Otter Tail Corporation Fourth Amendment Dated as of June 30, 2009 to Note Purchase Agreement Dated As Of December 1, 2001 Re: $90,000,000 6.63% Senior Notes Due December 1, 2011
Exhibit 4.1
EXECUTION COPY
Otter Tail Corporation
Fourth Amendment
Dated as of June 30, 2009
Dated as of June 30, 2009
to
Note Purchase Agreement
Dated As Of December 1, 2001
Dated As Of December 1, 2001
Re: $90,000,000 6.63% Senior Notes
Due December 1, 0000
Due December 1, 0000
Xxxxxx Xxxxxxxxx To Note Purchase Agreement
This Fourth Amendment dated as of June 30, 2009 (the or this “Fourth Amendment”) to the Note
Purchase Agreement dated as of December 1, 2001 is between and among Otter Tail Corporation, a
Minnesota corporation (the “Company”), and each of the institutions which is a signatory to this
Fourth Amendment (collectively, the “Noteholders”).
Recitals:
A. The Company and each of the Purchasers signatory thereto have
heretofore entered into the Note Purchase Agreement dated as of December 1, 2001, as amended
by a First Amendment thereto dated as of December 1, 2002, by a Second Amendment thereto dated as
of October 1, 2004 and by a Third Amendment thereto dated as of December 1, 2007 (as heretofore so
amended, the “Note Purchase Agreement”). The Company has heretofore issued the $90,000,000 6.63%
Senior Notes due December 1, 2011 (the “Notes”) dated December 27, 2001 pursuant to the Note
Purchase Agreement.
B. The Company has announced that it intends to restructure the Company into a holding company
with Otter Tail Power Company as a separate, first-tier subsidiary (the “Reorganization”). The
Company (“Old Otter Tail”) will form a direct, wholly owned subsidiary that will be a Minnesota
corporation (“New Otter Tail”). New Otter Tail will form a direct, wholly owned subsidiary that
will be a Minnesota corporation (“Merger Sub”). Old Otter Tail will transfer to New Otter Tail by
way of assignment or contribution to capital all of the shares of capital stock of its direct,
wholly owned subsidiaries. Pursuant to articles of merger and a plan of merger among Old Otter
Tail, New Otter Tail and Merger Sub, Old Otter Tail will merge with Merger Sub (the “Merger”). The
surviving corporation in the Merger will be Old Otter Tail and will have the name Otter Tail Power
Company, and the current shareholders of Old Otter Tail will become shareholders of New Otter Tail.
Immediately upon effectiveness of the Merger, New Otter Tail will change its name to Otter Tail
Corporation. Immediately prior to the Merger, Old Otter Tail will transfer to New Otter Tail by way
of assignment, and New Otter Tail will assume, all of the property, contracts, leases, rights,
privileges, franchises, patents, trademarks, licenses, registrations and other assets and
liabilities that pertain to the operation of the new holding company and that are not specific to
the operation of the power company. Following the Merger, Otter Tail Power Company will be the
holder of all of the rights and obligations of Old Otter Tail under the Note Purchase Agreement.
C. The Company has requested, in connection with the Reorganization, that the Note Purchase
Agreement be amended as set forth herein.
D. The Company and the Noteholders now desire to amend the Note Purchase Agreement in the
respects, but only in the respects, hereinafter set forth.
E. Capitalized terms used herein shall have the respective meanings ascribed thereto in the
Note Purchase Agreement (as amended hereby) unless herein defined or the context shall otherwise
require.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions precedent to the
effectiveness of this Fourth Amendment set forth in §2.1 hereof, and in consideration of
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good and
valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Company and
the Noteholders do hereby agree as follows:
SECTION 1. Amendments.
Section 1.1. Section 8.7 of the Note Purchase Agreement is hereby amended by amending the
definitions of “Called Principal,” “Remaining Scheduled Payments” and “Settlement Date” in their
entirety to read as follows:
“Called Principal” means, with respect to any Note, the principal of such Note that is
to be prepaid pursuant to Section 8.2 or Section 22.8(d), is to be purchased pursuant to
Section 8.3 or has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
“Remaining Scheduled Payments” means, with respect to the Called Principal of any
Note, all payments of such Called Principal and interest thereon that would be due after
the Settlement Date with respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date, provided that if such Settlement Date
is not a date on which interest payments are due to be made under the terms of the Notes,
then the amount of the next succeeding scheduled interest payment will be reduced by the
amount of interest accrued to such Settlement Date and required to be paid on such
Settlement Date pursuant to Sections 8.2, 8.3, 12.1 or 22.8(d).
“Settlement Date” means, with respect to the Called Principal of any Note, the date on
which such Called Principal is to be prepaid pursuant to Section 8.2 or Section 22.8(d) or
has become or is declared to be immediately due and payable pursuant to Section 12.1, as
the context requires and with respect to the purchase of Notes pursuant to Section 8.3, the
date on which the Notes are required thereunder to be purchased by the Company.
Section 1.2. Effective as of the consummation of the Corporate Reorganization, Sections 9.8,
9.9, 9.10, 9.11 and 9.12 of the Note Purchase Agreement shall be deleted in their entirety.
Section 1.3. Section 10.3 of the Note Purchase Agreement is hereby amended in its entirety to
read as follows:
“Section 10.3 Limitation on Liens. The Company will not, and will not permit any
Subsidiary to, directly or indirectly create, incur, assume or permit to exist (upon the
happening of a contingency or otherwise) any Lien on or with respect to any property or
asset (including, without limitation, any document or instrument in respect of goods or
accounts receivable) of the Company or any such Subsidiary, whether now owned or held or
hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any
right to receive income or profits, except:
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(a) Liens for taxes and assessments or governmental charges or levies and Liens
securing claims or demands of mechanics and materialmen; provided that payment thereof is
not at the time required by Section 9.4;
(b) Liens of or resulting from any judgment or award in an aggregate amount not to
exceed $10,000,000, the time for the appeal or petition for rehearing of which shall not
have expired, or in respect of which the Company or a Subsidiary shall at any time in good
faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of
execution pending such appeal or proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the ownership of properties and
assets (including, without limitation, Liens in connection with worker’s compensation,
unemployment insurance and other like laws, carrier’s, warehousemen’s liens and statutory
landlords’ liens) and Liens to secure the performance of bids, tenders or trade contracts,
or to secure statutory obligations, surety or appeal bonds or other Liens of like general
nature, in any such case incurred in the ordinary course of business and not in connection
with the borrowing of money; provided in each case, the obligation secured is not overdue
or, if overdue, is being contested in good faith by appropriate actions or proceedings;
(d) minor survey exceptions or minor encumbrances, easements or reservations, or
rights of others for rights-of-way, utilities and other similar purposes, or zoning or
other restrictions as to the use of real properties, which are reasonably necessary for the
conduct of the activities of the Company and its Subsidiaries or which customarily exist on
properties of corporations engaged in similar activities and similarly situated and which
do not in any event materially impair their use in the operation of the business of the
Company and its Subsidiaries;
(e) Liens securing Debt of a Subsidiary to the Company or to a Wholly-Owned
Subsidiary;
(f) Liens existing as of December 1, 2001 and described on Schedule 5.15 hereto and
Liens securing any refinancing of Indebtedness secured by such Liens, provided that such
refinancing shall be subject to similar terms and secured by the same assets and the
principal amount of Indebtedness secured thereby is not increased;
(g) Liens in connection with the acquisition of property after the date hereof by way
of purchase money mortgage, conditional sale or other title retention agreement, Capital
Lease or other deferred payment contract, provided that such Liens attach only to the
property being acquired and that the Debt secured thereby does not exceed the Fair Market
Value of such property at the time of acquisition thereof and the Lien shall be created
contemporaneously with, or within 180 days after, the acquisition of such property;
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(h) Liens that existed on assets of other Persons at the time of acquisition of such
other Persons or of such assets by the Company or a Subsidiary and which continue to attach
only to such assets and Liens securing any refinancing of Indebtedness secured by such
Liens, provided that such refinancing shall be subject to similar terms and secured by the
same assets and the principal amount of Indebtedness secured thereby is not increased;
(i) Liens (to the extent falling under the definition of “Lien”) consisting of
ownership interests (and protective filings respecting such ownership interests) of lessors
of assets (other than Utility Assets) to the Company or any Subsidiary under any operating
lease, and of licensors of intellectual property or other rights to the Company or any Subsidiary; it being
understood and agreed that for purposes of this clause (i), rail cars shall not be
considered Utility Assets;
(j) Liens (to the extent falling under the definition of “Lien”) consisting of rights
of lessees or sublessees of certain owned real estate of the Company or any Subsidiary
leased in the ordinary course of the Company’s or such Subsidiary’s business, which leases
do not materially interfere with the ordinary course of business of the Company or such
Subsidiary;
(k) Liens arising under or related to any statutory or common law provisions, or
customary account agreements, relating to banker’s liens or rights of setoff (but in no
event including any grant of a security interest) as to deposit or securities accounts or
other funds or instruments maintained or held with a depositary or other financial
institution or securities intermediary;
(l) Liens created, assumed or incurred after the date of the Closing given to secure
Debt of the Company or any Subsidiary in addition to the Liens permitted by the preceding
clauses (a) through (k) hereof; provided that all Debt secured by Liens permitted under
this Section 10.3(l) does not exceed $2,000,000 in the aggregate at any time outstanding
and in no event shall any Lien permitted by this Section 10.3(l) secure any obligation
under the Bank Credit Agreement or any related document;
provided that (1) all Debt secured by such Liens shall have been incurred within the applicable
limitations provided in Section 10.1(b) and (2) at the time of creation, assumption or incurrence
of the Debt secured by such Lien and after giving effect thereto and to the application of the
proceeds thereof, no Default or Event of Default would exist.”
Section 1.4. Effective as of the consummation of the Corporate Reorganization, Section 10.7 of
the Note Purchase Agreement is hereby amended in its entirety to read as follows:
“Section 10.7 Benefit of More Restrictive Covenants or More Favorable Terms. If any
Lender under the Bank Credit Agreement, or if any 2007 Noteholder under the 2007 Note
Purchase Agreement, is or becomes entitled to
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the benefit of any (i) covenant, (ii)
agreement, (iii) event of default, or (iv) other event which would permit the Lender or the
2007 Noteholder, as the case may be, to have the Company Debt obligations it holds
purchased by the Company (a “put event”), which is more restrictive on the Company or its
Subsidiaries than the covenants, agreements, events of default or put events contained
herein or which is more favorable to such Lender or such 2007 Noteholder, as the case may
be, than the covenants, agreements, events of default or put events contained herein, then
such more restrictive or more favorable covenant, agreement, event of default or put event
shall be deemed to be incorporated into this Agreement by reference during any period such
Lender or 2007 Noteholder is so entitled thereto without regard to any waivers by some or
all of the Lenders or some or all of the 2007 Noteholders, as the case may be, with respect
thereto and shall remain so incorporated for a period of 30 days after the Lender or the 2007 Noteholder, as the case
may be, is no longer entitled to the benefit thereof and the Noteholders shall be entitled
to the benefits thereof with respect to this Agreement in addition to the existing
covenants, agreements, events of default and put events contained herein so long as any of
the Notes remain outstanding.
Prior to any closing of the effectuation of any amendment or modification to the Bank
Credit Agreement or the 2007 Note Purchase Agreement, the Company shall deliver a letter to
the Noteholders containing a list of those covenants, agreements, events of default and put
events which are deemed to be incorporated into this Agreement pursuant to the foregoing
provisions of this Section 10.7 and concurrently with or prior to the execution of any
amendment to the Bank Credit Agreement or the 2007 Note Purchase Agreement, the Company
shall deliver to the Noteholders a letter setting forth all covenants, agreements, events
of default and put events and/or changes thereto which are deemed to be incorporated into
this Agreement pursuant to the foregoing provisions of this Section 10.7 and any such
letters delivered to the Noteholders shall be satisfactory in form and substance to the
Noteholders. At any time after the receipt of any such letter the Required Holders shall
have the right by delivery of written notice to the Company to amend this Agreement by
adding to this Agreement any covenants, agreements, events of default or put events
referred to in any such letter which the Required Holders elect to add pursuant to the
foregoing provisions of this Section 10.7.”
Section 1.5. Clauses (i), (j) and (k) of Section 10.10 of the Note Purchase Agreement are
hereby amended in their entirety to read as follows:
“(i) prior to consummation of the Corporate Reorganization, (i) Investments
outstanding on April 30, 2002 in Subsidiaries by the Company and other Subsidiaries, and
(ii) Investments by the Company or Subsidiaries in Persons that will be Subsidiaries upon
completion of such Investments;
(j) upon and subsequent to consummation of the Corporate Reorganization, equity
Investments by the Company or any Subsidiary in a Person that conducts only a Regulated
Business or a business that is solely the
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generation, transmission, distribution or sale
of electricity in the United States, which Person will be a Subsidiary upon completion of
such Investment; provided, that upon the making of such Investment such Person will execute
a guaranty agreement in respect of the Notes in form, scope and substance satisfactory to
the Required Holders and, if then or at any time thereafter such Person creates, incurs,
assumes or otherwise becomes liable with respect to any Debt (including, without
limitation, Debt in the form of a Guaranty) other than Debt represented by such guaranty
agreement in respect of the Notes, such Person shall cause the holder or obligee with
respect to such other Debt to enter into an intercreditor agreement in form, scope and
substance satisfactory to the Required Holders; and
(k) (i) Investments by any Material Subsidiary constituting loans to the Company and
(ii) provided that no Default or Event of Default shall have occurred and be continuing, Investments made by the Company or any Material Subsidiary
constituting loans to (A) any Material Subsidiary or (B) any Subsidiary that is not a
Material Subsidiary, provided that such loans under the foregoing clauses (A) and (B) to
any one Subsidiary shall not exceed $15,000,000 in aggregate principal amount outstanding
at any time, and provided, further, that after the Corporate Reorganization, the only loans
under the foregoing clauses (A) and (B) that will be permitted to be acquired for value,
made, had, held or permitted to remain outstanding shall be those made to Subsidiaries that
conduct only a Regulated Business.”
Section 1.6. Section 10.11 of the Note Purchase Agreement is hereby amended in its entirety to
read as follows:
“Section 10.11 Contingent Liabilities. The Company will not and will not permit any
Material Subsidiary to either: (a) endorse, guarantee, contingently agree to purchase or
to provide funds for the payment of, or otherwise become contingently liable upon, any
obligation of any other Person, except by the endorsement of negotiable instruments for
deposit or collection (or similar transactions) in the ordinary course of business, or (b)
agree to maintain the net worth or working capital of, or provide funds to satisfy any
other financial test applicable to, any other Person, except (in the case of (a) or (b)
above) for:
(i) guaranties by the Company of loans to leveraged Employee Stock
Ownership Plans;
(ii) prior to consummation of the Corporate Reorganization, guaranties
by Varistar Corporation of obligations of DMI Industries, Inc. in respect
of down payments by customers of DMI Industries, Inc. in aggregate amounts
of up to $30,000,000, with the amount of such guaranties to be deemed to be
either (x) the dollar limitation set forth in any such guaranty, if
applicable, or (y) the amount of such down payment so guaranteed;
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(iii) guaranties by the Company or any Material Subsidiary of
obligations of any Material Subsidiary as lessee under any lease that is
not a Capital Lease;
(iv) other guaranties limited as to principal of recovery to not more
than $10,000,000 in the aggregate, provided that no such guaranty shall
relate to any obligation under the Bank Credit Agreement or any related
document;
(v) prior to consummation of the Corporate Reorganization, guaranties
by Material Subsidiaries of the obligations of Varistar Corporation under
the Amended and Restated Credit Agreement, dated as of December 23, 2008,
among Varistar Corporation, the lenders party thereto and U.S. Bank
National Association, as agent (the “Varistar Credit Agreement”); and
(vi) prior to consummation of the Corporate Reorganization, guaranties
by Material Subsidiaries of obligations of the Company under the Cascade
Note so long as each and every Subsidiary that guarantees the obligations
of the Company under the Cascade Note is a Subsidiary Guarantor or an
Additional Subsidiary Guarantor or becomes an Additional Subsidiary
Guarantor in accordance with the terms of Section 9.8 hereof.”
Section 1.7. Section 11 of the Note Purchase Agreement is hereby amended in its entirety to
read as follows:
“An “Event of Default” shall exist if any of the following conditions or events shall
occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole Amount, if any,
on any Note when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note for more than five
Business Days after the same becomes due and payable; or
(c) the Company defaults (i) in the performance of or compliance with any term
contained in Section 10 or Section 7.1(d) or (ii) in the payment when due of the amount
required to be paid by the Company for the purchase of any Note pursuant to Section 8.3; or
(d) the Company defaults in the performance of or compliance with any term contained
herein (other than those referred to in paragraphs (a), (b) and (c) of this Section 11) and
such default is not remedied within 30 days after the earlier of (i) a Responsible Officer
obtaining actual knowledge of such default and (ii) the Company receiving written notice of
such default from any holder of a Note (any such written notice to be
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identified as a
“notice of default” and to refer specifically to this paragraph (d) of Section 11); or
(e) any representation or warranty made in writing by or on behalf of the Company or by any
officer of the Company in this Agreement or in any writing furnished in connection with the
transactions contemplated hereby proves to have been false or incorrect in any material respect on
the date as of which made; or
(f) (i) the Company or any Material Subsidiary is in default (as principal or as guarantor or
other surety) in the payment of any principal of or premium or make-whole amount or interest on any
Indebtedness that is outstanding in an aggregate principal amount of at least $10,000,000 beyond
any period of grace provided with respect thereto, or (ii) the Company or any Material Subsidiary
is in default in the performance of or compliance with any term of any evidence of any Indebtedness
in an aggregate outstanding principal amount of at least $10,000,000 or of any mortgage, indenture
or other agreement relating thereto or any other condition exists, and as a consequence of such
default or condition such Indebtedness has become, or has been declared (or one or
more Persons are entitled to declare such Indebtedness to be), due and payable before its
stated maturity or before its regularly scheduled dates of payment; or
(g) the Company or any Material Subsidiary (i) is generally not paying, or admits in writing
its inability to pay, its debts as they become due, (ii) files, or consents by answer or otherwise
to the filing against it of, a petition for relief or reorganization or arrangement or any other
petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for
the benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or
other officer with similar powers with respect to it or with respect to any substantial part of its
property, (v) is adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for
the purpose of any of the foregoing; or
(h) a court or governmental authority of competent jurisdiction enters an order appointing,
without consent by the Company or any of its Material Subsidiaries, a custodian, receiver, trustee
or other officer with similar powers with respect to it or with respect to any substantial part of
its property, or constituting an order for relief or approving a petition for relief or
reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company or any of its Material Subsidiaries, or any such petition shall be filed
against the Company or any of its Material Subsidiaries and such petition shall not be dismissed
within 60 days; or
(i) a final judgment or judgments for the payment of money aggregating in excess of
$10,000,000 are rendered against one or more of the Company and its Material Subsidiaries and which
judgments are not, within 30 days after entry thereof, bonded, discharged or stayed pending appeal,
or are not discharged within 30 days after the expiration of such stay; or
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(j) prior to consummation of the Corporate Reorganization, default shall occur in the
observance or performance of any provision of the Guaranty Agreement or the Guaranty
Agreement shall cease to be in full force and effect for any reason except by operation of
Section 9.12, including, without limitation, a final and nonappealable determination by any
governmental body or court that the Guaranty Agreement is invalid, void or unenforceable,
or any Subsidiary Guarantor or any Additional Subsidiary Guarantor shall contest or deny in
writing the validity or enforceability of any provision of, or obligation under, the
Guaranty Agreement; or
(k) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or
the Code for any plan year or part thereof or a waiver of such standards or extension of
any amortization period is sought or granted under section 412 of the Code, (ii) a notice
of intent to terminate any Plan shall have been or is reasonably expected to be filed with
the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to
terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the
Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings,
(iii) the aggregate amount of “unfunded benefit liabilities” (within the meaning of section
4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA,
shall exceed $500,000, (iv) the Company or any ERISA Affiliate shall have incurred or is
reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the
Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company
or any Subsidiary establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase the liability of the
Company or any Subsidiary thereunder; and in the case of clauses (i), (iii), (iv), (v) or
(vi) above only, any such event or events, either individually or together with any other
such event or events, would reasonably be expected to have a Material Adverse Effect; or
(l) any Person, or group of Persons acting in concert, that owned less than 5% of the
shares of any voting class of stock of the Company shall have acquired more than 25% of the
shares of such voting stock, other than the ownership by Otter Tail Corporation of the
stock of the Company in connection with and as a result of the Corporate Reorganization.
As used in Section 11(k), the terms “employee benefit plan” and “employee welfare benefit plan”
shall have the respective meanings assigned to such terms in section 3 of ERISA.”
Section 1.8. A new Section 22.8 is hereby added to the Note Purchase Agreement, which Section
shall read in its entirety as follows:
“SECTION 22.8. CORPORATE REORGANIZATION.
(a) Without any representation or warranty that the following transaction will be
consummated, the Company has informed the Noteholders that it is planning the following
transaction (the “Corporate Reorganization”), which Corporate Reorganization will consist
of the following steps:
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(i) formation of a new Subsidiary, Otter Tail Holding Company (“New OTC”),
which will be a Minnesota corporation;
(ii) formation by New OTC of a new Subsidiary, Otter Tail Merger Sub Inc.
(“Merger Sub”), which will be a Minnesota corporation;
(iii) transfer by the Company to New OTC by way of assignment or contribution
to capital of all Non- Power Company Assets;
(iv) assumption by New OTC of all liabilities and obligations of the Company
except (A) those under this Agreement and the Notes issued hereunder, (B) those
under the agreements listed on Schedule 22.8 under the caption “Senior Indebtedness
Agreements and Notes to be Retained as Obligations of the Regulated Subsidiary
Following the Corporate Reorganization” and the Indebtedness described on such
Schedule 22.8 under such caption, and (C) all liabilities and obligations that pertain to
the Company’s electric generation, transmission, distribution and sale business and
do not pertain to the operation of the Company as a holding company (such
liabilities and obligations other than those described in (A), (B) and (C) hereof
are called the “OTC-Assumed Liabilities”);
(v) release of the Company from the OTC-Assumed Liabilities listed on Schedule
22.8 under the caption “Release of OTC-Assumed Liabilities” by each holder thereof;
(vi) merger of the Company with Merger Sub (the “Merger”) pursuant to a Plan
of Merger (the “Plan of Merger”) by and among the Company, New OTC and Merger Sub,
whereby (A) the surviving corporation in the Merger will be the Company, will have
the name Otter Tail Power Company and will be a direct, wholly-owned subsidiary of
New OTC and (B) the current shareholders of the Company will become shareholders of
New OTC;
(vii) change of the name of New OTC to Otter Tail Corporation; and
(viii) the Company (which will then be named Otter Tail Power Company and
sometimes referred to herein as the “Regulated Subsidiary”) will remain obligated
under this Agreement and the Notes issued hereunder.
(b) If the Company elects to effect the Corporate Reorganization as provided in
Section 22.8(a) above, such Corporate Reorganization shall not require the consent of the
holders of the Notes. Upon the effectiveness of such Corporate Reorganization and by virtue
of the Merger, Otter Tail Power Company
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shall be the obligor with respect to the
obligations of the Company under this Agreement and the Notes. The Noteholders acknowledge
that upon effectiveness of the Corporate Reorganization, Otter Tail Corporation (New OTC)
shall have no liabilities, responsibilities or obligations with respect to this Agreement
and the Notes, and the Subsidiary Guarantors shall be released from their obligations under
the Guaranty Agreement. In addition, as of such time the address of the Company appearing
on the first page of this Agreement shall be amended to read as follows: “000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxx Xxxxx, XX 00000.”
(c) Upon the effectiveness of the Corporate Reorganization, the Regulated Subsidiary
will, prior to or contemporaneously with the surrender by each Noteholder of any Note or
Notes held by it that were originally issued by Otter Tail Corporation, deliver to such
Noteholder a replacement Note or Notes (in each case, a “Replacement Note”) that equals the
aggregate outstanding principal amount of such Noteholder’s Note or Notes and that reflects
Otter Tail Power Company as the issuer thereof. Each such Replacement Note or Replacement
Notes shall be substantially in the form of Exhibit 1.
(d) In connection with the Corporate Reorganization, on or before the effective date
thereof (the “Effective Date”), each of the following terms (the “Reorganization Terms”)
shall be satisfied by not later than September 30, 2009:
(i) the Regulated Subsidiary shall have delivered to each holder of a Note an
Officer’s Certificate confirming that the Corporate Reorganization has been
consummated in accordance with the terms and conditions of Section 22.8(a),
confirming the name change of the Company to Otter Tail Power Company, that the
Company, under such new name, remains obligated under this Agreement and the Notes
issued hereunder, and that this Agreement and the Notes issued hereunder remain in
full force and effect, enforceable against the Company in accordance with their
respective terms;
(ii) no Default or Event of Default under this Agreement shall have occurred
and be continuing immediately before or immediately after the Effective Date and
each holder of a Note shall have received an Officer’s Certificate of the Regulated
Subsidiary to such effect;
(iii) each holder of a Note shall have received (A) an opinion or opinions of
counsel from Xxxxxx & Xxxxxxx LLP, counsel to the Company, as to the matters set
forth in clauses (A)(1)(b)(iii), (A)(2), (A)(3), (B) and (C) below (it being
understood and agreed that such opinion or opinions shall address the laws of the
State of Minnesota, the laws of the State of New York and federal law but shall not
address utility regulatory matters), and (B) an opinion of the General Counsel of
the Company as to the matters set forth in clauses (A)(1)(a), (A)(1)(b)(i), (ii),
(iv) and (v), and (A)(2) below (it being understood and agreed that such
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opinion
shall address the laws of the State of North Dakota as well as the laws of such
state, the laws of the State of Minnesota, the laws of the State of South Dakota
and federal law relating to utility regulatory matters), to the effect that as of
the Effective Date: (A)(1) the execution and delivery by the Regulated Subsidiary
of the Replacement Notes to be issued in exchange for the existing Notes, and the
performance by the Regulated Subsidiary of its obligations under the Plan of
Merger, the Notes (including any Replacement Notes) and this Agreement (a) have
been duly authorized by all requisite corporate action on the part of the Regulated
Subsidiary, (b) will not, (i) violate any provision of the Regulated Subsidiary’s
articles of incorporation, bylaws or similar governing documents, (ii) violate any
utility regulatory law or regulation applicable to the Regulated Subsidiary, (iii)
violate any other law or regulation applicable to the Regulated Subsidiary, (iv)
violate any order of any court or any order of any other Governmental Authority
binding upon it, except that such counsel need not express any opinion regarding
any federal securities laws or the securities or “Blue Sky” laws of any state, or
(v) result in a breach or constitute (alone or with due notice or lapse of time or
both) a default under any material indenture, agreement or other instrument known
to such counsel to which the Regulated Subsidiary is a party or by which it is bound; (2) no
prior approval or consent on the part of any Governmental Authority is required to
be obtained or made by the Regulated Subsidiary in connection with the execution
and delivery by it of the Replacement Notes to be issued in exchange for the
existing Notes, and the performance by the Regulated Subsidiary of its obligations
under the Plan of Merger, the Notes (including any Replacement Notes) and this
Agreement, except such as have been obtained or made; provided that such counsel
need not express any opinion regarding any federal securities laws or the
securities or “Blue Sky” laws of any state; and (3) the Plan of Merger, this
Agreement and the Notes issued hereunder are (and any Replacement Notes issued
pursuant to Section 22.8(c) of this Agreement will, upon such issuance, be) legal,
valid and binding obligations of the Regulated Subsidiary enforceable against the
Regulated Subsidiary in accordance with their respective terms, except as an
enforcement of such terms may be limited by bankruptcy, insolvency, fraudulent
conveyances and similar laws affecting the enforcement of creditors’ rights
generally and by general equitable principles; (B) upon the filing of articles of
merger with the Secretary of State of the State of Minnesota, and on the date and
time specified therein, the Merger will be effective in accordance with the terms
and provisions of such articles of merger and the laws of the State of Minnesota;
and (C) the holders of the Notes (including any Replacement Notes issued in
exchange for such Notes) will not recognize gain or loss for United States federal
income tax purposes as a result of the Corporate Reorganization (and if the holders
would recognize gain, in lieu of such opinion, such holders will receive an
indemnity agreement, in form, scope and substance to such holders, from the
Regulated Subsidiary
-12-
with respect to such gains); it being understood that such
opinions of counsel may be subject to such assumptions, exceptions and
qualifications as are customary;
(iv) the Regulated Subsidiary will have obtained senior unsecured debt ratings
from the Designated Ratings Agencies that are at least BBB- in the case of S&P and
Baa1 in the case of Xxxxx’x;
(v) the Regulated Subsidiary shall have provided to the holders of the Notes
(A) a revised version of Schedule 5.4 and a schedule listing all partnerships and
joint ventures in which the Regulated Subsidiary or any Subsidiary thereof is a
partner (limited or general) or joint venturer; (B) copies of (1) the agreement and
articles of merger entered and filed in connection with the Merger, (2) any
amendment to the articles of incorporation and bylaws of the Regulated Subsidiary
filed or made in connection with the Corporate Reorganization, including an
amendment reflecting the change in the Company’s name to Otter Tail Power Company,
(3) certified copies of the articles of incorporation and bylaws of New OTC, and
(4) a certificate of good standing for the Company and New OTC in the jurisdictions
of their incorporation, certified by the appropriate governmental officials; and
(C) a forecast (consisting of balance sheets, income statements and statements of cash flows) for the
Company following the Corporate Reorganization and covering the period through
December 31, 2010, prepared in good faith by the Company;
(vi) there shall be no actions, suits or proceedings pending or, to the
knowledge of the Regulated Subsidiary, threatened against or affecting the
Regulated Subsidiary or any Subsidiary thereof or any property of the Regulated
Subsidiary or any Subsidiary thereof in any court or before any arbitrator of any
kind or before or by any Governmental Authority that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect;
(vii) neither the Regulated Subsidiary nor any Subsidiary thereof shall be in
default under any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or in violation of any applicable law, ordinance, rule or
regulation (including without limitation Environmental Laws) of any Governmental
Authority, which default or violation, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect;
(viii) the Regulated Subsidiary and its Subsidiaries shall own or possess all
licenses, permits, franchises, authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto, that are Material, without known
conflict with the rights of others, except for those conflicts that, individually
or in the aggregate, would not have a Material Adverse Effect;
-13-
(ix) the Regulated Subsidiary shall have delivered to the Noteholders an
Officer’s Certificate, dated as of the Effective Date, to the effects set forth in
clauses (vi), (vii) and (viii) above and to the effect that Schedule 5.4 and the
schedule of partnerships and joint ventures described in clause (v) above set
forth, as of the date of such Officer’s Certificate, the information that would be
required by Section 5.4 of the Agreement if the representations and warranties in
such Section were being made as of such date; and
(x) the Company or the Regulated Subsidiary shall have paid all of the fees,
charges and disbursements of the Noteholders’ special counsel arising out of the
transactions contemplated by this Section 22.8.
In the event the Company completes a Corporate Reorganization but fails to satisfy any of
the Reorganization Terms that are not waived by the Required Holders in writing, the
Company will give written notice of such fact (the “Failed Reorganization Notice”) to the
Noteholders not more than five days after any such failure. The Failed Reorganization
Notice shall (i) refer to this Section 22.8 and the right of the Noteholders to require the
Company to prepay their Notes on the terms and conditions provided for herein as a result
of the Company’s failure to satisfy any of the Reorganization Terms, and (ii) contain an
offer by the Company to prepay all of the outstanding Notes in full together with unpaid accrued
interest to the date of prepayment and the Make-Whole Amount determined for the prepayment
date with respect to such principal amount. Each Noteholder shall have the right to accept
such offer and require prepayment in full of the Notes held by such Noteholder by written
notice (the “Failed Reorganization Prepayment Notice”) to the Company given within 60 days
following receipt of the Failed Reorganization Notice. On the prepayment date designated in
such Noteholder’s Failed Reorganization Prepayment Notice (which shall not be less than 15
days nor more than 30 days after the date such Failed Reorganization Prepayment Notice is
delivered to the Company), the Company shall prepay all Notes held by such Noteholder at
100% of the principal amount of such Notes, together with unpaid accrued interest thereon
to the date of prepayment and the Make-Whole Amount determined for the prepayment date with
respect to such principal amount. Failure to respond by a Noteholder of the Notes shall
constitute an acceptance of such offer by such Noteholder.”
Section 1.9. Schedule B is hereby amended as follows:
(a) The definition of “Bank Credit Agreement” set forth in Schedule B to the Note
Purchase Agreement is hereby amended in its entirety to read as follows:
“Bank Credit Agreement” means (a) the Credit Agreement dated as of July 30,
2008 among the Company, the Banks defined therein, Bank of America, N.A., as
Syndication Agent, and U.S. Bank National Association, as a Bank and as Agent,
and/or (b) the Term Loan Agreement dated as of May 22, 2009 among the Company, the
Banks defined therein,
-14-
KeyBank National Association, as Syndication Agent, and JPMorgan Chase Bank, N.A.,
as Administrative Agent, in each case as amended from time to time, any
replacement, additional or successor agreement or agreements thereto pursuant to
which the Company (which, following the Corporate Reorganization, shall be named
Otter Tail Power Company) is the borrower, or any other bank credit facility or
bank credit facilities in effect from time to time with banks or other lending
institutions pursuant to which the Company (which, following the Corporate
Reorganization, shall be named Otter Tail Power Company) is the borrower.
(b) The definition of “Company” set forth in Schedule B to the Note Purchase Agreement is
hereby amended in its entirety to read as follows:
“Company” means Otter Tail Corporation, a Minnesota corporation or any
successor that becomes such in the manner prescribed in Section 10.4. For the
avoidance of doubt, from and after the Corporate Reorganization, the “Company”
shall refer to Otter Tail Power Company.
(c) The definition of “GAAP” set forth in Schedule B to the Note Purchase Agreement is hereby
amended in its entirety to read as follows:
“GAAP” means generally accepted accounting principles as in effect from time
to time in the United States of America. For purposes of determining compliance
with the financial covenants contained in this Agreement (including any financial
covenants deemed to be incorporated in this Agreement pursuant to Section 10.7),
any election by the Company to measure an item of Debt using fair value (as
permitted by Statement of Financial Accounting Standards No. 159 or any similar
accounting standard) shall be disregarded and such determination shall be made as
if such election had not been made.
(d) The definition of “Priority Debt” set forth in Schedule B to the Note Purchase Agreement
is hereby amended in its entirety to read as follows:
“Priority Debt” means, at any time without duplication, the sum of (a) all
Debt of the Company and of any Subsidiaries secured by Liens other than by Liens
permitted by Sections 10.3(a) through (f) or by Section 10.3(k) and (b) all Debt of
Subsidiaries and Preferred Stock of Subsidiaries held by Persons other than the
Company or a Wholly-Owned Subsidiary; provided, that there shall be excluded from
the definition of Priority Debt (i) any Debt of a Subsidiary to the Company or a
Wholly-Owned Subsidiary, and (ii) (A) prior to the consummation of the Corporate
Reorganization, the Guaranties of the Subsidiary Guarantors or any Additional
Subsidiary Guarantor under the Guaranty Agreement and under the Varistar Credit
Agreement, and (B) upon and subsequent to the consummation of the Corporate
Reorganization, the Guaranties by Subsidiaries of the Notes (including any
Replacement Notes) and the
-15-
Guaranties by Subsidiaries of other Debt of the Company only if the holders of such
other Debt shall have entered into an intercreditor agreement contemplated by
Section 10.10(j) and then only so long as such intercreditor agreement shall remain
in effect.
(e) The following definitions are hereby added so that such terms are organized in
alphabetical order along with the remaining definitions in Schedule B:
“Corporate Reorganization” is defined in Section 22.8.
“Effective Date” is defined in Section 22.8.
“Failed
Reorganization Notice” is defined in Section 22.8.
“Failed Reorganization Prepayment Notice” is defined in Section 22.8.
“Fourth Amendment” means that certain Fourth Amendment to this Agreement dated
as of June 30, 2009.
“Merger” is defined in Section 22.8.
“Merger Sub” is defined in Section 22.8.
“New OTC” is defined in Section 22.8.
“Non-Power Company Assets” means all tangible and intangible assets of the
Company except for the Power Company Assets.
“OTC-Assumed Liabilities” is defined in Section 22.8.
“Plan of Merger” is defined in Section 22.8.
“Power Company Assets” means all tangible and intangible assets of the Company
consisting of property, contracts, leases, right, privileges, franchises, patents,
trademarks, licenses, registrations and other assets that pertain to the Company’s
electric generation, transmission, distribution and sale business.
“Regulated Business” means a line of business consisting of generation,
transmission, distribution and sale of electricity, regulated by the Minnesota
Public Utilities Commission or an equivalent state or federal regulatory agency in
another jurisdiction within the United States.
“Regulated Subsidiary” is defined in Section 22.8.
“Reorganization Terms” is defined in Section 22.8.
“Replacement Notes” is defined in Section 22.8.
-16-
“2007 Noteholders” means the holders of the notes issued under the 2007 Note
Purchase Agreement.
“2007 Note Purchase Agreement” means that certain Note Purchase Agreement,
dated as of August 20, 2007, between the Company and the note purchasers party
thereto, as amended from time to time.
“Varistar Credit Agreement” is defined in Section 10.11.
Section 1.10. Schedule 22.8, in the form attached hereto, is hereby added to the Note Purchase
Agreement.
Section 1.11. Effective as of the consummation of the Corporate Reorganization, Exhibit 1 to
the Note Purchase Agreement shall be deleted in its entirety and replaced by Exhibit 1 in the form
attached hereto.
SECTION 2. Representations and Warranties of the Company.
Section 2.1. To induce the Noteholders to execute and deliver this Fourth Amendment, the
Company represents and warrants to the Noteholders (which representations and warranties shall
survive the execution and delivery of this Fourth Amendment) that:
(a) this Fourth Amendment (i) has been duly authorized by all requisite corporate action on the part of the Company, executed and delivered by the
Company and (ii) constitutes the legal, valid and binding obligation of the Company
enforceable against it in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors’ rights generally;
(b) the Note Purchase Agreement, as amended by this Fourth Amendment, constitutes the
legal, valid and binding agreement of the Company enforceable against it in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or limiting creditors’
rights generally;
(c) (i) the execution and delivery by the Company of this Fourth Amendment, and the
performance by the Company of its obligations hereunder, will not (A) violate any provision
of its articles of incorporation or bylaws, (B) violate any utility regulatory law or
regulation applicable to the Company, (C) violate any other law or regulation applicable to
the Company, (D) violate any order of any court or any order of any other Governmental
Authority binding upon it, or (E) result in a breach or constitute (alone or with due
notice or lapse of time or both) a default under any material indenture, agreement or other
instrument to which the Company is a party or by which its properties or assets are bound,
and (ii) no prior approval or consent on the part of any Governmental Authority is required
to be obtained or made by the Company in connection with the execution and delivery by it
of this Fourth Amendment and the performance by the Company of its obligations under this
Fourth Amendment, except such as have been obtained;
-17-
(d) as of the date hereof and after giving effect to this Fourth Amendment, no Default
or Event of Default has occurred which is continuing; and
(e) all the representations and warranties contained in Section 5 of the Note Purchase
Agreement, other than the representations and warranties set forth in Section 5.3, Section
5.4, Section 5.5 and the first sentence of Section 5.15 insofar as they contain information
that is no longer current, are true and correct in all material respects with the same
force and effect as if made by the Company on and as of the date hereof.
SECTION 3. Conditions to Effectiveness of This Fourth Amendment.
Section 3.1. This Fourth Amendment shall not become effective until, and shall become
effective when, each and every one of the following conditions shall have been satisfied:
(a) executed counterparts of this Fourth Amendment, duly executed by the Company and
the holders of the Notes outstanding as of the date hereof, shall have been delivered to
the Noteholders;
(b) the representations and warranties of the Company set forth in § 2 hereof are true
and correct on and with respect to the date hereof;
(c) the Noteholders shall have received the favorable opinions of (i) Xxxxxx & Xxxxxxx
LLP, counsel to the Company, as to the matters set forth in §§ 2.1(a)(ii), 2.1(b),
2.1(c)(i)(C) and 2.1(c)(ii) hereof (it being understood and agreed that such opinion shall
address the laws of the State of Minnesota, the laws of the State of New York and federal
law but shall not address utility regulatory matters), and (ii) the General Counsel of the
Company as to the matters set forth in §§ 2.1(a)(i), 2.1(c)(i)(A), (B), (D) and (E), and
2.1(c)(ii) hereof (it being understood and agreed that such opinion shall address the laws
of the State of North Dakota as well as the laws of such state, the laws of the State of
Minnesota, the laws of the State of South Dakota and federal law relating to utility
regulatory matters), which opinions shall be in form and substance satisfactory to the
Noteholders;
(d) executed counterparts of amendments to the 2007 Note Purchase Agreement, the Bank
Credit Agreement, the Varistar Credit Agreement and the Cascade Note Purchase Agreement
(which last-mentioned amendment shall be accompanied by an Assignment, Assumption and
Release Agreement), in each case with respect to, among other things, the Corporate
Reorganization (other than in the case of the Bank Credit Agreement and the Varistar Credit
Agreement, since the Corporate Reorganization was addressed in those agreements themselves
rather than in amendments thereto) and duly executed by the respective parties thereto,
shall have been delivered to the Noteholders; and
(e) the Company shall have paid (i) to each Noteholder an agreed upon amendment fee,
and (ii) all expenses of the Noteholders related to this Fourth Amendment and all matters
contemplated hereby, including, without limitation, all fees and expenses of the
Noteholders’ special counsel described in Section 4.1 of this Fourth Amendment.
-18-
| Otter Tail Corporation |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: Xxxxx X. Xxxx | ||||
| Title: Chief Financial Officer | ||||
Signature Page
(to Fourth Amendment to Note Purchase Agreement)
(to Fourth Amendment to Note Purchase Agreement)
| Principal Amount of Notes Held: | Accepted and Agreed to: | |||
| $36,000,000 | THE PRUDENTIAL INSURANCE COMPANY OF AMERICA |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Vice President | ||||
| $7,500,000 | PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY |
|||
| By: | Prudential Investment Management, Inc., as investment manager | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Vice President | ||||
| $5,000,000 | HARTFORD LIFE INSURANCE COMPANY |
|||
| By: | Prudential Private Placement Investors, L.P., as Investment Advisor | |||
| By: | Prudential Private Placement Investors, Inc., General Partner | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Vice President | ||||
| $1,500,000 | MEDICA HEALTH PLANS |
|||
| By: | Prudential Private Placement Investors, L.P., as Investment Advisor | |||
| By: | Prudential Private Placement Investors, Inc., General Partner |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Vice President | ||||
Signature Page
(to Fourth Amendment to Note Purchase Agreement)
(to Fourth Amendment to Note Purchase Agreement)
| Principal Amount of Notes Held: | Accepted and Agreed to: |
|||
| $13,000,000 |
GENWORTH LIFE INSURANCE COMPANY (formerly known as General Electric Capital Assurance Company) |
|||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Investment Officer | |||
| $7,000,000 | GENWORTH LIFE ASSURANCE COMPANY OF NEW YORK (formerly known as GE Capital Life Assurance Company of
New York) |
|||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Investment Officer | |||
| $5,000,000 | GENWORTH LIFE AND ANNUITY INSURANCE COMPANY (successor by merger to First Colony Life
insurance Company) |
|||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Investment Officer | |||
Signature Page
(to Fourth Amendment to Note Purchase Agreement)
(to Fourth Amendment to Note Purchase Agreement)
| Principal Amount of Notes Held: | Accepted and Agreed to: |
|||
| $10,000,000 | AIG EDISON LIFE INSURANCE COMPANY |
|||
| By: | AIG Global Investment Corp, investment sub-adviser | |||
| By: | /s/ Xxxxxxxx X Xxxx | |||
| Name: | Xxxxxxxx X Xxxx | |||
| Title: | Vice President | |||
Signature Page
(to Fourth Amendment to Note Purchase Agreement)
(to Fourth Amendment to Note Purchase Agreement)
| Principal Amount of Notes Held: | Accepted and Agreed to: | |||
| $5,000,000 | COUNTRY LIFE INSURANCE COMPANY |
|||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Director Fixed Income | |||
Signature Page
(to Fourth Amendment to Note Purchase agreement)
(to Fourth Amendment to Note Purchase agreement)
Senior Indebtedness Agreements and Notes
to be Retained as Obligations of the Regulated Subsidiary
following the Corporate Reorganization
to be Retained as Obligations of the Regulated Subsidiary
following the Corporate Reorganization
1. $170,000,000 maximum principal amount of obligations of Otter Tail Corporation, dba Otter Tail
Power Company pursuant to the Credit Agreement, dated as of July 30, 2008, among Otter Tail
Corporation, dba Otter Tail Power Company, the Banks party thereto from time to time, Bank of
America, N.A., as Syndication Agent, and U.S. Bank National Association, as Agent for the Banks.
2. $20,625,000, Xxxxxx County, North Dakota Pollution Control Refunding Revenue Bonds (Otter Tail
Corporation Project) Series 2001.
3. $10,400,000, Grant County, South Dakota Pollution Control Refunding Revenue Bonds (Otter Tail
Power Corporation Project) Series 1993.
4. $5,165,000, Grant County, South Dakota Pollution Control Refunding Revenue Bonds (otter Tail
Power Corporation Project) Series 2001.
5. $33,000,000 5.95% Senior Unsecured Notes, Series A, due 2017, $30,000,000 6.15% Senior Unsecured
Notes, Series B, due 2022, $42,000,000 6.37% Senior Unsecured Notes, Series C, due 2027, and
$50,000,000 6.47% Senior Unsecured Notes, Series D, due 2037, issued under the Note Purchase
Agreement, dated as of August 20, 2007, as thereafter amended, between Otter Tail Corporation and
the noteholders party thereto.
6. $75,000,000 maximum principal amount of obligations of Otter Tail Corporation, d/b/a Otter Tail
Power Company pursuant to the Term Loan Agreement, dated as of May 22, 2009, among Otter Tail
Corporation, d/b/a Otter Tail Power Company, JPMorgan Chase Bank, N.A., as Administrative Agent,
KeyBank National Association, as Syndication Agent, Union Bank, N.A., as Documentation Agent, and
the Banks named therein.
Release of
OTC-Assumed Liabilities
OTC-Assumed Liabilities
1. $50,000,000 Senior Unsecured Note due November 30, 2017, issued under the Note Purchase
Agreement, dated as of February 23, 2007, as thereafter amended, between Otter Tail Corporation and
Cascade Investment L.L.C.
Schedule 22.8
(to Fourth Amendment to Note Purchase Agreement)
(to Fourth Amendment to Note Purchase Agreement)
[FORM OF NOTE]
Otter Tail Power Company
6.63% Senior Note December 1, 2011
| No. R-___ | June 1, 2009 | |
| $____________ | PPN 68964* AA9 |
For Value Received, the undersigned, Otter Tail Power Company (formerly known as
Otter Tail Corporation and herein called the “Company”), a corporation organized and existing under the laws
of the State of Minnesota, hereby promises to pay to ____________, or registered assigns, the
principal sum of ___________________________ ($____________) on December 1, 2011, with interest
(computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof
at the rate of 6.63% per annum from the date hereof, payable semiannually, on the first day of each
June and December in each year, commencing with the June or December next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of principal, any
overdue payment of interest and any overdue payment of any Make-Whole Amount (as defined in the
Note Purchase Agreement referred to below), payable semiannually as aforesaid (or, at the option of
the registered holder hereof, on demand), at a rate per annum from time to time equal to the great
of (i) 8.63% or (ii) 2% over the rate of interest publicly announced by U.S. Bank National
Association from time to time in Minneapolis, Minnesota as its “base” or “prime” rate.
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are
to be made in lawful money of the United States of America at the principal office of JPMorgan
Chase Bank, N.A., in New York, New York or at such other place as the Company shall have designated
by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the “Notes”) issued pursuant to a
Note Purchase Agreement, dated as of December 1, 2001 (as from time to time amended, the “Note
Purchase Agreement”), among the Company and the respective Purchasers named therein and it entitled
to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, (i) to
have agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase
Agreements and (ii) to have made the representation set forth in Section 6.2 of the Note Purchase
Agreement.
The Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized
in writing, a new Note for a like principal amount will be issued to, and registered in the name
of, the transferee. Prior to due presentment for registration of transfer, the Company may treat
the person in whose name this Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company will not be affected by any notice to the
contrary.
This Note is subject to optional and mandatory prepayment, in whole or from time to time in
part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
Exhibit 1
(to Fourth Amendment to Note Purchase Agreement)
(to Fourth Amendment to Note Purchase Agreement)
If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable in the manner, at
the price (including any applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the parties
shall be governed by, the law of the State of New York excluding choice-of-law principles of the
law of such State that would require the application of the laws of a jurisdiction other than such
State.
| Otter Tail Power Company |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Exhibit 1
(to Fourth Amendment to Note Purchase Agreement)
(to Fourth Amendment to Note Purchase Agreement)
