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0000950134-06-017120.txt : 20060831 0000950134-06-017120.hdr.sgml : 20060831 20060831144123 ACCESSION NUMBER: 0000950134-06-017120 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20060825 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060831 DATE AS OF CHANGE: 20060831 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OTTER TAIL CORP CENTRAL INDEX KEY: 0000075129 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 410462685 STATE OF INCORPORATION: MN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-00368 FILM NUMBER: 061068068 BUSINESS ADDRESS: STREET 1: 215 S CASCADE ST STREET 2: PO BOX 496 CITY: FERGUS FALLS STATE: MN ZIP: 56538-0496 BUSINESS PHONE: 8664108780 MAIL ADDRESS: STREET 1: 215 S CASCADE ST STREET 2: P O BOX 496 CITY: FERGUS FALLS STATE: MN ZIP: 56538-0496 FORMER COMPANY: FORMER CONFORMED NAME: OTTER TAIL POWER CO DATE OF NAME CHANGE: 19920703 8-K 1 c08161e8vk.htm FORM 8-K e8vk

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): August 25, 2006

OTTER TAIL CORPORATION

(Exact name of registrant as specified in its charter)


Minnesota	0-00368	41-0462685

(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

215 South Cascade Street, P.O. Box 496, Fergus Falls, MN		56538-0496

(Address of principal executive offices)		(Zip Code)

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:

		o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

		o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

		o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

		o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

TABLE OF CONTENTS


	Item 1.01 Entry into a Material Definitive Agreement
	Item 9.01 Financial Statements and Exhibits
Signature
Exhibit Index
Amendment No. 2 to Participation Agreement

Item 1.01 Entry into a Material Definitive Agreement

On August 25, 2006, Otter Tail Corporation dba Otter Tail Power Company, Central Minnesota Municipal Power Agency, Great River Energy, Heartland Consumers Power District, Montana-Dakota Utilities Co., a division of MDU Resources Group, Inc., Southern Minnesota Municipal Power Agency and Western Minnesota Municipal Power Agency (collectively, the “Owners”) entered into Amendment No. 2 to Participation Agreement, dated as of August 18, 2006 (“Amendment No. 2”). Amendment No. 2 amends the Participation Agreement, dated as of June 30, 2005 (the “Agreement”), which was previously amended by Amendment No. 1 to the Participation Agreement, dated as of June 1, 2006 (“Amendment No. 1”) (the Agreement, as so amended by Amendment No. 1 and Amendment No. 2, the “Amended Agreement”). The Amended Agreement, which relates to the planned construction of a new 600 megawatt coal fueled, base-load electric generation plant (the “Big Stone II Plant”) adjacent to the existing 450 megawatt electric generation plant near Big Stone, South Dakota, is an agreement to jointly develop, finance, construct, own (as tenants in common) and manage the Big Stone II Plant and includes provisions which obligate the parties to the agreement to obtain financing and pay their share of development, construction, operating and maintenance costs for the Big Stone II Plant. The Amended Agreement establishes a Coordinating Committee and an Engineering and Operating Committee to manage the development, design, construction, operation and maintenance of the Big Stone II Plant.

Amendment No. 2 (i) extends the date on which the Owners, through the Coordinating Committee, must meet to vote on whether to continue the project from a date agreed upon by all of the Owners that shall be on or before August 31, 2006 to a date agreed upon by all of the Owners that shall be on or before November 30 2006, (ii) extends the deadline for payment of the amount required under the Amended Agreement to be paid by an Owner withdrawing after continuation of the project is approved from September 30, 2006 to December 31, 2006, and (iii) adds a provision that permits early withdrawal by Owners from the project on or before September 15, 2006 under certain circumstances, and defines the rights and obligations of the parties following any such early withdrawal by one or more Owners.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits

10.1

Amendment No. 2 to Participation Agreement, dated as of August 18, 2006, by and among Central Minnesota Municipal Power Agency, Great River Energy, Heartland Consumers Power District, Montana-Dakota Utilities Co., a division of MDU Resources Group, Inc., Otter Tail Corporation dba Otter Tail Power Company, Southern Minnesota Municipal Power Agency and Western Minnesota Municipal Power Agency, as Owners, amending the Participation Agreement, dated as of June 30, 2005, by and among the Owners*

Confidential information has been omitted from this Exhibit and filed separately with the Commission pursuant to a confidential treatment request under Rule 24b-2.

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.


	OTTER TAIL CORPORATION
Date: August 31, 2006	By /s/ Kevin G. Moug
	Kevin G. Moug
	Chief Financial Officer and Treasurer

Exhibit Index

10.1

* Confidential information has been omitted from this Exhibit and filed separately with the Commission pursuant to a confidential treatment request under Rule 24b-2.

EX-10.1 2 c08161exv10w1.htm AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT exv10w1

Exhibit 10.1

Big Stone II Power Plant

Amendment No. 2 to
Participation Agreement

By and Among
CENTRAL MINNESOTA MUNICIPAL POWER AGENCY,
GREAT RIVER ENERGY,
HEARTLAND CONSUMERS POWER DISTRICT,
MONTANA-DAKOTA UTILITIES CO., A DIVISION OF MDU
RESOURCES GROUP, INC.,
OTTER TAIL CORPORATION dba OTTER TAIL POWER COMPANY,
SOUTHERN MINNESOTA MUNICIPAL POWER AGENCY, AND
WESTERN MINNESOTA MUNICIPAL POWER AGENCY

As
Owners

August 18, 2006


1		Amendment No. 2 to Participation Agreement August 18, 2006

Amendment No. 2 to Participation Agreement

THIS AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT (this “Amendment”) is made as of August 18, 2006, by and among Central Minnesota Municipal Power Agency, an agency incorporated under the laws of the State of Minnesota (“CMMPA”), Great River Energy, a cooperative corporation incorporated under the laws of the State of Minnesota (“GRE”), Heartland Consumers Power District, a consumers power district formed and organized under the South Dakota Consumers Power District Law (Chapter 49-35 of the South Dakota Codified Laws) (“Heartland”), Montana-Dakota Utilities Co., a Division of MDU Resources Group, Inc., a corporation incorporated under the laws of the State of Delaware (“Montana-Dakota”), Otter Tail Corporation, a corporation incorporated under the laws of the State of Minnesota, doing business as Otter Tail Power Company (“Otter Tail”), Southern Minnesota Municipal Power Agency, a municipal corporation and political subdivision of the State of Minnesota (“SMMPA”), and Western Minnesota Municipal Power Agency, a municipal corporation and political subdivision of the State of Minnesota (“WMMPA”) (each individually a “Party” and, collectively, the “Parties”).

RECITALS

WHEREAS, the Parties have entered into a Participation Agreement, dated June 30, 2005 (the “Agreement”), and an Amendment No. 1 to the Participation Agreement dated effective as of June 1, 2006 (the “Amendment No. 1”) (collectively with the Agreement, the “Amended Agreement”), to provide for their ownership as tenants in common of BSP II and set forth certain responsibilities and mechanisms for the design, construction, ownership, operation, maintenance and repair of BSP II; and

WHEREAS, the Parties desire to amend the Agreement and the Amendment No. 1 as and to the extent provided in this Amendment.

NOW, THEREFORE, in consideration of the agreements and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound by this Amendment, the Parties covenant and agree as follows:

AGREEMENTS

1.01 Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.

1.02 Amendments. The Amended Agreement is hereby amended as follows:

(a) In Section 3.05(b) of the Amended Agreement, the date “August 31, 2006” is hereby replaced with “November 30, 2006”.

(b) In Section 3.05(b)(i)(B) of the Amended Agreement, the date “September 30, 2006” is hereby replaced with the date “December 31, 2006”.


2		Amendment No. 2 to Participation Agreement August 18, 2006

“At any time prior to 2 p.m. Central Time on September 15, 2006 (“Early Withdrawal Period’), any Owner may withdraw from the Project pursuant to Section 3.05(b) as a result of (*) by providing written notice of its withdrawal, transmitted electronically (facsimile or electronic mail) to the other Owners prior to the end of the Early Withdrawal Period. Any Owner withdrawing during such Early Withdrawal Period as a result of (*) shall deposit into the Trust Account on or before thirty (30) days after such notice of withdrawal, a payment equal to (*) per kilowatt multiplied by that Owner’s Ownership Share (“Early Withdrawal Deposit”).

In the event one or more Owners elects to withdraw during the Early Withdrawal Period, then for purposes of the vote by the Coordination Committee contemplated in Section 3.05(b) (the “Project Vote”) such Owner(s) shall be deemed to have (*). Furthermore, for purposes of the Project Vote, all Owners’ Ownership Share (both for Owners who withdrew during the Early Withdrawal Period and for those who did not) shall be as calculated without reallocation.

Following an Owner’s withdrawal pursuant to this Section 3.05(c), the withdrawing Owner shall pay its obligations under Section 3.08 as they are invoiced by Operator. The Early Withdrawal Deposit shall not be used for the purpose of paying such obligations.

If a Double Majority votes in favor of the Project continuing when the Project Vote is taken then an Owner who properly withdraws under this Section 3.05(c) shall have no other obligations except those required under Sections 3.08 and 16.06, and it shall not be entitled to any refund of its Early Withdrawal Deposit.

If a Double Majority does not vote in favor of the Project continuing when the Project Vote is taken, or if both Otter Tail and Montana-Dakota withdraw from the Project, then an Owner who withdraws during the Early Withdrawal Period shall be reimbursed its Early Withdrawal Deposit less its portion of Project Costs described in Section 3.08 and those Project Costs incurred for winding up the Project as described in Section 14.02. To the extent such Project Costs are not yet known, they shall be reasonably estimated by the Operator, and thereafter, if such estimates are not adequate to cover all such costs, then the withdrawing Owner shall pay such additional Project Costs as they are invoiced by the Operator.”

(d) The first sentence of Section 3.09(b) of the Amended Agreement is amended to provide as follows: “If an Owner withdraws from the Project pursuant to Section 3.05(b) or 3.05(c), and either Montana-Dakota or Otter Tail (or both) have not withdrawn, then:”


3		Amendment No. 2 to Participation Agreement August 18, 2006

(e) Section 14.02(c) is hereby replaced with the following: “the deposit of any proceeds from the disposition in the Trust Account (provided, however, that an Owner that withdraws from the Project pursuant to Section 3.05(b)(i) or 3.05(c) of this Agreement shall not be entitled to receive any payment paid by such Owner in connection with such withdrawal pursuant to Section 3.05(b)(i) or Section 3.05(c) of this Agreement or otherwise); and”

1.03 Continuing Effect; Ratification. Except as expressly amended herein, all other terms, covenants and conditions contained in the Amended Agreement shall continue to remain unchanged and in full force and effect and are hereby ratified and confirmed.

1.04 Governing Law. This Amendment shall be interpreted and enforced in accordance with the Laws of the State of South Dakota, notwithstanding any conflict of law provision to the contrary.

1.05 Captions. All titles, subject headings, section titles and similar items are provided for the purpose of reference and convenience and are not intended to affect the meaning of the content or scope of this Amendment.

1.06 Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute but one and the same agreement. Counterpart signatures may be delivered by facsimile or electronic transmission, each of which shall have the same force and effect as an original signed copy.

1.07 Authority. Each signatory to this Amendment represents that he/she has the authority to execute and deliver this Amendment on behalf of the party set forth above his/her signature.

[Signature pages follow.
The remainder of this page is intentionally blank.]


4		Amendment No. 2 to Participation Agreement August 18, 2006

IN WITNESS WHEREOF, the Parties have caused their names to be hereunto subscribed by their officers thereunto duly authorized, intending thereby that this Amendment shall be effective as of the date set forth above.


OWNERS: CENTRAL MINNESOTA MUNICIPAL POWER AGENCY
	By /s/ Bob Elston
	Bob Elston
	Its President