EXHIBIT 1-B
OTTER TAIL POWER COMPANY
DEBENTURES
UNDERWRITING AGREEMENT
November 18, 1997
To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Otter Tail Power Company, a Minnesota corporation (the "COMPANY"),
proposes to sell to the underwriters named in Schedule II hereto (the
"UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"), the principal amount of its debt securities identified in
Schedule I hereto (the "SECURITIES"), to be issued under the Company's Indenture
(For Unsecured Debt Securities) dated as of November 1, 1997 (the "INDENTURE"),
between the Company and First Trust National Association, as trustee (the
"TRUSTEE"). If the firm or firms listed in Schedule II hereto include only the
firm or firms named as Representatives in Schedule I hereto, then the terms
"Underwriters" and "Representatives," as used herein, shall each be deemed to
refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "ACT"), and has filed with the
Securities and Exchange Commission (the "COMMISSION") a registration
statement on such Form (the file number of which is set forth in Schedule I
hereto), which has become effective, for the registration under the Act of
$50,000,000 aggregate initial offering price of the Company's debt
securities, including the Securities. Such registration statement, as
amended at the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1)(x) under the Act and complies in all other material respects
with such Rule. The Company proposes to file with the Commission pursuant
to Rule 424 under the Act a supplement to the form of prospectus included
in such registration statement relating to the Securities and the plan of
distribution thereof and has previously advised the Representatives of all
further information (financial and other) with respect to the Company to be
set forth therein. Such registration statement, including the exhibits
thereto, as amended at the time it was declared effective by the
Commission, is hereinafter called the "REGISTRATION STATEMENT"; such
prospectus, in the form in which it appears in the Registration Statement,
is hereinafter called the "BASIC PROSPECTUS"; and the Basic Prospectus as
supplemented by
such prospectus supplement, in the form in which the same shall be filed
(or transmitted for filing) with the Commission pursuant to such Rule 424,
is hereinafter called the "FINAL PROSPECTUS." Any preliminary form of the
Final Prospectus which has heretofore been filed (or transmitted for
filing) with the Commission pursuant to such Rule 424 is hereinafter called
a "PRELIMINARY FINAL PROSPECTUS." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), on or before the date of this Agreement, or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"AMEND," "AMENDMENT" or "SUPPLEMENT" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, so incorporated by reference.
(b) As of the time when the Registration Statement became effective,
as of the date hereof, as of the time when any post-effective amendment to
the Registration Statement becomes effective (if such effectiveness is
prior to the termination of the offering of the Securities), as of the time
when the Company's latest Annual Report on Form 10-K is filed with the
Commission (if such filing is after January 1, 1997 and prior to the
termination of the offering of the Securities), as of the time when the
Final Prospectus is first filed (or transmitted for filing) pursuant to
Rule 424 under the Act, as of the time when any supplement to the Final
Prospectus is filed (or transmitted for filing) with the Commission (if
such filing is prior to the termination of the offering of the Securities)
and at the Closing Date (as hereinafter defined):
(i) the Registration Statement, as amended as of any such
time, the Final Prospectus, as amended or supplemented as of any
such time, and the Indenture complied or will comply in all
material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act of 1939, as amended
(the "TRUST INDENTURE ACT"), and the respective rules thereunder;
and
(ii) neither the Registration Statement, as amended as of any
such time, nor the Final Prospectus, as amended or supplemented as of
any such time, contained or will contain any untrue statement of a
material fact or omitted or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Forms
T-1 and T-2) under the Trust Indenture Act of the Trustee or the
trustees under the Company's Indenture of Mortgage dated as of July 1,
1936, as supplemented (the "MORTGAGE"), or (ii) the
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information contained in or omitted from the Registration
Statement or the Final Prospectus, or any amendment thereto or
supplement thereof, in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement or the
Final Prospectus.
(c) The Public Utilities Commission of Minnesota (the "MINNESOTA
COMMISSION") has entered one or more orders authorizing, among other
things, (i) the Company's proposed capital structure after the issuance and
sale by the Company of the Securities and other securities therein
mentioned and (ii) the issue and sale of the Securities by the Company on
terms and conditions not inconsistent with the terms and conditions set
forth in or contemplated by this Agreement or any Delayed Delivery Contract
(as hereinafter defined) as hereinafter provided; and no further approval,
authorization, consent, certificate or order of any state or federal
commission or regulatory authority is necessary with respect to the
execution and delivery of the Indenture or the issue and sale of the
Securities as contemplated herein and in any Delayed Delivery Contract
(except that the sale of the Securities in certain jurisdictions may be
subject to the securities or "Blue Sky" laws thereof). A true and complete
copy of such order or orders of the Minnesota Commission has been delivered
to the Representatives.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that if Schedule I hereto
provides for the sale of the Securities pursuant to delayed delivery
arrangements, the respective principal amounts of the Securities to be purchased
by each of the Underwriters shall be as set forth in Schedule II hereto, less
the respective principal amounts of Contract Securities (as hereinafter defined)
determined as provided below. Securities to be purchased by the Underwriters
are hereinafter called the "UNDERWRITERS' SECURITIES" and Securities to be
purchased pursuant to Delayed Delivery Contracts are hereinafter called
"CONTRACT SECURITIES." At the time of the purchase of the Underwriters'
Securities, the Company will pay to the Representatives, for the respective
accounts of the Underwriters, the aggregate underwriting commission in respect
thereof set forth in Schedule I hereto by accepting from the Underwriters in
payment for the Underwriters' Securities certified or official bank check or
checks payable to the order of the Company in the funds set forth in Schedule I
hereto in an amount equal to the aggregate initial price to public of the
Underwriters' Securities set forth in Schedule I hereto, less such underwriting
commission, unless the Representatives and the Company shall agree on another
manner of payment.
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase the Securities from the Company pursuant to
delayed delivery contracts ("DELAYED DELIVERY CONTRACTS") substantially in the
form of Schedule III hereto, but with such changes therein as the Company may
authorize or approve. If so provided, the Underwriters will endeavor to make
such arrangements and, as compensation therefor, the Company will pay to the
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Representatives, for the respective accounts of the Underwriters, on the Closing
Date, by certified or official bank check payable in the funds set forth in
Schedule I hereto, the delayed delivery fee set forth in Schedule I hereto with
respect to the Securities for which Delayed Delivery Contracts are made.
Delayed Delivery Contracts are to be solicited from and made only with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
previously approved by the Company, but, except as the Company may otherwise
agree, each such Delayed Delivery Contract must be for not less than the minimum
principal amount set forth in Schedule I hereto and the aggregate principal
amount of the Contract Securities may not exceed the maximum aggregate principal
amount set forth in Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts.
The respective principal amounts of the Securities to be purchased by
each Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the aggregate principal amount of
the Contract Securities as the principal amount of the Securities so set forth
opposite the name of such Underwriter bears to the aggregate principal amount of
the Securities set forth in Schedule II hereto, except to the extent that the
Representatives shall determine that such reduction shall be otherwise than in
such proportion and shall so advise the Company in writing; PROVIDED, HOWEVER,
that the aggregate principal amount of the Securities to be purchased by all
Underwriters pursuant to this Agreement shall be the aggregate principal amount
of the Securities set forth in Schedule II hereto, less the aggregate principal
amount of the Contract Securities.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwriters' Securities shall be made in the funds, at the office, on the date
and at the time specified in Schedule I hereto, which date and time may be
accelerated or postponed by agreement between the Representatives and the
Company or as provided in Section 10 (such date and time of delivery and payment
for the Underwriters' Securities being herein called the "CLOSING DATE").
Delivery of the Underwriters' Securities shall be made to the Representatives,
for the respective accounts of the Underwriters, against payment by the several
Underwriters through the Representatives of the purchase price therefor to the
Company by wire transfer of such funds to an account specified in writing by the
Company. Certificates for the Underwriters' Securities shall be registered in
the name "Cede & Co." not less than one business day in advance of the Closing
Date and shall be held in safekeeping with The Depository Trust Company ("DTC")
or its agent, subject to release by the Trustee at the Closing.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives at the closing
location specified in Schedule I hereto not later than 1:00 p.m. on the business
day prior to the Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale as set forth in the Final
Prospectus.
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5. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file with the Commission any amendment to the Registration
Statement or any supplement (including the Final Prospectus) of the Basic
Prospectus unless the Company shall have furnished the Representatives a
copy for their review prior to filing. Subject to the preceding sentence,
the Company will cause the Final Prospectus to be filed (or transmitted for
filing) with the Commission pursuant to Rule 424 under the Act. The
Company will promptly advise the Representatives (i) when the Final
Prospectus shall have been filed (or transmitted for filing) with the
Commission pursuant to such Rule 424, (ii) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment to or supplement of the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution or threatening of any
proceeding for such purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or of the institution or
threatening of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event has occurred as a result
of which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend or supplement the Registration Statement or the Final Prospectus to
comply with the Act, the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or an amendment or
supplement which will effect such compliance.
(c) As soon as practicable, but not later than 45 days after the end
of the 12-month period beginning at the end of the current fiscal quarter
of the Company, the Company will make generally available to its security
holders and to the Representatives an earnings statement (which need not be
audited) of the Company and its consolidated subsidiaries which will
satisfy the provisions of Section 11(a) of the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, (i) one signed copy of the registration
statement as originally filed (including exhibits thereto other than
exhibits incorporated by reference therein) and of each amendment thereto
which shall become effective on or prior to the Closing Date, (ii) one
conformed copy for each Underwriter of the registration statement as
originally filed (including exhibits thereto other than exhibits
incorporated by reference therein) and of each amendment thereto which
shall become effective on or prior to the
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Closing Date and (iii) so long as delivery of a prospectus relating to the
Securities by an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final Prospectus and any
amendments thereto and supplements thereof as the Representatives may
reasonably request. The Company will pay the expenses of printing or
otherwise producing all documents relating to the offering of the
Securities and all other costs and taxes incident to the issuance and
original delivery of the Securities.
(e) The Company will cooperate with the Underwriters, and will
reimburse the Underwriters for their expenses (including the reasonable
fees and disbursements of Sidley & Austin), in arranging for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may reasonably designate, will use its
best efforts to maintain such qualifications in effect so long as required
for the distribution of the Securities and will reimburse the Underwriters
for their expenses (including the reasonable fees and disbursements of
Sidley & Austin) in arranging for the determination of the legality of the
Securities for purchase by institutional investors; PROVIDED, HOWEVER, that
the Company shall not be obligated hereby to execute or file any general
consent to service of process under the laws of any jurisdiction or to
qualify to do business as a foreign corporation in any jurisdiction.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of, any debt securities covered
by the Registration Statement or any other registration statement filed by
the Company under the Act.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy in all material respects of the representations and warranties of
the Company contained herein as of the date hereof, as of the time of the
effectiveness of any amendment to the Registration Statement (including the
filing of any document incorporated by reference therein) filed after the date
hereof and prior to the Closing Date and as of the Closing Date, to the accuracy
in all material respects of the statements of the Company made in any
certificates delivered pursuant to the provisions hereof, to the performance in
all material respects by the Company of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time after the date hereof and prior to
the Closing Date, shall have been issued and no proceedings for such
purpose shall have been instituted or, to the best knowledge of the
Company, threatened; and the Final Prospectus shall have been filed (or
transmitted for filing) with the Commission pursuant to Rule 424 under the
Act not later than 5:00 p.m., Chicago time, on the business day following
the date hereof.
(b) The Indenture shall be qualified under the Trust Indenture Act.
(c) There shall be in full force and effect one or more orders of the
Minnesota Commission authorizing, among other things, (i) the Company's
proposed capital structure
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after the issuance and sale by the Company of the Securities and other
securities therein mentioned and (ii) the issue and sale of the Securities
by the Company on terms and conditions not inconsistent with the terms and
conditions set forth in or contemplated by this Agreement and any Delayed
Delivery Contract, and containing no provisions unacceptable to the
Representatives, it being agreed that the order or orders of the Minnesota
Commission heretofore issued as described in paragraph (c) of Section 1
contain no such unacceptable provisions.
(d) The Company shall have furnished to the Representatives the
opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Company, to the effect that:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Minnesota and is duly qualified to transact business as a foreign
corporation and is in good standing in the States of North Dakota
and South Dakota;
(ii) the Company is a public utility as defined in the
statutes of the States of Minnesota, North Dakota and South
Dakota and is authorized by its Articles of Incorporation, as
amended, to carry on the business in which it is engaged, as set
forth in the Final Prospectus; the Company has the legal right to
function and operate as an electric utility in the States of
Minnesota, North Dakota and South Dakota; and the Company is
subject as to rates, issuance of securities, service and other
matters to the jurisdiction of certain authorities as and to the
extent stated in such Annual Report under the caption
"Business--(c) Narrative Description of Business--Electric
Operations--General Regulation";
(iii) except for four municipalities having an aggregate
population of less than 15,000, according to the 1990 census, the
Company has valid and subsisting franchises covering all
municipalities with more than 1,000 population, according to the
1990 census, which authorize the Company to carry on the
respective utility businesses in which it is engaged in the
municipalities covered by such franchises;
(iv) the Indenture is qualified under the Trust Indenture
Act;
(v) the Indenture is in due and proper form, has been duly
and validly authorized by all necessary corporate action, has
been duly and validly executed and delivered and is a valid
instrument legally binding on the Company;
(vi) the form and terms of the Securities have been
established in conformity with the provisions of the Indenture,
and the Securities are in due and proper form; the issue and sale
of the Securities by the Company in accordance with the terms of
this Agreement and any Delayed Delivery
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Contracts have been duly and validly authorized by the necessary
corporate action; the Securities, when duly executed and authenticated
in accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, in the
case of the Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any Contract
Securities, will constitute legal, valid and binding obligations of
the Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
laws affecting the enforcement of creditors' rights generally or by
general principles of equity, and will be entitled to the benefits
provided by the Indenture (subject to the exception stated above); and
the Securities and the Indenture conform as to legal matters with the
statements concerning them made in the Final Prospectus, and such
statements accurately set forth the matters respecting the Securities
and the Indenture required to be set forth in the Final Prospectus;
(vii) the order or orders of the Minnesota Commission
referred to in paragraph (c) of this Section 6 have been duly
entered and, to the best knowledge of such counsel, are still in
force and effect; and no further approval, authorization,
consent, certificate or order of any state or federal commission
or regulatory authority is necessary with respect to the
execution and delivery of the Indenture or the issue and sale of
the Securities as contemplated herein and in any Delayed Delivery
Contracts (except that the sale of the Securities in certain
jurisdictions may be subject to the securities or "Blue Sky" laws
thereof);
(viii) the Registration Statement and any amendments
thereto filed under the Act (including the documents which upon
filing by the Company with the Commission will be incorporated by
reference in the Registration Statement) prior to the Closing
Date have become effective under the Act; to the best knowledge
of such counsel, no stop order suspending the effectiveness of
the Registration Statement, as so amended, has been issued and no
proceedings for such purpose have been instituted or threatened;
and the Registration Statement, the Final Prospectus and each
amendment thereto or supplement thereof, if any, as of their
respective effective or issue dates (other than the financial
statements and other financial and statistical information
contained therein, as to which such counsel need express no
opinion), complied as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the
respective rules thereunder; and although such counsel assumes no
responsibility for the accuracy, completeness or fairness of
statements contained in the Registration Statement, or any
amendment thereto, or the Final Prospectus, or any amendment
thereto or supplement thereof, except as expressly stated in such
counsel's opinion pursuant to the requirements of this paragraph
(d), such counsel has no reason to believe that the Registration
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Statement, at the date of this Agreement, or any amendment thereto, at
the time it became effective (other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion), contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus, or any amendment
thereto or supplement thereof, as of their respective issue dates
(other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion), included any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ix) this Agreement and any Delayed Delivery Contracts have
been duly authorized by all requisite corporate action, executed
and delivered by the Company;
(x) neither the issue and sale of the Securities nor the
consummation of any of the other transactions herein contemplated,
including the fulfillment of the terms hereof or of any Delayed
Delivery Contracts, will conflict with, result in a breach of or
constitute a default under the Articles of Incorporation, as amended,
or By-laws of the Company or any indenture or other agreement or
instrument known to such counsel and to which the Company is a party
or by which the Company or any of its property is bound;
(xi) to the best knowledge of such counsel, there is no
legal or governmental proceeding and no franchise, contract or
other document of a character required to be described in the
Registration Statement or the Final Prospectus, or to be filed as
an exhibit to the Registration Statement, which is not described
or filed as required;
(xii) the statements contained in the Registration
Statement, the Final Prospectus and each amendment thereto or
supplement thereof, if any, which are expressed therein to have
been made on the authority of such counsel have been reviewed by
them and, as to matters of law and legal conclusions, are
correct; and
(xiii) the Company has a duly authorized share
capitalization as set forth under the caption "Capitalization" in
the consolidated balance sheet of the Company at December 31,
1996 included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996 and incorporated by reference in the
Final Prospectus or any amendment thereto or supplement thereof.
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(e) The Company shall have furnished to the Representatives the
opinion, dated the Closing Date, of ▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President,
Governmental and Legal of the Company, to the effect that:
(i) except as disclosed in the Final Prospectus as then
amended or supplemented, there are no actions, suits,
investigations or proceedings at law or in equity or before or by
any court, public board or body pending or, to the best knowledge
of such counsel, threatened against the Company or any
subsidiary, wherein an unfavorable decision, ruling or finding
would have a material adverse effect on the transactions
contemplated by this Agreement, the Registration Statement and
the Final Prospectus or on the validity or enforceability against
the Company of this Agreement, the Indenture or the Securities;
(ii) to the best knowledge of such counsel, the
descriptions included in the Registration Statement, the Final
Prospectus and each amendment thereto or supplement thereof, if
any, as of their respective effective or issue dates, of
statutes, legal and other governmental proceedings and of
franchises, contracts and other documents are accurate and fairly
present the information required to be shown;
(iii) each of Minnesota Dakota Generating Company ("MDGC"),
Mid-States Development, Inc. ("MDI"), Quadrant Co. ("QC"),
Diagnostic Medical Systems, Inc. ("DMSI") and North Central
Utilities, Inc. ("NCUI") is a duly organized and validly existing
corporation in good standing under the laws of its jurisdiction
of incorporation, with full corporate power and authority to
carry on its business as now conducted; and
(iv) all of the issued and outstanding capital stock of
MDGC is validly issued, fully paid and non-assessable and (except
for directors' qualifying shares) is owned beneficially and of
record by the Company free and clear of all liens, pledges and
encumbrances; all of the issued and outstanding capital stock of
each of MDI, QC and NCUI is validly issued, fully paid and
non-assessable and is owned beneficially and of record by MDGC
free and clear of all liens, pledges and encumbrances; and all of
the issued and outstanding capital stock of DMSI is validly
issued, fully paid and non-assessable and is owned beneficially
and of record by MDI free and clear of all liens, pledges and
encumbrances.
(f) The Representatives shall have received from Sidley & Austin,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issue and sale of the Securities, the Indenture,
any Delayed Delivery Contracts, the Registration Statement, the Final
Prospectus, each amendment thereto or supplement thereof, if any, and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the
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purpose of enabling them to pass upon such matters. For purposes of their
opinion, Sidley & Austin shall be entitled to rely upon the opinion of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, as to matters governed by
Minnesota law, and shall be entitled to rely upon such opinion as to the
organization and existence of the Company.
(g) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, of the Company, signed by its
President or any Vice President and by its principal financial or
accounting officer, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus and
each amendment thereto or supplement thereof, if any, and this Agreement
and that:
(i) the representations and warranties of the Company
contained in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if
made on the Closing Date, and the Company has in all material
respects complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date;
(ii) the order or orders of the Minnesota Commission
referred to in paragraph (c) of this Section 6 have been duly
entered and are still in full force and effect;
(iii) no stop order suspending the effectiveness of the
Registration Statement, as amended prior to the Closing Date, has
been issued and no proceedings for such purpose have been
instituted or, to the best knowledge of the Company, threatened;
and
(iv) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material
adverse change in the condition (financial or other), earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, and no dividends (other than regular
quarterly dividends on the Company's Cumulative Preferred Shares
and Common Shares) have been declared or paid on, or other
distribution declared or made on, the outstanding shares of the
Company, except in each case as set forth or contemplated in the
Final Prospectus.
(h) At the Closing Date, Deloitte & Touche LLP shall have furnished
to the Representatives a letter, dated the Closing Date, in form and
substance reasonably satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations
thereunder and stating in effect that:
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(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or
incorporated by reference in the Registration Statement and the
Final Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of
the Exchange Act and the published rules and regulations
thereunder;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Company,
the carrying out of certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter, a reading of the minutes of the meetings of the
shareholders and the Board of Directors (and any committees
thereof) of the Company and its subsidiaries and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the date
of the most recent audited consolidated financial statements
included or incorporated by reference in the Final Prospectus,
nothing came to their attention which caused them to believe
that:
(A) any unaudited consolidated financial
statements included or incorporated by reference in the
Registration Statement and the Final Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act
and the published rules and regulations thereunder;
(B) with respect to the interim period subsequent
to the date of the most recent consolidated financial
statements (other than any capsule information),
audited or unaudited, included or incorporated by
reference in the Registration Statement and the Final
Prospectus: there were any changes at a specified date
(not more than five business days prior to the date of
such letter) in the long-term debt (other than any
purchases of First Mortgage Bonds for sinking fund
purposes) or capital stock (other than any purchases
pursuant to the Automatic Dividend Reinvestment and
Share Purchase Plan or of Cumulative Preferred Shares
for sinking fund purposes) of the Company, or any
decrease in the net assets of the Company, as compared
with the amounts shown on the most recent consolidated
balance sheet included or incorporated by reference in
the Registration Statement and the Final Prospectus; or
for the period from the date of such most recent
consolidated financial
- 12 -
statements to such specified date, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated operating revenues, consolidated operating income,
consolidated net income or net income per average common share
outstanding of the Company; except in all instances for changes
or decreases which the Registration Statement and the Final
Prospectus disclose have occurred or may occur or which are set
forth in such letter; and
(C) they have performed certain other specified
procedures as a result of which they have determined
that certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company) set forth in
the Registration Statement and the Final Prospectus,
including Exhibit 12-A to the Registration Statement,
agrees with the accounting records of the Company,
excluding any questions of legal interpretation.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (i) any change or decrease of the character referred to in
paragraph (h)(ii)(B) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company, the effect of which, in any case referred to in
clause (i) or (ii), is, in the reasonable judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to proceed
with the offering or the delivery of the Securities as contemplated by the
Registration Statement and the Final Prospectus.
(j) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt
securities by ▇▇▇▇▇'▇ Investors Service, Inc., Standard & Poor's Ratings
Group or Fitch Investors Services.
(k) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or any time prior
to, the Closing Date by the Representatives. Notice of such cancellation shall
be given to the Company in writing or by telephone or telegraph, promptly
confirmed in writing.
- 13 -
7. CONDITIONS TO THE OBLIGATION OF THE COMPANY. The obligation of
the Company to deliver the Securities shall be subject to the following
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time after the date hereof and prior to
the Closing Date, shall have been issued and no proceedings for such
purpose shall have been instituted or, to the best knowledge of the
Company, threatened.
(b) The Indenture shall be qualified under the Trust Indenture Act.
(c) There shall be in full force and effect one or more orders of the
Minnesota Commission authorizing, among other things, (i) the Company's
proposed capital structure after the issuance and sale by the Company of
the Securities and other securities therein mentioned and (ii) the issue
and sale of the Securities by the Company on terms and conditions not
inconsistent with the terms and conditions set forth in or contemplated by
this Agreement or any Delayed Delivery Contract, and containing no
provisions unacceptable to the Company, it being agreed that the order or
orders of the Minnesota Commission heretofore issued as described in
paragraph (c) of Section 1 contain no such unacceptable provisions.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
this Agreement and the obligation of the Company to deliver the Securities
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Company. Notice of such cancellation shall be given to the Representatives in
writing or by telephone or telegraph, promptly confirmed in writing.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Underwriters' Securities as provided herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is not
satisfied, because any condition to the obligation of the Company set forth in
Section 7 is not satisfied, because of any termination pursuant to Section 11 or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or to comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will reimburse
the Underwriters severally, upon demand, for all out-of-pocket expenses
(including the reasonable fees and disbursements of Sidley & Austin) which shall
have been reasonably incurred by them in connection with the proposed purchase
and sale of the Securities.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which it or any
of them may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions, suits or proceedings
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement as originally filed, or in any amendment thereto, covering the
registration of the Securities, or in the Basic Prospectus, any Preliminary
- 14 -
Final Prospectus or the Final Prospectus, or in any amendment thereto or
supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified person for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability, action, suit or proceeding; PROVIDED, HOWEVER, that (i) the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof, or arises out
of or is based upon the Statements of Eligibility (Forms T-1 and T-2) under the
Trust Indenture Act of the Trustee or the trustees under the Mortgage, and
(ii) such indemnity with respect to the Basic Prospectus or any Preliminary
Final Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as amended or supplemented), excluding documents incorporated
therein by reference, at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the Act
and the untrue statement or the omission of a material fact contained in the
Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented), provided that
the Company shall have delivered the Final Prospectus (or the Final Prospectus
as amended or supplemented) in a timely manner and in sufficient quantities, as
provided in Section 5(d), to permit such delivery by the Underwriters. This
agreement of indemnity will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person who controls the Company within the
meaning of the Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
written information furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for use in connection with the
preparation of the documents referred to in such foregoing indemnity. This
agreement of indemnity will be in addition to any liability which any
Underwriter may otherwise have.
(c) Promptly after receipt by any person indemnified under this
Section 9 of notice of the commencement of any action, suit or proceeding, such
person will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 9, notify such indemnifying party in writing of the
commencement thereof; but the omission so to notify such indemnifying party will
not relieve it from any liability which it may have to any indemnified person
otherwise than under this Section 9. In case any such action, suit or
proceeding is brought against any person indemnified under this Section 9 and
such indemnified person notifies an indemnifying party of the commencement
thereof, such indemnifying party will be entitled to participate therein and, to
the extent that it may elect by written notice delivered to such indemnified
person
- 15 -
promptly after receiving the aforesaid notice from such indemnified person, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person; PROVIDED, HOWEVER, that if the defendants in any such
action, suit or proceeding include both such indemnified person and such
indemnifying party and such indemnified person shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
persons which are different from or in addition to the defenses available to
such indemnifying party, the indemnified person or persons shall have the right
to select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action, suit or proceeding on behalf of such
indemnified person or persons. Upon receipt of notice from such indemnifying
party to such indemnified person of the former's election so to assume the
defense of such action, suit or proceeding and approval by such indemnified
person of counsel, such indemnifying party will not be liable to such
indemnified person under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified person in connection with the defense
thereof unless (i) such indemnified person shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that such
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of indemnification
under paragraph (a) of this Section 9), (ii) such indemnifying party shall not
have employed counsel reasonably satisfactory to such indemnified person to
represent such indemnified person within a reasonable time after notice of
commencement of such action, suit or proceeding or (iii) such indemnifying party
shall have authorized the employment of counsel for such indemnified person at
the expense of such indemnifying party; PROVIDED, HOWEVER, that if clause (i) or
(iii) above is applicable, the liability of such indemnifying party shall be
only in respect of the counsel specifically referred to in such clause (i) or
(iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 9 shall be due in accordance with its terms but for any reason shall be
held by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending against the
same) to which the Company and one or more of the Underwriters may be subject in
such proportion that the Underwriters shall be responsible for the portion
represented by the percentage which the aggregate underwriting commission shall
bear to the aggregate initial price to public specified in Schedule I hereto of
the Underwriters' Securities and the Company shall be responsible for the
balance; PROVIDED, HOWEVER, that (i) in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
commission applicable to the Securities purchased by such Underwriter hereunder
and (ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
is not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), each person who controls an Underwriter within the meaning of the
Act or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of the
Act or the Exchange Act, each director of the Company and each officer of the
Company who shall have signed the Registration Statement shall have the same
rights to
- 16 -
contribution as the Company, subject in each case to clause (ii) of the
preceding sentence. Any person entitled to contribution shall, promptly after
receipt of notice of the commencement of any action, suit or proceeding against
such person in respect of which a claim for contribution may be made against a
party or parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission so to notify such party or
parties shall not relieve such party or parties from any other obligation it or
they may have otherwise than under this paragraph (d).
10. DEFAULT BY AN UNDERWRITER. If one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure shall constitute a
default in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated, severally, to purchase and pay for
(in the respective proportions which the principal amount of the Securities set
forth opposite their respective names in Schedule II hereto bears to the
aggregate principal amount of the Securities set forth opposite the names of all
the nondefaulting Underwriters) the Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the
event that the aggregate principal amount of the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of the Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities; and if the
nondefaulting Underwriters shall not purchase all the Securities or if other
arrangements satisfactory to the Representatives and the Company for the
purchase of all the Securities shall not be made within 48 hours after such
default, this Agreement will terminate without any liability on the part of any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as described in this Section 10 under circumstances where this
Agreement shall not be terminated, the Closing Date shall be postponed for such
period, not exceeding seven days, as the Representatives and the Company shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus, or in any other documents or arrangements, may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability to the Company and any nondefaulting Underwriter
for damages occasioned by its default hereunder.
11. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by written notice given to the
Company prior to delivery of and payment for the Underwriters' Securities, if
prior to such time (i) trading in the Company's Common Shares shall have been
suspended by the Commission or the National Association of Securities Dealers,
Inc. or trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared by Federal,
New York State or Minnesota authorities or (iii) there shall have occurred any
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Representatives, impracticable to market
the Securities.
- 17 -
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, of the Representatives and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, any Representative,
the Company or any of the directors, officers or controlling persons referred to
in Section 9, and will survive delivery of and payment for the Securities. The
provisions of Sections 8 and 9 shall survive the termination or cancellation of
this Agreement.
13. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Vice President, Finance.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons, directors and officers referred to in Section 9, and no
other person will have any right or obligation hereunder; and no other person
(including a purchaser, as such, from any Underwriter of the Securities) shall
acquire or have any rights under or by virtue of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original; and all of which counterparts shall, taken together, constitute one
and the same Agreement.
16. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of Minnesota.
- 18 -
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
OTTER TAIL POWER COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President, Finance, and Treasurer
The foregoing Agreement is hereby confirmed
and accepted as of the date specified in
Schedule I hereto.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
For themselves and the other several Underwriters,
if any, named in Schedule II to the foregoing Agreement.
- 19 -
SCHEDULE I
Underwriting Agreement dated November 18, 1997
Registration Statement No. 333-11153
Representatives of the Underwriters: ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
Address of Representatives: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title, Purchase Price and Description of the Securities:
Title: Senior Debentures, 6.375% Series Due
2007
Principal amount: $50,000,000
Purchase price: 98.206% of principal amount, plus
accrued interest from November 21, 1997
Funds for payment: Same day funds
Underwriting commission
(including aggregate dollar
amount): 0.375% of principal amount (aggregate
dollar amount of $187,500)
Initial price to public: 98.581% of principal amount, plus
accrued interest from November 21, 1997
Maturity: December 1, 2007
Interest payment dates: December 1 and June 1, commencing June
1, 1998
Sinking fund provisions: None
Optional redemption provisions: None
Other provisions: None
Closing Date, Time and Location: November 21, 1997, at 10:00 a.m.
(Minneapolis, Minnesota time), at the
offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Delayed Delivery Arrangements: Not Applicable
SCHEDULE II
PRINCIPAL AMOUNT OF
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. $50,000,000.00
SCHEDULE III
DELAYED DELIVERY CONTRACT
November , 1997
Otter Tail Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
The undersigned hereby agrees to purchase from Otter Tail Power
Company (the "COMPANY"), and the Company agrees to sell to the undersigned, on
_______________, 19__ (the "DELIVERY DATE"), $____________ principal amount of
the Company's Senior Debentures, % Series Due 2007 (the "SECURITIES")
offered by the Company's Final Prospectus dated November , 1997 (as amended
or supplemented), receipt of a copy of which is hereby acknowledged, at a
purchase price of _____% of the principal amount thereof, plus accrued interest,
if any, thereon from _______________, 1997, to the date of payment and delivery,
and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned
hereunder shall be made on or before 11:00 a.m., Minneapolis time, on the
Delivery Date to or upon the order of the Company in immediately available funds
at the office of , upon delivery to the
undersigned of the Securities in definitive fully registered form and in such
authorized denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date. If no request is
received, the Securities will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate principal amount of the
Securities to be purchased by the undersigned hereunder.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date, and the obligation of the Company to
sell and deliver the Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the failure
thereof) that (1) the purchase of the Securities to be made by the undersigned
hereunder, which purchase the undersigned represents is not prohibited on the
date hereof, shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or
before the Delivery Date, shall have sold to certain underwriters (the
"UNDERWRITERS") such principal amount of the Securities as is to be sold to them
pursuant to the Underwriting Agreement referred to in the Final Prospectus
mentioned above. Promptly after completion of such sale to the Underwriters,
the Company will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinions of counsel
for the Company delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This contract will become a binding
agreement between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
This agreement shall be governed by, and construed in accordance with,
the laws of the State of Minnesota.
Very truly yours,
-----------------------------------
(Name of Purchaser)
By
---------------------------------
(Signature and Title of Officer)
-----------------------------------
-----------------------------------
(Address)
Accepted:
OTTER TAIL POWER COMPANY
By
------------------------------------
(Authorized Signature)
