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0000950134-06-018923.txt : 20061011 0000950134-06-018923.hdr.sgml : 20061011 20061011124008 ACCESSION NUMBER: 0000950134-06-018923 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20061006 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20061011 DATE AS OF CHANGE: 20061011 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: 061139577 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 c08920e8vk.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): October 6, 2006

OTTER TAIL CORPORATION

(Exact name of registrant as specified in its charter)


Minnesota (State or other jurisdiction of incorporation)	0-00368 (Commission File Number)	41-0462685 (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 to Participation Agreement

Item 1.01 Entry into a Material Definitive Agreement

On October 6, 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. 3 to Participation Agreement, dated as of September 1, 2006 (“Amendment No. 3”). Amendment No. 3 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”) and Amendment No. 2 to the Participation Agreement, dated as of August 18, 2006 (“Amendment No. 2”) (the Agreement, as so amended by Amendment No. 1, Amendment No. 2 and Amendment No. 3, the “Amended Agreement”). The Amended Agreement, which relates to the planned construction of a new 630 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. 3 (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 November 30, 2006 to a date agreed upon by all of the Owners that shall be on or before June 28, 2007, (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 December 31, 2006 to July 31, 2007, and revises the formula for determining the amount of an early withdrawal payment and (iii) eliminates a provision that permits early withdrawal by Owners from the project and deletes subsequent references to the eliminated provision.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits

10.1

Amendment No. 3 to Participation Agreement, dated as of September 1, 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

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: October 11, 2006	By /s/ Kevin G. Moug
	Kevin G. Moug
	Chief Financial Officer and Treasurer

Exhibit Index

10.1

EX-10.1 2 c08920exv10w1.htm AMENDMENT TO PARTICIPATION AGREEMENT exv10w1

Exhibit 10.1

Big Stone II Power Plant

Amendment No. 3 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

Owners

Effective

September 1, 2006


			1			Amendment No. 3 to Participation Agreement
						September 1, 2006

Amendment No. 3 to Participation Agreement

THIS AMENDMENT NO. 3 TO PARTICIPATION AGREEMENT (this “Amendment”) is made as of September 1, 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”) and an Amendment No. 2 to the Participation Agreement dated August 1, 2006 (individually, the “Amendment No. 2”, and collectively with the Agreement and Amendments No. 1, 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, the Amendment No. 1 and the Amendment No. 2 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 “November 30, 2006” is hereby replaced with “June 28, 2007”.


			2			Amendment No. 3 to Participation Agreement
						September 1, 2006

(b) The portion of the sentence included in Section 3.05(b)(i), subsection (B) of the Amended Agreement is deleted and hereby replaced with the following: “deposits into the Trust Account on or before July 31, 2007, a payment equal to the difference of the following (such difference being referred to herein as the “Net Exit Payment ”):

Thirty-Seven Dollars and Fifty Cents ($37.50) per kilowatt multiplied by that Owner’s Ownership Share (calculated based on a 600 MW plant and expressed in kilowatts as reflected on Exhibit B hereto (the “Exit Payment”) less the withdrawing Owner’s prorated portion (also based on Exhibit B hereto) of the Project Costs incurred or obligated to during the period starting September 1, 2006 through the date of receipt by the non-withdrawing Owners of such withdrawing Owner’s notice of withdrawal (the “Interim Project Costs”).

If there is a positive Net Exit Payment balance in the Trust Account after July 31, 2007 and if notice of Interim Project Costs are received by the non-withdrawing Owners after the withdrawing Owner’s deposit, the non-withdrawing Owners shall pay the withdrawing Owner’s prorata portion of such Interim Project Costs first using any balance of the Net Exit Payment remaining in the Trust Account. The non-withdrawing Owners shall provide the withdrawing Owner a monthly statement reflecting such activity and evidence of the paid Interim Project Costs. When and if the Net Exit Payment equals zero or is a negative number, then the withdrawing Owner shall pay such Interim Project Costs not more than thirty (30) days after receipt of any invoice received from the non-withdrawing Owners regarding such Interim Project Costs.

Notwithstanding the foregoing, however, in no event shall the non-withdrawing Owners pay the withdrawing Owner, even if the withdrawing Owner’s Net Exit Payment is a negative number, meaning that its portion of the Interim Project Costs exceeds its Exit Payment.”

The remaining balance of Section 3.05(b)(i) remains unchanged from the Agreement.

(c) Section 3.05(c) of the Amended Agreement is hereby deleted in its entirety and therefore there is no longer any Early Withdrawal Period.

(d) In the first sentence of Section 3.09(b) of the Amended Agreement, the words “or 3.05(c)” are deleted.

(e) References to “or 3.05(c)” in Section 14.02(c) are hereby deleted.

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.


			3			Amendment No. 3 to Participation Agreement
						September 1, 2006

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. 3 to Participation Agreement
						September 1, 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