto and Standard Federal, as agent
for the Banks (in such capacity, "Agent").
RECITALS
A. Company, Agent and the Banks entered into that certain Credit
Agreement dated as of June 25, 2002 under which the Banks extended (or committed
to extend) credit to the Company, as set forth therein, as amended by that
certain First Amendment to Credit Agreement (the "First Amendment") dated May
21, 2003, that certain Second Amendment to Credit Agreement (the "Second
Amendment") dated September 30, 2003, that certain Third Amendment to Credit
Agreement (the "Third Amendment") dated October 15, 2003, and that certain
Fourth Amendment dated December 12, 2003 (as so amended, the "Credit Agreement";
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Credit Agreement).
B. Company has requested that Agent and the requisite Banks
increase the Letter of Credit Commitment Amount from Five Million Dollars
($5,000,000) to Ten Million Dollars ($10,000,000), and amend certain terms and
provisions of the Credit Agreement and Agent and the requisite Banks are willing
to do so, but only on the terms and conditions set forth in this Fifth
Amendment.
NOW, THEREFORE, Company, Agent and Banks agree:
1. Section 1.1 of the Credit Agreement shall be amended by deleting the
definition of "Letter of Credit Commitment Amount" and inserting the
following in its place:
"Letter of Credit Commitment Amount shall mean $10,000,000."
2. Section 2.2.3 of the Credit Agreement shall be amended by deleting
subsection (b)(i) thereof and inserting the following in its place:
"(i) the aggregate Stated Amount of all Letters of Credit
issued hereunder shall not at any time exceed the Letter of
Credit Commitment Amount and"
3 Section 10.10 is deleted in its entirety and the following is inserted
in its place:
"10.10 Restricted Payments. Not, and not permit any Subsidiary
to, (a) make any distribution to any of its shareholders, (b)
purchase or redeem any of its capital stock or other equity
interests or any warrants, options or other rights in respect
thereof, (c) issue any Disqualified Stock, or (d) set aside
funds for any of the foregoing. Notwithstanding the foregoing,
(i) any Subsidiary may
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pay dividends or make other distributions to the Company or to
a Wholly-Owned Subsidiary; (ii) so long as no Event of Default
or Unmatured Event of Default exists or would result
therefrom, the Company may make, pay, declare or authorize any
dividend, payment or other distribution in respect of any
class of its capital stock or any dividend, payment or
distribution in connection with the redemption, purchase,
retirement or other acquisition, directly or indirectly, of
any shares of its capital stock, to the extent in each case
payable solely in shares of capital stock of the Company, and
(iii) the Company may make, pay, declare or authorize any
dividend, payment or other distribution in respect of any
class of its capital stock or any dividend, payment or
distribution in connection with the redemption, purchase,
retirement or other acquisition, directly or indirectly, of
any shares of its capital stock, subject to the satisfaction
of each of the following conditions: (x) the aggregate amount
of such dividends, payments or other distributions covered by
this clause (iii) made during the period from and after March
31, 2002 to and including the date of the making of the
dividend, payment or other distribution in question, shall not
exceed the sum of $17,693,000 plus 100% of Consolidated Net
Income for such period, such Consolidated Net Income to be
calculated for this purpose by adding back an amount equal to
65% of the Refinancing Premium to the extent deducted from the
Consolidated Net Income and to be computed on a cumulative
basis for said entire period (or if such Consolidated Net
Income is a deficit figure, then minus 100% of such deficit)
and (y) immediately before and after giving effect to such
dividend, payment or other distribution, no Event of Default
or Unmatured Event of Default shall exist or shall have
occurred and be continuing and the representations and
warranties contained in Section 9 and in the other Loan
Documents shall be true and correct on and as of the date
thereof (both before and after giving effect to such dividend,
payment or other distribution) as if made on the date of such
dividend, payment or other distribution. Upon the occurrence
of the Reclassification Event, dividend payments on the Junior
Capital shall remain subject to the provisions of this Section
10.10."
4. This Fifth Amendment shall become effective according to the terms
hereof and as of such date (the "Fifth Amendment Effective Date") that
the Company shall have satisfied the following conditions:
(a) Agent shall have received:
(i) counterpart originals of this Fifth
Amendment, in each case duly executed and delivered by Company
and the requisite Banks, in form satisfactory to Agent and the
Banks; and
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(ii) such other documents as Agent may reasonably
request.
(b) No Unmatured Event of Default or Event of Default
shall have occurred and be continuing or shall result from the
execution and delivery of this Fifth Amendment.
(c) If the Fifth Amendment Effective Date shall not have
occurred on or before February 27, 2004, this Fifth Amendment shall not
become effective and the offer by the Agent and the Banks to amend the
Credit Agreement on the terms set forth herein shall be deemed
withdrawn.
5. The Company for itself and each of the Subsidiaries hereby represents
and warrants that, after giving effect to the amendments contained
herein, (a) execution and delivery of this Fifth Amendment, and the
performance by the Company of its obligations under the Credit
Agreement as amended hereby are within such undersigned's corporate
powers, have been duly authorized, are not in contravention of law or
the terms of its articles of incorporation, bylaws or any other
organizational documents of the parties thereto, as applicable, and
except as have been previously obtained, do not require the consent or
approval, material to the amendments contemplated in this Fifth
Amendment or Credit Agreement, as amended hereby, of any governmental
body, agency or authority, and this Fifth Amendment and the Credit
Agreement, as amended hereby, will constitute the valid and binding
obligations of such undersigned parties, enforceable in accordance with
their respective terms, except as enforcement thereof may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium, ERISA or
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity (whether enforcement is sought in a
proceeding in equity or at law), and (b) the representations and
warranties contained in Section 9 of the Credit Agreement are true and
correct on and as of the date hereof, except to the extent such
representations and warranties speak only as of another date certain.
6. Except as specifically set forth herein, this Fifth Amendment shall not
be deemed to amend or alter in any respect the terms and conditions of
the Credit Agreement, any of the Notes issued thereunder or any of the
Loan Documents, or to constitute a waiver by the Banks or Agent of any
right or remedy under or a consent to any transaction not meeting the
terms and conditions of the Credit Agreement, any of the Notes issued
thereunder or any of the other Loan Documents.
7. Unless otherwise defined to the contrary herein, all capitalized terms
used in this Fifth Amendment shall have the meaning set forth in the
Credit Agreement, as amended.
8. This Fifth Amendment shall be construed in accordance with and governed
by the laws of the State of Michigan.
9. Any references in the Loan Documents to the Credit Agreement shall be
deemed a reference to the Credit Agreement as amended by the First
Amendment and this Fifth Amendment.
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[SIGNATURES FOLLOW ON SUCCEEDING PAGES]
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WITNESS the due execution hereof as of the day and year first above
written.
SEMCO ENERGY, INC.
By /s/ John E. Schneider
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Title Senior Vice President and
Chief Financial Officer
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STANDARD FEDERAL BANK N.A., A NATIONAL
BANKING ASSOCIATION, as Agent
/s/ Gregory E. Castle
By Gregory E. Castle
Title First Vice President
STANDARD FEDERAL BANK N.A., A NATIONAL
BANKING ASSOCIATION, as Issuing Bank, as
Swing Line Bank and as a Bank
/s/ Gregory E. Castle
By Gregory E. Castle
Title First Vice President
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KEYBANK NATIONAL ASSOCIATION, as
Syndication Agent and as a Bank
By /s/ Sherrie I. Manson
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Sherrie I. Manson
Title Vice President
SIGNATURE PAGE TO SEMCO FIFTH AMENDMENT
(528954)
U.S. BANK, N.A., as Documentation Agent and
as a Bank
By /s/ Jeffrey J. Janza
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Title VICE PRESIDENT
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NATIONAL CITY BANK OF MICHIGAN /
ILLINOIS, as Documentation Agent and as
a Bank
By /s/ Kenneth R. Ehrhardt
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Title Senior Vice President
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THE HUNTINGTON NATIONAL BANK, as a
Bank
By /s/ Kevin D. Szachta
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Kevin D. Szachta
Title Vice President
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FIFTH THIRD BANK, EASTERN MICHIGAN,
as a Bank
By /s/ ANDRE A. NAZARETH
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ANDRE A. NAZARETH
Title VICE PRESIDENT
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