Amendment No. 5 dated as of December 12, 2011



 Exhibit 4.1 

 
  

 
 OTTER
TAIL CORPORATION 
  

 

AMENDMENT NO. 5 
 DATED AS OF DECEMBER 12, 2011 
 to 
 NOTE PURCHASE AGREEMENT

 Dated as of February 23, 2007 
  

 

RE: $50,000,000 SENIOR NOTE 

due November 30, 2017 
  

 
  







 AMENDMENT NO. 5 TO NOTE
PURCHASE AGREEMENT 
 THIS AMENDMENT NO. 5
dated as of December 12, 2011 (the or this “Amendment”) to the Note Purchase Agreement dated as of February 23, 2007 is between Otter Tail Corporation, a Minnesota corporation (the “Company”), and Cascade
Investment, L.L.C. (“Cascade”). 
 RECITALS: 

A. The Company and Cascade have heretofore entered into the Note Purchase Agreement, dated as of February 23, 2007, as amended by a
letter agreement dated December 14, 2007, an Amendment No. 2 dated as of June 30, 2009 (“Amendment No. 2”), an Amendment No. 3 dated as of June 23, 2010, and an Amendment No. 4 dated as of
July 29, 2010 (as so amended, the “Note Purchase Agreement”). The Company has heretofore issued the $50,000,000 8.89% Senior Note due November 30, 2017 (the “Note”) pursuant to the Note Purchase Agreement.

 B. The Company and Cascade 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 (as amended hereby) unless herein defined or the context shall otherwise require. 
 NOW,
THEREFORE, in consideration of good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Company and Cascade do hereby agree as follows, which agreement shall become effective as of the Effective
Time (as defined below) upon the full and complete satisfaction of each of the conditions precedent set forth in Section 3.1 hereof: 
 ARTICLE I 
 AMENDMENT 

Section 1.1. Effective as of the Effective Time, the definition of “Consolidated Net Income” set forth in Annex A to the
Note Purchase Agreement shall be amended as follows: 
 (a) by deleting clause (e) thereof in its entirety and replacing
with clause (e) as set forth below: 
 “(e) non-operating gains (including, without limitation, extraordinary or
nonrecurring gains, gains from the sale of fixed assets related to the discontinuance of operations or the sale of a subsidiary or business unit that constitutes a division of the Company), and similar non-operating losses during the applicable
period; provided, however, that gains and losses resulting from the sale of fixed assets during such period that is not related to the discontinuance of operations or the sale of a subsidiary or business unit that constitutes a division of the
Company shall be included in Consolidated Net Income;” 







 (b) by amending clause (j) thereof to read as follows: 

“(j) any net income or gain during such period from (i) any change in accounting principles in accordance with GAAP,
(ii) any prior period adjustments resulting from any change in accounting principles in accordance with GAAP; and in the case of each of clauses (i) and (ii), any similar aggregate net loss;” 

ARTICLE II 

REPRESENTATIONS AND WARRANTIES OF THE COMPANY 
 Section 2.1. To induce Cascade to execute and deliver this Amendment (which representations shall survive the execution and delivery of this Amendment), the Company represents and warrants to
Cascade that: 
 (a) (i) this Amendment has been duly authorized by all requisite corporate action on the part of the Company,
and (ii) this Amendment has been executed and delivered by the Company and 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; 
 (b) each of the Note Purchase Agreement, as amended by this Amendment, and the Note, 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 and delivery by the Company of this Amendment and the performance by the Company of its obligations under this Amendment
will not (A) violate the Articles of Incorporation of the Company, as amended, or Bylaws of the Company, as amended, (B) violate Section 673 of the Minnesota Business Corporation Act (the “MBCA”) or Minnesota Statutes
Section 216B.48, or (C) violate, result in the breach or modification of, conflict with, constitute a default or result in an acceleration of any obligation under, result in the imposition of any encumbrance pursuant to, or affect the
validity or effectiveness of, any contract, permit, order or other law applicable to the Company, except (as to clause (C) only) for any violation, breach, modification, conflict, default, acceleration, encumbrance or effect which would not
have a material adverse effect on the Company and its Subsidiaries taken as a whole. No approval or consent, filings, notifications, waivers or exemptions on the part of any (A) Minnesota, North Dakota or South Dakota or (B) New York or
federal, governmental authority is required to be obtained or made by the Company in connection with the execution and delivery by it of this Amendment and the performance by the Company of its obligations under this Amendment, except such as have
been obtained or made; 
 (d) as of the date hereof and after giving effect to this Amendment, no Default or Event of Default has
occurred and is continuing; 

  
 2 








 (e) all the representations and warranties contained in Article V 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, except as set forth on Schedule A hereto and as modified pursuant to Exhibits B and C hereto; and none of
the Material Subsidiaries listed on Schedule 1 to the Note Purchase Agreement are Subsidiaries of Otter Tail Power Company. 

ARTICLE III 

CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT 
 Section 3.1. Conditions Precedent. The amendments contained in this Amendment shall become effective (the “Effective Time”) upon delivery by the Company of, and compliance
by the Company with, the following: 
 (a) executed counterparts of this Amendment, duly executed by the Company and Cascade,
shall have been delivered to Cascade; 
 (b) (i) the representations and warranties of the Company set forth in Section 2.1
hereof are true and correct on and with respect to the date hereof and at the Effective Time, and (ii) the Company shall have complied with all of the obligations contained in this Amendment; 

(c) no Default or Event of Default under the Note Purchase Agreement has occurred and is continuing; 

(d) Cascade shall have received the favorable opinions of counsel to the Company as to the matters set forth in Sections 2.1(a), 2.1(b)
and 2.1(c) hereof, which opinions shall be in form and substance satisfactory to Cascade and shall cover the matters set forth in Exhibit A to this Amendment attached hereto; and 

(e) the Company shall have paid the reasonable fees, charges and disbursements of Cascade’s special counsel, Cleary Gottlieb
Steen & Hamilton LLP, in connection with the negotiation, preparation, approval, execution and delivery of this Amendment to the extent reflected in a statement of such counsel rendered to Cascade and delivered to the Company. 

ARTICLE IV 

PAYMENT OF NOTEHOLDER’S COUNSEL FEES AND EXPENSES 
 Section 4.1. The Company agrees to pay upon demand, the reasonable fees and expenses of Cleary Gottlieb Steen & Hamilton LLP, counsel to Cascade, in connection with the negotiation,
preparation, approval, execution and delivery of this Amendment. 
 ARTICLE V 

NOTEHOLDER REPRESENTATIONS AND WARRANTIES 
 Section 5.1. Cascade represents that it holds all of the outstanding principal amount of the Note. 

  
 3 








 ARTICLE VI 
 MISCELLANEOUS 
 Section 6.1. This Amendment shall be construed in
connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and the Note are hereby ratified and shall be
and remain in full force and effect. 
 Section 6.2. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Amendment may refer to the Note Purchase Agreement without making specific reference to this Amendment but nevertheless all such references shall include this Amendment unless the
context otherwise requires. 
 Section 6.3. The descriptive headings of the various Sections or parts of this Amendment
are for convenience only and shall not affect the meaning or construction of any of the provisions hereof. 
 Section
6.4. This Amendment shall be governed by and construed in accordance with New York law. 
 Section 6.5. The execution
hereof by the parties shall constitute a contract between the Company and Cascade for the uses and purposes hereinabove set forth, and this Amendment may be executed in any number of counterparts, each executed counterpart constituting an original,
but all together only one agreement. 
 [Remainder of page intentionally left blank] 

  
 4 








 The foregoing is hereby agreed to as of the date hereof. 

 

			
	OTTER TAIL CORPORATION
		
	By:	 	/s/ Kevin G. Moug
		 	Kevin G. Moug
		 	Chief Financial Officer


  

					
	ACCEPTED AND AGREED TO:
	
	CASCADE INVESTMENT, L.L.C.
		
	By:	 	/s/ Michael Larson
		 	Name:	 	Michael Larson
		 	Title:	 	Business Manager

 (signature page to Amendment No. 5 
 to Note Purchase Agreement) 







 SCHEDULE A 
 (to Amendment No. 5 to Note Purchase Agreement) 
 Exceptions to
Representations and Warranties 
  

	1.	The information provided in each Schedule to the Note Purchase Agreement is true and correct only as of the date of delivery thereof, notwithstanding any statement to
the contrary in Article V of the Note Purchase Agreement. 

  

	2.	Schedules 5.4 and 5.15 in the form attached hereto as Exhibit B and Exhibit C shall be deemed to replace the corresponding Schedules to the Note Purchase Agreement as
of the date hereof and are true and correct as of the date hereof. 

  

	3.	For purposes of Section 5.7, no order of the Minnesota Public Utilities Commission approving the capital structure of Otter Tail Corporation is required.


  

	4.	With respect to Section 5.19, Otter Tail Corporation was incorporated in June 2009 and was not subject to SEC reporting requirements until the effectiveness of the
Permitted Reorganization (as defined in Amendment No. 2). 

  

	5.	With respect to Section 5.20, Otter Tail Corporation was incorporated in June 2009. 








 EXHIBIT A 
 (to Amendment No. 5 to Note Purchase Agreement) 
 DESCRIPTION OF
OPINION OF COUNSEL 
 [See attached] 







 December 12, 2011 
 Cascade Investment, L.L.C. 
 2365 Carillon Point 

Kirkland, Washington 98033 
 Ladies and
Gentlemen: 
 I have acted as counsel to Otter Tail Corporation, a Minnesota corporation (the “Company”), in connection
with that certain Amendment No. 5 dated as of December 12, 2011, to the Note Purchase Agreement dated as of February 23, 2007 (the “Amendment”), between the Company and Cascade Investment, L.L.C. (“Cascade”), which
amends that certain Note Purchase Agreement, dated as of February 23, 2007 (the “Original Note Purchase Agreement”), as amended by a letter agreement dated December 14, 2007 (the “Letter Agreement”), Amendment
No. 2 dated as of June 30, 2009 (“Amendment No. 2”), Amendment No. 3 dated as of June 23, 2010 (“Amendment No. 3”) and Amendment No. 4 dated as of July 29, 2010 (“Amendment
No. 4”) (the Original Note Purchase Agreement, as amended by the Letter Agreement, Amendment No. 2, Amendment No. 3 and Amendment No. 4, being referred to herein as the “Note Purchase Agreement”), between the
Company and Cascade relating to the issuance and sale by the Company of its 8.89% Senior Note due November 30, 2017 in the aggregate principal amount of $50,000,000. This opinion is being delivered to you pursuant to Section 3.1(d) of the
Amendment. Capitalized terms used herein, except as otherwise specifically defined herein, are used with the same meaning as defined in the Note Purchase Agreement, as amended by the Amendment. 

In connection with this opinion I have examined such documents and reviewed such questions of law as I have considered necessary and
appropriate for the purposes of this opinion. 
 In rendering my opinions set forth below, I have assumed the authenticity of
all documents submitted to me as originals, the genuineness of all signatures (other than the signatures of officers of the Company) and the conformity to authentic originals of all documents submitted to me as copies. I also have assumed the legal
capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise)
to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or
instruments are the valid, binding and enforceable obligations of such parties. I have also assumed that all conditions precedent to the effectiveness of the Amendment have been satisfied or waived contemporaneously with the delivery of this opinion
letter. As to questions of fact material to my opinion, I have relied upon representations and certificates of officers and other employees of the Company and its Subsidiaries (in each case known by me to have authority to make such representations
and certifications on behalf of the Company), and certificates of public officials. 







 December 12, 2011 
 Page 2 
 Based on the foregoing, I am of the opinion that: 

 

	 	1.	The Company is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and is duly licensed or qualified
and is in good standing in each jurisdiction in which the character of the properties owned or leased by it or the nature of the business transacted by it makes such licensing or qualification necessary, except where failure to be so licensed or to
so qualify or to be in good standing would not result in a Material Adverse Effect. 

  

	 	2.	No approval or consent of, filing with, notification to, or waiver or exemption from, any Minnesota or North Dakota governmental authority or any Minnesota, North
Dakota or other federal governmental authority regulating public utilities or public utility holding companies, is required to be obtained or made by the Company in connection with its execution and delivery of the Amendment or the performance by
the Company of its obligations pursuant to the Note Purchase Agreement, as amended by the Amendment, except for such approvals, consents, filings, notifications, waivers or exemptions as have been obtained or made. 


 

	 	3.	The execution and delivery by the Company of the Amendment and the performance by the Company of its obligations under the Amendment will not (a) violate the
articles of incorporation or bylaws of the Company, (b) violate Section 673 of the Minnesota Business Corporation Act or Minnesota Statutes Section 216B.48, or (c) violate, result in the breach or modification of, conflict with,
constitute a default or result in an acceleration of any obligation under, result in the imposition of any encumbrance pursuant to, or affect the validity or effectiveness of, any contract, permit, order or other law applicable to the Company,
except (as to clause (c) only) for any violation, breach, modification, conflict, default, acceleration, encumbrance or effect which would not have a Material Adverse Effect and except that I express no opinion regarding any federal securities
laws or the securities or “Blue Sky” laws of any state. 

  

	 	4.	The execution and delivery by the Company of the Amendment and the performance by the Company of its obligations under the Note Purchase Agreement, as amended by the
Amendment, have been duly authorized by all requisite corporate actions on the part of the Company, and the Amendment and has been duly executed and delivered by the Company. 


 

	 	5.	There is no litigation pending or, to the best of my knowledge, threatened which in my opinion could reasonably be expected to have a Material Adverse Effect on the
Company or that would impair the ability of the Company to comply with the provisions of the Note Purchase Agreement. 

  

	 	6.	Notwithstanding the execution of the Amendment, pursuant to Sections 4(a) and 4(c) of the Guaranty Agreement, the guaranty under the Guaranty Agreement by each of
the Subsidiary Guarantors listed in Schedule 5.4 to the Note Purchase Agreement remains in full force and effect. 








 December 12, 2011 
 Page 3 
 The opinions expressed above are limited to the laws of the States of
Minnesota and North Dakota and the federal laws of the United States. I express no opinion as to the laws of any other jurisdiction. 
 The foregoing opinions are being furnished to you solely for your benefit (and the benefit of your successors and assigns) and may not be relied upon by, nor may copies be delivered to, any other person
without my prior written consent. 
 Very truly yours, 

George A. Koeck 
 General Counsel and Corporate Secretary 







 December 12, 2011 
 Cascade Investment, L.L.C. 
 2365 Carillon Point 

Kirkland, Washington 98033 
 Ladies and
Gentlemen: 
 We have acted as special counsel to Otter Tail Corporation, a Minnesota corporation (the “Company”), in
connection with that certain Amendment No. 5 dated as of December 12, 2011, to the Note Purchase Agreement dated as of February 23, 2007 (the “Amendment”), between the Company and Cascade Investment, L.L.C.
(“Cascade”), which amends that certain Note Purchase Agreement, dated as of February 23, 2007 (the “Original Note Purchase Agreement”), as amended by a letter agreement dated December 14, 2007 (the “Letter
Agreement”), Amendment No. 2 dated as of June 30, 2009 (“Amendment No. 2”), Amendment No. 3 dated as of June 23, 2010 (“Amendment No. 3”) and Amendment No. 4 dated as of July 29, 2010
(“Amendment No. 4”) (the Original Note Purchase Agreement, as amended by the Letter Agreement, Amendment No. 2, Amendment No. 3 and Amendment No. 4, being referred to herein as the “Note Purchase Agreement”),
between the Company and Cascade relating to the issuance and sale by the Company of its 8.89% Senior Note due November 30, 2017 in the aggregate principal amount of $50,000,000 (the “Note”). The Amendment, the Note Purchase Agreement
and the Note are referred to herein as the “Transaction Documents.” This opinion is being delivered to you pursuant to Section 3.1(d) of the Amendment. Capitalized terms used herein, except as otherwise specifically defined herein,
are used with the same meaning as defined in the Note Purchase Agreement, as amended by the Amendment. 
 In connection with
this opinion, we have examined such documents and reviewed such questions of law as we have considered necessary and appropriate for the purposes of this opinion. As to questions of fact material to the opinions hereinafter expressed, we have, when
relevant facts were not independently established by us, relied upon certificates and opinions of the Company and its officers, other independent third-party sources and of public officials, and we have assumed that all such facts are true and
correct as of the date of this opinion. We have not independently examined the records of any court or public office in any jurisdiction, and our opinion is subject to matters which examination of such records would reveal. 

In rendering the opinions expressed below, we have assumed, with Cascade’s permission and without verification: 

 

	 	(a)	the authenticity of all documents submitted to us as originals, 

  

	 	(b)	the genuineness of all signatures, 

  

	 	(c)	the legal capacity of natural persons, 

  

	 	(d)	the conformity to originals of all documents submitted to us as copies and the authenticity of the originals of such copies, 








 December 12, 2011 
 Page 2 
  

	 	(e)	the accuracy as to factual matters of the representations and warranties of the Company and Cascade contained in the Transaction Documents, 


 

	 	(f)	that all conditions precedent to the effectiveness of the Amendment have been satisfied or waived, 


 

	 	(g)	that each party to the Transaction Documents is validly existing and in good standing under the laws of its jurisdiction of organization and has the requisite power and
authority to execute, deliver and perform its obligations under each of the Transaction Documents to which it is a party, 

  

	 	(h)	that the execution and delivery of the Transaction Documents has been duly authorized by all necessary corporate action and proceedings on the part of each party to the
Transaction Documents, and the Transaction Documents have been duly executed and delivered by each party to the Transaction Documents, 

  

	 	(i)	that execution, delivery and performance of the Transaction Documents does not violate any provision of the articles or certificate of incorporation, by-laws or other
organizational documents of any party to the Transaction Documents or require the approval of such party’s shareholders, except any approval which has been obtained and remains in effect, 


 

	 	(j)	that each of the Transaction Documents constitutes the valid and binding obligation of each of the parties thereto other than the Company, enforceable against such
parties in accordance with their respective terms, 

  

	 	(k)	that the execution and delivery by the Company of, and performance of its respective obligations under, each Transaction Document to which the Company is a party will
not violate any order of any governmental authority to which the Company is subject or (except as provided in paragraphs 3 and 4, below) the laws under which the Company is organized, and 


 

	 	(l)	that the execution and delivery by the Company of, and performance of its respective obligations under, each Transaction Document to which the Company is a party will
not constitute or result in a breach or modification of, conflict with, constitute a default or result in an acceleration of any obligation under, result in any encumbrance pursuant to, or affect the validity or effectiveness of any contract,
permit, order or (except as provided in paragraphs 3 and 4, below) other law applicable to the Company. 

 Our
opinions expressed below as to certain factual matters are qualified as being limited “to our knowledge” or by other words to the same or similar effect. Such words, as used herein, mean that prior to or during the course of this
firm’s representation of the Company in connection with the specific transactions contemplated by the Note Purchase Agreement, as amended by the Amendment, no contrary information came to the attention (but not including any constructive or
imputed notice) of the attorneys currently with our firm who have given substantive attention to such matters on behalf of the Company. In rendering such opinions, we have not conducted any independent investigation of the Company or any of its
Subsidiaries, consulted with other attorneys in our firm with respect to the matters covered thereby, or reviewed any of our prior files involving the Company or any of its Subsidiaries. Finally, no inference as to our knowledge with respect to the
factual matters upon which we have so qualified our opinions should be drawn from the fact of our representation of the Company. 







 December 12, 2011 
 Page 3 
 Based on the foregoing, we are of the opinion that: 

1. The Amendment constitutes the legal, valid and binding agreement of the Company enforceable against the Company in accordance with its
terms. 
 2. Each of the Note Purchase Agreement, as amended by the Amendment, and the Note constitutes the legal, valid and
binding agreement of the Company enforceable against the Company in accordance with its terms. 
 3. No approval or consent of,
filing with, notification to, or waiver or exemption from, any Minnesota, New York or federal governmental authority (other than any Minnesota, New York or federal governmental authority regulating public utilities or public utility holding
companies, as to which we express no opinion) is required to be obtained or made by the Company in connection with its execution and delivery of the Amendment or the performance by the Company of its obligations pursuant to the Note Purchase
Agreement, as amended by the Amendment, except for such approvals, consents, filings, notifications, waivers or exemptions as have been obtained or made and except that we express no opinion regarding any federal securities laws (other than as
provided in our opinion in paragraph 4, below), or the securities or “Blue Sky” laws of any state. 
 4. The Company is
not an “investment company” as such term is defined in the Investment Company Act of 1940, as amended, and to our knowledge, based solely on our review of the statements of beneficial ownership of the Company’s stock filed as of the
date hereof with the SEC, and in reliance upon certificates of officers of the Company, the Company is not “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended. 

The opinions set forth above are subject to the following qualifications and exceptions: 

(a) Our opinions above in paragraphs 1 and 2, above, are subject to the effect of any applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent transfer, statutes of limitation or other similar laws and judicial decisions affecting or relating to the rights of creditors generally. 
 (b) Our opinions above in paragraphs 1 and 2, above, are subject to the effect of general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, estoppel, election of remedies and other similar doctrines affecting the enforceability of agreements generally (regardless of whether considered in a proceeding in equity or at law). In addition, the availability of specific performance,
injunctive relief, the appointment of a receiver, marshalling of assets, stay or other equitable remedies is subject to the discretion of the tribunal before which any proceeding therefor may be brought. 







 December 12, 2011 
 Page 4 
 (c) We express no opinion as to the enforceability of provisions in the
Transaction Documents to the extent they contain obligations of the Company to pay any early termination fee, prepayment premium, default interest rate or other form of liquidated damages if the payment of such fee, premium, interest rate or damages
may be construed as unreasonable in relation to the actual damages or disproportionate to actual damages suffered by the Purchaser as a result of such termination, prepayment or default. 

(d) We express no opinion as to the enforceability of the 2001 Note Purchase Agreement and any Credit Agreement which may be deemed to be
incorporated by reference into the Note Purchase Agreement pursuant to Section 10.7 of the Note Purchase Agreement or as to the effect such incorporation may have on the enforceability of the Note Purchase Agreement or the Note. 

(e) We express no opinion as to the validity, binding effect or enforceability of (i) any provision of the Transaction Documents
related to choice of law, forum selection or submission to jurisdiction (including, without limitation, any express or implied waiver of any objection to venue in any court or of any objection that a court is an inconvenient forum), or any provision
which purports to confer jurisdiction upon any court or other tribunal, to the extent that the validity, binding effect or enforceability of any such provision is to be determined by any court other than a court of the State of New York,
(ii) waivers by the Company of any statutory or constitutional rights, procedural rights, defenses or remedies, including without limitation any waiver by the Company of the right to trial by jury, or the right to recover certain types of
damages, or the right to impose counterclaims, or of statutes of limitation or the tolling thereof, (iii) provisions which excuse any person or entity from liability for, or require any person or entity to indemnify any person or entity
against, the indemnified person’s or entity’s gross negligence or willful misconduct, or any other indemnification agreement which may be contrary to public policy, (iv) cumulative remedies to the extent such cumulative remedies
purport to compensate, or would have the effect of compensating, the party entitled to the benefits thereof in an amount in excess of the actual loss suffered by such party, (v) provisions in the Transaction Documents to the effect that terms
thereof may not be waived or modified orally or by course of conduct or that one or more waivers may not under certain circumstances constitute a wavier of other matters of the same kind, or (vi) terms purporting to establish evidentiary
standards. 
 (f) We express no opinion as to compliance or the effect of noncompliance by Cascade with any state or federal laws
or regulations applicable to Cascade in connection with the transactions described in the Transaction Documents. 
 (g) In
rendering our opinions in paragraph 3, above, we are only opining as to consents, approvals, authorizations, registrations and filings necessary for Company to execute, deliver and perform its obligations under the Transaction Documents, and we
express no opinion with respect to any consent, approval, authorization from, or any registration, declaration or filing with, any governmental authority or agency required generally in connection with the day-to-day business or operations of the
Company. 







 December 12, 2011 
 Page 5 
 (h) Without limiting clause (g), above, we express no opinion herein with
respect to the effect of any land use, safety, hazardous material, environmental or similar law, or any local or regional law. 

Except as set forth in paragraph 3, above, we express no opinion as to compliance or the effect of noncompliance by the Company with any
laws or regulations applicable to the Company in connection with the transactions described in the Transaction Documents. 
 The
opinions expressed above are limited to the laws of the States of Minnesota and New York and the federal laws of the United States and we express no opinion as to the laws of any other jurisdiction. 

The opinions expressed herein are based on an analysis of existing laws and court decisions and cover certain matters not directly
addressed by such authorities. This opinion is solely for the benefit of the addressee hereof in connection with the transaction described in the first paragraph of this letter, may not be relied upon by the addressee hereof for any other purpose,
and may not be relied upon or used by, circulated, quoted, or referred to, nor may copies hereof be delivered to, another person for any purpose without our prior written approval, provided, however, that such permitted reliance shall not imply or
establish an attorney-client relationship between such relying party and this firm with respect to the Transaction Documents or the transactions contemplated thereby, and such relying party by relying on our opinion disclaims any such
attorney-client relationship with respect to the Transaction Documents or the transactions contemplated thereby. We disclaim any obligation to update this opinion letter for events occurring or coming to our attention, or any changes in the law
taking effect, after the date hereof. 
 Very truly yours, 







 EXHIBIT B 
 (to Amendment No. 5 to Note Purchase Agreement) 
 SUBSIDIARIES OF THE
COMPANY AND OWNERSHIP OF SUBSIDIARY STOCK 
 The following sets forth a list of the Company’s Subsidiaries as of December 12, 2011
showing, in each case, as to each Subsidiary, the correct name thereof, the jurisdiction of its organization, and the percentage of shares of each class of its capital stock or similar equity interests outstanding owned by the Company and each other
Subsidiary. 
  

							
	 Company
	  	 State of

Organization
	  	 Number and Class of Shares Issued
and Owned by Otter
Tail
Corporation or its Subsidiaries
	  	 Footnote

Ref.

	Aevenia, Inc.	  	Minnesota	  	100 Shares Common	  	(1)
	Aviva Sports, Inc.	  	Minnesota	  	100 Shares Common	  	(6)
	BTD Manufacturing, Inc.	  	Minnesota	  	200 Shares Common	  	(1)
	DMI Industries, Inc.	  	North Dakota	  	980 Shares Common	  	(1)
	DMI Canada, Inc.	  	Canada	  	1 Share Common	  	(4)
	DMI Equipment, LLC*	  	Delaware	  	100 Membership Units	  	(4)
	DMS Health Technologies, Inc.	  	North Dakota	  	 8,500 Shares Class A
 5,100
Shares Class B
	  	(1)
	DMS Health Technologies –    Canada, Inc.	  	North Dakota	  	1,000 Shares Common	  	(8)
	DMS Imaging, Inc.	  	North Dakota	  	1,606 Shares Common Voting	  	(2)
	DMS Topline Medical, Inc.	  	North Dakota	  	2,500 Shares Common	  	(2)
	E. W. Wylie Corporation	  	North Dakota	  	100 Shares Common	  	(1)
	Foley Company	  	Missouri	  	50,000 Shares Common	  	(1)
	Galva Foam Marine Industries,     Inc.	  	Missouri	  	100,000 Shares Common	  	(6)
	Green Hills Energy, LLC	  	Minnesota	  	1,000 Membership Units	  	(5)
	Miller Welding & Iron Works,     Inc.	  	Minnesota	  	1,000 Shares Common	  	(9)
	Moorhead Electric, Inc.	  	Minnesota	  	80 Shares Common	  	(3)
	Northern Pipe Products, Inc.	  	North Dakota	  	10,000 Shares Common	  	(1)
	Otter Tail Assurance Limited	  	Cayman Islands	  	50,000 Shares Common	  	(7)
	Otter Tail Energy Services Company, Inc.	  	Minnesota	  	1,000 Shares Common	  	(7)
	Otter Tail Power Company	  	Minnesota	  	100 Shares Common	  	(7)
	Sheridan Ridge I, LLC	  	Minnesota	  	1,000 Membership Units	  	(5)
	Sheridan Ridge II, LLC	  	Minnesota	  	1,000 Membership Units	  	(5)
	Shoreline Industries, Inc.	  	Minnesota	  	1,000 Shares Common	  	(6)
	ShoreMaster, Inc.	  	Minnesota	  	100 Shares Common	  	(1)
	ShoreMaster Costa Rica SRL	  	Costa Rica	  	50 quotas	  	(6)
	T.O. Plastics, Inc.	  	Minnesota	  	100 Shares Common	  	(1)
	Varistar Corporation	  	Minnesota	  	100 Shares Common	  	(7)
	Vinyltech Corporation	  	Arizona	  	100 Shares Common	  	(1)

  

	(1)	Subsidiary of Varistar Corporation 


	(2)	Subsidiary of DMS Health Technologies, Inc. 


	(3)	Subsidiary of Aevenia, Inc. 


	(4)	Subsidiary of DMI Industries, Inc. 


	(5)	Subsidiary of Otter Tail Energy Services Company, Inc. 


	(6)	Subsidiary of ShoreMaster, Inc. 


	(7)	Subsidiary of Otter Tail Corporation 


	(8)	Subsidiary of DMS Imaging, Inc. 


	(9)	Subsidiary of BTD Manufacturing, Inc. 


	*	Inactive 








 Subsidiary Guarantors include: 
 BTD Manufacturing, Inc. 
 DMI Industries, Inc. 

DMS Health Technologies, Inc. 
 DMS Imaging, Inc. 
 Foley Company 

Aevenia, Inc. (formerly known as Midwest Construction Services, Inc.) 

Northern Pipe Products, Inc. 
 ShoreMaster, Inc. 
 Vinyltech Corporation 

Varistar Corporation 
 E.W. Wylie Corporation 
 T.O. Plastics, Inc. 

Miller Welding & Iron Works, Inc. 

  
 2 








 EXHIBIT C 
 (to Amendment No. 5 to Note Purchase Agreement) 
 The following tables provide a
breakdown of the assignment of the Company’s consolidated short-term and long-term debt outstanding as of December 2, 2011 and December 31, 2010: 
  

																	
	 December 2, 2011 (in thousands)
	  	Otter Tail
Power
Company	 	  	Varistar
Corporation1	 	  	Otter Tail
Corporation	 	  	Otter Tail
Corporation
Consolidated	 
	 Short-Term Debt
	  	$	10,000	 	  	$	—  	  	  	$	—  	  	  	$	10,000	 
		  	  
	  
	 	  	  
	  
	 	  	  
	  
	 	  	  
	  
	 
	 Long-Term Debt:
	  				  				  				  			
	 9.000% Notes, due December 15, 2016
	  				  				  	$	100,000	 	  	$	100,000	 
	 Senior Unsecured Notes 5.95%, Series A, due August 20, 2017
	  	$	33,000	 	  				  				  	 	33,000	 
	 Grant County, South Dakota Pollution Control Refunding Revenue Bonds 4.65%, due September 1, 2017
	  	 	5,090	 	  				  				  	 	5,090	 
	 Senior Unsecured Note 8.89%, due November 30, 2017
	  				  				  	 	50,000	 	  	 	50,000	 
	 Senior Unsecured Notes 4.63%, due December 1, 2021
	  	 	140,000	 	  				  				  	 	140,000	 
	 Senior Unsecured Notes 6.15%, Series B, due August 20, 2022
	  	 	30,000	 	  				  				  	 	30,000	 
	 Mercer County, North Dakota Pollution Control Refunding Revenue Bonds 4.85%, due September 1, 2022
	  	 	20,105	 	  				  				  	 	20,105	 
	 Senior Unsecured Notes 6.37%, Series C, due August 20, 2027
	  	 	42,000	 	  				  				  	 	42,000	 
	 Senior Unsecured Notes 6.47%, Series D, due August 20, 2037
	  	 	50,000	 	  				  				  	 	50,000	 
	 Other Obligations—Various up to 13.31% at December 2, 2011
	  				  	$	4,114	 	  	 	1,897	 	  	 	6,011	 
		  	  
	  
	 	  	  
	  
	 	  	  
	  
	 	  	  
	  
	 
	 Total
	  	$	320,195	 	  	$	4,114	 	  	$	151,897	 	  	$	476,206	 
	 Less: Current Maturities
	  	 	—  	  	  	 	3,316	 	  	 	164	 	  	 	3,480	 
	 Unamortized Debt Discount
	  	 	—  	  	  	 	—  	  	  	 	4	 	  	 	4	 
		  	  
	  
	 	  	  
	  
	 	  	  
	  
	 	  	  
	  
	 
	 Total Long-Term Debt
	  	$	320,195	 	  	$	798	 	  	$	151,729	 	  	$	472,722	 
		  	  
	  
	 	  	  
	  
	 	  	  
	  
	 	  	  
	  
	 
	 Total Short-Term and Long-Term Debt (with current maturities)
	  	$	330,195	 	  	$	4,114	 	  	$	151,893	 	  	$	486,202	 
		  	  
	  
	 	  	  
	  
	 	  	  
	  
	 	  	  
	  
	 

  

	1 	 Amounts shown for Varistar are updated through October 31, 2011, with two exceptions:
(1) ShoreMaster’s building lease debt is classified as 100% current, and (2) the short-term debt of Varistar’s subsidiary companies has been updated through December 2, 2011. 



 

																	
	 December 31, 2010 (in thousands)
	  	Otter Tail
Power
Company	 	  	Varistar
Corporation	 	  	Otter Tail
Corporation	 	  	Otter Tail
Corporation
Consolidated	 
	 Short-Term Debt
	  	$	25,314	 	  	$	—  	  	  	$	54,176	 	  	$	79,490	 
		  	  
	  
	 	  	  
	  
	 	  	  
	  
	 	  	  
	  
	 
	 Long-Term Debt:
	  				  				  				  			
	 Senior Unsecured Notes 6.63%, due December 1, 2011
	  	$	90,000	 	  				  				  	$	90,000	 
	 Pollution Control Refunding Revenue Bonds, Variable, 2.50% at December 31, 2010, due December 1, 2012
	  	 	10,400	 	  				  				  	 	10,400	 
	 9.000% Notes, due December 15, 2016
	  				  				  	$	100,000	 	  	 	100,000	 
	 Senior Unsecured Notes 5.95%, Series A, due August 20, 2017
	  	 	33,000	 	  				  				  	 	33,000	 
	 Grant County, South Dakota Pollution Control Refunding Revenue Bonds 4.65%, due September 1, 2017
	  	 	5,100	 	  				  				  	 	5,100	 
	 Senior Unsecured Note 8.89%, due November 30, 2017
	  				  				  	 	50,000	 	  	 	50,000	 
	 Senior Unsecured Notes 6.15%, Series B, due August 20, 2022
	  	 	30,000	 	  				  				  	 	30,000	 
	 Mercer County, North Dakota Pollution Control Refunding Revenue Bonds 4.85%, due September 1, 2022
	  	 	20,215	 	  				  				  	 	20,215	 









																	
	 Senior Unsecured Notes 6.37%, Series C, due August 20, 2027
	  	 	42,000	 	  				  				  	 	42,000	 
	 Senior Unsecured Notes 6.47%, Series D, due August 20, 2037
	  	 	50,000	 	  				  				  	 	50,000	 
	 Other Obligations—Various up to 13.31% at December 31, 2010
	  				  	$	4,706	 	  				  	 	4,706	 
		  	  
	  
	 	  	  
	  
	 	  	  
	  
	 	  	  
	  
	 
	 Total
	  	$	280,715	 	  	$	4,706	 	  	$	150,000	 	  	$	435,421	 
	 Less: Current Maturities
	  	 	—  	  	  	 	604	 	  	 	—  	  	  	 	604	 
	 Unamortized Debt Discount
	  	 	—  	  	  	 	—  	  	  	 	5	 	  	 	5	 
		  	  
	  
	 	  	  
	  
	 	  	  
	  
	 	  	  
	  
	 
	 Total Long-Term Debt
	  	$	280,715	 	  	$	4,102	 	  	$	149,995	 	  	$	434,812	 
		  	  
	  
	 	  	  
	  
	 	  	  
	  
	 	  	  
	  
	 
	 Total Short-Term and Long-Term Debt (with current maturities)
	  	$	306,029	 	  	$	4,706	 	  	$	204,171	 	  	$	514,906	 
		  	  
	  
	 	  	  
	  
	 	  	  
	  
	 	  	  
	  
	 

 The obligations of the Company under the Agreement are guaranteed by the Subsidiary Guarantors (as defined therein), and
the obligations of the Company under the Credit Agreement (as defined in the Agreement) are guaranteed by Varistar Corporation and certain of its Subsidiaries.