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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):
September 6, 2023
Black Hills Corporation
(Exact name of registrant as specified in
its charter)
South Dakota |
|
001-31303 |
|
46-0458824 |
(State or other jurisdiction of incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
7001 Mount Rushmore Road
Rapid City, SD 57702
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including
area code: (605) 721-1700
Not Applicable
(Former name or former address, if changed
since last report)
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 (see General Instruction A.2. below):
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting materials pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant
to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which
registered |
Common Stock of $1.00 par value |
BKH |
New York Stock Exchange |
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter)
or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended
transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the
Exchange Act. ¨
Item 1.01 | Entry into a Material Definitive Agreement. |
On September 6, 2023, Black Hills
Corporation (the “Company” or “we”) entered into an Underwriting Agreement by and between the Company
and the representatives of the several underwriters named in Schedule A thereto (the “Underwriting Agreement”), pursuant
to which the Company has agreed to issue and sell and the underwriters have severally agreed to purchase an aggregate principal amount
of $450 million of its 6.150% Notes due 2034 (the “Notes”). The aggregate gross consideration received by the Company
(taking into account original issue discount and underwriting discounts) for the sale of the Notes is approximately $443.6 million. The
issuance and settlement of the Notes are scheduled to occur on September 15, 2023, subject to customary closing conditions.
The Underwriting Agreement contains
representations and warranties, covenants and other terms that are customary for such kind of agreement. In addition, the Company has
agreed to indemnify the underwriters against certain liabilities on customary terms. Some of the underwriters and their affiliates have
engaged in, and may in the future engage in, investment banking and other commercial dealings, including but not limited to commercial
lending services, with the Company, its direct or indirect subsidiaries or its affiliates. They have received, or may in the future receive,
customary fees and commissions for these transactions.
The Notes were offered pursuant
to the Company’s Registration Statement on Form S-3 (Registration No. 333-272739) (the “Registration Statement”),
and the related Prospectus dated June 16, 2023 and Prospectus Supplement dated September 6, 2023. A copy of the Underwriting Agreement
is attached hereto as Exhibit 1.1 and is expressly incorporated by reference herein and into the Registration Statement. The foregoing
descriptions are qualified in their entirety by reference to the actual terms thereof.
Item 9.01 | Financial Statements and Exhibits. |
| The following
exhibits are furnished or filed herewith: |
104.1 |
|
Cover Page Interactive Data File (embedded
within the Inline XBRL document) |
SIGNATURES
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 hereunto
duly authorized.
|
BLACK HILLS CORPORATION |
|
|
|
|
|
By: |
/s/
Kimberly F. Nooney |
|
|
Kimberly F. Nooney |
|
|
Senior Vice President and Chief Financial
Officer |
Date: September 11, 2023
Exhibit 1.1
Execution Version
Black Hills Corporation
$450,000,000 6.150% Notes due 2034
UNDERWRITING AGREEMENT
September 6, 2023
MUFG Securities Americas Inc.
1221 Avenue of the Americas, 6th Floor
New York, NY, 10020-1001
Scotia Capital (USA) Inc.
250 Vesey Street
New York, NY 10281
As Representatives (the “Representatives”) of the
Several Underwriters
Ladies and Gentlemen:
1.
Introductory. Black Hills Corporation, a South Dakota corporation (the “Company”), agrees with the several
Underwriters named in Schedule A hereto (the “Underwriters”) to issue and sell to the several Underwriters $450,000,000
aggregate principal amount of its 6.150% Notes due 2034 (the “Offered Securities”). The Offered Securities will be
issued under an indenture dated as of May 21, 2003, between the Company and Computershare Trust Company, N.A., as successor to Wells Fargo
Bank, National Association, as Trustee (the “Trustee”) (the “Base Indenture”), as supplemented by
a first supplemental indenture dated as of May 21, 2003, between the Company and the Trustee, a second supplemental indenture dated as
of May 14, 2009, between the Company and the Trustee, a third supplemental indenture dated as of July 16, 2010, between the Company and
the Trustee, a fourth supplemental indenture dated as of November 19, 2013 between the Company and the Trustee, a fifth supplemental indenture
dated as of January 13, 2016, between the Company and the Trustee, a sixth supplemental indenture dated as of August 19, 2016, between
the Company and the Trustee, a seventh supplemental indenture dated as of August 17, 2018, between the Company and the Trustee, an eighth
supplemental indenture dated as of October 3, 2019, between the Company and the Trustee, a ninth supplemental indenture dated as of June
17, 2020, between the Company and the Trustee, a tenth supplemental indenture dated as of August 26, 2021, between the Company and the
Trustee, an eleventh supplemental indenture dated as of March 7, 2023, between the Company and the Trustee, and a twelfth supplemental
indenture to be dated as of the Closing Date (as defined below) between the Company and the Trustee with respect to the Offered Securities
(the “Supplemental Indenture” and, the Base Indenture as supplemented by such first, second, third, fourth, fifth,
sixth, seventh, eighth, ninth, tenth and eleventh supplemental indentures and the Supplemental Indenture, the “Indenture”).
2.
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the several Underwriters
that:
(a)
Filing and Effectiveness of Registration Statement; Certain Defined Terms. The Company has filed with the Commission a registration
statement on Form S-3 (No. 333-272739), including a related prospectus or prospectuses relating to the Offered Securities, covering the
registration of the Offered Securities under the Act, which has become effective. “Registration Statement” at any particular
time means such registration statement in the form then filed with the Commission, including any other amendment thereto, any document
incorporated by reference therein and all 430B Information and all 430C Information with respect to such registration statement, that
in any case has not been superseded or modified. “Registration Statement” without reference to a time means the Registration
Statement as of the Effective Time. For purposes of this definition, 430B
Information shall be considered to be included in the Registration
Statement as of the time specified in Rule 430B.
For purposes of this Agreement:
“430B Information” means information
included in a prospectus relating to the Offered Securities then deemed to be a part of the Registration Statement pursuant to Rule 430B(e)
or retroactively deemed to be a part of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information
included in a prospectus relating to the Offered Securities then deemed to be a part of the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act
of 1933, as amended.
“Applicable Time” means approximately
4:35 p.m. (Eastern time) on the date of this Agreement.
“Closing Date” has the meaning
defined in Section 3 hereof.
“Commission” means the Securities
and Exchange Commission.
“Effective Time” of the Registration
Statement relating to the Offered Securities means the time of the first contract of sale for the Offered Securities.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Final Prospectus” means the
Statutory Prospectus that discloses the public offering price, other 430B Information and other final terms of the Offered Securities
and otherwise satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus”
means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being
so specified in Schedule B to this Agreement.
“Issuer Free Writing Prospectus”
means any “issuer free writing prospectus”, as defined in Rule 433, relating to the Offered Securities in the form filed or
required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant
to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus”
means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations” means
the rules and regulations of the Commission.
“Securities Laws” means, collectively,
the Sarbanes-Oxley Act of 2002, as amended (“Sarbanes-Oxley”), the Act, the Exchange Act, the Trust Indenture Act, the
Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of “issuers” (as defined
in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and, as applicable, the rules of the New York
Stock Exchange and the Nasdaq Stock Market (“Exchange Rules”).
“Statutory Prospectus” with
reference to any particular time means the prospectus relating to the Offered Securities that is included in the Registration Statement
immediately prior to that time, including all 430B Information and all 430C Information with respect to the Registration Statement. For
purposes of the foregoing definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the actual
time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.
“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended.
Unless otherwise specified, a reference to a “rule”
is to the indicated rule under the Act.
(b)
Compliance with Securities Act Requirements. (i) (A) At the time the Registration Statement initially became effective,
(B) at the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by post-effective amendment,
incorporated report or form of prospectus), (C) at the Effective Time relating to the Offered Securities and (D) on the Closing Date,
the Registration Statement conformed and will conform in all material respects to the requirements of the Act, the Trust Indenture Act
and the Rules and Regulations and did not and will not include any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading and (ii) (A) on its date, (B) at the time of
filing the Final Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Final Prospectus will conform in all material respects
to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
The preceding sentence does not apply to statements in or omissions from any such document based upon written information furnished to
the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 8(b) hereof.
(c)
Automatic Shelf Registration Statement. (i) Well-Known Seasoned Issuer Status. (A) At the time of initial filing
of the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3)
of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange
Act or form of prospectus), and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only,
of Rule 163(c)) made any offer relating to the Offered Securities in reliance on the exemption of Rule 163, the Company was a “well
known seasoned issuer” as defined in Rule 405, including not having been an “ineligible issuer” as defined in Rule 405.
(ii)
Effectiveness of Automatic Shelf Registration Statement. The Registration Statement is an “automatic shelf registration
statement”, as defined in Rule 405, that initially became effective within three years of the date of this Agreement. If immediately
prior to the Renewal Deadline (as hereinafter defined), any of the Offered Securities remain unsold by the Underwriters, the Company will
prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement
relating to the Offered Securities, in a form reasonably satisfactory to the Representatives. If the Company is no longer eligible to
file an automatic shelf registration statement, the Company will prior to the Renewal Deadline, if it has not already done so, file a
new shelf registration statement relating to the Offered Securities, in a form reasonably satisfactory to the Representatives, and will
use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company
will take all other action necessary or appropriate to permit the public offering and sale of the Offered Securities to continue as contemplated
in the expired registration statement relating to the Offered Securities. References herein to the Registration Statement shall include
such new automatic shelf registration statement or such new shelf registration statement, as the case may be. “Renewal Deadline”
means the third anniversary of the initial effective time of the Registration Statement.
(iii)
Eligibility to Use Automatic Shelf Registration Form. The Company has not received from the Commission any notice pursuant
to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form. If at any time when Offered Securities remain unsold
by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to
use the automatic shelf registration statement form, the
Company will (A) promptly notify the Representatives, (B) promptly file a new
registration statement or post-effective amendment on the proper form relating to the Offered Securities, in a form reasonably satisfactory
to the Representatives, (C) use its best efforts to cause such registration statement or post-effective amendment to be declared effective
as soon as practicable, and (D) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary
or appropriate to permit the public offering and sale of the Offered Securities to continue as contemplated in the registration statement
that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration
Statement shall include such new registration statement or post-effective amendment, as the case may be.
(iv)
Filing Fees. The Company has paid or shall pay the required Commission filing fees relating to the Offered Securities within
the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(d)
Ineligible Issuer Status. (i) At the earliest time after the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Offered Securities and (ii) at the date of this
Agreement, the Company was not and is not an “ineligible issuer”, as defined in Rule 405, including (A) the Company or any
subsidiary of the Company in the preceding three years not having been convicted of a felony or misdemeanor or having been made the subject
of a judicial or administrative decree or order as described in Rule 405 and (B) the Company in the preceding three years not having been
the subject of a bankruptcy petition or insolvency or similar proceeding, not having had a registration statement be the subject of a
proceeding under Section 8 of the Act and not being the subject of a proceeding under Section 8A of the Act in connection with the offering
of the Offered Securities, all as described in Rule 405.
(e)
General Disclosure Package. As of the Applicable Time, neither (i) the General Use Issuer Free Writing Prospectus(es) issued
at or prior to the Applicable Time and the preliminary prospectus supplement, dated September 6, 2023, including the base prospectus of
the Company, dated June 16, 2023 (which is the most recent Statutory Prospectus distributed to investors generally), and the other information,
if any, stated in Schedule B to this Agreement to be included in the General Disclosure Package, all considered together (collectively,
the “General Disclosure Package”), nor (ii) any individual Limited Use Issuer Free Writing Prospectus, when considered
together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from any Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein,
it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such
in Section 8(b) hereof.
(f)
Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Offered Securities or until any earlier date that the Company notified or notifies
the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts
or will conflict with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted
or would conflict with the information then contained in the Registration Statement or as a result of which such Issuer Free Writing Prospectus,
if republished immediately following such event or development, would include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading, (i) the Company has promptly notified or will promptly notify the Representatives and (ii) the Company has promptly
amended
or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement
or omission.
(g)
Good Standing of the Company. The Company has been duly incorporated and is existing and in good standing under the laws
of the State of South Dakota, with power and authority (corporate and other) to own its properties and conduct its business as described
in the Registration Statement, the General Disclosure Package and the Final Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the
aggregate, result in a material adverse effect on the condition (financial or otherwise), results of operations, business, properties
or prospects of the Company and its subsidiaries taken as a whole (“Material Adverse Effect”).
(h)
Subsidiaries. Each subsidiary of the Company has been duly incorporated or organized, as the case may be, and is existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, as the case may be, with power and authority
(corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Disclosure
Package and the Final Prospectus, except where the failure to be so qualified and in good standing would not, individually or in the aggregate,
result in a Material Adverse Effect; and each subsidiary of the Company is duly qualified to do business as a foreign corporation, limited
partnership, general partnership or limited liability company, as the case may be, in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified
and in good standing would not, individually or in the aggregate, result in a Material Adverse Effect; all of the issued and outstanding
capital stock or partnership or limited liability company interests, as the case may be, of each subsidiary of the Company has been duly
authorized and validly issued and, with respect to the capital stock of each subsidiary that is a corporation, is fully paid and nonassessable;
and, except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, the capital stock or
partnership or limited liability company interests, as the case may be, of each subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects.
(i)
The Indenture. The Base Indenture has been duly authorized, executed and delivered by the Company and has been duly qualified
under the Trust Indenture Act. The Supplemental Indenture has been duly authorized by the Company and, when executed and delivered by
the Company and assuming due authorization, execution and delivery by the Trustee, the Indenture will constitute a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(j)
The Offered Securities. The Offered Securities are in the form contemplated by the Indenture and have been duly authorized
by the Company and, when issued and delivered pursuant to the Indenture to and paid for by the Underwriters in accordance with the terms
of this Agreement, will have been duly executed, authenticated, issued and delivered by the Company and will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their terms, and be entitled to the benefits provided by the Indenture,
subject in each case to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.
(k)
No Finder’s Fee. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus,
there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against
the Company
or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(l)
Registration Rights. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus,
there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities
being registered pursuant to any other registration statement filed by the Company under the Act (collectively, “registration
rights”), and any person to whom the Company has granted registration rights has agreed, if necessary, not to exercise such
rights until after the expiration of the Lock-Up Period referred to in Section 5 hereof.
(m)
Absence of Further Requirements. No consent, approval, authorization, or order of, or filing or registration with, any person
(including any governmental agency or body or any court) is required for the consummation of the transactions contemplated by this Agreement
or the Indenture in connection with the offering, issuance and sale of the Offered Securities by the Company, except such as have been
obtained or made and such as may be required under state securities laws.
(n)
Title to Property. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus,
the Company and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them
that are material to the Company and its subsidiaries taken as a whole, in each case free from liens, charges, encumbrances and defects
that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them and, except as
disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, the Company and its subsidiaries hold
any leased real or personal property that is material to the Company and its subsidiaries taken as a whole under valid and enforceable
leases with no terms or provisions that would materially interfere with the use made or to be made thereof by them.
(o)
Absence of Defaults and Conflicts Resulting from Transaction. The execution, delivery and performance of this Agreement
and the Indenture, and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof, will not
result in a breach or violation of any of the terms and provisions of, or constitute a default or a Debt Repayment Triggering Event (as
defined below) under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, (i) the charter or by-laws or other organizational documents of the Company or any of its subsidiaries,
(ii) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their properties, or (iii) any agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties of the Company
or any of its subsidiaries is subject, except, in the case of clauses (ii) and (iii), as would not, individually or in the aggregate,
result in a Material Adverse Effect. A “Debt Repayment Triggering Event” means any event or condition that gives, or
with the giving of notice or lapse of time would give, the holder of any note, debenture, or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any of its subsidiaries.
(p)
Absence of Existing Defaults and Conflicts. Neither the Company nor any of its subsidiaries is in violation of its respective
charter, by-laws or organizational documents or in default (or with the giving of notice or lapse of time would be in default) under any
existing obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or
instrument to which any of them is a party or by which any
of them is bound or to which any of the properties of any of them is subject,
except such defaults that would not, individually or in the aggregate, result in a Material Adverse Effect.
(q)
Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(r)
Possession of Licenses. The Company and its subsidiaries possess, and are in compliance with the terms of, all adequate
certificates, authorizations, franchises, licenses and permits (“Licenses”) necessary or material to the conduct of
the business now conducted or proposed in the General Disclosure Package to be conducted by them and have not received any notice of proceedings
relating to the revocation or modification of any Licenses that, if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(s)
Absence of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent that could have a Material Adverse Effect.
(t)
Possession of Intellectual Property. The Company and its subsidiaries own, possess, or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual
property (collectively, “intellectual property rights”) necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(u)
Environmental Laws. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus,
neither the Company nor any of its subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating
to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “environmental
laws”), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable
for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental
laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and the
Company is not aware of any pending investigation which might lead to such a claim.
(v)
Accurate Disclosure. The statements in the Registration Statement, General Disclosure Package and the Final Prospectus under
the headings “Description of the Notes”, “Description of Senior Debt Securities”, “Material U.S. Federal
Income Tax Consequences” and “Underwriting (Conflicts of Interest)”, insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or
proceedings in all material respects and present the information required to be shown.
(w)
Absence of Manipulation. The Company has not taken, directly or indirectly, any action that is designed to or that has constituted
or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Offered Securities.
(x)
Internal Controls and Compliance with the Sarbanes-Oxley Act. Except as set forth in the Registration Statement, the General
Disclosure Package and the Final Prospectus, the Company, its subsidiaries and the Company’s Board of Directors (the “Board”)
are in compliance in all
material respects with Sarbanes-Oxley
and all applicable Exchange Rules. The Company maintains a system of internal controls, including, but not limited to, disclosure controls
and procedures, internal controls over accounting matters and financial reporting, an internal audit function and legal and regulatory
compliance controls (collectively, “Internal Controls”) that comply in all material respects with the Securities Laws
and are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general
or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles in the United States and to maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Internal Controls
are, or upon consummation of the offering of the Offered Securities will be, overseen by the Audit Committee (the “Audit Committee”)
of the Board in accordance with Exchange Rules. Since the date of the filing of the Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2022, the Company has not publicly disclosed or reported to the Audit Committee or the Board, and within
the next 90 days the Company does not reasonably expect to publicly disclose or report to the Audit Committee or the Board, (i) any significant
deficiency in the design or operation of Internal Controls that could adversely affect the Company’s ability to record, process,
summarize and report financial data, any material weakness in Internal Controls, any material change in Internal Controls or any fraud
involving management or other employees who have a significant role in Internal Controls (each, an “Internal Control Event”)
or (ii) any material violation of, or failure to comply with, the Securities Laws.
(y)
Absence of Accounting Issues. A member of the Audit Committee has confirmed to the Chief Executive Officer, Chief Financial
Officer or General Counsel of the Company that, except as set forth in the Registration Statement, the General Disclosure Package and
the Final Prospectus, the Audit Committee is not reviewing or investigating, and neither the Company’s independent auditors nor
its internal auditors have recommended that the Audit Committee review or investigate, (i) adding to, deleting, changing the application
of, or changing the Company’s disclosure with respect to, any of the Company’s material accounting policies; (ii) any
matter which could result in a restatement of the Company’s financial statements for any annual or interim period during the current
or prior three fiscal years; or (iii) any Internal Control Event.
(z)
Litigation. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus,
there are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body,
domestic or foreign) against or affecting the Company, any of its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially
and adversely affect the ability of the Company to perform its obligations under this Agreement or the Indenture, or which are otherwise
material in the context of the sale of the Offered Securities; and no such actions, suits or proceedings (including any inquiries or investigations
by any court or governmental agency or body, domestic or foreign) are, to the Company’s knowledge, threatened or contemplated.
(aa)
Financial Statements. The financial statements included in the Registration Statement, the General Disclosure Package and
the Final Prospectus present fairly the financial position of the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States applied on a consistent basis; and the schedules included in the Registration
Statement present fairly the information required to be stated therein. The interactive data in extensible Business Reporting Language
included or incorporated by reference in the Registration Statement , the General Disclosure Package and the Final Prospectus fairly presents
the information called for in all material respects and has been prepared in all material respects in accordance with the Commission’s
rules and guidelines applicable thereto.
(bb)
No Material Adverse Change in Business. Except as disclosed in the General Disclosure Package, since the end of the period
covered by the latest audited financial statements included in the General Disclosure Package (i) there has been no change, nor any development
or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects
of the Company and its subsidiaries, taken as a whole that is material and adverse, (ii) there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital stock (other than regular quarterly cash dividends in respect
of the Company’s common stock and declared and paid by the Company in the ordinary course of business) and (iii) there has been
no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of
the Company and its subsidiaries.
(cc)
Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the Registration Statement, the General Disclosure Package and the Final Prospectus,
will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.
(dd)
Ratings. No “nationally recognized statistical rating organization” as such term is defined for purposes of
Section 3(a)(62) of the Exchange Act (i) has imposed (or has informed the Company that it is considering imposing) any condition (financial
or otherwise) on the Company’s retaining any rating assigned to the Company or any securities of the Company or (ii) has indicated
to the Company that it is considering any of the actions described in Section 7(c)(ii) hereof, except as has been publicly disclosed by
the applicable nationally recognized statistical rating organization.
(ee)
Foreign Corrupt Practices Act. Within the last five years, none of the Company, any of its subsidiaries or, to the Company’s
knowledge, any director, officer, agent, employee, controlled affiliate or other controlled person acting on behalf of the Company or
any of its subsidiaries has taken any action, directly or indirectly, that would reasonably be expected to result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization
of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company and its subsidiaries
conduct their businesses in material compliance with the FCPA.
(ff)
Money Laundering Laws. The operations of the Company and its subsidiaries comply in all material respects with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable
money laundering statutes of all jurisdictions in which the Company and its subsidiaries operate, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity applicable to
the Company and its subsidiaries (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by
or before any Governmental Entity with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries.
(gg)
OFAC. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee,
controlled affiliate or other controlled representative of the Company or any of its subsidiaries is an individual or entity currently
the subject or target of any international economic sanctions administered or enforced by the United States Government, including, without
limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European
Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”). The Company
will not use the proceeds of the sale of the Offered Securities in violation of Sanctions.
(hh)
Cybersecurity. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus,
or as would not, individually or in the aggregate, result in a Material Adverse Effect: (i) to the Company’s knowledge there has
been no security breach or other compromise of or relating to any of the Company’s or its subsidiaries’ information technology
and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors
and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”);
(ii) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably
be expected to result in, any security breach or other compromise to their IT Systems and Data; and (iii) the Company and its subsidiaries
are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems
and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification. Except as
disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, the Company and its subsidiaries have
implemented backup and disaster recovery technology consistent with industry standards and practices.
3.
Purchase, Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements and subject
to the terms and conditions set forth herein, the Company agrees to sell to the several Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company the respective principal amount of Offered Securities set forth opposite such
Underwriter’s name in Schedule A hereto at a purchase price of 98.575% of the principal amount of the Offered Securities, plus accrued
interest, if any, from September 15, 2023, to the Closing Date (as hereinafter defined).
Payment of the purchase price for, and delivery
of, the Offered Securities shall be made at the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017,
or at such other place as shall be agreed upon by the Representatives and the Company, at 9:30 a.m. (New York City time) on September
15, 2023, or such other time not later than five business days after such date as shall be agreed upon by the Representatives and the
Company (such time and date of payment and delivery being herein called the “Closing Date”).
Payment shall be made by wire transfer of immediately
available funds to a bank account designated by the Company against delivery to the Representatives for the respective accounts of the
Underwriters of the Offered Securities to be purchased by them. It is understood that each Underwriter has authorized the Representatives,
for their account, to accept delivery of, receipt for, and make payment of the purchase price for, the Offered Securities that it has
agreed to purchase. The Representatives may (but shall not be obligated to) make payment of the purchase price for the Offered Securities
to be purchased by any Underwriter whose funds have not been received by the Closing Date, but such payment shall not relieve such Underwriter
from its obligations hereunder.
Delivery of the Offered Securities, which will
be represented by one or more definitive global notes in book-entry form, shall be made through the facilities of the Depository Trust
Company unless the Representatives shall otherwise instruct. The Offered Securities to be so delivered will be in fully registered form
in such authorized denominations as established pursuant to the Indenture.
4.
Offering by Underwriters. It is understood that the several Underwriters propose to offer the Offered Securities for sale
to the public as set forth in the Final Prospectus.
5.
Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(a)
Filing of Prospectuses. The Company has filed or will file each Statutory Prospectus (including the Final Prospectus) pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and consented to by the Representatives, subparagraph (5), such consent not
to be
unreasonably withheld or delayed) not later than the second business day following the earlier of the date it is first used or the
execution and delivery of this Agreement. The Company has complied and will comply with Rule 433.
(b)
Filing of Amendments; Response to Commission Requests. The Company will promptly advise the Representatives of any proposal
to amend or supplement the Registration Statement or any Statutory Prospectus at any time and will offer the Representatives a reasonable
opportunity to comment on any such amendment or supplement; and the Company will also advise the Representatives promptly of (i) the filing
of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement,
for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop
order proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose, and (iv) the receipt
by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or
the institution or threatening of any proceedings for such purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c)
Continued Compliance with Securities Laws. If, at any time when a prospectus relating to the Offered Securities is (or,
but for the exemption in Rule 172, would be) required to be delivered under the Act by any Underwriter or dealer, any event occurs as
a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company
will promptly notify the Representatives of such event and will promptly prepare and file with the Commission and furnish, at its own
expense, to the Underwriters and the dealers and any other dealers upon request of the Representatives, an amendment or supplement which
will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent
to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth
in Section 7 hereof.
(d)
Rule 158. As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make
generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the date of this
Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(e)
Furnishing of Prospectuses. The Company will furnish to the Representatives copies of the Registration Statement, including
all exhibits, any Statutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing
to the Underwriters all such documents.
(f)
Blue Sky Qualifications. The Company will arrange for the qualification of the Offered Securities for sale and the determination
of their eligibility for investment under the laws of such jurisdictions as the Representatives reasonably designate and will continue
such qualifications in effect so long as required for the distribution; provided that, in connection therewith, the Company shall
not be required to qualify as a foreign corporation or to take any action that would subject it to a general consent to service of process
in any such jurisdiction.
(g)
Reporting Requirements. During the period of five years hereafter, if any Offered Securities remain outstanding, the Company
will furnish to the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon
as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act
or mailed to stockholders, and
(ii) from time to time, such other information concerning the Company as the Representatives may reasonably
request. However, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange
Act and is timely filing reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”),
it is not required to furnish such reports or statements to the Representatives or the Underwriters.
(h)
Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement,
including but not limited to any filing fees and other expenses (including fees and disbursements of counsel to the Underwriters) incurred
in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives reasonably
designate and the preparation and printing of memoranda relating thereto, any fees charged by investment rating agencies for the rating
of the Offered Securities, costs and expenses relating to investor presentations or any “road show” in connection with the
offering and sale of the Offered Securities including, without limitation, any travel expenses of the Company’s officers and employees
and any other expenses of the Company including the chartering of airplanes (but excluding any separately-incurred travel expenses of
employees and representatives of the Representatives and the Underwriters), fees and expenses incident to listing any of the Offered Securities
on the New York Stock Exchange, American Stock Exchange, Nasdaq Stock Market and other national and foreign exchanges, fees and expenses
in connection with the registration of the Offered Securities under the Exchange Act, and expenses incurred in distributing preliminary
prospectuses and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters and for expenses incurred
for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors.
(i)
Use of Proceeds. The Company will use the net proceeds received in connection with this offering in the manner described
in the “Use of Proceeds” section of the Registration Statement, the General Disclosure Package and the Final Prospectus and,
except as disclosed in the Registration Statement, General Disclosure Package and the Final Prospectus, the Company does not intend to
use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any Underwriter.
(j)
Absence of Manipulation. The Company will not take, directly or indirectly, any action designed to or that would constitute
or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities of the Company
to facilitate the sale or resale of the Offered Securities.
(k)
Restriction on Sale of Securities. The Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly
or indirectly, or file with the Commission a registration statement under the Act relating to United States dollar-denominated debt securities
issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention
to make any such offer, sale, pledge, disposition or filing, without the prior written consent of MUFG Securities Americas Inc. and Scotia
Capital (USA) Inc. for a period beginning on the date hereof and ending on the Closing Date (the “Lock-Up Period”).
6.
Free Writing Prospectuses. (a) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless it obtains
the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the
Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute
an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus”, as defined in Rule 405,
required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter
referred to as a “Permitted Free Writing Prospectus”. The Company represents that it has treated and agrees that it
will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus”, as defined in Rule 433, and has
complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely
Commission filing where required, legending and record keeping.
(b)
Term Sheet. The Company will prepare a final term sheet relating to the Offered Securities, containing only information
that describes the final terms of the Offered Securities and otherwise in a form consented to by the Representatives, and will file such
final term sheet within the period required by Rule 433(d)(5)(ii) following the date such final terms have been established for the offering
of the Offered Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for
purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)
(A) information describing the preliminary terms of the Offered Securities or their offering or (B) information that describes the final
terms of the Offered Securities or their offering and that is included in the final term sheet of the Company contemplated in the first
sentence of this subsection or (ii) other information that is not “issuer information”, as defined in Rule 433, it being understood
that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes
of this Agreement.
7.
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the
Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties of the Company herein (as
though made on the Closing Date), to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a)
Accountants’ Comfort Letters. The Representatives shall have received letters, dated, respectively, the date hereof
and the Closing Date, of Deloitte & Touche LLP, confirming that it is a registered public accounting firm and independent public accountants
within the meaning of the Securities Laws and substantially in the form of Schedule C hereto (except that, in any letter dated the Closing
Date, the specified date referred to in Schedule C hereto shall be a date no more than three days prior to the Closing Date).
(b)
Filing of Prospectus. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations
and Section 5(a) hereof. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been
issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, shall be
contemplated by the Commission.
(c)
No Material Adverse Change. Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i)
any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations,
business, properties or prospects of the Company and its subsidiaries taken as a whole which, in the judgment of the Representatives,
is material and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the rating of
any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes
of Rule 3(a)(62)), or any public announcement that any such organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading,
of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange
controls the effect of which is such as to make it, in the judgment of the Representatives, impractical to market or to enforce contracts
for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension
or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices
for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter
market; (vi) any banking moratorium declared by any U.S. Federal or New York authorities; (vii) any major disruption of settlements of
securities, payment or clearance services in the United States or any other country where such securities are listed, or (viii) any attack
on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation,
act,
declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered Securities or to enforce
contracts for the sale of the Offered Securities.
(d)
Opinion of Counsel for Company. The Representatives shall have received an opinion, dated the Closing Date, of Faegre Drinker
Biddle & Reath LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representatives, to the effect set
forth in Exhibit A hereto.
(e)
Opinion of General Counsel to the Company. The Representatives shall have received an opinion, dated the Closing Date, of
Brian G. Iverson, Esq., General Counsel to the Company, in form and substance reasonably satisfactory to the Representatives, to the effect
set forth in Exhibit B hereto.
(f)
Opinion of Counsel for Underwriters. The Representatives shall have received from Davis Polk & Wardwell LLP, counsel
for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representatives may require,
and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such
matters. In rendering such opinion, Davis Polk & Wardwell LLP may rely as to the incorporation of the Company and all other matters
governed by South Dakota law upon the opinion of Brian G. Iverson, Esq., General Counsel to the Company, referred to above.
(g)
Officers’ Certificate. The Representatives shall have received a certificate, dated the Closing Date, of an executive
officer of the Company and a principal financial or accounting officer of the Company in which such officers shall state that: the representations
and warranties of the Company in this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing Date; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge and
after reasonable investigation, are contemplated by the Commission; and, subsequent to the date of the most recent financial statements
in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and
its subsidiaries taken as a whole except as set forth in or contemplated by the General Disclosure Package or as described in such certificate.
The Company will furnish the Representatives with such conformed copies
of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole
discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder.
8.
Indemnification and Contribution. (a) Indemnification by the Company. The Company will indemnify and hold harmless each
Underwriter, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”), against
any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act,
the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained
in any part of the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free
Writing Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability,
action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened
or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred;
provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information
described as such in subsection (b) below.
(b)
Indemnification by the Underwriters. Each Underwriter will severally and not jointly indemnify and hold harmless the Company,
each of its directors and each of its officers who signs a Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Underwriter Indemnified Party”),
against any losses, claims, damages or liabilities to which such Underwriter Indemnified Party may become subject, under the Act, the
Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained
in any part of the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free
Writing Prospectus, or arise out of or are based upon the omission or the alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representatives specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by such Underwriter Indemnified Party in connection with investigating or defending against any such loss, claim,
damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a
party thereto), whether threatened or commenced, based upon any such untrue statement or omission, or any such alleged untrue statement
or omission as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter
consists of the following information in the Final Prospectus furnished on behalf of each Underwriter: the concession and discount figures
appearing in the third paragraph under the caption “Underwriting (Conflicts of Interest)” and the information contained in
the sixth through tenth paragraphs under the caption “Underwriting (Conflicts of Interest)”) (pertaining to the underwriters’
intention to make market in the Notes, stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty
bids and the allocation of Internet distributions).
(c)
Actions against Parties; Notification. Promptly after receipt by an indemnified party under this Section of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party
shall not relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection
(a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could
have been sought
hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or an admission
of, fault, culpability or a failure to act by or on behalf of an indemnified party.
(d)
Contribution. If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering
of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations and not joint. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations
referred to in this Section 8(d).
9.
Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase Offered Securities
hereunder on the Closing Date and the aggregate principal amount of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount of Offered Securities that the Underwriters are obligated
to purchase on the Closing Date, the Representatives may make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities
that such defaulting Underwriters agreed but failed to purchase on the Closing Date. If any Underwriter or Underwriters so default and
the aggregate principal amount of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total principal
amount of Offered Securities that the Underwriters are obligated to purchase on the Closing Date and arrangements satisfactory to the
Representatives and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section
10. As used in this Agreement,
the term “Underwriter” includes any person substituted for an Underwriter under this Section.
Nothing herein will relieve a defaulting Underwriter from liability for its default.
10.
Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties
and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any
Underwriter, the Company or any of their respective representatives, officers or directors or any controlling person, and will survive
delivery of and payment for the Offered Securities. If the purchase of the Offered Securities by the Underwriters is not consummated for
any reason other than solely because of the termination of this Agreement pursuant to Section 9 hereof or the occurrence of any event
specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 7(d), the Company will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities,
and the respective obligations of the Company and the Underwriters pursuant to Section 8 hereof shall remain in effect. In addition, if
any Offered Securities have been purchased hereunder, the representations and warranties in Section 2 and all obligations under Section
5 shall also remain in effect.
11.
Notices. All communications hereunder will be in writing and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representatives at MUFG Securities Americas Inc., 1221 Avenue of the Americas, 6th Floor, New York, NY,
10020-1001 (or toll-free at 1-877-649-6848) and Scotia Capital (USA) Inc., 250 Vesey Street, New York, New York 10281, Attention: Debt
Capital Markets, Email: TAG@scotiabank.com (with a copy to US.legal@scotiabank.com); or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 7001 Mount Rushmore Road, Rapid City, South Dakota 57702, Attention: Brian G. Iverson, Esq., General
Counsel; provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
12.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors
and the officers and directors and controlling persons referred to in Section 8, and no other person will have any right or obligation
hereunder.
13.
Representation of Underwriters. The Representatives will act for the several Underwriters in connection with this financing,
and any action under this Agreement taken by the Representatives will be binding upon all the Underwriters.
14.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same Agreement.
15.
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a)
No Other Relationship. The Representatives have been retained solely to act as an underwriter in connection with the sale
of Offered Securities and that no fiduciary, advisory or agency relationship between the Company and the Representatives has been created
in respect of any of the transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether the Representatives
have advised or is advising the Company on other matters;
(b)
Arms’ Length Negotiations. The price of the Offered Securities set forth in this Agreement was established by the
Company following discussions and arms’-length negotiations with the Representatives and the Company is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c)
Absence of Obligation to Disclose. The Company has been advised that the Representatives and their respective affiliates
are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Representatives
have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship;
and
(d)
Waiver. The Company waives, to the fullest extent permitted by law, any claims it may have against the Representatives for
breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Representatives shall have no liability (whether direct
or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or
in right of the Company, including stockholders, employees or creditors of the Company.
16.
Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and unconditionally waives any objection
to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby
in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
17.
Recognition of the U.S. Special Resolution Regimes
(a)
In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime,
the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to
the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and
obligation, were governed by the laws of the United States or a state of the United States.
(b)
In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted
to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
(c)
For purposes of this Section 17:
(i)
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted
in accordance with, 12 U.S.C. § 1841(k).
(ii)
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in,
and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) “covered bank” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 382.2(b).
(iii)
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R.
§§ 252.81, 47.2 or 382.1, as applicable.
(iv)
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated
thereunder and (ii) Title II of the Dodd-
Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
If the foregoing is in accordance with the Representatives’
understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding
agreement between the Company and the several Underwriters in accordance with its terms.
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Very truly yours, |
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BLACK HILLS CORPORATION |
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By: |
/s/ Tom Stevens |
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Name: Tom Stevens |
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Title: Vice President, Treasurer |
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above written.
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MUFG SECURITIES AMERICAS INC. |
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By: |
/s/ Lee Schreibstein |
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Name: Lee Schreibstein |
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Title: Managing Director |
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SCOTIA CAPITAL (USA) INC. |
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By: |
/s/ Michael Ravanesi |
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Name: Michael Ravanesi |
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Title: Managing Director |
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Acting on behalf of themselves and as the Representatives of the several
Underwriters.
SCHEDULE A
Underwriter | |
Principal Amount of
Offered Securities | |
MUFG Securities Americas Inc. | |
$ | 108,000,000 | |
Scotia Capital (USA) Inc. | |
$ | 99,000,000 | |
Mizuho Securities USA LLC | |
$ | 58,500,000 | |
RBC Capital Markets, LLC | |
$ | 58,500,000 | |
BMO Capital Markets Corp. | |
$ | 31,500,000 | |
BofA Securities, Inc. | |
$ | 31,500,000 | |
U.S. Bancorp Investments, Inc. | |
$ | 31,500,000 | |
Wells Fargo Securities, LLC | |
$ | 31,500,000 | |
Total | |
$ | 450,000,000 | |
SCHEDULE B
1. General Use Issuer Free Writing Prospectuses (included in
the General Disclosure Package)
“General Use Issuer Free Writing Prospectus”
includes each of the following documents:
1. Final term sheet, dated September 6, 2023, a
copy of which is attached hereto.
2. Other Information Included in the General Disclosure Package
The following information is also included in the
General Disclosure Package:
None.
Pricing Term Sheet
[Intentionally omitted]
SCHEDULE C
[Intentionally
omitted]
SCHEDULE D
(“Significant Subsidiaries”)
Subsidiary Name |
State of Organization |
Black Hills Colorado Electric, LLC |
Delaware |
Black Hills Energy Arkansas, Inc. |
Arkansas |
Black Hills Power, Inc. |
South Dakota |
Black Hills Service Company, LLC |
South Dakota |
Black Hills Utility Holdings, Inc. |
South Dakota |
Black Hills Nebraska Gas, LLC |
Delaware |
EXHIBIT A
September
15, 2023
MUFG Securities Americas Inc.
1221 Avenue of the Americas, 6th Floor
New York, NY, 10020-1001
Scotia Capital (USA) Inc.
250 Vesey Street
New York, NY 10281
and the several other Underwriters listed
in Schedule A
to the Underwriting
Agreement referenced below
| Re: | Offering by Black Hills Corporation of $450,000,000 principal amount of
its 6.150% Notes due 2034 |
Ladies and Gentlemen:
We have acted
as counsel to Black Hills Corporation, a South Dakota corporation (the “Company”), in connection with the Underwriting
Agreement, dated September 6, 2023 (the “Underwriting Agreement”), by and among the Company and MUFG Securities Americas
Inc. and Scotia Capital (USA) Inc., as representatives of the several underwriters listed in Schedule A thereto (the “Underwriters”),
relating to the issuance by the Company of $450,000,000 principal amount of its 6.150% Notes due 2034 (the “Offered Securities”).
Capitalized terms used and not defined herein have the respective meanings ascribed to such terms in the Underwriting Agreement. We are
delivering this opinion letter pursuant to Section 7(d) of the Underwriting Agreement.
The Offered Securities are to be issued under an
indenture dated as of May 21, 2003, between the Company and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National
Association), as Trustee (the “Trustee”) (the “Base Indenture”), as supplemented by a first supplemental
indenture dated as of May 21, 2003, a second supplemental indenture dated as of May 14, 2009, a third supplemental indenture dated as
of July 16, 2010, a fourth supplemental indenture dated as of November 19, 2013, a fifth supplemental indenture dated as of January 13,
2016, a sixth supplemental indenture dated as of August 19, 2016, a seventh supplemental indenture dated as of August 17, 2018, an eighth
supplemental indenture dated as of October 3, 2019, a ninth supplemental indenture dated as of June 17, 2020, a tenth supplemental indenture
dated as of August 26, 2021, an eleventh supplemental indenture dated as of March 7, 2023, and a twelfth supplemental indenture dated
as of the Closing Date (the “Supplemental Indenture” and, the Base Indenture as supplemented by such Supplemental Indenture,
the “Indenture”). The Indenture, the Underwriting Agreement and the Offered Securities are sometimes referred to herein
collectively as the “Transaction Documents.”
We have made such examination of law and facts
as we have deemed necessary as a basis for our opinions set forth below. In connection with such examination, we have reviewed the following
documents:
(a)
The Company’s automatic shelf Registration Statement on Form S-3 (File No. 333-272739) filed with the Securities and Exchange
Commission (the “Commission”) on June 16, 2023 (the “Registration Statement”);
(b)
The prospectus dated June 16, 2023 included within the Registration Statement (the “Base Prospectus”), the
preliminary prospectus supplement dated September 6, 2023 relating to the Offered Securities (together with the Base Prospectus, the
“Preliminary Prospectus”), the General Disclosure
Package, and the final prospectus supplement dated September 6, 2023 relating to the Offered
Securities (together with the Base Prospectus, the “Final Prospectus”), in each case, including the documents incorporated
by reference therein;
(c)
The Underwriting Agreement; and
(d)
The Indenture, including the forms of Offered Securities attached to the Supplemental Indenture.
Based
upon and subject to the foregoing and the qualifications set forth in Annex I attached hereto, we advise you that in
our opinion:
1.
The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended.
2.
The Offered Securities delivered on the Closing Date conform in all material respects to the description thereof contained in the
General Disclosure Package and the Final Prospectus.
3.
When executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters
in accordance with the terms of the Underwriting Agreement, the Offered Securities will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms and will be entitled to the benefits of the Indenture, in each case except
as the same may be limited by the effect of bankruptcy, insolvency, voidable transactions, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium, assignment for the benefit of creditors and other similar laws now or hereafter in effect relating to or affecting
creditors’ rights generally and equitable principles of general applicability (regardless of whether considered in a proceeding
in equity or at law).
4.
The Indenture constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its
terms, except as the same may be limited by the effect of bankruptcy, insolvency, voidable transactions, fraudulent conveyance, fraudulent
transfer, reorganization, moratorium, assignment for the benefit of creditors and other similar laws now or hereafter in effect relating
to or affecting creditors’ rights generally and equitable principles of general applicability (regardless of whether considered
in a proceeding in law or at equity).
5.
The execution and delivery by the Company of the Supplemental Indenture, the Offered Securities and the Underwriting Agreement,
and the performance by the Company of its obligations under the Transaction Documents, will not violate any provision of statutory law
or regulation of the United States of America or the State of New York applicable to the Company (except no opinion is rendered with respect
to federal or state securities or Blue Sky laws or regulations adopted by the Financial Industry Regulatory Authority, Inc. (“FINRA”)
in connection with the purchase and distribution of the Offered Securities by the Underwriters).
6.
No consent, approval, authorization or order of, or qualification with, the government of the United States of America or the State
of New York or any department, commission or agency thereof is required to be made or obtained by the Company under any provision of statutory
law or regulation of the United States of America or the State of New York applicable to the Company for the performance by the Company
of its obligations under the Transaction Documents or the issuance and sale of the Offered Securities by the Company pursuant to the Underwriting
Agreement, except such as have been obtained or may be required by federal or state securities or Blue Sky laws or regulations adopted
by FINRA (as to which we render no opinion).
7.
The Company is not, and after giving effect to the offering and sale of the Offered Securities and the application of the proceeds
thereof as described in the Final Prospectus will not be,
required to register as an “investment company” as such term is
defined in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder (the “ICA”).
8.
The statements in each of the General Disclosure Package and the Final Prospectus under the captions “Description of the
Notes” and “Description of Senior Debt Securities,” insofar as such statements purport to summarize matters of law,
descriptions of statutes, rules or regulations, legal documents or legal proceedings, in each case fairly summarize in all material respects
such matters, statutes, rules, regulations, documents or proceedings when taken as a whole.
9.
The statements in each of the General Disclosure Package and the Final Prospectus under the caption “Material U.S. Federal
Income Tax Consequences,” insofar as such statements purport to summarize the United States federal tax laws referred to therein,
fairly summarize in all material respects the United States federal tax laws referred to therein.
10. The Registration Statement became effective under the Securities Act of 1933, as amended (the “Act”), upon filing
with the Commission.
11.
Each of the Registration Statement and the documents filed by the Company with the Commission pursuant to the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) expressly incorporated by reference into the Registration Statement, the
General Disclosure Package or the Final Prospectus (except for the Trustee’s Statement of Eligibility and Qualification on Form
T-1 and the financial statements and financial schedules and other financial or accounting data included or incorporated by reference
therein or omitted therefrom, as to which we express no opinion), when such document was filed with the Commission, appeared on its face
to comply as to form in all material respects with the requirements of the Act and the Exchange Act, as applicable, and the applicable
rules and regulations of the Commission thereunder. In passing upon compliance as to the form of such documents, we have assumed that
the statements made or incorporated by reference therein are complete and correct.
In
connection with the preparation of the Registration Statement, the General Disclosure Package and the Final Prospectus, we have participated
in conferences with officers and other representatives of the Company and the independent public accountants for the Company at which
the contents of the same and related matters were discussed. On the basis of such participation and review, but without independent verification
by us of, and, other than with respect to opinion paragraphs 2, 8 and 9, without assuming any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package and the Final Prospectus,
no facts have come to our attention that cause us to believe that (a) the Registration Statement, at the time it became effective (including
the information, if any, deemed pursuant to Rule 430B to be part of the Registration Statement at the time of effectiveness), contained
any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, (b) the General Disclosure Package as of the Applicable Time or
as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (c) the Final
Prospectus when issued, or as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading (except in the case of each of clause (a), (b) and (c) above, for the financial statements and financial schedules and
other financial or accounting data included or incorporated by reference therein or omitted therefrom, as to which we make no statement).
This
letter and the opinions expressed herein are being furnished solely for your information in connection with the Underwriting Agreement
and may not be used for any other purpose or relied on by or assigned, published or communicated to any other person without our prior
written consent, except that we hereby authorize the Trustee to rely upon opinion paragraphs 1, 3 and 4 of this opinion letter
as if they had been addressed to it.
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Very truly yours, |
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FAEGRE DRINKER BIDDLE & REATH LLP |
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By: |
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Brandon C. Mason, Partner |
In
rendering the accompanying opinion letter, we wish to advise you of the following additional qualifications to which such opinion
letter is subject:
(a)
As to certain relevant facts, we have relied upon representations made by the Company in the Transaction Documents, the
assumptions set forth herein and in the accompanying opinion letter, and upon certificates of, and information provided by, officers
and employees of the Company reasonably believed by us to be appropriate sources of information, as to the accuracy of such factual
matters, in each case without independent verification thereof or other investigation. With respect to our opinion in paragraph 7 of
our opinion letter, we have relied exclusively, as to all factual matters, on a certificate of an officer of the Company dated as of
the date hereof as to the composition of the Company’s investment portfolio.
(b)
Our opinion letter is limited to U.S. federal laws and, solely with respect to paragraphs 3
through 6 and 8 of our opinion letter, the laws of the State of New York, in each case that are applicable to the Company other than those
that are part of a regulatory scheme specifically applicable to business organizations engaged in the type of regulated business activities
conducted by the Company (the “Covered Laws”), and we express no opinion as to the effect on the matters covered by
our opinions of any other law. Furthermore, in rendering opinions as to any jurisdictions, we have only considered the applicability of
statutes, rules, regulations and judicial decisions that a lawyer practicing in such jurisdiction (the “Opining Jurisdictions”)
exercising customary professional diligence would reasonably recognize as being directly applicable to the Company or the transactions
contemplated by the Underwriting Agreement.
(c) We
express no opinion as to whether, or to the extent of which, the laws of any particular jurisdiction apply to the subject matter hereof,
including without limitation the enforceability of the governing law provision contained in the Transaction Documents, except to the extent
such provision would be enforceable based on Section 5-1401 and 5-1402 of the General Obligations Law of the State of New York.
(d) We
have relied, without investigation, upon the following assumptions: (i) natural persons who are involved on behalf of the Company
have sufficient legal capacity to enter into and perform, on behalf of the Company, the transaction in question and to carry out their
role in the transaction; (ii) each Transaction Document has been duly authorized, executed and delivered by each party thereto;
(iii) each party having rights under any of the Transaction Documents has satisfied those legal requirements that are applicable to it
to the extent necessary to make the Transaction Documents enforceable against it and has complied with all legal requirements pertaining
to its status as such status relates to its rights to enforce the Transaction Documents against it and the other parties; (iv) each document
submitted to us for review is accurate and complete, each such document that is an original is authentic, each such document that is a
copy conforms to an authentic original, and all signatures on each such document, including electronic signatures, are genuine; (v) there
has not been any mutual mistake of fact or misunderstanding, fraud, duress or undue influence; (vi) all statutes, judicial and administrative
decisions, and rules and regulations of governmental agencies, constituting the Covered Laws are publicly available to lawyers practicing
in the Opining Jurisdictions; (vii) all relevant statutes, rules, regulations or agency actions are constitutional and valid unless
a reported decision in the Opining Jurisdictions has specifically addressed but not resolved, or has established, its unconstitutionality
or invalidity; (viii) documents reviewed by us (other than the Indenture and the Offered Securities) would be enforced as written
and would be interpreted in a manner consistent with their interpretation under the laws of the State of New York; (ix) the Company
will not in the future take any discretionary action (including a decision not to act) permitted under the Transaction Documents that
would result in a violation of law or constitute a breach or default under any other agreement, order or regulation; (x) the Company
will obtain all permits and governmental approvals required in the future, and take all future actions similarly required, relevant to
the performance of the Transaction Documents; (xi) all parties to the transaction will act in accordance with, and will refrain from
taking any action that is forbidden by, the terms and
conditions of the Transaction Documents; (xii) there are no agreements or understandings
among the parties, written or oral, and there is no usage of trade or course of prior dealing among the parties that would, in either
case, define, supplement or qualify the terms of any of the Transaction Documents; and (xiii) the conduct of the parties to the Transaction
Documents has complied with any requirement of good faith, fair dealing and conscionability.
(e)
We have further assumed, without investigation, that (i) the Company has been duly organized
and is validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) the Company has the power and authority
under its governing documents and the laws of its jurisdiction of incorporation to execute and deliver the Transaction Documents, to perform
its obligations thereunder and to consummate the transactions contemplated thereby; (iii) the Transaction Documents have been duly authorized,
executed and delivered by the Company; and (iv) the Company has obtained all governmental and third party authorizations, consents, approvals
and orders and has made all filings and registrations required to enable it to execute, deliver and perform its obligations under, and
consummate the transactions contemplated by, the Transaction Documents (which authorizations, consents, approvals and orders have become
final and remain in full force and effect), and such execution, delivery, performance and consummation does not and will not violate or
conflict with the Company’s governing documents or any law, rule, regulation, order, decree, judgment, instrument or agreement binding
upon the Company or its properties (it being understood that the assumption set forth in this clause (iv) does not extend to Covered Laws
as addressed in paragraphs 5 and 6 of the opinion letter).
(f) We
express no opinion as to the enforceability or effect in any Transaction Document of (i) any usury or fraudulent transfer, voidable transactions
or fraudulent conveyance “savings” provision; (ii) any agreement to submit to the jurisdiction of any particular court
or other governmental authority (either as to personal jurisdiction or subject matter jurisdiction), any provision restricting access
to courts (including without limitation agreements to arbitrate disputes), any waivers of the right to jury trial, any waivers of service
of process requirements that would otherwise be applicable, any provision relating to evidentiary standards, any agreement that a judgment
rendered by a court in one jurisdiction may be enforced in another jurisdiction, or any provision otherwise affecting the jurisdiction
or venue of courts; (iii) any provision waiving or otherwise modifying legal, statutory or equitable defenses or other procedural, judicial
or substantive rights; (iv) any provision that authorizes one party to act as attorney-in-fact for another party; or (v) any provision
that provides for set-off or similar rights.
(g) The
opinions herein expressed are limited to the specific issues addressed and to facts and laws existing on the date hereof. In rendering
these opinions, we do not undertake to advise you with respect to any other matter or of any change in such laws or in the interpretation
thereof, or of any change in such facts, which may occur after the date hereof.
(h) Without
limiting any other qualifications set forth herein, the opinions expressed in opinion paragraphs 3 and 4 are subject to the effect of
generally applicable laws that (i) provide for the enforcement of oral waivers or modifications where a material change of position in
reliance thereon has occurred or provide that a course of performance may operate as a waiver; (ii) limit the availability of a remedy
under certain circumstances where another remedy has been elected; (iii) limit the enforceability of provisions releasing, exculpating
or exempting a party from, or requiring indemnification of or contribution to a party for, liability for its own action or inaction, to
the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct; (iv) limit the enforcement
of provisions of a contract that purport to require the waiver of the obligation of good faith, fair dealing, diligence and reasonableness;
(v) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances
in which the unenforceable portion is not an essential part of the agreed exchange; (vi) govern and afford judicial discretion regarding
determination of damages and entitlement to attorneys’ fees and other costs; (vii) may permit a party who has materially failed
to render or offer performance required by a contract to cure that failure unless either permitting a cure would unreasonably hinder the
aggrieved party from making substitute
arrangements for performance or it is important under the circumstances to the aggrieved party
that performance occur by the date stated in the contract; (viii) may limit the enforceability of provisions imposing premiums or liquidated
damages to the extent such provisions constitute, or are deemed to constitute, a penalty or forfeiture and provisions imposing increased
interest rates upon default, or providing for the compounding of interest or the payment of interest on interest; (ix) may limit the amount
payable under the Offered Securities upon an acceleration to the extent that a portion of the amount so payable is considered by a court
to be unearned interest; (x) may require mitigation of damages; (xi) provide a time limitation after which rights may not be enforced
(i.e., statutes of limitation); (xii) may require that a claim with respect to any debt securities that are payable other than in U.S.
dollars (or a foreign currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law; and (xiii) may limit, delay or prohibit the making of payments outside the United States.
(i) The
opinions expressed in opinion paragraphs 3 and 4 regarding the enforceability of the Indenture and the Offered Securities are subject
to the qualification that certain other provisions of the Indenture or the Offered Securities addressed therein may be further limited
or rendered unenforceable by applicable laws, but in our opinion such laws do not render the Indenture or the Offered Securities invalid
as a whole or preclude the practical realization of the principal benefits purported to be provided thereby.
(j)
We express no opinion in any paragraph above as to any agreement, instrument or undertaking (including without
limitation any statutory undertaking) that is not itself a Transaction Document specifically addressed in said paragraph solely as a
result of any provision in any such Transaction Document requiring that the Company perform or cause any other person to perform its
obligations under, or stating that any action will be taken as provided in or in accordance with, or otherwise incorporating by
reference, such agreement, instrument or undertaking.
(k) The
opinions expressed herein do not address any of the following legal issues: (i) other than as set forth in opinion paragraphs 1,
7, 10 and 11 and the confirmation in the penultimate paragraph, federal securities laws and regulations, (ii) state securities and Blue
Sky laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments
and the rules and regulations of securities exchanges; (iii) margin regulations of the Board of Governors of the Federal Reserve System;
(iv) other than as set forth in opinion paragraph 9, federal and state tax laws and regulations; (v) the statutes and ordinances,
administrative decisions and the rules and regulations of counties, towns, municipalities and special political subdivisions (whether
created or enabled through legislative action at the federal, state or regional level) and judicial decisions to the extent that they
deal with the foregoing; (vi) voidable transactions, fraudulent transfer and fraudulent conveyance laws; (vii) laws, regulations,
directives and executive orders restricting transactions with or freezing or otherwise controlling assets of designated foreign persons
or governing investments by foreign persons in the United States or otherwise relating to terrorism, money laundering or national
security; (viii) foreign, supranational or international laws; (ix) compliance with fiduciary duty and conflict-of-interest requirements;
(x) pension and employee benefit laws and regulations; (xi) antitrust and unfair competition laws and regulations; (xii) laws
and regulations concerning filing and notice requirements, other than requirements applicable to charter-related documents such as certificates
of merger; (xiii) environmental laws and regulations; (xiv) land use and subdivision laws and regulations; (xv) intellectual
property laws and regulations; (xvi) racketeering laws and regulations; (xvii) health and safety laws and regulations; (xviii) labor
laws and regulations; (xix) laws, regulations, directives, orders and policies concerning national and local emergency, possible
judicial deference to acts of sovereign states, and criminal and civil forfeiture laws; and (xx) other statutes of general application
to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes).
(l) With
respect to the statements in the penultimate paragraph of the accompanying opinion letter, the purpose of our professional engagement
was not to establish or to confirm factual matters set forth in the General Disclosure Package or the Final Prospectus, and we have not
undertaken to verify independently any of such factual matters. Moreover, many of the determinations required to be made in the preparation
of the General Disclosure Package or the Final Prospectus involve matters of a non-legal nature.
EXHIBIT B
September
15, 2023
MUFG Securities Americas Inc.
1221 Avenue of the Americas, 6th Floor
New York, NY, 10020-1001
Scotia Capital (USA) Inc.
250 Vesey Street
New York, NY 10281
and the other several
Underwriters listed in
Schedule A
to the Underwriting
Agreement referenced below
| Re: | Offering by Black Hills Corporation of $450,000,000 principal
amount of its 6.150% Notes due 2034 |
Ladies and Gentlemen:
I
am Senior Vice President and General Counsel of Black Hills Corporation, a South Dakota corporation (the “Company”).
I have acted in such capacity in connection with the Underwriting Agreement, dated September 6, 2023 (the “Underwriting Agreement”),
by and among the Company and MUFG Securities Americas Inc. and Scotia Capital (USA) Inc., as representatives of the several underwriters
listed therein (the “Underwriters”), relating to the issuance by the Company of $450,000,000 principal amount of its
6.150% Notes due 2034 (the “Offered Securities”). Capitalized terms used and not defined herein have the respective
meanings ascribed to such terms in the Underwriting Agreement. I am delivering this opinion letter pursuant to Section 7(e) of the
Underwriting Agreement.
The Offered Securities are to be issued under an
indenture dated as of May 21, 2003, between the Company and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National
Association, as Trustee (the “Trustee”) (the “Base Indenture”), as supplemented by a first supplemental
indenture dated as of May 21, 2003, a second supplemental indenture dated as of May 14, 2009, a third supplemental indenture dated as
of July 16, 2010, a fourth supplemental indenture dated as of November 19, 2013, a fifth supplemental indenture dated as of January 13,
2016, a sixth supplemental indenture dated as of August 19, 2016, a seventh supplemental indenture dated as of August 17, 2018, an eighth
supplemental indenture dated as of October 3, 2019, a ninth supplemental indenture dated as of June 17, 2020, a tenth supplemental indenture
dated as of August 26, 2021, an eleventh supplemental indenture dated as of March 7, 2023 and a twelfth supplemental indenture dated as
of the date hereof with respect to the Offered Securities (the “Supplemental Indenture”). The Base Indenture, the Supplemental
Indenture and the Underwriting Agreement are sometimes referred to herein collectively as the “Transaction Documents.”
In providing this opinion
letter, I, or other lawyers in the Company’s legal department, have made such examination of law and facts as we have deemed relevant
and necessary as a basis for the opinions hereinafter set forth. In connection with such examination, we have reviewed the following documents:
(a)
The Company’s automatic shelf Registration Statement on Form S-3 (File No. 333-272739) filed with the Securities and Exchange
Commission (the “Commission”) on June 16, 2023 (the “Registration Statement”);
(b)
The prospectus dated June 16, 2023 included within the Registration Statement (the “Base Prospectus”), the
preliminary prospectus supplement dated September 6, 2023 relating to
the Offered Securities (together with the Base Prospectus, the “Preliminary
Prospectus”), the General Disclosure Package, and the prospectus supplement dated September 6, 2023 relating to the Offered
Securities (together with the Base Prospectus, the “Final Prospectus”), in each case, including the documents incorporated
by reference therein;
(c)
The Underwriting Agreement;
(d)
The Base Indenture; and
(e)
The Supplemental Indenture, including the forms of Offered Securities attached thereto.
18.
In reaching the conclusions expressed in this opinion, I or persons responsible to me have examined the Registration Statement,
the General Disclosure Package, the Final Prospectus, the Transaction Documents, the Company’s Restated Articles of Incorporation,
as amended (the “Articles of Incorporation”), the Company’s Amended and Restated Bylaws dated April 24, 2023
(the “Bylaws”), certain resolutions of the Board of Directors of the Company and committees thereof relating to, among
other things, the execution and delivery of the Transaction Documents in the name of the Company and the issuance and delivery of the
Offered Securities, and such corporate documents and records of the Company and its subsidiaries, such certificates of public officials
and officers of the Company, and such other documents and matters as I have deemed necessary or appropriate for purposes of this opinion.
In rendering this opinion, I have assumed the following to be true and have conducted no investigation to confirm such assumptions or
to determine to the contrary: (a) the authenticity of all documents, instruments and certificates submitted to me or persons responsible
to me as originals; (b) the conformity with the original documents of all documents, instruments and certificates submitted to me or persons
responsible to me as certified, conformed or photostatic copies; and (c) the authenticity of the originals from which all such copies
were made. In rendering this opinion, I have relied as to matters of fact, to the extent I deemed such reliance appropriate, without investigation,
upon certificates of public officials and upon affidavits, certificates, and written statements of officers and employees of, and accountants
for, the Company.
On the basis of and subject
to the foregoing, I am of the opinion that as of the date hereof:
1.
Good Standing of the Company. The Company has been duly incorporated and is an existing corporation in good standing under
the laws of the State of South Dakota, with corporate power and authority to own its properties and conduct its business as described
in the General Disclosure Package; and the Company is duly qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in the aggregate, result in a Material Adverse Effect.
2.
Significant Subsidiaries. Each subsidiary of the Company listed on Schedule D to the Underwriting Agreement (each, a “Significant
Subsidiary”) has been duly incorporated or organized, as the case may be, and is existing and in good standing under the laws
of the jurisdiction of its incorporation or organization, as the case may be, with power and authority (corporate and other) to own its
properties and conduct its business as described in the General Disclosure Package; and each Significant Subsidiary is duly qualified
to do business as a foreign corporation, limited partnership, general partnership or limited liability company, as the case may be, in
good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification,
except where the failure to be so qualified and in good standing would not, individually or in the aggregate, result in a Material Adverse
Effect; all of the issued and outstanding capital stock or partnership or limited liability company interests, as the case may be, of
each Significant Subsidiary have been duly authorized and validly issued and, with respect to the capital stock of each Significant Subsidiary
which is a corporation, are fully paid and nonassessable; and the capital stock or partnership or limited liability company interests,
as the case may be, of each Significant Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances
and defects.
3.
Transaction Documents; Offered Securities. Each Transaction Document has been duly authorized, executed and delivered by
the Company, and the Offered Securities delivered on the Closing Date have been duly authorized, executed and delivered by the Company.
4.
Authority. The Company has full corporate power and authority to authorize, issue and sell the Offered Securities as contemplated
by the Underwriting Agreement.
5.
Registration Rights. Except as disclosed in the General Disclosure Package, there are no contracts, agreements or understandings
known to me between the Company and any person granting such person the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
6.
Possession of Licenses. To my knowledge, except as disclosed in the General Disclosure Package, the Company and each of
its subsidiaries possess adequate Licenses issued by appropriate governmental agencies or bodies necessary to conduct the business as
now operated by them as described in the General Disclosure Package and, except as described in the General Disclosure Package, I am not
aware of the receipt of any notice of proceedings relating to the revocation or modification of any such License that, if determined adversely
to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
7.
Environmental Laws. To my knowledge, except as disclosed in the General Disclosure Package, the Company and each subsidiary
of the Company (A) are in compliance with any and all applicable environmental laws (as defined in the Underwriting Agreement), (B) have
received all permits, licenses and other approvals required of it under applicable environmental laws to conduct its business and (C)
are in compliance with all terms and conditions of each such permit, license and approval, except where such noncompliance with environmental
laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the aggregate, have a Material Adverse Effect.
8.
Absence of Further Requirements. No consent, approval, authorization or order of, or filing with, any governmental agency
or body or any court is required under South Dakota law, the Public Utility Holding Company Act of 2005, as amended (“PUHCA”),
the U.S. Energy Policy Act of 2005, as amended (the “Energy Policy Act”), or the U.S. Federal Power Act, as amended
(the “Federal Power Act”), for the consummation of the transactions contemplated by the Underwriting Agreement in connection
with the issuance and sale of the Offered Securities by the Company, except such as have been obtained and such as may be required under
state securities laws.
9.
Absence of Defaults and Conflicts Resulting from Transaction. The execution and delivery by the Company of the Supplemental
Indenture and the Underwriting Agreement and the performance by the Company of the Transaction Documents and the issuance and sale of
the Offered Securities and compliance with the terms and provisions thereof will not result in a breach or violation of (A) the Articles
of Incorporation of the Company or the Bylaws of the Company or (B) any of the terms and provisions of, or constitute a default under,
or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant
to (i) the PUHCA, the Energy Policy Act or the Federal Power Act or any rule, regulation or, to my knowledge, order of any governmental
agency or body relating to the PUHCA, the Energy Policy Act or the Federal Power Act or any court having jurisdiction over the Company
or any subsidiary of the Company or any of their properties in a proceeding relating to the PUHCA, the Energy Policy Act or the Federal
Power Act or (ii) any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the properties of the Company or any of its subsidiaries is subject, except in the case
of this clause (B)(ii) for such breaches, violations, defaults or impositions as would not, individually or in the aggregate, have a Material
Adverse Effect (it being understood that my opinion in this clause (B)(ii) does not extend to compliance with any financial ratio or any
limitation in any contractual restriction expressed as a dollar (or other currency) amount).
10.
Accurate Disclosure. The descriptions under the headings or subheadings “Risk Factors,” “Business and
Properties,” “Black Hills Corporation” and “About Black Hills Corporation” in or incorporated by reference
in the Registration Statement, the General Disclosure Package and the Final Prospectus of statutes, legal and governmental proceedings,
and contracts and other documents are accurate in all material respects and fairly present the information required to be shown (it being
understood that I express no opinion as to the content of the financial statements or the other financial data or assessments of or reports
on the effectiveness of internal control over financial reporting contained in the Registration Statement, the General Disclosure Package,
the Final Prospectus or the Form T-1).
11.
No Material Litigation. Except as disclosed in the General Disclosure Package and the Final Prospectus, to my knowledge,
there are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or any
of its properties), which, in the aggregate, could reasonably be expected to result in a Material Adverse Effect on the Company and its
subsidiaries taken as a whole, or which would materially and adversely affect the ability of the Company to perform its obligations under
the Transaction Documents; and no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental
agency or body) are, to my knowledge, threatened or contemplated.
In
connection with the preparation of the General Disclosure Package and the Final Prospectus, I, or other lawyers in the Company’s
legal department, have participated in conferences with officers and other representatives of the Company and the independent public accountants
for the Company at which the contents of the same and related matters were discussed. On the basis of such participation and review, but
without independent verification by us of, and, other than with respect to opinion paragraph 10, without assuming any responsibility
for, the accuracy, completeness or fairness of the statements contained in the General Disclosure Package and the Final Prospectus, no
facts have come to my attention that cause me to believe that (a) the General Disclosure Package (except for the Trustee’s Statement
of Eligibility and Qualification on Form T-1 and the financial statements and financial schedules, oil and gas reserve reports and other
financial or accounting data included or incorporated by reference therein or omitted therefrom, as to which I make no statement) as of
the date of the Underwriting Agreement or as of the date hereof, contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading or (b) the Final Prospectus (except for the Trustee’s Statement of Eligibility and Qualification on Form T-1
and the financial statements and financial schedules, oil and gas reserve reports and other financial or accounting data included or incorporated
by reference therein or omitted therefrom, as to which I make no statement) when issued contained, or as of the date hereof contains,
any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
The opinions and views expressed
above are subject to the following limitations, qualifications, exceptions and assumptions:
(a)
I have not relied upon, nor do I undertake for the purposes of this opinion the responsibility to review, the records of any court
or administrative or governmental body to determine the existence of any judicial or administrative proceeding, order, decree, writ or
judgment. As to all matters where I refer to “my knowledge” of the existence of any facts, situations or instruments, such
knowledge is based upon my actual knowledge, from whatever source obtained, and the information obtained by me through specific inquiry
of officers of the Company, including those officers who have responsibility for such information, and examinations of agreements, contracts
and records supplied to me by the Company, and I have not otherwise made, nor do I undertake for the purpose of this opinion to make,
any other inquiry or investigation to ascertain the existence of any other facts, situations or instruments. In the course of such inquiries
and examinations, I have not become aware of any facts which would have made me unable to render any of the opinions expressed above.
(b)
I am a member of the bar of the State of South Dakota. My opinions expressed above are limited to the laws of the State of South
Dakota and the federal laws of the United States of
America (but only with regard to the
PUHCA, the Energy Policy Act, the Federal Power Act and environmental laws), and I do not express any opinion herein concerning the laws
of any other jurisdiction. With respect to the opinions expressed in paragraph 2, I have assumed that the applicable law in each Significant
Subsidiary’s jurisdiction of incorporation or organization, as the case may be, is the same as the applicable law in the State
of South Dakota in all relevant respects.
(c)
I have relied upon information, both oral and written, and copies of documents and records furnished to me by other employees of
the Company and others, and, for purposes of this opinion, I have assumed that all such information and copies are true, correct, genuine
and accurate and remain unchanged to the date hereof, and that all signatures, including electronic signatures, are genuine, and none
of said matters have been independently verified by me. I have also assumed conformity to the originals of all documents submitted to
me as copies. I have also assumed that all parties to the Transaction Documents will act in accordance with, and will refrain from, taking
any action that is forbidden by, the terms and conditions of the Transaction Documents and the Offered Securities. I have also assumed
that, in the future, the Company will not take any discretionary action (including a decision not to act) that would result in a violation
of law or constitute a breach or default under any agreement, order or regulation and that the officers of the Company will direct that
the offering of the Offered Securities will be conducted in accordance with the limitations imposed by or pursuant to the resolutions
of the Company’s board of directors from time to time.
(d)
This opinion letter is limited to the matters expressly stated herein, and no opinion is inferred or may be implied beyond the
matters expressly stated. This opinion letter expresses matters of professional judgment and does not constitute a guaranty of any result.
This opinion letter is predicated solely upon statutory and case law and facts in existence as of the date hereof. I do not undertake
to inform you of any changes in law or fact subsequent to the date hereof or facts of which I become aware after the date hereof.
I
hereby authorize the Trustee to rely upon opinion paragraphs 1, 2, 3 and 4 of this opinion letter as if they had been addressed
to it.
This letter and the opinions
expressed herein are being furnished solely for your information in connection with the Underwriting Agreement and may not be used, circulated,
quoted or relied upon for any other purpose without my prior written consent, except as expressly set forth above with respect to the
Trustee.
|
Very truly yours, |
|
|
|
|
|
Brian G. Iverson |
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