UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): October 29, 2013
OTTER TAIL CORPORATION
(Exact name of registrant as specified in its charter)
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Minnesota
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0-53713
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27-0383995
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(State or other jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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215 South Cascade Street, P.O. Box 496, Fergus Falls, MN
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56538-0496
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code:
(866) 410-8780
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
Amendment of Otter Tail Corporation Credit Agreement
On
October 29, 2013, Otter Tail Corporation (the “Company”) entered into an amendment dated as of October 29, 2013
(the “First Amendment to OTC Credit Agreement”) to the Third Amended and Restated Credit Agreement dated as of
October 29, 2012 (the “OTC Credit Agreement”) among the Company, U.S. Bank National Association, as
Administrative Agent (the “OTC Agent”) and the banks party thereto from time to time (the “OTC
Banks”). The OTC Credit Agreement provides for an unsecured revolving credit facility with a $150 million
line of credit that the Company can draw on to refinance certain indebtedness and support the operations of the Company and
its subsidiaries, and is described in and filed as Exhibit 4.1 to the Company’s Form 8-K filed with the Securities and
Exchange Commission (the “SEC”) on November 2, 2012.
The First Amendment to OTC Credit Agreement was entered into among the Company, the OTC Agent and the OTC Banks to (i) extend the termination date of the facility from October 29, 2017 to October 29, 2018, and (ii) delete from the definition of “Interest Period” the Company’s option to select a nine-month Interest Period for any LIBOR Advance (as defined in the OTC Credit Agreement), so that any “Interest Period” will end one, two, three or six months, or, if available to all the OTC Banks, twelve (but not nine) months thereafter, as selected by the Company.
The summary in this Item 1.01 of the material terms of the First Amendment to OTC Credit Agreement is qualified in its entirety by reference to the full text of the First Amendment to OTC Credit Agreement, a copy of which is filed as Exhibit 4.1 hereto and incorporated herein by reference.
Amendment of Otter Tail Power Company Credit Agreement
On October 29, 2013, Otter Tail Power Company (“OTP”), a wholly owned subsidiary of the Company, entered into an amendment dated as of October 29, 2013 (the “First Amendment to OTP Credit Agreement”) to the Second Amended and Restated Credit Agreement dated as of October 29, 2012 (the “OTP Credit Agreement”) among OTP, U.S. Bank National Association, as Administrative Agent (the “OTP Agent”), and the Banks party thereto from time to time (the “OTP Banks”). The OTP Credit Agreement provides for an unsecured revolving credit facility with a $170 million line of credit that OTP can draw on to support the working capital needs and other capital requirements of its operations, and is described in and filed as Exhibit 4.2 to the Company’s Form 8-K filed with the SEC on November 2, 2012.
The First Amendment to OTP Credit Agreement was entered into among OTP, the OTP Agent and the OTP Banks to (i) extend the termination date of the facility from October 29, 2017 to October 29, 2018, and (ii) delete from the definition of “Interest Period” OTP’s option to select a nine-month Interest Period for any LIBOR Advance (as defined in the OTP Credit Agreement), so that any “Interest Period” will end one, two, three or six months, or, if available to all the OTP Banks, twelve (but not nine) months thereafter, as selected by OTP.
The summary in this Item 1.01 of the material terms of the First Amendment to OTP Credit Agreement is qualified in its entirety by reference to the full text of the First Amendment to OTP Credit Agreement, a copy of which is filed as Exhibit 4.2 hereto and incorporated herein by reference.
Amendment of OTP Term Loan Agreement
On October 29, 2013, OTP and JPMorgan Chase Bank, N.A. (“JPMorgan”) entered into an amendment dated as of October 29, 2013 (the “First Amendment to OTP Term Loan Agreement”) to the Credit Agreement dated as of March 1, 2013 (the “OTP Term Loan Agreement”) between OTP and JPMorgan. The OTP Term Loan Agreement provides for a $40.9 million unsecured term loan (the “Term Loan”) to OTP due June 1, 2014, and is described in and filed as Exhibit 4.1 to the Company’s Form 8-K filed with the SEC on March 7, 2013.
The First Amendment to OTP Term Loan Agreement was entered into to extend the termination date of the OTP Term Loan from June 1, 2014 to January 15, 2015.
The summary in this Item 1.01 of the material terms of the First Amendment to OTP Term Loan Agreement is qualified in its entirety by reference to the full text of the First Amendment to OTP Term Loan Agreement, a copy of which is filed as Exhibit 4.3 hereto and incorporated herein by reference.
Certain Relationships
Certain
of the banks party to one or both of the OTC Credit Agreement and the OTP Credit Agreement and/or their respective
affiliates have had, and may in the future have, investment banking and other commercial dealings with the Company, OTP and
their other affiliates, for which such banks or their respective affiliates have received and may in the future receive
customary compensation. Such dealings have included the following: (i) U.S. Bank, JPMorgan, Bank of America, N.A.
(“Bank of America”), KeyBank National Association (“KeyBank”) and Union Bank, N.A. (“Union
Bank”) are parties to both credit agreements; (ii) J.P. Morgan Securities LLC (“JPMS”), an affiliate of
JPMorgan, entered into a Distribution Agreement with the Company on May 14, 2012, pursuant to which the Company may offer and
sell its common shares, par value $5.00 per share, from time to time through JPMS, as the Company’s distribution agent
for the offer and sale of the shares, up to an aggregate sales price of $75,000,000; (iii) in connection with the offering
and sale by the Company of $100,000,000 aggregate principal amount of its 9.000% Notes due 2016 in 2009, JPMS and an
affiliate of Bank of America acted as joint book-running managers, an affiliate of U.S. Bank acted as lead manager, and
affiliates of Bank of the West (a party to the Otter Tail Credit Agreement), KeyBank and Wells Fargo Bank, National
Association (a party to the OTP Credit Agreement) acted as co-managers; (iv) Merrill Lynch, Pierce, Fenner and Smith
Incorporated (an affiliate of Bank of America) acted as placement agent in connection with the 2011 issuance by OTP of its
4.63% Senior Unsecured Notes due December 1, 2021; and (v) JPMS acted as sole placement agent in connection with a
note purchase agreement entered into on August 14, 2013 for the private placement of $60 million aggregate principal amount
of OTP’s 4.68% Series A Senior Unsecured Notes due February 27, 2029 and $90 million aggregate principal amount of
OTP’s 5.47% Series B Senior Unsecured Notes due February 27, 2044, both expected to be issued on February 27, 2014,
subject to the satisfaction of certain customary conditions to closing.
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Item 9.01
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Financial Statements and Exhibits
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(d) Exhibits
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4.1
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First Amendment to Third Amended and Restated Credit Agreement, dated as of October 29, 2013, among Otter Tail Corporation, U.S. Bank National Association, as Administrative Agent and as a Bank, Bank of America, N.A. and JPMorgan Chase Bank, N.A., each as a Co-Syndication Agent and as a Bank, KeyBank National Association, as Documentation Agent and as a Bank, and Bank of the West and Union Bank, N.A., as Banks.
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4.2
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First Amendment to Second Amended and Restated Credit Agreement, dated as of October 29, 2013, among Otter Tail Power Company, U.S. Bank National Association, as Administrative Agent and as a Bank, Bank of America, N.A. and JPMorgan Chase Bank, N.A., each as a Co-Syndication Agent and as a Bank, KeyBank National Association, as Documentation Agent and as a Bank, CoBank, ACB, as a Co-Documentation Agent and as a Bank, and Wells Fargo Bank, National Association and Union Bank, N.A., as Banks.
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4.3
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First Amendment to Credit Agreement, dated as of October 29, 2013, between Otter Tail Power Company and JPMorgan Chase Bank, N.A.
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Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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OTTER TAIL CORPORATION
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Date: November 1, 2013
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By
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/s/ Kevin G. Moug
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Kevin G. Moug
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Chief Financial Officer
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EXHIBIT INDEX
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Exhibit
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Description of Exhibit
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4.1
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First Amendment to Third Amended and Restated Credit Agreement, dated as of October 29, 2013, among Otter Tail Corporation, U.S. Bank National Association, as Administrative Agent and as a Bank, Bank of America, N.A. and JPMorgan Chase Bank, N.A., each as a Co-Syndication Agent and as a Bank, KeyBank National Association, as Documentation Agent and as a Bank, and Bank of the West and Union Bank, N.A., as Banks.
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4.2
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First Amendment to Second Amended and Restated Credit Agreement, dated as of October 29, 2013, among Otter Tail Power Company, U.S. Bank National Association, as Administrative Agent and as a Bank, Bank of America, N.A. and JPMorgan Chase Bank, N.A., each as a Co-Syndication Agent and as a Bank, KeyBank National Association, as Documentation Agent and as a Bank, CoBank, ACB, as a Co-Documentation Agent and as a Bank, and Wells Fargo Bank, National Association and Union Bank, N.A., as Banks.
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4.3
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First Amendment to Credit Agreement, dated as of October 29, 2013, between Otter Tail Power Company and JPMorgan Chase Bank, N.A.
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Exhibit 4.1
EXECUTION VERSION
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT (this “Amendment”), dated as of October 29, 2013, amends and modifies that certain Third Amended and Restated Credit Agreement, dated as of October 29, 2012 (the “Credit Agreement”), among OTTER TAIL CORPORATION (the “Borrower”), U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent (in such capacity, the “Agent”), and the Lenders, as defined therein. Terms not otherwise expressly defined herein shall have the meanings set forth in the Credit Agreement.
FOR VALUE RECEIVED, the Borrower, the Lenders and the Agent agree that the Credit Agreement is amended as follows.
ARTICLE I - AMENDMENT
1.1 The definition of “Interest Period” appearing in Section 1.1 of the Credit Agreement is hereby amended to delete the phrase “nine or” appearing therein.
1.2 The definition of “Termination Date” appearing in Section 1.1 of the Credit Agreement is hereby amended to replace the date “October 29, 2017” with the date “October 29, 2018”.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Amendment and to make and maintain the Loans under the Credit Agreement as amended hereby, the Borrower hereby warrants and represents to the Agent and the Lenders that it is duly authorized to execute and deliver this Amendment, and to perform its obligations under the Credit Agreement as amended hereby, and that this Amendment constitutes the legal, valid and binding agreement of the Borrower, enforceable in accordance with its terms.
ARTICLE III - CONDITIONS PRECEDENT
This Amendment shall become effective on the date first set forth above, provided, however, that the effectiveness of this Amendment is subject to the satisfaction of each of the following conditions precedent:
3.1
Warranties
. Before and after giving effect to this Amendment, the representations and warranties in the Credit Agreement shall be true and correct as though made on the date hereof with respect to representations and warranties containing qualifications as to materiality, and true and correct as though made on the date hereof in all material respects with respect to representations and warranties without qualifications as to materiality, except for changes that are permitted by the terms of the Credit Agreement. The execution by the Borrower of this Amendment shall be deemed a representation that the Borrower has complied with the foregoing condition.
3.2
Defaults
. Before and after giving effect to this Amendment, no Default and no Event of Default shall have occurred and be continuing under the Credit Agreement. The execution by the Borrower of this Amendment shall be deemed a representation that the Borrower has complied with the foregoing condition.
3.3
Documents
. The Borrower, the Agent and the Lenders shall have executed and delivered this Amendment.
3.4
Fees
. The Agent shall have received all fees and other amounts due and payable on or prior to the date hereof, including, without limitation, (i) all fees set forth in that certain Fee Letter by and between the Borrower and the Agent dated as of September 20, 2013 and (ii) to the extent invoiced reasonably in advance, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement.
ARTICLE IV - GENERAL
4.1
Expenses
. The Borrower agrees to reimburse the Agent upon demand for all reasonable expenses (including reasonable attorneys’ fees and legal expenses) incurred by the Agent in the preparation, negotiation and execution of this Amendment and any other document required to be furnished herewith.
4.2
Counterparts
. This Amendment may be executed in as many counterparts as may be deemed necessary or convenient, and by the different parties hereto on separate counterparts, each of which, when so executed, shall be deemed an original but all such counterparts shall constitute but one and the same instrument.
4.3
Severability
. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
4.4
Governing Law
. This Amendment shall be a contract made under the laws of the State of Minnesota, which laws shall govern all the rights and duties hereunder.
4.5
Successors; Enforceability
. This Amendment shall be binding upon the Borrower, the Agent and the Lenders and their respective successors and assigns, and shall inure to the benefit of the Borrower, the Agent and the Lenders and the successors and assigns of the Agent and the Lenders. Except as hereby amended, the Credit Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first written above.
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OTTER TAIL CORPORATION
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By:
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/s/ Kevin G. Moug
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Title:
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Chief Financial Officer
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4334 18
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Avenue South
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Suite 200
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Fargo, North Dakota 58103
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Attention:
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Mr. Kevin G. Moug,
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Chief Financial Officer
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Telephone: (701) 451-3562
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Fax: (701) 232-4108
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(Signature Page to First Amendment to Otter Tail Corporation Credit Agreement)
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U.S. BANK NATIONAL ASSOCIATION,
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as Agent and a Bank
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By:
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/s/ Jacquelyn Ness
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Title:
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Vice President
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505 Second Avenue North
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Mail Code EP-ND-0630
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Fargo, ND 58102
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Attention: Jacquelyn Ness, Vice President
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Telephone: (701) 280-3655
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Fax: (701) 280-3580
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(Signature Page to First Amendment to Otter Tail Corporation Credit Agreement)
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BANK OF AMERICA, N.A., as Co-Syndication
Agent and as a Bank
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By:
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/s/ A. Quinn Richardson
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Title:
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Senior Vice President
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IL-4135-07-65
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135 S. LaSalle Street
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Chicago, IL 60603
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Attention:
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A. Quinn Richardson
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Senior Vice President
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Telephone: (312) 992-2160
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Fax: (312) 904-6546
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(Signature Page to First Amendment to Otter Tail Corporation Credit Agreement)
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JPMORGAN CHASE BANK, N.A., as Co-
Syndication Agent and as a Bank
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By:
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/s/ Justin Martin
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Title:
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Authorized Officer
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10 South Dearborn, 9
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Floor, IL1-0090
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Chicago, IL 60603
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Attention: Justin Martin
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Telephone: (312) 732-4441
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Fax: (312) 732-1762
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(Signature Page to First Amendment to Otter Tail Corporation Credit Agreement)
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KEYBANK NATIONAL ASSOCIATION, as
Documentation Agent and as a Bank
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By:
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/s/ Keven D. Smith
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Title:
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Senior Vice Presiden
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601 108
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Avenue N.E.
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Mail Code: WA-31-18-0314
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Bellevue, WA 98004
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Attention:
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Keven D. Smith
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Telephone:
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(425) 709-4579
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Fax: (425) 709-4348
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(Signature Page to First Amendment to Otter Tail Corporation Credit Agreement)
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BANK OF THE WEST, a California Banking
Corporation, as a Bank
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By:
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/s/ David Wang
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Title:
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Vice Presiden
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250 Marquette Ave., Suite 575
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Minneapolis, MN 55401
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Attention: David Wang
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Telephone: (612) 339-1403
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Fax: (612) 339-6362
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(Signature Page to First Amendment to Otter Tail Corporation Credit Agreement)
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UNION BANK, N.A., as a Bank
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By:
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/s/ Harvey Horowit
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Title:
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VP
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Energy Capital Services
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445 South Figueroa Street, 15
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Floor
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Los Angeles, CA 90071
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Attention: Harvey Horowitz
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Telephone: 212-236-6585
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Fax: 213-236-4096
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(Signature Page to First Amendment to Otter Tail Corporation Credit Agreement)
Exhibit 4.2
EXECUTION VERSION
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT (this "Amendment"), dated as of October 29, 2013, amends and modifies that certain Second Amended and Restated Credit Agreement, dated as of October 29, 2012 (the "Credit Agreement"), among OTTER TAIL POWER COMPANY (the "Borrower"), U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent (in such capacity, the "Agent"), and the Lenders, as defined therein. Terms not otherwise expressly defined herein shall have the meanings set forth in the Credit Agreement.
FOR VALUE RECEIVED, the Borrower, the Lenders and the Agent agree that the Credit Agreement is amended as follows.
ARTICLE I - AMENDMENT
1.1 The definition of “Interest Period” appearing in Section 1.1 of the Credit Agreement is hereby amended to delete the phrase “nine or” appearing therein.
1.2 The definition of “Termination Date” appearing in Section 1.1 of the Credit Agreement is hereby amended to replace the date “October 29, 2017” with the date “October 29, 2018”.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Amendment and to make and maintain the Loans under the Credit Agreement as amended hereby, the Borrower hereby warrants and represents to the Agent and the Lenders that it is duly authorized to execute and deliver this Amendment, and to perform its obligations under the Credit Agreement as amended hereby, and that this Amendment constitutes the legal, valid and binding agreement of the Borrower, enforceable in accordance with its terms.
ARTICLE III - CONDITIONS PRECEDENT
This Amendment shall become effective on the date first set forth above, provided, however, that the effectiveness of this Amendment is subject to the satisfaction of each of the following conditions precedent:
3.1
Warranties
. Before and after giving effect to this Amendment, the representations and warranties in the Credit Agreement shall be true and correct as though made on the date hereof with respect to representations and warranties containing qualifications as to materiality, and true and correct as though made on the date hereof in all material respects with respect to representations and warranties without qualifications as to materiality, except for changes that are permitted by the terms of the Credit Agreement. The execution by the Borrower of this Amendment shall be deemed a representation that the Borrower has complied with the foregoing condition.
3.2
Defaults
. Before and after giving effect to this Amendment, no Default and no Event of Default shall have occurred and be continuing under the Credit Agreement. The execution by the Borrower of this Amendment shall be deemed a representation that the Borrower has complied with the foregoing condition.
3.3
Documents
. The Borrower, the Agent and the Lenders shall have executed and delivered this Amendment.
3.4
Fees
. The Agent shall have received all fees and other amounts due and payable on or prior to the date hereof, including, without limitation, (i) all fees set forth in that certain Fee Letter by and between the Borrower and the Agent dated as of September 20, 2013 and (ii) to the extent invoiced reasonably in advance, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement.
ARTICLE IV - GENERAL
4.1
Expenses
. The Borrower agrees to reimburse the Agent upon demand for all reasonable expenses (including reasonable attorneys' fees and legal expenses) incurred by the Agent in the preparation, negotiation and execution of this Amendment and any other document required to be furnished herewith.
4.2
Counterparts
. This Amendment may be executed in as many counterparts as may be deemed necessary or convenient, and by the different parties hereto on separate counterparts, each of which, when so executed, shall be deemed an original but all such counterparts shall constitute but one and the same instrument.
4.3
Severability
. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
4.4
Governing Law
. This Amendment shall be a contract made under the laws of the State of Minnesota, which laws shall govern all the rights and duties hereunder.
4.5
Successors; Enforceability
. This Amendment shall be binding upon the Borrower, the Agent and the Lenders and their respective successors and assigns, and shall inure to the benefit of the Borrower, the Agent and the Lenders and the successors and assigns of the Agent and the Lenders. Except as hereby amended, the Credit Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first written above.
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OTTER TAIL POWER COMPANY
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By:
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/s/ Kevin G. Moug
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Title:
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Treasurer
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4334 18
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Avenue South
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Suite 200
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Fargo, North Dakota 58103
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Attention:
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Mr. Kevin G. Moug,
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Treasurer
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Telephone: (701) 451-3562
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Fax: (701) 232-4108
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(Signature Page to First Amendment to Otter Tail Power Company Credit Agreement)
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U.S. BANK NATIONAL ASSOCIATION,
as Agent and a Bank
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By:
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/s/ Jacquelyn Ness
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Title:
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Vice President
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505 Second Avenue North
Mail Code EP-ND-0630
Fargo, ND 58102
Attention: Jacquelyn Ness, Vice President
Telephone: (701) 280-3655
Fax: (701) 280-3580
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(Signature Page to First Amendment to Otter Tail Power Company Credit Agreement)
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JPMORGAN CHASE BANK, N.A., as a Co-
Syndication Agent and as a Bank
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By:
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/s/ Justin Martin
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Title:
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Authorized Officer
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10 South Dearborn, 9th Floor, IL1-0090
Chicago, IL 60603
Attention: Justin Martin
Telephone: (312) 732-4441
Fax: (312) 732-1762
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(Signature Page to First Amendment to Otter Tail Power Company Credit Agreement)
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BANK OF AMERICA, N.A., as Co-Syndication
Agent and as a Bank
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By:
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/s/ A. Quinn Richardson
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Title:
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Senior Vice President
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IL-4135-07-65
135 S. LaSalle Street
Chicago, IL 60603
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Attention:
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A. Quinn Richardson
Senior Vice President
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Telephone: (312) 992-2160
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Fax: (312) 904-6546
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(Signature Page to First Amendment to Otter Tail Power Company Credit Agreement)
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KEYBANK NATIONAL ASSOCIATION, as
Documentation Agent and as a Bank
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By:
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/s/ Keven D. Smith
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Title:
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Senior Vice President
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601 108
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Avenue N.E.
Mail Code: WA-31-18-0314
Bellevue, WA 98004
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Attention:
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Keven D. Smith
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Telephone:
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(425) 709-4579
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Fax: (425) 709-4348
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(Signature Page to First Amendment to Otter Tail Power Company Credit Agreement)
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WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Bank
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By:
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/s/ Nick Brokke
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Title:
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Assistant Vice President
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90 S 7
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Street, 7
th
Floor
MAC: N9305-070
Minneapolis, MN 55408
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Attention:
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Nick Brokke
Assistant Vice President
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Tel: 612-667-6637
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Fax: 612-316-0506
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(Signature Page to First Amendment to Otter Tail Power Company Credit Agreement)
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COBANK, ACB, as a Co-Documentation Agent
and as a Bank
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By:
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/s/ John Kemper
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Title:
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Vice President
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5500 South Quebec St.
Greenwood Village, CO 80111
Attention: John Kemper
Telephone: 303-740-6576
Fax: 303-224-2615
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(Signature Page to First Amendment to Otter Tail Power Company Credit Agreement)
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UNION BANK, N.A., as a Bank
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By:
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/s/ Harvey Horowitz
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Title:
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VP
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Energy Capital Services
445 South Figueroa Street, 15
th
Floor
Los Angeles, CA 90071
Attention: Harvey Horowitz
Telephone: 212-236-6585
Fax: 213-236-4096
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(Signature Page to First Amendment to Otter Tail Power Company Credit Agreement)
Exhibit 4.3
Execution Copy
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT (this “Amendment”), dated as of October 29, 2013, amends and modifies that certain Credit Agreement, dated as of March 1, 2013 (the “Credit Agreement”), between OTTER TAIL POWER COMPANY (the “Borrower”), and JPMORGAN CHASE BANK, N.A. (the “Bank”). Terms not otherwise expressly defined herein shall have the meanings set forth in the Credit Agreement.
FOR VALUE RECEIVED, the Borrower and the Bank agree that the Credit Agreement is amended as follows.
ARTICLE I - AMENDMENT
1.1 The definition of “Termination Date” appearing in Section 1.1 of the Credit Agreement is hereby amended to replace the date “June 1, 2014” with the date “January 15, 2015”.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Amendment, the Borrower hereby warrants and represents to the Bank that it is duly authorized to execute and deliver this Amendment, and to perform its obligations under the Credit Agreement as amended hereby, and that this Amendment constitutes the legal, valid and binding agreement of the Borrower, enforceable in accordance with its terms.
ARTICLE III - CONDITIONS PRECEDENT
This Amendment shall become effective on the date first set forth above, provided, however, that the effectiveness of this Amendment is subject to the satisfaction of each of the following conditions precedent:
3.1
Warranties
. Before and after giving effect to this Amendment, the representations and warranties in the Credit Agreement shall be true and correct as though made on the date hereof with respect to representations and warranties containing qualifications as to materiality, and true and correct as though made on the date hereof in all material respects with respect to representations and warranties without qualifications as to materiality, except for changes that are permitted by the terms of the Credit Agreement. The execution by the Borrower of this Amendment shall be deemed a representation that the Borrower has complied with the foregoing condition.
3.2
Defaults
. Before and after giving effect to this Amendment, no Default and no Event of Default shall have occurred and be continuing under the Credit Agreement. The execution by the Borrower of this Amendment shall be deemed a representation that the Borrower has complied with the foregoing condition.
3.3
Documents
. The Borrower and the Bank shall have executed and delivered this Amendment.
ARTICLE IV - GENERAL
4.1
Expenses
. The Borrower agrees to reimburse the Bank upon demand for all reasonable expenses (including reasonable attorneys’ fees and legal expenses) incurred by the Bank in the preparation, negotiation and execution of this Amendment and any other document required to be furnished herewith.
4.2
Counterparts
. This Amendment may be executed in as many counterparts as may be deemed necessary or convenient, and by the different parties hereto on separate counterparts, each of which, when so executed, shall be deemed an original but all such counterparts shall constitute but one and the same instrument.
4.3
Severability
. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
4.4
Governing Law
. This Amendment shall be a contract made under the laws of the State of New York, which laws shall govern all the rights and duties hereunder.
4.5
Successors; Enforceability
. This Amendment shall be binding upon the Borrower and the Bank and their respective successors and assigns, and shall inure to the benefit of the Borrower, the Bank and the successors and assigns of the Bank. Except as hereby amended, the Credit Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first written above.
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OTTER TAIL POWER COMPANY
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By:
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/s/ Kevin G. Moug
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4334 18
th
Avenue South
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Suite 200
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Fargo, North Dakota 58103
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Attention:
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Mr. Kevin G. Moug,
Treasurer
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Telephone:
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(701) 451-3562
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Fax: (701) 232-4108
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(Signature Page to First Amendment to Otter Tail Power Company Credit Agreement)
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JPMORGAN CHASE BANK, N.A., as the Bank
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By:
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/s/ Justin Martin
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Title:
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Authorized Officer
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10 South Dearborn
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Chicago, IL 60603
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Attention:
Justin Martin
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Telephone: (312) 732-
4441
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Fax: (312) 732-
1762
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(Signature Page to First Amendment to Otter Tail Power Company Credit Agreement)