SEMCO ENERGY, INC. SUPPLEMENTAL INDENTURE DATED AS OF OCTOBER 24, 2007 TO THE INDENTURE DATED AS OF MAY 15, 2003 THE BANK OF NEW YORK TRUST COMPANY, N.A. TRUSTEE
SEMCO
ENERGY, INC.
7
3/4%
SENIOR NOTES DUE 2013
_______________________
DATED
AS
OF OCTOBER 24, 2007
TO
THE
INDENTURE
DATED
AS
OF MAY 15, 2003
_______________________
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.
TRUSTEE
___________________
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THIS
SUPPLEMENTAL INDENTURE, dated as of October 24, 2007 (this
“Supplemental Indenture”), is by and among SEMCO Energy, Inc., a Michigan
corporation (the “Company”), and The Bank of New York Trust Company,
N.A. (as successor in interest to Fifth Third Bank), as trustee (the
“Trustee”). Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Indenture.
WHEREAS,
the Company and the Trustee are party to that certain Indenture (the
“Indenture”) dated as of May 21, 2003, providing for the issuance of 7 3/4
% Senior Notes due 2013 (the “Notes”);
WHEREAS,
the Company has issued $200 million in aggregate principal amount of the
Notes;
WHEREAS,
Section 9.02 of the Indenture provides that the Indenture may be amended with
the consent of the Holders of at least a majority in principal amount of the
Notes then outstanding (including consents obtained in connection with a tender
offer) (subject to certain exceptions);
WHEREAS,
the Company desires and has requested that the Trustee join with it in entering
into this Supplemental Indenture for the purpose of amending the Indenture
in
certain respects as permitted by Section 9.02 of the Indenture;
WHEREAS,
the execution and delivery of this Supplemental Indenture has been authorized
by
the Board of Directors of the Company and of each Guarantor; and
WHEREAS,
(1) the Company has received the consent of the Holders of a majority in
principal amount of the outstanding Notes and has satisfied all other conditions
precedent, if any, provided under the Indenture to enable the Company and the
Trustee to enter into this Supplemental Indenture, all as certified by an
Officers’ Certificate delivered to the Trustee simultaneously with the execution
and delivery of this Supplemental Indenture as contemplated by Section 9.06
of the Indenture, and (2) the Company has delivered to the Trustee
simultaneously with the execution and delivery of this Supplemental Indenture
an
Opinion of Counsel relating to this Supplemental Indenture as contemplated
by
Sections 9.06 and 12.04 of the Indenture;
NOW,
THEREFORE, in consideration of the above premises, each party hereby agrees,
for
the benefit of the others and for the equal and ratable benefit of the Holders
of the Notes, as follows:
ARTICLE
I
DEFINITIONS
Section
1.1. Deletion of Definitions and Related
References. Section 1.01 of the Indenture is
hereby amended to delete in its entirety all terms and their respective
definitions for which all references are eliminated in the Indenture as a result
of the amendments set forth in Article II of this Supplemental
Indenture.
ARTICLE
II
AMENDMENTS
TO INDENTURE
Section
2.1. Amendments to the
Indenture. The Indenture is hereby amended
by:
(i) deleting
the following sections of the Indenture and all references thereto in the
Indenture in their entirety:
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Section
4.03 (Reports)
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Section
4.04 (Compliance Certificate)
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Section
4.05 (Taxes)
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Section
4.06 (Stay, Extension and Usury
Laws)
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Section
4.07 (Restricted Payments)
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Section
4.08 (Dividend and Other Payment Restrictions Affecting
Subsidiaries)
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Section
4.09 (Incurrence of Indebtedness and Issuance of Preferred
Stock)
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Section
4.10 (Asset Sales)
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Section
4.11 (Transactions with Affiliates)
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Section
4.12 (Liens)
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Section
4.13 (Business Activities)
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Section
4.14 (Corporate Existence)
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Section
4.15 (Offer to Repurchase Upon Change of
Control)
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Section
4.16 (Limitation on Sale and Leaseback
Transactions)
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Section
4.17 (Payments for Consents)
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Section
4.18 (Future Subsidiary Guarantees)
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Section
4.19 (Designation of Restricted and Unrestricted
Securities)
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Section
4.20 (Changes in Covenants when Notes Rated Investment
Grade)
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Section
5.01 (Exchange, Consolidation or Sale of
Assets)
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Section
5.02 (Successor Corporation
Substituted)
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Section
10.04 (Guarantors May Consolidate, etc. on Certain
Terms)
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Section
6.01(3), Section 6.01(4), Section 6.01(5), Section 6.01(6), Section
6.01(7), Section 6.01(8), Section 6.01(9) and Section 6.01(10) (Events
of
Default).
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ARTICLE
III
MISCELLANEOUS
PROVISIONS
Section
3.1. Indenture. Except
as 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 Notes heretofore or hereafter authenticated and
delivered under the Indenture shall be bound by the Indenture as amended
hereby. In the case of conflict between the Indenture and this
Supplemental Indenture, the provisions of this Supplemental Indenture shall
control.
Section
3.2. Severability. In
case any provision in this Supplemental Indenture 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.
Section
3.3. Capitalized
Terms. Capitalized terms used herein
but not defined shall have the meanings assigned to them in the
Indenture.
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Section
3.4. Effect of
Headings. The Article and Section headings used herein
are for convenience only and shall not affect the construction of this
Supplemental Indenture.
Section
3.5. Trustee Makes No
Representations. The Trustee makes no representations
as to the validity or sufficiency of this Supplemental Indenture.
Section
3.6. Certain Duties and Responsibilities of the
Trustee. In entering into this Supplemental Indenture,
the Trustee shall be entitled to the benefit of every provision of the Indenture
relating to the conduct or affecting the liability or affording protection
to
the Trustee, whether or not elsewhere herein so provided.
Section
3.7. Governing
Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
Section
3.8. 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 one and the same agreement.
Section
3.9. Successors. All
agreements of the Company, the Guarantors and the Trustee in this Supplemental
Indenture and the Notes shall bind their respective successors.
Section
3.10. Effectiveness. The
provisions of Articles I and II of this Supplemental Indenture shall
not become operative unless and until the Company accepts validly tendered
Notes
representing at least a majority in aggregate principal amount of the
outstanding Notes for payment pursuant to the terms and subject to the
conditions of the applicable tender offer (the “Tender Offer”) as described in
the Offer to Purchase and Consent Solicitation, dated October 10,
2007. If after the execution of this Supplemental Indenture, the
Tender Offer is terminated or withdrawn, or all payments in respect of the
Notes
accepted for payment pursuant to the Tender Offer are not made on the applicable
payment date, the provisions of Articles I and II of this Supplemental
Indenture will have no effect and the Indenture shall be deemed to be amended
so
that it reads exactly as it did immediately prior to the execution of this
Supplemental Indenture.
Section
3.11. Endorsement and Change of Form of
Notes. Any Notes authenticated and delivered after
the close of business on the date that this Supplemental Indenture becomes
effective may be affixed to, stamped, imprinted or otherwise legended by the
Trustee, with a notation as follows:
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“Effective
as of
[ ],
2007, the majority of the restrictive covenants of the Indenture
and
certain of the Events of Default have been eliminated, as provided
in the
Supplemental Indenture, dated as of October 24,
2007. Reference is hereby made to said Supplemental Indenture,
copies of which are on file with the Trustee, for a description of
the
amendments made therein.”
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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year written above.
| SEMCO ENERGY, INC. | ||
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By
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Title: Senior Vice President, CFO and Treasurer | ||
| THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE, | ||
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By
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
| Title: Assistant Vice President | ||
[SIGNATURE
PAGE OF 2013 SUPPLEMENTAL INDENTURE]
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