Dated as of September 11,
2008
Dated as of August 20,
2007
$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
$50,000,000 6.47% Senior Unsecured Notes, Series A, due
2037
SECOND AMENDMENT TO NOTE PURCHASE
AGREEMENT
This Second
Amendment dated as of September 11, 2008 (the or this “
Second Amendment ”) to the Note Purchase Agreement
dated as of August 20, 2007 is between OTTER TAIL CORPORATION,
a Minnesota corporation (the “ Company ”), and
each of the institutions which is a signatory to this Second
Amendment (collectively, the “ Noteholders
”).
A. The
Company and each of the Noteholders have heretofore entered into
that certain Note Purchase Agreement dated as of August 20,
2007 between the Company and each of the Noteholders listed on
Schedule A thereto, as amended by a First Amendment dated as
of December 14, 2007 between the Company and the institutions
signatory thereto (as so amended, the “ Note Purchase
Agreement ”). The Company has heretofore issued (a)
$33,000,000 aggregate principal amount of 5.95% Senior Unsecured
Notes, Series A, due 2017 (the “ Series A
Notes ”); (b) $30,000,000 aggregate principal amount of
6.15% Senior Unsecured Notes, Series B, due 2022 (the “
Series B Notes ”); (c) $42,000,000 aggregate
principal amount of 6.37% Senior Unsecured Notes, Series C,
due 2027 (the “ Series C Notes ”); and (d)
$50,000,000 aggregate principal amount of 6.47% Senior Unsecured
Notes, Series D, due 2037 (the “ Series D
Notes ” and together with the Series A Notes, the
Series B Notes and the Series C Notes, collectively, the
“ Notes ”) pursuant to the Note Purchase
Agreement.
B. The
Company and the Noteholders now desire to amend the Note Purchase
Agreement in the respects, but only in the respects, hereinafter
set forth.
C. Capitalized
terms used herein shall have the respective meanings ascribed
thereto in the Note Purchase Agreement unless herein defined or the
context shall otherwise require.
D. All
requirements of law have been fully complied with and all other
acts and things necessary to make this Second Amendment a valid,
legal and binding instrument according to its terms for the
purposes herein expressed have been done or performed.
NOW,
THEREFORE , upon the full and complete satisfaction of the
conditions precedent to the effectiveness of this Second Amendment
set forth in Section 3.1 hereof, and in consideration of good
and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the Company and the Noteholders do hereby
agree as follows:
1.1.
Section 12.9 of the Note Purchase Agreement shall be and is
hereby amended in its entirety to read as follows:
Section 12.9. Subsidiary Guarantees . The Company will
not permit any 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
one or more Subsidiaries of the Company or Varistar of obligations
of the Company or Varistar in respect of Indebtedness identified
in
Schedule 7.15 hereto, (ii) guaranties
by one or more Subsidiaries of the Company or Varistar of
obligations of the Company in respect of Indebtedness of the
Company pursuant to that certain Note Purchase Agreement, dated as
of February 23, 2007, between the Company and Cascade
Investment L.L.C., (iii) guaranties by any Subsidiaries of
Varistar in respect of indebtedness incurred by Varistar under a
credit facility with U.S. Bank National Association entered into
after the date hereof, if any (a “ Varistar Credit
Facility ”), and in connection therewith Varistar agrees
to a covenant restricting itself or its Subsidiaries from
guaranteeing indebtedness of any other Person (subject to the
exceptions provided for therein) (a “ Subsidiary Guarantee
Covenant ”), (iv) guaranties by the Company or any
Subsidiary of obligations of any Subsidiary as lessee under any
lease that is not a Capita
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