SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 4.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT, dated as of August 31, 2007, amends and modifies a certain Credit
Agreement, dated as of September 1, 2006 as amended by an Amendment dated as of April 13, 2007 (as
so amended, the “Credit Agreement”), between OTTER TAIL CORPORATION, dba OTTER TAIL POWER COMPANY,
a Minnesota corporation (the “Borrower”) and U.S. BANK NATIONAL ASSOCIATION (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 — AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Commitment. The definition of “Commitment” in Section 1.1 is amended to read as
follows:
“‘Commitment’ means the maximum unpaid principal amount of the Loans which may
from time to time be outstanding hereunder, being initially $25,000,000, thereafter
increased to $50,000,000, and being increased to $75,000,000 on and after effectiveness of
the Second Amendment hereof, as the same may be reduced from time to time pursuant to
Section 4.3, and, as the context may require, the agreement of the Bank to make
Loans to the Borrower subject to the terms and conditions of this Agreement up to its
Commitment.”
1.2 Termination Date. The definition of “Termination Date” in Section 1.1 is amended
by deleting “September 1, 2007” and inserting “September 1, 2008” in place thereof
1.3 Published LIBOR. References to “ Telerate Page 3750” in Section 3.1(b) and (c)
are changed to “Reuters Screen LIBOR01 Page.”
1.4 Note. A promissory note in the amount of the Commitment, as amended hereby,
shall be executed and delivered by the Borrower and shall be and constitute the “Note” for purposes
of all references thereto in the Credit Agreement.
1.5 Construction. All references in the Credit Agreement to “this Agreement”,
“herein” and similar references shall be deemed to refer to the Credit Agreement as amended by this
Amendment.
ARTICLE II — REPRESENTATIONS AND WARRANTIES
To induce the Bank 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 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 obligation 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 Article VI of the Credit Agreement shall be true and correct as though
made on the date hereof, 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 and Fees. The Borrower shall have executed and delivered this Amendment
and the Note in the form provided by the Bank, and shall have paid the Bank a non-refundable fee of
$45,000.
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 this Bank
in the preparation, negotiation and execution of this Amendment and any other document required to
be furnished herewith, and in enforcing the obligations of the Borrower hereunder, and to pay and
save the Bank harmless from all liability for, any stamp or other taxes which may be payable with
respect to the execution or delivery of this Amendment or the issuance of the Note hereunder, which
obligations of the Borrower shall survive any termination of the Credit Agreement.
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 Law; Consent to Jurisdiction; Waiver of Jury Trial. 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. This Amendment shall be subject to the Consent to Jurisdiction and Waiver of
Jury Trial provisions of the Credit Agreement.
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 and 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 at
Minneapolis, Minnesota by their respective officers thereunto duly authorized as of the date first
written above.
| U.S. BANK NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
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| Xxxxxx X. Xxxxxx | ||||||
| Title: | Vice President | |||||
| OTTER TAIL CORPORATION, dba | ||||||
| OTTER TAIL POWER COMPANY | ||||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Xxxxx X. Xxxx | ||||||
| Title: | Chief Financial Officer | |||||
CERTIFICATE
I, Xxxxxx Xxxxx, do hereby certify that I am the duly elected and qualified Corporate
Secretary of OTTER TAIL CORPORATION, a corporation organized and existing under the laws of the
State of Minnesota. At a meeting of the Board of Directors thereof, convened and held on August 6,
2007, in accordance with the law and the by-laws of the Corporation the Board of Directors reviewed
the terms of Amendment to that certain Credit Agreement, dated as of September 1, 2006 (the “Credit
Agreement”), between the Corporation and U.S. Bank National Association (the “Bank”).
Upon that review, the Board of Directors authorized that any one of Xxxx X. Xxxxxxxx, Xxxxxx
X. Xxxxxxx, Xxxxx X. Xxxx or Xxxxxx Xxxxx (Executive Officers) of the Corporation to execute, in
the name and on behalf of the Corporation, and deliver to the Bank an Amendment between the
Corporation and the Bank, and any promissory note or other instrument, document or agreement
required by the Bank in connection with such Amendment.
The Executive Officers were also authorized to borrow from time to time under the Credit
Agreement as amended by the Amendment, to agree to rates of interest and other terms of loans, to
repay all amounts so borrowed and to take such action from time to time on behalf of the
Corporation as may be necessary, advisable or proper in order to carry out and perform the
obligations of the Corporation under the Credit Agreement as amended by the Amendment and all
related instruments, documents and agreements.
I FURTHER CERTIFY THAT the following persons have been elected and are now acting as officers
of the Corporation in the capacity set before their respective names:
| TITLE | NAME | SIGNATURE | ||
CEO & President
|
Xxxx X. Xxxxxxxx | /s/ Xxxx X. Xxxxxxxx | ||
COO & Executive VP
|
Xxxxxx X. Xxxxxxx | /s/ Xxxxxx X. Xxxxxxx | ||
CFO & Treasurer
|
Xxxxx X. Xxxx | /s/ Xxxxx X. Xxxx | ||
General Counsel & Corp. Sec.
|
Xxxxxx Xxxxx | /s/ Xxxxxx Xxxxx | ||
IN WITNESS WHEREOF, I have subscribed my name as Corporate Secretary of the Corporation as of
this 31st day of August, 2007.
| /s/ Xxxxxx Xxxxx | ||||
| Xxxxxx Xxxxx, Corporate Secretary | ||||
| OTTER TAIL CORPORATION, dba OTTER TAIL POWER COMPANY |
||||
PROMISSORY NOTE
| $75,000,000 | Minneapolis, Minnesota: August 31, 2007 |
FOR VALUE RECEIVED, the undersigned OTTER TAIL CORPORATION, dba OTTER TAIL POWER COMPANY, a
Minnesota corporation (the “Borrower”), promises to pay to the order of U.S. BANK NATIONAL
ASSOCIATION (the “Bank”), on the Termination Date, or other due date or dates determined under the
Credit Agreement hereinafter referred to, the principal sum of SEVENTY FIVE MILLION DOLLARS
($75,000,000), or if less, the then aggregate unpaid principal amount of the Loans (as such terms
are defined in the Credit Agreement) as may be borrowed by the Borrower from the Bank under the
Credit Agreement. All Loans and all payments of principal shall be recorded by the holder in its
records which records shall be conclusive evidence of the subject matter thereof, absent manifest
error.
The Borrower further promises to pay to the order of the Bank interest on the aggregate unpaid
principal amount hereof from time to time outstanding from the date hereof until paid in full at
the rates per annum which shall be determined in accordance with the provisions of the Credit
Agreement. Accrued interest shall be payable on the dates specified in the Credit Agreement.
All payments of principal and interest under this Note shall be made in lawful money of the
United States of America in immediately available funds at the office of the Bank, at 000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, or at such other place as may be designated by the Bank to the
Borrower in writing.
This Note is the Note referred to in, and evidences indebtedness incurred under, a Credit
Agreement dated as of September 1, 2006 (herein, as it may be amended, modified or supplemented
from time to time, called the “Credit Agreement”) between the Borrower and the Bank, to which
Credit Agreement reference is made for a statement of the terms and provisions thereof, including
those under which the Borrower is permitted and required to make prepayments and repayments of
principal of such indebtedness and under which such indebtedness may be declared to be immediately
due and payable.
All parties hereto, whether as makers, endorsers or otherwise, severally waive presentment,
demand, protest and notice of dishonor in connection with this Note.
This Note replaces and supersedes, and may evidence indebtedness formerly evidenced by, a
promissory note of the Borrower dated as of April 13, 2007 in the principal amount of $50,000,000.
Delivery and acceptance of this Note shall not evidence repayment of such indebtedness.
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This Note is made under and governed by the internal laws of the State of Minnesota.
| OTTER TAIL CORPORATION, dba | ||||||
| OTTER TAIL POWER COMPANY | ||||||
| By: | Xxxxx X. Xxxx
|
|||||
| Xxxxx X. Xxxx | ||||||
| Title: | Chief Financial Officer | |||||
