exv4w3



 



Exhibit 4.3



Execution Copy




OTTER TAIL CORPORATION



FIRST AMENDMENT




Dated
as of December 14, 2007




to




NOTE PURCHASE AGREEMENT




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





 









 








FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT




     This First Amendment dated as of December 14, 2007 (the or this “First 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 First
Amendment (collectively, the “Noteholders”).



RECITALS:




     A. The Company and each of the Noteholders have heretofore entered into that certain Note
Purchase Agreement dated as of August 20, 2007 (the “Note Purchase Agreement”) between the
Company and each of the Noteholders listed on Schedule A thereto. 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 First 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 First 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:



SECTION 1. AMENDMENTS.




     1.1. Section 12.2 of the Note Purchase Agreement shall be and is hereby amended in its
entirety
to read as follows:




Interest and Dividend Coverage Ratio. The Company will not permit the Interest and Dividend
Coverage Ratio to be less than 1.5 to 1.0 determined as of the end of the most recently
ended period of four consecutive fiscal quarters of the Company.



     1.2. Section 12.9 of the Note Purchase Agreement shall be and is hereby amended in its
entirety,
effective as of August 20, 2007, to read as follows:




“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 (x) 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, (y) 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., and (z) 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 agrees to a covenant restricting itself or its Subsidiaries from
guaranteeing indebtedness of any other Person (a “Subsidiary Guarantee Covenant”).
Notwithstanding the foregoing, in the event Varistar enters into a Varistar Credit Facility,
then (i) in the event such Varistar Credit Facility is terminated or expires by its terms,
the provisions of this Section 12.9 shall be deemed deleted and shall no longer be in effect
and (ii) in the event that the Subsidiary Guarantee Covenant does not apply to any
particular Subsidiary or Subsidiaries, the provisions of this Section 12.9 shall be deemed
deleted and shall no longer be in effect with respect to such particular Subsidiary or
Subsidiaries.



SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.




     2.1. To induce the Noteholders to execute and deliver this First Amendment (which
representations shall survive the execution and delivery of this First Amendment), the Company
represents and warrants to the Noteholders that:




     (a) this First Amendment has been duly authorized, executed and delivered by it and
this First Amendment constitutes the legal, valid and binding obligation, contract and
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;




     (b) the Note Purchase Agreement, as amended by this First Amendment, constitutes
the legal, valid and binding obligation, contract and 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) the execution, delivery and performance by the Company of this First
Amendment (i) has been duly authorized by all requisite corporate action and, if
required,
shareholder action, (ii) does not require the consent or approval of any governmental
or
regulatory body or agency, and (iii) will not (A) violate (1) any provision of law,
statute, rule or
regulation or its certificate of incorporation or bylaws, (2) any order of any court or
any rule,
regulation or order of any other agency or government binding upon it, or (3) any
provision of
any indenture, mortgage, deed of trust, loan, purchase or credit agreement or other
Material
agreement or instrument to which it is a party or by which its properties or assets are
or may be
bound, or (B) result in a breach or constitute (alone or with due notice or lapse of
time or both) a
default under any indenture, agreement or other instrument referred to in clause
(iii)(A)(3) of this
Section 2.1(c);




 









 






     (d) as of the date hereof and after giving effect to this First Amendment, no Default
or Event of Default has occurred which is continuing; and




     (e) all the representations and warranties contained in Section 7 of the Note Purchase
Agreement 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 FIRST AMENDMENT.




     3.1.
This First 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 First Amendment, duly executed by the Company
and the Required Holders, shall have been delivered to the Noteholders; and




     (b) the representations and warranties of the Company set forth in Section 2 hereof
are true and correct on and with respect to the date hereof.



     Upon receipt of all of the foregoing, this First Amendment shall become effective.



SECTION 4. PAYMENT OF NOTEHOLDERS’ COUNSEL FEES AND EXPENSES.




     4.1. The Company agrees to pay upon demand, the reasonable fees and expenses of Winston &
Strawn LLP, counsel to the Noteholders, in connection with the negotiation, preparation,
approval,
execution and delivery of this First Amendment.



SECTION 5. MISCELLANEOUS.




     5.1.
This First Amendment shall be construed in connection with and as part of the Note
Purchase Agreement, and except as modified and expressly amended by this First Amendment, all
terms, conditions and covenants contained in the Note Purchase Agreement and the Notes are hereby
ratified and shall be and remain in full force and effect.



     5.2. Any and all notices, requests, certificates and other instruments executed and delivered
after
the execution and delivery of this First Amendment may refer to the Note Purchase Agreement
without
making specific reference to this First Amendment but nevertheless all such references shall
include this
First Amendment unless the context otherwise requires.



     5.3. The descriptive headings of the various Sections or parts of this First Amendment are for
convenience only and shall not affect the meaning or construction of any of the provisions
hereof.



     5.4.
This First Amendment shall be governed by and construed in accordance with the laws of
the State of New York.



[Remainder
of Page Intentionally Left Blank]





 












 





     The execution hereof by you shall constitute a contract between us for the uses and purposes
hereinabove set forth, and this First Amendment may be executed in any number of counterparts, each
executed counterpart constituting an original, but all together only one agreement.



	 	 	 	 	 
	 	OTTER TAIL CORPORATION

 	 
	 	By:  	/s/ Kevin G. Moug
 	 
	 	 	Name:  	Kevin G. Moug 	 
	 	 	Title:  	CFO & Treasurer 	 
	 



	 	 	 	 	 
	ACCEPTED AND AGREED TO:	 	 
	 
	 	 	 	 
	DEUTSCHE BANK AG NEW YORK BRANCH	 	 
	 
	 	 	 	 
	By
	 	/s/ Frank Conley	 	 
	Name:

	 	Frank Conley

	 	 
	Title:
	 	Director	 	 
	 
	 	 	 	 
	By
	 	/s/ David Downie	 	 
	Name:

	 	David Downie

	 	 
	Title:
	 	Director	 	 
	 
	 	 	 	 
	TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
	 
	 	 	 	 
	By
	 	/s/ Elizabeth Schulz	 	 
	Name:

	 	Elizabeth Schulz

	 	 
	Title:
	 	Director	 	 
	 
	 	 	 	 
	PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY
	 
	 	 	 	 
	By:

	 	Provident Investment Management, LLC	 	 
	Its:

	 	Agent	 	 
	 
	 	 	 	 
	By
	 	/s/ W. Benson Vance	 	 
	Name:

	 	W. Benson Vance

	 	 
	Title:
	 	Vice President	 	 






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THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA




	 	 	 	 	 
	By

	 	/s/ Barry Scheinholtz
 

	 	 
	Name:

	 	Barry Scheinholtz	 	 
	Title:

	 	Private Placements Manager	 	 






THRIVENT FINANCIAL FOR LUTHERANS




	 	 	 	 	 
	By

	 	/s/ Alan D. Onstad
 

	 	 
	Name:

	 	Alan D. Onstad	 	 
	Title:

	 	Associate Portfolio Manager	 	 





FORT DEARBORN LIFE INSURANCE COMPANY 

THE CATHOLIC AID ASSOCIATION 

GREAT WESTERN INSURANCE
COMPANY 

AMERICAN REPUBLIC INSURANCE COMPANY 

CINCINNATI INSURANCE COMPANY 

COLORADO BANKERS LIFE INSURANCE COMPANY




By: Advantus Capital Management, Inc.




	 	 	 	 	 
	By

	 	/s/ James W. Tobin
 

	 	 
	Name:

	 	James W. Tobin	 	 
	Title:

	 	Vice President	 	 






NAVY MUTUAL AID ASSOCIATION




	 	 	 	 	 
	By

	 	/s/ Allen M. McCray
 

	 	 
	Name:

	 	Allen M. McCray	 	 
	Title:

	 	Vice President, Investments	 	 






NATIONAL GUARDIAN LIFE INSURANCE COMPANY




	 	 	 	 	 
	By

	 	/s/ R.A. Mucci
 

	 	 
	Name:

	 	R.A. Mucci	 	 
	Title:

	 	Senior Vice President & Treasurer	 	 







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